Definitions

“Customer” means the person, firm or corporation purchasing Product from Luus Industries or receiving or holding Product as bailee on consignment from or on behalf of Luus Industries.

“General Terms & Conditions” means these General Terms & Conditions and includes the accompanying Credit Account Application Form.

“Luus Industries” means Luus Industries Pty Ltd (ABN 94 082 257 734).

“PPSA” means the Personal Property Securities Act 2009 (Cth) and includes the Personal Property Securities Regulations 2010.

“Product” means any goods (including any parts thereof) supplied or consigned by Luus Industries to the Customer from time to time.

“Quote” means a statement by Luus Industries to the Customer notifying the price and availability of the Product which it may be prepared to sell subject to these General Terms & Conditions.

Entire Agreement

Unless otherwise permitted by these General Terms & Conditions or as expressly agreed by Luus Industries in writing as prevailing over these General Terms & Conditions, these General Terms and Conditions form a contract which applies to every sale and consignment by Luus Industries to the Customer.

These General Terms & Conditions and the orders and consignments to which they apply constitute the entire agreement between the parties with respect to the subject matter of these General Terms & Conditions and the orders and consignments and supersede all prior agreements, understandings and communications (whether oral or written) between the parties. Without limiting the foregoing, these General Terms & Conditions prevail over, and to the exclusion of, any terms and conditions put forward at anytime (and whether contained on or referred to in any purchase orders, requests for tender, collection manifests, statements, attachments to orders or schedules or otherwise) by the Customer or any of its customers or subcontractors even if a representative of Luus Industries has accepted or signed such documents. Additionally, these General Terms and Conditions will apply even if they are not expressly referred to in an order or consignment request placed by the Customer or an invoice, consignment note or similar document issued by Luus Industries.

Quotation & Pricing

A Quote remains valid for 30 days from its date. Unless otherwise stated by Luus Industries, any price stated in a Quote does not include the cost of transport, freight, insurances, duties, taxes, packing or crating, and other rates and charges for which Luus Industries may at its discretion charge extra for.

All prices are exclusive of goods and services and any other applicable taxes. An additional amount in respect of these taxes will be added to the Quoted price. Prices quoted are based on exchange rates, costs of labour, materials, transport, freight and insurances, indirect taxes and other costs, duties or expenses applying at the date of the Quote. Luus Industries reserves the right to revise its Quotes for movements in any of the foregoing factors.

Any Quote provided by Luus Industries to the Customer is an invitation to treat only and is subject to the Customer offering to purchase goods or services from Luus Industries. The parties agree that any purchase order from the Customer will be deemed to be subject to these General Terms and Conditions even if they are not expressly referred to in the purchase order. Luus Industries reserves an absolute discretion to accept or reject any orders submitted by the Customer. A binding contract of sale for the particular goods or services arises once the relevant order is accepted by Luus Industries and Luus Industries has confirmed its acceptance to the Customer in writing, issues an invoice for the goods or services or otherwise provides the Customer with the relevant goods or services. It is the Customer’s responsibility to provide Luus Industries with its specific requirements in relation to the goods and services it requires.

The purchase price for goods or services is the price agreed by Luus Industries and the Customer, as stated in the purchase order accepted by Luus Industries or the relevant invoice issued by Luus Industries to the Customer.

Payment

Payment is to be made strictly based  on payment terms on the Invoice, unless prior agreement otherwise has been made with Luus Industries. Payment must be made in full free and clear from any set-off, retention, deduction or withholding. If payment is made by way of credit card, Luus Industries reserves the right to impose a credit card handling fee or surcharge of Visa/MC 2%, Amex 4%. This rate may be varied by Luus Industries form time to time. If payment is not made in full by the due date then Luus Industries shall be entitled to charge interest on money due but not paid, at a rate of 9.5% per annum calculated and compounded on daily balances commencing from the date payment is due until the date payment is made in full.

If invoices are unpaid for 7 days after the payment date specified in the Invoice, Luus reserves the right to engage debt collection services for the collection of unpaid and undisputed debt, and the right to commence legal proceedings for any outstanding amounts owed to us and You will be liable to us and/or the third party for any associated costs until such time as such amounts are paid in full to such third party.

