TERMS AND CONDITIONS OF SUPPLY
Definitions of Terms used within this agreement
‘Costs of Goods’ refers to any costs that have been incurred through the production of the Goods, including the materials bought for manufacturing, labour, supply and distribution costs, transportation costs and government fees and charges.
“The Customer” and You” includes your officers, employees, contractors or persons representing to us that that they have the authority to act for you, and to whom we have delivered a quotation or who has placed an order with us.
‘Force Majeure Event’ means any occurrence or non–occurrence as a result of which a party is prevented from or delayed in performing any of its obligations (other than a payment obligation) under these terms and conditions and that is beyond the reasonable control of the party, including forces of nature and action or inaction by a government agency;
‘Goods’ means any product, material, work or design made, created, or manufactured or caused to be made, created or manufactured by us, for distribution or sale pursuant to an Order.
‘Insolvency Event’ means a party:
(a) Becomes an externally administered body corporate within the meaning of the Corporations Act 2001 (Cth) or the equivalent law operating in the country of registration of the party;
(b) Has a controller (within the meaning of the Corporations Act 2001 (Cth) or the equivalent law operating in the country of registration of the party) enter into possession or take control of all or any of its assets or undertaking;
(c) Becomes insolvent within the meaning of the Corporations Act 2001 (Cth) or the equivalent law operating in the country of registration of the party; or
(d) Ceases effectively to carry on its business as contemplated under this Agreement.
“Order’ means the Goods specified in the Acceptance of Order form signed by you in accordance with clause 5.1.
‘Original Artwork’ means any design, artwork, image, or layout created by us pursuant to an Order.
‘Non-quoted Installation costs’ refers to and shall include but not be limited to, costs arising from securing and installing the Goods at the Site which costs are reasonably not known to us at the time of provision of our Quotation and which become apparent in the course of installation including substandard soil conditions or excessive rock ground in and around the Site.
‘Price’ means the value of the Order placed by you with us.
‘‘Progress Claim’ refers to part or all of the Price, to be paid on completion of a stage of the production of the Goods as specified in the Order.
‘Quotation’ refers to any quotation supplied by us for estimation or price of Goods.
‘Site’ refers to your advised place and location where the product is transported & installed.
‘Your Artwork’ means any images and artwork supplied to us by you for the purposes of obtaining a Quotation or completing an Order.
‘us”, “we” or “our” refers to Arvin Enterprise Pty Ltd (ACN 611 843 175) trading as “Sign and Fitouts”.
2. Application of Terms & Conditions:
You agree that these terms and conditions shall apply to all Quotations and Orders, between you and us.
3.1. All Quotations by us for the sale or distribution of Goods to you remains open and valid for acceptance within 30 business days from the date of the Quotation.
3.2. We retain the right to vary, withdraw or cancel the Quotation at any time before it is accepted by you and we are under no liability to you or any third party for any damage, loss or other liability resulting from such variation, withdrawal or cancellation.
3.3. Unless expressly stated, all Quotations exclude the following which remain your responsibility:
3.3.1. Non-quoted Installation Costs;
3.3.2. Cost relating to transportation of the Goods to the Site;
3.3.3. Cost relating Packing of the Goods where you require methods of packing that are not the normal method of packing used by us;
3.3.4. Insurance of the Goods on delivery of the Goods to the Site but before installation commences
3.3.5. Power supply; fees and charges associated with the power supply or connection of power supply.
3.3.6.Fees and charges associated with any traffic control or third party property access to Site.
3.3.7. Any required special permits or engineer calculations including Dial before You Dig locator service.
3.3.8. Any third party approvals required for installation including local council, engineering, body corporate or committee approvals.
3.4. The Quotation is based on the quality of materials and workmanship we consider appropriate for the Goods. We can offer less expensive options where available, however this will affect the quality of the Goods.
3.5. All Quotations are based on the information (including where relevant your Artwork) supplied by you including suitability of materials for the Site and purpose of the Goods. We reserve the right to amend the Price in the Quotation if you change the information or the information supplied is incorrect or not provided at time that we provide the Quotation.
3.6. You acknowledge that the all Quotations estimated dates of delivery are based on our standard working hours from 8am to 5pm and does not include the cost to complete Orders outside these hours. If your Order is urgent and work is required outside of these hours, we will include in the Quotation the cost of those additional hours.
