Terms and Conditions of Sale
1. Upon acceptance of the quotation proposed by Petrol Services Australia Group Pty Ltd (ACN 135 473 175) (“PSA”), You agree to and accepts the following Terms and Conditions (“Agreement”).
(a) No quotation or proposal given by PSA to You constitutes an offer. Any order from the You to PSA for the supply of goods and services shall not be binding upon PSA until accepted by PSA.
(b) Quotations and proposals are valid for a period of thirty (30) days from date of issue by PSA or otherwise specified in the quotation.
(c) The prices quoted are based on costs at the date of quotation and will be subject to variations as a result of any increase or decrease in labour, materials, equipment (including pipes, pipe fitting valves, pumps, electric motors, hoses and other finished metallic, plastic and rubber products) and/or sub-contractors costs between date of quotation and date of completion of the work or delivery of the equipment. Installation, reconditioning and fabrication prices are subject to escalation in accordance with variations to the Federal Metal Trades Award, over-award payments, site or area allowances involved during the contract period, Workers’ Compensation, Payroll Tax, Superannuation Guarantee Legislation, or any other wage costs and conditions imposed by Award or Statutory requirements.
2. You engage PSA to provide the goods and services (see Works as defined in the Schedule in the Quotation) from the Commencement Date (as defined in the Schedule in the Quotation) for the Fee (as defined in the Schedule in the Quotation). The Duration of the Works is listed in item 4 of the Schedule in the Quotation. This time frame is an estimate only and is subject to change. You will have no recourse against PSA should the Duration of Works change.
3. PSA will complete the tasks specified by You from time to time and will perform the Works with due care and skill and in a proper an effective manner and act in good faith and comply with all relevant laws.
4. In consideration of the PSA performing the Works, You will pay PSA the Fee exclusive of GST (as defined in the Schedule in the Quotation) as directed from time to time and:
(a) a deposit of 40% of the total Fee is to be paid on the Commencement Date; .and
(b) the outstanding balance be paid in full TBA days/weeks prior to the completion of Works.
You must note that the fuel system will not be commissioned for operation and released for handover until payment has been received in accordance with clause 4(b).
5. Should payment of the Fee remain outstanding beyond the terms specified in this clause 4, You shall pay to PSA on demand all costs relating to their default including without limitation all cost of letters of demand and all legal costs (assessed on a solicitor/own client basis) and all mercantile agent fees incurred by PSA in recovering any sums owed under this Agreement and any bank or dishonour fees incurred by PSA arising from any payments or default by You.
6. The Fee includes travel, labour, materials, equipment, and all associated costs associated with the provision of Works.
(a) In relation to the provision of project/site management works, the Fee includes, but is not limited to:
i. HSSE documentation and inductions;
ii. Establishing work/area site set-up; and
iii. Supply of as built drawings for all installed pipe work.
(b) In relation to the provision of fuel system works, the Fee includes, but is not limited to:
i. Supply and installation of under pump containment sumps;
ii. Supply and installation of single wall UPP product pipe (UL971 Rated); and
iii. Supply and installation of adapter plates where required.
(c) In relation to the provision of electrical works, the Fee includes, but is not limited to:
i. Supply of electrical hazardous area verification dossier and on side electrical audit;
ii. Equipotential bonding; and
iii. Under pump electrical and communication connections.
You agree that You do not rely on the skill or judgement of PSA in relation to the suitability of any of the goods provided in the course of carrying out the Works for a particular purpose unless You have indicated that purpose in writing the PSA and PSA has acknowledged in writing that that those goods will be fit for a particular purpose.
7. If, after Your acceptance of this Agreement, the cost of the Works are increased as a result of reasons which include, but are not limited to the following:
(a) Any variations to supplied information and documentation;
(b) Any unforeseen alterations and/or modifications not allowed for in scope of Works;
(c) Any unforeseen infrastructure issues that may impact the provision of Works;
(d) Any delays beyond the control of PSA which exceed the scheduled time on site;
(e) Any issues resulting from high water tables or ground contamination;
(f) Any issues resulting from incorrectly installed existing
fuel pipework or electrical conduits (e.g. shallow lines, electrical conduits buried in forecourt concrete);
(g) Whether de-watering, rock breaking, or spoil disposal if not clean fill is required
(h) The condition of the existing underground product piping and whether it is capable of connection to new UPP or NUPI pipe;
(i) The integrity of the existing tank and line (PSA accepts no responsibility for the contamination (if any) of fuel or
damage caused to the pumps due to debris in the tank and or line);
(j) Pump filter replacement;
(k)Whether repairs to existing concrete are required which may be affected by forecourt enhancement scope; and
(l) Whether spare ports available for extra product line on T2 DSL (the Fee quoted to You is quoted on the assumption that the spare ports are available).
The Fee shall be increased to reflect such changes and You must pay the increased Fee to PSA.
8. PSA will provide, at Your cost, the plant, vehicle(s) and equipment necessary to carry out the Works in a safe manner and in accordance with applicable legislation including, but not limited to Occupational Health and Safety legislation and regulations.
9. Risk & Title
(a) Title of goods, materials and Works shall be and remain PSA’s absolute property as legal and beneficial owner until such time as You have paid and PSA received payment of all amounts owing to PSA by You.
(b) Risk of loss, damage or destruction to the materials used in the Works shall pass to You immediately upon installation.
(c) You must indemnify PSA in full for any loss of or damage occasioned to the materials and Works between the time that risk in the materials passes to You and the t that the entirety of the Fee is received by PSA from you.
