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TERMS AND CONDITIONS

Definitions:

a.“Provider” means Launch Initiative Pty Ltd ABN 51 402 088 994 

b."Conditions" means these terms and conditions;

c.“Customer” means the person, firm, body corporate, association or company who requests (whether by their agent or otherwise) the Provider to perform the Works

d.“Works” means all goods and services supplied, works carried out, or agreed to be carried out, by the Provider at the request or with the consent of the Customer, its employees or agents, including without limitation:

(i)all repairs, maintenance, improvements or services;

(ii) the sale, supply or installation of any parts by the Provider.

e.“Customer’s Property” means any property of the Customer, delivered to or made available to the Provider for its performance of the Works.

1.Customer’s Authority

The Customer warrants that it is the owner of the Customer’s Property and has the authority to request the Provider to perform the Works. If the Customer authorises the commencement of the Works it will be regarded as having accepted the Provider’s quote or estimate and will be bound by the Conditions set out in this document.

2.Variation to Conditions:

Unless otherwise expressly agreed by the Provider in writing, the Works are subject to these Conditions and to the matters specified in writing in any quotation, invoice or an attached or associated document. No additions or alterations shall be of any effect unless expressly agreed by the Provider and Customer in writing. Until such time as any proposed variation to the contract is evidenced in writing under the hand of the Provider and Customer, the Provider shall not be obliged to carry out the Works.

3.Price

All prices quoted or estimated are inclusive of Goods and Services Tax unless otherwise indicated. Any other levies or taxes including sales tax, government charges, duties or excises are additional to prices quoted and are borne by the Customer. Where there is a change in costs incurred by the Provider in relation to Works, the Provider may vary its price in respect of the Works to take account of such change by notifying the Customer.

4.Quotations for Services

Where a price given by the Provider for the Works is specified to be an estimate, the Customer shall pay the Provider the amount claimed by the Provider on completion of the Works, which amount may vary from the estimated amount and which amount shall be based upon the actual work done and materials supplied by or on behalf of the Provider. When the Customer has requested the Provider to prepare a quotation or estimate for the provision of the Works then in the event that the Customer does not accept the quotation or estimate  the Customer shall be responsible for all labour and associated costs and charges incurred by the Provider in preparing the quotation or estimate.

5.Payment

1.a. The time specified by the Provider for payment is of the essence of this contract. Unless otherwise provided the balance within seven (7) days of the date of the Provider’s final invoice for the Works being issued upon completion of the Works as determined in the absolute discretion of the Provider. The Provider shall not be obliged to commence the Works until the initial payment has been made by the Customer.

b. The Customer agrees that by accepting delivery of the Customer’s Property it has inspected the Works and satisfied itself that the Works have been performed and completed with due care and skill and to a proper and satisfactory standard. The Customer must accept delivery of the Customer’s Property within 4 days of the Provider providing notification to the Customer that it is ready for delivery and if the Customer’s Property is not accepted within such time, the Provider will be entitled to claim storage costs at a rate of 5% of the invoiced price of the Works for each day that the Customer’s Property remains in the custody of the Provider. 

6.Default in Payment

a. Should the Customer fail to make any payments by the due date for payment, the Provider shall (without prejudice to any other remedy):-

(i)be entitled to be paid interest by the Customer on the outstanding amount at the rate which is two per centum (2%) per annum higher than the rate charged from time to time by the Provider’s bank on overdraft facilities in excess of one hundred dollars ($100.00), such interest to be charged daily, to be compounded every calendar month upon the amount then owing and to be payable on demand,;

(ii)be entitled on demand to any additional losses, costs and expenses incurred by the Customer’s default including, without limitation, reasonably incurred collection costs and all legal costs (on a solicitor/own client basis) and expenses incurred by the Provider;.

