SignRise Terms and Conditions of Trade
Recitals
A. Sign Rise has developed and is the owner of Products and the Intellectual Property Rights in the Products, consisting of roof top Pods and Advertising kits
B. The Customer wishes to access the Products
C. Sign Rise has agreed to sell the Pods and the Customer has agreed to buy the Pods on the terms and conditions set out in this agreement.
D. Sign Rise has agreed to hire the Advertising kits and the Customer has agreed to accept the hire of the Advertising kits on the terms and conditions set out in this agreement.
Definitions
“Sign Rise” means Sign Rise International Pty Limited (ACN 134560713);
"Customer” means the party placing the Order with Sign Rise;
"Order" means an offer by a Customer to purchase and/or hire Products from Sign Rise;
“Products” includes Pods and Advertising kits;
“Pod” means ‘CARmando Sport Pod 360’ as described in the specifications sheet published or otherwise made available to Customers current at the date of Delivery of the Pod to the Customer;
“Advertising Kit” includes the Intellectual Property Rights, hardware, motor, mechanism and the Advertising Banner as described in the specifications sheet published or otherwise made available to Customers current at the date of Delivery of the Advertising Kit to the Customer;
“Advertising Banner” is the flexible synthetic banner and artwork. One Advertising Banner is included in each Advertising Kit and others may be ordered and paid separately.
“Pricing Schedule” means the standard pricing schedule of Products published or otherwise made available to Customers;
“Hire Plan” means a fixed term plan which relates to the Advertising Kit as specified in the Pricing Schedule.
‘Intellectual Property Rights’ means all rights in copyright, patents, registered and unregistered trademarks, registered and unregistered designs, trade secrets, knowhow, rights in relation to matrix layouts and all other rights of intellectual property as defined in Article 2 of the conventions establishing World Intellectual Property Organisation of July 1967.
1. Acceptance of Order
Sign Rise may accept any order in whole or in part. Shipping by Sign Rise of Products for delivery pursuant to an order (whether by single or multiple delivery) shall be taken as acceptance to the extent shipped. Accepted orders may not be varied or cancelled by the Customer unless written consent is given by Sign Rise.
2. Price
The price of the Products shall be as per the Pricing Schedule current at the date of the Order or otherwise such amount agreed between the parties regarding Products ordered. Prior to acceptance of an order, Sign Rise may change its published prices or hire terms at any time without notice.
Products ordered from Sign Rise are quoted F.O.B. Castle Hill, Sydney, NSW Australia.
3. Payment
Payment of the Pod is required in full as a condition of delivery. The Advertising Kits are for hire and the Customer may select a Hire Plan from the Pricing Schedule and elect to pay either annually or monthly in advance by direct debit to an approved credit card or bank account. Sign Rise may accept an Order and allow payment from an approved financier. A tax invoice will be issued for all amounts due.
4. Freight and Handling charges
Sign Rise may charge for freight and handling at rates dependent on distance and volume of Products supplied. The rates are subject to change at any time without notice.
5. Taxes
Sign Rise reserves the right to recover from the Customer any Goods and Services Tax (“GST”) payable in respect of supply of Products. Unless expressly included all amounts expressed or described in any agreement, price list or in invoices are GST exclusive.
6. Delivery
Delivery of Products may not be refused by the Customer after an order has been accepted by Sign Rise. Where prices are stated as inclusive of delivery, delivery is to the delivery point accepted by Sign Rise. The Customer shall make all arrangements necessary to accept delivery of the Products whenever they are tendered for delivery. In the event that the Customer is unable to accept delivery of the Products as arranged, then Sign Rise shall be entitled to charge a reasonable fee for redelivery. Delivery of the Products to a third party nominated by the Customer is deemed to be delivered to the Customer for the purposes of this agreement. The failure of Sign Rise to deliver by a time specified by the Customer shall not entitle the Customer to treat that contract as breached or repudiated. Sign Rise shall not be liable for any loss or damage or expense arising from failure by Sign Rise to deliver the Products promptly or at all.
