These terms and conditions apply, unless varied in the Quotation:
1) Definitions:
a) “Agreement” the acceptance by You of this Quotation and these terms and conditions, in writing or by conduct.
b) “Background IP” in relation to a party means all Intellectual Property rights owned by or licensed to that party at the date of this Agreement or acquired by that party after the date of this Agreement that are independent of this Agreement and which are necessary or desirable for the provision of any one or more of the Services, Goods, and the Product.
c) “Documents” means all documents, including the Quotation, all drawings and designs, and other materials created or developed by or on behalf of AK Signs in the course of performing the Services or in relation to the Goods and the Product, whether in tangible or electronic form.
d) “Force Majeure Event” means any event outside AK Signs’ reasonable control including acts of God; declared or undeclared war; fire; flood; storm; earthquake; hurricane; cyclone; riot; power failure; industrial action; defaults of manufacturers or suppliers; the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay; labour disputes; theft; any criminal act or other similar events beyond AK Signs’ control that may prevent or delay AK Signs’ supply of the Goods, Product and/or Services to You.
e) “Goods” means any components or materials which AK Signs uses to manufacture or which forms part of the Product.
f) “IP” means statutory and other proprietary rights in respect of copyright and neighbouring rights, future copyright, all rights in relation to inventions, patents, plant varieties, registered and unregistered trademarks, registered and unregistered designs, circuit layouts and rights to require information be kept confidential, but does not include moral rights that are not transferable.
g) “Normal Working Hours” means Monday to Friday between 8.00am and 4.30pm.
h) “Practical Completion” the sign/s is/are functional and can be used (subject to electricity connection).
i) “Product” means anything which AK Signs manufactures for you and/or provides to You, in performing the Work.
j) “Quotation” means the accompanying offer, including any drawings and other materials included with that offer. If you accept this Quotation (which includes acceptance in writing, by conduct or verbal confirmation), you also accept these terms and conditions, unless otherwise agreed in writing by the AK Signs Managing Director.
k) “AK Signs” means Action Bronson Pty Ltd ABN 50 627 625 709 t/as AK Signs.
l) “Services” means and includes design, delivery and installation, technical advice, or maintenance services (if any) given or provided by or on behalf of AK Signs in connection with the Goods and Product and in preparation of the Quotation.
m) “Services IP” means all IP created, conceived, developed, or reduced to practice in the course of any one or more:
- the performance of the Services;
- the creation of the Documents;
- the creation of the Product; and
- the creation of the Goods.
n) “Site” means the site/s identified in the Quotation.
o) “You” and “Your” means the person or company or entity who has requested / agreed to this Quotation.
2) Quotation / Agreement:
a) These Terms and Conditions apply to any Quotation issued by AK Signs for the provision of Product, Goods and/or Services.
b) You, acting as the customer, acknowledge that you have read and understood the above Quotation and these Terms and Conditions (“Terms”) and accepted these Terms before proceeding with approval and authorisation of this Quotation with AK Signs.
c) AK Signs may vary or withdraw a Quotation at any time prior to it being accepted by You. Quotation is subject to final Site details, including but not limited to dimensions, conditions, and restrictions.
d) Acceptance by You may be in writing (by email, letter, or facsimile) or by conduct (you instruct AK Signs to proceed).
e) If a change in a legislative requirement or the requirements of any authority necessitates a change to the Product, Goods and/or Services and causes AK Signs to incur more cost than would otherwise have been incurred, the additional cost shall be added to the Quotation.
3) Payment terms:
a) a 50% deposit with this completed form or your official company order, is required to commence the works. The 50% balance is due on earlier of: delivery or Practical Completion, except that pre-approved account clients are strictly 30 days on the earlier of: delivery or Practical Completion.
b) Once commenced, all work must be paid for by You, in full or part thereof as estimated by AK Signs.
c) AK Signs reserves the right to charge You progress claims during the course of this Agreement. d) Interest is charged at 3% per month (calculated daily) on any outstanding amount owed to AK Signs, from the date due until paid.
e) Payment to AK Signs must be made in full without any deductions or restrictions for any set offs or counter claims by You on the due date advised.