(iii)retain title to any machinery, parts, materials, equipment or accessories supplied by the Provider; 

(iv)cease performing the Works and retain the Customer’s Property  until all outstanding invoices together with interest, charges or other costs payable have been paid in full.

b. Risk shall pass to the Customer upon delivery of the Customer’s Property notwithstanding that the Provider retains ownership of any machinery, parts, materials, equipment or accessories supplied by the Provider until full payment in accordance with clause 10 of these Conditions.

c. If the Customer is insolvent or commits an act of bankruptcy or is or states that it is unable to pay its debts or an order is made or an application for an order is lodged or a meeting is convened for the appointment of an administrator, receiver, manager or a liquidator or payment is not made on or before a due date, then immediately upon request by the Provider the Customer shall deliver up all machinery, parts, materials, equipment or accessories supplied by the Provider to the Customer failing which the Provider by its servants and agents is hereby irrevocably authorised at any time to enter any premises where those goods are located and to remove them, regardless of whether they have become fixed to any place, vehicle, vessel or thing and for this purpose the Provider is appointed the Customer’s agent. The Customer shall indemnify and keep indemnified the Provider against all costs incurred by the Provider and all claims made against the Provider (including any claims made by third parties) arising from the Provider entering any premises and any removal effected by the Provider.

7.Time for Performance

Dates advised by the Provider for completion of the Works are estimates only and is not a contractual commitment and the Provider shall not be liable for any loss or damage suffered by the Customer or any third party arising from any delay in performance of the Works, including but not limited to, delay resulting from inadequate or interrupted supply of goods or materials to be provided to the Provider by the Provider’s supplier or the delivery to the Provider of goods and services by a contractor either nominated by the Customer or engaged by the Provider.

8.Responsibility for Customer’s Property

The Customer’s Property shall be at the Customer’s risk while in the Provider’s possession for the provision of the Works and the Provider shall not be liable for any loss or damage to the Customer’s Property whilst in its possession and the Customer agrees to indemnify the Provider against all actions, suits, claims and demands against the Provider arising directly or indirectly out of such loss or damage to the Customer’s Property.

9. Warranty

a. The Provider is not responsible or liable under any manufacturer's warranty however, the Provider will pass on for the benefit of the Customer any warranty provided by the manufacturer of any goods supplied to the Customer in respect of the Works.

b. The Provider will not be responsible and the warranty does not apply for failure or defect in respect of the Works resulting from or arising in connection with:

(i) Customer or operator abuse or neglect;

(ii)improper alterations, modifications or repairs conducted by the Customer or any third party;

(iii) failure to use and operate in accordance with any installation, maintenance or instructions provided by the Provider in respect of the Works;

(iv)     normal wear and tear; or

(v)    the Customer being in breach of these Conditions.

c. In order to make a claim under this warranty, a Customer must:

(i)give the Provider written details of any defect within 7 days from the date of receiving the goods; 

(ii)allow the Provider or its employees or agents to inspect the Customer's Property; and

3. (iii)provide any information requested by the Provider
   

10.Passing of Property & Lien

a. Until full payment in cleared funds is received by the Provider in respect of the Works, as well as all other amounts owing to Provider by the Customer:

(i)title and property in all goods remain vested in Provider and do not pass to the Customer;

(ii)the Customer must hold the goods as fiduciary bailee and agent for Provider;

(iii) the Customer is required to hold the proceeds of any sale of the goods on trust for Provider in a separate account, however failure to do so will not affect the Customer's obligations to deal with the proceeds as trustee; and

b. The Provider may, without notice, enter any premises where it suspects the goods may be and remove them, and for this purpose the Customer irrevocably licenses Provider to enter such premises and also indemnifies Provider from and against any and all costs, claims, demands or actions by any party arising from such action.

c. The Provider retains a general lien over the Customer's Property until full payment in cleared funds is received by Provider for the Works  carried out upon the Customer's  Property.

d. The Provider retains to a Provider’s lien over the Customer’s Property and/or a general lien over any other property of the

Customer that comes into the possession of the Provider for any reason until all amounts owing by the Customer to the Provider are paid in full.  Without limitation, the lien entitles the Provider to:

(i)refuse to return the Customer's Property to the Customer; and/or

(ii)charge the Customer transport, rent, storage and all other expenses incurred relating to the possession of the Customer's Property.

e. Should the Customer fail to collect any of the Customer’s Property within 3 months of notification of the Works being completed the Provider is authorised to sell such of the Customer’s Property as remains in its possession in such manner as it sees fit (and is hereby appointed as the Customer’s attorney for this purpose) and shall be at liberty to apply the proceeds of sale towards payment of any money due by the Customer to the Provider and thereafter refund any excess to the Customer at its last known address.

f. The sale or delivery of part of the Customer's Property does not affect the Provider's lien.  The lien is in addition to any common law or legislative rights available to the Provider concerning liens or unpaid invoices or unclaimed goods.

