Fire Response Terms and Conditions of Trade
These terms and conditions together with any quotation, order (including on-line or web-based orders), or proposal to which these terms are attached or in which these terms are referred, together make up a legally binding agreement (Agreement) between: Fire Response Pty Ltd ACN 612 337 514 (Fire Response) AND the person(s) or company named as the purchaser (Purchaser) in the attached or previously signed or submitted quotation, order or proposal, AND if the Purchaser is a corporation, the directors of the Purchaser who have signed or otherwise agreed to this Agreement (Guarantor/s).
This Agreement may be accepted by doing either one or more of the following:
(a) Signing these terms and conditions of trade; or
(b) Signing the credit application, proposal or quotation issued by Fire Response in which these terms and conditions were attached or referred to; or
(c) Placing an order, accepting a quotation or proposal or instructing Fire Response to provide goods or services (whether in writing, via email or other electronic means or orally) after receiving notice of these terms and conditions of trade.
THE PARTIES AGREE as follows:
1. Agreement to Buy and Sell
1.1 The parties acknowledge that Fire Response will sell and the Purchaser will purchase goods and/or services from time to time pursuant to these terms and conditions. If any future contract or document between Fire Response and the Purchaser is inconsistent with this Agreement, then this Agreement will apply unless the subsequent contract is in writing, is signed by Fire Response, refers to and specifically alters this Agreement.
1.2 Should there be any variation to any of the information supplied to Fire Response by or on behalf of the Purchaser (including in the Purchaser’s credit account application) or in the structure of the Purchaser’s business (such as a conversion to or from a company or trust or the appointment of new directors or change in shareholders or shareholding), Fire Response must be notified in writing. Until a new credit application form is signed and approved in writing by Fire Response, the original Purchaser and those person(s) who signed as Guarantor(s) shall remain liable to Fire Response as though all goods and services were supplied to the original Purchaser.
2. Placement of Orders and Variations
2.1 The Purchaser may order goods and services from Fire Response in writing, by phone, email, facsimile, Fire Response-hosted on-line or web-based ordering (if Fire Response has this facility) or other electronic communication or telecommunication acceptable to Fire Response (which includes without limitation purchase orders, the acceptance by the Purchaser of a quotation, proposal or variation prepared by Fire Response) (order/s). Upon placement of the order, the Purchaser will be bound to proceed with the purchase of the services at a price confirmed by Fire Response.
2.2 Fire Response will not be bound by any terms or conditions expressed in orders or acceptances generated by the Purchaser except to the extent that such terms have been expressly agreed upon between the parties in writing and signed by Fire Response. For the avoidance of doubt, even where the Purchaser attaches or refers to other terms and conditions in purchase orders or other requests for quotations or supply of goods and/or services received after this Agreement has been entered into (additional terms), such additional terms are expressly excluded from this Agreement and will be of no force or effect against Fire Response unless it expressly agrees otherwise (by notice in writing, signed by a director of Fire Response).
2.3 Fire Response may decline to accept any order without providing a reason in its absolute discretion.
2.4 If the Purchaser requests or Fire Response deems there to be a variation in the scope of the supply, then Fire Response may (but is not obliged to) notify the Purchaser in writing of the variation, the price variation, associated delays and any other information Fire Response deems relevant.
2.5 Fire Response is not obliged to commence any supply associated with any variation identified in accordance with clause 2.4 unless and until the Purchaser acknowledges and accepts in writing the variations contained in Fire Response’s notice.
3. Delivery of Goods and Completion of Services
3.1 Unless specifically stated otherwise in the proposal or quotation, any goods being provided as part of an order will be made available for pick up ex works (“EXW” Incoterms 2010) from 4 Carawa Street, Blacksmiths. Costs and charges for freight and handling at the point of delivery to the Purchaser or the Purchaser’s agent are payable by the Purchaser unless otherwise stated on the quote/order form. Fire Response will not be responsible for any costs associated with exportation, or lodgement of export documentation.
3.2 The Purchaser acknowledges that goods delivered to a courier (whether arranged by Fire Response or the Purchaser) are outside Fire Response’s control and Fire Response will not be liable for any loss, damage, delay or non-delivery of goods contributed to by a third party, to the extent permitted by law.