4) Title:
a) AK Signs will retain title to Goods / Product supplied to You until AK Signs has received payment in full for the Goods / Product and all other Goods / Product and Services supplied by AK Signs to You.
b) Until title passes in accordance with this clause, You will:
i) hold the Goods / Product as fiduciary for AK Signs (in which full title to such Goods / Product will remain);
ii) keep the Goods / Product insured against all usual risks to full replacement value and account to AK Signs any insurance monies received by You for Goods / Product owned by AK Signs;
iii) store each delivery of Goods / Product separately, clearly identified as AK Signs’ property;
iv) not encumber or allow any lien, charge, or other security interest to be created over the Goods / Product.
c) Nothing in this clause will affect AK Signs’ right to be paid by You in accordance with this Agreement.
d) AK Signs will be entitled, without prejudice to AK Signs’ other rights, to recover and repossess such Products / Goods and to enter any premises and the Site without notice to You.
5) Site readiness:
a) Our Quotation is based on Site conditions at the date of this Quotation and assumes a Site clear of other trades and with clear access. If any Site changes after this time that add any additional costs for the Products installation these will be at Your expense.
b) You must satisfy all legislative requirements and the requirements of all authorities except to the extent expressly allowed for by AK Signs in the Quotation. Without limiting the generality of the foregoing, at your cost You must obtain and provide all approvals, permits, licences, security, traffic controllers, hoardings and power required for the Products / Good installation and operation, and provision of Services.
c) All work into ground has been quoted as natural earth, free and clear of obstructions, pipes, tree roots, wiring, solid rock etc.
d) Should any additional costs be incurred to complete the Work due to any unforeseen or hidden obstructions behind, above or under any surfaces at Site, these costs will be additional and at Your expense.
e) Any 240 volt primary wiring to the Product, its connection and any on/off control systems are not included in this Quotation.
6) Surface and installation area / Site readiness:
a) The surface, place, and access to immediate working area of actual intended installation / the Site must be ready and appropriately prepared by You, be free of other trades and be open and accessible.
b) You must allow for and advise AK Signs of any Site free and clear access timing delays, such as induction and Site operating hours. Any alterations to scheduled free and clear Site access will incur charges at AK Signs’ usual hourly rates and a cancellation fee is Site access fees to be re-scheduled.
7) Delivery & installation:
a) all production and on-Site work has been quoted in Normal Working Hours and in one continuous operation.
b) cancellation by You of an agreed installation date within 2 normal working days before due installation time and date will incur a full charge (minimum $420+gst), unless otherwise agreed in writing by AK Signs.
8) Delays & Cancellation:
a) Should the project be delayed by You or for reasons beyond the control of AK Signs, the completion date (and interim delivery / installation dates) may be rescheduled by AK Signs.
b) Site installation delays not due to AK Signs or its workmen are charged additionally to You and at a rate as set by AK Signs, and You agree to pay those rates.
c) In the event that You fail to provide delivery or installation instructions AK Signs within 10 business days of a request issued by AK Signs for such information, AK Signs will reserve right to charge for storage of the Product pending delivery advice and You agree to pay for same.
d) Manufacturing and installation delays will not entitle You to cancel the contract or seek compensation.
e) If, after authorising this Quotation, you seek to cancel this Agreement, contract, order, delivery of the Product, after AK Signs has ordered the Goods, provided Services, or started production / assembly of the Product, you must still, and You agree to be liable for, and to pay, AK Signs in full, in accordance with this Agreement and for any cancelation costs / fees incurred by AK Signs.
