TERMS & CONDITIONS

1. Definitions

1.1
“Seller” means Letragrafic Group Pty Ltd T/A Letragrafic Signs, its successors and assigns or any person acting on behalf of and with the authority of Letragrafic Group Pty Ltd T/A Letragrafic Signs.
1.2
“Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3
“Goods” means all Goods or Services (including any product, material, work or design of the Seller made, created or manufactured for the sole distribution or sale by the Seller to the Customer) supplied by the Seller to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4
“Quotation” means any order, tender or quotation requested from the Seller by the Customer for the estimation or Price of requested Goods. By approving the Quotation, the Customer is bound by these terms and conditions.
1.5

“Price” means the cost of the Goods (including transportation costs, government fees and charges costs, contracting costs and equipment costs) as agreed between the Seller and the Customer in accordance with clause 4 below, and includes any Additional Costs as notified by the Seller to the Customer.

1.6

“Additional Costs” means the costs incurred, or to be incurred, by the Seller in addition to any Price quoted by the Seller for the purpose of obtaining products and materials, undertaking service hours, travel, overnight accommodation, and any other incidental charges necessary for the Seller to supply the Goods to the Customer.

1.7

“Site” means the Customer’s nominated place and location to where the Goods are transported and installed.

2. Acceptance

2.1
By submitting an order for the supply of Goods by the Seller (either in writing by official company order or other document signed by the appropriate authorised officer employed for, or acting on behalf of, the Customer, or online), and subject to clause 28.9 below, the Customer confirms that they have read, understood and have exclusively accepted (and are immediately bound, jointly and severally by) the following terms and conditions. These terms and conditions form a binding agreement between the Seller and Customer for the supply of Goods.
2.2 These terms and conditions:
(a)
are meant to be read in conjunction with the Terms and Conditions posted on the Seller’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail; and
(b)
may only be amended with the Seller’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Seller.
 
2.3
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.4

These terms and conditions are exclusive to the Customer, and the Customer must not allow, nor authorise, any other person or entity to purport to instruct the Seller with regards to the supply of Goods during the term of this agreement.

2.5 The Customer acknowledges that:
(a)
Goods supplied by the Seller may be subject to availability and only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order, notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade;
(b)
any advice, recommendation, information, assistance or service provided by the Seller in relation to supply of the Goods is given in good faith, is based on the Seller’s own knowledge and experience and shall be accepted without liability on the part of the Seller and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Goods;
 
(c)
where colour matching is required, the Customer agrees to supply information and samples regarding the correct colour;
 
(d)
the Seller reserves the right not to supply the Goods, or refuse the acceptance of any Copy, at any time for any reason (including where such, in the Seller’s opinion is or may be unlawful, offensive or does not comply with clause 8.2, or is otherwise inappropriate), and the Seller shall not be liable to the Customer for any such action;
 
(e)
the Seller will endeavour to install the Goods at any points requested by the Customer; however they cannot always do so and shall not be liable to the Customer where any Goods are installed at any point other than the one requested.
 
2.6 These terms and conditions may be meant to be read in conjunction with the Seller’s Loan/Hire Form, and:
(a)
where the context so permits, the terms ‘Goods’ or ‘Services’ shall include any supply of Equipment, as defined therein; and
(b)
if there are any inconsistencies between the two documents then the terms and conditions contained therein shall prevail.
 

