Standard Terms
1. Agreement
This “Agreement” means an agreement between Frame & Associates Pty Ltd ATF Frame Consulting Trust T/as Trilogy Fire Safety (‘Trilogy Fire Safety’) – ABN 73 138 567 155 and the Customer relating to the supply and/or installation and/or sale and/or maintenance of products and services (as described in the quotation attached to this agreement) and includes all relevant schedules, forms, specifications and other referenced materials. These terms and conditions supersede any other agreements, or understandings (whether written or oral) and, in particular, any conditions contained in the Customer’s order unless Trilogy Fire Safety has expressly agreed in writing by initialling each such requested Customer’s term(s). No variation, waiver, or cancellation of the Agreement will be effective unless signed in writing by each party and any failure to enforce any clause of this Agreement will not be construed as a waiver of Trilogy Fire Safety rights under this Agreement. This Agreement applies whether or not it is signed below as long as the Customer has had an opportunity to view it.
2. Quotation Validity
Unless otherwise agreed in writing, a quotation provided by Trilogy Fire Safety may be accepted up to 30 days from the quotation date, after which Trilogy Fire Safety reserves the right to amend or withdraw it.
3. Credit Account, Payment by Credit Card and Information
a. The Customer acknowledges and agrees that if Trilogy Fire Safety requires financial information about the Customer for any credit application which attracts the operation of the Privacy Act 1988 (Cth), Trilogy Fire Safety may collect and disclose commercial credit information about the Customer, and if the Customer is a company, about its directors and officers provided to Trilogy Fire Safety in an order or a credit application for determining credit worthiness, obtaining and maintaining a credit information file, and/or for the purpose of collecting outstanding amounts owed by the Customer to Trilogy Fire Safety.
b. The Customer acknowledges that the granting of credit is at the absolute discretion of Trilogy Fire Safety. Trilogy Fire Safety may, at its sole discretion, require you to pay the full fee or a percentage of the fee upfront or in advance.
c. Payment by Credit Card will incur a 2% processing fee.
4. Site Charges and Assumptions
a. Unless otherwise agreed in writing, charges for work performed:
I. are based on work being carried out during “Normal Working Hours” being 7.30am to 4.30pm Monday to Friday except for Public Holidays and subject to alteration by Trilogy Fire Safety;
II. are based on having continuous, uninterrupted, and unhindered access to the required people, equipment, facilities, and areas where the work is to be carried out;
III. do not cover extraneous work, patching/painting, carpet lifting or refitting, building work or decoration, working with hazardous materials (including asbestos, synthetic mineral fibres etc), or excavation works and, should Trilogy Fire Safety agree to carry out such work at the request of the Customer then Trilogy Fire Safety shall not be liable for any damage arising.
b. All additional costs arising from 4a) and any alteration to the specifications required by the Customer including any interruption or delays by the Customer, its employees, agents, or other trades during the course of work performed, or
the extra costs of compliance with EHS policies may result in additional charges including the reasonable costs of delay.
c. If it becomes necessary to pay any additional site allowances, other than a State or Federal award or amounts in excess of any current workplace agreement applicable to the type of work being performed, these costs will be added to the Trilogy Fire Safety Feed
d. Any variations to the services required by the Customer must be in writing and will be priced in accordance with Trilogy Fire Safety standard price lists and shall include an amount for any design, management, overheads and profit.
e. Emergency service call-outs will be charged in accordance with Trilogy Fire Safety standard fees for such service.
5. Customer’s Responsibilities
The Customer shall:
a. Advise Trilogy Fire Safety of the existence of any concealed pipes, wires and cables for water, gas, electricity, telephone or other services affecting the premises and shall confirm the location of such services to Trilogy Fire Safety and technician before work commences. In the absence of such notice Trilogy Fire Safety accepts no liability for any loss or damage to such services or any consequence thereof and the Customer agrees to indemnify Trilogy Fire Safety against any claim whatsoever for any loss or liability under this clause;
b. provide adequate facilities at the premises at no cost to Trilogy Fire Safety, including parking, power, lifting equipment, scaffolding, scissor lifts, and rubbish removal skips;
c. Ensure that the premises must at all times be a safe working environment and (without limitation) will not contain asbestos or similar hazards;
d. Indemnify Trilogy Fire Safety against any claims for the failure of fire alarm monitoring equipment, telecommunication carrier lines, power supply, costs relating to fire brigade charges, or relocation of equipment.
