Terms & Conditions
In these Terms and Conditions, unless the context otherwise requires:
- 1.1 “Customer” means the person(s) (including a body corporate) who engages LWDA to provide the Services (and including any person acting on behalf of and with the authority of the Customer);
- 1.2 “Goods” means the goods or any components attached to the goods provided by the Customer or a third-party supplier for which the Customer has engaged LWDA to provide the Services of installation and or Design;
- 1.3 “Intellectual Property” includes but is not limited to trade marks, patents, copyrights, processes, know-how, registered designs, choreography, dances, costume designs, logos, business names, stage designs and visual concepts;
- 1.4 “LWDA” means Modtek Industries Pty Ltd trading as Luke Watson Design & Assembly, and its successors and assigns (and including any person acting on behalf of and with the authority of LWDA);
- 1.5 “Price” means the price payable by the Customer to LWDA for the Services as set out in any quotation or order in accordance with clause 3 of these Terms and Conditions;
- 1.6 “Services” means the services supplied by LWDA to the Customer as set out in LWDA’s quotation or any order and includes the Installation of the Goods and where stated Design services provided by LWDA to the Customer;
- 1.7 “Terms and Conditions” means the terms and conditions of trade set out in this document.
The Customer accepts and agrees to be bound by these Terms and Conditions by acceptance of the written quotation provided by LWDA or by submitting an order for LWDA to supply the Services and/or LWDA commencing to provide the Services.
- 3.1 The Price for the Services shall be set out in the written quotation or other form provided by LWDA to the Customer as accepted in writing by the Customer whether by official purchase order or other form of written communication, within 30 days of receipt of such quotation or order by the Customer.
- 3.2 If the Customer has not accepted the Price as quoted within 30 days of receipt in accordance with clause 3.1, that quote shall expire and LWDA shall be entitled to provide an updated quotation for its Services.
- 3.3 LWDA shall be entitled to charge the customer for any modifications, alterations or additional work in addition to the Services quoted as required by the Customer which shall be confirmed by a Variation in writing signed by the Customer.
- 3.4 LWDA may require the Customer to pay a deposit on acceptance of the quotation.
- 3.5 Payment of the Price will be due on completion of the Services by LWDA.
- 3.6 Payment obligations shall be of the essence under these Terms and Conditions and payment may be made by cash, bank cheque, credit card, direct credit, or other method agreed to between the Customer and LWDA in
- 3.7 The Prices shall be excusive of GST and other taxes and duties except when they are expressly included in the Price.
- 3.8 The Customer must pay all money due to LWDA without deduction or set off and must not withhold any payment on the grounds of alleged non-performance LWDA of its obligations or for any other reason.
- 3.9 Acceptance by LWDA of payment of a sum less than the full sum due will not be an acknowledgment of payment in full or an accord and satisfaction and will not prejudice LWDA’s rights to recover the balance due or to pursue any other remedy in respect of any unpaid money.
- 3.10 The Customer shall be liable to meet any additional costs of LWDA at its standard hourly rates as disclosed plus the cost of the materials.
- 3.11 The Customer shall pay in addition to the Price the additional costs at LWDA’s hourly rates for attending at the Customers site when there is non-delivery or incomplete delivery of the Goods by the Customer or its supplier of the Goods.
- 4.1 LWDA provides and makes no warranties or guarantees in relation to the quality of the Goods that have been supplied by the Customer and or third parties to the customer for LWDA to provide its Services.
- 4.2 The Customer accepts that all risks associated with the quality of the Goods will be borne by the Customer.
- 4.3 The Customer acknowledges that LWD’s Services do not include (whether directly or indirectly) the manufacture, supply or delivery of the Goods and LWD will not accept responsibility for any loss or damage to the Goods upon their delivery. The Customer is responsible for ensuring all components of the Goods have been delivered in good and working condition.
- 4.4 Save for any damage caused by LWDA in the provision of the Services, any issue of rectifying any damaged or defective Goods shall be dealt with between the Customer and the third-party supplier of the Goods..
- 4.5 LWDA shall notify the Customer if it becomes aware of any defect in the Goods supplied prior to commencement of the Services.
- 4.6. LWDA shall follow the manufacturer or supplier’s assembly and installation instructions provided that LWDA may in provision of its Services based on its own skill and judgement having depart from such installation instructions where it deems necessary to complete the Services.
- 4.7 LWDA shall notify the Customer of any departure from the manufacturer or suppliers installation instructions and obtain the Customers consent which shall not be unreasonable withheld by the Customer.
- 4.8 The Customer acknowledges that the Goods may come with a Manufacturer or Suppliers warranty subject to following the installation recommendations.
- 4.9 If the Customer directs LWDA to vary the installation recommendation of the Manufacturer or Supplier the Customer acknowledges that any such Warranty may be voided and LWDA shall not be liable in that event other than for any warranties LWDA is required by Law to provide.
- 4.10 Where the Customer, agent or third party appointed by the Customer provides the measurements and design Layout LWDA shall not be liable for any inaccuracy in the measurements or design layout.
- 5.1 The Customer shall confirm the due date for delivery of the Goods on site to LWDA and the date for LWDA to commence its Services.