3. Change in Control

3.1
The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.

4. Price and Payment

4.1  At the Seller’s sole discretion the Price shall be either:
(a)
as indicated on any invoice provided by the Seller to the Customer; or
(b)
the Seller’s quoted price (subject to clause 5) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
The Seller reserves the right to vary or withdraw or cancel the Quotation at any time before it is accepted by the Customer. The Seller is under no liability to the
Customer or any third party for any damage, loss or other liability resulting from such variation, withdraw or cancellation. The Customer’s written acceptance of the
Quotation is not effective until received by the Seller. The Customer acknowledges that all Quotations are based on the Seller’s standard labour working hours of
7:00am to 5:00pm from Monday to Friday, and does not include overtime for the completion of the Goods; however, the Seller may agree to (for a further fee payable
by the Customer) supply overtime labour where requested by the Customer. All Quotations are subject to final analysis of the Site, including but not limited to,
dimensions, conditions and restrictions. Unless expressly stated otherwise, the Quotation excludes the following:
(i)
transportation costs (including packing, crating, insurance and delivery costs);
(ii)
power supply (such as fees and charges associated with the power supply or connection of power supply);
(iii)
any saw cutting of concrete slabs (if needed) to dig holes for post fittings;
(iv)
any tree or root removal, digging land out or removal of soil from the Site;
(v)
once the Goods (or hoarding) has been installed, the removal or disposal of the erected Goods (or hoarding);
(vi)
site specific EBAs, Site allowances or safety course and inductions;
(vii)
(applicable to neon signs) an OCM, which is a safety device that is internally installed in the transformer and is designed to isolate the
secondary side of the transformer and switch off when open circuit or ground fault conditions are detected. Open circuit protection is required in most
applications by Australian standards;
(viii)
special arrangements and any additional Goods not expressly provided for in the Quotation (including, but not limited to, additional services listed in clause 5), shall be charged for on the basis of the Quotation and will be shown as a variation on the invoice;
(ix)
fees and charges associated with any traffic control or third property access to the Site;
(x)
any required special permits or engineer calculations that may be applicable;
(xi)
alteration to quoted works;
(xii)
any other problems which cause Additional Costs to be incurred by the Seller for Delivery, and which were not advised to the Seller by the Customer before the issue of any Quotation for the Goods.
4.2 Once the Quotation is accepted and approved by the Customer:
(a)
the Customer may only cancel the agreed Quotation by formal written notice to the Seller, and the Customer will incur liability for the cancellation of the Goods as per clauses 21.2 and 21.3; and
(b)
where the Customer has no prior trading history established (in the past or current period) with the Seller, and where the Price is equal to five hundred dollars ($500) or less, the full amount shall become due and payable prior to commencement of the Goods.
 
4.3
Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by the Seller, which may be:
(a)
upon acceptance of the Seller’s quotation, as per sub-clause 4.2(b);
(b)
by way of instalments/progress payments in accordance with sub-clause (d) (where the Quotation totals above three thousand dollars ($3,000.00);
(c)
the date specified on any invoice or other form as being the date for payment; or
(d)
failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by the Seller.
4.4
Payment may be made by cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and the Seller, and the Customer acknowledges and agrees that larger payments cannot be split into smaller amounts.
4.5
Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

5. Variations

5.1
The Seller reserves the right to review and amend the Quotation (and Price) during the term of the agreement:
(a)
upon assessing the Site (including any Additional Costs that are necessary or incidental to the completion of the Goods); or
(b)
if a variation to the Quotation is requested by the Customer, including:
(i)
where distributor materials costs have increased between the time the Quotation is approved and accepted by the Customer and before Delivery;
(ii)
where the Seller is required to recreate the Customer’s artwork that is not complete or “print-ready” as per clause 6.3;  Any artwork submitted in an incomplete state will require a re-quotation with the result that the signage prices and delivery time frames originally indicated for the product will no longer apply.  If file correction and or conversion is required is required for any material forwarded by the client, a fee of $120 per hour + GST will be applied in 15 minute increments.
(iii)
where the Quotation is based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good “copy”, any extra services or cost caused by any variation by the Customer of their original instructions or by the aforementioned being, in the Seller’s opinion, poorly prepared, or by the Customer’s requirements being different from those originally submitted or described;
(iv)
where additional services are required to make the Site and/or surface suitable and safe for the installation of the Goods;
(v)
experimental work, preliminary sketches and designs and origination costs produced at the Customer’s request, which will be charged for, even if the job does not proceed further;
(vi)
any tabulated work and/or foreign language included in the job but not contained in the “copy” originally submitted;
(vii)
any fonts, or colour proofs, or stock photos, or artwork, specially bought at the Customer’s request for the supply of the Goods;
(viii)

when style, type or layout is left to the Seller’s judgement, and the Customer makes further alterations;

(ix)
any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Customer, and deemed necessary by the Seller to ensure correctly completed Goods;
(x)
any variation as a result of fluctuations in currency exchange rates or increases to the Seller in the cost of taxes, levies, materials and labour;
(xi)
where the performance of this agreement with the Customer requires the Seller to obtain products and/or services from a third party, this agreement shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to the Seller, and the Customer shall be liable for the cost in full including the Seller’s margin of such products and/or services;
(xii)
 any packing of Goods, other than the Seller’s normal commercially acceptable packing, requested by the Customer will be charged as an extra, unless expressly stated in writing on the Quotation.
(c)
and, any variation to the Goods requested by the Customer after acceptance of the Quotation and during the term of this agreement need to be formally presented in writing to the Seller. After review of the variations indicated in writing, the Customer shall be liable to pay all costs incurred by the Seller in performing any additional work or any alterations of work in progress. The Customer will grant reasonable timeframe extensions to any additional work and labour required to meet the requested variations, as indicated in the written advice by the Customer. Payment for all variations must be made in full at their time of completion.