4. Intellectual Property and Supply of Copy
4.1. By accepting the Quotation, you:
4.1.1. Grants us an irrevocable, non-exclusive and royalty free license to use Your Artwork;
4.1.2. Hereby indemnifies and holds us harmless from any claim by any third party arising from the use by us of the Your Artwork.
4.2. Any Original Artwork remains our property until you have paid the Price for the Order pursuant to which the Original Artwork has been supplied, in full.
4.3. Your Artwork must be supplied in right size and scale, acceptable print ready EPS or PDF format with all fonts and lines converted to outlines.
4.4. You agree that whilst we will endeavor to colour match Your Artwork, we use common colours only and some variation from Your Artwork may occur if you have not supplied a specific PMS Colour. Where using vinyl we will ask you to select a colour from a colour chart.
5.1. To accept the Quotation, you must accept the Quotation via the Xero link or by calling us to accept.
5.2. On confirmation by you that you accept the Quotation, in accordance with clause 4.3, the Quotation becomes an Order and is binding on you.
5.3. Work will commence on your Order when you have accepted the Quotation or you have paid a deposit to us, if required.
5.4. If after a Quotation becomes an Order, the costs of a material or a number of materials in total, for production of the Goods that are the subject of that Order have increased by more than 15% of the Price, and we wish to increase the Price to recover the change in the material costs:
5.4.1. We will give written notice to you of our intention to increase the Price with evidence of the increase in material cost;
5.4.2. Within 48 hours of receipt of the written notice, you may without liability to us, cancel the Order; and
5.4.3. If you do not terminate the Order or respond to the Order within the period specified, you are deemed to have accepted the increased Price and the increased Price will be deemed to be the Price for the Order.
6. Rejection or Cancellation of an Order
6.1.Once a Quotation becomes an Order, you may only terminate the Order by written notice to us and on such termination you will be liable to us, on our written demand, for:
6.1.1. If the materials used to manufacture the Goods have been delivered to us and, in our reasonable opinion, are unable to be used for an Order of another customer, the value of the materials so delivered plus all other costs incurred by us in production of the Goods pursuant to your Order; and
6.1.2. 20% of the value of the Order, being an amount that reasonably represents the loss of profit to us for the Order.
6.2. We may, without any liability whatsoever to you elect not to complete an Order if:
6.2.1. You commit an Insolvency Event;
6.2.2. 30 days after notice by us to you of a breach of these terms and conditions, you have failed to remedy the breach in the manner set out in the notice of breach; or
6.2.3. A Force Majeure Event occurs that in our reasonable opinion, will last for a period which means that we will be unable, acting reasonably to comply with the date for delivery.
7. Terms of Payment
7.1. In accordance with the Order, we will issue a tax invoice for payment of the Price or Progress Claims.
7.2. Payment to us must be made in full without any deductions or restrictions for any set offs or counterclaims by you.
7.3. Payment of a Progress Claim specified by us in the Order must be made to us within 7 business days of the date of the invoice.
7.4. Payment of the Price (if no Progress Claims are required) from the earlier of the date of the invoice or before the date of delivery or installation.
7.5. We may charge interest at a rate of 2% above the penalty interest rate (as fixed pursuant to the Penalty Interest Rates Act 1983 from time to time) on any outstanding amount, costs, charges and expenses (include legal costs) incurred by us in the recovery of any overdue payment from the due date specified, until paid.
7.6. If you fail to pay a Progress Claim in accordance with these terms and conditions, we may, on notice to you, immediately cease to prepare your Order.
7.7. If you are a new customer or have not placed an order with us for more than 24 months:
7.7.1. For Orders totaling less than $2,000 (excluding GST) we may require payment of the Price on placement of the Order;
7.7.2. For Orders totaling $2,000 (excluding GST) and up to $15,000 (excluding GST) we may require payment of 50% of the Price on placement of the Order; and
7.7.3. For Orders totaling more than $15,000 (excluding GST) we may require payment of 30% of the Price on placement of the Order.
7.8.Any amount paid by you pursuant to clause 7.5 or as a Progress Claim is not refundable if the Order is subsequently terminated by either party before the Order is complete.
7.9. If you fail to provide delivery or installation instructions within 7 business days of a request issued by us for such information, we may charge for storage of the Goods pending receipt of the delivery advice.