3.3 If a date for delivery or completion is nominated by the Purchaser, Fire Response will not be bound to deliver the goods or complete the services by that date unless it expressly agrees to do so in writing, signed by Fire Response, in which case, it will be deemed to agree to use reasonable endeavours to deliver the goods or complete the services by the relevant date. Fire Response shall be excused from any failure to deliver or complete which is contributed to by causes beyond its reasonable control and the time specified for delivery or completion shall be extended commensurately. Delay in delivery or completion shall not constitute a breach of this Agreement, nor shall it affect any other provisions of this Agreement to Fire Response’s disadvantage.
3.4 It is the responsibility of the Purchaser to carefully inspect the goods immediately after delivery or collection of orders.
3.5 Subject to any express warranty provisions contained in this Agreement, Fire Response may agree or refuse to provide a refund or credit for returned goods in its absolute discretion and subject to any conditions it may deem appropriate (including without limitation the payment of a restocking fee as determined by Fire Response). No refund, credit or other return will be agreed on Special Orders (as defined in clause 8.7).
3.6 Where goods have been delivered to Fire Response’s premises for collection by the Purchaser, and the Purchaser fails to collect or arrange the collection of the goods within a reasonable time (determined by Fire Response, acting reasonably), Fire Response may charge and the Purchaser must pay an amount equal to the account service fee referred to in clause 4.4 applied to the purchase price for the goods.
4. Payment, quotations and Price
4.1 Unless otherwise agreed, services are performed and goods are supplied at the prices or rates current and published by Fire Response at the time of performance in $AUD. All quotes remain current for 30 days only from the date of quote but are not fixed. NOTE pricing may vary from time to time subject to exchange rate variations and/or material increases outside the control of Fire Response.
4.2 Fire Response may provide estimates based on information provided by the Purchaser prior to commencement of delivery of the goods or services. If information supplied is incorrect or inaccurate then these estimates will vary.
4.3 The Purchaser must pay to Fire Response the price in relation to each purchase of goods or services as set out in the corresponding tax invoice.
4.4 Where any payment is not made on the due date, the Purchaser agrees to pay Fire Response an account service fee in relation to any amounts owed to Fire Response under or in connection with this Agreement which are not paid by their due date for payment. The account service fee will be calculated at the rate equal to 2% above the interest rate charged by Fire Response’s financial institution on overdrafts of $100,000 (or where there is more than one such rate, the higher of them), calculated daily and compounding monthly.
4.5 Without prejudice to any other rights Fire Response may have under this Agreement or at law, Fire Response may withdraw credit facilities to the Purchaser at any time without notice. Without limiting Fire Response’s rights to withdraw credit, Fire Response reserves the right to stop & place the account and any supply on hold until the account is returned to the agreed trading terms, and Fire Response agrees to recommence supply. Where credit has not been extended to the Purchaser or is otherwise suspended or withdrawn, then the Purchaser must pay for all goods purchased in full in cleared funds prior to Fire Response releasing those goods for shipping or collection. The Purchaser will remain liable for payment of all amounts due under this Agreement including any account service fee during any period of suspension.
5. Building and Construction Industry Security of Payment Act
5.1 For the purposes of the Building and Construction Industry Security of Payment Act 1999 (or equivalent legislation) existing or enforceable from time to time in each State or territory in Australia:
(a) Every date on which goods are supplied shall be deemed a reference date, and Fire Response shall be entitled to issue payment claims accordingly.
(b) It shall be sufficient service of a payment claim if it is posted to the Purchaser’s postal address as nominated on a credit application or other document provided to Fire Response or to any other postal address nominated by the Purchaser to Fire Response from time to time.
6. Passing of Title and Risk
6.1 Notwithstanding the delivery of the goods or part thereof the goods remain the sole and absolute property of Fire Response as full legal and equitable owner until such time as the Purchaser has paid Fire Response the full purchase price together with the full price of any other goods the subject of any other contract with Fire Response. Risk in all goods passes to the Purchaser on delivery or collection (as the case may be).
6.2 The Purchaser acknowledges that it receives possession of and holds goods delivered by Fire Response solely as bailee for Fire Response until such time as the full price thereof is paid to Fire Response together with the full price of any other goods then the subject of any other contract with Fire Response. Until such time as the Purchaser becomes the owner of the goods, it must:
(a) Store them on the premises separately;
(b) Ensure that the goods are kept in good and serviceable condition;
(c) Secure the goods from risk, damage and theft; and
(d) 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 Purchaser.
