1.1 “Cairns Signs ” shall mean Thomas Tidswell Trading as Cairns Signs its successors and assigns or any person acting on behalf of and with the authority of Cairns Signs.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Cairns Signs to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by Cairns Signs to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Cairns Signs to the Client.
1.5 “Services” shall mean all Services supplied by Cairns Signs to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Cairns Signs and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”) and application of these terms and conditions to consumers
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
2.2 Clause 8 (Defects) and clause 9 (Warranty) may NOT apply to the Client where the Client is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Client is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
3.1 Any instructions received by Cairns Signs from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Cairns Signs shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Cairns Signs.
3.4 The Client shall give Cairns Signs not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Cairns Signs as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by Cairns Signs only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1 At Cairns Signs sole discretion the Price shall be either:
(a) as indicated on invoices provided by Cairns Signs to the Client in respect of Goods supplied; or
(b) Cairns Signs quoted Price (subject to clause 4.2) which shall be binding upon Cairns Signs provided that the Client shall accept Cairns Signs quotation in writing within thirty (30) days.
4.2 Cairns Signs reserves the right to change the Price in the event of a variation to Cairns Signs quotation. Any variation from the plan of scheduled design or specifications (including, but not limited to, any variation as a result of the Client not ensuring that the design and specifications provided Cairns Signs were accurate for their intended use or as a result of increases to Cairns Signs in the cost of materials and labour) will be charged for on the basis of Cairns Signs quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 The Client acknowledges and agrees that Cairns Signs cost for imported Goods may increase as a consequence of fluctuations in foreign currency rates of exchange and/or international freight and insurance charges for foreign sourced components.
4.4 At Cairns Signs sole discretion a non refundable deposit may be required.
4.5 At Cairns Signs prior to dispatch of the Goods; or
(b) payment for approved Clients shall be due thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
4.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Cairns Signs.
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 At Cairns Signs sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Cairns Signs address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Cairns Signs or Cairns Signs nominated carrier); or
(c) the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
5.2 At Cairns Signs sole discretion the costs of delivery are included in the Price.
5.3 Cairns Signs reserves the right to charge a standard delivery administration fee for Goods delivered to the Client’s nominated address.
5.4 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Cairns Signs shall be entitled to charge a reasonable fee for redelivery.
5.5 The failure of Cairns Signs to deliver shall not entitle either party to treat this contract as repudiated.
5.6 Cairns Signs shall not be liable for any loss or damage whatsoever due to failure by Cairns Signs to deliver the Goods (or any of them) promptly or at all where due to circumstances beyond the control of Cairns Signs.
6.1 If Cairns Signs retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Cairns Signs is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Cairns Signs is sufficient evidence of Cairns Signs rights to receive the insurance proceeds without the need for any person dealing with Cairns Signs to make further enquiries.
6.3 Where the Client expressly requests Cairns Signs to leave Goods outside Cairns Signs premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
6.4 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. Cairns Signs will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
7.1 Cairns Signs and the Client agree that ownership of the Goods shall not pass until:
(a) The Client has paid Cairns Signs all amounts owing for the particular Goods; and
(b) The Client has met all other obligations due by the Client to Cairns Signs in respect of all contracts between Cairns Signs and the Client.
7.2 Receipt by Cairns Signs 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 Cairns Signs ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Cairns Signs shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Cairns Signs to the Client Cairns Signs may give notice in writing to the Client to return the Goods or any of them to Cairns Signs. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Cairns Signs shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Cairns Signs then Cairns Signs or Cairns Signs agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Cairns Signs has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Cairns Signs for the Goods, on trust for Cairns Signs; and
(f) the Client shall not deal with the money of Cairns Signs in any way which may be adverse to Cairns Signs; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Cairns Signs; and
(h) Cairns Signs can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Cairns Signs will be the owner of the end products.
8.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Cairns Signs
Cairns Signs of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Cairns Signs an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Cairns Signs has agreed in writing that the Client is entitled to reject, Cairns Signs liability is limited to either (Cairns Signs discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.2 Goods will not be accepted for return other than in accordance with 8.1 above.
9.1 Subject to the conditions of warranty set out in clause 9.2 Cairns Signs warrants that if any defect in any workmanship of Cairns Signs becomes apparent and is reported to Cairns Signs within twelve (12) months of the date of delivery (time being of the essence) then Cairns Signs will either (at Cairns Signs sole discretion) replace or remedy the workmanship.
