Terms and Conditions of Trade for Clients
TERMS AND CONDITIONS OF TRADE FOR CLIENTS - LUMINAIDE PTY LTD ACN 125 981 599
1. INTERPRETATION
In these terms and conditions unless the context otherwise requires:
Company means Luminaide Pty Ltd ACN 125 981 599 of 64 Nyleta Street, Coopers Plains, Queensland, Australia;
Client means a person, a business, a company or a party to any contractual arrangement with the Company, subject to these Terms and Conditions;
Confidential Information means any information concerning the Company’s business including, but not limited to work procedures, processes, employees, customers, services, affairs or businesses, handbooks, standards, technical knowledge, concepts, ideas, designs, programs, data or application systems codes and associated documents or information and whether owned by, licensed to, or otherwise in the possession, power or control of the Company but excluding any information which is generally available in the public domain;
Fee means the fee charged by the Company to the Client for the provision of Goods and/or Services;
Force Majeure Event means any:
(i) act of God;
(ii) outbreak or escalation of hostilities (whether or not war has been declared) or any other unlawful act against public order or authority;
(iii) industrial dispute;
(iv) governmental restraint; or
(v) other event which is not within the reasonable control of the parties;
Goods means all goods supplied by the Company to the Client;
GST has any meaning used in the GST Law;
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time) or any replacement or other relevant legislation and regulations;
Insolvency Event means –
(a) a receiver, receiver and manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official is appointed over any of the assets or undertaking of the Client;
(b) the Client suspends payment of its debts generally;
(c) the Client is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts or is presumed to be insolvent within the meaning of the Corporations Act;
(d) the Client enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(e) a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, an administrator to the Client; or
(f) an application or order is made for the winding up or dissolution of the Client, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the party, otherwise for the purpose of an amalgamation or reconstruction.
Intellectual Property means all intellectual and industrial property rights (including underlying rights in any media now in existence or developed in the future) including, without limitation, rights in the nature of any patent, trade mark or service mark, copyright, visual image right, performance right, design, business name or trade secret or confidential information (including the Confidential Information), whether or not registered or registrable;
Order means an order placed by a Client pursuant to this Supply Contract;
Party means a party to the Supply Contract;
Payment Schedule means the schedule of payments as set out under the heading of Billing Arrangements above;
Services means all services supplied by the Company to the Client;
Supply Contract means the contract made between the Company and the Client for the provision of Goods and/or Services;
Terms means the terms of the Supply Contract including the Terms and Conditions;
Terms and Conditions means these terms and conditions;
Web Site means any of the Company’s websites located at the URLs www.luminaide.com and www.xsproject.com.au
2. GENERAL
2.1 These Terms and Conditions are deemed to be incorporated into all Supply Contracts (express or implied) for the supply of Services and/or Goods to the Client and supersede all terms and conditions previously issued by the Company.
2.2 No Supply Contract for the provision of Services and/or Goods shall exist between the Company and the Client except upon these Terms and Conditions unless their exclusion or modification is agreed to in writing by the Company. Any booking placed by a Client is deemed to be an order incorporating these Terms and Conditions despite any inconsistencies in the Client’s booking.
2.3 A reference to any legislation or legislative provision in these Terms and Conditions includes any statutory modification or re-enactment of, or legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision. These Terms and Conditions are without prejudice to any claim against the Client.
3. TERMS OF PAYMENT
3.1 On all invoices, payment is required within 7 days of the date of invoice and/or completion unless otherwise expressly agreed in writing by the Company. Unless otherwise agreed in writing a deposit of fifty (50) per cent of the agreed price plus GST is payable with the signing of a booking or confirmation of a job and as set out below this deposit will be non refundable to the Client to the extent it is required to meet the Company’s liquidated damages in event of cancellation of a booking.
3.2 Further payment will be required by the Company in accordance with the Payment Schedule as set out above and for the avoidance of doubt in the event that any additional Goods/Services are required, these will be invoiced to the Client after the event and the Client agrees to pay within 7 days from the date of the invoice as set out above.
3.3 In addition to the above, the following payment terms will apply in relation to the Goods and/or Services specifically provided by the Company:
(a) placing an order on the Company Web Site
(i) if you are under the age of eighteen (18) years you can not place orders with the Company and by accepting these Terms and Conditions you acknowledge that you are over the age of eighteen (18) years. Should the Company suffer any damage or other losses as a result of a transaction entered into by a minor, the Company reserves the right to seek compensation for such losses from the parents or guardians of the minor who caused any Order(s) to be placed with the Company;
(ii) any purchase of Goods by the Client from the Web Site cannot be accepted by the Company until the Client has paid for the purchase in full.
