Terms & Conditions
L.M. Group Investments Pty Ltd ACN 151 789 927), The trustee for Ausco Trust ABN 13 361 140 068, trading as “Lightning Mobility” [hereinafter referred to as “Lightning Mobility”] Terms and Conditions of Trade for the Supply of Products to Customers [hereinafter referred to as “Terms”, “Products” and “the Customer”]
In these conditions unless the contrary intention appears:
“Additional Charges” includes all installation charges, delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Lightning Mobility arising out of the sale of the Goods.
“Customer” means the person or entity to or for whom the Goods are to be supplied by Lightning Mobility.
“Goods & Products" means the goods sold to the Customer by Lightning Mobility and any related services provided by Lightning Mobility.
“Intellectual Property” means Lightning Mobility's business names, trade names, trade marks, product names, copyright, patents, designs, industrial processes, trade secrets, know how and other intellectual property rights and development in such property rights.
“Lightning Mobility” means L.M. Group Investments Pty Ltd ACN 151 789 927, The trustee for Ausco Trust ABN 13 361 140 068, trading as “Lightning Mobility”.
“Purchase Price” means the list price for the goods as charged by Lightning Mobility at the date of delivery or such other price as may be agreed by Lightning Mobility and the Customer prior to delivery of the Goods.
“Terms and Conditions” means these trading terms and conditions as amended from time to time byLightning Mobility and notified to the Customer.
Unless otherwise agreed in writing these Terms apply to all dealings between Lightning Mobility and the Customer.
1. Ordering and Acceptance
1.1 A binding contract will be established immediately the Customer instructs Lightning Mobility to proceed with the order and/or when Lightning Mobility orders Products or commences any assembly, customisation or other processes on behalf of the Customer and the Customer will be liable for all costs in the event of cancellation.
1.2 “The Customer” in these Terms is the person who places the order. If the order is placed by other parties, including but not limited to, health, care or other persons, government bodies, hospitals, nursing/care homes and all others acting for or on behalf of a person in need of the Products those parties/persons are deemed to be “the Customer”.
1.3 Lightning Mobility may at its sole discretion accept verbal or phone orders but to avoid errors orders should be emailed or written.
1.4 Any terms or conditions of the Customer’s order deviating from or inconsistent with these Terms are expressly excluded and rejected by Lightning Mobility. This exclusion and rejection includes any statement by the Customer that the Customer’s terms and conditions shall prevail.
1.5 The Customer agrees that in the event of any dispute concerning an order (including any question of identity or authority or any telephone, facsimile or email order) that the internal records of Lightning Mobility will be prima facie evidence of what was ordered.
1.6 A quotation, estimate or any other document issued by Lightning Mobility (apart from a Confirmation of Order document) is not an offer to supply Products.
1.7 Each order placed by the Customer shall be deemed to be a representation of solvency and the Customer shall inform Lightning Mobility of any factors that could affect the commercial decision by Lightning Mobility to accept the order and/or grant credit. Failure to pay Lightning Mobility in accordance with these Terms shall be deemed to be prima facie evidence that the Customer had no reasonable grounds for making a solvency representation and that the representation was unconscionable, misleading and deceptive.
2. Price and Payment
2.1 Quotations are based on costs at the time of the quotation and are subject to change if the Customer does not accept the quotation within the period specified in the quotation or within 30 days if no period is shown.
2.2 Estimates are not quotations and are subject to change. Unless stated otherwise GST and any other applicable taxes shall be added to the price.
2.3 Lightning Mobility’s price lists are subject to change without notice and Lightning Mobility reserves the right to apply revised prices to orders not already invoiced or delivered.
2.4 The Customer acknowledges and accepts that it is unreasonable to expect Lightning Mobility to have knowledge of (or control over) price increases of products purchased by Lightning Mobility from its suppliers. Unless the Customer has instructed Lightning Mobility to purchase materials required for the contract and has fully paid for them in advance, Lightning Mobility reserves the right to charge the Customer for any such price increases.
2.5 Lightning Mobility reserves the right to increase prices if the Customer requests changes to specifications, delivery dates and any other changes or fails to provide Lightning Mobility with clear or adequate instructions or information.
