Standard Conditions Of Quotation And Sale
1.1 Unless otherwise expressly agreed in writing by Rix, these Conditions apply to any quotation given by Rix and to any agreement for the supply of goods and/or the performance of work by Rix.
1.2 It is expressly acknowledged and agreed that any order issued by the Customer consequent upon or with reference to a Rix quotation will be deemed to be an acceptance to purchase upon the terms stated on the quotation and these Conditions and constitutes the entire agreement between Rix and the Customer, and any conditions contained in the Customer’s order will not apply notwithstanding a statement to the contrary in the Customer’s order.
2.1 Subject to clause 2.2, a quotation by Rix remains open for 30 days from the date stated on the quotation (the “Quotation”) and will lapse if the Customer fails to make an order in writing within that period.
2.2 Rix may immediately withdraw a quotation, prior to the expiration of 30 days or terminate this Contract without notice if a Customer does not in Rix ’s opinion obtain a satisfactory credit assessment.
2.3 The Contract is conditional upon the Customer having issued its purchase order a minimum number of days, equivalent to the lead time specified in the Quotation, before the Estimated Start Date.
3.1 Rix may, in its absolute discretion, perform a Variation if it receives a written instruction from an employee or agent of the Customer to perform the Variation for the Customer.
3.2 The price payable for a Variation performed by Rix is to be determined by agreement between Rix and the Customer within two business days after the written instruction under clause 3.1 is received by Rix and the agreed price for the Variation will be added to or deducted from the Contract Sum. If agreement cannot be reached the Customer will pay the price determined by Rix and any dispute in relation to the Variation will be dealt with under clause 10.
3.3 Where the Contract Sum is not quoted as being a “fixed price”, Rix may at its option vary the Contract Sum at any time to take account of any variation in labour or material costs and the Customer will pay the varied Contract Sum.
4.1 The Customer will pay to Rix the Contract Sum in accordance with clause 4 and the terms of the Customer’s credit account with Rix (if any).
4.2 Any tax, including a goods and services tax or similar tax or other statutory charge which is imposed on or payable, at the election of any person, in relation to any part of or all of the Works or in respect of the supply of anything under or pursuant to this Contract (excluding income and capital gains tax) will, to the extent it is not included in the Contract Sum or any other payment due under this agreement, be added to the Contract Sum or such other payment.
4.3 Customers with approved credit accounts must make
payment in full for all goods and / or Works no later than 14 days following date of an invoice.
4.4 If a Customer has not been granted an approved credit account with Rix payment terms must be agreed with Rix.
4.5 All payments will be made in full and no amount may be withheld by the Customer by way of security, set-off, deduction or counter- claim.
5.1 The Works are deemed to be complete when, in the reasonable opinion of Rix, the Works are complete and Rix has complied with its obligations under the Contract except for minor Defects.
5.2 The times or dates quoted for commencement, installation and completion of the Works will be estimated as accurately as possible but are not guaranteed nor is time of the essence. Rix is not liable for loss, including consequential loss, loss of profits and liquidated damages which may be incurred by the Customer as a result of Rix failing to satisfy any of these dates.
5.3 If the estimated completion of the Works is delayed by circumstances or events beyond the control of Rix including, but not limited to, inclement weather, latent conditions, delays by Rix’s suppliers or subcontractors, delays directly or indirectly caused by the Customer, delay in giving Rix access to the Site in a condition that complies with clause 6.1 of these Conditions or industrial disputes, and irrespective of any other concurrent cause of delay for which Rix may be responsible:
(a) the Estimated Completion Date will automatically be extended by a reasonable period as determined by Rix; or
(b) Rix may terminate the Contract without any liability for breach of the Contract and Rix will be entitled to full payment for all Works completed.
5.4 If the Customer causes Rix any delay, the Customer will indemnify Rix for all expenses incurred and losses suffered including consequential loss and loss of profit by Rix as a consequence of any delay caused or contributed to by the Customer.
6. Work on Site
6.1 The Customer will ensure that, at no cost to Rix:
(a) the site is clear, free of water, clean, safe, has uninterrupted direct access for employees and sub-contractors of Rix, its material and plant and equipment and sufficient space necessary for the performance of the Contract, and suitable vehicle off-loading is possible within five metres of the Site;
(b) ensure adequate facilities and assistance (as are reasonably required by Rix) are provided to enable Rix to efficiently, comfortably and safely perform the Works;
(c) prior to the commencement of the Works that all necessary licences, consents and approvals including local council permits and engineering certifications required for the performance of the Works have been obtained; and
(d) the structures to which Rix is to install the Works comply with Rix specifications set out in the Quotation.
6.2 Rix will not be responsible for the removal of broken or damaged materials or any debris on the Site remaining from the Works.