(iii) upon payment, the Company will confirm receipt of the Client Order by an acknowledgement displayed on-screen, and confirm that the Client Order is being processed by sending an Order confirmation to the email address the Client provides on the Client Order;
(iv) however, the Company does not formally accept the Client Order until the order and payment has passed the Company’s internal validation procedures for verifying the bona fides of each order placed, for the purpose of preventing credit card or payment fraud;
(v) should the Company be unable to process or accept the Client Order after payment is received, the Company will contact the Client by telephone or email.
(b) payment methods and processing
(i) the Company currently accepts Visa and Mastercard only;
(ii) payment processing will not begin until the Company receives all the information it requires and the Client submits the Order by clicking the “Confirm Order and Check Out” button on the shopping cart page;
(iii) all credit card payments are made and processed in Australian dollars.
(c) delivery of the Client goods:
(i) delivery time may take up to twenty (20) working days from the date the Client payment is received;
(ii) unless otherwise agreed by the Company in writing, delivery will be to the address indicated on the Client Order form. If no-one is available to take delivery of the Client Order, the Company carrier will leave a card so the Client representative may collect the Order from a local Post Office. Where delivery is by the Company’s courier service and no-one is available to take delivery, the courier will leave a card requesting the Client to telephone them to arrange a suitable time for delivery;
(iii) on delivery, title and risk in any Goods pass to the Client.
(d) refund policy
(i) no refunds credit or replacements are offered if the Client has changed their mind about the Goods, made an incorrect choice, or failed to verify and accurately provide information when placing an Order.
(ii) if the Client finds a defect in any Goods on or after delivery and a written valid claim is received by the Company within 14 days of delivery, the Company will exchange the Goods where possible, or refund the Client the purchase price of the Goods. Should the Client contact the Company outside the 14 day period the Company will consider each claim on a case by case basis on its merits.
(iii) where the Company agrees to replace the Goods or refund the purchase price of the Goods, the Client shall first return the defective Goods to the Company. If the Goods are returned after 14 days from dispatch the return is at the Client expense.
(iv) the Company will make arrangements for the return of the Goods, with the delivery time for replacement being the same as stated for the original Goods. Replacement Goods are provided with the same Warranty as the returned Goods.
3.4 The Company reserves the right to charge interest on overdue amounts owing to it without prior notice to the Client at a rate of two (2) per centum (%) per annum above that of the business variable reference rate published from time-to-time by the Australia and New Zealand Banking Group or at such other rate as may be fixed from time to time by the Company, such interest to be computed from the date a payment becomes overdue until payment of such monies is received in full.
3.5 The Company reserves the right to set a minimum invoice value from time to time at its discretion and reserves the right to withhold at any time the provision of Services and/or Goods to the Client in the event the Client fails to comply with the Company’s terms of payment or for any other reason.
4 PRICES
4.1 Unless otherwise agreed by the Company in writing, the price for Services and/or Goods supplied shall be negotiated by the Company with the Client, and/or by reference to Company’s current price list for such Services and/or Goods, as at the time of the provision of Services and/or delivery of Goods. Any quotations given by the Company are subject to written confirmation. All prices and quotations for Goods are given Ex Works by the Company and are exclusive of any tax, impost, duty or other levies.
4.2 The costs of freight of Goods (if any) shall in all circumstances remain the exclusive responsibility of the Client. the Company reserves the right at any time between the time of quotation and/or order and the date of provision of Services or delivery of the Goods to make reasonable adjustments to prices and quotations given where there has occurred fluctuations in the Company’s cost for labour materials, overheads, goods or transport. In the event of fluctuations or change in exchange rates or duties the Company reserves the right at any time between the time of quotation and/or order end date of Delivery and/or invoicing of the Goods or provision of Services to increase its selling price for such Services or Goods.
4.3 CANCELLATION BY CLIENT
In the event of a cancellation by written notice by the Client of any Goods and/or Services, the Client shall pay a sum to the Company by way of liquidated damages (by way of a genuine pre-estimate of loss) and not by way of penalty on the following basis:
(a) if the Client has changed their mind about the Goods, made an incorrect choice, or failed to verify and accurately provide information when placing an Order with the Company through the Company Web Site, 100%;
(b) less than fourteen (14) days, 100%, ;
(c) less than twenty one (21) days but before fourteen (14) days, 90%;
(d) less than three (3) months but before twenty one (21) days, 65%;
(e) three (3) months or more, 40%.