6.3 Until the goods are paid for in full:
(a) Fire Response authorises the Purchaser to sell the goods but only in the ordinary course of its business;
(b) The proceeds of any sale of the goods (or sale of other goods into which the goods have been incorporated) must be paid into a separate account and held in trust for Fire Response. The Purchaser must account to Fire Response from this fund for the full price of the goods;
(c) The Purchaser 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 Purchaser shall account to Fire Response for the price of the goods;
(d) Should the Purchaser die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy law or being a company calls a meeting for the purpose of or to go into liquidation or have a winding-up petition presented against it or has a receiver or administrator appointed, Fire Response 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 notwithstanding terms of payment previously specified or may, subject to the law, 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.
6.4 If the Purchaser does not pay for any goods on the due date then Fire Response is hereby irrevocably authorised by the purchaser to enter the Purchaser’s premises (or any premises under the control of the Purchaser or as agent of the Purchaser in which the goods are stored at such premises) 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 Purchaser whatsoever.
6.5 On retaking possession of the goods Fire Response may elect to refund to the Purchaser any part payment that may have been made and to credit the Purchaser’s account with the value of the goods less any charge for recovery of the goods, or to resell the goods or for any damage or loss of value sustained to the goods.
7. Security and PPSA
7.1 For the purposes of this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. Where a particular section or term from the PPSA is used in this Agreement, it is deemed to be that section or term as defined or used in the PPSA as amended, renumbered or replaced from time to time.
7.2 To the extent permitted by law, and for better securing payment of any amounts payable by the Purchaser under this Agreement, plus any costs or charges, the Purchaser hereby charges all of its real and personal present and after-acquired property in favour of Fire Response.
7.3 The Purchaser acknowledges and agrees that this Agreement constitutes a security agreement in relation to Fire Response’s security interest in all present and after-acquired goods for the purposes of the PPSA. The Purchaser agrees to grant a “Purchase Money Security Interest” to Fire Response.
7.4 For the avoidance of doubt, but without limiting any other provision of this Agreement, the Purchaser acknowledges and agrees that it grants to Fire Response a security interest in all goods supplied by Fire Response to the Purchaser (whether now or in the future) and in any proceeds from the sale of those goods.
7.5 To the extent permitted by law, the following provisions of the PPSA do not apply, and for the purposes of section 115 of the PPSA are contracted out of this Agreement:
(a) sections 95 (notice of removal of accession), to the extent that it requires Fire Response to give a notice to the Purchaser, 96 (retain of accession) and 125 (obligation to dispose of or retain collateral);
(b) section 130 (notice of disposal), to the extent that it requires Fire Response to give a notice to the Purchaser;
(c) section 132(3)(d) (contents of statement of account after disposal);
(d) section 132(4) (statement of account if no disposal);
(e) section 135 (notice of retention);
(f) section 142 (redemption of collateral);
(g) section 143 (reinstatement of security agreement).
7.6 For the purposes of section 14(6) of the PPSA, the Purchaser (and Fire Response) agree that any payments received from the Purchaser by Fire Response pursuant to or in any way connected with this Agreement, will be applied in such order as Fire Response deems fit in its absolute discretion.
7.7 The Purchaser consents to:
(a) and agrees to execute any other document or instrument required to give effect to the security interests created by this Agreement; and
(b) the registration with the relevant authority or public register of any security interest created by this Agreement or any other document required to give effect to a security interest created by this Agreement, including without limitation the registration of a financing statement or financing change statement on the Personal Property Securities Register.
7.8 The Purchaser must pay all costs of and incidental to the preparation, execution and registration of any instrument which is executed for the purposes of giving effect to this clause and must also pay all costs incidental to the withdrawal, discharge or release of such instrument.
7.9 To the extent permissible at law, the Purchaser waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relation to a Security Interest granted by the Purchaser, as Grantor to Fire Response.
8. Warranties and Limitation of Liability
8.1 Subject to express warranties detailed in clause 9 of this Agreement, all goods carry only such warranty, if any, as is furnished by the manufacturer thereof, or as may be implied by law. All freight costs for goods returned for warranty consideration are the Purchaser’s responsibility.
8.2 This Agreement does not attempt to exclude, restrict or modify the application of any applicable laws of the Commonwealth State or Territory which cannot be excluded, restricted or modified including Australian Consumer Laws.