2.6 Lightning Mobility may require a non-refundable full or part payment before Products are ordered or customised to meet the user’s needs. The decision to order or customise Products will be entirely at Lightning Mobility’s discretion and Lightning Mobility reserves the right to invoice the Customer in full at that time.
2.7 Cash sale customers must pay in full before collection or delivery of the Products.
2.8 Payment in full by credit account Customers shall be made strictly in accordance with Lightning Mobility’s payment terms in force at the date of the invoice.
2.9 If no specific payment terms have been agreed payment must be made immediately upon request by Lightning Mobility, time being of the essence as to this obligation.
2.10 Payment shall only be deemed to occur when cleared funds from the Customer have been received by Lightning Mobility for all amounts outstanding.
2.11 If Lightning Mobility agrees to accept payment by credit card Lightning Mobility reserves the right to recover the credit card commission.
2.12 Unless agreed otherwise by Lightning Mobility in advance, Products shall be invoiced to the Customer in full (or in part for partial delivery) immediately the Products are collected by or dispatched to the Customer, or within 7 days after Lightning Mobility advising the Customer that the Products are available for collection or dispatch.
2.13 Lightning Mobility may, at its sole discretion and without prejudice to its other rights and remedies, withhold supply and demand immediate payment of all amounts owed (even if they are not currently due) if the Customer’s account is overdue or Lightning Mobility is concerned over the Customer’s ability to pay.
2.14 The Customer shall not be entitled to set off against any money owed (or allegedly owed) to the Customer by Lightning Mobility or withhold payment or deduct money from an invoice.
2.15 Lightning Mobility can issue proceedings to recover the price of the Products even if ownership has not passed to the Customer.
2.16 Lightning Mobility can demand immediate payment of any or all amounts owed even if they are not currently due if the Customer becomes insolvent (or in Lightning Mobility’s sole opinion appears to be insolvent), proposes or enters into an arrangement with creditors or an administrator, receiver, liquidator or similar person or body is appointed in respect of the Customer or any asset of the Customer.
3. Delivery and Delay
3.1 Delivery and supply of Products takes place when the Customer collects the Products from Lightning Mobility’s premises.
3.2 If the Customer requests Lightning Mobility to deliver or supply Products to the Customer’s premises or to other premises or sites or to a third party or requests that a carrier collects the Products, delivery/supply shall take place when the Products leave Lightning Mobility premises or those of the supplier and the third party and/or carrier is deemed to be the Customer’s agent.
3.3 Unless otherwise specified in Lightning Mobility’s quotation the Customer is responsible for all delivery costs.
3.4 Lightning Mobility reserves the right to deliver part orders at its entire discretion.
3.5 The Customer shall not be relieved from its obligations to Lightning Mobility for any delay in delivery. Unless previously agreed in writing by Lightning Mobility time of delivery shall not be the essence of the contract and Lightning Mobility accepts no responsibility for any losses or alleged losses occurring as a consequence of any delay in delivery or inability to deliver or otherwise complete the
3.6 For Products delivered directly by Lightning Mobility to the Customer’s premises delivery takes place when the Products are delivered to or left at the said premises if the premises are unattended.
3.7 A certificate or delivery docket purporting to be signed by an officer or agent of the Customer confirming delivery shall be prima facie evidence of delivery.
4. Returns and Claims
4.1 Apart from Hire/Loan Products, no other Products (without exception) will be accepted for return unless agreed in writing by Lightning Mobility prior to return and then only upon conditions acceptable to Lightning Mobility. Such Products shall be returned in their original packaging and a restocking fee of 8 % will be charged.
4.2 A return number will be provided by Lightning Mobility before Products are returned and all returns are at the Customer’s entire risk for loss or damage and unless otherwise agreed by Lightning Mobility beforehand the Customer shall pay the insurance and freight costs.
4.3 Claims and defect requests must be notified to Lightning Mobility within 7 days of delivery specifying the alleged defect and Lightning Mobility reserves the right to reject any claims thereafter.
5. Installation and Incorporating
If the Customer or any other parties installs or incorporates the Products into (but not limited to) homes, properties, nursing homes, surgeries, other establishments or buildings, or vehicles Lightning Mobility shall not be liable for any claims whatsoever arising from incorrect or improper installation, incorporation or usage of the Products for any purposes for which they were not designed.