4.4 For the avoidance of doubt, the relevant date of cancellation will be calculated by reference to the date from which the Company receives notice in writing from the Client of the cancellation The Client will forfeit any moneys owing to the Company to meet these liquidated damages from its deposit and any further payments that the Client has made under these Terms and Conditions and the Company now reserves its right to draw on these moneys by way of set-off for any liquidated damages claimed hereunder.
4.5 Cancellation charges required by third party suppliers will be in addition to the Company fees and charges listed above, and will be determined by those suppliers’ own terms and conditions.
4.6 Any and all deposits paid to the Company by the Client that are still in the possession of the Company on the date of receipt by the Company of the cancellation notice from the Client shall be returned to the Client, less the applicable cancellation fees and charges by the Company and any third party suppliers.
5. GST
If GST becomes payable by the Company on any supply (Supply) of Goods under or in connection with any Supply Contract –
(i) any amount payable or consideration to be provided under any Supply Contract (Agreed Amount) is exclusive of GST; and
(ii) an additional amount will be payable by the Client for that Supply equal to the amount of GST payable on that Supply as calculated by the Company in accordance with the GST Law and payable at the same time and in the same manner as for the Agreed Amount; and
(iii) the Company will provide a tax invoice to the Client in respect of that Supply, no later than the time at which the Agreed Amount for that Supply is to be provided under the Supply Contract.
6. TERMINATION & DEFAULT
6.1 If the Client defaults in any payment, breaches any of these terms and conditions, or becomes subject to an Insolvency Event, then the Company without prejudice to any other rights hereunder may terminate the Supply Contract and all moneys owing by the Client to the Company shall despite that any prior agreed time for payment has not elapsed, become due and payable immediately and the Company may at its option withhold the provision of further services and/or deliveries or cancel any Sales Contract with the Client for the supply of Goods or Services without prejudice to the Company’s rights hereunder.
6.2 Following termination of the Supply Contract, the Company reserves the right to cancel any outstanding Services at the first possible opportunity subject to the operation of clause 4 of these Terms and Conditions.
6.3 The Client acknowledges that if the Client is in default the Client shall reimburse and indemnify the Company from and against all expenses, costs and disbursements incurred by the Company in pursuing the debt including all reasonably charged legal costs on a 'solicitor and own client' basis and the fees charged to the Company by any mercantile agency.
7. IMPLIED TERMS
7.1 All warranties and conditions expressed or implied by statute, common law, equity, trade, custom or usage or otherwise howsoever are to the extent permitted by law expressly excluded from the Sales Contract. The Client acknowledges that neither the Company nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in the Sales Contract whether as to the fitness of the Services for any particular purpose or any other matter.
7.2 The Client acknowledges that without relying upon the skill or judgement of the Company or any person purporting to act on its behalf it has determined that the Services conforming to the contract description will be fit for its purposes. Any description of the Services and/or Goods used in the Sales Contract is for identification only and shall not constitute a contract of sale by description. The provisions of this clause 7 shall not apply insofar as their application is prevented by the Competition and Consumer Act 2010 (C2013C00004) (“Act”) as amended or any other State and Territory laws.
8. LIABILITY
8.1 While every endeavour is made to provide a satisfactory and efficient service to Clients, the Company cannot and will not be held responsible in relation to the Goods and/or Services it provides to the Client.
8.2 The Supply Contract does not create a relationship between the Company and the Client, of principal and agent, employer and employee, partnership or joint venture.
8.3 Save as expressly provided for in the Supply Contract the Company shall not be liable to the Client or the Client’s servants, agents or representatives for any direct, indirect, incidental or consequential loss or damages of any nature however caused (whether based on tort including negligence, contract or otherwise) including but not limited to loss of profits, loss of production, loss of sales opportunity or business reputation, direct or indirect labour cost and overhead expenses and damage to equipment or property or any other claim whatsoever arising directly or indirectly or in any way attributable to the performance of the Supply Contract and in no event shall any claim be recognized unless the claim is in writing and received by the Company within fourteen (14) days of the date of Delivery.
