SALES AND INSTALLATION BY PROTOS GROUP PTY LIMITED A.B.N. 14 604 654 757
- GENERAL – Any online order placed by a purchaser is deemed to be an order incorporating these terms and conditions not withstanding any inconsistencies which may be introduced in the purchaser’s order unless otherwise expressly agreed to by PROTOS GROUP PTY LTD (The ”Seller”) in writing.
- DELIVERY and FREIGHT CHARGES – All goods prices, except spare parts, unless specified otherwise include scheduled delivery within Sydney metropolitan areas. Goods deliveries are to ground floor level, kerbside or loading dock area only, where a crane is required it is to be supplied by the purchaser, where a rear tailgate hoist is required the cost will be charged to the purchaser. Failure to receive goods will subject the goods to charges on re-delivery.
- RISE AND FALL – Prices listed are subject to alteration without notice to the purchaser between the date of listing and the date or dates of delivery. All goods will be charged for at the prices ruling at the date or dates of delivery.
- GOODS AND SERVICES TAX – All prices listed are exclusive of Goods and Services Tax which, if applicable, shall be for the purchaser’s account.
- CLAIMS – Any claim by the purchaser for short or wrongful delivery of the goods must be notified to the Seller in writing within three days after delivery of the relevant goods to the purchaser. Any claim which the purchaser does not notify within the time aforesaid (time being of the essence) shall be deemed to have been absolutely waived.
- PROPERTY AND RISK – The risk of loss or damage to or in connection with, or loss of, the goods shall be borne by the purchaser from the despatch of the goods from the Sellers store. The purchaser shall, at his expense, insure the goods in its name and the name of the Seller against any such loss or damage to, or loss of, the goods for their full replacement value and keep them so insured until the goods are paid for in full.
- CANCELLATIONS AND RETURNS – Subject to clause 10 and so far as permitted by law no goods will be accepted for return by the Seller unless a prior request (which may be accepted or refused by the Seller in its sole and absolute discretion) is made and approval given by the Seller. In the case of goods listed in the Seller’s price list, a fee of 15% of the price of the relevant goods will be charged upon the cancellation of any order or the return of any goods. In the case of goods not listed in the Seller’s price list, a fee equal to the cost incurred by the Seller in relation to the goods to the date of the cancellation, plus 50% will be charged for the cancellation of any order. Requests for the return of such goods will not be accepted.
- MINIMUM INVOICE VALUE – Individual purchases of goods for an amount less than $50 will be subject to a surcharge equal to the aggregate of the difference between the price of goods (excluding any applicable G.S.T. and freight) and $50 plus GOODS AND SERVICES TAX and freight.
- TIMES – Any times given for delivery are an estimate and for guidance only. The purchaser shall not be relieved of any obligation to accept or pay for the good by reason of any delay in delivery The purchaser shall not be entitled to terminate the contract in the event of delay of any kind whatsoever and, to the maximum extent permitted by law, the Seller shall not be liable in any way whatsoever for or in respect of any loss or damage howsoever arising out or in connection with or in relation to any failure to deliver or delay in delivery arising from any circumstances of whatsoever nature including, without limitation delay by alterations to the contract or specifications of the goods or any other act or default on the part of the purchaser or by fire, flood, earthquake, storm, tempest or other natural phenomenon, acts of god, strikes, lockouts, availability or shortage of raw materials or labour or shipping or transport facilities, war, insurrection, riot, civil commotion or any accident or failure or inability to obtain licences or any order or direction of any local, state or federal government or governmental authority or instrumentality. If the Seller determines that it is or may be unable to complete its obligations within a reasonable time or at all, the contract may be terminated by the Seller. In the event of termination, the purchaser shall have no claim against the Seller for any damage, loss, cost or expense whatsoever.