8.3 The Purchaser acknowledges and agrees that to the extent permitted by law, Fire Response will not be liable for, and the Purchaser releases Fire Response in respect of, any claim, loss, cost, damage or expense (Claim) arising out of any act or omission of Fire Response or its employees, officers or agents unless that Claim is a direct result of the negligence or breach of this Agreement or a warranty by Fire Response.
8.4 The parties agree that to the extent permitted by law any liability for a Claim against Fire Response that cannot be excluded will be limited to one of the following (at the election of Fire Response):
(a) the re-supply or rectification of defective goods or services (if applicable);
(b) the cost of the re-supply or rectification by a third party of defective goods or services in question (if applicable); or
(c) the amount paid by the Purchaser in respect of the original supply of the goods or services.
8.5 Notwithstanding any of the above, the parties agree that Fire Response will under no circumstances be liable to the Purchaser for any indirect or consequential loss, loss of income, profit or opportunity or for any contingent, consequential direct/indirect special, or punitive damages arising out of or in connection with this Agreement, at law or in equity.
8.6 Fire Response’s liability/obligations to honour any Claim under or in connection with this Agreement do not extend to rectification of defects, loss or damage which is caused or contributed to by use, or treatment of any part of the goods or completed services other than in accordance with the more stringent of either: guidelines or specifications supplied by Fire Response or any manufacturer; industry best practice; or use under normal working conditions. Fire Response will also not be liable for defects, loss, costs or damage arising out of or in connection with:
(a) the misuse, neglect, or wilful destruction of any part of the goods or completed services; or
(b) any damage caused by or to the goods or completed services as a result of continued use after a defect has been detected or ought to have been detected; or
(c) installation or fixing of the goods to other goods or property after a defect has been detected or ought to have been detected; or
(d) tampering with or alteration of the goods or completed services by a third party or by goods or services supplied by a third party.
8.7 Notwithstanding anything else in this clause 8, if Fire Response constructs or modifies any goods or sources and non-stocked items at the request of and to meet the particular specifications of the Purchaser (“Special Order”) the Purchaser acknowledges and agrees that:
(a) where the purchaser has provided the materials to Fire Response for use in the manufacture of the Special Order Fire Response does not warrant that the materials will be free from defect or suitable for the Special Order;
(b) Fire Response does not warrant that the design of the Special Order will be suitable for the particular purpose to which the Purchaser intends to put it; and
(c) the Purchaser releases and forever discharges Fire Response in respect of any such Special Order and indemnifies Fire Response against any loss, cost, expense, damage or injury which may be caused or contributed by the Purchaser’s use, engagement, or on sale of any Special Order.
8.8 Fire Response will use reasonable endeavours to transfer warranties given by third party manufacturers of the goods supplied to the extent those warranties are transferrable. However, Fire Response will not be liable for negotiating with manufacturers on behalf of the Purchaser and will not be liable to provide warranties to the Purchaser in addition to those provided by the manufacturer and transferred under this clause (other than those warranties expressly stated in this Agreement or otherwise implied by law and not permitted to be excluded).
8.9 The content of any third party manufacturer’s warranties may be provided upon request to Fire Response. Note that these warranties will be subject to their own terms and conditions with which the Purchaser should familiarise itself. Some claims for defective goods will not be accepted by the third party manufacturer of the goods.
8.10 To the extent permitted by law and unless otherwise set out in this Agreement, Fire Response does not provide and expressly excludes all warranties whether implied by statute or otherwise in respect of any goods or services.
8.11 The Purchaser indemnifies Fire Response and keeps Fire Response indemnified against all liability, loss, cost or damage in connection with or arising out of any of the following:
(a) any breach by the Purchaser of this Agreement or any contract between Fire Response and the Purchaser;
(b) any Claim arising out of or in any way related to any injury to or death of any person or loss of or damage to any tangible property arising out of or in any way relating to this Agreement or any contract between Fire Response and the Purchaser and caused or contributed to by an act or omission of the Purchaser or its employees or agents; and
(c) any Claim by a third party arising out of or in any way related to any wilful, reckless, negligent or unlawful act or omission of the Purchaser or its employees or agents,
provided however that the Purchaser’s liability to indemnify Fire Response under this clause 8.10 will be reduced proportionally to the extent that any negligent act or omission of Fire Response contributed to the liability.
