APPLICATION OF THESE TERMS AND CONDITIONS
For the purposes of this agreement, “Wolfe Systems” is Wolfe Systems Automation and Audio Visual ABN 90 606 528 607 and its successors and assigns or any person acting on behalf of and with the authority of; “the Client” is the applicant named on the Client Information Form or where no such form exists then on the proposal provided by Wolfe Systems to the Client; “GST” means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999; “Equipment” means audio, video, intelligent lighting, security, automation and associated components; “Site” means the place where the Work will be carried out; “System” means a complete stand alone or integrated audio/video system or security and access control system; and “Work/s” means the performance of Wolfe Systems’ services to fulfil the Client’s requirements.
2.1. Wolfe Systems Supply Proposal Wolfe Systems shall give the Client a proposal specifying the Equipment and Work required to fulfil the Client’s instructions and an estimate of Wolfe Systems’ fee for the supply and /or installation of such Equipment and Work.
2.2. Sales Tax/GST Equipment and Work specified in Wolfe Systems’ proposal are subject to GST.
2.3. Acceptance by the Client2.3.1 The Client shall accept the proposal by signing and returning a true copy of the proposal. Acceptance by the Client of the proposal will constitute acceptance by the Client of these terms and conditions.2.3.2 Proposals are valid for thirty (30) days only unless an extension has been authorised by Wolfe Systems.2.3.3 In acceptance of the proposal, the Client warrants that it has not relied on any representation by Wolfe Systems other than as supplied in writing in the proposal.
2.4. Intellectual Property and Ownership of Technical Information Information contained in Wolfe Systems’ proposal that refers to a System to be created for the Client has intellectual property rights belonging to Wolfe Systems. The Client shall not share such information with any other business in a similar industry to Wolfe Systems without the prior written approval of Wolfe Systems.
2.5. Work Not Allowed For Wolfe Systems’ Work does Not include (unless specified in writing): (a) supply or installation of E.L.V (Extra Low Voltage) cable systems; (b) responsibility for the quality of Pay-TV and Free-To-Air Television and radio signals, unless Wolfe Systems have contracted to upgrade or supply the antenna system; (c) supply of, or modification to cabinetry; and (d) custom programming
INSTALLATION AND SERVICE CALLS
3.1. Wolfe Systems’ hourly charge out rate Monday to Friday is $90 for one installer and $165 for a team of two installers.3.2. Wolfe Systems’ weekend hourly charge out rate is $135 for one installer and $250 for a team of two installers.3.3. Prices quoted for installation are based on Equipment being installed once only. Any reinstall or relocation will become a variation and is subject to additional charges.
4.1. The Client shall ensure that Wolfe Systems has clear and uninterrupted access to the Site until Wolfe Systems’Work has been completed and Wolfe Systems has been paid in full.
4.2 The Client will indemnify Wolfe Systemsfrom additional costs or penalties if the completion of Wolfe Systems’ Work is delayed due to interrupted Site access.
SITE PLANS AND DIMENSIONS
If appropriate the Client will notify and provide to Wolfe Systems the latest copy of the Site plans and dimensions including latest changes and alterations and provide Wolfe Systems with plans of proposed cabinetry to ensure the required space for Equipment and cabling space is allowed for and that suitable ventilation is available to remove heat from the primary heat-generating sources e.g. amplifiers/receivers, FOXTEL and Set Top Boxes).
6.1 Variations requested by the Client to the original design after construction commences will be submitted in writing for the Client to approve and sign. Work on any variations will not start until written approval has been obtained from the Client.
6.2 Variations requested by the Client after construction commences will be invoiced immediately after signed approval and will be payable within seven (7) days.
6.3 Conduits are not included in the proposal. If required they will be supplied as a variation to this agreement.
6.4 Structural cabling wall plates are standard white Clipsal Classic or 2000 series. Variations from standard plates may incur an extra charge.