6. Delivery
a. Trilogy Fire Safety shall use reasonable endeavours to complete delivery of the works, however, delivery dates or periods quoted are estimates only and are subject to workflow demands and prompt receipt of all information, material, and permits necessary to allow Trilogy Fire Safety to proceed with the delivery of the works.
b. Trilogy Fire Safety accepts no liability whatsoever for any loss or damage suffered by the Customer as a consequence of any delay or failure to deliver the works.
7. Base Line Data
It is the Customer’s responsibility to ensure they have provided Trilogy Fire Safety with all base line data (as described in AS 1851-2012) related to the customers property/building relating to this agreement. While Trilogy Fire Safety is happy to assist in the recreation of base line data if such data is unavailable all associated costs will be the responsibility of the customer. Trilogy Fire Safety accepts no liability in relation to the supply of services/schedules/completed works etc. if sufficient base line data has not been provided.
8. Warranty and Product Returns
a. The Products supplied by Trilogy Fire Safety to the Customer under this Agreement are covered by a 12 month warranty which shall commence from the date of completion of installation of products, or for products sold on a supply only or supply and commission basis upon delivery of the products to the Customer (“Warranty Period”).
b. During the Warranty Period, any products that prove to be defective will be repaired or replaced by Trilogy Fire Safety at its option.
c. The warranty provided under this Agreement is dependent upon regular maintenance work being carried out to an Australian Standard or Manufacturer’s Recommendations.
d. The parties agree that when evaluating a claim for defect, due allowance shall be made for fair wear and tear of the product. Should the Customer or any other party attempt to carry out repairs, mal-operate or modify the products in any way during the Warranty Period, Trilogy Fire Safety shall be relieved of its obligations under the warranty provisions. In addition, the warranty does not cover work required to be done to repair a defect or damage caused by the Customer’s negligence, fault, neglect, abuse, incorrect use or as a result of vandalism, fire, water damage, power surge or other circumstance outside of Trilogy Fire Safety control or that of the manufacturer.
e. The Customer shall inspect all products upon delivery and within 5 business days of delivery, give written notice to Trilogy Fire Safety if any of the products are not in accordance with the Customer’s order.
f. Trilogy Fire Safety will accept products returned for credit where Trilogy Fire Safety has incorrectly supplied a product or the product has been damaged in transit by Trilogy Fire Safety carrier.
g. Products may not be returned for credit without obtaining prior written authorisation from Trilogy Fire Safety.
h. Products returned for credit, except under f) above, shall be subject to a 15% or $20.00 (whichever is greater) restocking fee and except where products are returned under f) above, all freight charges for goods returned for credit shall be prepaid by the Customer unless otherwise approved by Trilogy Fire Safety in writing.
9. Dispute Resolution
The parties agree that they will initially use all reasonable endeavours to try and resolve any dispute arising under this Agreement within 10 business days of a party being advised by written notice of such a dispute. In the event that the parties are unable to resolve the dispute within that time frame they must refer the dispute to an executive officer from each party to resolve within a further 10 days. If the dispute is not resolved in accordance with the above, either party may refer the matter to mediation or commence legal proceedings.
10. Trilogy Fire Safety Liability
a. Nothing in this Agreement excludes, restricts or modifies the application of the provisions of any statute (including the Trade Practices Act 1974) where to do so would contravene that statute or cause any part of this Agreement to be void.
b. To the extent permitted by law, Trilogy Fire Safety aggregate liability under this Agreement, whether in contract, tort (including negligence) or otherwise, will be limited to the value of payments received by Trilogy Fire Safety from the Customer.
c. Notwithstanding anything else in this Agreement, Trilogy Fire Safety will not be liable for:
I. any indirect, consequential or special or economic loss, cost, liability, damage or expense howsoever arising; or
II. loss of profit, loss of use, loss of income, loss of rental or other benefit, loss of production, loss of actual or potential business opportunity or loss of reputation.
d. The Customer acknowledges and agrees that it is reasonable for Trilogy Fire Safety to limit its liability under this Agreement.
11. Intellectual Property
Trilogy Fire Safety retains all rights, title and interest in any intellectual property including any design(s), documentation, diagrams or plans existing or arising during the course of the work under this Agreement. All intellectual property supplied by the Customer at the commencement of this Agreement remains the property of the Customer but the Customer grants Trilogy Fire Safety a perpetual, irrevocable, royalty free, non-exclusive licence to use, reproduce and modify the Customer’s intellectual property. The Customer indemnifies Trilogy Fire Safety for any threatened or actual claim of intellectual property infringement arising out of Trilogy Fire Safety use of the Customer’s intellectual property.
