Terms & Conditions

1 DEFINITIONS

‘Agreement’ means these general ‘Terms and Conditions’ (T & C’s) and any accepted Order or Tax Invoice for Goods and Services;

‘Business Day’ means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided;

‘Claim’ means any claim, notice, demand, costs (including legal costs) debts, liabilities, damages, losses, taxes, duties, fees, suits, actions, demands, proceedings, litigation or judgment, however it arises;

‘Customer’ means the person identified on a Quote, invoice or Order as the Customer and includes the Customers agents and permitted assigns;

‘Goods’ means any goods supplied by the Supplier including those supplied in the course of providing Services;’

‘Intellectual Property Rights’ means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs;

‘Order’ means a purchase order for Goods or Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties;

‘Price’ means the price payable for the Goods as agreed between the Contractor and the Client in accordance with clause 6.

‘Quote’ means a written description of the Goods or Services to be provided, an estimate of the Supplier’s charges for the performance of the required work and an estimate of the time frame for the performance of the work;

‘Services’ means the services to be provided by the Supplier to the Customer in accordance with a Quote and these Terms and Conditions;

‘Seller’ means Flexineon Australia, its successors, or its assignee or any person acting on behalf of and with the authority of Flexineon Australia;

2 GENERAL

2.1 These T & C’s apply to all transactions between the Customer and Seller

2.2 The Seller may revise or amend these T & C’s at any time at our absolute discretion. You agree that, in the event that any portion of these T & C’s is found to be unenforceable, the remainder of these T & C’s remain in full force and effect. Any revisions will be effective immediately and you agree to the T & C’s as amended.

2.3 If you do not agree to the new posted T & C’s, you agree that your only remedy is to discontinue your use of our Services.

2.4 Whist the Seller seeks to make reasonable efforts to provide accurate and timely information about the various projects and services offered by the Seller, the Owner cannot guarantee that the information provided is always up to date and correct or that their Site contains all the relevant information available.

3 QUOTES

3.1 The Seller may provide the Customer with a Quote. Any Quote issued by the Supplier is valid for 30 days from the date of issue.

3.2 Unless otherwise expressly agreed in writing, a Quote does not include delivery or installation of the Goods.

3.3 Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to the Supplier.

3.4 Following provision of a Quote to the Customer, the Seller is not obliged to commence work until the Quote has been accepted by the Customer. This occurs by the Customer completing and submitting any necessary form to the Seller (unless otherwise agreed to in writing between the Seller and the Customer).

3.5 The Seller reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. The Seller will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these T & C’s.

3.6 An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon the Seller.

4 ACCEPTANCE

4.1 Any instructions received by the Seller from the Customer for the supply of Goods and /or the Client’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.

4.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

4.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Seller.

4.4 The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice).

4.5 The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.

4.6 Goods are supplied by the Seller only on these terms and conditions herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms.

5 DEFECTS AND RETURNS

5.1 If the Customer fails to advise the Seller in writing of any fault in Goods or failure of Goods that are in agreement with the Customer’s Order within 48 hours of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and reflect the Customer’s Order. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Laws.

5.2 The Seller will not be liable for any defect or damage which may be caused or partly caused by or arise as a result of the Customer failing to properly maintain or store any Goods, the Customer using the Goods for any purpose other than that for which they were designed, the Customer continuing the use of the Goods after any defect became apparent or should have become apparent to a reasonably prudent user, the Customer failing to follow any instructions or guidelines provided by the Seller or fair wear and tear or anything beyond the Seller’s control.

5.3

Subject to this clause, returns will only be accepted provided that:

(i) the Customer has complied with the provisions of these terms and conditions; and

(ii) the Seller has agreed that the Goods are defective; and

(iii) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and

(iv) the Goods are returned in as close a condition to that in which they were delivered as is possible.

5.4 The Seller may in its absolute discretion accept non-defective Goods for return in which case the Seller may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.

5.5 Notwithstanding anything contained in this clause, if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.

6 PRICE AND PAYMENT

6.1 All prices are excluding GST unless otherwise specified.

6.2 Prices are as indicated on the invoices provided to the Customer or as quoted by the Seller to the Customer.

6.3 Prices and availability of services are current at the time of issue, and are subject to change at any time without notice.

