Terms of Supply
These are the Terms and Conditions of Quotation and Sale (“Terms and Conditions”) of all products supplied by Prosparx Electrical Solutions Pty Ltd, except as otherwise expressly agreed upon in writing between a duly authorised officer of Prosparx Electrical Solutions Pty Ltd and the customer, the following Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any document or agreement between the Customer and Prosparx Electrical Solutions Pty Ltd.
- Definitions “Customer” means the person/s placing the order for Works and/or products supplied by Prosparx Electrical Solutions Pty Ltd to the Customer as specified in any invoice, document or order. The customer warrants that they have the power to enter into this agreement and has obtained all necessary authorisations to allow them to do so.
“Prosparx Electrical” means Prosparx Electrical Solutions Pty Ltd the company whom the Customer is contracting with whose business name and ABN appears on the quotation, invoice, receipt or TCA provided to the Customer.
“Quote” means any document containing a price for Works, including but not limited to Tax Invoices, quotations generated by computer or tablet devices or handwritten quotations.
“Works” means any services rendered, products delivered or any future or completed work done by Prosparx Electrical.
- Binding Nature
(A) All orders placed with Prosparx Electrical shall only be accepted subject to these Terms and Conditions. The Customer has exclusively accepted and is immediately bound by these Terms and Conditions if the Customer places an order for the product/s or services, signs any Quote, pays the deposit, continues to provide instructions and/or accepts the product/s or Works.
(B) Prosparx Electrical may, at any time, alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by Prosparx Electrical to the Customer.
(A) If there is any error or omission in the Quote, Prosparx Electrical reserves the right to change the contract sum on the Quote. This clause applies even if the Quote has been accepted by the customer. Prices quoted are subject to final costing assessment by Prosparx Electrical.
(B) Upon acceptance of the Quote by the Customer, Prosparx Electrical may require a deposit to be paid prior to any Works being commenced by Prosparx Electrical. This deposit is at the sole discretion of Prosparx Electrical.
(C) Notwithstanding any other clause, the contract sum on the Quote will only be valid for 30 days from the date of the quotation. Prosparx Electrical reserves the right to make any changes to the Quote if the 30 days lapses.
(D) At Prosparx Electricals’ sole discretion a portion of or the full amount of the deposit may be non-refundable. The amount that is non-refundable is a true estimate of costs and expenses spent to date.
(E) Prosparx Electrical reserves the right to make any changes to the quotation including but not limited to the contract sum if either: (i) a variation is requested by the Customer, or (ii) a Quote has not been fulfilled within 30 days of the date the Quote was produced. Any variation from the quotation, schedule works or specifications will allow Prosparx Electrical the right to stop the progress of any works until Prosparx Electrical and the Customer agree to changes. Payment for all variations must be made in full at the time which they are raised.
(F) After Prosparx Electrical accept your order you may not cancel the order unless Prosparx Electrical agree in writing. Prosparx Electrical reserve the right to supply an order in full or only in part.
- Terms of Payment
(A) The customer shall make payment according to the Quote or unless the Customer has been granted a credit account. Granting of a credit account shall be at the absolute discretion of Prosparx Electrical and unless otherwise demanded by Prosparx Electrical the Customer granted credit account shall make payment within the terms approved in the credit account.
(B) If the customer fails to make payment in accordance with clause 4(A), Prosparx Electrical shall be entitled to:
(i) Require the payment of cash upon delivery and commencement of any further Works;
(ii) Charge default interest at the rate of 9% per annum on all overdue amounts (including late payment charges and amounts other than the contract sum) calculated on a day to day basis on any monies due but unpaid, such interest to be computed from the due date for payment AND the parties agree that such default is not a penalty but is a true measure of damages incurred by Prosparx Electrical. Payments received from the Customer will be credited first against any default interest and all such charges shall be payable upon demand;
(iii) Claim from the Customer all costs relating to any action taken by Prosparx Electrical to recover moneys or goods due from the Customer including, but not limited to, any legal costs and disbursements on a solicitor-client basis;
(iv) Cease any further Works for the Customer and terminate any agreement in relation to services and/or products that have not been provided or delivered; and
(C) The Customer shall not be entitled to set off against, or deduct from the contract sum, any sums owed or claimed to be owed to the Customer by Prosparx Electrical nor to withhold payment of any invoice because part of that invoice is in dispute.
- Completion Time
(A) Any date or time quoted for delivery and completion of the Works is an estimate only and Prosparx Electrical shall endeavour to complete the Works at a time or times required by the Customer, but failure to do so shall not confer any right of cancellation, termination or refusal of delivery on the Customer’s part or render Prosparx Electrical liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.
(B) The Customer will not be relieved of any obligation to accept or pay for products by reason of any delay in delivery or any strike, lockout, unavailability of raw materials, accidents to machinery, differences with workmen, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or intervention imposed by any Laws, regulations, Governments or agency’s thereof and any other cause beyond the control of Prosparx Electrical or any other cause whatsoever.