6. Customer’s Responsibilities and Obligations

6.1
The Customer agrees that:
(a)
before accepting the Quotation, the Customer:
(i)
acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in the Seller’s (or manufacturer’s) fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of this agreement, unless expressly stated as such in writing by the Seller; and
(ii)
has satisfied itself as to the suitability, condition and fitness for purpose of the Goods for the job it intends to use the Goods for. The Seller makes no representations and give no guarantee or warranty that the Goods are suitable for the Customer’s intended purpose;
(b)
the Seller shall not be liable for any penalties or damage either direct or indirect for any failure to commence or complete the Goods by the estimated date/s provided by the Customer;
(c)
estimations of completion dates will be based on the provisions of full cooperation from the Customer, any materials from other suppliers, access to the Site for the purpose of Delivery (which shall be the Customer’s sole responsibility), any necessary council or government permits or approvals (which shall be the Customer’s sole responsibility, unless otherwise stated;
(e)
 in the event asbestos or any other toxic substances are discovered at the Site that it is their responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify the Seller against any costs incurred by the Seller as a consequence of such discovery. Under no circumstances will the Seller handle removal of asbestos product.
6.2
The Customer:
(a)
shall ensure that the Seller has clear and free access to the Site at all times to enable them to effect Delivery and/or install the Goods. Whilst the Seller will take all due care during Delivery (and/or installation), the Seller shall not be liable for any loss or damage caused in accessing the Site and/or installation the Goods, beyond the reasonable control of the Seller, (including, without limitation, damage to ceilings, tiles, pavers and panels, face brickwork and rendered masonry services, pathways, driveways and concreted or paved or grassed areas) which the Seller may have to break or disturb in delivering the Goods, unless due to the negligence of the Seller;
(b)
warrants that the structure of the Site, building or wall in or upon which the Goods are to be installed or erected is sound and will sustain the installation and Services incidental thereto, and the Seller shall not be liable for:
(i)
any movement in the Goods due to consolidation, or the movement of soil or any other component of the fencing (where applicable); and/or
(ii)
any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the installation and Services incidental thereto.
(c)
shall, unless specifically included in the Quotation, provide the Seller with a suitable free power source.
6.2
The Customer agrees to provide timely and specific instructions to the Seller regarding the supply of the Goods during the term of this agreement, and in particular will supply to the Seller upon acceptance of the Quotation, all complete or “print-ready”/final artwork (shop drawings) in either Ai, EPS, or Hi res PDF formats. All text must be outlined.
6.4
The Customer will allow the Seller to enter the Site:
(a)
prior to commencement of the Goods to assess the complexity of the Site work involved and amend the Quotation as necessary;
(b)
prior to Delivery to set up a safe and complaint site and to ensure the work commences on schedule; and
(c)
 after completion of the work to take down any equipment.
6.5
The Customer shall be solely responsible for:
(a)
any latent conditions of the Site;
(b)
the removal of any office spaces (e.g. desks, furniture, computers, cables, picture frames, etc.), existing signage (including existing footings), trees, vines and shrubs to allow the Seller clear access along any proposed fence line prior to Delivery, unless otherwise agreed in writing between the parties.
6.6
In the event the Customer fails to provide instructions regarding Delivery within ten (10) business days of a request issued by the Seller for such information, the Seller reserves the right to charge the Customer for storage of the Goods pending Delivery advice from the Customer.
6.7
The Customer shall not be relieved from any obligation to accept or pay for the Goods by reason of any delay in Delivery or dispatch.

7. Samples and Proof Reading

7.1
The Seller is under no obligation to provide samples of the Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by the Seller to match virtual colours with physical colours or to the design proof, the Seller will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between virtual or physical samples and either the same displayed on the Customer’s computer and/or the supplied Goods. Should a physical sample be required, this will be provided on request by the Customer and will be charged for as an extra, including return freight, and the charges will be contra against the final invoice.
7.2
Whilst every care is taken by the Seller to carry out the instructions of the Customer, it is the Customer’s responsibility to undertake a final proof reading of the Goods. The Seller shall be under no liability whatever for any errors not corrected by the Customer in the final proof reading, and should the Customer’s alterations require additional proofs this shall be invoiced as an extra in accordance with clause 5.

