This Proposal (“the Proposal”) is subject to the following conditions which:-
(a) shall apply to any contract resulting from the acceptance of the Proposal by the Client, unless expressly waived in writing by Fits In Pty Ltd.
(b) shall override all inconsistent provisions in tender documents, specifications, orders, acceptances, contracts and agreements.
(c) shall be expressly embodied in or shall be deemed to be embodied in all contracts or agreements, formal or informal, express or implied, made pursuant the Proposal.
“The Company” means Fits In Pty Ltd ABN 85 131 165 029, (Licence No. QBCC 1145341 issued pursuant to the Queensland Building Services Authority Act 1991)
“The Contractor” means Fits In Pty Ltd ABN 85 131 165 029, its successors or assigns.
“The Client ” means the person, firm, company, trust or entity to whom the Proposal is made and includes any person, firm, company, or entity acting in the capacity of agent, trustee or director of the Client and includes its successors and assigns or any person acting on behalf of and with the authority of the Client as described on any application, quotation, work authorisation or other form as provided by the Company to the Client .
“The Contract” means the agreement between the Company and the Client upon the terms and conditions set out in the Proposal, which comes into existence by the operation of the terms of the Proposal. “The Works” means the goods and materials specified in the Proposal, which the Company is to manufacture and/or supply and/or install and/or arrange to manufacture, supply, or install for the Client. “The Contract Sum” means the amount stipulated in the Proposal for which the Company has agreed to perform the Works.
“The Site” means the land or place at which the Works are to be delivered and/or installed.
“Practical Completion” means the completion of the Works except for minor defects or omissions which do not prevent the Works from being reasonably capable of being used for their intended purpose “Latent Condition” -means any physical condition affecting the Site which differs from the physical condition which could reasonably be expected by Company at the time of entering into the Contract.
2. CHOICE OF LAW
2.1 These terms and conditions and any contract to which they apply shall be governed by the laws of the State of Queensland and each party submits to the non-exclusive jurisdiction of the courts of the State of Queensland.
3 CURRENCY OF PROPOSAL
3.1 The Proposal shall remain current for the period specified in the Proposal.
3.2 At any time prior to acceptance by the Client, the Company may withdraw, vary or extend the Proposal.
4 ACCEPTANCE BY THE CLIENT
4.1 The Client is taken to have accepted and is immediately bound by these terms and conditions if the Client executes the Acceptance and/or provides the Company with any instructions for the Works and/or the Customer’s acceptance of the Proposal supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
4.2 Where more than one Client has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
4.3 This agreement and these terms and conditions bind the Client both personally and as trustee of any trust of which the Client is trustee.
4.4 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 the Company
4.5 If the terms of the acceptance are inconsistent with these terms and conditions of Proposal, the acceptance shall constitute a counter- offer and shall not be binding on Company, unless Company expressly accepts same in writing.
4.6 Despite that written acceptance of the Proposal may not have been received during the time that the Proposal is current, should the Works be commenced at the request (oral or otherwise) of the Client then a Contract shall come into existence between Company and the Client subject to the conditions of the Proposal.
5.1 Where estimated commencement and completion dates are included in the Proposal and agreed, commencement of the Works is subject to the availability of full information from the Client , materials from suppliers and access to the site to enable manufacture and/or installation to proceed.
5.2 Dates are given in good faith and are estimated according to present conditions and circumstances in the control of or in the best information available to the Company.
5.3 The Company does not accept liability for any penalties or damage, either direct or indirect, for failure to commence or complete the Works in the estimated time.
5.4 If no estimated commencement and completion dates are included in the Proposal, the Works shall commence on and reach Practical Completion by the dates agreed between the Client and the Company.
6.1 The Client shall on or before commencement of the Works give the Company free and unrestricted access to the Site to enable it to commence and proceed with the Works.
7.1 The Client may only vary the Works by notice or approval in writing to the Company and such variation shall not vitiate the contract.
7.2 The Company shall not be obliged to vary the Works or perform any extra work unless the Client has given the notice or approval referred to in 7.1
7.3 The Company shall be entitled to claim payment for such variation (including a variation margin of twenty percent (20%) to cover the Company’s administration, management and supervisory costs as well as overhead and profit) and an extension of time for such variation, as it considers appropriate.
8 WORKING HOURS
8.1 The Contract Sum is based on the Works performed during normal working hours during a normal working week.
8.2 If requested by the Client and agreed to by the Company, the Company shall perform work outside normal working hours in which case the extra cost shall be added to the Contract Sum.
