Terms and Conditions
General Terms and Conditions
Definitions:
SKS means SKS Technologies Group Ltd and all of its subsidiaries, including SKS Technologies Pty Ltd and SKS Indigenous Technologies Pty Ltd, and means the person who has entered into a contract and sells or agrees to sell Goods and/or Services accordingly to these Terms of Sale.
Buyer means the person with whom SKS has entered into a contract for the supply of any Goods and/or Services pursuant to these;
Goods means Audio Visual, Electrical equipment, cable, containment, instrumentation, switchboards and the like and all other goods or other property which, in each case, are supplied by SKS to the Buyer;
PPSA means the Personal Property Securities Act 2009 (Cth).
Real or Personal Property means all real property interests held by the Buyer now or in the future.
Security Interest in the Secured Property have the same meaning as defined in the PPSA, whether read together or separately.
SKS Group of Companies means any of the following:
SKS Technologies Group Limited – ABN 24 004 554 929
SKS Group Pty Ltd –ABN 51 168 906 956
SKS Group Construction Pty Ltd – ABN 20 624 613 994
SKS Indigenous Technologies Pty Ltd – ABN 99 632 749 163
SKS iNet Pty Ltd – ABN 12 632 749 172
SLA Matrix means scope of work to be elected in relation to one of the packages listed below:
Electrical
Standard DLP - Bronze
Optional Level 1 - Silver
Optional Level 2 - Gold
Optional Level 3 - Platinum
Audio Visual
Standard DLP - Bronze
Optional Level 1 - Silver
Optional Level 2 - Gold
Optional Level 3 - Platinum
Scope of Works means the scope of works as set out in the any proposal containing a quotation or contained in a stand alone quotation provided by SKS to the Buyer and the SLA Matrix contained in that proposal.
Services means start-up, attendance on site, service, inspections, maintenance and/or repair works in respect of the Goods supplied by SKS to the Buyer;
Start-Up means the commissioning of the Goods pursuant to the contract;
Terms of Sale mean these General Terms and Conditions and any Technical Terms provided by SKS to the Buyer;
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
1. Quotations and Orders
1.1 No quotation given by SKS to the Buyer shall constitute an offer. Any order from the Buyer to SKS for the supply of Goods or Services shall not be binding upon SKS until accepted by SKS in writing.
1.2 Prices given in any quotation (whether contained in a proposal or a standalone quotation) by SKS are applicable to that quotation only and will not apply in any other instance and relate to the Scope of works set out therein.
1.3 Quotations are valid for a period of thirty (30) days from date of issue by SKS or otherwise specified in the quotation.
1.4 When ordering, a written order is to be submitted by the Buyer to SKS quoting an order number, full description of the Goods or Services to be purchased and the delivery time and address. Reference to SKS quotation number to the Buyer (where applicable).
1.5 These Terms of Sale apply to the Buyer and to SKS in respect of Goods and/or Services ordered by the Buyer and any terms and conditions set out in the Buyer’s order deviating from or inconsistent with these Terms of Sale will not bind SKS notwithstanding any statement by the Buyer in its order that its terms and conditions shall over these Terms of Sale. A contract shall only be or be deemed to have been entered into between SKS and the Buyer for the supply of the Goods when the Buyer’s order has been accepted by SKS in writing.
2. Modifications
If SKS is asked to carry out additions or modifications to the Goods and/or perform additional Services or more frequent Services than those set out in SKS’s quotation, these will be deemed a variation and the quotation will be adjusted accordingly. Any variation will take into consideration the nature and extent of such additions or modifications and the cost SKS incurs in performing these, but (subject to this) all other conditions of the quotation and these Terms of Sale will continue to apply.
3. Auxiliary Components
When auxiliary components are included in the quotation and not expressly named, SKS reserves the right to supply from the source considered most suitable. If, after quotation, components of a particular make are requested by the Buyer, the price will be adjusted by the difference between the cost to SKS of those components and that allowed by SKS in the quotation. The date of delivery will be adjusted by the period of delay, if any, in availability of such components.