Luus Industries shall not be obliged to deliver and/or process any order and/or deliver Product to the Customer whilst any payment due from the Customer to Luus Industries on any account is in arrears. The Customer will have no claim against Luus Industries for any delay or other consequences arising from the application of this provision. Luus Industries has an absolute discretion as to how any money received from the Customer is to be applied. This discretion applies despite any principle or presumption of the law to the contrary or any direction given by any person at the time of payment or receipt and without the need for Luus Industries to communicate its election to any person.

Consignment Request

If the Customer wishes to receive any Products on consignment, the Customer must deliver to Luus Industries a consignment request in a form approved by Luus Industries. The consignment request must identify the relevant Products and be signed by the Customer.

The parties agree that any consignment request will be deemed to be subject to these General Terms and Conditions even if they are not expressly referred to in the consignment request. Luus Industries reserves an absolute discretion to accept or reject any consignment requests. A binding contract of consignment for the particular consigned Products arises once the relevant consignment request is accepted by Luus Industries and Luus Industries has confirmed its acceptance to the Customer in writing or otherwise provides the Customer with the relevant consigned Products.

Custody of Consigned Products

The Customer accepts all responsibility for the consigned Products including any loss, damage, theft or destruction however caused or arising. The consigned Products must be kept in the Customer’s showroom at all times in proper display condition. Without limiting the generality of the foregoing, the Customer must not remove the consigned Products from the Customer’s showroom or sell, lease, hire, deal with, part with possession of, use (unless for minor in-showroom demonstration), alter, modify or dispose of any of the consigned Products without prior written consent from Luus Industries. Nor must the Customer affix or allow any of the consigned Products to become fixtures to any land or buildings or accessions to any other goods.

The Customer acknowledges that if it wishes to acquire, sell, lease or dispose of any of the consigned Products it must first purchase the consigned Product from Luus Industries. To do this, the Customer must submit a purchase order to Luus Industries. The Customer must endeavour to do this as soon as possible and in any event before any proposed sale etc of the consigned Products to any third party. Any purchase by the Customer of the consigned Products will be governed by these General Terms & Conditions.

Luus Industries retains the right to withdraw any or all consigned Products from the Customer at anytime in its absolute discretion. Accordingly, any consigned Products must immediately be delivered up by the Customer to Luus Industries on demand.

Consignment Review

Luus Industries will undertake periodic reviews (either annually or as required by Luus Industries) in relation to the consignment arrangements. Luus Industries may decide to terminate the arrangements or allow them to continue. Luus Industries may also decide that some or all of the consigned Products must be returned by the Customer to Luus Industries. Luus Industries may also give the Customer the option to purchase some or all of the consigned Products at prices to be agreed and otherwise subject to and in accordance with these General Terms & Conditions.

Default

If the Customer beaches any of these General Terms and Conditions or has any execution levied against it or becomes bankrupt or insolvent or intends to enter into any composition or arrangement with its creditors or does any acts which would render it liable to be wound up or it has a winding up order made against it or its passes or attempts to pass a resolution for winding up or an administrator, liquidator or controller (as defined in the Corporations Act 2001 (Cth)) is appointed to it or in respect of the whole or any part of its property or undertaking, then, without prejudice to any other or remedy available to Luus Industries (whether under these General Terms & Conditions or otherwise):

• Luus Industries may by written notice to the Customer immediately suspend or terminate (in whole or in part) these General Terms and Conditions and any order accepted but not yet fully performed or any consignment request accepted but for which the relevant Products have not yet been consigned to the Customer;
• whether or not such notice is given, payment for all goods and services supplied by Luus Industries and any other monies payable by the Customer shall immediately become due and all Products consigned and held by the Customer must immediately be delivered up to Luus Industries. If Luus Industries does not (at least initially) elect to terminate an order which has been accepted but not yet fully performed, all remaining payments in respect of that order will become immediately due and payable; and
• Luus Industries may enter upon the premises where any delivered Product is situated and take possession of and remove the same without being responsible for any damage thereby caused and may, if the Product has been purchased by the Customer, resell the same and apply the proceeds in or towards payment of any monies owing by the Customer to Luus Industries.

All costs and expenses (including legal costs on a full indemnity basis) of or incurred by Luus Industries in connection with any enforcement action shall be payable by the Customer on demand.