9.1 Unless otherwise stipulated, the Client shall provide all facilities required by the Company for the execution of the Works, including but not limited to:
(a) accommodation for storing and protecting goods, materials & plant;
(b) free use of water, electricity and sanitary accommodation; and,
(c) such other facilities as may be required by the Company.
10 BUILDING TOLERANCES
10.1 In the event that Company encounters tolerances in the building structures and components on to which it applies its products, which exceed reasonable commercial tolerances, or specified building tolerances, the costs incurred in overcoming these conditions will be added to the Contract Sum and payable by the Client to the Company.
10.2 Dimensional tolerances of all material components used in the Company’s products are within the manufacturers’ specifications.
11 APPROVAL BY A RELEVANT AUTHORITY
11.1 Unless agreed otherwise by the Company, the Client shall give all necessary notices and pay all necessary fees and will comply with all provisions and requirements statutory or otherwise relevant to the Works.
12.1 Notwithstanding that a sample of the goods and materials which form part of the Works may have been exhibited to and inspected by the Client it is hereby declared that such sample was so exhibited and inspected solely to enable the Client to judge for itself the quality of the goods and materials prior to purchase and not so as to constitute a sale by sample under this Contract.
13 DESIGN RESPONSIBILITY
13.1 If the Client or his agent supplies the design plans and specifications for the Works, the Company takes no responsibility whatsoever and shall not be liable for any loss or damage resulting from any defects in the design plans and specifications or the compliance or otherwise with Australian Standards, where applicable.
13.2 If the Client or his agent supplies the design plans and specifications for the Works, the Client warrants to the Company that the design plans and specifications do not infringe any copyright, moral rights or any other intellectual property right and indemnifies the Contractor against any claim, loss, expense or liability arising out a of a breach of this warranty.
14 EXTENSIONS OF TIME
14.1 The Company shall be entitled to claim and be allowed an extension of time in respect of any delay to the completion of the Works not caused by or attributable to any act or default of the Company or any employees or agents of the Company.
15 PROTECTION OF WORK
The Client shall ensure that all unfixed materials on the Site or such other part of the Works that may be carried out by the Company from time to time shall be protected from damage caused by any person not being an employee or agent of the Company and shall be responsible for any damage caused by such persons.
16 DELAY COSTS
16.1 Should the Company be delayed by the Client or by any other person not being an employee or agent of the Company after the commencement of the Works, the Client shall reimburse or make good any loss or damage sustained by the Company in respect of such delay, such loss or damage to include, but not be limited to, additional administration, management and supervisory costs and any other proper expenditure incurred by the Company.
17 SERVICES PROVISION OR ALTERATION
17.1 Unless otherwise stated, the Proposal does not allow for connection of or alteration to any services including but not limited to Electrical, Data, Telephone, Air-conditioning, Sprinklers, Fire Detection and Protection, Water and Sewerage.
18 IMPORTED MATERIALS
18.1 Where the Works include the supply of materials which are to be imported into Australia, then the Client will pay to the Company any extra costs incurred by the Company as a result of variations to exchange rates, custom duty or overseas shipping rates.
19 GOODS & SERVICES TAX (“GST”)
19.1 If a transaction for which provision is made subject to the Proposal or the Contract is a taxable supply, then the amount payable for the supply represents the price of supply and includes the Company liability for GST on the supply. The Client is not obliged to pay any additional amount to the Company on account of GST on the supply.
19.2 A party is not obliged to pay GST on a taxable supply under the Proposal or the Contract until that party is given a valid tax invoice for the supply.
20.1 The copyright in all drawings and data prepared and compiled by the Company shall remain in the Company and the Client shall not have right or license to use such drawings or data.
21 TERMS OF PAYMENT
21.1 The Client shall pay to the Company the Contract Sum, which will be invoiced progressively by the Company in such amounts, at such times and in such manner as it in its absolute discretion may decide.
21.2 Such invoice issued by the Company is to be paid by the Client within seven (7) days from the date of the invoice.
21.3 Unless specifically nominated by the Company in this Proposal, the Company will not accept deduction for retention or other conditions. In the event of retention being accepted by the Company it reserves the right to arrange the provision of a standard bank guarantee in lieu of deduction for retention, which must be accepted by the Client.
21.4 If after the issue of an invoice to the Client any money payable to the Company is unpaid at the expiry of seven (7) days after the period prescribed the Company shall then be entitled to payment of interest on the amount due at the rate of Eighteen (18) percent per annum, calculated from the date on which payment became due.
21.5 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:
a. any money payable to the Company becomes overdue, or in the Company’s 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 (other than as specified in the amendments to the Corporations Act 2001 (Cth) enacted by Part 2 of the Treasury Law Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth)); 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 (other than as specified in the amendments to the Corporations Act 2001 (Cth) enacted by Part 2 of the Treasury Law Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth)).