4. Terms of Payment
4.1 Property and ownership in the Goods will not pass to the Buyer but will remain in SKS until payment in. full of the purchase price of the Goods and services and all other amounts owing to SKS by the Buyer. The Goods are to be clearly identified by the Buyer as remaining the property of SKS until they are paid for in full.
4.2 The Buyer may sell or deal in the ordinary course of business with the Goods and with the interest of SKS in the Goods and may for the purpose of such sale or dealing part with possession thereof but the proceeds of any sale or dealing will be held by the Buyer on trust for SKS Group. The Buyer hereby agrees to accept this appointment as bailee and fiduciary.
4.3 Notwithstanding the above, SKS reserves the following rights in relation to the Goods until all amounts owed by the Buyer to SKS are fully paid:
(a) legal and equitable ownership of the Goods;
(b) to enter the Buyer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
(c) to keep or resell any of the Goods repossessed pursuant to (b) above.
4.4 The Buyer must so long as SKS is entitled to the property in the Goods, store the Goods so that they are clearly identifiable as the property of SKS Group.
4.5 In the event that the Goods are resold, or goods manufactured using the Goods are sold, by the Buyer, the Buyer holds on trust such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of SKS and must pay such amount to SKS upon request. Notwithstanding the provisions above SKS is entitled to maintain an action against the Buyer for the purchase price of the Goods and/or Services.
4.6 Where the Buyer incorporates the Goods in or with any other product before property has passed to the Buyer, the new product shall be separately stored or marked in a manner which makes such new product readily identifiable as the Goods of the SKS Group.
4.7 If payment for the Goods is not made by the Buyer by the due date specified by SKS to the Buyer then the Buyer shall return the Goods to SKS upon demand. If the Buyer does not return the Goods to SKS within 48 hours of receipt of the demand, SKS shall be entitled to enter upon the Buyer’s premises at any time to do all things necessary to recover the Goods. The Buyer shall be liable for all costs associated with the exercise by SKS of its rights under this clause, which shall be repayable upon demand.
4.8 If payment is not received by the due date, interest may be charged at Westpac Banking Corporation’s Indicative Lending Rate plus four per cent on the sum outstanding for the period from the due date until the date payment is received. If at any time moneys are overdue and owing upon any invoice then outstanding the whole of the amount of all invoices then outstanding becomes immediately due and payable.
4.9 The Buyer shall be liable for all costs of whatsoever nature of and associated with the exercise of SKS’s rights under this clause, which costs shall be payable on demand.
4.10 Should the Buyer sell the Goods to any sub-purchaser, the Buyer must obtain a specific acknowledgement from the sub-purchaser that property and ownership in the Goods and Services will not pass to the subpurchaser but will remain with SKS until payment in full of the purchase price of the Goods and Services by the sub-purchaser to the Buyer.
4.11 Risk in the Goods passed to the Buyer at the time of delivery and the Buyer shall keep the Goods insured.
4.12 Terms of Payment are strictly 30 days from the date of SKS’s progress claim and/or final invoice and are not to be delayed because of delays of payment by your client. For avoidance of any doubt monthly progress claims may include claims relating to goods and services provided in prior months. Payments by Credit Cards will incur a surcharge of 4.2% for American Express and 2% for Visa and MasterCard.
5. Retention Monies
SKS does not in the normal course of business agree to retention of monies owing to SKS Group. However, if retentions are specified and agreed to by SKS in writing, such retentions shall be in the form of a bank guarantee or insurance bond. Such guarantee shall be held for a period not in any event to exceed a maximum of the period of warranty provided in respect of the Goods or Services.
6. Buyer Delayed Delivery
Should the Buyer delay delivery of the Goods, SKS reserves the right to store the Goods and to obtain payment as though the Goods had been delivered and to recover storage, insurance and handling costs incurred due to the delay. SKS shall be entitled to make progress claims when components and/or Services are required ahead of scheduled delivery dates or when payment in full for the Goods and/or Services will be delayed.