9. Express warranties
9.1 The Purchaser acknowledges that warranty terms and conditions vary for each product and information regarding the warranty provided for a particular product can be found in clauses 9.7 – 9.9 (as regards to components manufactured by Fire Response) and on the websites for each third party manufacturer. Links to manufacturer warranty information are found for each product on Fire Response’s website. The Purchaser is required to consult these links prior to submitting a warranty claim form to ensure details submitted in the claim comply with the relevant warranty coverage period.
9.2 A warranty claim form must be completed and emailed to Fire Response prior to returning goods to Fire Response. The warranty claim form is available from Fire Response on request.
9.3 Fire Response will assess the claim and/or forward the claim to the appropriate warranty claim team for the manufacturer (where relevant).
9.4 Fire Response may request the goods be returned (at the cost of the Purchaser) for physical inspection prior to or during a claim assessment. Further information regarding the claim may also be requested by Fire Response or a manufacturer.
9.5 If the goods are required to be returned to Fire Response, the following conditions apply in addition to any other terms of this Agreement:
(a) The original receipt and a completed warranty claim form must accompany the returned goods;
(b) All warranty claims and returned goods must be delivered to Fire Response at an address to be nominated by Fire Response at the Purchaser’s sole risk, cost and responsibility;
(c) The Purchaser must arrange for insurance coverage of all returned goods. Goods returned which are damaged in transit will not be subject refund, repair or replacement and all loss or damage will be at the expense of the Purchaser.
9.6 The initial warranty claim assessment procedure may take up to 5 business days from receipt of a warranty claim form. Additional time may be required where the goods are returned for inspection or where Fire Response or a manufacturer requires additional information.
9.7 Subject to clauses 9.8 and 9.9, Fire Response warrants that all goods manufactured by Fire Response and services completed by Fire Response are free from manufacturing defects and material failures for a period of 1 year from the date of the purchase order or tax invoice to which the goods or services relate.
9.8 The warranties contained in clause 9.7 and Fire Response’s liability under those warranties are limited by the provisions of clauses 8.3 to 8.6 (inclusive) and do not extend to defects or failures caused or contributed to by accident, misuse, improper installation (other than installation performed by Fire Response), unauthorised adjustment, inadequate maintenance, neglect or wear and tear.
9.9 No warranty claims will be considered by Fire Response until the complete goods, including all packaging and manuals, are returned to Fire Response at an address to be nominated by Fire Response, together with proof of purchase and a completed warranty claim form (in the form provided by Fire Response upon request). The cost of dismantling, removing the goods from any associated machinery and returning the goods to Fire Response are to be paid by the Purchaser. Fire Response is not liable for any labour or other costs associated with removal or reassembly/reinstallation of the goods the subject of a valid warranty claim unless those services are expressly included in that warranty claim.
10. Term and Amendment
10.1 This Agreement will commence and will have effect on and from the date of acceptance as set out in the preamble of these terms and conditions and will expire upon reasonable notice being given by one party to the other or in accordance with clause 10.2.
10.2 Without limiting any other rights of Fire Response, Fire Response may immediately terminate the Agreement if the Purchaser is in default under this Agreement in any way or commits an act of insolvency or an external administrator or controller, liquidator or trustee in bankruptcy is appointed to the Purchaser or the Guarantor.
10.3 Fire Response reserves the right to amend this Agreement, provided such amendments are conveyed to the Purchaser in writing. The Purchaser further acknowledges that such writing will be by ordinary mail to the address set out in the original credit application, proposal or quotation, unless the Purchaser advises in writing to Fire Response a new address, and this new address is acknowledged by return in writing by Fire Response. Where the Purchaser does not accept any amendments it must notify Fire Response in writing within 28 days. In the absence of any written notification from the Purchaser, any amendments will be deemed to be accepted upon placement of a further order with Fire Response after notice of the amendment, or 28 days, from notice, whichever occurs first.
11. Defaults and Rights
11.1 In the event of a default under this Agreement by the Purchaser, the whole of any outstanding balance will become immediately due and payable by the Purchaser to Fire Response together with all legal costs and expenses associated with recovery of the outstanding balance on an indemnity basis.
11.2 The certificate of a director or the credit manager of Fire Response will, in the absence of evidence to the contrary, be conclusive as to the amount of the outstanding balance.