11.Liability limitation and Indemnity

a. Except as specifically set out in these Conditions, all conditions and warranties implied into contract for the supply goods and services at law or pursuant to any Federal or State legislation are excluded to the maximum extent permitted.

b. Subject to and to the extent permitted by Federal or State legislation applicable to the supply of goods and services, the Provider’s liability to the Customer in respect of the Works  howsoever arising (including in respect of any dealings with the goods by the Customer or any third party), will be limited to, at the discretion of the Provider either:

(i)the re-supply of the goods or services;  or

(ii)the repair or replacement of the goods supplied.

c. Except as provided for in these Conditions, the Provider will not in any circumstances be liable for any loss, damage or injury of any kind arising out of or in any way connected with the performance of the Works (including loss of enjoyment of use of the Customer’s Property or any economic or consequential loss) whether by way of negligence, breach of contract, breach of duty of bailment, wilful act of the Provider, its employees, agents or sub con-contractors or otherwise.

d. The Customer will indemnify the Provider against all claims and demands made (including any claims made by third parties) in respect of any loss, damage or injury of any kind arising out of or in any way connected with the performance of the Works (including loss of enjoyment of use of the Customer’s Property or any economic or consequential loss) whether by way of negligence, breach of contract, breach of duty of bailment, wilful act of the Provider, its employees, agents or sub con-contractors or otherwise.

e. Any advice, recommendation, information or assistance provided by the Provider in relation to the Works or in respect of any other goods or services supplied by it or their use or application is given in good faith, is believed by the Provider to be appropriate and reliable however, it is provided with a disclaimer for any liability or responsibility on the part of the Provider.

12.Sub-Contracting and Indemnity

The Provider may at its discretion, subcontract on any terms the whole or part of the Works. 

13.Liability of Employees and Agents

It is expressly agreed that every exemption from liability, defence, immunity and right under these Conditions will extend and protect every employee employed and agent appointed by the Provider in these Conditions.

14.Cancellation

a. If through circumstances beyond the Provider's control it is unable to complete the Works (including the supply of any goods in respect of the Works) then the Provider may cancel the Customer's order (even it has already accepted the order) by notifying the Customer.  The Provider shall have no liability to the Customer or any third party for any damages or losses, direct or indirect, resulting from such cancellation.

b. No purported cancellation or suspension of an order or any part of it by the Customer is binding on the Provider after that order has been accepted.

c. If the Customer cancels its order after acceptance by the Provider, then the Provider is entitled to damages for breach of contract.

15.Force Majeure

If the Provider by reason of any matter beyond its control, including without limitation: any act of God; strike, lock-out or labour disturbance; war or warlike condition; act of terrorism; civil riot; sabotage; explosion; lightning; fire; earthquake, landslide or tidal wave; storm, flood, or other extraordinary weather conditions; quarantine; requirements of government authorities;  unavailability or delay in supplies (including electricity, oil or gas), equipment or transport; refusal of or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences; or otherwise is unable to perform any part of its obligations under these Conditions, to the extent and

for the period that it is not reasonably able to perform, the Provider will not be liable to the Customer or any third party for any damages or losses, direct or indirect, resulting from the Provider being unable to perform the Works.

16.Time Bar

The Provider will not in any circumstances be liable for any claim for loss, damage or injury (including any economic or consequential loss) arising out of or in any way connected with the performance of the Works, whether involving negligence of the Provider or otherwise, unless such claim is made in writing within seven (7) days of the earliest of the following occurring:

(i)the Works being completed; or

(ii)the Customer’s Property leaving the care, custody or control of the Provider.

17.Applicable law

The law of New South Wales applies to the Works and/or the contract between the Provider and the Customer for the execution of the Works and the Courts of that state or the Commonwealth shall have exclusive jurisdiction to determine any dispute arising in any manner in respect of the Works or the contract. The parties irrevocably agree that the venue for any determination shall be in Sydney, New South Wales.

Headings in these Conditions are for reference purposes only

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