Credit Limit

The total amount owing on all overdue or new invoices must not exceed the credit limit (if any) for the Customer, as approved or revoked by Luus Industries in its absolute discretion from time to time.  New deliveries will be placed on hold if the credit limit has been or will be exceeded.   The Customer must reduce the amount owing to that equal to or less than the credit limit.  Deliveries are not permitted until payments are cleared. If you find the credit limit to be insufficient, please contact your account manager at Luus Industries.

Intellectual Property Rights

Luus Industries’ Products (including their associated manuals, guidelines, specifications and drawings) incorporate its copyright, patents, designs and trademarks rights which remain Luus Industries’ absolute property. Luus Industries grants to the Customer and any person thereafter holding any interest in the Products the non-exclusive right to use Luus Industries’ intellectual property to the extent only of using the Product in its intended operation and not otherwise. The Customer acknowledges that it has no proprietary right or interest in the intellectual property relating to any of the Products (including their associated manuals, guidelines, specifications and drawings).

The Customer must not attempt to register or record any of the intellectual property in respect of the Products or any part thereof or any patents, inventions, trademarks or designs derived from or substantially similar to the intellectual property in respect of the Products or aid or abet anyone else in doing so. The Customer must not create, sell, manufacture, reverse engineer, publish or process any goods or services using or taking advantage of the intellectual property in respect of the Products. Any intellectual property related documents provided to the Customer by Luus Industries must be returned to Luus Industries on demand and must not be copied or communicated to any third party without the express written consent of Luus Industries.

Advertising and Promotion Aids

Logos, photos, brochures, posters, advertisements and any other marketing collateral are resources supplied by Luus Industries to help assist the Customer in promoting the Products. They must be used solely in accordance with any advertising and promotional guidelines issued by Luus Industries from time to time. They are not to be used, applied, copied or duplicated for re-distribution without written notification and consent by Luus Industries. The Customer must immediately cease using and must, if requested, promptly return to Luus Industries, all logos, photos, brochures, posters, advertisements and any other marketing collateral upon termination of these General Terms & Conditions or if otherwise directed by Luus Industries to do so.

Risk

All risk in Products purchased by the Customer passes to the Customer upon collection of the Products by or on behalf of the Customer from Luus Industries’ premises or upon despatch of the Products from Luus Industries’ premises to the Customer’s nominated delivery address (whichever occurs first). If the purchased Products were already held by the Customer on consignment (see below), the Products will continue to remain at the risk of the Customer once purchased.

All risk in Products consigned to the Customer passes to the Customer upon collection of the consigned Products by or on behalf of the Customer from Luus Industries’ premises or upon despatch of the consigned Products from Luus Industries’ premises to the Customer’s nominated delivery address (whichever occurs first).  The Customer is responsible for all freight/delivery charges and all associated tolls, taxes, levies and insurances.

Retention of Title – Sold Products

Until full payment in cleared funds is received by Luus Industries for all Products and services supplied by it to the Customer, as well as all other amounts owing to Luus Industries by the Customer:

• All title and property in all Products supplied remains vested in Luus Industries and does not pass to the Customer.
• The Customer must hold the Products as bailee and fiduciary for Luus Industries.
• The Customer must keep the Products separate from all other goods (including any Products held on consignment) in a manner enabling them to be identified as goods supplied by Luus Industries and cross-referenced to particular invoices from Luus Industries and, without limiting the generality of the foregoing, must also maintain the identification plates, serial numbers and marks as well as all packaging and labelling (including bar codes and other markings) applied to the Products by Luus Industries.
• The Customer must allow Luus Industries and its representatives to inspect the Products during normal business hours on not less than 24 hours notice and must, if demanded by Luus Industries, immediately return the Products to Luus Industries.
• The Customer must not sell, lease, dispose of, part with possession of, transfer or otherwise deal with the Products without the express prior written consent from Luus Industries until Luus Industries has been paid in full for those Products. For the avoidance of doubt, and notwithstanding anything to the contrary in these General Terms and Conditions, nothing in these General Terms and Conditions expressly or impliedly authorises the Customer to dispose of any Products in any manner until Luus Industries has been paid in full.
• If the Customer breaches any of the restrictions in the preceding paragraph, then without limiting or derogating from any of Luus Industries’ other rights, powers or remedies, the Customer must hold the proceeds arising or deriving (directly or indirectly) from any sale, lease, disposal, transfer of or other dealing with the Products on trust for Luus Industries and (before any of those proceeds are paid to any other creditors of the Customer or otherwise paid or applied by the Customer) the Customer must promptly account to Luus Industries out of those proceeds for any payments owing to Luus Industries. However, to the maximum extent possible, any breach by the Customer of the foregoing will not affect any of Luus Industries’ other rights, interests, powers or remedies with respect to those proceeds (including any rights or security interests arising under the PPSA). For the avoidance of doubt, Luus Industries’ security interests in the Products attach to their proceeds.
• Additionally, if contrary to these General Terms and Conditions, the Customer sells, leases or otherwise deals with any Products before Luus Industries has been paid in full for those Products and an account (as defined in the PPSA) arises or is derived as proceeds of those Products, the Customer must not transfer (whether by assignment (legal or equitable), factoring, receivables financing or otherwise) any of those accounts (or any interest therein) without the express prior written consent of Luus Industries until Luus Industries has been paid in full. Failure to comply with the foregoing restrictions constitutes a breach of these General Terms and Conditions.
• To the maximum extent permitted by law, Luus Industries and its representatives may, without notice, enter any premises where it suspects the Products may be located and repossess and remove them, notwithstanding that they may have been attached to (or form an accession to) other goods not the property of Luus Industries, and for this purpose the Customer irrevocably authorises Luus Industries and its representatives to enter such premises (and to the extent that the premises are third party premises, the Customer must procure access for Luus Industries and its representatives) and also indemnifies Luus Industries and its representatives from and against all costs, claims, demands, liabilities and any actions by any person arising from such action.

 

Title to Consigned Products

• All title and property in all consigned Products remains vested in Luus Industries and does not pass to the Customer unless and until the Customer purchases the consigned Product and title to the consigned Product passes to the Customer in accordance with these General Terms & Conditions (see above).
• The Customer must hold the consigned Products as bailee and fiduciary for Luus Industries.
• The Customer must keep the consigned Products separate from all other goods in a manner enabling them to be identified as goods supplied by Luus Industries and cross-referenced to particular consignment notes from Luus Industries and, without limiting the generality of the foregoing, must also maintain the identification plates, serial numbers and marks as well as all packaging and labelling (including bar codes and other markings) applied to the consigned Products by Luus Industries.
• The Customer must allow Luus Industries and its representatives to inspect the consigned Products during normal business hours on not less than 24 hours notice and must, if demanded by Luus Industries, immediately return the consigned Products to Luus Industries.
• The Customer must not sell, lease, dispose of, part with possession of, transfer or otherwise deal with the consigned Products without the express prior written consent from Luus Industries until the Customer has purchased the consigned Products and Luus Industries has been paid in full for those consigned Products in accordance with these General Terms & Conditions. For the avoidance of doubt, and notwithstanding anything to the contrary in these General Terms and Conditions, nothing in these General Terms and Conditions expressly or impliedly authorises the Customer to dispose of any consigned Products in any manner until the Customer has purchased the consigned Products and Luus Industries has been paid in full in accordance with these General Terms & Conditions.
• If the Customer breaches any of the restrictions in the preceding paragraph, then without limiting or derogating from any of Luus Industries’ other rights, powers or remedies, the Customer must hold the proceeds arising or deriving (directly or indirectly) from any sale, lease, disposal, transfer of or other dealing with the consigned Products on trust for Luus Industries and (before any of those proceeds are paid to any other creditors of the Customer or otherwise paid or applied by the Customer) the Customer must promptly account to Luus Industries out of those proceeds for any payments owing to Luus Industries (and for this purpose, if the Customer has sold etc any consigned Product before a purchase order has been submitted to and accepted by Luus Industries, the Customer must pay to Luus Industries the sale price for those consigned Products as subsequently invoiced by Luus Industries to the Customer). However, to the maximum extent possible, any breach by the Customer of the foregoing will not affect any of Luus Industries’ other rights, interests, powers or remedies with respect to those proceeds (including any rights or security interests arising under the PPSA). For the avoidance of doubt, Luus Industries’ security interests in the consigned Products attach to their proceeds.
• Additionally, if contrary to these General Terms and Conditions: (a) the Customer sells, leases or otherwise deals with any consigned Products before the Customer has purchased the consigned Products and Luus Industries has been paid in full for those Products in accordance with these General Terms & Conditions; and (2) an account (as defined in the PPSA) arises or is derived as proceeds of those consigned Products, the Customer must not transfer (whether by assignment (legal or equitable), factoring, receivables financing or otherwise) any of those accounts (or any interest therein) without the express prior written consent of Luus Industries until Luus Industries has been paid in full for the relevant consigned Products (and for this purpose, if the Customer has sold etc any consigned Product before a purchase order has been submitted to and accepted by Luus Industries, the Customer must pay to Luus Industries the sale price for those consigned Products as subsequently invoiced by Luus Industries to the Customer). Failure to comply with the foregoing restrictions constitutes a breach of these General Terms and Conditions.
• To the maximum extent permitted by law, Luus Industries and its representatives may, without notice, enter any premises where it suspects the consigned Products may be located and repossess and remove them, notwithstanding that they may have been attached to (or form an accession to) other goods not the property of Luus Industries, and for this purpose the Customer irrevocably authorises Luus Industries and its representatives to enter such premises (and to the extent that the premises are third party premises, the Customer must procure access for Luus Industries and its representatives) and also indemnifies Luus Industries and its representatives from and against all costs, claims, demands, liabilities and any actions by any person arising from such action.