22.1 The parties agree that the ownership of the goods delivered by the Company to the Client and whether installed by the Company or not is only transferred to the Client when it has paid all sums owing to the Company whether under this or any other contract.
(a) the Client defaults in payment of any invoice by the due date; or,
(b) in the event that the Client is an individual, the Client becomes Bankrupt or calls a meeting of creditors; or
(c) in the event that the Client is a company or trust, the Client
(i) goes into administration, receivership or liquidation (provisional, voluntary or otherwise), or, (ii) enters into a Scheme of Arrangement with its creditors; or,
(d) a secured creditor enters into possession of assets and/or undertakings of the Client, directly or by appointment of an Agent,the Client shall forthwith return the goods in good order and condition to Company.
22.3 If the Client fails to return the goods to the Company in accordance with clause 22.2 hereof, the Company, by its servants or agents, shall without prior notice be entitled to enter on or into any land or premises in the occupation of the Client where the goods may be or are believed by the Company to be and to retake possession of such goods.
22.4 All costs, expenses and losses incurred by the Company retaking possession or intending to retake possession of such goods including cartage, freight and insurance both to and from the Company’s premises shall be borne and paid by the Client and may be added to the amount of any other moneys then due and owing to the Company by the Client and shall bear interest as hereinbefore provided.
22.5 The Client shall indemnify, and hold indemnified the Company, its servants or agents from all claims whatsoever and howsoever arising from the retaking of the possession of such goods and the Client shall forfeit all moneys paid hereunder.
22.6 Notwithstanding the previous provisions, the goods and materials that form part of the Works shall be at the Client’s risk from the time when they are delivered to the Site.
22.7 If the Client refuses to accept delivery of the goods and materials when same are tendered or offered by the Company, it shall without prejudice to any other rights then accrued or which may accrue to the Company forfeit all moneys previously paid by it.
23 SECURITY AND CHARGE
23.1 Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:
a. where the Client is now or in the future the owner of land, realty or any other asset capable of being charged, both the Client agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client acknowledge and agree that the Company (or the Company’s 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 the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own Client basis.
c. the Client agrees to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Clients true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 23.1.
24 LIMITATION OF LIABILITY
24.1 In the event that any defects appear in the goods or materials installed by the Company or that the installation is in any way defective, the Company’s only obligation shall be so far as permitted by law:-
(a) In the case of faulty goods or materials, any one or more of the following:-
(i) The replacement of the goods or materials or the supply of equivalent goods or materials;
(ii) The repair of the goods or materials; or
(b) In the case of faulty installation:-
(i) The supplying of the necessary services to install the goods or materials again; and
(ii) The payment of the cost of having the goods or materials installed again.
a. The Company shall not be liable for any claim for any loss, damage or injury of any kind whatsoever, arising directly or indirectly from the Customer’s failure to obtain professional independent and/or tradesman’s advice in relation to the suitability of the Works for any specific purpose. The Company shall not be liable to the Client for any loss of profits or consequential, indirect to special loss, damage or injury of any kind whatsoever, arising directly or indirectly from any defect in the Works or their installation (regardless of any express or implied terms, or by reason of the Company’s negligent act or omission or otherwise at common law).
25.1 The Company’s goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you (the Client) are entitled:
• to cancel the service contract with the Company; and
• to a refund for the unused portion, or to compensation for its reduced value.
25.2 You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
25.3 Under applicable State, Territory and Commonwealth Law certain statutory implied guarantees and warranties may be implied into these terms and conditions (Non-Excluded Guarantees).
25.4 The Company acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
25.5 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the materials used. The Company’s liability in respect of these warranties is limited to the fullest extent permitted by law.
25.6 All illustrations or samples are intended as approximate representations only and are not binding in detail with regard to finishes, colour and specifications. The Company accepts no liability whatsoever for any loss or damage (including, without limitation, consequential loss or damage) directly or indirectly arising out of or in connection with same.
25.7 If the Client is a consumer within the meaning of the COMPETITION AND CONSUMER ACT 2010, (the “CCA”) the Company’s liability is limited to the extent permitted by section 64A.
25.8 If the Company is required to replace the Goods under this clause or the CCA, but is unable to do so, the Company may refund any money the Client has paid for the Goods.
25.9 The conditions applicable to the warranty given are:
a. limited to the value of any express warranty or warranty card provided to the Client by the Company at the Company’s sole discretion;
b. 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 the Company; 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.
c. the warranty shall cease and the Company shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Company’s consent;
d. limited to any warranty to which the Company is entitled, if the Company did not manufacture the Goods. The Company 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;
e. in respect of all claims the Company shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim;
f. otherwise negated absolutely.
