1. APPLICATION OF THESE TERMS AND CONDITIONS
For the purposes of this agreement, “IPI” is Infocus Protection Industries Pty Ltd ABN 58 158 934 699 its successors and assigns or any person acting on behalf of and with the authority of Infocus Protection Industries Pty Ltd; “the Client” is the applicant named on the client information form or where no such form exists then on the quote and/or contract provided by IPI to the Client; “GST” means the tax imposed by the New Tax System (Goods and Services Tax) Act 1999; “Goods” mean equipment including but not limited to alarms, access control, CCTV, data cabling, and associated components; “Site” means the place where IPI’s work will be carried out; and “System” means IPI’s custom built electronic security system.
2.1 Supplied Quote
IPI shall give the Client a quote specifying the Goods and services required to fulfill the Client’s requirements and an estimate of IPI’s fee for the supply of such Goods and services.
2.2 Sales Tax/GST
Goods and services specified in IPI’s quote are subject to GST.
2.3 Acceptance by the Client
2.3.1 Quotes are valid for 30 days only unless an extension has been authorised by IPI.
2.3.2 In acceptance of the quote, the Client warrants that it has not relied on any representation by IPI other than as supplied in writing in the quote.
2.4 Intellectual Property & Ownership of Technical Information
Information contained in IPI’s quote that refers to a System to be created for the Client has intellectual property rights belonging to IPI. The Client shall not share such information with any other business in a similar industry to IPI without the prior written approval of IPI.
3. INSTALLATION WORK
Installation work will be performed at cost of $105 plus GST per hour between 8am and 5pm, Monday to Friday. Any work performed outside these times may attract additional charges.
4. SERVICE CALLS
Service calls will be charged out at $125 per hour between 8am and 5pm, Monday to Friday. Any work performed outside these times may attract additional charges.
5. SERVICE AGREEMENTS
Service agreements are offered by IPI from time to time and must be agreed to in writing by both parties.
6. SITE ACCESS
6.1 The Client shall ensure that IPI has clear and uninterrupted access to the Site until IPI’s work has been completed and IPI has been paid in full.
6.2 The Client will indemnify IPI from additional costs or penalties if the completion of the work is delayed due to interrupted Site access.
7. SITE PLANS AND DIMENSIONS
If appropriate the Client will notify and provide the latest copy of the Site plans and dimensions (including all changes and alterations) if so requested by IPI.
8.1 Any variations to the original accepted quote or contract after IPI’s work has commenced will be submitted in writing for the Client to napprove and sign. Work on any variations will not start until written approval has been obtained from the Client.
8.2 Variations are payable 7 days from the date of IPI’s tax invoice.
No allowance has been made for any retention monies to be held.
The Client shall indemnify IPI from any costs, expenses or losses incurred should the Client cancel the accepted quote or contract. The time for payment for such cancellation shall be 7 days from the date of IPI’s tax invoice.
11.1 Time for Payment
Unless otherwise agreed in writing, the Client must, within 14 days from the date of IPI’s tax invoice, pay the total amount stated in the invoice, without set-off.
IPI may charge interest at a rate of 2% above the commercial lending rate of the Westpac Bank calculated on a daily basis on amounts not paid within the time specified in IPI’s tax invoice.
11.3 Purchase Order Number and Deposit
A purchase order number and a 50% deposit will be required from the Client. The deposit amount, and time for such payment will be specified in the quote and/or contract. The Client acknowledges IPI is under no obligation to start any work as agreed, until the purchase order is forth coming, the deposit is received in full and all details pertaining to the quote and/or contract are finalised. In the event of default as to any payment owing, IPI shall be entitled to forfeit the deposit and claim any profit or margin contemplated by or allowed for in the contract in addition to any remedy available to IPI at law or in equity.
11.4 Progress Payments
When agreed progress payments are not honoured by the Client, IPI reserves the right to halt any further work until such time as the outstanding payment is forthcoming and in addition reserves the right to claim for the loss of anticipated earnings.