6. Safety of Premises and Sites
Lightning Mobility has a safe working environment policy for its personnel and all others who may be defined as acting for or on behalf of Lightning Mobility. If Lightning Mobility undertakes any activities at the Customer’s premises/sites, or those of other parties, the Customer and/or the occupants and/or owners of the premises/sites shall in advance notify Lightning Mobility in writing of all hazards, potential hazards and obstructions (without limitation) that may be encountered and the Customer shall fully indemnify Lightning Mobility from all claims for personal injury and any other claims made by their personnel and any other parties.
7. Liability Suitability, Representations and Opinions
7.1 The maximum liability of Lightning Mobility for any and all claims made by the Customer or any other parties shall not exceed the purchase price received by Lightning Mobility for the Products. Lightning Mobility shall not be liable for any further payments either to the Customer or to any other parties for any alleged losses, damages, injury, illness, indirect and/or consequential loss and/or expense except where the Customer is defined as a consumer within the meaning of the Commonwealth Competition & Consumer Act 2010.
7.2 The Customer takes full responsibility for ensuring that Products ordered from the Lightning Mobility are suitable for the purposes they were ordered for and shall indemnify and keep Lightning Mobility indemnified from all claims and costs from any parties whatsoever as a result of the Customer failing to select Products to the correct specifications.
7.3 If the Customer or any other parties fail to adhere to the care, operating, suitability for purpose and all other instructions and guidelines provided by the Product manufacturers or by Lightning Mobility then Lightning Mobility shall not be liable for any losses and claims (alleged or otherwise) as a result of the Customer’s failure to comply with these requirements.
7.4 If the Customer requests Lightning Mobility’s assistance in the selection, usage and suitability of Products then all such assistance shall not be considered as advice or a warranty or an expert opinion or a declaration of suitability and fitness for purpose unless the Customer has in advance totally informed Lightning Mobility in writing of all facts and information (without limitation) that may affect the suitability and/or safety of using the Products for any purpose or application. Unless the Customer has fully advised Lightning Mobility in writing of all the above factors Lightning Mobility accepts no responsibility or liability for any events that may occur as a result of the Customer’s failure to disclose all relevant information and the Customer fully indemnifies Lightning Mobility from any and all claims made by the Customer and all other parties.
8.1 All warranties exclude damage or loss attributable to events beyond Lightning Mobility’s control such as, but not limited to, neglect, misuse, storm, lightening, flood fire, collision, modification, unauthorised repairs, interferences, all other events and/or failure to comply with Lightning Mobility’s and/or the manufacturer’s instructions.
8.2 The warranty for defective materials and workmanship on Products assembled by Lightning Mobility shall be 6 months from the date of delivery as defined in the Delivery Clause herein.
8.3 All warranties on Products purchased by Lightning Mobility on the Customer’s behalf shall be the warranty, if any, provided by the manufacturer/seller of those Products and Lightning Mobility shall have no further warranty obligations whatsoever apart from those prescribed by law.
8.4 Lightning Mobility shall have no warranty or any other obligations if the Customer has not fully paid for the Products by the due date for payment.
9. Customers/Distributors Are Not Agents
The Customer and/or any independent distributor or reseller are not agents of Lightning Mobility and shall not enter into agreements or represent themselves as agents, officers or representatives of Lightning Mobility to any parties whatsoever.
10. Intellectual Property
10.1 All intellectual property rights, including but not limited to, drawings, designs, processes, patents, trade marks and copyright to Products and other items developed by Lightning Mobility remain with Lightning Mobility.
10.2 All intellectual property rights for products purchased by Lightning Mobility remain with the suppliers and/or the manufacturer of those products as may be applicable.
11. Force Majeure
Lightning Mobility shall not be liable for any default or delay in delivery of Products or the performance of services due to any act of God, war, power or equipment failure, terrorism, industrial action, fire, flood, storm, tempest and all other events beyond Lightning Mobility’s control.
12. Risk and Insurance
12.1 All risks pass to the Customer upon delivery as defined in these Terms and it is the Customer’s responsibility to arrange insurance.