25.10 Any claim under clause 24 or 25 must be made by the Client upon Company by notice in writing within 6 months of completion of the Contract.
25.11 Where faulty goods are repaired or replaced then:-
(a) Where the goods are originally supplied and installed by the Company, the Company will bear the costs of the repair or installation at the point of installation;
(b) Where the goods were originally supplied but not installed by the Company, the Company will bear the cost of the repair or replacement at the point of the original delivery. The Client will bear the cost or return of the goods to the point of original delivery or the extra cost of repairing or replacing any goods at any other point.
25.12 Where defective Works are rectified, the Company will bear the cost of rectification at the point where the Works are performed.
25.13 The Client will bear the costs of all expenses incurred by it in making a claim under this clause.
25.14 Subject to clause 24, the benefits conferred on the Client by this clause 25:-
(a) Do not apply to a defective good supplied by the Company which is not manufactured by the Company; and
(b) Are in addition to all other rights and remedies available to the Client at law.
23.16 The Company will not be responsible for any faults or damage caused by negligence of the Customer, their servants, agents, by the Client performing any work or having performed any work on the structure or the Customer’s actions that void the manufacturer’s warranties.
26.2 Unless the Company agrees otherwise, performance of the Contract shall be conditional on the Client obtaining finance equal to at least the Contract Sum from a financial institution acceptable to the Company.
26.3 If the Client is unable to obtain that financial institution’s written approval to provide finance equal to at least the Contract Sum prior to the agreed date of commencement of the Works, the Company may terminate the Contract by written notice to the Client .
27 LATENT CONDITIONS
27.2 When the Company becomes aware of the existence of a Latent Condition (i.e., any physical condition above, on or below the Site, or the areas surrounding the Site, which differs substantially from the physical conditions which could reasonably have been expected by the Company at the time of entering the Contract), the Company shall give the Client written notice setting out details of the Latent Condition and requiring the Client to give the Company written direction setting out the full details of the work the Company is required to perform to remedy or otherwise overcome the Latent Condition.
27.3 On the giving of the notice under 27.1, the Client shall promptly give the Company written direction setting out the full details of the work the Company is required to perform to remedy or otherwise overcome the Latent Condition, together with all the necessary specifications, drawings and other design documents for that work.
27.4 On the giving of the notice under 27.1, the Works are deemed to be varied to include the work that the Company is required to perform under the Client ’s written direction and the Company shall be entitled to claim payment for such variation pursuant to 7.3.
28 PROVISIONAL SUMS AND PRIME COST ITEMS
28.2 Where a provisional sum or prime cost item is included in the Proposal, the Client shall give the Company all necessary directions regarding the selection and supply of materials, goods or work comprising the provisional sum or prime cost item in sufficient time to ensure that progress of the Works is not delayed.
28.3 If the actual cost to the Company in performing the work or supplying the item comprising the prime cost item or provisional sum is (1) less than that estimated in the Proposal, the difference shall be deducted from the Contract Sum, or (2) greater than that estimated in the Proposal, the difference, together with a margin of twenty per cent (20%), shall be added to the Contract Sum
29 CONTRACT DOCUMENTS ORDER OF PRECEDENCE
29.2 These terms and conditions shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Fit Ins.
30.2 Any notice or other communication connected with the Proposal or the Contract must be in writing and delivered personally or given by prepaid registered post or facsimile to a party at the address of that party or other address subsequently notified.
30.3 Proof of posting by prepaid registered post or of transmission by facsimile will be proof of receipt, in the case of a letter, on the third day after posting, and in the case of a facsimile, on the business day immediately following transmission.
a. 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.
b. The expiry or termination of these terms and conditions does not affect the rights which have accrued before that expiry or termination or any rights and obligation of the parties which survive the expiry or termination.
c. Any reference in these terms and conditions to any Statute or Statutory Provision includes a reference to that Statute or Statutory Provision as from time to time amended, extended or re-enacted.
d. The Company shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Company of these terms and conditions.
e. In the event of any breach of this contract by the Company the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods and/or Services.
f. 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 the Company nor withhold payment of any invoice because part of that invoice is in dispute.
g. The Company may license, sub-contract or assign all or any part of its rights and obligations without the Customer’s consent and in so doing the Company is fully discharged from its obligations to the Customer.
h. The Client agrees that the Company 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 the Company notifies the Client of such change in writing.
i. This agreement is personal to the Client and the Client may not assign the agreement without the Company’s written consent.
j. Neither party shall be liable for any breach of contract or liable for any defaults, delays, or failures to perform any of the party’s obligations under the contract due to but not limited 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.
k. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.