terms & conditions

LuxWin – Terms & Conditions of Trade

1. Definitions

1.1 “LuxWin” means Metwest Steel Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Metwest Steel Pty Ltd.

1.2 “Customer” shall mean the Customer (or any person, including any Trustee acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by LuxWin to the Customer.

1.3 “Goods” means all Goods or Services supplied by LuxWin to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4 “Price” means the Price payable for the Goods as agreed between LuxWin and the Customer in accordance with clause 4 below.

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.

2.2 These terms and conditions may only be amended with LuxWin’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and LuxWin.

2.3 The Customer acknowledges and agrees to use the purchase order supplied by LuxWin in order to obtain Goods on credit.

2.4 The Customer acknowledges and accepts in the event that the Customer is a Trustee acting on behalf of a legal entity Trust, then LuxWin reserves the right to request the written authority pertaining to the said authority endorsing the Trustee’s right to enter into a legally binding contract between the Customer and LuxWin to which that party will then be bound to the terms and condition of this document.

3. Change in Control

3.1 The Customer shall give LuxWin not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by LuxWin as a result of the Customer’s failure to comply with this clause.

4. Price and Payment

4.1 At LuxWin’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by LuxWin to the Customer; or (b) LuxWin’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

4.2 LuxWin reserves the right to change the Price if a variation to LuxWin’s quotation is requested.

4.3 At LuxWin’s sole discretion a non-refundable deposit may be required.

4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by LuxWin, which may be: (a) on delivery of the Goods; (b) thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices; (c) the date specified on any invoice or other form as being the date for payment; or (d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by LuxWin.

4.5 The Customer acknowledges and agrees that the debit balance of the Customer’s account must not exceed the allowed credit limit provided by LuxWin.

4.6 Payment may be made by cash, cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Customer and LuxWin.

4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to LuxWin an amount equal to any GST LuxWin must pay for any supply by LuxWin under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

5. Delivery of Goods

5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that: (a) the Customer or the Customer’s nominated carrier takes possession of the Goods at LuxWin’s address; or (b) LuxWin (or LuxWin’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.

5.2 At LuxWin’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.

5.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then LuxWin shall be entitled to charge a reasonable fee for redelivery and/or storage.

5.4 LuxWin may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.5 Any time or date given by LuxWin to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and LuxWin will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.

6. Risk

6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.

6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, LuxWin is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by LuxWin is sufficient evidence of LuxWin’s rights to receive the insurance proceeds without the need for any person dealing with LuxWin to make further enquiries.

6.3 If the Customer requests LuxWin to leave Goods outside LuxWin’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.

7. Access

7.1 The Customer shall ensure that LuxWin has clear and free access to the work site at all times to enable them to undertake the works. LuxWin shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of LuxWin.

8. Title

8.1 LuxWin and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid LuxWin all amounts owing to LuxWin; and (b) the Customer has met all of its other obligations to LuxWin.

8.2 Receipt by LuxWin of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.

8.3 It is further agreed that: (a) until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and must return the Goods to LuxWin on request. (b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for LuxWin and must pay to LuxWin the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. (c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for LuxWin and must pay or deliver the proceeds to LuxWin on demand. (d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of LuxWin and must sell, dispose of or return the resulting product to LuxWin as it so directs. (e) the Customer irrevocably authorises LuxWin to enter any premises where LuxWin believes the Goods are kept and recover possession of the Goods. (f) LuxWin may recover possession of any Goods in transit whether or not delivery has occurred. (g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of LuxWin. (h) LuxWin may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

9. Personal Property Securities Act 2009 (“PPSA”)

9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

9.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by LuxWin to the Customer.

9.3 The Customer undertakes to: (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which LuxWin may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii); (b) indemnify, and upon demand reimburse, LuxWin for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of LuxWin; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of LuxWin; (e) immediately advise LuxWin of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

9.4 LuxWin and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

9.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

9.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

9.7 Unless otherwise agreed to in writing by LuxWin, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

9.8 The Customer must unconditionally ratify any actions taken by LuxWin under clauses 9.3 to 9.5.

9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

10. Security and Charge

10.1 In consideration of LuxWin agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

10.2 The Customer indemnifies LuxWin from and against all LuxWin’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising LuxWin’s rights under this clause.

10.3 The Customer irrevocably appoints LuxWin and each director of LuxWin as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.

11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

11.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify LuxWin in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow LuxWin to inspect the Goods.

11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).

11.3 LuxWin acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, LuxWin makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. LuxWin’s liability in respect of these warranties is limited to the fullest extent permitted by law.