7.10. Notwithstanding the required arrangements for payment above, if you wish to pay by credit card, a separate service fee will be charged by the us. Such service fee will be separate from the Quotation and Order. Customers are not obliged to pay by credit card. The service fee for payments made by credit card (Visa and MasterCard) will be on charged as 1.5% of the amount invoiced. These percentages are subject to change from time to time at the our discretion but are to recover the average cost incurred by us in accepting payments by credit cards. These service fees comply with the Reserve Bank of Australia Surcharging Standard issued in March 2013.
8. Product completion
8.1. An estimated completion date of the Order is included in the Order.
8.2. Whilst we will do everything we reasonably can to ensure we complete your Order by the date estimated in the Order:
8.2.1. If we reasonably believe that we will cannot meet the estimated completion date, we will notify as soon as reasonably possible in writing; and
8.2.2. You agree that we will not be liable for any penalties or damage incurred by you either direct or indirect for any failure complete the Order by the estimated completion dates provided to you.
8.3. You agree that estimated completion date will be based on:
8.3.1. Full cooperation by you;
8.3.2. Availability of any goods from other suppliers;
8.3.3. Timely access to the Site location for the purpose of installation of the Goods to be arranged by you;
8.3.4. Any necessary council or government permits or approvals to be arranged by you; and
8.3.5 Where installation is included in the Order, that working conditions are reasonable and safe, as we do not install in extreme wind, storm, and rain or heat conditions.
9. Product Design, Specifications & Variation
9.1. You are solely responsible for the correctness of any information regarding Your Artwork and specifications of the Goods provided to us.
9.2. We will not be liable or incur any loss, damage or any other liability directly or indirectly resulting from supplied design plans and specifications for the product that do not meet Australian standards which are manufactured by us.
9.3. Any variations to the product need to be formally presented in writing to us. After review of the variations we will notify you in writing of the change to the Price arising from the variation. If you wish to accept the variation to the Price you must sign the notice and return it us, within 7 days of receipt, by email to firstname.lastname@example.org. If you do not return the form or do not advise in writing that you do not consent to the change in Price, you will be deemed to have accepted the change in Price and we shall proceed with the Order as varied and these terms and conditions will apply to the varied Order. If you do advise in writing that you to not accept the change in Price, we will discuss your concerns with you and try to reach an agreement on the Price. If 7 days after you rejected the change in Price, we are unable to agree a varied Price; we may terminate the Order without liability to you and without affecting our rights under these terms and conditions and at law.
9.4. If the Price for an Order is less than $40,000 and the Goods are not going to on-sold by you, the following applies to that Order:
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
- to cancel your service contract with us; and
- to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
9.5 Returns and warranties are offered by us in accordance with the following:
9.5.1. Returns will only be accepted if Goods are not supplied in accordance with your Order or are defective in quality and are returned in accordance with this clause 9.5.
9.5.2. Any defective Goods must be reported to us in writing within 7 days of pickup/delivery, and no claims will be accepted after this time, unless otherwise agreed or clause 9.4 applies.
9.5.3. We provide a one (1) year limited warranty to you covering defects in materials and workmanship. You must notify us in writing within one year of the delivery date. On such notification we may inspect the Goods and we will determine if the Goods are faulty. Our warranty does not cover vandalism, misuse and alterations made by you. Our warranty is limited to the cost of the product only
9.5.4. For our one year warranty to be valid for vehicle signage, you must return the signed vehicle for a check up within 2 weeks of delivery date.
10.1. If required by the Order, subject to this clause 10, we shall deliver and install the Goods for you at the Site.
10.2. You are solely responsible for the accuracy of any information regarding delivery and installation provided to us.
10.3 If we arrive at the Site to install the Goods, and the SIte is not available for us to complete installation or it is not safe to complete installation due to conditions at the Site, we are entitled to charge the cost of delivery or for any extra hours required to install at an hourly rate of $70 per hour per person (plus GST).
10.4. If a Force Majeure Event occurs, we will not be liable to you for any loss suffered by you arising from a failure to deliver or for delay in delivery of the Goods.
10.5. A Force Majeure Event does not relieve you from any obligation under these terms and conditions to pay for any Goods already delivered or to refuse to accept delivery of Goods sought to be delivered by us within a reasonable time (taking into account the type and complexity of the Order) after the estimated delivery date specified in the Order.