The Client must pay any costs, expenses or losses incurred by IPI as a result of the Client’s failure to pay to all sums outstanding as owed by the Client to IPI including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
12. DAMAGE TO WORK
12.1 The Client shall indemnify IPI at all times from any damage caused to IPI’s Goods by other trades.
12.2 Negligence on the part of IPI in any of its work is not excluded.
13. PERFORMANCE OF WORK
13.1 IPI agrees to complete all work detailed in its quote/contract to industry standards with due diligence in accordance with the terms and conditions of this agreement.
13.2 Any Goods not supplied by IPI may alter installation and/or programming costs.
13.3 IPI shall keep the Client advised as to shortages relating to the Goods, and/or price changes where practical, and may recommend the early purchase of such Goods if it is in the Client’s interest to avoid increased costs or delays.
13.4 Prices and stock availability of Goods may change from time to time and such changes will be submitted to the Client for approval prior to installation. The Client acknowledges that IPI will not be held responsible for such changes and the Client shall indemnify IPI from any additional costs or expenses incurred.
13.5 Any changes requested by the Client’s architect or agent that affect the System’s design or budget will be confirmed with the Client prior to IPI proceeding further.
IPI reserves the right to subcontract the provision of all or any part of IPI’s obligations.
15. TERMS AND CONDITIONS
In the absence of a formal agreement between the Client and IPI the terms and condition contained herewith shall determine the terms under which any business will be conducted.
16. OCCUPATIONAL HEALTH AND SAFETY
The Client accepts that no visitor will be allowed on the Site unless accompanied by IPI, as specified in the Occupational Health and Safety Act 2000, Section 8 (2).
IPI and the Client undertake to keep confidential information of the other party secret and to protect and preserve the confidential nature and secrecy of that confidential information.
18.1 A twelve (12) month manufacturer’s warranty applies to all Goods supplied.
18.2 Warranties on Goods commences on the date of installation and all other warranties on the date of completion of the work.
18.3 During the warranty period IPI will attend on Site and repair or replace, free of charge, any defective or malfunctioning Goods supplied by IPI and will correct free of charge, any defects in the installation of such Goods.
18.4 Unless otherwise agreed by IPI, all warranty and service calls will be carried out between the hours of 8am and 5pm from Monday to Friday, with the exception of public holidays.
19. EXTENDED WARRANTIES
Full information pertaining to extended warranties is available on application to IPI.
20. EXCEPTIONS TO WARRANTY
The warranties detailed in clause 17 shall not apply to:
a) any existing Goods belonging to the Client that prove to be incompatible or defective;
b) any Goods not supplied by IPI;
c) any Goods supplied by IPI that has been subject to misuse or neglect;
d) any Goods that have been installed, repaired or altered by any other company other than IPI;
e) any Goods for which outstanding payment remains; and
f) any repair or replacement of Goods damaged by any cause that is beyond the direct control of IPI including but not limited to power surges, flooding, fire or lightning.
It is the Client’s responsibility to arrange adequate insurance to cover the Goods for damage by persons other than IPI, and theft, from delivery at the Site until the Goods have been paid in full.
22. RETENTION OF TITLE
Not withstanding the delivery of the Goods, title in any particular Goods shall remain with IPI regardless of whether the property housing the Goods is on-sold by the Client until the Client has paid and discharged any and all monies owing pursuant to any invoice issued by IPI for the Goods, including all applicable GST and other taxes, levies and duties. Where the property housing the Goods has been on-sold by the Client, the Client will be taken to hold the proceeds of sale of such Goods upon trust for IPI and to account to IPI for these proceeds. Any payment made by or on behalf of the Client which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge IPI’s title in the Goods nor the Client’s indebtedness to IPI and, in such event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
The Client acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices for the Goods is made pursuant to clause 21.1 and until that time:
a) the Client is not entitled to sell the Goods but only in the ordinary course of business;
b) the Client must not encumber or otherwise charge the Goods; and
c) the Client shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery of the Goods to the Client.
22.3.1 The Client hereby irrevocably grants to IPI the right, at its sole discretion, to access the Client’s property and remove or repossess any Goods (including such Goods considered to be a fixture, including but not limited to fixed wall or ceiling CCTV) and sell or dispose of them, and IPI shall not be liable to the Client or any person claiming through the Client and IPI shall be entitled to retain the proceeds of any Goods sold and apply same towards the Client’s indebtedness to IPI.
