Terms and Conditions

TERMS AND CONDITIONS OF SALE AND SERVICE

    1. General obligation
      1. FireQuest agrees to provide the Customer with the Products and Services, and the Customer agrees to pay FireQuest the Fees, in accordance with:
      2. these terms and conditions;
      3. the service specific terms; and
      4. schedules, forms, specifications and other referenced materials (if any), (together, “this agreement”).
      5. If there is an inconsistency between the documents in this clause, the document listed first prevails to the extent of the inconsistency.
    2. Site charges, fees and assumptions
      1. Unless otherwise agreed in writing, charges for work performed:
        1. are based on work being carried out from 07:00 to 15:00 Monday to Friday except for Public Holidays and subject to alteration by FireQuest);
        2. 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; and
        3. do not cover extraneous work, patching/painting, carpet lifting or refitting, building work or decoration and, should FireQuest agree to carry out such work at the request of the Customer then FireQuest shall not be liable for any damage arising.
      2. All additional costs arising from clause 2(a) above 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 may result in additional charges including the reasonable costs of delay.
      3. 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 Fee.
      4. In the event that FireQuest has agreed to deliver the Services by a date agreed between the parties and such delivery is delayed by the occurrence of a Force Majeure Event (as set out in clause 15) or by any third party, or the Customer or its agents, FireQuest shall be entitled to a reasonable extension of time to complete the Services and compensation for additional costs incurred.
      5. Any variations to the Services required by the Customer must be agreed in writing by both parties and will be priced in accordance with FireQuest’s standard price lists and shall include an amount for any design, management, overheads and profit.
      6. Emergency service call-outs will be charged in accordance with FireQuest’s standard fees for such emergency services.
      7. If FireQuest receive and out of hours service response call and the customers representative is not available to authorise the cost, then FireQuest will at its discretion respond to the incident and submit an invoice for payment in accordance with the current standard fees for service.
      8. A current fee for service schedule is available by calling the office during business hours.
    3. Delivery
      1. FireQuest shall use reasonable endeavours to complete delivery of the Products and Services. However, delivery dates or periods quoted are estimates only and are subject to prompt receipt of all Customer information, other material, and permits from the Customer necessary to allow FireQuest to proceed with the delivery of the Product and Services. FireQuest accepts no liability whatsoever for any loss or damage suffered by the Customer as a consequence of any delay or failure to deliver the Products and Services.
      2. Risk in the Products shall pass upon delivery to the Customer. Title to and ownership of the Products shall pass to the Customer upon receipt by FireQuest of payment in full for those Products.
    4. Additional services

If the Customer requests FireQuest to provide additional services in writing setting out the requested scope of such additional services beyond those described in this Agreement and FireQuest agrees, the terms of this Agreement apply to the additional services and the Customer must pay for the additional services at the following rate(s):

      1. if FireQuest has quoted an amount before providing the additional services, the amount quoted; and
      2. if FireQuest has not given any quote, an amount calculated for the additional services provided at FireQuest’s standard rates for such additional services applicable at that time.
    1. Customer’s responsibilities

The Customer shall:

      1. provide FireQuest with access to the site as reasonably required for the purpose of allowing FireQuest to perform its obligations under this Agreement;
      2. ensure that its employees, agents and other contractors shall:
        1. not interfere with or disrupt, delay or hinder FireQuest, its employees, agents, subcontractors, agents or other persons engaged by FireQuest or prevent them from carrying out their work or cause them to incur additional cost; and
        2. reasonably cooperate with FireQuest and its employees, agents and subcontractors;
      3. advise FireQuest 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 FireQuest’s technician before work commences. In the absence of such notice FireQuest accepts no liability for any loss or damage to such services or any consequence thereof and the Customer agrees to indemnify FireQuest against any claim whatsoever for any loss or liability under this clause;
      4. provide FireQuest with data, specifications and information as may be requested by FireQuest to enable it to fulfil its obligations under this Agreement;
      5. provide adequate facilities at the premises at no cost to FireQuest, including parking, power, lifting equipment, scaffolding, scissor lifts, and rubbish removal skips;
      6. ensure that the premises are at all times a safe working environment and (without limitation) will not contain asbestos or similar hazards. If FireQuest considers that the premises are unsafe it may delay or cease delivery of the Services until the premises are restored to a safe condition. Any such delay or cessation of the Services:
        1. will entitle FireQuest to an extension of time to complete the Services;
        2. will not constitute a breach of this Agreement; and
        3. will not entitle the Customer to the payment of liquidated damages or a financial penalty, and
      7. indemnify FireQuest against any claims for the failure of fire alarm monitoring equipment, telecommunication carrier lines, power supply, costs relating to emergency services charges, or relocation of equipment.
    1. Warranty and Product Returns
      1. The Products supplied by FireQuest 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”).
      2. During the Warranty Period, any Products that prove to be defective will be repaired or replaced by FireQuest at its option. Any postage and packaging expenses required to return the product to FireQuest will be at the Customer’s cost.
      3. The warranty provided under this Agreement is dependent upon regular maintenance work being carried out to the relevant Australian Standard or manufacturer’s recommendations.
      4. 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 install, carry out repairs, mal-operate or modify the Products in any way during the Warranty Period, FireQuest 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 Customers negligence, fault, neglect, abuse, incorrect use or as a result of vandalism, fire, water damage, power surge or other circumstance outside of FireQuest’s control or that of the manufacturer.
      5. To the extent permitted by law, unless otherwise expressly agreed with the Customer, FireQuest will exclude from its obligations under sub clauses (a), (b) and (g), any Products that are connected to any of the Customer’s systems.
      6. The Customer shall inspect all Products upon delivery and within 5 business days of delivery, give notice to FireQuest if any of the Products are not in accordance with the Customer’s order, including the specification.
      7. FireQuest will accept Products returned for credit where FireQuest has incorrectly supplied a Product or the Product has been damaged in transit by FireQuest’s carrier.
      8. Customers may not return Products for credit without obtaining prior written authorisation from FireQuest.
      9. Products returned for credit, except under (g) above, shall be subject to a 15% or $20.00 (whichever is greater) restocking fee and except where Products are returned under (g) above, all freight charges for goods returned for credit shall be prepaid by the Customer unless otherwise approved by FireQuest in writing.
      10. Nothing in this clause 6 limits or excludes the application of the Competition and Consumer Act 2010 (Cth) including the Australian Consumer Law. If the Customer is a “consumer” as defined in the Australian Consumer Law, the following provisions apply.
        1. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
        2. The benefits to the consumer given by this warranty are in addition to other rights and remedies of the consumer under applicable laws relating to the Product.
        3. If a defect in the Product appears within 12 months, the Customer is entitled to submit a warranty claim by returning it to the address shown in the Contract Details. When returning the Product, the Customer must ensure it is properly packaged so that no damage occurs during transit. Any postage and packaging expenses required to return the Product to FireQuest will be at the Customer’s cost.
        4. The Customer must provide the original or a copy of the proof of purchase and, where possible, include an explanation of the problem.
        5. If FireQuest elects to repair the goods:
          1. goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods; and
          2. if the goods are capable of retaining user-generated data, the repair of the goods may result in the loss of the data.
          3. This Warrantee is provided by FireQuest
    2. Intellectual Property Rights
      1. FireQuest retains all rights, title and interest subsisting in any design(s), documentation, diagrams plans, or other information and materials supplied to the Customer in relation to this Agreement.
      2. All intellectual property rights in materials supplied by the Customer at the commencement of this Agreement remains the property of the Customer but the Customer grants FireQuest a perpetual, irrevocable, royalty free, non-exclusive licence to use, reproduce and modify the Customer’s materials for any purpose related to this Agreement.
      3. The Customer agrees to accept full responsibility for the Customer’s materials and to indemnify FireQuest for any action, claim, liability, cost or expense arising out of any threatened or actual claim of intellectual property infringement arising out of FireQuest’s use of the Customer’s materials.
    3. Quotation validity

Unless otherwise agreed in writing, a quotation provided by FireQuest may be accepted up to 30 days from the quotation date, after which FireQuest reserves the right to amend or withdraw it. If any amounts are quoted in a foreign currency, the applicable exchange rate (as published by the
Reserve Bank of Australia) shall be as at the date of the quotation.

    1. Credit Information
      The Customer acknowledges and agrees that if FireQuest requires financial information about the Customer for any credit application which attracts the operation of the Privacy Act 1988 (Cth), FireQuest may:

      1. disclose and collect commercial credit information about the Customer (and if the Customer is a company, about its directors and officers) for the purpose of determining the Customer’s credit worthiness;
      2. obtain a credit report from a credit reporting agency (which may contain personal credit information, information about commercial activities or commercial worthiness) for the purpose of assessing an application for credit and any later request for credit;
      3. provide to, or obtain from any credit provider(s) named in a credit report information about the Customer’s personal or commercial credit arrangements information relating to credit worthiness, credit standing, credit history and credit capacity); and
      4. disclose personal information about the Customer to a credit provider other than FireQuest or to a credit reporting agency, for the purpose of collecting outstanding amounts owed by the Customer to FireQuest.