- WARRANTY – The Seller and its Suppliers or manufacturers of products undertake to repair, replace or supply (at the Seller’s option) all goods and components thereof supplied by it which the Seller in its sole and absolute discretion deems to be defective in materials or workmanship under proper, normal and recommended conditions of use and maintenance. This undertaking covers the provision of labour for 12 months and parts for 12 months from the date of delivery to the purchaser. This undertaking applies to state capitals only. Other areas are not covered by this commitment. Special inquiries should be made. Defective replacement spare parts will be repaired or re-supplied for a period of three (3) months from delivery. This undertaking applies only to state capitals. Remote areas are not covered by this commitment and special enquiries should be made. The Seller’s undertaking does not extend to goods and components thereof manufactured either entirely or substantially of glass or similar substances, light globes infrared or quartz tubes. The liability of the Seller under this warranty is limited to the repair or replacement of defective goods or components. All other costs including, without limitation, cartage, carriage and installation shall be borne by the purchaser. While the goods are in the custody of the Seller for investigation or repair, they shall be at the risk of the purchaser and no liability shall attach to the Seller, its servants or agents for any damage occasioned to, or loaned, the goods howsoever arising. To obtain the benefit of this warranty, the purchaser must give notice to the Seller immediately upon it becoming aware of the alleged defect and in any event before the expiration of the said twelve month period. Labour under warranty is supplied free of charge during normal working hours, Monday to Friday. Should warranty work be requested outside of our normal working hours a labour charge will be applied equivalent to the difference between the normal hour rate and the penalty rates
- RETENTION OF TITLE – The purchaser acknowledges that property in the goods shall not pass to the purchaser until the purchaser has paid all money due for the goods and for all other goods supplied by the Seller. If such goods are sold by the purchaser prior to payment, then the proceeds of sale of those goods shall be the property of the Seller. Until property passes in the goods to the purchaser, the purchaser acknowledges that it is in possession of the goods solely as bailee for the Seller and in that capacity shall store the goods (if any) of those of any other person in a manner which renders the goods clearly identifiable as foods of the Seller. In the event of the purchaser’s default in the due observance or performance of these trading terms or any of them all money paid by the purchaser by way of deposit shall be absolutely forfeited to the Seller at the Seller’s option. The Seller shall be entitled to enter at all times upon the premises occupied by the purchaser and upon which the goods may be for the time being in order to take possession of the goods and it shall be lawful for the Seller in addition to and without prejudice to its other rights and remedies for the purpose of that repossession to enter into and upon those premises and for that purpose to break open or remove any outer or inner gate or fastening or other obstruction without liability for any action or trespass or other proceeding for so doing and with liberty to plead that leave and licence hereby given in bar in any such action or proceeding brought or instituted.
- SPECIFICATION – The Seller may alter the specifications of the goods without notice.
- TERMS OF TRADING – The terms of payment shall be net cash within 24 hours of the date of invoice (at the discretion of the Seller), but the Seller reserves the right to vary the terms of payment and to require payment in cash in full prior to delivery should the credit worthiness of the purchaser at any time become in the Seller’s opinion unsatisfactory. Without prejudice to any other rights or remedies of the Seller, where any payment is not made on the due date interest at the rate of 3% above the Seller’s overdraft rate (as certified by an officer of the Seller) from time to time shall be payable upon the amount outstanding, calculated from the due date of payment until payment is made in full.
- INSTALMENTS – The Seller reserves the right to deliver by instalments and each instalment shall be deemed to be sold under a separate contract. Failure of the Seller to deliver any instalment shall not entitle the purchaser to cancel the balance of the order. If the purchaser makes default in respect of any instalments, the Seller may elect to treat the default as a breach of contract relating to each other instalment.
- IDENTIFICATION OF GOODS – Any description of the goods is given by way of identification only and the use of such description shall not constitute the contract a sale by description.
- IMPLIED TERMS – All conditions and warranties expressed or implied by statute, the common law, equity, trade, custom or usage or otherwise howsoever are hereby excluded to the maximum extent permitted by law. The United Nations Convention on Contracts for the International Sale of Goods, a copy of which is set out in Schedule 1 of the Sale of Goods (Vienna Convention) Act 1987 shall not apply to the purchaser. Where permitted the liability of the Seller for breach of a condition or warranty that cannot be excluded is limited at the option of the Seller to replacement or repair of the relevant goods of supply or equivalent goods or the cost of replacing or repairing the relevant goods or of acquiring such equivalent goods.
- INDIRECT LOSS – So far as the law permits, the Seller shall be under no liability to the purchaser for any loss or damage to persons or property, or loss of property, or for death or injury caused by or arising out of or in connection with any act, matter or thing (including negligent acts or omissions) done, omitted or permitted to be done by the Seller, its servants or agents. So far as the law permits, the Seller shall not be liable to the purchaser in any way whatsoever for any indirect or consequential loss, loss of profit or any other economic loss including, without limitation any loss by reason of delay, defective or faulty materials or workmanship, negligence or any act, matter or thing done, permitted or omitted to be done by the Seller.
- NO REPRESENTATIONS – The purchaser acknowledges that neither the Seller nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the goods for any particular purpose or any other matter.