9) Variations to products:
a) Designs and artworks (in whatever form) provided by AK Signs are only to show You a concept of the final Product. You accept variations to the final Product, including but not limited to: its appearance, illumination, colours, finishes and function, may exist including but not limited to: due to the varying production methods, materials and lighting systems used to complete the Product.
b) The final selection of all materials, finishes, colours, lighting, and production systems used to complete the Product shall be at the discretion of AK Signs; which may or may not stem from availability of resources.
c) Unless specified on supplied drawings or in writing at the time of order / Quotation, the final positioning, and the type of installation fixings for all Products shall be at the discretion of AK Signs or its installers.
10) Variations to agreed scope of works:
a) Acceptance of variation
i) All variations to original scope of works (as agreed by acceptance of quotation supplied by AK signs) must be accepted in principal prior to any works carried out; which may or may not include- additional deliverables, adjustment to deliverables, any unforeseen permits/inductions (costed) required to complete works (Council approvals, pedestrian/traffic management), any access or other equipment required to complete works.
ii) Variations accepted in principle will be outlined in a new quotation, which will require acceptance by client, and 100% payment prior to works carried out, unless written/verbal agreement states otherwise.
b) Timeline of variation works
i) Variation works may or may not be completed according to the Projects initial schedule or timeline, subject to material and time availability;
ii) Where required, AK Signs will set all timeframes and dates for variation items.
11) Defects:
a) You must:
i) examine the Product/s and Goods as soon as reasonably practicable after delivery and again after installation;
ii) immediately notify AK Signs in writing of any incomplete or defective Product, Goods or Services or any other failure to comply with the Agreement within 7 days of delivery of the relevant Product/s, Goods, or performance of the relevant Services and again on completion of installation (failure to so provide defects notification will, to the extent legally possible, void our Product Warranty to You); and
iii) preserve, as far as possible for AK Signs’ inspection, Product/s / Goods that are alleged not to comply with the Agreement and return Product/s / Goods to AK Signs if AK Signs so requests.
b) If You fail to strictly comply with the sub-clause above, You will be deemed to have waived your right to claim in connection with the Product, Goods and/or Services and You are barred from bringing any action whatsoever against AK Signs in connection with Product, Goods, Services and/or the Agreement.
12) Default:
a) If You commit a breach of the Agreement and that breach has not been remedied within 3 days of the breach occurring, AK Signs may either suspend the Goods / Product and/or Services or terminate the Agreement and AK Signs will be entitled to damages.
b) AK Signs reserves the right immediately to terminate or suspend AK Signs’ performance of the whole or any outstanding part of any Agreement for the supply of Goods and/or Services without incurring any liability to You in any of the following circumstances:
i) You fail to take delivery of or to pay for Goods and/or Services by the due date or otherwise breaches any other term of the Contract;
ii) You inform AK Signs, or creditors generally, that You are insolvent or financially unable to proceed with the Agreement;
iii) execution is levied against You by a creditor;
- iv) You are an individual person or a partnership including an individual person, and if that person:
(1) commit an act of bankruptcy;
(2) have a bankruptcy petition presented against You or present Your own petition;
(3) are made bankrupt;
(4) make a proposal for a scheme of arrangement or a composition; or
(5) have a deed of assignment or deed of arrangement made, accepts a composition, is required to present a debtor’s petition, or has a sequestration order made, under Part X of the Bankruptcy Act 1966 (Cwlth) or like provision under the law governing the Contract; or
v) in relation to You being a corporation:
(1) notice is given of a meeting of creditors with a view to the corporation entering a deed of company arrangement;
(2) it enters a deed of company arrangement with creditors;
(3) a controller or administrator is appointed;
(4) an application is made to a court for its winding up and not stayed within 14 days;
(5) a winding up order is made in respect of it;
(6) it resolves by special resolution that it be wound up voluntarily (other than for a member’s voluntary winding up); or
vi) a mortgagee of any of its property takes possession of that property;
vii) AK Signs notifies You of having reasonable grounds for suspecting that You will not pay for Goods, Product and/or Services on the due date;
viii) there has been a substantial increase in AK Signs’ costs of manufacture and supply of Goods, Product and/or Services after the date of the Quotation arising from circumstances beyond AK Signs’ reasonable control where the Contract is for a fixed price and AK Signs and You have failed to reach agreement on a reasonable adjustment in the Price within thirty (30) days of AK Signs notifying You of such increase; or
ix) contractual performance by either AK Signs or You is delayed or prevented due to any Force Majeure Event.