7. Default by Customer
If the Customer defaults in the performance of any provision of the Contract or any other contract it has with Rix or if it commits an Act of Insolvency then Rix may, at its option and without prejudice to any other rights it may have under the Contract or at law:
(a) exercise its rights under clause 9 of these Conditions;
(b) suspend or cancel any existing credit facilities available to the Customer;
(c) suspend or cancel the performance of any part of or all of the Works then outstanding or outstanding under any other order or terminate the Contract; and
(d) set-off amounts owed to Rix by the Customer under the Contract or as a result of any losses or damages or under any other account against any moneys owing to the Customer by Rix.
8. Warranty and Liability
8.1 Other than the warranty and obligations of Rix arising under its standard warranty for the Works all other warranties, liabilities, conditions and obligations are excluded to the extent permitted by law including, without limitation, any loss or liability directly or indirectly caused by or arising from the actual or alleged failure of any equipment, software or other item to satisfactorily recognise any date as its true calendar date or any period of time as its true period of time.
8.2 Rix will not be liable for any shortage in delivery or product damaged prior to delivery unless Rix is notified within two days after the goods are delivered to site.
9. Insurance, Risk and Property
9.1 The Works are not to be insured by Rix unless otherwise agreed in writing by Rix.
9.2 The risk of damage to or loss or deterioration of any part of or all of the Works will pass to the Customer on the delivery of any goods comprised in the Works to the Site or on the expiry of five days from the date of notification by Rix to the Customer that Rix is ready to commence performance of the Works whichever is the earliest.
9.3 Notwithstanding that risk in part of the Works may pass to the Customer, property in and title to any part of the Works and the goods comprised in the Works will not pass to the Customer until all of the Contract Sum and all other money payable by the Customer to Rix has been paid in full and until then:
(a) the Customer will hold goods supplied under the Contract as bailee of Rix and a fiduciary relationship will exist between them; and
(b) Rix may enter the Customer’s premises without notice and without consent to inspect the goods and at any time take possession of any and all goods that are the property of Rix and if necessary, dismantle the Works and any existing structure.
If a dispute arises out of or relates to the Contract, a party may not commence any Court or arbitration proceedings (except urgent interlocutory relief) under this clause 10 unless it has in good faith attempted to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques.
11.1 Rix retains copyright and other intellectual property rights in
all material it uses for the performance of the Works.
11.2 Unless expressly included in the Contract, all descriptive specifications, drawings, dimensions and data appearing in catalogues and other literature supplied by Rix are approximate only and do not form part of the Contract.
11.3 The Customer warrants the accuracy, completeness and reliability of any documents or other information provided by the Customer to Rix relating to the Works and warrants it has a right to use any drawings or other material it has provided to Rix for the performance of the Works.
11.4 Any provision or clause of these Conditions which is void or unenforceable may be severed without affecting other provisions or clauses within these Conditions.
11.5 Rix may sub-contract its obligations under the Contract. The Customer acknowledges that no sub-contractor has authority to agree to any Variation of the Works on behalf of Rix.
11.6 Rix reserves the right to change the construction or design of any goods to be supplied under the Contract, if in its judgment it does not significantly affect the performance characteristics of those goods.
11.7 The Customer will not transfer or assign this Contract without Rix ’s written consent.
11.8 Except as may be otherwise specified by Rix, the Contract will be governed by the laws of New South Wales and the Customer submits to the non-exclusive jurisdiction of its courts.
Any reference in these Conditions to a word or expression used in the attached quotation will have the same meaning as in the Quotation. In these Conditions, unless the context requires otherwise:
“Act of Insolvency” means the Customer is made bankrupt or a bankruptcy petition is presented against it or an administrator, liquidator, provisional liquidator or a receiver is appointed in respect of the Customer or an application is made for winding up or a winding up order is made in respect of the Customer;
“Contract” means the agreement constituted by the Quotation and the Customer’s order;
“Contract Sum” means the total price specified in the Contract as may be adjusted from time to time in accordance with this Contract including, without limitation, the value of Variations performed by Rix;
“Rix” means The Rix Group Pty Ltd or any associated entities as defined in the Corporations Act 2001;
“Variation” means an increase, decrease, omission, substitution or other change to the scope of the Works including, without limitation, those arising from:
(a) particular site conditions, including ground conditions, ground levels or site allowances, which prevail at the Site and which were not made known to Rix by the Customer at the date Rix gave its quotation or the Customer made its order (whichever is the earlier);
(b) the final dimensions or specifications relating to any part of the Works varying from those specified in Rix ’s quotation as a consequence of the Customer providing incomplete, inadequate or incorrect specifications or information;
(c) any requirement that Rix perform the Works outside normal working hours; and
(d) any enactment, repeal or amendment of applicable laws and regulations;
“Works” means the works to be executed by Rix in accordance with the Contract including, but not limited to the supply of goods, materials or services including any Variation.