- THE PURPOSE – The purchaser acknowledges that it has the responsibility for ensuring that the goods are not used for any purpose for which they are not suitable.
- LIABILITY – To the maximum extent permitted by law, the Seller’s liability to the purchaser in connection with the goods is strictly limited to the provisions of these conditions of sale and any liability on the Seller’s part or on the part of its servants or agents for damages for or in respect of any claim arising out of or in connection with the relationship established by the contract or any conduct under it, other that liability which is totally excluded by any other provision or provisions of the contract shall not in any event (and whether or not such liability results from or involves negligence) exceed $100.
- WAIVER – Failure by the Seller to insist upon strict performance of any term, warranty or condition of the contract shall not be deemed a waiver thereof or of any rights the Seller may have and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
- GOVERNING LAW – The contract shall be governed by and construed in accordance with the laws of New South Wales. Any notice to be given by the purchaser to the Seller shall be sent by prepaid mail to the Seller’s address (above). No notice shall be deemed to have been given until it is actually received at such address.
- DELAY AND DISRUPTION CLAIMS – Delays that impact the critical path of the project timeline which are a direct result of progress payments not being received will be back charged at $1000 per day.
- STORAGE CHARGES – Goods ordered shall be held for up to 14 days after the due date shown on the order acknowledgement, or an alternative date agreed in writing with the purchaser. Beyond this time, goods may be released for resale to another purchaser, or storage charges shall apply at a rate of $50 per item per month or part hereof.
SHOP FITTING BY PROTOS GROUP PTY LIMITED A.B.N. 14 604 654 757
“Contractor” means Protos Group Pty Limited (ABN: 14 604 654 757)
“Client” means the person, firm, partnership or company from whom the order is received.
“Site” means the site where the Works are to be performed.
“Works” means the supply of goods, materials and or services by the Contractor.
- CONTRACT – This quotation may be accepted at any time for a period of the stated on the quotation by signing the acceptance and returning it to the Contractor, unless previously withdrawn by the Contractor by notice in writing. When accepted, the quotation (including these conditions) constitutes the entire contract between the Contractor and the Client. This contract will be governed by the laws of the state in which the Works are performed. The parties agree that any dispute regarding the Works or the terms of this contract will be exclusively determined by the courts of the state in which the works are performed.
- ASSIGNMENT – The Client must not assign their rights or liabilities under this contract without the written consent of the Contractor.
- SUB-CONTRACTORS – The Contractor may at its sole discretion enter into sub-contract agreements with others for any part or the whole of the Works.
- CANCELLATION – Cancellation by the Client (in whole or in part) may only occur with the written consent of the Contractor. All costs incurred by the Contractor or associated with the cancellation of the Works will be recoverable as a debt due from the Client.
- GOODS AND SERVICES TAX – The contract price stated in the quotation is exclusive of GST. The Client must pay the Contractor all GST payable in respect of the supply of goods and services in performance of the Works under the terms of this Contract.
- DELAY AND DISRUPTION CLAIMS – Delays that impact the critical path of the project timeline which are a direct result of progress payments not being received will be back charged at $1000 per day.
- PAYMENT – Notwithstanding the schedule of payments provided in the quotation, the Contractor reserves the right to invoice progressively for materials and labour. Interim and final invoices are payable on the date of issue. Late payments will incur interest charges equal to the Westpac Bank standard business overdraft rate plus 2% calculated daily. Where payment is in excess of 14 days late, the Contractor may treat the Client’s conduct as repudiation of the terms of this contract and the Contractor may at its sole discretion suspend Works or terminate the contract in accordance with clause 17. Payment is to be made within on completion of any and all Maintenance Call Outs, including related works.
- CLIENT’S WARRANTIES AS TO PAYMENT – The Client warrants that it has sufficient funds to pay for the Works in a timely manner as disclosed in the Schedule. The Clients warrants that the information provided is true and accurate and acknowledges that it is an essential term of this agreement. Failure to provide true and accurate information may result in the suspension or termination of Works.
- RETENTION MONEYS – No retention amount is allowed for in this contract. Entire Contract sum needs to be paid in full prior to release of any certification and completion documentation. Where defects are apparent at the date of practical completion, a defects liability period will begin from practical completion and will continue till completed for the nominated liability period.
- TITLE – Title to goods supplied in performance of the Works will only pass to the Client on receipt of final payment. The Client irrevocably authorises the Contractor, its employees, servants and agents to enter onto the Site and recover goods and materials supplied, fixed or placed in position in the event of non-payment or bankruptcy of the Client.
