Terms and Conditions – Proficient Fire Protection Pty Ltd

General Terms

Definitions
1. Unless context suggests otherwise, all terms in these General Terms have the same meaning as outlined in the Quotation Details.
2. Australian Consumer Law means Schedule 2 of the Competition Act 2010 (Cth).
3. Business Day means any day other than Saturday, Sunday or public holiday in South Australia.
4. Force Majeure Event means any occurrence or omission as a direct or indirect result of which the party relying on it is prevented from or delayed in performing any of its obligations under these General Terms and which is beyond the reasonable control of the party and could not have been prevented or mitigated by reasonable diligence or precautionary measures. These include but are not limited to force of nature, natural disasters, acts of terrorism, war riots, revolution, civil commotion, epidemics, industrial action, and action or inaction by a government agency.
5. Goods means any goods supplied by PFP to You under the General Terms.
6. Intellectual Property means all information and intellectual property relating to the Goods or Services or the installation or operation of the Goods including but not limited to patents, designs, drawings, instruction booklets, specifications, circuit drawings, componentry, trade secrets, trademarks and copyright in such information and intellectual property.
7. Price means the price specified in the quotation and includes all known expenses which may be incurred by PFP in completing the Scope of Works, including any GST or other tax, levy or fee on any item required to complete the Services.
8. PFP means Proficient Fire Protection Pty. Ltd. ACN 135 332 544.
9. Quote means the quote attached to these General Terms, any subsequent quotes or any other correspondence between the parties that sets out the services and price for such services.
10. Related Bodies Corporate has the meaning given in the Corporations Act 2001 (Cth).
11. Services mean any scope of works or services supplied by PFP to You including the works described in the Quotation Details.
12. Warranty Period means a period of 12 months, commencing on:
  
  (a) in the case of Goods, the day the Goods are delivered or deemed to have been delivered in accordance with clause 7; or
  
  (b) in the case of Services, the day on which the relevant service is completed.
Acceptance of these terms
By agreeing to the Quotation, You:
1. agree to be bound by these General Terms;
2. may negotiate the date (or dates) for the delivery of Goods (Delivery Date) and/or supply of Services (Supply Date) and the location of delivery (Delivery Point) with PFP, to be determined in its sole discretion; and
3. must pay the Price in accordance with clause 5.
Services and Scope of Works
1. You authorise, request and instruct PFP to undertake the Services and order the Goods.
2. PFP must undertake the Services in a proper and professional manner.
3. PFP and its employees, sub-contractors and/or agents are entitled to enter the Site at any time for the purposes of carrying out the Services.
4. You agree to respond to any reasonable query and comply with any reasonable direction from PFP, in a timely manner.
Access to Site and Subcontractors
1. You must provide, or procure consent to, access the Site to enable PFP or any relevant person as nominated by PFP (Personnel) to reasonably carry out its Services. You shall not do anything that would unreasonably restrict the Personnel’s access to the Site.
2. You must ensure the Site is safe for the Personnel and must adhere to all relevant work, health and safety laws.
3. PFP is not liable for any or debris which passes through the fire system or dirty water stains at the discharge points when any Personnel are installing the Goods and/or carrying out the Services. Any extra work required to clean up the discharge area will be at Your expense.
4. PFP will take no responsibility for any loss, damage or injury to persons or property which arises during the Personnel installing the Goods and/or carrying out the Services from any defect(s) which the Personnel were not aware of or could not have been reasonably been expected to be aware of prior to or during the performance of the Services unless due to the negligent act or omission of the Personnel.
5. PFP is not responsible for any loss or damage caused as a result of the actions of any subcontractor nominated by PFP.
Payment and Price
1. Invoices issued by PFP for Goods and/or Services must be made in full, and without set-off, within 14 days after the date of the invoice, unless otherwise agreed between PFP and You, in writing.
2. PFP reserves the right to issue an administration fee for Goods and Services that require heavy administrative tasks.
3. PFP reserves the right to charge additional costs for the completion of any external compliance requirements beyond the included compliance requirements in any Council Form 2 or 3 (as applicable).
4. If You do not pay the invoice by the due date for payment, without prejudice to any other rights it may have, PFP reserves the right to:
  
  (a) suspend the provision of the Goods and/or Services;
  