22.3.2 If the Client commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then IPI may, without prejudice to any other remedies it may have, repossess any Goods (including fixtures as specified in 21.3.1) delivered to the Client on any account which has not been paid in accordance with the terms and conditions herein and commence proceedings to recover the balance of any monies owing IPI by the Client.
23.1 Non-excludable Rights
The parties acknowledge that, under the Australian Consumer Law, certain conditions and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the Client in relation to the provision of goods or of services which cannot be excluded, restricted or modified by this agreement (“Non-excludable Rights”).
23.2 Disclaimer of Liability
23.2.1 IPI disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Client, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights.
23.2.2 To the extent permitted by law, the liability of IPI for a breach of a Non-Excludable Right is limited, at IPI’s option, to either the repair or the replacement of the faulty Goods.
23.3 Indirect Losses
Notwithstanding any other provision of these terms and conditions, IPI is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Client for:
a) any increased costs or expenses;
b) any loss of profit, revenue, business, contracts, or anticipated savings;
c) any loss or expense resulting from a claim by a third party; or
d) any special, indirect or consequential loss or damage of any nature whatsoever caused by IPI’s failure to deliver and/or install or delay in delivering and/or installing the Goods.
23.4 Force Majeure
IPI will have no liability to the Client in relation to any loss, damage or expense caused by IPI’s failure to deliver and/or install the Goods as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of IPI’s normal suppliers to supply necessary products or materials or any other matter beyond IPI’s control.
24. SECURITY & CHARGE
The Client hereby charges all property, both equitable and legal, present or future of the Client in respect of any monies that may be owing by the Client to IPI under the terms and conditions or otherwise and hereby authorizes IPI or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Client at any time.
25.1 The Client hereby authorises IPI to collect, retain, record, use and disclose commercial and consumer information about the Client, in accordance with the Privacy Act 1988 and subsequent amendments, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by IPI, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
25.2 IPI may give information about the Client to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Client’s credit file. This information may be given before, during or after the provision of credit to the Client and will be in accordance with the Privacy Act 1988 and subsequent amendments.
26. ITEMS PROVIDED BY THE CLIENT
The Client shall provide regulated, clean 240AC power and an insulated ground at the Client’s Site.
26.2 Lightning Protection
Although IPI’s Goods include the original manufacturer’s standard lightning and power protection, there is no guarantee provided against damage due to either of these sources. Additional protection is available and may be desirable.
26.3 Liability of Performance to Design
IPI will not accept liability for system design and performance where the design has been authored or undertaken by others. Whilst IPI will use best endeavours to provide a fully functional and operating system, any rectification work required as a result of inaccurate or incorrect design issues authored by others will result in additional charges being imposed. Such charges will be brought to the attention of the Client before proceeding.
IPI’s quote includes standard factory finishes on Goods supplied from manufacturers. Unless otherwise specified in writing, custom finishes are subject to an additional charge.
26.5 IT Works
IPI is not responsible for installation and/or modification of any IT / data systems. IPI will interface to IT systems where agreed to in its quote/contract and will use best endeavours to provide functionality, however IPI will not accept liability for the performance of such systems unless IPI was instrumental in facilitating the initial installation.
26.6 Site Conditions and Requirements
Unless specified in the quote/contract, costs imposed for special building site condition levies, fees, insurances, compliances, inspection or certification fees are not included in IPI’s fee and will be charged as an additional item.
The cost or provision of suitable parking for IPI’s technical and/or installation crews is to be supplied by the Client.
27. GENERAL MATTERS
27.1 No Waiver
A power or right is not waived solely because the party entitled to exercise that power or right does not do so. A single exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Any provision in these terms and conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that
provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
27.3 Dispute Resolution
Any dispute or difference between the Client and IPI may be notified by a party to the other party and the parties shall firstly meet to negotiate, in good faith, resolution of the dispute and secondly, if negotiation fails to achieve a resolution of the dispute within five (5) working days of the notification of the dispute, attend mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia, provided that this provision shall not prevent IPI from instituting legal action at any time to recover moneys owing by the Client to IPI.
27.4 Governing Law and Jurisdiction
These terms and conditions are governed by the laws of the State of Queensland.