7. Default Of The Buyer
7.1 Should the Buyer fail to make due payment for any Goods and Services supplied by SKS or commit a breach of any term of the sale, or being a natural person commit an act of bankruptcy, or being a corporation by act or omission enables the appointment of an administrator, scheme manager, trustee, official manager, receiver, receiver and manager, liquidator or any other person authorised to enter into possession or assume control of any property of the Buyer pursuant to a mortgage or other security, SKS may, without prejudice to any other rights it may have, do any or all of the following -
(a) Withdraw any credit facilities which may have been extended to the Buyer and require immediate payment of all moneys owing or accrued;
(b) Withhold any further deliveries of Goods or performance of Services required under the accepted order;
(c) In respect of Goods already delivered, enter into the Buyer’s premises to recover and resell same for its own benefit;
(d) Suspend and/or terminate performance of any other contracts which SKS has with the Buyer.
(e) All bank Guaranties are to be immediately returned following a written request failing which, they will become null and void and SKS reserves the right to instruct the underwriter to cancel the Guarantee.
7.2 A certificate, signed by the Director, Accountant, Credit Controller or other authorised person of SKS Services, stating the sum due and payable by the Buyer under the contract at the date mentioned in that certificate, will be prima facie evidence that the sum so stated is the sum due and payable by the Buyer to SKS under the contract at the date. Without limiting clause 4.9, the cost of collection of any monies due and payable, including but not exclusively the fees of any mercantile agent or solicitor engaged by SKS will be recoverable on a full indemnity basis against the Buyer.
7.3 The Buyer acknowledges that SKS is a member of the SKS Group of Companies. The Buyer agrees that SKS is entitled to exercise a right of set off to the extent the Buyer is indebted to any member who is a member of the SKS Group of Companies against any monies due on this or any other account.
8. Cancellation Fees
Orders many not be altered or cancelled without the written consent of SKS Group. If SKS agrees to alter or cancel the order, the Buyer shall indemnify SKS against any loss, damage and expense incurred by SKS in relation to the cancellation or alteration of that order including the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in Goods and all labour and engineering costs incurred by SKS in the execution or part execution of the Goods and including compensation payable to any supplier of SKS and loss of profit.
9. Delivery
All quoted delivery or consignment dates are estimates only. SKS is not obliged to meet such dates and will not be liable to the Buyer by reason of delays caused by any reason whatsoever.
10. Inspection During Maintenance
If requested, the Buyer will be allowed access to SKS’s relevant facility for the purpose of inspecting the Goods and Services being carried out under the terms of the order. Such inspection must be by prior arrangement with SKS Group.
11. Product Change
SKS reserves the right to make reasonable modifications in Goods of any kind without notice and to deliver revised designs or models of Goods against any order, unless the right is specifically waived by SKS in writing. Prior to making modifications of a major nature which may affect the Buyer in its contractual responsibilities, such modifications will be referred to the Buyer for acceptance.
12. Noise and Vibration
Notwithstanding anything to the contrary contained within these Terms of Sale, SKS will not accept any responsibility for noise and/or vibration including without limitation any information given by SKS regarding noise and/or vibration unless such information is specifically requested by the Buyer and provided by SKS in writing as part of the contract.
13. Access for Services and Ownership of Goods
13.1 It is the Buyer's responsibility to provide adequate access for entry and installation of Goods and/or Services covered by the contract, together with adequate access and rigging facilities for future Services. The Buyer will maintain the area in which the Goods are (or are to be) located free of extraneous materials and move any contents, fixtures, fittings or moveable partitions as required to facilitate the performance of Services by SKS Group.
13.2 The Buyer will grant SKS entry to the premises and access to the Goods at any time when required for the performance of the Services and allow SKS to make use of all existing building services and maintenance facilities at the premises in the performance of the Services, and to remove any item of the Goods from the premises (if in SKSs opinion necessary) for the purpose of undertaking any repair or replacement thereof. The Buyer will only permit persons duly qualified to undertake service and repair work on the Goods other than in connection with its normal daily operation.