  (b) cancel any part of the accepted Quote that has not been fulfilled;
  
  (c) accrue interest on any amount outstanding after 30 days after the due date of the invoice, to be charged at the 30-day bank bill interest rate published daily by the Reserve Bank of Australia plus 2% or such other commercial rate as agreed from time to time, and such interest to accrue daily and capitalise monthly; and
  
  (d) recover from You all costs and disbursements incurred by PFP in pursuing the debt.
5. Notwithstanding anything else in these General Terms, the Price will be increased at any time to reflect any increase in costs to PFP with respect to any Goods, Services, materials, supplies or equipment to be provided by PFP under these General Terms at the time of those increases, including, without limitation, any increased costs associated with COVID or other disease related compliance requirements such as testing.
Cancellation of Orders and Variation
1. If PFP have not commenced the Services and no order for Goods have been placed, You can cancel the Quote upon 48 hours written notice to PFP. A cancellation fee may be issued if any cancellation is given to PFP within 48 hours prior to the accepted Delivery Date or Supply Date.
2. You may request a variation to a Quote (Variation Request). Such Variation Request may be accepted (partially or in full) or rejected by PFP in its sole discretion.
3. If PFP agrees to a Variation Request, You are fully liable for and indemnify PFP against any loss, damage and expense incurred by PFP in relation to the alteration, including any increase in Price (to be reasonably determined by PFP), the cost of return freight, return shipping and all labour and engineering costs incurred by PFP in execution or part execution of the Goods and/or Services.
Return of Goods
1. You are deemed to have accepted the Goods unless You notify PFP that You believe the Goods have been wrongly supplied or oversupplied.
2. You are not permitted to return any Goods which have been specially ordered for You.
3. Goods referred to in clause 7.1 may be returned to PFP for credit if all of the following is complied with:
  
  (a) the Goods are returned to PFP's premises by prior arrangement, at no cost to PFP, unless delivered as the result of an administrative error by PFP, in which case PFP will bear the cost of return;
  
  (b) the Goods are accompanied by a dispatch note stating PFP's original invoice number and reason for return; and
  
  (c) the Goods are returned in an unsoiled, undamaged and re-saleable condition in their original packing.
Delivery, Storage and Use of Goods
1. The Delivery Date and Supply Date are estimates only unless agreed by the parties in writing. PFP will use its best endeavours to meet such dates but, unless otherwise agreed, will not be liable to You by reason of delays caused by any reason whatsoever.
2. PFP is deemed to have delivered the Goods when the Goods are made available to You for physical collection by or on Your behalf at the Delivery Point (Delivery). Any unloading or loading is Your responsibility, unless PFP otherwise agrees in writing.
3. PFP may deliver the Goods by instalments (where, in PFP's opinion, this is reasonable) and issue interim invoices to You.
4. Without limiting any other provision of these General Terms, PFP may withhold or delay Delivery if You fail to pay any instalment, or any other amount, when due.
5. If You are unable to collect the Goods at the Delivery Point on the actual delivery day as notified to You, PFP may (at its option and without limiting its other rights and remedies) arrange suitable storage or delivery of the Goods, and You must pay or reimburse PFP for all costs and expenses of delivery, storage, insurance, demurrage, handling and other charges. Notwithstanding Your inability to collect the Goods, Delivery is deemed to have occurred.
6. You acknowledge that You are solely responsibility for confirming the suitability of the Goods for their intended purpose and that PFP makes no representation or warranty in this regard.
Title and Risk
1. Title to the Goods remain with PFP until the Price is paid in full by You.
2. Until such time, You shall:
  
  (a) store the Goods separately and mark them in a clear and identifiable manner as PFP's property and inform PFP of the location of the Goods;
  
  (b) hold the Goods as bailee for PFP, subject to Your right to deal with the Goods in the ordinary course of its business (Bailment);
  
  (c) indemnify PFP against any claim arising out of the possession, use or disposal of the Goods by You or repossession or attempted repossession by PFP.
Termination
1. If You commit a breach of these General Terms (including failure to make a payment, becoming insolvent as defined in the Corporations Act 2001 (Cth) or committing an act of bankruptcy) and fail to rectify that breach within seven (7) days of being notified, then without prejudice to any other rights or remedy available to it, PFP may immediately:
  