12.2 If any Products or other property of Lightning Mobility are damaged, destroyed or stolen prior to payment being received by Lightning Mobility and ownership passing to the Customer, Lightning Mobility is entitled to payment in full.
12.3 If the Products or other property of Lightning Mobility are damaged, destroyed or stolen prior to payment being received by Lightning Mobility, Lightning Mobility is entitled to the insurance proceeds for the Products. Presenting these Terms to the Customer’s insurers is sufficient evidence of Lightning Mobility’s rights to the insurance proceeds.
13. Limitation of Liability
The maximum liability of Lightning Mobility for any and all claims made by the Customer or any other parties shall not exceed the purchase price received by Lightning Mobility for the Products. Lightning Mobility shall not be liable for any further payments either to the Customer or to any other parties for any alleged losses, damages, injury, illness, indirect and/or consequential loss and/or expense except
where the Customer is defined as a consumer within the meaning of the Commonwealth Competition and Consumer Act 2010.
14. Payment and Default
14.1 If Lightning Mobility has granted a credit facility to the Customer (which Lightning Mobility is not obliged to provide) the Customer warrants that they shall strictly adhere to Lightning Mobility’s payment terms as contained herein and as may be amended by Lightning Mobility from time to time.
14.2 In the event of default the Customer shall indemnify and reimburse Lightning Mobility for all costs and disbursements in collecting outstanding debts from the Customer which shall include dishonour fees, full legal costs on a solicitor-own-client basis, collection agency costs, investigators costs, court, judgement enforcement and bailiff fees, search agent costs, time, travel and all other collection costs.
14.3 If the Customer breaches any of its obligations Lightning Mobility may exercise all its rights plus suspend or terminate the supply of Products and Lightning Mobility will not be liable for any alleged loss or damage suffered by the Customer or any other parties as a result of Lightning Mobility exercising its rights.
14.4 Lightning Mobility reserves the right to right to charge interest at 2.5% a month from the day the account becomes overdue and compounded monthly until all outstanding moneys have been paid in full.
14.5 If an account is more than 60 days overdue Lightning Mobility reserves the right to charge administration costs of $25 or 10% (whichever is the greater) shall be charged to the Customer and payable immediately.
15. Security for Payment
15.1 If Lightning Mobility allows the Customer extra time to pay moneys or perform obligations for which no guarantees or other securities have been provided, Lightning Mobility may require security for payment including a guarantee by a director or other persons connected with the Customer.
15.2 Any requirement for security or guarantees is without prejudice to other rights or remedies Lightning Mobility may have and does not affect the reservation of title in Products delivered to the Customer.
16. Personal Property Securities Act 2009 (“PPSA”) and Personal Property Securities Register (“PPSR”)
16.1 If the Customer has been granted a credit facility or otherwise owes Lightning Mobility moneys or other obligations for Products or services provided by Lightning Mobility then the Customer consents to Lightning Mobility registering a Security Interest on the PPSR in a manner Lightning Mobility deems appropriate for Products sold to or otherwise provided to the Customer in accordance with these Terms and/or any other agreements with Lightning Mobility and the Customer agrees to provide all assistance required by Lightning Mobility to register such Security Interests.
16.2 The Customer acknowledges and agrees that these Terms create a Security Interest in the Products, and to avoid doubt, the proceeds of sale of the Secured Products for the purposes of the PPSA.
16.3 The Customer acknowledges and agrees that if any part of the Secured Products becomes the inventory of the Customer, the Customer will lodge any security interests on the PPSR and shall not allow any other parties to do so and/or allow any other security interests being raised (including, but not limited to, floating or other charges, liens or pledges) on Lightning Mobility’s Products.
16.4 Lightning Mobility may have a “Purchase Money Security Interest” (“PMSI”) and/or other security interests on the PPSR and in the event that Lightning Mobility has not registered a perfected PMSI on the PPSR the Customer consents to Lightning Mobility registering a PMSI on the PPSR.
16.5 To avoid doubt, the following definitions of the PPSA apply to Lightning Mobility’s Terms: Financing Statement, Financing Change Statement and Security Interest have the same meaning as defined by the PPSA and a Security Agreement is a security agreement created between the Customer and Lightning Mobility in the PPSA.
