TRADING TERMS AND CONDITIONS
(1) Defined terms
In these trading terms and conditions, the following words have the corresponding meaning:
Business means the relevant business, as specified on a Quote, which is owned or operated (or both) by Signal Group.
Conditions means these Trading Terms and Conditions, which may be updated from time to time on prior notice to the Customer.
Customer means the party named on a Quote, being the party who has agreed to acquire the Goods specified on a Quote from the Business.
Goods means the goods or services (or both, as relevant) that the Company has agreed to provide or supply to, or perform for, the Customer, as specified on a Quote.
GST Law means A New Tax System (Goods And Services Tax) Act 1999.
Quote means the quote issued by the Business to the Customer in respect of Goods, which incorporates these Conditions and to which these Conditions apply (and for avoidance of doubt, these Conditions prevail to the extent of any inconsistency between the terms of a Quote and these Conditions, unless expressly stated otherwise and mutually agreed in writing by the parties).
Signal Group means Mulpha Signal Group Pty Ltd ACN 655 406 769.
Trading Account Customer means a Customer who has an approved credit account with the Business.
(2) Quotes and Ordering
(2.a) Quotes issued by the Business are valid for a maximum of 30 days from the date of the Quote. If a Quote is not accepted within the 30 day period, it automatically lapses and a new Quote must be issued. Following expiration of a Quote, any terms which were set out therein (including but not limited to pricing) are subject to change. An expired Quote cannot be accepted by the Customer.
(2.b) All Quote requests and Quote acceptances by the Customer must be made to the Business in writing by letter, email or fax, must include correct invoicing and delivery details and must be signed for or on behalf of the Customer. The Business will not accept verbal Quote requests, Quote acceptances or orders.
(2.c) The Customer will be bound by the terms of the Quote and these Conditions upon the Customer’s written acceptance of a Quote. Delivery / provision of the Goods to the Customer is subject to the Customer’s strict compliance with these Conditions.
(2.d) Where a Quote (or other agreement) between the Business and a Trading Account Customer contains pre-determined pricing, the Business reserves the right to review and vary that price from time to time, at any time once per calendar year. Any change to such pricing will be notified to the Customer. Increased pricing will apply on the earlier of:
(2.d.i) 30 days after the date on which the Business notifies the Customer of the increased pricing; or
(2.d.ii) The date on which the Customer informs the Business that it accepts that increase pricing.
(2.e) If the Customer does not expressly accept the increased pricing, it will be deemed to be accepted upon expiration of the 30 day period referred to above, unless the Customer elects to terminate the relevant Quote (or other agreement) during that 30 day period.
(2.f) Where a Quote is issued for Goods which require design renderings, the amount Quoted includes up to three separate design renderings for the relevant Goods. If the Customer requires more than three design renderings, the Business reserves the right to charge the Customer for those additional renderings, at the hourly rate either specified on a relevant Quote or as otherwise agreed by the Customer.
(2.g) All Quotes exclude insurance of the Goods while they are in storage or in transit.
(2.h) Where:
(2.h.i) a Quote is issued in a currency (FX) that is not Australian Dollars (AUD); and
(2.h.ii) between the date of the Quote and the date on which any invoice(s) are issued for payment in respect of that Quote, the value of the AUD has declined against the value of the FX by more than 5%,
the Business reserves the right to issue invoice(s) in respect of that Quote for payment by the Customer having regard to the AUD value of the amount stated on the Quote as at the date of the Quote.
(3) Payment
(3.a) The Customer must make an advance payment of 50% of a Quote amount (or such other amount as advised by the Business to the Customer) upon acceptance of a Quote. The Business will not commence work or services for any Goods until such payment has been made.
(3.b) Prior to dispatch of the Goods, the Business will issue an invoice to the Customer for payment of the balance of the Quote (which will include any additional costs payable by the Customer in accordance with these Conditions). The Business will not make Goods available for dispatch until the balance invoice is paid in full.
(3.c) All invoices issued must be paid within 14 days of the date of the invoice, unless expressly stated otherwise on the invoice. Trading Account Customers must pay all invoices within 30 days of the date of the invoice, unless expressly stated otherwise on the invoice.