13.3 The Buyer warrants to SKS that the Buyer of the Services is the beneficial owner of the Goods or has obtained from the beneficial owner consent for SKS to carry out such Services and will indemnify and hold harmless SKS in respect of any claim made against SKS based on, or in any way arising from, a lack of such consent. Unless otherwise stated it is the Buyer's responsibility to obtain and provide access, services, facilities, permits, approvals or licences as may be required for the performance of the Services.
14. Assembly
When it is necessary to dispatch the Goods in other than fully assembled condition (which facts shall be stated in the quotation), assembly and erection will be the Buyer's responsibility and at the Buyer's cost except where nominated in writing in the quotation.
15. Start-Up
It is the Buyer's responsibility to have the Goods installed and all auxiliary services operative in accordance with the SKS check-list prior to requesting start-up (if included in the contract). If upon arrival on site the engineer finds that the Goods are not ready for start-up, any extra costs incurred, including costs of travelling and accommodation, will be payable by the Buyer. Quoted price for start-up and other site Services are based on normal working hours. Overtime, penalty rates and site allowances will be payable by the Buyer and added to the quoted price.
16. Progress Claims
SKS reserves the right to issue partial payment invoices as materials are supplied and certain Services are completed and will issue a final invoice on delivery of the Goods and/or completion of the Services under the contract (less progress claims). Such progress claims will show material made available and/or Services provided. Payment is to be made by the Buyer in accordance with the terms of these Terms of Sale. SKS shall be entitled to serve progress claims on the 14th and 28th of each month, unless the Quotation states otherwise.
17. Freight and Insurance
All Goods are on an ex-works basis. Delivery of the Goods will occur when the Goods are placed at the disposal of the Buyer (including its nominee or agent) at SKS’s premises or in the case of Services, are supplied to the Buyer. Where SKS agrees in writing to deliver the Goods to the site nominated by the Buyer, the Buyer agrees that all charges for freight and insurance arranged by SKS on behalf of the Buyer will be at SKS’s election, payable directly by the Buyer to the carrier and/or insurer or added to prices payable by the Buyer to SKS Group.
18. Price Variation (Site Services)
Service including installation, start-up and maintenance will be subject to cost adjustment based on the "percentage change" in hourly rate (including fringe benefits and allowances) based on the weekly Metal Industry Award Rate for a fitter in the State where the Services are performed for the balance of the Services to be performed under the contract.
19. Price Variation (Taxes, Freight and Insurance)
19.1 GST or Import Duty (if any) or any other taxes or duties included in the quotation are based on the rate applicable on all the items as at the date of the quotation. All variations, whether they be due to amendments of the relevant Acts or changes in interpretations of classifications, will be payable by the Buyer and will be added to the quoted price.
19.2 Variations to rates of exchange, freight, insurance, primage and cartage on imported equipment or components, affecting the amount paid by SKS for the actual Goods or components supplied will also be payable by the Buyer and will be added to the quoted price.
20. Goods and Service Tax
20.1 Any quotation issued by SKS does not include an amount on account of GST, unless otherwise specifically stated. If any supply made under or in connection with the Agreement is subject to GST, the Buyer must pay to SKS an additional amount equal to the GST payable.
20.2 The Buyer must pay the GST amount at the same time as the Buyer must pay the contract price, or if partial payment invoices are issued, at the same time as the Buyer must make the partial payment.
21. Limitation of Liability
21.1 The Buyer acknowledges and agrees that SKS has no liability in contract, tort (including negligence or breach of statutory duty), by statute or otherwise for loss or damage (whether direct or indirect) of profits, opportunity, revenue, goodwill, bargain, production, contracts, business or anticipated savings, corruption or destruction of data or for any indirect, special or consequential loss or damage whatsoever.
21.2 Notwithstanding any other provision to the contrary, SKS will not be responsible or liable for any breach of warranty or claim where such breach or claim arises as a result of:
a) damage after delivery, incorrect installation or incorrect operational procedures caused or contributed by the Buyer or a third party;
b) mechanical or electrical overload, abrasion, erosion, corrosion, chemicals, energy supply, foreign materials, deterioration due to extremes of environment, normal wear and tear or any other event or cause beyond the control of SKS Group.
