Introduction
These standard terms and conditions of supply (“Terms and Conditions”) govern all transactions involving the provision of goods or services by Matopos PTY Ltd ATF Malemi Unit Trust trading as Matopos Signs (referred to as “us” or “we”) to the purchasing party (“you” or “client”). These Terms and Conditions are to be read in conjunction with any additional terms specified in quotations, engagement letters, or proposals provided by us (“Additional Conditions”). In the event of any inconsistency, the Additional Conditions shall take precedence over these Terms and Conditions. No amendments to these Terms and Conditions, nor any terms proposed by you, shall be binding unless agreed to in writing by us.
Orders
All orders for goods or services (“Products”) must be submitted to us in the manner and format stipulated by us. We reserve the right to accept or decline any order at our discretion. Once an order is accepted by us, it cannot be canceled without our explicit written consent. The acceptance of an order constitutes the formation of a separate contract of sale (“Contract”), which encompasses these Terms and Conditions, any Additional Conditions, and any supplementary terms agreed upon in writing. You are responsible for providing us with clear and timely instructions, along with any relevant information necessary for the provision of the Products. You warrant that any instructions, information, or designs provided by you do not infringe upon the intellectual property rights of any third party.
Fees, Price, and Payment
The pricing, fees, rates, and charges (“Fees”) applicable to the Products are outlined in the Additional Conditions, our price list, or other documentation provided by us. In addition to the Fees, you are responsible for paying any applicable Goods and Services Tax (GST) as required by law, which will be detailed in the tax invoice provided by us.
Payment of the Fees must be made in accordance with the specified payment terms outlined in the Additional Conditions. If no payment terms are specified or if credit terms have not been extended to you, the payment schedule shall be as follows: 50% of the Fees upon acceptance of the order (Deposit).
The remaining balance upon completion of the order.
You are prohibited from withholding payment or deducting any amounts from the invoiced price without our prior consent.
Delivery, Risk, and Title
We reserve the right to charge interest on any overdue invoices at a rate 2% higher than the rate prescribed under the Penalty Interest Rates Act 1983 (Vic), calculated from the due date until payment is received. Any payments made will be applied first against accrued interest. You agree to reimburse us for all legal and other costs incurred in the event of payment default and collection of overdue amounts.
Delivery and Acceptance
Delivery or completion dates provided by us are estimations only. While we strive to meet the stated timeframes, we shall not be liable for any loss arising from delays in delivery. If agreed, you must ensure access to your premises for delivery and installation, complying with health and safety regulations. Failure to accept delivery may result in deemed delivery at our willingness to deliver.
You are deemed to have accepted delivered Products unless defects are reported within 48 hours of delivery. We reserve the right to withhold delivery for outstanding payments.
Title and Risk
Legal and beneficial ownership of Products remains with us until full payment of Fees. The risk of loss or damage passes to you upon title transfer or delivery, whichever occurs earlier. You are responsible for obtaining necessary permits and consents for Product supply and installation.
Limitation of Liability and Indemnity
Subject to applicable law, we do not exclude statutory guarantees, warranties, or conditions implied by law. We disclaim liability for any direct, indirect, or consequential loss or damage incurred in relation to the Products.
Our liability for breaches of these Terms and Conditions is limited to either supplying the Products again or reimbursing the cost of doing so, at our discretion and to the extent permitted by law.
Responsibility and Indemnification
You acknowledge full responsibility for any actions taken or conduct displayed in reliance on the Products. This responsibility extends to acknowledging that the Products are formulated based on the information and data you provide. We are absolved of liability for actions or conduct resulting from your reliance on Products affected by incomplete or incorrect information you have provided.
You agree to indemnify us against all losses, damages, or costs incurred due to any breach of these Terms and Conditions, any willful misconduct, negligence, or illegal actions by you, your employees, or contractors concerning the Products. Your liability is diminished proportionately to any loss, damage, or cost arising from our own willful misconduct or negligence.
Further, you commit to indemnifying us against any losses, damages, or costs stemming from any infringement of intellectual property rights, whether ours or those of third parties, by you, your employees, or contractors. This indemnity is not limited to any other provisions regarding your liability.
Default and Termination
If you face bankruptcy, insolvency, engage in creditor negotiations, or any similar financial distress; or if a receiver, manager, or liquidator is appointed over your assets; or if we reasonably believe you are unable to meet your payment obligations, we reserve the right to:
Demand immediate payment of all outstanding amounts, including any accrued interest. Terminate any or all Contracts with immediate effect.
Should we consent to cancel an order as per your request, you are obliged to cover the Fees for any Products already supplied or for costs incurred up to that point.
We may terminate any Contract immediately, if necessary, access to your premises is not provided or if the premises do not meet safety and security standards. In such cases, you are required to pay the Fees as though the Products were fully supplied.
Either party may terminate a Contract with seven days’ written notice. Upon termination by us, you must pay for any Products supplied before the termination. Conversely, if you initiate the termination, you are responsible for covering:
All costs and Fees incurred for Products supplied and any additional expenses incurred by us up to the point of termination. This includes any work in progress, materials ordered, and any other obligations we have entered based on fulfilling the contract.
Termination Financial Obligations
Upon termination of a Contract, you are obligated to cover:
The Fees for any Products we have supplied up to the point of termination.