- PROGRAMME – The dates for possession and practical completion are stated in the Schedule. Extensions of time to the date of practical completion will be granted and the contractor accepts no liability for delays, loss of trade, liquidated damages or any other delay costs are to be accepted for the following events:
(i) adverse weather conditions;
(ii) performance of additional Works / variations in accordance with the Client’s instructions;
(iii) the Contractor not having received in due time necessary, payments, instructions, drawings, details or levels from the Client or its employees, servants or agents;
(iv) delays or failure to deliver on the part of nominated or domestic sub-contractors and suppliers inside and outside of the control of the Contractor;
(v) failure to secure adequate ingress and egress from the Site or any part of the Site;
(vi) the inability for reasons beyond the control of the Contractor to secure goods or materials essential to the Works;
(vii) the carrying out by a local or government authority, lessor, or other third party of works in pursuance of its obligations or failure to carry out such work;
(viii) serious illness or injury, strike, lockout or industrial dispute affecting the Works or any of the trades in the preparation, manufacture or transportation of any of the goods or materials required for the Works; and
(ix) failure by the Client to give possession of the Site by the possession date stated in the Schedule.
- VARIATION -The Contractor agrees that the Works may be varied as reasonably required by the Client, provided that at all times:
(i) the Client must provide written specifications of the variation to the Contractor;
(ii) the construction programme and contract price must be adjusted to allow for Works to be carried out, taking into account the variations, failing which the variations will not be allowed;
(iii) all variations to be carried out by sub-contractors of the Contractor must first be submitted to the Contractor and will incur a 20% project management fee payable to the Contractor. The Contractor may also charge an additional labour rate at the rate set out in the Schedule for all work performed by the Contractor in supervising or managing the variations;
(iv) changes to the contract price by reason of any variation may be included in progress claims and/or after completion;
(v) the Contractor will not be responsible for any additional items missed on plans and the client is totally responsible for paying the extra costs incurred/involved.
- OMISSIONS AND ERRORS ON PLANS / SPECIFICATIONS – The Contractor is not engaged to consult on the correctness of plans and specifications. Where anything or matter has been incorrectly included, omitted or described in drawings or other documents on which the quotation is based, the Client will be responsible for all reasonable costs associated with any additional or rectifying works that must be undertaken to comply with legal requirements or to otherwise enable the Contractor to carry out the remainder of the Works.
- PRACTICAL COMPLETION AND DEFECTS LIABILITY – Practical completion will occur when the Works are complete for all practical purposes, with any outstanding items of work being of only a minor or remedial nature (so that they do not materially affect the functioning of the building). The defects liability begins from practical completion and will continue for liability period or the Contractor will not be responsible for rectifying the defects.
- RISK AND INSURANCE.
(i) The existing structures (including the Works) together with all contents will be at the sole risk of the Client. The Client must keep the Works adequately insured against loss and if requested by the Contractor produce evidence that the insurance has been effected.
(ii) The Client must effect a policy which will cover liability to the public for an amount not less than $10,000,000.00 per incident in respect of all occurrences arising from the performance of the Works to any person (other than those engaged upon the Works) or property (other than the Works).
- DETERMINATION AND SUSPENSION – Without prejudice to any other rights and remedies which the Contractor has, if:
(i) the Client does not pay any amount properly due under clause 8;
(ii) the Works are suspended by the Client for a period in excess of 1 month;
(iii) possession of the Site (including ingress or egress) is not granted for a continuous period of 6 weeks;
(iv) the Client becomes bankrupt, insolvent, makes arrangements with its creditors, enters into administration or commits an act of insolvency or bankruptcy;
(v) information provided with regard to the Client’s source of finance is found to be inaccurate or untrue or the Contractor otherwise has reasonable grounds to believe the Client may be unable to pay for the Works, then the Contractor may suspend Works or terminate the contract. All costs, charges and losses incurred by the Contractor as a result of the termination of the Contract or suspension of Works will be recoverable as a debt due from the Client.
- LICENCE – For the avoidance of doubt, the Client grants to the Contractor and to the Contractor’s employees, agents and subcontractors a non-exclusive licence to access the Site for the duration of the Works.
- DISPUTE – If any dispute concerning this contract arises, it must in the first instance be referred to an industry expert which will be appointed with the agreement of both parties. All costs associated with this service will be shared equally between the parties. No dispute or difference will be sufficient grounds to withhold payment.