8. Copy

8.1
The Seller shall be entitled to rely on the accuracy of any plans, designs, specifications, measurements and other documentation and/or information (including CAD drawings) provided by the Customer, including any artwork and instructions relating to Delivery (“Copy”). The Customer acknowledges and agrees that:
(a)
if the giving of the Quotation for the supply of Goods involves the Seller estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of the Seller’s estimated measurements and quantities, and should the Customer require any changes thereto, the Customer shall request such changes in writing, prior to the Customer accepting the Quotation.
(b)
in the event that any Copy provided by the Customer is inaccurate, the Seller will not be liable or incur any loss, damage or other liability (directly or indirectly) resulting from the Goods are manufactured by the Seller in reliance of the Copy, including Goods that do not meet Australian Standards.
8.2
The Customer acknowledges that all Copy supplied to the Seller is subject to the approval of the Seller and may, regardless of prior approval, be rejected and removed by the Seller.
8.3
The Customer warrants that all Copy supplied the Seller to be used for the supply of the Goods shall:
(a)
be true and correct in every particular; and
(b)
does not contain Prohibited Content; and
(c)
be non-political and non-religious by nature, and suitable for viewer of all ages; and
(d)
not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
(e)
complies with all laws, regulations, codes of practice, guidelines and any standards applicable to the building and/or advertising industry and as determined by any relevant regulatory agency or industry self-regulatory body (including, but not limited to, the Building Act 1993, the Fair Trading Act 2012 and the Advertising Codes of Practice of the Advertising Standards Authority Inc.); and
(f)
does not infringe copyright, trademark or any other legal rights of another person and/or entity (including the name and image of any person without their consent, etc.); and
(g)
does not contain anything which may give rise to any cause of action by a third against the Seller (including, but not limited to, material that may cause damage or injury to any person and/or entity); and
(h)
is not false or misleading and is true in substance and in fact; and
(i)
not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Competition and Consumer Act 2010 (Cth) or any other Commonwealth legislation of the applicable State;
(j)
not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Competition and Consumer Act 2010 (Cth) or any other Commonwealth legislation of the applicable State;
8.4
The Customer shall indemnify, and keep indemnified, the Seller at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against the Seller, or incurred or become payable by the Seller, resulting or arising from the Customer being in breach of clause 8.2
8.5
Imprints or any legal obligations required to appear on the Goods are the responsibility of the Customer. The Seller reserves the right to place its imprint on all Goods supplied by the Seller, unless specifically agreed to otherwise between the parties.

9. Delivery

9.1

Delivery of the Goods (“Delivery”) is taken to occur at the time that the Seller (or the Seller’s acting agents or contractors) delivers and installs the Goods at the Site, even if the Customer is not present at the address, and acknowledgement by the Customer (or the Customer’s agent) in writing that the Goods were supplied shall be conclusive proof of Delivery by the Seller.

9.2

At the Seller’s sole discretion, the costs of Delivery are either included in, or in addition to, the Price.

9.3

The Customer must take Delivery (by receipt of the Goods) whenever they are tendered for Delivery. In the event that the Customer is unable to take Delivery as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage (including any other costs incurred by the Seller as per clause 9.6). The Seller may store the Goods, or have them stored, by any method which the Seller (at its sole discretion) deems fit, and notwithstanding any instruction (verbal or otherwise) that the Goods are to be stored in a certain manner.

9.4

The Seller may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

9.5

Any time or date given by the Seller to the Customer (including lead times) is an estimate only and based on the best available information at the time a Quotation is supplied to the Customer. Whilst the Seller will apply its best endeavours to nominate an achievable supply date acceptable to the Customer and to supply the Goods in accordance with that date, the Customer must still accept Delivery even if late and the Seller will not be liable for any loss, damage or any other liability directly or indirectly incurred by the Customer as a result of any delay in Delivery. Furthermore, the Seller shall not be liable for failure to deliver or for delay in Delivery arising from any cause whatsoever beyond the Seller’s control, including without limitation any event under clause 28.8, and notwithstanding any written warranty guaranteeing a date of Delivery, the time for Delivery will be extended for a reasonable period having regard to the effect of the cause of the delay on the manufacture or Delivery.

9.6

The Customer accepts and acknowledges that in the event that the Seller is denied access to the Site on the agreed date of Delivery, then the Seller reserves the right to charge the Customer for all costs incurred by the Seller (including, but not limited to, any loss of profits, employee wages, mileage up to a minimum charge of ten percent (10%) of the Price).

9.7
From time to time the Seller may leave height access machinery on the Site for recovery at a later date. In this instance the Customer acknowledges and agrees that:
(a)
the title to such machinery remains with the Seller and the Customer must not use, or allow the use, of the machinery other than by the Seller; and
(b)
the Customer shall supply the Seller a safe area for storage and shall take all reasonable efforts to protect the machinery from possible destruction, theft or damage. In the event that any of the machinery is destroyed, stolen or damaged, then the cost of repair or replacement shall be the Customer’s responsibility.