 

Acknowledgment

The Customer acknowledges and agrees that:

• It has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Luus Industries in relation to the Products or services or their use or application.
• It has the sole responsibility of satisfying itself that the Products or services are suitable for the use of the Customer or any contemplated use by the Customer, whether or not such use is known by Luus Industries.
• Any description of the Products provided in a Quote, invoice or consignment document is given by way of identification only and the use of such description does not constitute a contract of sale or consignment by description or a warranty as to suitability or fitness for purpose.
• It must provide to Luus Industries full particulars of its requirements, including but not limited to, its ABN, order or consignment number, quantity and model number and any options required, delivery date, delivery address, insurance instructions and freight instructions, before Luus Industries will accept any order or consignment request.
• All Products are commercial property intended for use in commercial or industrial kitchens and similar facilities. The Products are to be acquired by or consigned to the Customer solely in furtherance of its business. The Products are not to be used (and are not intended to be used or are of a kind that is ordinarily used) for personal, domestic or household purposes.

 

Warranty

Luus Industries, in its reasonable discretion if it deems necessary, will repair or replace any Products purchased by the Customer to remedy any failure due to faulty workmanship or materials, provided that the Products may have acceptable variance, and any replacement or repaired Products will only be warranted for the unexpired portion of the warranty period being for 24 Months Parts & Labour attached to the original Products. The benefits to you given by this warranty are in addition to other rights and remedies you may have under law in relation to the goods or services to which the warranty relates. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law.

Provision of the Warranty is subject to:

• The Product being paid for in full and the Customer not being in breach of these General Terms and Conditions.
• No longer than 24 months having elapsed from the date of despatch of the Products from Luus Industries’ warehouse.
• Luus Industries’ or its representative, at its option, having access to the Products for the purposes of inspection and verification of any claim. In order to be entitled to claim under this warranty, a defect to which this warranty applies must appear and be notified to us within the 24 month warranty period.
• A Warranty Activation Form is completed and submitted to Luus Industries at the addresses stated on this document within 30 days.
• The Product has not been repaired or attempted to be repaired without prior authorisation from Luus Industries nor have the Products been altered in any way.
• The Customer uses and maintains the Products in accordance with Luus Industries’ instructions and in accordance with commonly accepted operating practices.
• Correct storage and installation of the Products in accordance with Luus Industries’ instructions.
• Luus Industries will have a discretion as to whether it repairs or replaces a defective Product under this warranty.
• This warranty only covers labour provided or approved by Luus Industries. It does not include any labour of the Customer or any other person.
• To the maximum extent permitted by law, the Customer’s sole recourse, and Luus Industries sole liability, for defective Products is for the repair or replacement of the Product subject to and in accordance with this warranty and these General Terms & Conditions.