8.4 The provisions of this clause shall not apply insofar as their application is prevented by the Act as amended or any other State or Australian Territory law. Notwithstanding anything herein contained and subject to any qualifications contained in the Act if the Client is a “consumer” as defined in the Act and the Services provided are other than of a kind ordinarily acquired for personal, domestic or household use or consumption, then the liability of the Company for a breach of a condition or warranty implied by the Act (not being a condition or warranty implied in the Act) is limited to –
(a) in the case of Services the supplying of the Services again or the payment of the cost of having the Services supplied again;
(b) in the case of Goods the replacement of the Goods or the supply of equivalent Goods or the repair of the Goods.
9. INDEMNITY
9.1 The Client agrees to indemnify and hold the Company harmless against any loss, damage or expense it may suffer or incur, or any claim which may be made against it by any person, as a direct or indirect result of any default by the Client in fully and promptly complying with all its obligations under this Supply Contract.
9.2 The Company may rely on this indemnity as soon as the Client defaults or any claim is made, and may pursue its rights against the Client before, while, or after relying on this indemnity, or not relying on this indemnity at all.
9.3 If any person executes an agreement purporting to bind another person or a corporation to the Supply Contract as Client, the person so signing:
(i) warrants their authority to do so;
(ii) warrants that the other person or corporation is so bound;
(ii) in their personal capacity, must indemnify the Company against any breach of those warranties, and is deemed to indemnify the Company jointly and individually.
10. DISPUTES
Any dispute or difference whatsoever arising in connection with this agreement shall be submitted to mediation in accordance with and subject to the guidelines in force from time to time with the Queensland Law Society.
11. FORCE MAJEURE
11.1 Neither Party is liable to the other for any failure to perform, or delay in performing any of the stipulations or obligations of the Supply Contract (other than an obligation to pay money) caused by any Force Majeure Event.
11.2 The time for performance of any obligation by either party under this agreement will be extended by a period equal to the period of any Force Majeure Event which causes the inability to perform, or delay in performing, the obligation.
12. WAIVER
Failure by the Company to insist upon strict performance of any term or condition herein shall not be deemed a waiver thereof or of any rights the Company may have and shall not be deemed a waiver of any subsequent breach of any term or condition.
13. LIEN
In addition to any lien to which the Company may by statute or otherwise be entitled, the Company shall, in the event of the Client failing to pay any outstanding account by the Client to the Company or the Client entering into any scheme or arrangement with its creditors or going into receivership or liquidation (save for the purpose of reconstruction), be entitled to a general lien on all property of goods belonging to the Client in the Company’s possession (although such Goods or some of them have been paid for) for the unpaid price of any other Services and/or Goods sold and delivered to the Client under this or any other contract.
14. INTELLECTUAL PROPERTY
14.1 The Client warrants that any Intellectual Property including designs, specifications or instructions furnished to the Company shall not be such as will cause the Company to infringe any patent, design, copyright or trademark in the execution of the Client’s order.
14.2 The Client hereby indemnifies and forever holds the Company harmless against any infringement or unauthorized use of any such patent, industrial design, copyright or trademark.
14.3 The Client’s purchase of Goods and/or Services shall not confer on the Client any assignment in any of the underlying rights in any Intellectual Property owned by the Company but the Company agrees in consideration of the full payment of all Fees by the Client to grant a licence in relation to those items as set out in the attached Order form to the Intellectual Property rights including but not limited to the provision of copywriting services by the Company, design services and HTML images and code, and any Confidential Information of the Company made available and provided to the Client pursuant to the Order.
15. NOTICES
Any notice to be served by either party to the other must be in writing and may be sent by hand delivery, post or facsimile, or email to the relevant party to a Supply Contract at its respective address as specified on the Confirmation of Event form and in the case of mail will be deemed to have been served three (3) business days after posting. In the case of a facsimile it will be deemed to have been served on receipt of a successful transmission notice and in the case of email it will be deemed to have been served if no return email stating that the email cannot be delivered is received.
16. ASSIGNMENT
The Company reserves the right to assign the Supply Contract under these Terms, but not its obligations to the Client. The Client cannot transfer its rights or obligations under the Supply Contract without the prior written consent of the Company.
17. GOVERNING LAW
These Terms and Conditions of Trade and the Supply Contracts shall in all respects be governed by and construed in accordance with laws of the State of Queensland, Australia and the Company and the Client agree to the exclusive jurisdiction of the courts of the State of Queensland, Australia.