SIGNARAMA Dandenong
RPW Holdings Pty Ltd T/A Sign-A-Rama Dandenong – Terms & Conditions of Trade
1. Definitions
1.1 “Company” shall mean RPW Holdings Pty Ltd T/A Sign-A-Rama Dandenong and its successors and assigns.
1.2 “Customer” shall mean the Customer or any person acting on behalf of and with the authority of the Customer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Company to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the cost of the Goods as agreed between the Company and the Customer subject to clause 4 of this contract.
2. Acceptance
2.1 Any instructions received by the Company from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Company.
2.4 None of the Company’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Company in writing nor is the Company bound by any such unauthorised statements.
2.5 The Customer undertakes to give the Company not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice).
3. Goods
3.1 The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Company to the Customer.
4. Price And Payment
4.1 At the Company’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Company to the Customer in respect of Goods supplied; or
(b) the Company’s quoted Price (subject to clause 4.2) which shall be binding upon the Company provided that the Customer shall accept in writing the Company’s quotation within thirty (30) days.
4.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At the Company’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable.
4.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.
4.5 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card (no surcharge) - Diners Card will not be accepted, or by direct credit, or by any other method as agreed to between the Customer and the Company.
4.6 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are
expressly included in any quotation given by the Company.
5. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made to the Customer’s address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Company’s address.
5.2 The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
5.3 The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the Goods (or any of them) promptly or at all.
6. Risk
6.1 If the Company retains property in the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Company is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
6.3 Whilst all reasonable care will be taken by the Company, the Company will not be liable for (and the Customer agrees to indemnify the Company against) any damage caused to vehicle paintwork through the removal of previous signage or decals.
7. Customer’s Disclaimer
7.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Company and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement.
8. Defects / Returns
8.1 The Customer shall inspect the Goods on delivery and shall within fifteen (15) days of delivery notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage. For defective Goods, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods.
9. Warranty
9.1 Subject to the conditions of warranty set out in Clause
9.2 the Company warrants that if any defect in any workmanship of the Company becomes apparent and is reported to the Company within five (5) years of the date of delivery (time being of the essence) then the Company will either (at the Company’s sole discretion) repair the defect or remedy the workmanship.
9.2 The conditions applicable to the warranty given by
Clause 9.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
i) Failure on the part of the Customer to properly maintain any Goods; or
ii) Failure on the part of the Customer to follow any instructions or guidelines provided by the Company; or
iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or
iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
v) Fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Company shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Company’s consent.
(c) In respect of all claims the Company shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customer’s claim.
10. The Commonwealth Trade Practices Act 1974 and
Fair Trading Acts
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11. Intellectual Property
11.1 Where the Company has designed or drawn Goods for the Customer, then the copyright in those designs and drawings shall remain vested in the Company, and shall only be used by the Customer at the Company’s discretion.
11.2 The Customer shall indemnify the Company against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Goods or any other deficiency therein. Where the Customer has supplied drawings, sketches, files or logo’s to the Company, the Customer warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Customer agrees to indemnify the Company against any action taken by a third party against the Company.
12. Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all the Company’s costs and disbursements including on a solicitor and own client basis and in addition all of the Company’s nominees costs of collection.
12.3 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due;
or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors;
or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer, then without prejudice to the Company’s other remedies at law:
(i) the Company shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Company shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 12.1 hereof.
13. Title
13.1 It is the intention of the Company and agreed by the Customer that property in the Goods shall not pass until:
(a) The Customer has paid all amounts owing for the particular Goods, and
(b) The Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer, and that where practicable the Goods shall be kept separate until the Company shall have received payment and all other obligations of the Customer are met.
13.2 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership of rights in respect of the Goods shall continue.
13.3 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease.
(b) The Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(c) If the Customer fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the
Goods.
(d) The Customer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Company.
(e) The Customer shall not deal with the money of the Company in any way which may be adverse to the Company.
(f) The Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company.
(g) The Company may require payment of the Price or the balance of the Price due together with any other amounts due from the Customer to the Company arising out of these terms and conditions, and the Company may take any lawful steps to require payment of the amounts due and the Price.
(h) The Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
(i) Until such time that ownership in the Goods passes to the Customer, if the Goods are so converted, the parties agree that the Company will be the owner of the end products.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:
(a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Company and/or the Company’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Company and in the Customer’s and/or Guarantor’s name as may be necessary to secure the said Customer’s and/or Guarantor’s obligations and indebtedness to the Company and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Company’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15. Cancellation
15.1 The Company may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Company shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 At the Company’s sole discretion the Customer may cancel delivery of Goods. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any costs incurred by the Company up to the time of cancellation.
16. Privacy Act 1988
16.1 The Customer and/or the Guarantor/s agree for the Company to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Company.
16.2 The Customer and/or the Guarantor/s agree that the Company may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Customer;
(b) To notify other credit providers of a default by the Customer;
(c) To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
(d) To assess the credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that Personal Data provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Customer and Company or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and/or Goods by the Company, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and
Goods.
16.5 The Company may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
17. Unpaid Company’s Rights
17.1 Where the Customer has left any item with Company for repair, modification, exchange or for the Company to perform any other Service in relation to the item and Company has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Company shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while the
Company is in possession of them;
(c) a right of resale,
(d) the foregoing right of disposal, provided that the lien of the Company shall continue despite the commencement of proceedings or judgement for the Price having been obtained.
18. General
18.1 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.
18.2 All Goods supplied by the Company are subject to the laws of Victoria and the Company takes no responsibility for changes in the law which affect the Goods supplied.
18.3 The Company shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions.
18.4 In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of the Goods.
8.5 The Customer shall not set off against the Price amounts due from the Company.
18.6 The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.7 The Company reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Company notifies the Customer of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party
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