FireQuest’s obligations under this Agreement are subject to satisfactory credit evaluation and FireQuest reserves the right to withdraw any quotation, cancel the services, and terminate this Agreement should such credit evaluation be or become unsatisfactory.

    1. Privacy

The Customer agrees that FireQuest may collect and use the Customer’s personal information in accordance with FireQuest’s privacy policy which may be viewed at www.FireQuest.com.au.

    1. Fees and charges
      1. FireQuest will invoice the Customer for the Fees specified in this Agreement, and in accordance with any specific pricing and payment terms in Schedule 1, if supplied.
      2. The Customer agrees to pay FireQuest the amount specified in the invoice within 30 days of the date of invoice without set-off, deduction or discount of any kind. Should the Customer delay in making payment, FireQuest shall have the right to charge interest on the outstanding amount at either:
        1. the rate published by the Commonwealth Bank of Australia for overdrafts under $100,000, interest to be calculated on a daily basis; or
        2. 2% above the 30 day bank bill rate specified by Westpac Banking Corporation at the relevant time. Interest accrues daily from (and including) the due date to (but excluding) the date of actual payment and is calculated on actual days elapsed and a year of 365 days. The Customer will also be liable for the payment all expenses that are reasonably incurred by FireQuest in the recovery of any payment, including legal costs incurred in the enforcement of the notice of default.
      3. The Customer acknowledges that FireQuest may issue progress payment invoices for materials or equipment purchased, 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.
      4. FireQuest shall have the right to issue a notice of default requesting the Customer to pay the amount of any Fee within the time specified in the notice. The Customer will be required to pay FireQuest the Fees due upon receipt of this notice and pay all reasonable expenses, including legal costs incurred in the enforcement of the notice of default.
      5. 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 to the amount exclusive of GST paid or payable for that supply under this Agreement.
      6. Payment of fees by the Customer within the specified period is a fundamental term of this Agreement and to the maximum extent permitted by law, FireQuest will have no liability to the Customer for acts or omissions or for work required to be undertaken by FireQuest 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 FireQuest.
      7. The Fees shall be adjusted annually to take into account any changes in the national consumer price index. In addition, FireQuest may adjust the Fees on an annual basis in respect of an increase/fall in the cost of any annual services and increased/decreased costs.
      8. FireQuest may set off any amounts that FireQuest reasonably considers is due to FireQuest from the Customer against any amounts payable by FireQuest to the Customer under this Agreement.
        1. All work performed by FireQuest can be claimed under the Building and Construction Industry Security in payment Act 1999
    2. FireQuest’s Liability
      1. Nothing in this Agreement excludes, restricts or modifies the application of the provisions of any statute (including the Competition & Consumer Act 2010(Cth)) where to do so would contravene that statute or cause any part of this Agreement to be void.
      2. To the extent permitted by law and subject to the consumer guarantees and other provisions of the Australian Consumer Law (if applicable), the Customer acknowledges and agrees that FireQuest will have no liability for any statements, representations, guarantees, conditions or warranties that are not expressly contained in this Agreement.
      3. To the extent permitted by law, where FireQuest breaches its obligations under this Agreement, FireQuest shall at its election, re-supply the Products or Services or pay to have those Services supplied again or the replacement, repair or repayment of the Products to a maximum total value of the Fees paid by the Customer under this Agreement.
      4. To the extent permitted by law, the Customer agrees that any liability of FireQuest under this clause will be reduced to the extent that any loss, damage or expense was caused by the Customer or a third party including through breach of this agreement, negligence, fault, lack of care or through any other act or omission of the Customer, its employees, subcontractors and agents or a third party and, in any event, FireQuest’s aggregate liability to the Customer, whether in contract, tort (including negligence) or otherwise, will be limited to four times the total value of payments received by FireQuest from the Customer under this Agreement
      5. Notwithstanding anything else in this Agreement, FireQuest will not be liable for
        1. any indirect, consequential or special or economic loss, cost, liability, damage or expense howsoever arising; or
        2. 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.
      6. The Customer acknowledges and agrees that it is reasonable for FireQuest to limit its liability under this Agreement and that the fees charged by FireQuest are based solely on the value of the Services or Products supplied.
      7. To the extent permitted by law, FireQuest will not be liable to the Customer for matters not notified to FireQuest within three months of the date of completion of this Agreement.
    3. Termination
      1. 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 such reasonable period depending on the circumstances) 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.
      2. In the event that a Customer wishes to terminate this Agreement for maintenance services prior to the expiry of the Term, the Customer will be required to pay the remaining payments up to the end of the contract Term.
      3. FireQuest may terminate this Agreement immediately if the Customer becomes insolvent, bankrupt or enters into a scheme of arrangement with creditors.
      4. FireQuest may terminate this Agreement in whole or in part at its convenience upon the provision of 14 days notice in writing to the Customer.
      5. Termination under this clause shall be without prejudice to any rights that may have accrued for either of the parties before termination and all sums due under this Agreement shall become payable in full when termination takes effect.
      6. The parties agree that if the Services continue beyond the initial Term, this Agreement will remain in force until a party gives three (3) months written notice to the other party of its intention to terminate in which event the Agreement will terminate on the expiry of the three (3) month period.
    4. Dispute resolution