7.1 No allowance has been made for any retention monies to be held.
The Client shall indemnify Wolfe Systems from any costs, expenses or losses incurred by Wolfe Systems should the Client cancel the accepted proposal. The time for payment for such cancellation shall be seven (7) days from Wolfe Systems’ tax invoice.
9.1 Time for Payment The Client must, within the time specified in the proposal, upon the Client receiving Wolfe Systems’ invoice, pay Wolfe Systems the total amount set out in the invoice.
9.2 Interest Wolfe Systems may charge interest at a rate of four per centum (4%) above the commercial lending rate of the St. George Bank calculated on a daily basis on amounts not paid within the time specified in Wolfe Systems’ tax invoice
9.3 Deposit Wolfe Systems may require a deposit from the Client. The time for such payment will be specified in Wolfe Systems’ proposal. The Client acknowledges Wolfe Systems is under no obligation to start any Work as requested by the Client, until the deposit is received by Wolfe Systems in full and when all details pertaining to contract are finalised. In the event of default as to payment owing to Wolfe Systems on the part of the Client, Wolfe Systems shall be entitled to forfeit the deposit and claim any profit or margin contemplated by or allowed for in the contract in addition to any remedy available to Wolfe Systems at law or in equity.
9.4 Progress Payments When agreed progress payments are not honoured by the Client, Wolfe Systems reserves the right to halt any further Work, and claim the loss of anticipated earnings, until such time as the outstanding payment is forthcoming.
9.5 Damages The Client must pay to Wolfe Systems any costs, expenses or losses incurred by Wolfe Systems as a result of the Client’s failure to pay to Wolfe Systems all sums outstanding as owed by the Client to Wolfe Systems including without limiting the generality of the forgoing any debt collection and legal costs incurred in enforcing payment on a solicitor and own client basis.
9.6 Credit Card Payments Wolfe Systems will accept payments by MasterCard and Visa with a 2% (two percent) surcharge and Amex with a 3% (three percent) surcharge.
PERFORMANCE OF WORK
10.1 Wolfe Systems agrees to complete all Work detailed in its proposal to industry standards in a workmanlike manner with due diligence in accordance with the terms and conditions of this agreement.
10.2 Any System and/or Equipment not supplied by Wolfe Systems may alter installation and/or programming costs.
10.3 Wolfe Systems shall keep the Client advised as to shortages relating to Equipment and/or price changes where practical and may recommend the early purchase of such Equipment if it is in the Client’s interest to avoid increased costs or delays.
10.4 Equipment prices and stock availability change from time to time and such changes will be submitted to the Client for approval prior to installation. The Client acknowledges that Wolfe Systems will not be held responsible for such changes and the Client shall indemnify Wolfe Systems from any additional costs or expenses incurred.
10.5 Any changes requested by the Client’s architect /agent that affect the System’s design or budget will be confirmed with the Client prior to proceeding.
DAMAGE TO WORK
11.1 The Client shall indemnify Wolfe Systems from any damage caused to Wolfe Systems’ Work by other trades, including damage to Equipment or cables cut or plastered over.
11.2 Negligence on the part of Wolfe Systems in any of its Work is not excluded.11.2. The details of each Party for the purposes of giving notice are as set out in the Proposal.
OCCUPATIONAL HEALTH AND SAFETY
No visitor will be allowed on the Work site unless accompanied by Wolfe Systems as specified in the Occupational Health and Safety Act 2000, Section 8 (2).
13.1 A twelve (12) month warranty applies to all Equipment supplied and any installation performed by Wolfe Systems. Extended warranty can be offered, the cost breakdown is available on application.
13.2 Equipment warranty commences on the date of installation and all other warranties on the date of completion of the Works.13.3 During the warranty period Wolfe Systems will attend on Site and repair or replace, free of charge, any defective or malfunctioning Equipment supplied by Wolfe Systems and will correct free of charge, any defects in the installation of such Equipment.