6.4 Where permitted the Seller reserves the right to limit services, including the right the prohibit services to re-sellers.

6.5 At the Seller’s own discretion, a deposit may be payable.

6.6 Payment shall be made by either cash, direct credit, credit card or by any other method as agreed to between the Seller and Customer.

6.7 The Seller reserves the right to terminate the provision of a service provided to you by the Seller, effective immediately, without first notifying the Customer in advance should you not pay the fee by the due date.

6.8 The Customer must pay an invoice issued by the Seller on the earlier of:

(i) Within 7 days of a Tax Invoice being issued to the Customer; or

(ii) On delivery of the Goods; or

(iii) As otherwise specified by the Seller to the Customer in writing.

6.9 The timing of payments shall be of the essence and will be stated on the Invoice or in any other form. If no other payment due date is stated then payment shall be due within 7 days from the date of the Invoice being issued.

7 DELIVERY

7.1 The Customer will either collect the Goods or, if the Goods are to be delivered by the Seller, the Customer must pay all delivery charges incurred by the Seller for delivery of the Goods to the address nominated by the Customer.

7.2 It is at the Seller’s sole discretion whether the costs of delivery are included in the Price or will be in addition to the Price.

7.3 Delivery of the Goods shall take place when the Customer takes possession of the Goods at the Customers address (in the event that the Goods are delivered by the Seller). The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.

7.4 If the Customer nominates that the Goods be delivered to a third party, then the Delivery of the Goods to that third party are deemed to be delivery to the Customer for the purposes of this agreement.

7.5 The failure of the Seller to deliver shall not entitle either party to treat this agreement as repudiated.

7.6 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.

8 TITLE AND RISK

8.1 Risk in Goods passes to the Customer immediately upon delivery.

8.2 Property and title does not pass to the Customer under these terms and conditions until all money (including all money owing in respect of other transactions between the Seller and Customer) due and payable to the Seller by the Customer have been fully paid.

8.3 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 the Seller’s ownership of rights in respect of the Goods shall continue.

8.4 Where the Goods are supplied by the Seller to the Customer without payment in full, the Customer:

(i) is a Bailee of the Goods until property in them passes to the Customer;

(ii) irrevocably appoints the Seller to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Seller with respect to the Goods under applicable law;

(iii) must be able upon demand by the Seller to separate and identify as belonging to the Seller Goods supplied by the Seller from other goods which are held by the Customer;

(iv) must not allow any person to have or acquire any security interest in the Goods;

(v) agrees that the Seller may repossess the Goods if payment is not made within 7 days (or such longer time as the Seller may, in its complete discretion, approve in writing) of the agreed payment terms; (vi) agrees that the Seller may immediately terminate this Agreement upon notice to the Customer and take such action as the Seller deems necessary to recover all amounts due;

(vii) the Customer grants an irrevocable licence to the Seller or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies the Seller for any damage to property or personal injury which occurs as a result of the Seller entering the Customer’s premises.

8.5 If the Seller retains ownership of the Goods, all risk for the Goods passes to the Customer on delivery by the Seller or the Seller’s agent and in the even the Goods are collected by the Customer from the Seller, then all risk in the Goods passes immediately to the Customer on pickup.

8.6 If any of the Goods are damaged or destroyed following delivery by prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. These Terms and Conditions are sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

9 INTELLECTUAL PROPERTY

9.1 The Customer shall acquire no intellectual property rights in any computer software or drawings, designs, technical solutions, etc. included in or relating to the goods even if the goods have been customized for the Customer at the Customer’s cost. Such intellectual property rights are retained by the Seller or its supplier. The Customer warrants that all designs or instructions to the Seller will not cause the Seller to infringe on any patent or other intellectual property rights of a third party. The Customer indemnifies the Seller against any action taken by a third party against the Seller in respect of any such infringement.