21.3 This clause 23 does not exclude or modify any condition or warranty implied into the contract or these Terms of Sale by any law (including the Australian Consumer Law (ACL) as set out in Schedule 2 of the Competition and Consumer Act 2010 previously known as the Trade Practices Act, 1974) where to do so would contravene that law or cause any part of this clause to be void.
21.4 To the maximum extent permitted by law, SKS excludes all conditions and warranties implied into these Terms of Sale and limits its liability for breach of any non-excludable condition and warranty, at SKS’s option, to: (a) in respect of Goods: (i) repairing the relevant Goods; (ii) paying the cost of having the relevant Goods repaired; (iii) resupplying (excluding all labour costs) the relevant Goods or equivalent Goods; or (iv) paying the cost of having the relevant Goods or equivalent Goods resupplied (excluding all labour costs); (b) in respect of Services: (i) resupplying the relevant Services; or (ii) paying for the cost of having the relevant Services resupplied.
21.5 To the extent permitted by Law, SKS’s maximum aggregate liability under this Contract (whether by way of breach of contract, tort (including negligence), breach of statutory duty, restitution or otherwise) will be limited to 5% of the Price paid by the Buyer under these Terms of Sale.
21.6 The parties agree that if any limitation or exclusion of liability under these Terms of Sale is held to be invalid under any applicable statute or rule of law, it will to that extent be omitted.
21.7 Neither Party will be liable to the other to make any payment (whether by way of indemnity, damages or otherwise) in respect of any indirect loss arising under this Contract. The following losses constitute indirect loss for the purposes of this clause: loss of opportunity; loss of profit; loss of revenue; damage to goodwill or reputation; business interruption; and damage to credit rating.
21.8 Without limiting any other provision of these Terms of Sale, SKS does not accept any liability from any third party to these Terms of Sale, including the Buyer’s downstream customers, suppliers and Related Bodies Corporate. The Buyer indemnifies SKS in respect of any claims made against SKS by a third party in respect of the supply of goods and services under these Terms of Sale.
21.9 To the maximum extent permitted by law, SKS is relieved from any liability under this Contract arising as a consequence of the ongoing impact of the COVID19 pandemic, including the actions of government agencies and regulators in response to COVID19 (COVID19 Event). This includes, without limitation, where SKS is delayed or otherwise unable to perform its obligations under the Contract by reason of SKS’s personnel (including its subcontractors) being unavailable due to quarantine or self-isolation requirements or where goods and materials required for the performance of these Terms of Sale are unavailable due to disruptions in a manufacturing, supply or distribution chain.
21.10 SKS shall have the right to suspend its performance of the Terms of Sale without liability in order to ensure the health and safety of its personnel (including its subcontractors) for any reason whatsoever including as a consequence of a COVID19 Event.
22. Laws to Apply
The laws of the State or Territory of Australia where SKS written acceptance of the order is issued shall apply to the interpretation of these Terms of Sale and any matters arising therefrom.
23. Entire Agreement
23.1 The agreement between SKS and the Buyer shall be constituted in its entirety by these Terms of Sale together with the SKS’s quotation and any credit approval and/or guarantee required to be provided by the Buyer to SKS(“the contract”).
23.2 All previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of the contract are merged in and superseded by the contract and shall be of no force or effect whatever and neither party shall be liable to the other party in respect of those matters.
23.3 Where there is more than one Buyer then the liability of each shall be joint and several.
23.4 The contract shall be binding on the heirs, successors and assigns of the parties.
23.5 No variation, waiver or cancellation of the contract will be effective unless such variation, waiver or cancellation is expressly accepted and is in writing.
24. Form of Notice
Any notice, consent or other communication ("Notice") required or permitted by these Terms of Sale shall be in writing and shall be deemed sufficiently served if delivered by hand or sent by facsimile or certified mail, postage prepaid, addressed to the party who it is to be given at its then principal place of business or registered office.