7. Intellectual Property Rights
7.1 Both parties agree and acknowledge that Sign Rise is the owner of the Intellectual Property Rights of and related to the Pods and Advertising kits.
7.2 Except where expressly permitted in the Agreement, the Customer must not sell the Pods and Advertising kits (or any part of it) or make use of the Pods and Advertising kits, which is not referred to in this Agreement.
7.3 These conditions do not confer on the Customer any rights of ownership of the Intellectual Property Rights either in the Pods and Advertising kits.
The Customer agrees to promptly notify Sign Rise if the Customer becomes aware of the actual or possible infringement of any Intellectual Property Rights in the Products by any person.
8. Safety
It is the Customer’s responsibility to secure the Pod to the vehicle it is placed on. It is the Customer’s responsibility to ensure the Pod and all its contents are secure. The Customer must follow the installation instructions to ensure that it is installed correctly.
It is the Customer’s responsibility to ensure other drivers and users of the vehicle are aware of the safety requirements of the Pod and Advertising Kit.
The Pod must only be opened or closed while the vehicle is stationary. Notwithstanding that the Pod has been tested in 60km per hour winds, it recommended that the vehicle remain stationary while the Pod is open.
The Customer uses the Products at the Customer’s sole risk and is liable for any misuse or failure to supervise its use resulting in property damage, personal injury or death to any person. The Products may be used in connection with activities that carry a risk of personal injury or death, or that may cause damage to property and the Customer voluntarily assumes those risks and releases Sign Rise from any liability in respect of such risks and waives any claims or rights the Customer may have against Sign Rise arising directly or indirectly from the use or misuse of the Products in these activities or the activities themselves. The Customer agrees to indemnify and keep indemnified Sign Rise in respect of any loss whatsoever and howsoever arising which Sign Rise suffers, incurs or is liable for in connection with this Agreement, including, but not limited to:-
· any breach of this Agreement by the Customer;
· any damage caused by the Product;
· the manner in which the Product is stored or transported;
· any loss or theft of the Product;
· any damage caused to property of any person in connection with the Customer’s use or misuse of the Product; and
· any injury suffered by any person in connection with the Customer’s use or misuse of the Product.
9. Retention of Title to the Products Pending Payment
Advertising kits are hired, not sold so retention of title always vests with Sign Rise. Orders for Pods are accepted on condition that ownership of the Pods shall remain with Sign Rise and shall not pass to the Customer until Sign Rise has received in full (cash or cleared funds) all sums due to it in respect of the Pods.
10. Passing of Risk
The Risk including risks in relation to Safety, but not title in respect of Products sold passes to the Customer immediately upon delivery of the Products to the Customer or upon collection of the Products by the Customer, the Customer’s agent or any courier as the case may be.
11. Special Ordered or Modified Product
Any Product that has been specially ordered for a Customer or which has been in any way modified by the Customer or which does not form part of the range in the current Sign Rise published price list shall not in any case be eligible for return.
12. Own use
All Products purchased or hired from Sign Rise are for use by the Customer only. Products purchased or hired from Sign Rise are prohibited from resale, rental, hire or otherwise transferred or given away unless prior written consent is given by Sign Rise. In the event the Customer breaches this clause, Sign Rise shall be entitled to terminate the Agreement and to claim compensation from the Customer for loss of income and any damages that may arise.
13. Credit Card recovery of costs
A service fee may be added to the price where payment is made by way of a credit card.
14. Warranty
Sign Rise warrants that for one year from the date of delivery it will replace or repair, at its sole discretion, any of its Products that are defective in materials or workmanship, as follows:
14.1 Sign Rise endeavours to keep spare parts for a number of years. However, due to the nature of its Products, Sign Rise reserves the right to replace any faulty Pod or Advertising Kit or part thereof with what it fairly judges to be a similar style as available, should this be necessary;
14.2 This warranty does not apply to Products that have been altered, broken or damaged by misuse, tampered with in any way or where the fault arises from a failure to follow the recommended installation, product care or maintenance instructions provided with the Products;
14.3 Sign Rise does not warrant against normal wear and tear, accidental damage or scratched or broken Pods;
14.4 Advertising Banners that were not defective when shipped for delivery have no warranty;
14.5 Repairs will be carried out by a local authorised repairer where possible. Local authorised repairers will hold spare parts where possible.