The parties agree that they will initially use all reasonable endeavours to resolve any dispute arising under this Agreement within 10 business days of a party being advised by written notice of such a dispute. If 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. The parties will again use all reasonable endeavours to resolve the dispute within a further 10 business days or such other reasonable period agreed between the parties. If the dispute is not resolved in accordance with the above, the parties may agree to refer the matter to mediation or some other form of alternative dispute resolution or commence legal proceedings.

    1. Force majeure

FireQuest will not be in breach of this Agreement or liable to the Customer if it 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, insurrection, vandalism, sabotage, riot, national emergency, piracy, hijack, terrorism, embargoes or restraints, extreme weather or traffic conditions, temporary closure of roads, legislation, regulation, order or other act of government or governmental agency.

  1. General
    1. If the Customer purports to cancel any order, contract or this Agreement prior to its commencement or prior to the completion of the Term, then the Customer shall pay to FireQuest on demand a sum equivalent to all FireQuest’s costs, fees and expenses incurred up to the date of such purported cancellation including any damages payable to FireQuest’s sub-contractors or suppliers together with a reasonable proportion of FireQuest’s loss of anticipated profits.
    2. FireQuest may assign this agreement without consent.
    3. This agreement shall be subject to the laws of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of New South Wales.
    4. This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, contracts, statements and understandings, whether verbal or in writing. All other terms and conditions are excluded to the fullest extent permitted by law including any terms and conditions which the Customer may seek to impose. The terms, provisions and conditions of this Agreement may only be varied by agreement in writing between the parties.
    5. No right under this Agreement will be deemed to be waived except by notice in writing signed by each party and any failure by FireQuest to enforce any clause of this Agreement will not be construed as a waiver of FireQuest’s rights under this Agreement.
    6. The Agreement is entered into subject to satisfactory credit approval of the Customer by FireQuest.
    7. FireQuest may subcontract its rights and obligations under this Agreement.
  2. Interpretation
    1. Definitions
      1. Additional Services means the additional services or equipment provided by FireQuest to the customer that is not specifically requested by the Customer at the date of this agreement but offered by FireQuest as part of the Services.
      2. FireQuest means Nixon Safety Pty Ltd, T/A FireQuest.
      3. Customer means the customer identified in the Contract Details.
      4. Fees means the Fees specified in the Contract Details and clause 11.
      5. Product means the products described in the service specific terms and schedules.
      6. Services means the services described in the service specific terms and schedules.
    2. Headings
      1. The section headings in this Agreement are used for convenience only, are not substantive, and shall not be interpreted to define, describe, or otherwise limit the interpretation of the provision under the section headings or of the Agreement as a whole.
  3. Where Services include installation:
    1. the Customer agrees to pay to FireQuest a non-refundable deposit of 20% of the total Fees payable under this Agreement within 14 days of the date of this Agreement, or if works are to commence prior to 14 days elapsing, then upon commencement of the works; and
    2. each progress payment invoice is due and payable within seven (7) days of the date of invoice.
  4. Where the Services includes monitoring and/or maintenance:
    1. The Customer agrees to promptly pay the Fees either by direct debit of the Customer’s nominated account or other automated payment system selected by the Customer in the Payment Schedule and the Customer agrees to sign the Payment Schedule to give effect to this undertaking;
    2. the Customer acknowledges and agrees that FireQuest may adjust the Fees annually for monitoring and/or maintenance services under this Agreement; and
    3. the Customer is advised that any system installed by FireQuest must be decommissioned upon termination or expiration of this Agreement, otherwise telephone charges may be incurred. FireQuest charges an additional fee for decommissioning a system.