10 DEFAULT

10.1 The Customer may terminate this Agreement if Seller materially defaults in the performance of its obligations hereunder and fails to cure such default within thirty (30) days after written notice thereof from the Customer. Such termination shall be Customer’s sole remedy in the event of a default by Seller.

10.2 The Customer shall be deemed in material default under this Agreement if the Customer fails to pay any amounts when due hereunder, cancels or attempts to cancel this Agreement prior to delivery or refuses delivery or otherwise fails to perform any of its obligations hereunder or fails to pay Seller any sums due under any other agreement or otherwise.

10.3 In the event of a material default by the Customer, Seller may, upon written notice to the Customer:

(i) suspend its performance and withhold shipments, in whole or in part,

(ii) terminate this Agreement,

(iii) declare all sums owing to Seller immediately due and payable, and/or

(iv)recall products in transit, retake same and repossess any products held by Seller for the Customer ‘s account, without the necessity of any other proceedings, and the Customer agrees that all products so recalled, taken or repossessed shall be the property of Seller, provided that the Customer is given credit therefor.

10.4 Exercise of any of the foregoing remedies by Seller shall not preclude exercise of any of the others, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to the Seller under Australian laws.

11 TERMINATION

11.1 Notwithstanding any other provision of this Agreement, the Seller may terminate this Agreement by providing written notice.

11.2 In this even of termination of this Agreement, then:

(i) Then the Seller will cease providing any Goods or Services and/or works to the Customer, except to the extent as otherwise agreed by the Seller and Customer in writing;

(ii) The Customer will still remain liable, subject to law, for any liabilities and claims which arise during the currency of the Agreement and agree that the confidentiality provisions will survive termination.

12 FORCE MAJEAURE

12.1 If circumstances beyond the Seller’s control prevent or hinder its provision of the Goods or Services, the Seller is free from any obligation to provide the Goods or Services while those circumstances continue. The Seller may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.

13 INDEMNITY AND WAIVER

13.1 The Customer (and/or its related entities, and each of their officers, employees and agents) indemnifies and keeps indemnified the Seller, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Seller or, for which the Seller is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these terms and conditions. This includes, but is not limited to, any legal costs incurred by the Seller in relation to meeting any claim or demand or any party/party legal costs for which the Seller is liable in connection with any such claim or demand. This provision remains in force after the termination of these Terms of Trade.

13.2 The Customer waives the right to rescind, or cancel any agreement with the Seller or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Goods are bought relying solely upon the Customers skill and judgement.

14 CONFIDENTIALITY

14.1 The Customer must not advertise or publish the Quote or Price that the Seller has provided to the Customer.

14.2 The Customer undertakes to keep confidential and not to use, or disclose, any confidential information, such as the Quote or the Price without the prior consent of the Seller, except such information as was known to the Customer prior to entering into this Agreement with the Seller or which is publicly disclosed and available.

14.3 The Seller or Customer may disclose any confidential information which it deems necessary:

(i) to any professional advisors, bankers, financial advisors and financiers;

(ii) to comply with any law or requirement of any regulatory body (including any relevant stock exchange); or

(iii) by court order.

15 GENERAL

15.1 If any provision or paragraph of this document is determined to be illegal and unenforceable it shall not affect the enforceability of any other provision or paragraph of this document.

15.2 Headings are included for ease of reference and do not form part of or affect interpretation of these conditions. The benefit of an order or must not be assigned by the Customer without the Seller’s prior written consent. The Seller may consent to the assignment of a contract by the Customer subject to such conditions as the Seller may in its absolute discretion choose to impose.

15.3 A variation or waiver of a provision or any amendment of these terms and conditions is effective only if in writing and signed by the Seller.

15.4 A failure, delay, relaxation or indulgence on the part of Seller in exercising any right conferred on it by these terms and conditions does not operate as a waiver of that right.

15.5 Any notice given in respect of these terms and conditions must be in writing and given personally

or delivered to the recipient’s address last known to the person giving the notice. In the case of

service by post, the notice will be deemed to have been served two days following the date of

posting.