13.4 After the twelve (12) month period (as specified in clause 10.1) the Equipment will carry any remaining manufacturer’s warranty and any labour, freight or other charges not covered by Wolfe Systems’ warranty shall be at the Client’s expense.
13.5 All warranty and service calls will be carried out between the hours of 9am and 5pm Monday to Friday except on public holidays.
Full information pertaining to extended warranties is available on application.
Wolfe Systems will service the Equipment at a cost of $550.00 for a period of one (1) year from date of final invoice and the service includes: (a) ) two (2) home service calls not exceeding two (2) hours inclusive of travel time; (b) ) five (5) telephone service calls not exceeding two (2) hours; and (c) programming adjustment not exceeding two (2) hours.
EXCEPTIONS TO WARRANTY
The warranty detailed in clause 10 shall not apply to: (a) any existing equipment belonging to the Client that proves to be incompatible or defective; (b) any system or equipment not supplied by Wolfe Systems; (c) any System or Equipment supplied by Wolfe Systems that has been subject to misuse or neglect; (d) any system or equipment that has been installed, repaired or altered by any other company other than Wolfe Systems; (e) any System or Equipment for which outstanding payment remains; and (f) any repair or replacement of Equipment damaged by any cause that is beyond the direct control of Wolfe Systems including but not limited to power surges, flooding, fire or lightning
It is the Client’s responsibility to arrange adequate insurance to cover the Equipment from delivery at the Site until the Equipment has been paid in full, for: (a) damage by persons other than Wolfe Systems; and (b) ) theft
RETENTION OF TITLE
18.1 Title Notwithstanding the delivery of the Equipment, title in any particular Equipment shall remain with Wolfe Systems regardless of whether the property housing the Equipment is on-sold by the Client until the Client has paid and discharged any and all monies owing pursuant to any invoice issued by Wolfe Systems for the Equipment, including all applicable GST and other taxes, levies and duties. Where the Equipment have been on-sold by the Client, the Client will be taken to hold the proceeds of sale of such Equipment upon trust for Wolfe Systems and to account to Wolfe Systems for these proceeds. Any payment made by or on behalf of the Client which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge Wolfe Systems’ title in the Equipment nor the Client’s indebtedness to Wolfe Systems and, in such event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
18.2 Bailment The Client acknowledges that it is in possession of the Equipment solely as Bailee until payment of all invoices for the Equipment is made pursuant to clause 18.1 and until that time: (a) the Client is not entitled to sell the Equipment but only in the ordinary course of business; (b) the Client must not encumber or otherwise charge the Equipment; and (c) the Client shall be fully responsible for any loss or damage to the Equipment whatsoever and howsoever caused following delivery of the Equipment to the Client.
18.3 Repossession 18.3.1 The Client hereby irrevocably grants to Wolfe Systems the right, at its sole discretion, to access the Client’s property and remove or repossess any Equipment (including such Equipment considered to be a fixture, including but not limited to fixed wall or ceiling speakers) and sell or dispose of them, and Wolfe Systems shall not be liable to the Client or any person claiming through the Client and Wolfe Systems shall be entitled to retain the proceeds of any Equipment sold and apply same towards the Client’s indebtedness to Look& Listen.
18.3.2 If the Client commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business or breaches any fundamental clause of this agreement, then Wolfe Systems may, without prejudice to any other remedies it may have, repossess any Equipment (including fixtures as specified in 18.3.2) delivered to the Client on any account which has not been paid in accordance with the terms and conditions herein and commence proceedings to recover the balance of any monies owing Wolfe Systems by the Client.
19.1 Non-excludable Rights The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the Client in relation to the provision of goods or of services which cannot be excluded, restricted or modified by this agreement (“Non-excludable Rights”).
19.2 Disclaimer of Liability 19.2.1 Wolfe Systems disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Client, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. 19.2.2 To the extent permitted by law, the liability of Wolfe Systems for a breach of a Non-Excludable Right is limited, at Wolfe Systems’ option, to either the repair or the replacement of the faulty Equipment.