9.2 The conditions applicable to the warranty given by clause 9.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) Failure on the part of the Client to properly maintain any Goods; or
(ii) Failure on the part of the Client to follow any instructions or guidelines provided by Cairns Signs; or
(iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) Fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Cairns Signs shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Cairns Signs consent.
(c) in respect of all claims Cairns Signs shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
9.3 For Goods not manufactured by Cairns Signs, the warranty shall be the current warranty provided by the manufacturer of the Goods. Cairns Signs shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
9.4 It is the Client’s responsibility to uninstall and return any Goods subject to a warranty claim to Cairns Signs. Any installation, removal or freight costs associated with the return of Goods on warranty shall be at the Client’s expense.
10. Intellectual Property
10.1 Where Cairns Signs has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Cairns Signs, and shall only be used by the Client at Cairns Signs discretion.
10.2 The Client warrants that all designs or instructions to Cairns Signs will not cause Cairns Signs to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Cairns Signs against any action taken by a third party against Cairns Signs in respect of any such infringement.
10.3 The Client agrees that Cairns Signs may use any documents, designs, drawings or Goods created by Cairns Signs for the purposes of advertising, marketing, or entry into any competition.
11. Default & Consequences of Default
11.1 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 (2.5%) per calendar month (and at Cairns Signs sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Cairns Signs.
11.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Cairns Signs from and against all costs and disbursements incurred by Cairns Signs in pursuing the debt including legal costs on a solicitor and own client basis and Cairns Signs collection agency costs.
11.4 Without prejudice to any other remedies Cairns Signs may have, if at any time the Client is in breach of any obligation (including those relating to payment), Cairns Signs may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Cairns Signs will not be liable to the Client for any loss or damage the Client suffers because Cairns Signs has exercised its rights under this clause.
11.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.6 Without prejudice to Cairns Signs other remedies at law Cairns Signs shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Cairns Signs shall,
Whether or not due for payment become immediately payable in the event that:
(a) any money payable to Cairns Signs becomes overdue, or in Cairns Signs opinion the Client will be unable to meet its payments as they fall due; or
(b) The Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
12. Security and Charge
12.1 Despite anything to the contrary contained herein or any other rights which Cairns Signs may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Cairns Signs or Cairns Signs nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Cairns Signs (Cairns Signs nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Cairns Signs elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Cairns Signs from and against all Cairns Signs costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Cairns Signs or Cairns Signs nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
13.1 Cairns Signs may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Cairns Signs shall repay to the Client any sums paid in respect of the Price. Cairns Signs shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Cairns Signs (including, but not limited to, any loss of profits) up to the time of cancellation.
13.3 Cancellation of orders for Goods made to the Client’s specifications or non-stockist items will definitely not be accepted, once production has commenced.
14. Privacy Act 1988
14.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Cairns Signs to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Cairns Signs.
14.2 The Client agrees that Cairns Signs may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) To assess an application by the Client; and/or
(b) To notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) To assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
14.3 The Client consents to Cairns Signs being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1)(h) Privacy Act 1988).
14.4 The Client agrees that personal credit information provided may be used and retained by Cairns Signs for the following purposes (and for other purposes as shall be agreed between the Client and Cairns Signs or required by law from time to time):
(a) The provision of Goods; and/or
(b) The marketing of Goods by Cairns Signs, its agents or distributors; and/or
(c) Analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) Enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
14.5 Cairns Signs may give information about the Client to a credit reporting agency for the following purposes:
(a) To obtain a consumer credit report about the Client;
(b) Allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
14.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) Details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) Advice that Cairns Signs is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) That the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) Information that, in the opinion of Cairns Signs, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) Advice that cheques drawn by the Client for one hundred dollars ($100) or more have been dishonoured more than once;
(h) That credit provided to the Client by Cairns Signs has been paid or otherwise discharged.
15.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Cairns.
15.3 Cairns Signs shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Cairns Signs of these terms and conditions.
15.4 In the event of any breach of this contract by Cairns Signs the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
15.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Cairns Signs nor to withhold payment of any invoice because part of that invoice is in dispute.
15.6 Cairns Signs may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
15.7 The Client agrees that Cairns Signs may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Cairns Signs notifies the Client of such change.
15.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
15.9 The failure by Cairns Signs to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Cairns Signs right to subsequently enforce that provision.