12. Force Majeure
Trilogy Fire Safety will not be in breach of this Agreement or liable to a party if its fails to perform or delays in performance of an obligation as a result of an event beyond its reasonable control, including but not limited to strikes, industrial disputes, fire, flood, acts of God, war, vandalism, sabotage, riot, national emergency, embargoes or restraints, extreme weather or traffic conditions, temporary closure of roads, legislation, regulation, order or other act of government.
13. Liquidated Damages
Liquidated damages will not apply to the works unless specifically agreed to in writing, and then they are to be capped at 5% of the contract sum.
14. Fees and Charges
a. The Customer agrees to pay Trilogy Fire Safety the fees specified in this Agreement within 14 days of the date of invoice without set-off, deduction or discount of any kind. Should the Customer delay in making payment, Trilogy Fire Safety shall have the right to charge interest on the outstanding amount at the rate prescribed by the Uniform Civil Procedure Rules 2005, as well as require payment in advance prior to delivery of further goods or provision of further services, or cease supply of further goods or services and terminate the Agreement. The Customer shall also be liable for any legal costs or agent’s costs and disbursements associated with collecting outstanding payments on an indemnity basis.
b. Payment of the fees is a fundamental term of this Agreement and to the maximum extent permitted by law, Trilogy Fire Safety will have no liability to the Customer for acts or omissions or work required to be undertaken by Trilogy Fire Safety if the circumstance or event which would otherwise give rise to liability occurs at a time when the Customer is in breach of payment obligations to Trilogy Fire Safety.
c. Title to and ownership of the products shall pass to the Customer upon final payment of the fees specified in this Agreement, despite delivery of the goods. Therefore, for the avoidance of doubt, the goods remain the sole and absolute property of Trilogy Fire Safety as full legal and equitable owner until such time as the Customer has paid Trilogy Fire Safety the full purchase price together with the full price of any other goods the subject of any other contract with Trilogy Fire Safety. Risk in the goods shall pass to the Customer upon delivery.
d. The Customer acknowledges that they receives possession of and holds goods delivered by Trilogy Fire Safety solely as bailee for Trilogy Fire Safety until such time as the full price thereof is paid to Trilogy Fire Safety together with the full price of any other goods then the subject of any other contract with Trilogy Fire Safety.
e. Until such time as the Customer becomes the owner of the goods, he will;
I. store them on the premises separately;
II. ensure that the goods are kept in good and serviceable condition;
III. secure the goods from risk, damage and theft; and
IV. keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Customer.
f. Until the goods are paid for in full, Trilogy Fire Safety authorises the Customer to sell the goods as its agent, however, the Customer shall not represent to any third parties that it is acting in any way for Trilogy Fire Safety. Trilogy Fire Safety will not be bound by any contracts with third parties to which the Customer is a party. Records shall be kept by the customer of any goods owned by Trilogy Fire Safety. The proceeds of any sale of the goods shall be paid into a separate account and held in trust for Trilogy Fire Safety. The Customer shall account to Trilogy Fire Safety from this fund for the full price of the goods. If the Customer is entitled to a period of credit, but if prior to the expiration of the period of credit the goods are sold and the proceeds of sale received the Customer shall account forthwith to Trilogy Fire Safety for the price of the goods.
g. Should the Customer die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy laws or being a company calls a meeting for the purpose of or to go into liquidation or has a winding-up petition presented against it or has a receiver or administrator appointed, Trilogy Fire Safety may at its option notwithstanding its waiver of such default or failure and without prejudice to its other rights under this Agreement suspend or cancel this Agreement or require payment in cash before or on delivery or tender of goods or documents notwithstanding terms of payment previously specified or may repossess and take over the goods and dispose of the same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale.
h. In the event that the Customer uses the goods/product in some manufacturing or construction process of its own or some third party, then the Customer shall hold such part of the proceeds of such manufacturing or construction process as relates to the goods/product in trust for Trilogy Fire Safety. Such part shall be deemed to equal in dollar terms to the amount owing by the Customer to Trilogy Fire Safety at the time of the receipt of such proceeds.