16.6 The Customer acknowledges and agrees that by placing orders for Products Lightning Mobility’s Terms constitute a Security Agreement for the purposes of the PPSA in such Products and create a Security Interest in Products previously supplied which have not been fully paid for and for Products to be supplied in the future, and to avoid doubt, the sale proceeds of the Products.
16.7 The Customer agrees to do everything Lightning Mobility requests including, but not limited to, signing and completing documents without delay to register and/or perfect any Security Interest and for Lightning Mobility to exercise its rights in connection with the Secured Products and proof that the Customer has complied with these Terms.
16.8 The Customer agrees to indemnify and reimburse Lightning Mobility on demand for any losses and costs incurred by Lightning Mobility in relation to the PPSA, including any registration, or any response to an amendment, demand or a request under section 275 of the PPSA.
16.9 The Customer agrees not to register or permit a third party to register a Financing Statement, a Financing Change Statement or any other document in respect of a Security Interest on Products supplied by Lightning Mobility that have not been fully paid for without the prior written consent of Lightning Mobility being obtained beforehand.
16.10 The Customer agrees to promptly tell Lightning Mobility of any material change in its methods and policies of selling and/or reselling Products provided by Lightning Mobility which would change the nature of proceeds of such sales.
16.11 With regard to sections 95, 96, 115, 125 and any other parts of the PPSA and amendments thereto, Lightning Mobility and the Customer agree that, to the extent allowed by the PPSA, these do not apply to any Security Interests created by these Terms. Furthermore, the Customer waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) together with verification statements unless all such notices are a requirement of the PPSA in which case all notices or documents must be given in accordance with the PPSA.
16.12 To the extent permitted by the PPSA the provisions of sections 127, 129(2) and (3), 132, 134(2), 135, 136(3), (4) and (5) and 137 will not apply to the enforcement of Lightning Mobility’s Security Interests
16.13 With regard to sections 142 and 143 of the PPSA the Customer waives its rights as a grantor and/or a debtor under the PPSA.
16.14 The Customer shall unconditionally approve any actions taken by Lightning Mobility under clauses 16.1 to 16.13.
17. Passing of Title/Reservation of Title
17.1 Notwithstanding the delivery of Products title remains with Lightning Mobility until all moneys have been paid in full and the Customer has fulfilled all its obligations to Lightning Mobility.
17.2 Until all events in 17.1 occur title in the Products and other property of Lightning Mobility that may be in Customer’s possession remains with Lightning Mobility as unpaid vendor and the Customer may only hold the Products as bailee for Lightning Mobility’s benefit. Whilst holding the Products of Lightning Mobility as bailee, the Customer shall ensure they remain identifiable as Lightning Mobility’s Products and safely store and insure them for loss or damage for Lightning Mobility’s benefit. However, failure to ensure they remain identifiable as Lightning Mobility’s Products or to safely store or insure them will not affect the Customer’s obligation to Lightning Mobility as unpaid vendor.
17.3 The Customer holds and agrees to hold the proceeds of any sale of the Products on trust for Lightning Mobility in a separate account into which no other money shall be paid. However, failure to deposit the proceeds of sale into a separate account or to keep the money separate will not affect the Customer’s obligation to deal with the proceeds as trustee of the proceeds for Lightning Mobility.
17.4 For Products on which title has not passed to the Customer, Lightning Mobility can instruct the Customer to return them (or any part of them) to Lightning Mobility if the Customer’s obligations under these Terms have not been fulfilled.
17.5 The Customer will not charge Lightning Mobility’s Products or other property in any way or grant or otherwise give any interest in Lightning Mobility’s Products or other property until clean title passes to the Customer.
17.6 If Lightning Mobility becomes aware of a breach of these Terms or of an insolvency event (or likelihood of such an event) Lightning Mobility and/or any representative of Lightning Mobility may as the invitee of the Customer enter upon or into the premises where Lightning Mobility may believe the Products are stored to inspect and/or remove them and Lightning Mobility shall not be liable for any alleged loss or damage as a consequence of such inspection and/or removal and without being exposed to any claim by the Customer or any other parties for trespass, detinue, conversion or for any other reasons.
17.7 Lightning Mobility can issue proceedings to recover the price of the Products even if ownership has not passed to the Customer.