 

The Warranty Excludes:

• Defects or malfunctions that are the result of incorrect or poor maintenance by the Customer or any third party, including but not limited to cleaning or repairing blocked or clogged burners, injectors, or pilots.
• Fair wear and tear, damage or alteration to the Products arising from circumstances outside the direct control of Luus Industries, including, without limitation, power surges, disruptions or where the Products are not used for their intended purpose.
• Any part of an appliance which has been subject to misuse, neglect, alteration or changed in any manner, incorrect installation or accident that has been caused by the Customer or any other person.
• The failure of Products that have been supplied to the Customer’s specification or design and that failure was caused by the Customer’s specification or design fault.
• Any problem that might arise due to poor installation of the Products.
• Any third party equipment that the Customer might have specified or which is not otherwise manufactured by Luus Industries.
• Any installation or removal costs necessary to access or service or replace Products and any transport costs to return Product to Luus Industries. All installation, removal and transport costs will be the Customer’s sole responsibility. Luus Industries may decline to provide repairs or replacement under this warranty unless these costs are pre-paid by the Customer.

 

The Customer warrants to use the goods in accordance with:

• Any instructions provided to it by Luus Industries from time to time.
• All government and local regulations, including but not limited to all relevant environmental laws and regulations governing the storage, installation, use, handling, maintenance and disposal of the Products.
• All necessary, appropriate and safety measures relating to the storage, installation, use, handling and maintenance of the Products.
• Luus Industries approved warranty work undertaken by authorised service agents is arranged during normal working hours only, being Monday to Friday, 9am to 4pm, excluding public holidays.

 

Liability

To the maximum extent permitted by law, except as specifically set out in these General Terms & Conditions, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services sold, supplied or consigned, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded. To the maximum extent permitted by law, except as set out in these General Terms & Conditions:

• Replacement or repair of the Products subject to and in accordance with these General Terms & Conditions or resupply of the services is the absolute limit of Luus Industries’ liability howsoever arising under or in connection with the Products, their sale, consignment, use of, storage or any other dealings with the Products or service by the Customer or any third party;

 

• Luus Industries is not liable for any indirect or consequential losses, damages or expenses, loss of perishables, downtime, increased running costs, wasted resources, replacement equipment or hiring fees, removal and reinstallation costs, death or personal injury, damage to property, loss of turnover, loss of profits, business interruption costs, loss of opportunity, loss of business or goodwill or any liability to or claims by any other party. Except to the extent of Luus Industries liability under these General Terms & Conditions, the Customer indemnifies Luus Industries against any and all loss, damage, costs, expenses, demands, liabilities and claims arising from or in connection with the Products; and
• Luus Industries will not be liable for any loss or damage suffered by the Customer where Luus Industries has failed to deliver goods or services or fails to meet any delivery date or cancels or suspends the supply or consignment of goods or services.

 

Delay

If Luus Industries shall state or accept any time for delivery of Products or completion of any services, then such time shall be approximate only and shall not be of the essence. Luus Industries shall not be liable for any loss or damage suffered by the Customer or any third party for the failure or delay to meet any estimated date.

Delivery Conditions

Unless otherwise agreed, all Products are to be delivered ex-works from Luus Industries’ premises. The Customer is responsible for all transport costs to its nominated delivery address. If requested by the Customer, Luus Industries may nevertheless arrange transport on behalf of and at the cost of the Customer. These costs would be added to the invoiced amount of the Products or, if the Product is being consigned, separately invoiced to the Customer. The Customer must examine the Products for any discrepancies and note these on the delivery docket before signing.  The Customer must notify Luus Industries in writing of any shortages or damages relating to the Products within 48 hours of delivery.  Subject to these General Terms and Conditions, an exchange may be requested provided the details were noted on the original signed delivery docket. If the Customer does not notify shortages, damages or other discrepancies within 48 hours of delivery, the Products will be deemed to have been delivered in accordance with the order and these General Terms and Conditions.

Delivery Terms

Unloading facilities such as forklifts are required upon delivery. In instances where these facilities are not available, Products may be delivered to our (or a nominated) freight depot in your area for collection or on forwarding. Alternatively, tailgate deliveries (kerb side drop off) may be requested at an additional charge.