- 5.2 LWDA disclaims and the Customer accepts that LWDA has no responsibility to ensure the prompt and safe delivery of the Goods and the Customer shall make all arrangements necessary to take delivery of the Goods
- 5.3 LWDA shall not be liable for any loss, damage or inconvenience suffered by the Customer due to the failure or late delivery of the Goods to the site by the any third party.
- 6.1 If the Customer defaults in payment of monies due and payable Customer shall indemnify LWDA from and against all costs reasonably incurred by LWDA in pursuing recovery including legal costs on a solicitor and own client basis and any collection agency costs.
- 6.2 Interest on overdue accounts shall accrue daily from the date when payment becomes due until the date of payment at a rate of 2% higher than the interest rate fixed from time to time by the Penalty Interest Rates Act 1983 (Vic) and such interest shall compound monthly.
- 6.3 Without prejudice to any other remedies LWDA may have, LWDA may suspend or terminate its Services to the Customer (or all or any part of any order of the Customer which remains unfulfilled) if:
- (a) the Customer is in breach of any obligations under these Terms and Conditions; or
- (b) the Customer becomes insolvent, convenes a meeting with its creditors or enters into bankruptcy or an
arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- (c) a receiver, manager, liquidator (provisional or otherwise), controlling trustee, trustee in bankruptcy or
similar person is appointed in respect of the Customer or any assets of the Customer.
- (d) The Customer is unable to provide access to the premises to enable LWDA to provide the Services
- (e) If LWDA suspends or terminates all or any part of the Services pursuant to clause 6.3 all amounts owing
or which may then be owing by the Customer to LWDA shall, whether due for payment, become
immediately payable as a liquidated debt then due.
- 7.1 LWDA may reject any order for Services and/or cancel the provision of Services at any time before commencement of its Services by giving written notice to the Customer and on giving such notice LWDA shall:
- (a) repay the Customer any sums paid in respect of the Price and/or GST; and
- (b) not be liable to the Customer for any loss or damage howsoever arising from such cancellation.
- 7.2 If the Customer cancels an order and/or delivery of Services after 14 days after an Order or at any time after commencement:
- (a) LWDA may retain any deposit paid by the Customer in respect of the Services; and
- (b) the Customer shall be liable to LWD for any additional losses incurred by LWDA as a result of the cancellation (including, but not limited to any delivery or storage costs) and services LWDA has then provided.
- 8.1 The Customer acknowledgest LWDA shall provide the Services in a professional and competent manner.
- 8.2 If LWDA provides any advice, recommendations, information or assistance in providing the Services it is provided in good faith and given without liability or responsibility on the part of LWDA where the Services involve installation of the Goods supplied by a third party to the Customer.
- 8.3 The Customer shall ensure it has taken out all necessary Insurances to cover any liability for personal injury or property damage and LWDA shall not be liable unless any such claim arises from LWDA’s negligence in provision of the Services.
- 8.4 In the event of any breach of these Terms & Conditions by LWDA the Customer’s remedies shall be limited to the Price paid for the Services and LWDA shall be under no liability whatever to the Customer for any indirect or consequential loss or damage and/or expenses (including loss of profit) if any suffered by the Customer.
- 8.5 LWDA shall not be in default of these Terms and Conditions due to a force majeure event including but not limited to war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond its reasonable control.
- 9.1 The Customer acknowledges that the ownership, title and rights associated with all Intellectual Property in any design information or material provided by LWDA in provision of the Services at all times belong to, vest in and remain vested in LWDA and the Customer must not:
- (a) use, sell, lease, loan, distribute (including uploading to social media or the Internet), or in any manner to commercially exploit LWDA’s Intellectual Property without the prior written consent; or
- (b) infringe LWDA’s Intellectual Property rights or cause or permit anything which may damage or endanger such rights.
Where the Customer consists of more than one person, the Customers shall be jointly and severally liable for the obligations set out in these Terms and Conditions including but not limited to the payment of the Price and all amounts owing to LWDA.
- 11.1 Nothing in these Terms and Conditions is intended to have the effect of contracting out of any applicable provisions of any state or federal legislation (including but not limited to the Australian Consumer Law), except to the extent permitted by such legislation where applicable.
- 11.2 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.
- 12.1 These Terms and Conditions shall be governed by the laws of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of Victoria, Australia.
LWDA may license or sub-contract all or any part of its rights and obligations to third parties and sub-contractors.
The failure by LWDA to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall affect it’s right to subsequently enforce that provision.
Where these Terms and Conditions are inconsistent with any written quotation, order or other form provided by LWDA to the Customer, the provisions of that written quotation or other form will prevail to the extent of the inconsistency.
- 16.1 These Terms and Conditions (together with any written quotation order or other form provided by LWDA to the Customer) form the entire agreement between LWDA and the Customer.
- 16.2 All conversations, representations and statements not confirmed in writing by LWDA are expressly excluded and shall not be deemed to be part of any quotation, invoice, order, agreement or contract, or to have induced the order of the Services by the Customer or to have any legal effect whatsoever.
- 17.1 These Terms and Conditions supersede all previous terms and conditions of trade of LWDA.
- 17.2 LWDA reserves the right to review these Terms and Conditions at any time and any change will take effect from the date on which LWDA notifies the Customer of such change.
- 17.3 The Customer’s acceptance of any amendments to these Terms and Conditions will be evidenced by the
- 17.4 Customer’s acknowledgement in writing without the need for the Customer to provide any other formal notification of its acceptance to LWDA.