(d) Furthermore, if payment of the Fee is not received in accordance with clause 4, upon notice PSA shall also be entitled to immediately terminate Your right to possession of the materials and Works and without prejudice to any other rights it has under the Agreement enter, or instruct agents to enter on its behalf, on 5 days’ notice or such shorter period as may be reasonable in the circumstances, including for the purposes of Sections 130 and 135 of the Personal Property Securities Act 2009 (Cth) (PPSA), any premises where the goods may be, and to repossess and dispose of any or all goods, materials and Works owned by PSA.
(e) You shall promptly do all things requested by PSA, acting reasonably to:
i. Ensure PSA’s rights in relation to the goods are enforceable, perfected and effective; and
ii. Enable PSA to apply for any registration, or give any notification, in connection with the Agreement to preserve PSA’s rights in relation to the goods.
(f) You acknowledge that this Agreement constitutes a security agreement for the purposes of the PPSA and must whenever requested by PSA sign all documents and do all acts and things requested by PSA to register the interest of PSA on the Personal Property Securities Register and such other register as PSA requires under the PPSA and You shall not create or cause to be created a security interest over or in respect of its rights in the goods, materials and Works other than the security interest arising under this Agreement. You agree that You irrevocably waive any rights You may have to receive a verification statement as defined in the PPSA.
10. PSA warrants its workmanship and goods supplied to be free from defects for a period of twelve (12) months after the installation date or as per the manufacturer’s terms and conditions. The warranty is not extended beyond the initial twelve (12) month period in the event of component swap out within the warranty period. During the warranty period, PSA’s labour will be at no charge to You, however, travel and accommodation costs will be charged to You as per the attached Standard Out of Contract Rates.
The following items if supplied by PSA are covered under clause 14 for three (3) months only from the date of installation:
(d) Pump Lights;
(e) Batteries; and
The warranty under this clause 10 only extends to products commissioned by PSA.
11. You agree to indemnify and hold harmless PSA for all costs, losses, damage and Claims or other expenses and liabilities of any nature whatsoever (Loss) suffered or incurred by PSA in relation to or arising out of:
(a) fraud, misconduct, dishonesty or breach of law;
(b) wilful or negligent act or omission;
(c) act or omission by PSA in the provision of Works under this Agreement; or
(d) any breach by PSA of any provision of this Agreement, including a delay in complying with an obligation; and for the purpose of this Agreement, ‘Claims’ includes a claim, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute and whether involving a third party or a party to this Agreement.
This clause 11 may be relied upon by PSA as an absolute bar and defence to any Claim commenced by You against PSA to the extent that the Claim litigates or purports to plead or litigate any of the matters referred to in sub clauses (a) to (d) of tis clause.
12. Goods and Services Tax
(a) Unless stated otherwise and subject to this clause, any amount required to be paid or consideration required to be provided under any other provision of this Agreement, is calculated to be exclusive of GST.
(b) If GST is payable in relation to a supply made by You to PSA under this Agreement then subject to subclause (a) above You will pay to PSA, an additional amount equal to the GST payable on that supply.
(c) PSA may not recover the additional amount under sub clause (b) above unless and until a valid tax invoice for the supply to which that additional amount relates is issued and delivered to You.
(d) If any amount to be paid by You to PSA is calculated by reference to an amount, cost or expense incurred by PSA, the amount which You are required to pay PSA will be reduced by the amount of any input tax credit to which PSA is entitled in respect of that amount, cost or expense.
13. PSA will be engaged by You as an independent contractor and has no authority to incur, and will not incur, any obligation Your behalf except with Your prior written approval.
14. You acknowledge that PSA is not responsible for obtaining council, local government, state or other governing approval related to the scope of works being conducted on site. Any such requirement must be obtained by You or the land owner, whichever is applicable.
15. PSA will not subcontract the performance of its obligations, including, without limitation, the Works, without Your prior consent.
16. A notice, consent or other communication under this Agreement is only effective if it is in writing, signed by or on behalf of the party giving it and it is received in full and legible form at the addressee’s address or email address. It is regarded as received at the time and on the day it is actually received, but if it is received on a day that is not a business day or after 5.00 pm on a business day it is regarded as received at 9.00 am on the following business day.
17. If by reason directly or indirectly of industrial disturbances, strikes, labour disputes, shortage of suitable constituents material, labour, transportation, accidents, government restrictions, or any other cause of whatsoever nature beyond the control of PSA, it is unable to perform in whole or in part its obligations set forth herein, then PSA shall be relieved of these obligations, to the extent that it is unable to perform and such inability to perform so caused shall not make PSA liable to You or any other person in any way whatsoever.
18. Any dispute or difference whatsoever arising in connection with this Agreement shall be submitted to mediation. The parties must first refer the Dispute to mediation by a Law Society approved mediator agreed by You and PSA or failing agreement appointed by the President or equivalent officer of the Law Society on the terms of the standard mediation agreement approved by the Law Society.
19. All confidential information, materials and Intellectual Property Rights supplied by PSA belong to PSA. You shall not use or have any rights in them.
20. This Agreement may only be varied in writing, signed by each party to this Agreement.
21. This Agreement is governed by the law in force in the State of Victoria.
22. Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transactions contemplated by it.
23. Any of these terms and conditions in this Agreement which in any way contravene or infringe any law of the Commonwealth of Australia or the State of Victoria shall, to the extent of any such contravention or infringement and without affecting the remainder of these terms and conditions be severable and severed from the Agreement between PSA and You.