For any orders that are incomplete at the time of termination, you are also responsible for any costs we have already incurred related to the unfinished portions of the order. This includes, but is not limited to, costs associated with raw materials and labor expended in the production of the relevant Products.
Deposit Utilisation
You unequivocally authorise us to apply any Deposit towards the Termination Fees stipulated in clauses 6.4 and/or 6.5. To clarify:
- Should the Deposit be insufficient to cover the Termination Fees, you are required to pay the remaining balance (the difference between the Termination Fees and the Deposit) promptly, in accordance with the specified clauses.
- If the Deposit exceeds the Termination Fees, we will refund the surplus of the Deposit to you following the termination of the relevant Contract.
Force Majeure
We shall not be held liable for any failure or delay in fulfilling our obligations under these Terms and Conditions or any Contract due to circumstances beyond our reasonable control, including but not limited to industrial disputes, strikes, lockouts, accidents, equipment breakdowns, import or export restrictions, natural disasters, acts of terrorism, or war. In the event of force majeure, we reserve the right to suspend or terminate the affected Terms and Conditions or Contract by notifying you.
PPSA Compliance
Under these Terms and Conditions, which serve as a security agreement, you grant us a security interest in:
- All Products previously supplied by us to you.
- Any Products supplied to you in the future.
- All goods that incorporate, are processed with, or are commingled with the Products.
- Proceeds from the sale of any of the aforementioned items.
This security interest is collateral for the payment of all amounts due to us for supplied Products, as well as for the fulfilment of your other obligations to us.
You agree to:
- Promptly undertake all necessary actions (including document signing) and provide all required assistance and information to ensure our security interest is given first-ranking priority and is perfected.
- Allow us to register a financing statement or financing change statement at your expense and perform any other actions needed to perfect our security interest in the specified collateral.
You are prohibited from creating, or allowing the creation of, any other security interest in the collateral outlined in clause 6.1, aside from what is established under these Terms and Conditions.
Upon our request, you must, at your own expense, promptly take all necessary steps (including obtaining any necessary consents) to enable us to access any premises where the Products are located, for the purpose of repossessing the Products. Personal Property Securities Act (PPSA)
To the fullest extent permitted by law:
Certain provisions of the Personal Property Securities Act 2009 (Cth) (PPSA) are expressly excluded from applying to the security interests established under this clause. These provisions include sections 95, 118(1)(b)(i), 121(4), 125, 129, 130, 132(3)(d), 132(4), 142, and 143.
You waive your right to receive notice from us of any registration event under section 157(1) of the PPSA.
Terms defined in the PPSA and any accompanying regulations maintain their defined meanings within these Terms and conditions.
Intellectual Property
‘Intellectual Property’ encompasses all current and future rights conferred under statute, common law, or equity. This includes titles and interests in inventions, know-how, patents, trademarks, designs, copyrights, domain names, confidential information, and other intellectual creations.
‘Developed Intellectual Property’ refers to Intellectual Property arising from or related to the supply of Products, a Contract, or these Terms and Conditions.
You agree to grant us a royalty-free license to:
Utilise the Intellectual Property contained within any designs, drawings, specifications, or other materials provided by you (referred to as “Your Materials”).
Allow our employees and/or contractors to utilise the Intellectual Property within Your Materials.
This license is granted for the purpose of supplying the Products to you in accordance with each Contract. If you do not own the Intellectual Property within Your Materials, you warrant that you have obtained all necessary consents and authorisations to grant us a sub-license for the specified purpose.
We acknowledge that you retain ownership of all your Intellectual Property within Your Materials. Unless otherwise agreed in writing:
You agree that all Developed Intellectual Property will automatically vest in and be assigned to us upon its creation.
You agree, at your expense, to execute all documents and take all necessary actions to effectuate this assignment, including obtaining releases or assignments from your employees or contractors regarding any Developed Intellectual Property.
You agree to obtain the irrevocable consent of your employees and contractors to waive any moral rights they may have concerned Developed Intellectual Property.
We will grant you a royalty-free, irrevocable license to use any Intellectual Property incorporated within Products supplied by us in accordance with these Terms and Conditions.
Ownership of Intellectual Property
You acknowledge that all our Intellectual Property inherent in the Products and other information provided to you, including Intellectual Property and information regarding our manufacturing processes, remains:
Our property or the property of our Related Body Corporate, as defined in the Corporations Act 2001 (Cth); or
Under our control through a license agreement.
Unless expressly agreed otherwise in writing, you are prohibited from using or disclosing our Intellectual Property, including any Developed Intellectual Property, or information for any purpose other than fulfilling your obligations under these Terms and conditions.
Subcontracting
We reserve the right, at our sole discretion, to engage a third party to fulfil some or all our obligations under each Contract.
These Terms and Conditions and each Contract shall be governed by the laws of the State or Territory where our principal place of business is located.
If you are a corporation or corporate trustee, we reserve the right to request that the directors or principals of your entity enter a guarantee of performance of your obligations under these Terms and Conditions and each Contract, in a form deemed reasonable by us.
A party’s failure or delay in exercising a right or power does not waive that right or power unless explicitly stated in writing.
If any clause of these Terms and Conditions is deemed invalid, void, illegal, or unenforceable, it shall not affect the validity, legality, or enforceability of the remaining clauses.
If you consist of multiple persons or entities, each person or entity shall be jointly and severally liable for payment of any amounts due to us and for fulfilling all other obligations imposed on you under these Terms and Conditions and each Contract.