10. Risk

10.1

Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.

10.2

If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

10.3

If the Customer requests the Seller to make Delivery to an unattended location then such Goods shall be left at the Customer’s sole risk.

10.4
The Customer:
(a)
that Goods supplied may:
(i)
exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time. The Seller will make every effort to match batches of product and/or sales samples supplied in order to minimise such variations, but due to the difference in materials available (and manufacturing standards and tolerances), such variations shall not deemed to be a defect in the Goods and the Seller shall not be liable in any way whatsoever where such variations occur; and
(ii)
any movement in the Goods due to consolidation, or the movement of soil or any other component of the fencing (where applicable); and/or
(iii)
mark or stain if exposed to certain substances; and
(iv)
be damaged or disfigured by impact or scratching.
(b)
that if the Customer requires the Goods to be installed on:
(i)
façade the Seller shall not be responsible for any repairs that may be required due to any heritage listing; or
(ii)
council land or a point that is situated on or obstructs any neighbouring property and/or advertisement, the Seller shall not be held responsible in any way.
(c)

that some buildings may not have the optimum orientation for the installation of the Goods (or components thereof), and the Customer therefor understands and accepts that the performance of the Goods may be compromised in such situations. Notwithstanding the former, the Seller will use its best endeavours to install and position the Goods to maximise performance thereof;

(d)

the Seller shall not be held liable for inks wearing off through general wear and tear;

(e)

due to Goods being installed for a long period of time (in some instances, more than ten (10) years) evidence of fixings and adhesive will be present after removal thereof; paint, mortar and panel material may even give way and flake off during removal. Whilst the Seller will take the utmost of care when removing the Goods, impressions thereof may be left thereafter. If filling, sanding and painting is required, the Seller will supply the Customer a separate Quotation to carry out the additional services at a later date;

(f)

due to the use of large access machinery, evidence of tread may be left on concrete footpaths and concrete pads underneath where the Goods are to be installed and/or in landscaping from the curb to the installation point of the Goods, and the Seller shall not be held responsible or liable:

(i)
in the event of any cracking of concrete paths due to the weight of machinery; and
(ii)
in the event of tread marks due to soft soil base.
10.5

The Seller shall not be liable for any claim for losses, damages or costs arising from defective work and/or materials provided by other tradesmen. It shall be the Customer’s responsibility to ensure the work of other tradesmen (whether it installing the Goods supplied by the Seller, or other interactive and/or supportive components as per the manufacturer’s instructions or recommendations).

10.6

Where the Seller gives advice or recommendations to the Customer, or their agent, regarding any matter relating to the supply of Goods (including, but not limited to, conduit to cover exposed cabling, the use of an OCM, etc.), and such advice or recommendations are not acted upon, then the Seller shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent installation of the Goods.

11. Underground Locations

11.1

Location of underground services by a licensed service locator is mandatory prior to commencement of any Services. The Customer must consult all service providers for an “on-site service location” and any potential underground services should be clearly marked on the Site, including but not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, water irrigation systems and any other services that may be on the Site. Whilst the Seller will take all care to avoid damage to any underground services, the Customer agrees to indemnify the Seller in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified. The Customer will be warned that “Dial Before you Dig” is of no use in fencing on private properties and must not supply or reply on this information solely. If the Customer requests the Seller to engage the service locator then this shall be in addition to the Price.

12. Compliance with Laws

12.1

The Customer and the Seller shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation (including, but not limited to, Safe Work Method Statements (SWMS) and Job Safety Analysis (JSA)).

12.2

The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Services.

13. Title

13.1
The Seller and the Customer agree that ownership of the Goods shall not pass until:that:
(a)
the Customer has paid the Seller all amounts owing to the Seller; and
(b)
the Customer has met all of its other obligations to the Seller.
13.2

Receipt by the Seller 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 Seller’s rights and ownership in relation to the Goods, and this agreement, shall continue.

13.3
It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 13.1:
(a)
the Customer has paid the Seller all amounts owing to the Seller; and
(b)
the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c)
the Customer must not offer, sell, assign, sub-let, charge, mortgage, pledge or create any form of security interest over, or otherwise deal with the Goods in any way, dispose, or otherwise part with possession of the Goods other than with the written permission of the Seller and in the ordinary course of business and for market value. The Customer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
(d)
the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs.
(e)
the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods are kept and recover possession of the Goods.
(f)
 the Seller may recover possession of any Goods in transit whether or not Delivery has occurred.
(g)
the Seller may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Customer.
 

