The following terms and conditions apply to any and all works and services performed by Fire Rating Solutions Pty Ltd (“FRS”) including but not limited to the supply of materials, products and goods necessary for such works and services.
“Latent Conditions” means:
- physical conditions on, underlying or adjacent to the Site which a competent contractor in the position of FRS would not or could not reasonably have anticipated or discovered if such contractor had inspected the Site with reasonable diligence before agree into perform the works or services; and
- all conditions and characteristics of the Site and its surrounds including but not limited to below ground or in-wall conditions, all natural and artificial things on or under the Site and all substances, voids, structures, utilities and services on or below the surface, contamination plus the characteristics and the condition of all structures and elements on or forming part of the Site.
“Site” means the land or lands and other places to be made available by the customer to FRS for the purposes of its contract with and engagement of FRS to perform the works or services under the proposal or quotation submitted by FRS.
“Works or services” means the works or services including but not limited to construction, fire rating works, fire engineering works and the supply of materials, products and goods necessary for such works or services set out in the proposal or quotation submitted by FRS, all Variations thereto instructed, sanctioned or required under these terms and conditions and all work inferred therefrom for the proper execution and completion of the works or services.
“Variation” means any of the following provided always that it is of a character and content within the reasonable contemplation of the scope set out in the proposal or quotation submitted by FRS:
- increases or decreases in or omissions from the works or services;
- changes in the character or quality of any materials, goods, products, supplies or work;
- changes in the levels, lines, positions or dimensions of any part of the works or services;
- execution of works or services additional to what has been included in the proposal or quotation submitted by FRS.
The works or services
- FRS at all times shall determine the construction means, methods, techniques, sequences and procedures employed in and about the execution of its works or services.
- Should the Site conditions be found to differ from those as advised by the customer, then FRS shall notify the customer in writing and shall seek instructions before proceeding or continuing with any relevant or applicable part of the works or services.
Should FRS find any deficiency, discrepancy or ambiguity in anything in the works or services or in any documents, plans, specifications, drawings or other information provided by or on behalf of the customer, then FRS promptly and within a reasonable time shall refer the same to the customer who shall, in writing, give a direction to FRS on the matter. Should the customer fail to do so within two clear calendar days of the reference for directions, FRS shall determine which course shall be followed and FRS promptly shall notify the customer in writing of the determination by FRS.
- Right of FRS to engage others
FRS shall have the right to engage any suitably qualified person, business or corporation to perform any part or parts of the works or services under its supervision, subject to the requirement that FRS specifies the method and manner in which the part or parts is or are to be carried out and that FRS adequately supervises the performance of the part or parts of the works or services.
Either the customer or FRS may request a Variation to the works or services.
- Where the customer request a Variation, FRS shall not be required nor be obliged to vary the works or the services, whether by way of deletions or additions or other variations to the works or services, without prior written instruction from the customer.
- Where FRS requests a Variation, FRS shall not proceed with the Variation without prior written approval from the customer.
- Should the customer wish to proceed with a Variation, whether requested by the customer or by FRS, the customer shall in either case issue a written instruction to that effect.
- Should FRS consider that any instruction for a Variation involves an adjustment to the sum agreed to be paid to FRS as set out in its proposal or quotation and / or a delay to the completion of the works or services, then FRS promptly shall give written notice to the customer of the proposed adjustment and of the anticipated delay and shall not execute the instruction until that notice is countersigned indicating the approval of the customer.
- Acceptance of base work and conditions at the Site
The customer shall ensure that existing or previous work and conditions at the Site shall provide a suitable base for the works and services. FRS shall not be required nor be obliged to carry out the works or the services over such existing or previous work if in FRS’s sole and absolute discretion such existing or previous work or conditions is or are unsuitable.
- Should FRS and the customer agree that the existing or previous work or conditions at the Site form an unsuitable base for the performance of the works or services, then FRS and the customer may agree upon such terms as to payment or otherwise as they shall think fit in order to enable the works or services to proceed but nothing in this clause shall permit the customer to compel FRS to proceed with or to continue with the works or services or any part thereof without such agreement in writing and countersigned by the parties.
- The customer accepts total responsibility for and assumes the risk of the conditions of and relating to the Site, and acknowledges that FRS has not made any representations, warranties or guarantees as to the sufficiency or condition of the Site for the performance of the works or services.