19.3 3 Indirect Losses Notwithstanding any other provision of these terms and conditions, Wolfe Systems is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Client for: (a) any increased costs or expenses; (b) any loss of profit, revenue, business, contracts, or anticipated savings; (c) any loss or expense resulting from a claim by a third party; or (d) any special, indirect or consequential loss or damage of any nature whatsoever caused by Wolfe Systems’ failure to deliver or delay in delivering the Equipment
19.4 4 Force Majeure Wolfe Systems will have no liability to the Client in relation to any loss, damage or expense caused by Wolfe Systems’ failure to deliver the Equipment as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of Wolfe Systems’ normal suppliers to supply necessary products or materials.
SECURITY & CHARGE
The Client hereby charges all property, both equitable and legal, present orfuture of the Client in respect of any monies that may be owing by the Client to Wolfe Systems under the terms and conditions or otherwise and hereby authorises Wolfe Systems or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Client at any time or to register this charge over assets of the Client with the Australian Securities and Investments Commission.
SECURITY & CHARGE
21.1 The Client hereby authorises Wolfe Systems to collect, retain, record, use and disclose commercial and consumer information about the Client, in accordance with the Privacy Act 1988 and subsequent amendments, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by Wolfe Systems, a debt collector, credit reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.
21.2 Wolfe Systems may give information about the Client to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Client’s credit file. This information may be given before, during or after the provision of credit to the Client and will be in accordance with the Privacy Act 1988 and subsequent amendments.
ITEMS PROVIDED BY THE CLIENT
22.1 Power The Client shall provide regulated, clean 240AC power and an insulated ground at the Client’s Site.
22.2 2 Equipment Installation The Client shall provide space for Wolfe Systems to mount any ordered Equipment and the space must have an operating environment suitable for such Equipment. Equipment racks or cabinets and joinery modifications are not included in Wolfe Systems’ proposal unless specified.
22.3 3 Lightning Protection Although Wolfe Systems’ Equipment includes the original manufacturer’s standard lightning and power protection, there is no guarantee provided against damage due to either of these sources. Additional protection is available and may be desirable.
22.4 4 Liability of Performance to Design Wolfe Systems will not accept liability for system design and performance where the design has been authored or undertaken by others. Whilst Wolfe Systems will use best endeavours to provide a fully functional and operating system, any rectification work required as a result of inaccurate or incorrect design issues authored by others will result in additional charges being imposed. Such charges will be brought to the attention of the Client before proceeding.
22.5 5 Finishes Wolfe Systems’ proposal includes standard factory finishes on Equipment supplied from manufacturers. Unless otherwise specified in writing, custom finishes are subject to an additional charge. 22.6 6 Penetrations Wolfe Systems’ proposal does not provide for chasing, drilling or making good painting or any other building works unless specifically agreed in writing.
22.7 7 IT Works Wolfe Systems is not responsible for Installation and/or modification of any IT / data systems. Wolfe Systems will interface to IT systems where agreed to in its proposal and will use best endeavours to provide functionality, however Wolfe Systems will not accept liability for the performance of such systems unless Wolfe Systems were instrumental in facilitating the initial installation.
22.8 Site Conditions and Requirements Unless specified in the proposal, costs imposed for special building site condition levies, fees, insurances, compliances, inspection or certification fees are not included in the Wolfe Systems’ fee and will be charged as an additional item.
22.9 9 Parking The cost or provision of suitable parking for Wolfe Systems’ technical and/or installation crews is to be supplied by the Client.
23.1 No Waiver exercise of a power or right will not preclude any other or further exercise of that power or right or of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
23.2 2 Severability Any provision in these terms and conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these terms and conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
23.3 Governing Law and Jurisdiction These terms and conditions are governed by the laws of the State of Western Australia and all disputes arising between