(3.d) Any invoice that is not paid within 30 days of the date of the invoice will be a “Late Payment” for the purposes of these Conditions. Interest will accrue on all Late Payments daily, at the rate of 3% above The Commonwealth Bank of Australia’s base lending rate and is payable in addition to the invoiced amount of the Late Payment.
(3.e) Any Late Payment will result in the suspension of delivery of all Goods to the Customer until such time as the Late Payment and any accrued interest is paid in full. If a Late Payment becomes overdue by 60 days:
(3.e.i) (where relating to a Trading Account Customer) the account of that Trading Account Customer will be suspended;
(3.e.ii) the Business may take such action as it deems necessary to recover the Late Payment together with any accrued interest; and
(3.e.iii) all costs and expenses incurred by the Business in connection with the recovery and collection of any Late Payment(s) are payable in full by the Customer on demand and the Customer indemnifies the Business for such costs which are incurred by or on behalf of the Business to recover and collect Late Payment(s).
(3.f) The Business reserves the right to charge 100% of the order value specified on a Quote for customers that do not have an account at the time of order.
(4) Delivery
(4.a) All agreements made between the Business and the Customer for the sale and purchase of Goods are made on the condition that delivery of Goods to the Customer (whether locally or internationally) is “ex works” from the Business’s premises or other such premises as designated by the Business from time to time.
(4.b) If the Business agrees to arrange for delivery of Goods to the Customer’s premises (or elsewhere at the direction of the Customer):
(4.b.i) the Customer must pay the Business’s packing and delivery charges, in addition to the price for the Goods, as set out in a Quote (or if not specified on a Quote, as invoiced to the Customer at point of dispatch);
(4.b.ii) Goods will be dispatched to the Customer, to the address specified for delivery on the Quote, once full payment for the Goods has been made to the Business; and
(4.b.iii) The Business is not liable (and the Customer releases the Business from any liability in respect of) any loss or damage to the Goods, however caused, once they have left the Business’s premises (whether in transit to the Customer or otherwise).
(4.c) the Customer acknowledges that any delivery times advised to the Customer will be estimated times only and the Customer must not rely on such estimated delivery times. The Business is not liable for any costs, loss or damage caused directly or indirectly as a result of any delays in Goods being delivered to the Customer.
(4.d) Exact quantities of mass produced / non-personalised bulk orders for Goods are not guaranteed and the Customer agrees that it will accepts (in fulfilment of any order for Goods) a variance to the quantity of Goods ordered of up to plus or minus 10% of the relevant total order quantity.
(5) Title and risk
(5.a) Title to the Goods remains vested in the Business and does not pass to the Customer until such time as full payment for those Goods has been received. Upon full payment for the Goods, and prior to dispatch of the Goods, title to the Goods passes to and vests in the Customer.
(5.b) Despite clause (4)(a), the risk in the Goods passes to the Customer at the time the Goods are dispatched from the Business’s premises to the Customer’s address for delivery for the Goods.
(6) Goods and Services Tax
(6.a) In this clause 6:
(6.a.i) A term which has a defined meaning in the GST Law has the same meaning when used in this clause 6; and
(6.a.ii) Any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 6.
(6.b) Unless expressly stated otherwise, all amounts payable or consideration to be provided under this agreement are exclusive of GST.
(6.c) The Customer is liable for and must pay all GST at the point of order. If GST is payable on any supply made under or in connection with this agreement, for which the consideration is not expressly stated to include GST, the recipient agrees pay to the supplier an additional amount equal to the GST while the consideration for the supply, or the first part of the consideration for the supply (as the case may be), is to be provided.
(6.d) If an adjustment event arises in respect of the supply, the additional amount payable under clause 6(e) must be adjusted to reflect the adjustment event and the recipient or the supplier (as the case may be) must make any payments necessary to reflect the adjustment. An adjustment note must be issued by the supplier within [5] business days of becoming aware of the adjustment event.
(e6.) The supplier must give to the recipient a valid tax invoice, on or before the day that the recipient is to pay the additional amount under clause 6(d).