14. Personal Property Securities Act 2009 (“PPSA”)

14.1

In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

14.2

Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Customer to the Seller for Services – that have previously been supplied and that will be supplied in the future by the Seller to the Customer.

14.3
The Customer undertakes to:
(a)
promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to;
(i)
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii)
register any other document required to be registered by the PPSA; or
(iii)
correct a defect in a statement referred to in clause 14.3(a)(i) or 14.3(a)(ii);
(b)
indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c)

not register a financing change statement in respect of a security interest without the prior written consent of the Seller;

(d)

not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Seller;

(e)

immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

14.4

The Seller and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

14.5

The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

14.6

The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

14.7

Unless otherwise agreed to in writing by the Seller, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

14.8

The Customer must unconditionally ratify any actions taken by the Seller under clauses 14.3 to 14.5.

14.9

Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

15. Security and Charge

15.1

In consideration of the Seller agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

15.2

The Customer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.

15.3

The Customer irrevocably appoints the Seller and each director of the Seller as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.

16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

16.1

The Customer must inspect the Goods on Delivery and must within forty-eight (48) hours of such time notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or Quotation. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Seller to inspect the Goods.

16.2

Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).

16.3

The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

16.4

Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.

16.5

If the Customer is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of Schedule 2.

16.6

If the Seller is required to replace the Goods under this clause or the CCA, but is unable to do so, the Seller may refund any money the Customer has paid for the Goods.

16.7
If the Customer is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the Goods is:
(a)
limited to the value of any express warranty or warranty card provided to the Customer by the Seller at the Seller’s sole discretion;
(b)
limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods;
(c)

otherwise negated absolutely.

16.8
Subject to this clause 16, returns will only be accepted provided that:
(a)
the Customer has complied with the provisions of clause 16.1; and
(b)
the Seller has agreed that the Goods are defective; and
(c)
the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d)
the Goods are returned in as close a condition to that in which they were delivered as is possible.
16.9
Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a)
the Customer failing to properly maintain or store the Goods;
(b)
the Customer using the Goods for any purpose other than that for which they were designed;
(c)
the Customer continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d)
the Customer failing to follow any instructions or guidelines provided by the Seller;
(e)
fair wear and tear, any accident, or act of God.
16.10

Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.

17. Intellectual Property

17.1
Where the Seller has designed, drawn or developed Goods for the Customer (including any drawings, sketches, paintings, photographs, designs or typesetting furnished by the Seller, dummies, models or the like devices made or procured and manipulated by the Seller, and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from the Seller’s original design, or from a design furnished by the Customer), then the copyright therein shall remain the property of the Seller (unless otherwise agreed upon writing between the parties), and:
(a)
shall only be used by the Customer at the Seller’s sole discretion; and
(b)
notwithstanding sub-clause (a), shall not be used for any purpose other than that nominated by the Seller, and the Seller shall be entitled to compensation from the Customer for any unauthorised use thereof.
17.2

The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.

17.3

The Customer agrees that the Seller may (at no cost) use for the purposes of marketing, publication or entry into any competition, any documents, designs, drawings or Goods (or digital media thereof) which the Seller has supplied to the Customer either during construction (and upon completion), and copyright in any utilised images shall remain vested in the Seller.

18. Confidentiality

18.1

Each party agrees to treat all information (including this agreement) and ideas communicated to them by the other confidentially, and further agrees not to divulge it to any third party without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.

19. Sub-Contractors

19.1
The Customer hereby authorises the Seller (if it should think fit to do so) to engage sub-contractors for the carriage of any Goods, or the provision of any Services that are the subject of this agreement, to which the following shall apply:
(a)
any such arrangement shall be deemed ratified by the Customer on delivery of the Goods to such sub-contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as the Seller. In so far as it may be necessary to ensure that such sub-contractor shall be so entitled, the Seller shall be deemed to enter into this agreement for its own benefit and also as an agent for the sub-contractor;
(b)
the Customer agrees not to employ, contract, sub-contract or utilise in any way any sub-contractor of the Seller and/or agrees to pay any invoice relating to the services provided by any sub-contractor of the Seller in accordance with the standard payment terms contained in this agreement.

20. Default and Consequences of Default

20.1

Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

20.2

If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s contract default fee, and bank dishonour fees).

20.3

Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods to the Customer. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.

20.4
Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
(a)
any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to make a payment when it falls due; and
(b)
an event as listed under clause 22.1 causes the Seller to cease production of the Goods for a period of greater than thirty (30) days.