  (a) terminate the arrangement between the parties and the Bailment;
  
  (b) suspend some or all its obligations to You under the General Terms; and/or
  
  (c) enter the Site or any premises owned or occupied by You where the Goods are stored and repossess the Goods (including uninstalling the Goods) without being liable for any damages caused.
2. If these General Terms are terminated:
  
  (a) PFP will not be liable to You for any costs or expenses incurred or loss suffered by You because of termination; and
  
  (b) You will only be required to pay PFP the Price of Goods or Services supplied under the General Terms prior to termination.
3. The risk in the Goods passes to You at the time of Delivery.
Personal Properties Securities Act 2009
You agree and acknowledge that:
1. PFP may register a financing statement on the Personal Property Securities Register (PPSR) against You;
2. You will not change Your name in any form or any other details on the PPSR without first notifying PFP;
3. You grant PFP a purchase money security interest (PMSI) under the PPSA Personal Property Securities Act 2009 (Cth) (PPSA) in the Goods to secure the amount owed to PFP by You;
4. You waive Your right to receive any verification statement (or notice of any verification statement) in respect of any financing statement or financing change statement relating to any security interest created under these General Terms;
5. You agree that to the maximum extent permitted by law, You waive any rights You may have pursuant to, and the parties contract out of, sections 95, 118, 123, 125, 128, 129, 130, 132(1), 132(4), 135, 142 and 143 of the PPSA; and
6. any word or expression used in this clause which is defined in the PPSA has the same meaning in this clause, unless the context otherwise requires.
Insurance
You must keep the Goods insured against all risks from Delivery until the time that title to the Goods passes to You.
Warranty and Limitation of Liability
1. Other than is provided for in this clause 13, PFP makes no warranties or representations to You, and to the extent permitted by law, all conditions, warranties and representation are expressly excluded.
2. PFP warrants the Goods and/or Services to be free from defects in workmanship and materials under normal use and service during the Warranty Period. This warranty does not cover:
  
  (a) any costs associated with recovery of the Goods from You; or
  
  (b) damage, fault, failure or malfunction due to external causes including accident, abuse, misuse, mechanical or electrical overload, abrasion, corrosion, incorrect installation (unless installed by PFP), failure to comply with PFP's or the original manufacturer's instructions, failure to perform required preventative maintenance or normal wear and tear.
3. During the Warranty Period, to the extent permitted by law, Your sole remedy with respect to breach of a warranty set out in clause 13.2 will be to have any such defective Goods or Services repaired or replaced (as PFP may elect) at PFP's expense. Replaced or repaired Goods or Services shall be covered by the unexpired portion of the Warranty Period in respect of the original Goods and/or Services or for a period of 90 days, whichever is the greater.
4. For any part of the Goods that is not manufactured by PFP, the original manufacturer's warranty will apply and PFP's liability for such parts shall not exceed the liability of the manufacturer.
5. In respect of Goods or Services that are not ordinarily acquired for personal, domestic or household use or consumption, the liability of PFP for a breach of any condition or guarantee applied by law is limited at PFP's option to the repair of the Goods or Services, the supply of replacement Goods or Services or payment of the cost of having the Goods or Services supplied again.
6. PFP's liability will be reduced by the amount of any contributory loss or damage to the extent caused by Your act or omission.
7. Any warranty claim must detail the basis of the alleged warranty breach in writing and be delivered to PFP by email to Mark.Lenartowicz@proficientfire.com.au.
8. To the extent permitted by law, PFP has no liability in contract, tort (including negligence or breach of statutory duty), by statute or otherwise for loss or damage (whether direct or indirect) of profits, opportunity, revenue, goodwill, bargain, production, contracts, business or anticipated savings, corruption or destruction of data or for any indirect, special or consequential loss or damage whatsoever.
9. PFP's total liability shall not exceed the total dollar amount of the Goods and/or Services under each Quote.
Intellectual Property
1. All Intellectual Property is the sole property of, or licensed by, PFP. You acknowledge PFP's exclusive rights to ownership of any modification, enhancement, translation or adaptation and any other improvement or development based thereon, whether developed, supplied, installed or paid for by You, on Your behalf, or otherwise.
2. You agree not to and must not permit any person reasonably within Your control, to modify, copy, clone or reverse engineer any Goods or Services, or copy, modify or decompile any of PFP's documentation relating to the Goods or Services.
Privacy
1. You acknowledge and agree that PFP may collect personal information about You, and that without limitation PFP may use Your personal information:
  
