1. GENERAL
The acceptance of our tender includes the acceptance of the following terms and conditions. No conditions or terms stipulated incorporated or referred to by the purchaser are to annul or vary these conditions and terms unless agreed to by the supplier in writing.
2. VALIDITY
The quotation is open for acceptance within (1) month and from the date hereof and then lapses. Costs ruling are from date of quotation.
3. PRICE ADJUSTMENT
a) The prices quoted are based on materials and wage ruling at the date of quotation and will be subject to adjustment in accordance with the National Cost Adjustment Provision 1 (NCAP)1) or its equivalent (current edition) compiled by the Building Construction Council of NSW. Alternative, if the tender so states, firm prices are quoted on the understanding that the work will be completed within the period specified. Should completion be delayed for any reason beyond that period KONE Elevators reserves the right to adjust the prices in accordance with the price adjustment formula referred to above.
b) All prices will be subject to further variation in respect of any additional costs arising by virtue of any statute, regulations or orders issued by any Government Department or other duly constituted authority.
c) IMPORTED MATERIALS - The tender price, where appropriate, allows for the cost of importing materials based upon the rates of exchange, tax or duty prevailing at the date of tender. In the event of any adjustment in such rates, between the date of tender and 14 days after receipt of sufficient payment to settle the overseas debt, the supplier reserves the right to make an appropriate adjustment to the price.
4. TERMS OF PAYMENT
a) Payment shall be effected against progress claims in the following
i) 50% of the quoted value as the first progress payment shall be made at the time of placing order.
ii) 50% of the quoted value where KONE Elevators notifies the purchaser that the materials allocated are ready for delivery to the site.
b) Interest shall be paid on overdue accounts from the date payment was due until actually made at the “Indicator Lending Rate” published by Westpac Banking Corporation plus two percent (2%) during the period in which interest is payable based on progress claims.
c) Title to all equipment supplied by the Company hereunder shall remain vested in it until the quoted price has been paid in accordance with provision of Clause 4(a) hereof. Failure to pay agreed price when due, as stipulated in Clause 4(a) hereof, shall give us the right to discontinue work and enter the site and retake possession of any equipment supplied by us and then unpaid for which has been affixed to the building and to remove from the site and the works all plant and equipment and other property supplied by us pursuant to this contract. The purchaser shall also pay to us all expenses, loss and damage incurred or sustained by us consequent upon the exercise by us of the rights conferred by this clause.
5. OVERTIME/DAY WORK
All works shall be performed in normal working hours of regular working days unless otherwise specified. If overtime becomes necessary and agreed, additional charges at our usual rates will be added to the quotation. Our routine days off will apply on nominated dates in accordance with the award.
6. DEFECTS LIABILITY
Should any defects arise from faulty material or workmanship within (1) year of practical completion of KONE Elevators work under this contract and which is not due to improper use or maintenance by the purchaser, all such defects shall be made good free of cost to the purchaser during normal working hours. It is agreed that such defects liability period shall relate only to the new equipment installed, the subject of this quotation.Where goods of a proprietary brand are not manufactured by KONE Elevators and supplied at the request of the purchaser, then the purchaser shall be entitled only the benefit of any guarantees obtainable by KONE Elevators in respect thereof.
7. LIMITS OF LIABILITY
KONE Elevators shall not be liable for and the Contract shall not be liable to suspension or terminations by reason of any loss damage or delay due to causes beyond our reasonable control including but not limited to materials or component shortages, shipping space, embargoes, acts of government, strikes, lockouts, fires, bans, explosions, theft, flood, riot, civil commotion, war, malicious mischief, act of God or any other cause beyond KONE Elevators’ control.
KONE Elevators’ liability for any loss, damage or delay arising directly or indirectly from any act, default or omission negligent or otherwise in or about the performance and completion of the Contractor/order shall be limited to liability for physical damage or injury to any person and damage to property which in any such case is the natural immediate and foreseeable result of such act, default or omission caused by KONE Elevators our servants or agents solely and not jointly with any other person or for which KONE Elevators are solely responsible under this Contract/order an in no case shall KONE Elevators be liable for any consequential damages, loss of rent or profits or for claims made against the owner by any other person.