10.6. Where a site survey is required, we may issue a Quotation for the site survey separate to the Quotation for the Goods and make the Quotation for the Goods subject to us being satisfied that the Goods can be installed at the Site. If you supply the Site details and do not engage us to complete a site survey, you acknowledge and agree that we have no liability to you if the Goods are not suitable for the Site and you accept liability for any Non-quoted Installation Costs arising on delivery of the Goods to the Site.
10.7. If you do not require us to install the Goods at the Site, we will have no liability to you arising from the Goods not being suitable for the Site or for you being unable to install the Goods at the Site at all or in accordance with the intended installation of the Goods.
11. Risk and Title
11.1. Risk in the Goods passes to you on delivery by us to your Site.
11.2. If installation is included in the Order, the risk in the Goods passes on delivery of the Goods to the site and risk in the installation passes to you on completion of the installation.
11.3. Title in the Goods passes to you on payment of the Price in full.
12.1. Defined terms used in this clause 12 have the same meaning as given to them in the Personal Property Security Act 2010 (Cth) (PPSR).
12.2. You acknowledge that:
12.2.1. an Order forms a contract between us with these terms and conditions;
12.2.2. the Order constitutes a Security Agreement and gives rise to a Purchase Money Security Interest (PMSI) in favour of us over the Goods, which you as Grantor, grant to us as collateral; and
12.2.3. we may register the PIMSI on the Personal Property Security Register (PPSR).
12.3. The Goods supplied or to be supplied under an Order fall within the PPSA classification of “other Goods” acquired by you pursuant to these terms.
12.4.You waive your right to any of the following under the PPSA:
12.4.1. receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by you, as Grantor, to us;
12.4.2. receive notice of removal of an Accession under section 95;
12.4.3. receive notice of an intention to seize Collateral under section 123;
12.4.4. receive notice of disposal of Collateral under section 130;
12.4.5. receive a statement of Account if there is no disposal under section 130(4);
12.4.6. vi)receive notice of retention of Collateral under section 135; vii) redeem the Collateral under section 142;
12.4.7. reinstate the security Agreement under section 143;
12.4.8. object to the purchase of the Collateral by the Secured Party under section 129; and
12.4.9. receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
12.5. You agree that, to the extent permitted by law, nothing in sections 130 to 143 or the PPSA will apply to, or the Security under, these terms and conditions.
13.1. Without excluding, restricting or modifying the rights and remedies to which you may be entitled under the consumer guarantees provisions of the Australian Consumer law or our liabilities under those provisions:
13.1.1. To the extent permitted by law, we exclude all other implied terms and warranties, whether statutory or otherwise, relating to the Goods; and
13.1.2. We will not be liable to you for indirect and/or consequential loss arising from or connected to this agreement in contract, tort, under any statute or otherwise (including, without limitation, for loss of revenue, loss of profits, failure to realise expected profits or savings, loss or corruption of data and any other commercial or economic loss of any kind);
13.1.3. Our liability to you under these terms and conditions, by statute or in negligence for any loss not otherwise excluded, is excluded to the extent you cause or contribute to the loss or damage.
13.2. You agree to indemnify us and keep us, our agents, employees and contractors indemnified, from all claims, demands, actions or suits arising from:
13.2.1. Any loss or damage to any property or death or injury to any person or persons in connection with the supply to and the use of the Goods by you; and
13.2.2. infringement by us arising from our use of your Artwork.
14. Governing Law
These terms and conditions are governed by the laws of the State of Victoria and of the Commonwealth of Australia. If you are ordering from overseas, by placing your order you are acknowledging that the laws of Australia apply to your order.
15.1. Notices and other communications relating to these Terms and Conditions must be served:
15.1.1. personally on the person or if to a natural person, by leaving it at or posting it by prepaid registered post to the person’s current address for service;
15.1.2. if to a company, by addressing it to the company and leaving it at or posting it by prepaid registered post to the person’s current address for service;
15.1.3. by facsimile to the person’s current number for service; or
15.1.4. by any other method authorized by law.
15.2.Particulars for service
15.2.1. The particulars for service are on us are:
address: 8/1 Bell Street, Preston
15.2.2. The particulars for service are on you is the address and email address set out in the Order.
15.3. Each party may change its particulars for service by written notice to each other party.
16. Customer Acknowledgement of Terms of Sale
You acknowledge that by confirming the Order in accordance with clause 5.1, you have the authority to accept these terms and conditions on behalf of the Customer and that you have read the above Terms of Sale and accepted these terms before proceeding with approval and authorisation of any Quotation or Order.