14.6 In no event shall the liability of Sign Rise for defective goods exceed the invoiced price of the Products concerned.
15. Claims, Repairs and Returns
The Customer shall inspect the Products on delivery and shall within 48 hours thereof notify Sign Rise in writing of any apparent defect, shortage in quantity, damage or failure to comply with the order or quote. Sign Rise must be notified in writing of any Products which are apparently defective, or which are not in accordance with the Customer’s order within fourteen (14) days of delivery.
The Customer agrees that it will not return any of the Products without first informing Sign Rise in writing so that a Returns Authority (RA) number may be issued by Sign Rise for valid returns.
Sign Rise may, at its sole discretion approve a return for repair or replacement at an authorised Sign Rise agent.
No credit or replacement shall be given or repair undertaken unless and until Products so returned have been verified as being defective or otherwise valid for repair or return by Sign Rise.
The Customer shall be liable for the reasonable costs and handling fees of Sign Rise where the returned Products prove not to be defective or otherwise valid for repair or return.
All freight, handling and other charges in relation to returning goods (other than goods defective or not ordered) are the responsibility of the Customer.
16. Credit Policy and Default
Sign Rise may charge interest on all amounts not paid by the Customer within the term for payment at a rate of 2% per calendar month calculated from the due date and accruing monthly there from until the date of payment. If the Customer defaults in payment of any invoice when due and payable, the Customer shall indemnify Sign Rise from and against all expenses costs and disbursements incurred by Sign Rise in pursuing the debt including all reasonably charged legal costs on a “solicitor and own client” basis and the fees charged to Sign Rise by any mercantile agency. If the Customer fails to pay for the Products in accordance with invoices issued to the Customer, Sign Rise may at its sole discretion:
a. cancel any provision of credit to the Customer;
b. provide to a credit reporting agency details of the payment default;
c. commence legal proceedings against the Customer for all outstanding amounts, interest and costs;
d. decline to supply Products to the Customer and terminate any other agreement with the Customer; and
e. exercise any other rights at law.
A certificate of debt signed by a representative of Sign Rise shall be prima facie evidence and proof of money owing by the Customer to Sign Rise at that time.
17. Security and Recovery
The customer agrees to offer the POD as security against default in payment for the Advertising Kit.
Notwithstanding any other provision to the contrary, if any amount is not paid by the Customer within the term for payment, Sign Rise reserves the following rights in relation to the Products until all amounts owed by the Customer to Sign Rise in respect of the Products and all other Products and services supplied to the Customer by Sign Rise at any time are fully paid:
a. legal and equitable ownership of the Products;
b. to retake possession of the Products; and
c. to keep or resell any of the Products repossessed.
The Customer hereby grants full leave and irrevocable license without any liability to Sign Rise and any person authorised by Sign Rise to enter any premises where the Products may for the time being be placed or stored for the purpose of retaking possession of the Products.
18. Returned cheques and debits
An administration fee of $50 plus all associated bank charges may be applied to any cheque payment or direct debit payment returned unpaid by the bank for whatever reason.
19. Termination
19.1 The Hire Plan has a fixed term and will expire as set out in the Pricing Schedule.
19.2 At the end of the fixed term or at the end of any further term in accordance with this paragraph, if no new Hire Plan has been accepted by the parties, the Hire Plan will continue on the same terms and conditions for a further period or periods equal to the term of this Agreement.
19.3 Either Sign Rise or the Customer can at any time during the term of this Agreement and subject to the provisions of Clause 19.4 below, terminate this Agreement by providing the other party with written notice.
19.4 Within 21 days of termination of this Agreement, the Advertising Kit must be returned to Sign Rise and the full amount outstanding plus and Early Termination Fees will become due and payable.