11.3 No failure or delay of Fire Response to exercise any right or enforce any obligation of the Purchaser hereunder; and no custom or practice of the parties which is at variance with the terms of this Agreement; and no indulgence or forbearance by Fire Response of its rights under this Agreement shall adversely affect or prejudice its rights in relation to any current or subsequent default or to enforce the terms of this Agreement.
11.4 No waiver by Fire Response of any particular default by the Purchaser shall affect or prejudice Fire Response’s rights in respect of any subsequent default.
12. Intellectual Property
12.1 For the purposes of this Agreement, “Intellectual Property Rights” means copyright, trademark, design, patent, semiconductor or circuit layout rights and any other rights whether or not they are registered or registrable, relevant to, among other things, the textual, graphical, audio and other information, content, data or material used by Fire Response in respect to this Agreement .
12.2 Any pre-existing Intellectual Property Rights owned by Fire Response before the commencement of this Agreement, will remain vested in Fire Response.
12.3 Any pre-existing Intellectual Property Rights owned by the Purchaser before the commencement of this Agreement, will remain vested in the Purchaser.
12.4 The Purchaser agrees to grant to Fire Response a non-exclusive, transferable, royalty free licence to use the Purchaser’s pre-existing Intellectual Property Rights to the extent that use relates to any material created by Fire Response pursuant to this Agreement.
12.5 Subject to any Intellectual Property Rights existing in any third party materials, all Intellectual Property Rights, created by Fire Response on or after the commencement of this Agreement will remain vested in Fire Response notwithstanding those rights were created pursuant to or for use in or with the goods.
13. Force Majeure
13.1 A Force Majeure event means anything outside reasonable control of a party, including but not limited to:
(a) power, data or communication outages or computer virus;
(b) acts of God or the public enemy, national emergencies, radioactive contamination, insurrection, riot, hostile or warlike action or sabotage;
(c) a transaction embargo;
(d) industrial action (including a picket); and
(e) any legislation or regulation and any action or inaction of any government or government agency.
13.2 If Fire Response is wholly or partially unable to perform its obligations because of a Force Majeure event, then:
(a) as soon as reasonably practicable after the Force Majeure event arises, Fire Response will notify the Purchaser of the extent to which Fire Response is unable to perform its obligations; and
(b) Fire Response’s obligation to perform will be suspended for the duration of the delay arising out of the Force Majeure event.
14. Applicable Law
14.1 This Agreement will be governed by and interpreted in accordance with the laws of New South Wales. The parties submit to the jurisdiction of the Courts of that State.
15. Guarantor and Purchaser’s Warranties
15.1 The Guarantor/s and Purchaser (and each director and office bearer if the Purchaser is a company) separately warrants that:
(a) in the case of a natural person, he/she has never been a bankrupt or entered into a deed of arrangement or compromise or any other arrangement under Part X of the Bankruptcy Act or otherwise assigned his/her assets for the benefit of creditors;
(b) it has never been under external administration or subject to the appointment of an external receiver or controller or entered into a deed of company arrangement and that it is solvent and able to pay its debts as and when they fall due;
(c) it is not executing this Agreement as a result of or by reason of or in reliance upon any promise, representation, statement or information of any kind whatever given or offered to them by or on behalf of Fire Response whether in answer to an enquiry or otherwise;
(d) prior to the placement of any order, it has made its own independent enquiries and satisfied itself as to the capacity, quality and fitness for purpose of the goods and/or services and, to the extent permitted by law, the Purchaser is not relying on any warranty, promise or representation in relation to the services, either expressly or impliedly given by Fire Response;
(e) it has satisfied itself that it and its personnel are suitably qualified and hold requisite experience to safely and efficiently deploy and use the goods and completed services.
16. Fire Response Relies on Guarantor and Purchaser’s Warranties
16.1 In entering into this Agreement, Fire Response relies upon the warranties provided above and upon any information supplied by the Purchaser in an accompanying credit account application.
16.2 Fire Response relies upon the representation that the person signing this Agreement has authority to execute it on behalf of the Purchaser.
17. Personal Information
17.1 The Purchaser and Guarantors consent to Fire Response from time to time, seeking, advising, exchanging and verifying any personal or commercial information of the Purchaser or the Guarantors with any third party and to carrying out any further pertinent investigation about the Purchaser’s or Guarantor’s contact/address details, credit arrangements, trading terms, credit worthiness, credit standing, credit history or credit capacity, financial status etc.