i. If the Customer does not pay for any goods on the due date then Trilogy Fire Safety is hereby irrevocably authorised by the Customer to enter the Customer’s premises or any premises under the control of the Customer as agent of the Customer and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Customer whatsoever. On retaking possession of the goods Trilogy Fire Safety may elect to refund to the Customer any part payment that may have been made and to credit the Customer’s account with the value of the goods less any charge for recovery of the goods, or to resell the goods.
j. Trilogy Fire Safety shall have the right to adjust the fees periodically in respect of an increase/fall in the cost of its services.
k. Trilogy Fire Safety reserves the right to issue progress invoices of materials and/or labour expended on work in progress and to place into bond materials which cannot be accepted for delivery on site and invoice the full value
thereof.
l. Where any supply of products or services is or becomes subject to GST, an amount equal to GST paid or payable for that supply will be added.
15. Hydrostatic testing
a. Before any hydrant mains are turned off we recommend an authorised person from the company or premises assist with an inspection of the fire service, so a timetable can implemented for the purpose of minimising the risk in areas which cannot be shut down due to operational and safety to employees on site while working.
b. Pressure testing of the fire hydrant service pipe work to the required design standard can cause some systems to fail or burst under pressure and we encourage all our customers to take the appropriate action in notifying there insurance company, employees, contractors, on the day of the test. Trilogy Fire Safety accepts no liability whatsoever for system failure caused by the test and any damage caused as a result of the performance of the test, regardless of anything else stated in this agreement and regardless of any act or omission by Trilogy Fire Safety. This quotation does not allow for the repairing of any pipe work or valves which leak while conducting the pressure testing procedure.
c. Servicing of any underground check valves or isolating valves which may be installed in a pit are excluded from this quotation and will be quoted separately, unless otherwise stated in the quotation.
16. Termination
a. Either party may terminate this Agreement if the other party commits any material or persistent breach of its obligations under this Agreement (which in the case of a breach capable of remedy shall not have been remedied within 14 days of receipt by the party in breach of a notice identifying the breach and requiring its remedy) or if a party becomes insolvent, bankrupt or enters into a scheme or arrangement with creditors. Termination under this clause must be effected by written notice to the other party.
b. In the event that this Agreement covers the provision of maintenance services and the Customer wishes to terminate prior to the expiry of the Contract Term, the Customer will be required to pay the remaining payments up to the end of the Contract Term. The Contract Term is defined as the initial term specified on the face of this Agreement then any successive 12 month period).
c. Trilogy Fire Safety may terminate this Agreement in whole or in part at its convenience upon the provision of 14 days notice in writing to the Customer.
d. If the Customer purports to cancel any order, contract or agreement prior to its commencement or prior to the completion of the Term, then the Customer shall pay to Trilogy Fire Safety on demand a sum equivalent to all Trilogy Fire Safety’s costs, fees and expenses incurred up to the date of such purported cancellation including any damages payable to Trilogy Fire Safety sub-contractors or suppliers together with a reasonable proportion of Trilogy Fire Safety loss of anticipated profits, as well as a reasonable administration fee.
17. Prolongation and Extension of Time Costs
If due to circumstances beyond the control of Trilogy Fire Safety the Agreement is extended beyond the original completion dates, then Trilogy Fire Safety is entitled to an adjustment of the contract sum in accordance with the formula — Amount payable per week of delay = contract sum (including prime cost items) /original contract period in weeks x 15%.
18. Insurances
Trilogy Fire Safety will at all times maintain current Public Liability, Professional Indemnity and Work Cover Insurances.
19. General
a. Trilogy Fire Safety may perform any of its obligations through sub-contractors.
b. The Customer hereby charges with payment of any indebtedness to Trilogy Fire Safety all beneficial interest (freehold and leasehold) in land and personal property held now or in the future by the Customer. The Customer agrees that if demand is made by Trilogy Fire Safety the Customer receiving such a demand will immediately execute a mortgage or other instrument of security, or consent to a caveat, as required, and against the event that the Customer fails to do so within a reasonable time of being so requested, the Customer hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by Trilogy Fire Safety to be its true and lawful attorney to execute and register such instruments. Notwithstanding any other provision in this clause and in addition thereto Trilogy Fire Safety may lodge a caveat noting the interest given by this charge on the title of any property of the Customer whenever it so wishes.
c. This agreement shall be subject to the laws of the State in which the works or services are performed