20. Early Termination
For all hires terminated by the Customer prior to the end of the term, a fee (“Early Termination Fee”), representing an estimate of the cost to Sign Rise, calculated by multiplying the unexpired portion of the term by the monthly hire payment by 90% is due and payable to Sign Rise.
For all hires terminated by the Sign Rise prior to the end of the term, a refund of the unexpired unpaid portion is due to the Customer.
21. Compliance with Law
The Customer shall only use the Products in compliance with all Federal and state and territories laws and statutes, and must not use the Products to breach any Federal and state and territories laws and statutes. Sign Rise does not warrant that the Products comply with nor does Sign Rise accept any liability resulting from any changes to Federal and state and territories laws and statutes.
22. Disclaimer and Limitation of Liability
The Trade Practices Act and various State Acts imply certain warranties into transactions which in certain circumstances cannot be excluded. Notwithstanding this (but subject to such laws as necessarily apply) the Customer acknowledges that it has not relied on any advice given or made by or on behalf of Sign Rise in connection with the Products. Sign Rise excludes all implied conditions and warranties from this agreement, except any conditional warranty (such as conditions or warranties implied by the Trade Practices Act and State Acts) to the extent that they cannot be excluded (“Non Excludable Conditions”). Sign Rise limits its liability:
a. for breach of any Non Excludable Conditions to the extent that liability for such breach can by law be limited to the invoice cost of the Products supplied; and
b. for any error or omission in delivery of the Products caused by Sign Rise to (at Sign Rise’s sole discretion) resupply of the Products affected by the breach, or the payment of the cost of resupply.
Subject to this Clause, Sign Rise excludes all other liability to the Customer for any costs, expenses, losses and damages suffered or incurred by the Customer in connection with this agreement whether that liability lies in contract, tort (including Sign Rise’s negligence) or under statute. Without limitation, Sign Rise will in no circumstances be liable for any indirect or consequential losses, including loss of profits, loss of revenue and loss of business opportunity. The Customer indemnifies Sign Rise and its officers, employees, contractors and agents against any costs, expenses, losses, damages and liability suffered or incurred arising from the Customer’s breach of this agreement and any negligent or unlawful act or omission of the Customer in connection with the Products.
23. Assignment
The Customer may not assign or subcontract any contract for the purchase of Products or its obligations under this agreement.
24. Force Majeure
Sign Rise will have no liability to the Customer in relation to any loss, damage or expense caused by Sign Rise’s failure to complete an order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock‑out, war or the inability of Sign Rise’s suppliers to supply necessary materials or any other matter beyond Sign Rise’s control.
25. Privacy Information
Sign Rise may give information about the Customer, directors or proprietors to a credit reporting agency for the following purposes:
a. to obtain a consumer credit report about the Customer, directors or proprietors;
b. allow the credit reporting agency to create or maintain a credit information file containing information about the Customer, directors or proprietors; and
c. to obtain commercial credit information about the Customer, directors or proprietors from a credit reporting agency.
26. Waiver of terms of agreement
The failure by Sign Rise to exercise, or delay in exercising, any right, power or privilege available to it under this agreement will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power.
27. Proper Law
The agreement is governed by and will be construed in accordance with the laws of the State of NSW and the parties agree to submit to the exclusive jurisdiction of the Courts of the State of NSW.
28. Entire Agreement
This document represents the entire agreement between the parties and may not be amended except in writing signed by each of the parties.
29. General
Sign Rise may serve any notice or Court document on the Customer by forwarding it by ordinary pre-paid post to the address of the Customer last known to Sign Rise.
If any term of this agreement shall be invalid, void, illegal or unenforceable, the remaining provisions shall not be affected, prejudiced or impaired.
Sign Rise may assign or licence or subcontract all or any parts of its rights and obligations hereunder without the Customer’s agreement or consent.
Except as otherwise agreed in writing, these terms and conditions shall apply to all sales to Customers by Sign Rise. To the extent that these terms and conditions (as published on the website of Sign Rise) may be varied over time by Sign Rise then the conditions current at the time of acceptance of any specific order or part of an order shall apply. Sign Rise shall not be required nor responsible to notify the Customer of the existence or content of any such variation.
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