18. Goods and Services Tax (GST)
18.1 All amounts payable by the Purchaser under this Agreement are exclusive of GST. If GST is payable on any supply made by a party under or in connection with this Agreement, the consideration provided (or to be provided) for that supply will be increased by an amount equal to the GST liability properly incurred by the party making the supply (the “GST Amount”) and paid at the same time and in the same manner as the consideration.
19. Credit Limit
19.1 Notwithstanding any other provision in these terms, Fire Response may grant credit to the Purchaser under these terms either unconditionally or with any condition it sees fit, including, without limitation, a cap on the amount of credit Fire Response is comfortable extending to the Purchaser. Fire Response may increase or decrease any such cap as it sees fit from time to time throughout the duration of these terms by notice to the Purchaser in writing.
19.2 In the event that Fire Response serves notice in accordance with clause 19.1 then, apart from any extension, increase or reduction set out in the notice, this Agreement and any supporting guarantee will continue to operate in its amended form.
19.3 Notwithstanding the preceding clauses, should Fire Response decide to extend credit to the Purchaser in excess of the credit cap in place from time to time, such excess will not be a breach of this Agreement by Fire Response, and the credit cap will in no way act to limit the ability or right of Fire Response to recover any monies owing to it nor will such cap act to limit the liability of the Purchaser or any Guarantor to pay any monies to Fire Response.
20. Fire Response Lien
20.1 In addition to any lien which Fire Response may by statute or otherwise be entitled, Fire Response shall in the event of the Purchaser’s insolvency, bankruptcy or winding up or in the event of failure by the Purchaser to pay any sum owing to Fire Response by the due date, be entitled to a general lien on all property or goods belonging to the Purchaser which are in the possession of Fire Response (notwithstanding that such goods or some or part of them may have been paid for) for the unpaid price of any goods or services provided to the Purchaser.
21. Guarantee and Indemnity by Director/s
21.1 In consideration of Fire Response agreeing to perform the services:
• the Guarantors unconditionally guarantee to Fire Response the due and punctual performance by the Purchaser of all the Purchaser’s obligations under each and every Agreement including, without limiting the generality of the foregoing, the payment by the Purchaser of all moneys (which term includes, without limitation, principal, fees, interest and costs) payable or repayable (whether presently or in the future, actually or contingently) under each and every Agreement and the Guarantors promise to pay to Fire Response on demand all moneys which the Purchaser defaults in paying under any Agreement including all moneys arising by way of costs, expenses, bank charges, losses or damages incurred by Fire Response arising from any default by the Purchaser under or relating to any Agreement;
• I/We also acknowledge and agree in my/our capacity as Guarantor that the Guarantee and Indemnity that I/we may have previously given continues to secure any and all liabilities and obligations of the Purchaser/debtor.
22.1 Any notices, demands, consents or other communications under this Agreement shall be in writing signed by the party or the party’s solicitor and sent by pre-paid post, facsimile, electronic mail or by hand to the address for the party detailed in this Agreement or in any corresponding credit application, quotation or order form or otherwise as notified by one party to the other party during the Agreement and will be deemed to be duly served:
(a) if in person, at the time of delivery;
(b) if by post, within Australia to an Australian address 2 business days after posting and in any other case 10 business days after posting by airmail;
(c) if by facsimile, the date and time the sender’s facsimile machine produces a confirmation of transmission; or
(d) if by electronic mail, the date and time depicted on the sender’s email account sent item.
23.1 The Agreement incorporating these terms and conditions contains the entire agreement between the parties as at the date of the Agreement with respect to its subject matter and supersedes all prior agreements and understandings between all parties in connection with it.
23.2 Nothing in this Agreement will be deemed to constitute a partnership, joint venture, agency or other form of fiduciary relationship between Fire Response and the Purchaser and neither Fire Response nor the Purchaser has the power to bind the other except as expressly authorised by this Agreement.
23.3 If any provision of this Agreement is held to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation, it is to be severed so that the validity and enforceability of the remaining provisions are not affected.
23.4 Fire Response may assign or otherwise transfer any of its rights under this Agreement. The Purchaser may only assign or otherwise transfer any of its rights or obligations under this Agreement if it has obtained the prior written consent of Fire Response.