Phone. 02 9550 1988 www.AKsigns.com.au Action Bronson Pty Ltd ABN: 50 627 625 709 13-15 Gerald Street, Marrickville NSW 2204
13) IP:
a) All Background IP remains the sole property of its owner. A party acquires no right, title, or interest in or to the Background IP of the other party by virtue of this Agreement other than as expressly set out in this Agreement.
b) Each party grants to the other party a royalty-free, non-exclusive, non-transferable licence during the term of this Agreement to use the Background IP owned by it for the sole purpose of providing the Services.
c) Subject to clause 12.d., all Services IP is owned by AK Signs. Title to all Services IP vests in and is assigned to AK Signs with effect from its creation.
d) On and from the date that title in the Goods/ Product supplied passes to You in accordance with clause 4 of this Agreement, AK Signs grants to You a non-exclusive, royalty free, non-transferable licence of AK Signs’ Background IP and Services IP to enable You to use any deliverables resulting from the Services, including the Goods/ Product at the Site.
e) You must not use any of the AK Signs Background IP and/ or Services IP beyond the scope of clause 12.d. without a prior written licence from AK Signs, which may be subject to a licence fee.
f) You warrant that You own Your Background IP and that the use of Your Background IP, including as incorporated in the Services IP, does not infringe any third party’s IP. You hereby indemnify and hold harmless AK Signs against any claims that such use of Your Background IP infringes any third party’s IP, whether or not such claims are substantiated.
13) Warranty: Subject to guarantees that cannot be excluded under the Australian Consumer Law and subject to AK Signs having received your defects notification within the time limits specified in clause 10:
a) We provide a 12 month warranty on our workmanship in the manufacture of our Products (“Product Warranty”).
b) (Back to base warranty): Goods not manufactured by AK Signs and used in the Products manufacture are only warranted to the extent we are able to obtain warranties from the supplier of the Goods (“Goods Warranty”). AK Signs is responsible for any item, condition, representation, or warranty given by the Goods manufacturer.
c) Subject to this, You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Product repaired or replaced if the Product fails to be of acceptable quality and the failure does not amount to a major failure.
d) If the Goods Warranty extends beyond the Product Warranty, all AK Signs labour and other associated costs of You using this Goods Warranty will be an additional cost and charged to You.
e) Subject to the clause below (Limitation of Liability) our warranty is limited to the cost of repairing, replacing, or making good the Product at ground or step ladder level. Access to the Product (goods in the Product) above ground or step ladder level need to be quoted and pre-paid before works can be undertaken by or for AK Signs to effect repair, replacement or make good.
f) Travel outside the Sydney metro area, access equipment, regulatory permits or specialized services and the associated costs required to service the Product are not included in the warranty.
g) All warranty work is quoted in Normal Working Hours only.
h) Illuminated signage: the client must provide a photo of the sign showing the service area requested, and if there is more than one sign at site a plan/description clearly identifying which sign requires service.
i) All service requests must confirmed in writing by You to initiate the service request, and in order to comply with applicable OH&S and work place safety method requirements.
j) Any requested service calls to our Products that are found not to be the fault of AK Signs or the Goods supplied by AK Signs, or a call out for a Product in an inaccessible Site or above ground / step ladder level will incur a call out fee payable by You.
k) Site induction meetings required to be completed by AK Signs or its service technicians to enable Site access and to service (repair etc.) the Product are additional and payable by You, regardless of being under warranty, at our usual hourly rates, or weekend / penalty rates as the case may be.
l) The cost of servicing any sign above ground level is not included in our quotation and only the replacement cost of any faulty Goods (parts) are included.
m) For self-adhesive vinyl (and similar) product/s and/or Goods to any painted surfaces, no warranty is given as to the longevity or degree of adhesion of the Products/ Goods to the surface.