8. TRADE PRACTICES ACT 1974, as amended
In the event that the supply of goods and/or services pursuant to this agreement is a supply of goods or services to a consumer as defined in the Trade Practices Act, 1974, as amended (“the act”) nothing contained in this Agreement excludes, restricts or modifies in relation to this Agreement and the goods and/or services to be supplied hereunder any condition warranty right or remedy which pursuant to the Act applies to this Agreement or is conferred on the owner provided that to the extent the Act permits KONE Elevators to limit its liability for a breach of a condition or warranty implied by the Act then KONE Elevators’ liability for such breach shall be limited to:-
a) In the case of goods supplied pursuant to this Agreement, the payment of the cost of replacing the goods or acquiring equivalent goods; and
b) In the case of services supplied pursuant to this Agreement, the payment of the cost of having the service supplied again.
9. INSPECTIONS
KONE Elevators have allowed in its quotation for any inspections deemed necessary by the appropriate lift authorities. Should, after their inspection any part or parts fail under test or any further work other than that specified in this quote or due to non-performance of others be requested it may be subject to further quotation
10. DRAWINGS
Any specifications, drawings and particulars submitted with the tender are approximate only and the descriptions and illustrations contained in the supplier’s catalogues, price lists and other advertisement matter are intended merely to present a general idea of the goods therein and none of these shall form part of the contract when specified.
11. DELIVERY AND COMPLETION
Estimated times for delivery and completion shall run from the date of receipt of the written order and of any such information, drawings, licences, permits and approvals as may be necessary to enable the work to proceed. All such times are to be treated as estimates only not involving any contractual obligation.
DELAY IN DELIVERY OR COMPLETION
KONE Elevators shall not be liable for any delay or for any consequence of any delay in the production or delivery of any of the goods or the completion of the work for any cause beyond its reasonable control.
12. IMPROVEMENTS
Where improvements in design, manufacturing techniques material availability of installation, procedures will offer an installation at least equal to that described in this quotation, KONE Elevators reserves the right to change the specification to incorporate such improvements without prior written notice.
13. Notwithstanding anything contained in these conditions, any and all rights of copyright (whether in the Commonwealth of Australia or elsewhere in the world) in or relative to:
i) computer software (whether in the form of source code, object code or otherwise) and
ii) computer firmware
14. GENERAL
a) The Tender, unless otherwise specified, assumes that any old material removed will become the property of KONE Elevators due to allowances being made.
b) It is agreed that we do not assume possession or management of any part of the equipment, but such remains yours exclusively as the owner (or lessee).
c) Notwithstanding any other provision in this contract, KONE Elevators shall not be liable for any loss, damage, or cost resulting from any delay, disruption or interference to the progress of the work arising in connection with risks to health caused by the manifestation on the site of asbestos, material, silicon dust or the Aids disease whether or not such matters were discoverable at any time by KONE Elevators.
15. PERFORMANCE
KONE Elevators shall be entitled to perform its obligation hereunder by its employees or its contractors. The customer shall provide to KONE Elevators uninterrupted access to its premises during ordinary business hours and as such other times as may be reasonably agreed to enable KONE Elevators to perform its obligations hereunder.
16. NOTIFICATION OF ACCIDENTS
Each of KONE Elevators and the customer have a responsibility to notify the other party when it is aware of the death or injury to any person or damage to property arising from goods or services supplied hereunder.
17. GOODS AND SERVICES TAX
Pursuant to the draft tax ruling GSTR 1999/D5 (to subsection 29-70 (3) of “A New Tax System” ANTS - GST Act 1999 (“THE RULING”) it is agreed:
i) The main Contractor can issue tax invoices in respect of supply by the Subcontractor under the Subcontract (an “RCTI” - Recipient Created Tax Invoice).
ii) The Subcontractor will not issue a tax invoice in respect of that supply. The subcontractor’s claims for payment under the Subcontract shall be marked “This is not a Tax Invoice”.
iii) The Subcontractor acknowledges that it is registered for GST when it entered into the Subcontract and it will notify the Main Contractor if it ceases to be so registered.
iv) The Main Contractor acknowledges that it is registered for GST when it entered into the Subcontract and it will notify the Subcontractor if it ceases to be so registered or if it ceases to satisfy any of the requirements of the Ruling.
v) The Main Contractor will indemnify the Subcontractor for any liability for GST and penalty that may arise from an understatement of the GST payable on any supply for which the main Contractor issues an RCTI.