21. Cancellation

21.1

The Seller may cancel any agreement to which these terms and conditions apply, or cancel Delivery at any time before the Goods are delivered, for any reason other than those outlined in clause 22.1 by giving twenty-four (24) hours’ notice to the Customer. On giving such notice the Seller shall repay to the Customer any money paid by the Customer for the Goods. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.

21.2

In the event that the Customer cancels the supply of Goods, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any costs that have been incurred by the Seller through the production of the Goods, materials bought for manufacturing of the Goods, labour, supply and distribution costs, transportation costs, government fee and charges and any loss of profits).

21.3

Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

22. Termination

22.1
Either party may terminate these terms and conditions, and any term of this agreement, by giving notice to the other party, if:
(a)
that other party breaches any terms of this agreement, and fails to remedy such breach within thirty (30) days of written notification of the breach; or
(b)
that the other party becomes bankrupt or insolvent (or executes a personal insolvency agreement), ceases to carry on business, 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), administrator or similar person is appointed in respect of the other party or any asset thereof.
22.2

These rights of termination are in addition to any other rights either party has under these terms and conditions and does not exclude any right or remedy under law or equity.

23. Privacy Act 1988

23.1

The Customer agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Customer in relation to credit provided by the Seller.

23.2
The Customer agrees that the Seller may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
(a)
to assess an application by the Customer; and/or
(b)
to notify other credit providers of a default by the Customer; and/or
(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/or
(d)
to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.
23.3

The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.

23.4
The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):
(a)
the provision of Goods; and/or
(b)
analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(c)
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d)
enabling the collection of amounts outstanding in relation to the Goods.
23.5
The Seller may give information about the Customer to a CRB for the following purposes:
(a)
to obtain a consumer credit report;
(b)
allow the CRB to create or maintain a credit information file about the Customer including credit history.
23.6
The information given to the CRB may include:
(a)
personal information as outlined in 23.1 above;
(b)
name of the credit provider and that the Seller is a current credit provider to the Customer;
(c)
whether the credit provider is a licensee;
(d)
type of consumer credit;
(e)
details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f)
advice of consumer credit defaults, overdue accounts, loan repayments or  outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g)
information that, in the opinion of the Seller, the Customer has committed a serious credit infringement;
(h)
advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
23.7
The Customer shall have the right to request (by e-mail) from the Seller:
(a)
a copy of the information about the Customer retained by the Seller and the right to request that the Seller correct any incorrect information; and
(b)
that the Seller does not disclose any personal information about the Customer for the purpose of direct marketing.
23.8
The Seller will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
23.9
The Customer can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

24. Customer’s Property and Material Supplied by the Customer

24.1

Where the Customer has supplied materials, adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received unless requested by the Customer in writing. An additional charge may be made by the Seller in respect of any such counting or checking requested by the Customer.

24.2

In the case of property and materials left with the Seller without specific instructions, the Seller shall be free to dispose of them at the end of twelve (12) months after receipt of them and to accept and retain any proceeds gained from such disposal to cover the Seller’s costs in holding and handling such items.

25. Unpaid Seller’s Rights

25.1
Where the Customer has left any item/s with the Seller for repair, modification, exchange or for the Seller to perform any other service in relation to the item/s and the Seller has not received or been tendered the whole of any moneys owing to it by the Customer, the Seller shall have, until all moneys owing to the Seller are paid:
(a)
a lien on the item/s; and
(b)
the right to retain or sell the item/s, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
25.2
The lien of the Seller shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Seller having been obtained against the Customer.

26. Indemnities and Exclusion of Indemnities

26.1
Subject to clause 16:
(a)
the Seller shall be under no liability whatsoever to the Customer for any indirect, special and/or consequential loss and/or expense (including loss of actual or anticipated profits or revenue, loss of business, business interruptions, wasted costs, penalties, expenditure, damages or losses, including amounts that the Customer is liable to its customers for) suffered by the Customer or third parties under or relating to these terms and conditions (or its subject matter) whether in contract, tort, in equity, under statute, under an indemnity, based on a fundamental breach, or breach of a fundamental term, or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage, arising out of a breach by the Seller of these terms and conditions, including any delay in Delivery or caused by or arising out of or dealing with the Goods whether arising from any defect in the Goods, unsuitability of the Goods for the Customer’s purpose, negligence of the Seller or its employees or agents or in any other way (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price);
(b)
the Customer is liable for, and indemnifies the Seller against, all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against the Seller and any environmental loss, cost, damage or expense) in respect of personal injury or damage to tangible property or a claim by a third party, in respect of the Goods or the Customer’s breach of these terms and conditions.
26.2
Each indemnity is these terms and conditions is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of these terms and conditions. It is not necessary for a party to incur expense or make any payment before enforcing a right of indemnity conferred by these terms and conditions.
26.3
The Seller shall not be liable to the Customer for any acts or omissions of any person supplied by the Seller where that person is acting under the Customer’s direction and control during the term of this agreement, and the Customer indemnifies the Seller against all liability, claims, damage, loss, costs and expenses (including without limitation, legal fees, costs and disbursements on a full indemnity basis, whether incurred or awarded against the Seller and any environmental loss, cost, damage or expense) arising from or incurred in connection with such acts or omissions.
26.4
The Customer releases and indemnifies the Seller from and against all claims which may be brought or made against any of them by any person, including the Customer, arising from:
(a)
any wilful or negligent act or omission of the Customer;
(b)
any unlawful or negligent act or omission of the agents, visitors, invitees or licensees of the Customer;
(c)
death, injury, loss or damage suffered by the Customer or its agents or employees, except where the death, injury, loss or damage is caused by the wrongful act or omission of the Seller.