Returns

Except for defective items supplied by Luus Industries, purchased items returned for credit will only be accepted if the Customer has obtained Luus Industries’ prior agreement in writing and the return is on the following conditions:

• Items returned must not be incomplete, damaged or otherwise imperfect. The credit allowed in respect of items returned will be subject to a service charge at Luus Industries’ rate currently in effect unless otherwise specified.
• Items cannot be rejected unless damaged or incorrectly supplied. Items specifically produced or procured to the Customer’s order cannot be returned for credit or rejected as being unsuitable or because they are no longer required by the Customer.
• The Customer is responsible for all costs associated with returning the relevant Product to Luus Industries.
• No responsibility is accepted by Luus Industries for items lost or damaged in transit during return to Luus Industries.
• Luus Industries reserves the right to charge a fee equating to 15% of the Product purchase price as a restocking fee. This restocking fee and any associated service charge is payable on demand by Luus Industries.

 

Cancellation

Cancellation of any purchase order by the Customer will only be effective if accepted by Luus Industries in writing in its absolute discretion. In any event, in addition to any other rights of Luus Industries, if a purchase order is terminated or cancelled by the Customer before the order is fully performed, the Customer must immediately pay Luus Industries for all work done and materials used by Luus Industries in the execution of work on the Customer’s behalf up to the date of the cancellation. Luus Industries will determine the amount payable acting reasonably. A statement of the amount payable by Luus Industries will be final and binding in the absence of manifest error. If the Customer has paid a deposit in respect of the purchase order, Luus Industries will be able to apply the deposit towards any monies owing to it. The balance (if any) of the deposit will be returned to the Customer by Luus Industries.

Specifications

The Customer acknowledges that the Products must be installed, displayed, operated and maintained in accordance with the Product specification provided by Luus Industries. Luus Industries’ Products are carefully designed to operate within their published specifications and not otherwise. In the event of the Customer or any other person not installing, displaying, operating or maintaining the Product in strict accordance with its specifications the warranty in these General Terms and Conditions shall not apply and the Customer will be in breach of these General Terms & Conditions.

Exclusions and Limitations

To the maximum extent permitted by law, all terms, conditions, warranties, representations, guarantees, undertakings, duties (including negligence), promises and assurances in favour of the Customer (whether arising in tort, contract, equity or statute) not expressly set out in these General Terms and Conditions are excluded. Without limiting any of the foregoing, the parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (as adopted at Vienna).

To the extent that any terms, conditions, warranties, representations, guarantees, undertakings, duties, promises or assurances in favour of the Customer are implied or otherwise apply by virtue of statute and cannot be excluded, restricted or modified, then to the maximum extent permitted by law, Luus Industries’ liability for failure to comply with any of those terms, conditions, warranties, representations, guarantees, undertakings, duties, promises or assurances is limited (at the election of Luus Industries) to one or more of the following in relation to goods:

• the replacement of the goods or the supply of equivalent goods;
• the repair of the goods;
• the payment of the cost of replacing the goods or of acquiring equivalent goods; and
• the payment of the cost of having the goods repaired,

 

and in relation to services, is limited (at the election of Luus Industries) to one or more of the following:

• the supplying of the services again or the payment of the cost of having the services supplied again.

 

PPSA

These General Terms & Conditions apply to every purchase and consignment of goods and services by or to the Customer from Luus Industries. By virtue of these General Terms & Conditions, security interests are created, arise or are provided for. The security interests are interests in the Products supplied or consigned by Luus Industries to the Customer at anytime (including in the future) as well as security interests in their proceeds.

Retention of Title – The security interests in Products supplied secure payment of the purchase price for the Products as well as all other monies owing by the Customer to Luus Industries now and in the future.

Commercial Consignment – The security interests in Products consigned are interests as a consignor who has delivered goods to a consignee under a commercial consignment (rather than a PPS Lease or a bailment for which the consignee provides value).

The Customer acknowledges and agrees that these General Terms and Conditions together with the Credit Account Application Form constitute a security agreement for the purposes of the PPSA. Additionally, for the purposes of the PPSA, the collateral is described as being: (1) in relation to Products supplied to the Customer – all goods supplied by Luus Industries at anytime (including in the future) to the Customer as well as all proceeds from such goods; and (2) in relation to Products consigned to the Customer – all goods consigned by Luus Industries at anytime (including in the future) to the Customer as well as all proceeds from such goods.