(6.f) If a party becomes liable for any penalties or interest because of a late payment of GST, where that late payment is as a direct result of a failure of another Party to comply with the terms of this clause, that other Party shall pay to the first Party an additional amount on demand equal to the amount of those penalties and interest.
(6.g) If a party is required under this agreement to indemnify another party, or pay or reimburse costs of another party, that party agrees to pay the relevant amount less any input tax credits to which the other party (or to which the representative member for a GST group of which the other party is a member) is entitled.
(6.h) Any payment or reimbursement required to be made under this agreement that is calculated by reference to a cost, expense, or other amount will be limited to the total cost, expense or amount less the amount of any input tax credit to which an entity is entitled for the acquisition to which the cost, expense or amount relates.
(7) Other taxes, duties (etc)
(7.a) Any taxes, duties, fees, imposts, levies or other amounts or charges that are or may be imposed in respect of the Goods provided under this Agreement, are payable by the Customer in full (but this does not include taxes on income, capital gains or employee benefits relating to the Business).
(7.b) The Business and Customer acknowledge that the Customer may, to the extent required by applicable law, withhold an amount of taxes to the Business on account of any withholding tax obligation that may be required to be paid to a relevant government agency.
(7.c) The Customer shall be required to gross up payments to the Business to account for any such amount withheld pursuant to 7(b).
(8) Customer Portal
(8.a) If the Business supplies or grants access to any software (whether by program or web based or otherwise), including any online portal which enables the Customer to login to that portal to design or order Goods (or for any other purpose) in connection with the Business or the Goods (Software), the Customer acknowledges and agrees that its use of any such Software is at its own risk, and the Customer is solely responsible for satisfying itself that any such Software is free of viruses or other malicious codes, malware and similar, and otherwise ensuring that the Software is compatible with the Customer’s own software and hardware.
(8.b) The Business reserves the right to charge the Customer for ongoing access to any such Software (Software Costs), provided the Business advises the Customer in advance of the applicable Software Costs prior to issuing an invoice to the Customer for those Software Costs. If the Customer does not accept any Software Costs, the Business reserves the right to terminate the Customer’s access to relevant Software at any time, without notice.
(8.c) Where the Business supplies materials for printing on the Customer’s printer(s), the Customer must ensuring such materials are suitable for use with the Customer’s make and brand of printer. The Business accepts no liability for any incompatibility with the Customer’s printers or other hardware, including without limitation loss or damage caused by materials, jamming or damaging incompatible printers.
(9) Intellectual Property
(9.a) The Customer warrants that it holds all necessary and required consents and approvals (including those of any third party) in connection with the Customer’s use of any intellectual property rights in any order for Goods placed by the Customer.
(9.b) The Customer fully indemnifies and keeps indemnified the Business against, and releases the Business from, any losses, costs, claims, liability, damages or expenses (including reasonable legal expenses) (Claims) from any person against the Business in connection with actual or alleged infringement of any person’s intellectual property rights (whether in the Goods or otherwise).
(9.c) The Customer must reimburse the Business on demand the amount of any Claims incurred by or threatened against the Business, in connection with the Customer’s use of any intellectual property (including but not limited to patents, trademarks, layouts, designs and copyright) in the Customer’s order for Goods.
(9.d) The use of any logos or trademarks which are not owned or expressly stated as being licenced to the Business (whether in the display of the Business’s products and services or otherwise) must not be construed as any representation or warranty that the Business or any Goods have a connection with that logo or trademark (including any business or its goods or services associated with such logo or trademark). The Business discloses that third party business logos and trademarks are used for display purposes only and in most cases, the Business does not have any connection with that business (or its goods or services).
(9.e) Where the Business creates and new intellectual property rights in any Goods that it produces for the Customer, the Business expressly retains and owns those newly created intellectual property rights in the applicable Goods (including but not limited to any newly created trademarks, logos, designs and layouts).
(10) Returns and Credits
(10.a) The Business is only required to accept the return of Goods if the Goods are materially incorrect from the Customer’s specifications for them or if they are not fit for their intended purpose (Return Conditions). In each case, the Customer must notify the Business of a Goods return request and provide the Business with all reasonable evidence required by the Business to satisfy Return Conditions. If the Business accepts a Goods return request, the Business will, at its discretion, re-issue the Goods to the Customer or provide the Customer with a Credit to the Customer’s account, to the value of the Goods as specified on the Quote.