- Latent Conditions
The customer irrevocably and unconditionally agrees that FRS shall have no liability of whatsoever nature arising out of or in connection with any Latent Conditions and that FRS shall not be required nor be obliged to pay for or to bear any cost, loss or expense in respect of the discovery of a Latent Condition regardless of the time of discovery and whether after the submission of its proposal or quotation, during the performance of the works or services or at any other time.
- If a Latent Condition is discovered, the party discovering the same shall give prompt written notice to the other party and where possible before the Latent Condition is disturbed or disturbed further, with details of the Latent Condition, the additional work, resources, cost or time (if any) which the party estimates to be necessary to deal with the Latent Condition and any other details reasonably necessary for such notice.
- The discovery of a Latent Condition shall require the customer to request a Variation in order to deal with the Latent Condition.
The customer shall pay FRS in accordance with the terms set out in the applicable proposal or quotation submitted by FRS and pursuant to all tax invoices rendered by FRS.
- The customer shall pay each (whether one or more and whether by way of a deposit, progress claim, milestone claim, interim claim or single, one-off or final claim) tax invoice of FRS within 14 (fourteen) clear calendar days from the date of issue of the relevant tax invoice.
- At no time shall FRS be required or obliged to negotiate the provision of nor to provide or procure any form of security for performance in favour of the customer whether by way of retention monies, bank guarantees, unconditional undertakings or any similar undertakings.
- FRS may suspend the performance of the works or services immediately upon failure by the customer to pay a tax invoice within 14 (fourteen) clear calendar days from the date of issue of the relevant tax invoice and shall not be obliged to continue with the works or services until the relevant tax invoice or tax invoices have been paid in full. If FRS exercises it suspension right under this clause, it must give written notice to the customer to that effect prior to the suspension and must allow the customer a period of a further seven clear calendar days from the date of suspension within which to make the applicable payment.
- In the event where your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including legal demand costs.
When FRS is of the opinion that its works or services have been completed, FRS shall give written notice to the customer to that effect.
- Within three clear calendar days from receiving such notice, the customer either shall acknowledge agreement with FRS’s notice indicating completion or give to FRS written notice of those matters and things that the customer reasonably considers are required to be done to achieve completion of the works or services.
- FRS promptly and with the co-operation of the customer shall do such things as may be required for the achievement of completion of the works or services and shall give to the customer written notice when in FRS’s opinion completion has been achieved.
- In the event that the customer does not give any such notice within the time specified herein, the works and services shall be deemed to have been completed as at the date of services of the last of any notices given by FRS to that effect.
- Nothing in these terms and conditions shall require FRS to provide any fire rating or fire engineering certificates or associated similar certifications, warranties, guarantees, maintenance manuals or as-built drawings ordinarily provided at the completion of such works or services until FRS has been paid in full for the completion of the works and services.
- Default and Termination
If the customer:
- without reasonable cause, wholly or partially suspends the engagement of FRS in performing its works services before completing them;
- indicates or intimates that it is unwilling or unable to continue to engage FRS to perform the works or services;
- fails to make the applicable payment within seven clear calendar days of FRS suspending the performance of its works or services pursuant to clause 19 herein;
- has an execution levied against the customer or is made bankrupt or enters or attempts to enter any composition or arrangement with its creditors or being a company has an execution levied against it or a winding up order made or passes or attempts to pass a resolution for winding up or becomes a party to the appointment of or has an Official Manager or Receiver or Administrator or Liquidator appointed for the whole or part of any of its business, property or undertaking or goes into liquidation or administration whether voluntary or compulsory or has an agent for a mortgagee in possession appointed; or
- is in substantial breach of its contract with FRS;
then FRS may at any time and without prejudice to any other rights or remedies, whether pursuant to contract, at common law, in equity, under statute or otherwise, by written notice to the customer terminate its contract and its engagement with the customer provided always that:
(i) before exercising any right of termination, FRS firstly has given prior written notice to the customer of the customer’s default or defaults referred to in clauses 25.1 to 25.5 requesting the customer to remedy the default within seven clear calendar days from such notice of default and advising that if the default or defaults are not so remedied then FRS may exercise its right of termination without further notice; and,
(ii)the customer fails to remedy the relevant default (or if more than one, fails to remedy all defaults) set out in the notice of default.
- Where FRS terminates its contract with and engagement by the customer, then without prejudice to any other rights or remedies FRS may possess, whether pursuant to contract, at common law, in equity, under statute or otherwise, FRS shall be entitled:
- to payment by the customer of expenses and losses whether direct or indirect, consequential or special caused to FRS by the termination; and
- 2to remove with all reasonable despatch from the Site its temporary building, plant, tools, equipment, goods and materials and shall give facilities for its own subcontractors to do the same.