18. The Commonwealth Competition and Consumer Act 2010 (“CCCA”)
These Terms are not intended to have the effect of contracting out of any provisions of the CCCA except where permitted by law. If the Customer buys Products as a “consumer”, as defined in the Act these Terms shall be subject to protection of consumers’ rights legislation and shall not affect the consumer’s statutory rights.
19. Set Off and Application
19.1 Lightning Mobility shall be entitled to set off against any moneys owed to the Customer an amount equal to the total of all moneys at such time then owed by the Customer or on the Customer’s behalf to Lightning Mobility.
19.2 Lightning Mobility shall be entitled to apply any moneys received from or on behalf of the Customer to any and all amounts owed by the Customer as it sees fit and the Customer waives any rights of notification of any such allocation.
20. No Waiver
No waiver by Lightning Mobility of any rights or provisions of these Terms shall at any time be deemed or implied to limit or exclude any of Lightning Mobility’s rights against the Customer under these Terms.
21. Privacy Act
Customers requesting a credit account (and those who already have an account) and/or the guarantor/s agree and consent to Lightning Mobility obtaining and exchanging credit information from the Customer’s suppliers or other parties nominated by the Customer and for Lightning Mobility to obtain reports and other information from credit reporting agencies and other sources on credit information about the Customer in relation to credit provided by Lightning Mobility and the ability of the Customer to pay its bills as and when they fall due.
Lightning Mobility can cancel orders from credit account Customers without notice if the Customer breaches any conditions of these Terms or becomes or is in jeopardy of becoming insolvent (or dies if the Customer is a natural person) and all outstanding moneys owing to Lightning Mobility shall be payable immediately together with moneys owing to third parties for contracts entered into for the Customer’s benefit.
23. Customer Restructure
23.1 Credit account Customers shall notify Lightning Mobility in writing of any change in their structure, including any change in ownership or sale of any material part of their business within 7 days of any such change. The Customer will be liable to Lightning Mobility for any purchases from Lightning Mobility until such notice is given.
23.2 Lightning Mobility reserves the right to review or withdraw any credit facilities granted to the Customer and to review or cancel any orders upon any change in the Customer’s structure, change in ownership or sale of any material part of its business.
Notices from Lightning Mobility to the Customer are served when delivered by hand, sent by mail, document exchange, facsimile or email and shall be treated as given when: if delivered by hand when delivered; if sent by mail or document exchange, 48 hours after posting; if sent by fax, and/or email when the fax machine confirms transmission or when the email system confirms transmission. A notice given after 5pm and/or on a day which is not a Business Day is treated as given on the next following Business Day.
If a dispute arises between Lightning Mobility and the Customer and a solution thereto is contained in these Terms then such solution shall be a binding full and final settlement of the dispute provided such solution is not in breach of any legislation. If no solution to the dispute exists in these Terms and the dispute cannot otherwise be resolved within 30 days from the date of the dispute then either party can refer the matter to an independent party or mediator. If Lightning Mobility or the Customer fail to agree on a party/mediator the dispute shall be referred to a party/mediator in accordance with the ‘Governing Law and Changes to Terms of Trade’ clause in these Terms. The Customer shall be liable for the full resolution costs and if this contravenes the Governing Law the parties will equally contribute to the resolution costs.
If any part of these Terms is found to be unenforceable for any reason then that part will be severed from these Terms and will not affect
the enforceability of any other part of these Terms.
27. Governing Law and Changes to Terms of Trade
27.1 The laws of Australia apply to these Terms and to all contracts or other agreements between Lightning Mobility and the Customer and are subject to the jurisdiction of the courts and tribunals of New South Wales.
27.2 These Terms can only be amended with the written consent of Lightning Mobility provided such amendment(s) are not in breach of any legislation.
27.3 Lightning Mobility reserves the right to alter these Terms and such changes will be effective from the date these changes are notified to the Customer. The Customer will be deemed to have accepted these Terms and any changes thereto upon placing further orders with Lightning Mobility.
27.4 Lightning Mobility reserves the right to license or sub-contract all or any part of its entitlements and obligations at any time.
Lightning Mobility's terms & conditions are subject to change at anytime where upon notification of these changes will be sent via email.