(10.b) Any Goods returned by the Customer must be returned unused, in their original condition, with their original packaging and documentation, and must make reference to the relevant invoice number for the Goods. The Customer bears the risk in any Goods being returned until such time as they are received by the Business and the Business may, in its sole discretion, reject any returned Goods which are damaged, used or in poor condition.
(10.c) The Business does not (and will not) accept the return of Goods for change of mind or where those Goods are customised (save for where any customised goods meet the Return Conditions).
(11) Limitation of liability and disclaimer
(11.a) To the fullest extent permitted by law, the Business disclaims all warranties related to the Goods, either express or implied, including any implied warranties of merchantability and fitness for a particular purpose. Where such warranties cannot be disclaimed, the Business’s liability in respect of any Goods which breach any implied warranties which cannot be disclaimed is to, at the Business’s discretion, refund the Customer for the costs of those Goods, or re-supply those Goods to the Customer.
(11.b) To the fullest extent permitted by law, the Business’s total aggregate liability to the Customer (whether in contract, tort, for breach of law or however else arising) is limited to the value of the most recent Quote paid by the Customer.
(12) Pre-paid or bulk orders
(12.a) The Business may, at its discretion, accept from a Customer pre-payment for bulk supply of Goods (that is, the Customer pays to the Business a pre-determined amount of money for a pre-determined number of specific Goods, which is to be expressly agreed by the parties in writing (Pre-payment) with such Pre-payment held by the Business in order that, at the Customer’s direction, the Business will:
(12.a.i) create, prepare, order or obtain (as the case may be) the full, pre-determined quantity of those Goods which will be held at the Business’s premises and supplied to the Customer from time to time following a written direction by the Customer specifying the specific quantity of the Goods to be so supplied, with such supply to occur within 5 Business Days of a direction from the Customer, until the quantity of Goods held by the Business is exhausted; or
(12.a.ii) retain a particular design from the Customer for specific Goods (with such design to be provided by the Customer in final form on the template supplied to the Customer by the Business, with no changes permitted unless expressly agreed by the Business) and, following a written direction from the Customer, the Business will create, prepare, order or obtain (as the case may be) the specific quantity of those Goods as required by the Customer’s direction (up to the quantity that can be satisfied from the Pre-payment, and supply same to the Customer on the terms of these Conditions.
(12.b) In each of the above cases:
(12.b.i) the Business is entitled to immediately draw and retain from the Pre-payment the sum of the value for the quantity of Goods which it supplies to the Customer after a relevant direction from a Customer;
(12.b.ii) the relevant Goods will be supplied to the Customer on the terms of these Conditions; and
(12.b.iii) the Business will not accept or act on any direction received in respect of Goods which relate to a Pre-payment under this clause after 180 days from the date on which the Pre-payment is made (and in that regard, the balance of any Pre-payment held by the Business which has not been utilised within that 180 day period will be forfeited to the Business and is not refundable to the Customer, and any Goods held by the Business in connection with such Pre-payment will, following expiration of that 180 day period, be dealt with at the Business’s sole discretion without reference to the Customer.
(13) Force Majeure
If there is some unforeseen event reasonably beyond the control of a party (such as acts of war, terrorism, or uprising, or acts of nature like earthquakes or floods, or civil unrest like embargoes, riots, sabotage or labor shortages, or changes in laws or regulations, or the failure of the internet or communications via common networks, or a power failure, or a delay in transportation, (collectively “Force Majeure”)) the affected party will be excused from performance of its obligations under these Conditions for the duration of the Force Majeure affecting that party. The affected party will use reasonable efforts to mitigate the impact of the Force Majeure on the other party (but is not required to incur any additional costs in doing so). For avoidance of doubt, Force-Majeure will not apply to, nor does it affect the obligation of the Customer to pay, amounts owing by the Customer to the Business.
(14) Jurisdiction
These Terms and any action related thereto will be governed by the laws of Queensland, Australia and you agree to be subject to the exclusive jurisdiction of the courts of Queensland and the Queensland District Registry of the Federal Court of Australia.