11.5 If the Customer is a consumer within the meaning of the CCA, LuxWin’s liability is limited to the extent permitted by section 64A of Schedule 2.

11.6 If LuxWin is required to replace the Goods under this clause or the CCA, but is unable to do so, LuxWin may refund any money the Customer has paid for the Goods.

11.7 If the Customer is not a consumer within the meaning of the CCA, LuxWin’s liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Customer by LuxWin at LuxWin’s sole discretion; (b) limited to any warranty to which LuxWin is entitled, if LuxWin did not manufacture the Goods; (c) otherwise negated absolutely.

11.8 Subject to this clause 11, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 11.1; and (b) LuxWin has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

11.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, LuxWin shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Customer failing to properly maintain or store any Goods; (b) the Customer using the Goods for any purpose other than that for which they were designed; (c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Customer failing to follow any instructions or guidelines provided by LuxWin; (e) fair wear and tear, any accident, or act of God.

11.10 Notwithstanding anything contained in this clause if LuxWin is required by a law to accept a return then LuxWin will only accept a return on the conditions imposed by that law.

12. Intellectual Property

12.1 Where LuxWin has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of LuxWin.

12.2 The Customer warrants that all designs, specifications or instructions given to LuxWin will not cause LuxWin to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify LuxWin against any action taken by a third party against LuxWin in respect of any such infringement.

12.3 The Customer agrees that LuxWin may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which LuxWin has created for the Customer.

13. Default and Consequences of Default

13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at LuxWin’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

13.2 If the Customer owes LuxWin any money the Customer shall indemnify LuxWin from and against all costs and disbursements incurred by LuxWin in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, LuxWin’s collection agency costs, and bank dishonour fees).

13.3 Without prejudice to any other remedies LuxWin may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions LuxWin may suspend or terminate the supply of Goods to the Customer. LuxWin will not be liable to the Customer for any loss or damage the Customer suffers because LuxWin has exercised its rights under this clause.

13.4 Without prejudice to LuxWin’s other remedies at law LuxWin shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to LuxWin shall, whether or not due for payment, become immediately payable if: (a) any money payable to LuxWin becomes overdue, or in LuxWin’s opinion the Customer will be unable to make a payment when it falls due; (b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

14. Cancellation

14.1 LuxWin may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice LuxWin shall repay to the Customer any money paid by the Customer for the Goods. LuxWin shall not be liable for any loss or damage whatsoever arising from such cancellation.

14.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by LuxWin as a direct result of the cancellation (including, but not limited to, any loss of profits).

14.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

15. Privacy Act 1988

15.1 The Customer agrees for LuxWin to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by LuxWin.

15.2 The Customer agrees that LuxWin may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes: (a) to assess an application by the Customer; and/or (b) to notify other credit providers of a default by the Customer; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or (d) to assess the creditworthiness of the Customer.

The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

15.3 The Customer consents to LuxWin being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

15.4 The Customer agrees that personal credit information provided may be used and retained by LuxWin for the following purposes (and for other purposes as shall be agreed between the Customer and LuxWin or required by law from time to time): (a) the provision of Goods; and/or (b) the marketing of Goods by LuxWin, its agents or distributors; and/or (c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or (e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.

15.5 LuxWin may give information about the Customer to a credit reporting agency for the following purposes: (a) to obtain a consumer credit report about the Customer; (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

15.6 The information given to the credit reporting agency may include: (a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number); (b) details concerning the Customer’s application for credit or commercial credit and the amount requested; (c) advice that LuxWin is a current credit provider to the Customer; (d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started; (e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed; (f) information that, in the opinion of LuxWin, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations); (g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once; (h) that credit provided to the Customer by LuxWin has been paid or otherwise discharged.

16. Construction Contracts Act 2004

16.1 At LuxWin’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Construction Contracts Act 2004 may apply.

16.2 Nothing in this agreement is intended to have the affect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia, except to the extent permitted by the Act where applicable.

17. General

17.1 The failure by LuxWin to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect LuxWin’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which LuxWin has its principal place of business, and are subject to the jurisdiction of the courts in that state.

17.3 Subject to clause 11 LuxWin shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by LuxWin of these terms and conditions (alternatively LuxWin’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

17.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by LuxWin nor to withhold payment of any invoice because part of that invoice is in dispute.

17.5 LuxWin may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

17.6 The Customer agrees that LuxWin may amend these terms and conditions at any time. If LuxWin makes a change to these terms and conditions, then that change will take effect from the date on which LuxWin notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for LuxWin to provide Goods to the Customer.

17.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

17.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.