(A) The customer shall examine the products immediately after delivery and Prosparx Electrical shall not be liable for any misdelivery, shortage, defect or damage unless Prosparx Electrical receives details in writing within 14 days of the date of delivery of the products.
(B) If Prosparx Electrical are employed to install said product/s the Customer shall not open, dismantle or otherwise handle the product/s.
- Property and Risk
(A) Notwithstanding delivery of the product/s or their installation, property in any given products shall remain with Prosparx Electrical until the Customer has paid and discharged any and all other indebtedness to Prosparx Electrical on any account whatsoever including all applicable sales taxes and any other taxes, levies and duties. Any payment made by or on behalf of a Customer which is later voided by the application of any Statutory Provision shall be deemed not to discharge the Customer’s indebtedness and in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.
(B) The Customer acknowledges that they are in possession of the products solely as a bailee for Prosparx Electrical until payment as defined in clause 4(A) has been made in full to Prosparx Electrical and until such payment, the Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery.
- Force Majeure
Prosparx Electrical shall not be liable for any failure or delay in supply or delivery of the products or Works where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside the reasonable control of Prosparx Electrical including, but not limited to war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.
- Products and Works
If any products and Works specified within this quotation are unavailable at the time of the works being carried out, Prosparx Electrical in its absolute discretion may substitute a reasonable alternative.
(A) To the extent required by statute, subject to the conditions of warranty as may be set out in The Australian Consumer Law located in Schedule 2 of the Competition and Consumer Act 2010 (Cth) Prosparx Electrical warrants that if a defect in any of the Works carried out by Prosparx Electrical is reported to Prosparx Electrical within 12 months of the date of completion, then Prosparx Electrical will either replace or remedy the Works subject to these Terms and Conditions.
(B) This warranty will not be applicable in any of the following:
(i) Defect or damage caused which may be caused or partly caused by or arising through the failure of the Customer to properly maintain any Works, follow any instructions or guidelines provided by Prosparx Electrical, use of any Works in any other way than is outlined in the quotation or by the Customer’s negligence.
(ii) The Customer continues to use any of the works after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user.
(iii) The Customer allows someone other than a licensed professional to deal with the products.
(iv) If the works fail due to fair wear and tear, any accident or act of God.
(C) The warranty shall cease and Prosparx Electrical shall thereafter in no circumstances be liable under the terms of the warranty if the works are repaired, altered or overhauled without Prosparx Electricals’ express written consent.
(D) In respect of all claims, Prosparx Electrical shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
(E) If Prosparx Electrical must make an inspection outside of our premises, Prosparx Electrical may charge the Customer for all reasonable costs incurred including labour, travelling and other out-of-pocket expenses incurred if the fault or defect is deemed to be outside this warranty.
(F) Where the Customer seeks to have defective goods replaced, Prosparx Electrical must have received notice within 6 months of the Customer receiving them and the goods must be returned to Prosparx Electrical within 12 months of the Customer receiving them.
(G) Components and parts from third party suppliers are subject to the same warranty (if any) as is extended to Prosparx Electrical by the supplier.
(H) If Prosparx Electrical replace defective goods, ownership in those defective goods transfers wholly and unconditionally to Prosparx Electrical.
(I) If a claim is made by a Customer and Prosparx Electrical, after assessing the item, deem this to be out of warranty, Prosparx Electrical will make reasonable attempts to contact the Customer to arrange for the items to be returned. If, after 30 days, the Customer has not made arrangements to have the goods returned, Prosparx Electrical may dispose of the goods at the Customer’s expense.
(J) Time is of the essence in relation to all stipulated time requirements in this clause.
- Customers Acknowledgements
(A) It is the sole responsibility of the Customer to check and confirm the order with Prosparx Electrical prior to signing the Quote. Prosparx Electrical will not be held liable for incorrect orders.
(B) It is the responsibility of the Customer to ensure that the Works can be completed without interruption, in a continuous work flow and on the mutually agreed date. Prosparx Electrical reserves the right to charge the Customer any extra costs incurred by Prosparx Electrical by virtue of interruption including but not limited to additional return to site charges and travel costs. The customer shall be fully responsible to ensure that plumbing, electrical installations and any other installations not specified within this quotation do not foul the work area and associated areas. The customer shall be fully responsible for any necessary foundations.
(C) The Customer shall ensure that Prosparx Electrical has clear and free access to the work site at all times to enable them carry out the Works. Prosparx Electrical shall take all due and reasonable care when delivering and installing the product/s in accordance the Terms and Conditions. Prosparx Electrical shall not be liable for any loss or damage to the site.
(D) The Customer accepts all liability for, and indemnifies Prosparx Electrical against, any custom orders or additional requests that are outside the usual scope of works, including but not limited to anything that is labelled as a “client/customer requirement”. The usual scope of works, and what is outside same, is determined solely by Prosparx Electrical.