14) Limitation of Liability:
a) All terms, conditions, warranties, and representations that might otherwise be granted or implied by law, are hereby expressly excluded.
b) AK Signs does not exclude, restrict, or modify any liability that cannot be excluded, restricted, or modified, or which cannot be excluded, restricted or modified except to a limited extent, as between AK Signs and You by law including liability under the Competition and Consumer Act 2010 (Cth).
c) However, where such statutory provisions apply, to the extent to which AK Signs is entitled to do so, AK Signs’ liability will be limited at its option to:
i) in the case of a supply of Goods:
(1) the replacement of the Goods or supply of equivalent Goods;
(2) the payment of the cost of replacing the Goods or acquiring equivalent Goods;
(3) the payment of the cost of having the Goods repaired; or
(4) the repair of the Goods; and ii) in the case of Services:
(1) the supply of the Services again; or
(2) the payment of the cost of having the Services supplied again.
d) To the extent permitted by law AK Signs will under no circumstances be liable in any way whatsoever to You for any form of loss, damage or expense sustained or incurred by You or any other party in consequence of or resulting directly or indirectly out of the damage, breakage or faults which occurs in shipment organised by You, or damage that is attributed to acts of God, vermin, terrorism, fire, vandalism or improper use or storage, the supply of the Goods or Services by AK Signs, the use or performance thereof, any failure to install the Goods in accordance with their applicable installation instructions and manuals provided with the Goods or to operate the Goods in accordance with their applicable operation instructions and manuals provided with the Goods, any breach by AK Signs of any Contract incorporating these Conditions, or the negligence of AK Signs, or the negligence of You or any third party including in relation to the delivery, installation or operation of the Goods. In particular, AK Signs is not liable in any circumstances whatsoever (including any fault or default of AK Signs) for any indirect or consequential losses (including loss of goodwill, loss of business or anticipated savings), loss of profits or use, any rectification costs, or any third-party claims, in connection with the Goods, Services or the Contract.
Phone. 02 9550 1988 www.AKsigns.com.au Action Bronson Pty Ltd ABN: 50 627 625 709 13-15 Gerald Street, Marrickville NSW 2204
15) Indemnity: You hereby indemnify AK Signs for any loss or damage suffered by AK Signs arising from or in connection with:
a) any breach of the Contract by, or negligence of, You;
b) any breach of law by You;
c) the death or injury to any person or damage to any property arising from the performance by You of your obligations under the Contract; or
d) any failure to install the Goods / Product in accordance with their applicable installation instructions and manuals provided with the Goods or to operate the Goods / Product in accordance with their applicable operation instructions and manuals provided with the Goods / Product, or in connection with the negligence of You or any third party including in relation to the installation or operation of the Goods / Product.
16) Further Assurances: Each party agrees that it will do all acts reasonably necessary to give effect to this Agreement, and will refrain from doing any acts that would inhibit performance of this Agreement.
17) Governing Law: The Agreement is governed by the laws of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales
18) Waivers: A failure or delay in the exercise, or partial exercise, of a right arising from a breach of the Agreement does not result in a waiver of that right. A waiver of any term or condition of this Agreement is only valid if waived in writing and signed by AK Signs.
19) Variation of Agreement: A variation of any term of the Agreement must be in writing and signed by the parties. For the avoidance of doubt, this clause does not apply to Variations to the Products, Goods and/or Services.
20) Severability: If any provision of the Agreement is held invalid, unenforceable, or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.