- After taking into account the amounts previously paid, if any, by the customer as at the date of termination, the customer forthwith shall pay FRS the following:
- the value of works and services completed as at the date of termination;
- the value of works and services begun and executed in conformity with the requirements of the proposal or quotation accepted by the customer or pursuant to the customer’s contract with FRS;
- the value of profit that FRS would have earned had there been no termination and as if FRS had been permitted to complete all its works or services;
- the cost of materials or goods properly ordered for the works or services for which FRS shall have paid or for which FRS legally is bound to pay and on such payment by the customer any materials or goods so paid shall become the property of the customer; and
- the reasonable cost of removal by FRS under this clause.
- For the avoidance of doubt, any and all clauses herein referring to termination by FRS with a consequent obligation of the customer to pay and / or to compensate FRS arising out of or in connection with the termination apply equally for the benefit of FRS and shall be applied in the same manner, to the extent applicable, where the customer wrongfully terminates or repudiates its contract with or engagement of FRS.
- Limitation and Exclusion of Liability
Notwithstanding any other term or condition under, arising out of or in connection with any proposal or quotation accepted by a customer of FRS and notwithstanding any other clause of these terms and conditions, the customer irrevocably and unconditionally acknowledges and agrees that FRS shall not be liable to its customer, and that the customer cannot make any claims or demands nor bring any actions, suits or proceedings, whether in contract, tort, at common law, in equity or otherwise, for any type of direct loss and damage or any type of indirect or consequential loss or damage or special damages including but not limited to the following:
- any costs, expenses, losses or damages for delay, whether liquidated or unliquidated or at common law and, for the avoidance of doubt, FRS shall not be required to negotiate nor agree upon any pre-ascertained and liquidated damages in connection with the performance of its works or services nor any other basis for the customer to claim damages for delay including unliquidated or common law damages;
- any loss of profits, loss of business, loss of revenue, loss of contracts, loss of production or loss of anticipated savings;
- any loss of opportunity or other economic loss of whatsoever nature;
- any increased costs or expenses;
- any loss or expense resulting from a claim by a third party.
- The customer and FRS acknowledge that, under applicable State and Commonwealth law, certain clauses, conditions, guarantees and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the customer in relation to the provision of goods or of services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”).
- Except to the extent of Non-excludable Rights, FRS will not be liable for:
- any claim by the customer or any other person, including without limitation, any claim relating to or arising from all clauses, conditions, guarantees and warranties expressed or implied, and all rights and remedies conferred on the customer, by statute, the common law, equity, trade, custom or usage or otherwise; and
- any representations, warranties, conditions or agreement made by any agent or representative which are not confirmed expressly by FRS in writing, and the liability of FRS for any such matters hereby is excluded.
- Where (and to the extent) permitted by law the liability of FRS for a breach of a Non-Excludable right can be limited, the liability of FRS is limited, at the option of FRS, to one of the following:
- in the case of goods:
- 1.replacement of the goods or supply of equivalent goods;
- 2.repair of the goods;
- 3.payment of the costs of replacing the goods or acquiring equivalent goods; or
- 4.payment of the cost of having the goods repaired.
The customer irrevocably and unconditionally indemnifies FRS against all costs, expenses, losses, damages and legal costs and disbursements (on a solicitor and own client basis) of whatsoever nature whether sustained or incurred by FRS including but not limited to any order or judgment against FRS whether interim or final by any court or tribunal of competent jurisdiction and / or any award or determination against FRS by any arbitrator or expert referee whether interim or final as the case may be and which FRS may suffer as a result, whether directly or indirectly:
- arising out of or in connection with any breach of contract, act, default or omission (including but not limited to in tort and breach of statutory duty) of the customer or the customer’s agents, directors, employees, servants, consultants or contractors; and
- arising out of any repudiation or wrongful termination (whether pursuant to contract and / or at common law) by the customer of its contract with or engagement of FRS.
- Total Liability
The total liability of FRS to its customer arising out of or in connection with the performance of works and services pursuant to its proposal or quotation, pursuant to contract, at common law, in equity or otherwise will not exceed the lesser of the amount of $12,500 (twelve thousand five hundred dollars) or 25% of the sum of the proposal or quotation applicable to the works and / or services.