(E) Prosparx Electrical accepts no liability for the visual presentation or noise levels of installed products.
(A) If the customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or enters into any composition or arrangement with creditors or if a receiver or manager is appointed for any property or assets of the customer or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, or if a Liquidator or Provisional Liquidator is appointed, Prosparx Electrical may, in addition to exercising all or any of its rights against the customer, suspend any further deliveries and immediately recover possession of any products not paid for in accordance with the Terms and Conditions. Prosparx Electrical will not be liable for any loss or damage the Customer suffers as a result of Prosparx Electrical exercising its rights under this Clause.
(B) If a Customer cancels or alters any order or part order for any product at any time after Prosparx Electrical has received the order then Prosparx Electrical reserves the right to charge to the Customer the cost of any product/s or materials already acquired for the order together with cost of labour and tooling expended to the date of such cancellation or alteration. This is a genuine estimate of costs and expenses incurred by Prosparx Electrical to date.
(C) Prosparx Electrical reserves its rights as Seller under the Sale of Goods Actor similar State or Territory laws.
- Personal Property Securities Act 2009 (“PPSA”)
(A) The Customer acknowledges and agrees that:
(i) this agreement constitutes a security agreement for the purposes of the PPSA and creates a registrable security interest under the PPSA in all materials supplied or will be supplied by Prosparx Electrical to the Customer;
(ii) Prosparx Electrical has the right to register a financing statement under the PPSA with respect to the security interest created by this agreement;
(iii) if Prosparx Electrical registers a security interest under the PPSA, Prosparx Electrical may exercise any or all remedies afforded to it as a secured party, without prejudice to any other rights or remedies arising out of a breach by the Customer of any agreement with Prosparx Electrical; and
(iv) the materials supplied or will be supplied by Prosparx Electrical to the Customer are collateral for the purposes of the PPSA.
(B) The Customer waives any right the Customer has under the PPSA to receive notice in relation to registration events.
(C) The Customer and Prosparx Electrical agree that neither party will disclose information of the kind specified under Section 275(1) of the PPSA.
(D) Prosparx Electrical may elect, at its absolute discretion and at any time, that any section of the PPSA specified in Section 115 will not apply to the extent permitted by Section 115.
(E) This clause shall survive the Termination of the Contract.
- Privacy Act 1988
(A) The Customer hereby acknowledges that:
(i) Prosparx Electrical collects personal information such as contact details, bank account details, insurance details and credit card details and holds such information for seven (7) years. The purpose of the collection of personal information is only for internal use.
(ii) they have been informed by Prosparx Electrical that personal information about them may be disclosed to or acquired from or to a credit reporting agency.
(B) The Customer hereby agrees:
(i) that Prosparx Electrical may contact any trade references or other credit references at any time whether now or in the future for the purpose of assessing credit worthiness.
(ii) To Prosparx Electrical receiving from any other credit provider or providing to any credit provider any information whether by way of report record or otherwise relating to credit worthiness for the purposes of exchanging information, assessing credit worthiness and notification of default at any time whether now or in the future.
(iii) To Prosparx Electrical obtaining from a credit reporting agency a credit report on the Customer for the purposes of assessing any credit application and the Customer further consents to Prosparx Electrical obtaining such reports from time to time for the purposes of assessing credit worthiness during the continuance of credit provision.
(iv) To Prosparx Electrical obtaining from a business which provides credit information a report or information in relation to the Customer’s commercial credit worthiness or commercial dealings and using such information for the purpose of assessing the Customer’s application for credit.
(v) That, in the event of default of payment of any of their debts, Prosparx Electrical may disclose all information relating to the Customer’s account to its collection agency for the purpose of receiving any or all amounts outstanding.
(A) If any clause or part thereof of these Terms and Conditions is invalid or not enforceable in accordance with its terms, all other terms or parts thereof which are self-sustained and capable of separate enforcement without regard to the invalid or unenforceable clause or part thereof is and will continue to be valid and enforceable in accordance with its term.
(B) The Customer agrees that these Terms and Conditions are governed by and construed in accordance with the laws of the State or Territory of Australia from which this document is issued and the Customer and Prosparx Electrical submits to the non-exclusive jurisdiction of the Courts of the State or Territory of Australia from which this document is issued.
(C) Subject to other clauses in these Terms and Conditions and implied provisions, Prosparx Electrical shall not be liable whatsoever to the Customer for any indirect, consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Prosparx Electrical of these Terms and Conditions. In the alternative, Prosparx Electricals’ liability shall be limited to damages not exceeding the contract sum of the order.
(D) Prosparx Electrical may assign all or any part of its rights and obligations without the Customer consent.
Should you not understand anything stated in these Terms and Conditions or wish to request any amendments, please contact Prosparx Electrical. If you give us instructions to proceed after receiving these Terms and Conditions, same is taken as acceptance of the terms as disclosed herein.
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