27. Building and Construction Industry Security of Payment Act 2002

27.1
At the Seller’s sole discretion, if there are any disputes or claims for unpaid Goods then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
27.2
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.

28. General

28.1
The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision. 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.
28.2
These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which the Seller has its principal place of business, and are subject to the jurisdiction of the Ferntree Gully Court in that state.
28.3
The Customer shall not be entitled to restrict, set off against, or deduct from the Price, or counterclaim for any sums owed or claimed to be owed to the Customer by the Seller, nor to withhold payment of any invoice because part of that invoice is in dispute. Where any lesser amount is paid, such amount will be treated as a partial payment and without prejudice to the Seller’s right to recover the balance or to pursue any other remedy.
28.4
The Customer acknowledges and consents that the Seller may assign its interest in, or license or sub-contract all or any part of its rights and obligations under, this agreement at any time. The Customer must not assign its interest in, or license or sub-contract all or any part of its rights and obligations under, this agreement without the prior written consent of the Seller.
28.5
The parties agree that it is intended that this agreement shall create the relationship of principal and contract between them and that it is not their intention to create any other relationship and, in particular, the relationship of employer and employee or the relationship of partners. The Customer shall not represent itself or allow itself to be represented as an employer or principal of the Seller or by virtue of this agreement become an employer or principal of the Seller.
28.6
The Customer acknowledges and agrees that neither the Seller nor any person acting on the Seller’s behalf, have made any representation or other inducement to the Customer to enter into this agreement, and the Customer has not entered into this agreement in reliance on any representations or inducements (including in relation to the use of the Goods) except for those representations contained in these terms and conditions.
28.7
From time to time, the Seller may need to vary these terms and conditions. If the Seller intends to do so, the Seller will give the Customer thirty (30) days written notice and clearly set out the Seller’s proposed amendments. If the Customer has reasonable ground to believe the change will be detrimental to the Customer’s rights, the Customer may terminate this agreement, without penalty, within thirty (30) days of receiving the Seller’s written notice. Any other variation of these terms and conditions must be agreed in writing by the parties.
28.8
Neither party shall be liable for any default due to any act of God, war, fire, explosion, breakdown of machinery or equipment, non-delivery or shortage of supplies, strikes or other industrial disputes or disturbances, terrorism, flood, storm or other event beyond the reasonable control of either party.
28.9
The person signing any document which forms part of these terms and conditions for and on behalf of the Customer:
(a)
hereby warrants that:
(i)
they have the Customer’s authority to enter into this agreement on the Customer’s behalf, and grant the security interests in connection herewith; and
(ii)
they are empowered to bind the Customer to this agreement and each security interest granted in connection herewith; and
(iii)

the Customer is not insolvent and that this agreement creates binding and valid legal obligations on it.

(b)
indemnifies the Seller against all losses, costs, and claims incurred by the Seller arising out of the person so signing this agreement not in fact having such power and/or authority as per sub-clauses (a)(ii) and (a)(iii).
28.10
The information presented in these terms and conditions have been prepared in accordance with Australian law, but may not satisfy the laws of other countries. If the Customer resides in, or accesses this information from a country other than Australia, the Customer must acknowledge that these terms and conditions are under conditions forms between the Seller and the Customer under Australian laws and regulations.
28.11
The Seller maintains all rights to provide written notice to the Customer to terminate this agreement, or extend the time for the process and performance of its obligations under this agreement. Any continuing obligations under this agreement, including payment of any amounts or continuing indemnifications, survive the termination of this agreement.
28.12
Written notice refers to any formal notice given to either party by the other, in the form of either personal delivery, facsimile, registered mail, ordinary mail and email.