  (a) to assess Your credit worthiness;
  
  (b) to collect amounts that are overdue;
  
  (c) to provide Goods and Services to You (including administration and the investigation or resolution of disputes);
  
  (d) to provide information to You about other goods and services which PFP or its Related Bodies Corporate may offer to You; and
  
  (e) to send You publication of PFP.
2. You acknowledge and agree that PFP may disclose Your personal information to:
  
  (a) other service providers such as subcontractors engaged by PFP to assist PFP in providing the Goods and/or Services;
  
  (b) PFP's Related Bodies Corporate so that they can provide information to You about goods and services they offer; and
  
  (c) governmental bodies such as the police, fire brigades and other providers of emergency services; and
  
  (d) as required by law.
3. You have a right to access most personal information PFP holds about You, and a fee may apply for access. If PFP denies access in some circumstances, PFP will disclose the reasons to You.
Force Majeure
1. PFP will not have any liability under or be deemed in breach of these General Terms for any delays or failures in performance of these General Terms which result from a Force Majeure Event.
2. If a Force Majeure Event occurs, PFP will promptly notify You in writing when such circumstances cause a delay or failure in performance.
Notices
1. Any notice or communication given to a party under these General Terms must be in writing and sent via post, hand delivery or email to the addresses listed in the quotation. (unless a change of address is notified by a party).
2. Any notice or communication is to be treated as given at the following time:
  
  (a) if it is delivered personally, it is when it is left at the relevant address;
  
  (b) if it is sent by post, it is four Business Days after it is posted;
  
  (c) if it is sent by email, it will be deemed to be received on that Business Day if received by 5pm otherwise it will be deemed to be received at 9am on the following Business Day (provided that the sender does not receive notice that the email was not delivered).
3. If any notice or communication is given, on a day that is not a Business Day or after 5pm on a Business Day, in the place of the party to whom it is sent it is to be treated as having been given at the beginning of the next Business Day.
Dispute Resolution
1. Neither You nor PFP may start court proceedings (except proceedings seeking interlocutory relief), in respect of a dispute, unless it has complied with this clause 18.
2. The party claiming that a dispute has arisen must give the other party to the dispute a notice setting out details of the dispute (Dispute Notice).
3. The parties must use all reasonable endeavours, in good faith, to resolve the dispute within 10 Business Days of receipt of the Dispute Notice or such other time period agreed between the parties.
4. If the dispute remains resolved then either party may refer the dispute for determination by a mediator selected, by agreement between the parties (or failing agreement, to a mediator nominated by the President of the Law Society of South Australia).
General
1. The failure by a party to insist upon strict performance by the other party of any of the terms of these General Terms will not be deemed a waiver of any term or of a breach by the first party, of any term of these General Terms.
2. The parties will promptly do everything necessary or desirable even if not expressly stated in these General Terms, to ensure that the terms are fully carried into effect.
3. Every provision of these General Terms will be deemed severable as far as possible from the other provisions. If any provision is found to be void, illegal or unenforceable for any reason, it will be deemed to be severed and omitted from these General Terms. These General Terms with the offending provision severed and omitted and with any consequential amendment if necessary will otherwise remain in full force.
4. These General Terms are to be construed according to South Australian laws and the parties submit themselves to the jurisdiction of the Courts of South Australia and any competent appellate courts.
5. The parties agree that there is no partnership, joint venture or employment relationship between them. Their relationship is one of principal and independent contractor.
6. These General Terms, together with the Quote, contains the entire agreement between the parties with respect to the subject matter and supersedes any prior agreement or understanding (if any) between the parties.
7. You must not assign these General Terms without PFP’s prior written consent.
8. These General Terms cannot be amended without the written consent of both parties.
9. Goods and/or Services supplied are intended for use only in Australia unless PFP otherwise agrees. If You export Goods, it does so at its own risk.
10. These General Terms may be executed in counterparts, each of which executed counterpart is deemed to be an original and all of which taken together constitute one and the same agreement.

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