The Customer must do all things necessary and execute all documents reasonably required to register the security interests and to ensure that Luus Industries has perfected security interests in the Products and their proceeds for the purposes of the PPSA.

Pursuant to section 115 of the PPSA, the parties hereby contract out of the following provisions of the PPSA to the extent (if any) mentioned in section 115 of the PPSA: 95, 118, 120, 121(4), 125, 129, 130, 132(3)(d), 132(4), 135, 142 and 143. The Customer also hereby irrevocably waives its rights to receive notices under section 157 of the PPSA. Luus Industries and the Customer also agree for the purposes of section 275(6)(a) of the PPSA that neither of them will disclose information of the kind mentioned in section 275(1) of the PPSA. Nor will the Customer authorise the disclosure of any information of the kind mentioned in section 275(1) of the PPSA without prior written consent from Luus Industries.

The rights, powers and remedies of Luus Industries under these General Terms & Conditions are in addition to any of its other rights, powers and remedies, including its right to seize collateral in accordance with section 123 of the PPSA. The Customer must not at anytime assert any right or interest in the Products (or any of their proceeds) in priority to any security interest held by Luus Industries in the Products (or their proceeds).

Variation

Luus Industries reserves the right to vary these General Terms and Conditions from time to time. Luus Industries must give the Customer notice of any variation pursuant to this paragraph or must otherwise make the revised General Terms and Conditions publicly available on its website (with or without specifically notifying the Customer). Variations will take effect from the date so notified or published on Luus Industries’ website.

No Disadvantage

No rule of construction applies to the disadvantage of Luus Industries just because it or its advisors drafted or put forward these General Terms & Conditions.

Independent Contractors

Each party enters into these General Terms & Conditions and each order as independent contractors. The Customer is not an employee, agent, partner or joint venturer of Luus Industries and the Customer has no right or authority to act, make representations or incur any obligations on behalf of Luus Industries.

Force Majeure

No failure or omission by Luus Industries to carry out or observe any of these General Terms & Conditions (excluding any obligation to pay money) will, except as provided to the contrary in these General Terms and Conditions, give rise to a claim against the party in question or be deemed to be a breach of these General Terms and Conditions to the extent that and for so long as such failure or omission arises from any event reasonably beyond the control of Luus Industries and which occurs without the fault or negligence on behalf of Luus Industries (Force Majeure Event). Luus Industries must promptly notify the Customer of the occurrence of the Force Majeure event and take all reasonable steps to overcome or address the Force Majeure Event so as to resume normal performance of its obligations as soon as possible. If Luus Industries remains unable to properly perform its obligations under these General Terms and Conditions for a continuous period of more than 3 months, then either party may elect to terminate these General Terms and Conditions or cancel all or any outstanding purchase orders or consignment requests.

Set-off

Any amounts owing by the Customer to Luus Industries may be set-off by Luus Industries against any amounts owing by Luus Industries to the Customer.

Assignment

The Customer must not assign any of its rights under these General Terms and Conditions or any order or consignment request without the prior written consent of Luus Industries. Luus Industries may assign or novate its rights and obligations under these General Terms and Conditions and any order or consignment request to any of its related bodies corporate (as defined in the Corporations Act) or to a bona fide purchaser of the whole or a substantial part of its business. Luus Industries may also assign to any person any debts owing to it by the Customer. Luus Industries may do any of the foregoing things without the Customer’s consent.

Rights Cumulative

The rights, powers and remedies of Luus Industries provided for by these General Terms & Conditions are in addition to and without prejudice to or derogation from any other rights, powers or remedies of Luus Industries whether under these General Terms & Conditions or otherwise.

Governing Law and Jurisdiction

These General Terms & Conditions and the orders and consignments to which they apply will be governed and construed in accordance with the laws of the State of Victoria, Australia. The parties irrevocably agrees that the courts of Victoria, Australia shall have exclusive jurisdiction to hear and determine any disputes which may arise out of or in connection with these General Terms & Conditions and the orders to which they apply, including disputes about formation, validity, interpretation or termination and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of Victoria, Australia to determine any such disputes according to Victorian law.