15.6 Information contained throughout the web pages and in the Seller’s database is believed to be accurate and reliable at the time of publishing. There may be misprints, human errors, and omissions. The Seller reserves the right to make changes and corrections in prices, products, and specifications without notice.

15.7 Images displayed on this web site should be regarded as illustrative and informational purpose only. The actual products may differ slightly.

16 GOVERNING LAW

16.1 The construction validity and performance of any contract incorporating these terms and conditions

shall be governed by the laws of the State of New South Wales and the Customer shall submit to

the jurisdiction of the Courts of the State of New South Wales.

17 WARRANTY

17.1 The Seller will provide a recommended installation guide for all installers, it is up to the installer to follow this guideline, if the guidelines are not followed and results in the damage of the items, the Seller will void all warranties.

17.2 All items are to be installed by a qualified person, who is familiar with the product and the correct installation procedures.

17.3 It is the Customer’s discretion to do what they wish with the items, if this does not follow the installation guidelines and proper usage, all warranties will be void.

17.4 All items that used for hire purposes will void warranty immediately.

17.5 Items are to be installed for permanent applications, all items that are being installed and removed continuously will void all warranties.

17.6 Warranty is strictly 12 months, unless otherwise stated on each product data sheet or information page on the Seller’s website.

17.7 This clause is subject to change without notice

17.8 The Seller is committed to providing defect free products that will give the purchaser years of trouble free operation. All production facilities maintain strict quality assurance standards and our products have been designed and thoroughly tested to ensure the highest quality.

17.9 The Seller warrants its LED products to meet the performance criteria outlined in the written data sheets and specifications and to be free from defects in materials and workmanship for the warranty period stated.

17.10 Should any LED products fail to perform as specified during the warranty period, the Seller will replace free of charge all defective products in accordance with the terms and conditions.

17.11 All LED Products purchased from the Seller must be installed by a qualified person, with the correct power source that the Seller provides.

17.12 This warranty is based on reasonable indoor or outdoor usage in domestic, commercial, architectural and/or signage applications for image identification, when installed and used in accordance with instructions from the Seller.

17.13 Normal operating conditions are defined as 8-10 hours per day, 7 days per week, continuous use in typical outdoor heat and humidity, and environmental conditions as stated in each product specification sheet.

17.14 All LED systems, to varying degrees, have some amount of light degradation over the life of the product. The Seller designs all of its LED systems to minimise this light degradation but considers this a normal part of LED technology.

17.15 This warranty is valid when the LED products of the Seller are properly installed and wired in accordance with all instructions, building codes, the latest domestic and international safety agencies that are recognised as having applicable safety requirements.

17.16 All items are tested by the Seller prior to dispatch to ensure that the highest quality is met and maintained. Any item that is damaged due to incorrect installation, incorrect wiring, misuse and abuse shall not be covered under warranty.

17.17 Any improper use in conditions that are not stated in the Seller’s written data sheets and instruction, or stated herein, including the use of third party dimming, flashing or other effect devices not purchased from the Seller, extreme environmental conditions or any other unintended usage will void this warranty. All Items I.e. Neon Flex products that are not cut, sealed, connected and tested by the Seller with void the warranty.

18 LIMITATION OF LIABILITY

18.1 The Seller is committed to making high quality lighting products. Returning defective products will help us monitor and further improve product quality. Repair or replacement of the product is the sole remedy available.

18.2 Under no circumstance shall the Seller be liable for any incidental or consequential loss or damage whatsoever arising out of, or in any way related to any defect in or nonperformance of the products. No warranty of merchantability or fitness for a particular purpose is made or implied.

18.3 The Seller shall not be responsible for any other costs, including installation or field support labour or loss of profits, income or revenue. Additionally, any drawing, layout, quotation or other communication regarding suggested product type, amount of usage is for reference only and should be treated as an estimate.

18.4 The Seller shall not be responsible for minimum illumination levels or other performance criteria that is not stated in the Seller’s written data sheets and instructions, or stated herein.

18.5 The Seller reserves the right to test and examine all products returned under this warranty to evaluate proper usage, determine the cause of failure, and make a determination, in its sole judgement whether the products are defective and covered by this warranty.