25. Credit Policy SKS may at its discretion, as a condition of acceptance of such order for sale, service or repair works require the Buyer to:
a) Provide personal guarantees as to payment; and/or
b) Enter into an assignment of progress payments due to the Buyer.
26. Service
Unless later time is specified in it a Notice takes effect from the time it is actually received or taken to be received:
(a) In the case of a letter, on the third business day after posting;
(b) In the case of a facsimile;
(i) if transmitted before 5.00pm on a business day, on that business day;
(ii) if transmitted after 5.00pm on a business day, on the next following business day;
(iii) if transmitted on a day not being a business day, on the next day being a business day provided that, in any instance, the sender can produce a transmission report by the machine from which the facsimile was sent which indicated the time and date of transmission and that the facsimile was sent in its entirety to the facsimile of the recipient.
27. Validity
If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from these terms, but the rest of these Terms of Sale is not affected.
28. Force Majeure
28.1. “Force Majeure” is an event or circumstance, or combination of events or circumstances, which
(a) is beyond the reasonable control of SKS;
(b) causes or results in default or delay in the performance by SKS of any of its obligations under these Terms of Sale;
(c) is without the fault or negligence of SKS and could not reasonably have been prevented, avoided or overcome by SKS. SKS will not be liable for any delay or failure to perform its obligations under this offer caused by any Force Majeure event.
28.2.1 Force Majeure includes the following events (provided that the requirements of clause 31.1 are satisfied in each case):
(a) act of terrorism, riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not).
(b) ionising radiation or contamination, radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component.
(c) strikes or industrial disputes but excluding any industrial dispute which is specific to the performance of the Services of this Contract.
(d) catastrophic failure of, the breakdown of, or accident to plant, machinery, equipment, lines or pipes.
(e) an act of God, earthquake, lightning, cyclone, tsunami, fire, flood, landslide, drought or meteor.
(f) change in any Law or its interpretation; and
(g) embargo.
28.2.2 If an event of Force Majeure delays or prevents the performance of these Terms of Sale by SKS, SKS must notify the Buyer when it becomes aware of the event of Force Majeure and use reasonable endeavours to minimize the effects and duration of the event of Force Majeure.
28.2.3 If SKS’s performance under these Terms of Sale is prevented whether in whole or in part or delayed by any event of Force Majeure, SKS:
(a) is not considered to be in default of these Terms of Sale; and
(b) is entitled to suspend performance of its obligations under these Terms of Sale without liability.
28.2.4 The occurrence of Force Majeure does not excuse the Buyer from payment of any sum to SKS in accordance with these Terms of Sale.
29. Confidentiality
29.1. The Client/ Customer agrees to keep confidential and or not to use or disclose any of the information contained within this offer including SKS’s tender information and proposal, SKS’s pricing, SKS’s method of delivery and work methodology. 30. Precedence 30.1. Should there be inconsistency between any of the documents provided to the Buyer by SKS, then the order of precedence to the extent of the inconsistency will be as follows:
(a) these General Terms and Conditions,.
(b) any Technical Terms
(c) the quotation/proposal and scope of works set out therein.
(d) The SLA Matrix. 31. Title and Risk 31.1. Title in the Goods passes to the Buyer upon payment by the Buyer to SKS of all amounts owing in respect of the Goods or Services. Risk in the Goods will pass to the Buyer upon Delivery and the Buyer shall keep the Goods insured. 32. PPSA 32.1. The Buyer acknowledges the following:
(a) The Buyer acknowledges that pursuant to these Terms of Sale it grants to SKS a Security Interest in the Secured Property and, for avoidance of doubt, the proceeds of sale of the Secured Property for the purposes of the PPSA.
(b) The Buyer consents to SKS effecting a registration on the PPSR (in any manner SKS considers appropriate) in relation to the Security Interest arising out of or in connection with these Terms of Sale and the Buyer agrees to provide all assistance required by SKS to facilitate this.
(c) The Buyer acknowledges and agrees that in relation to the part of the Secured Property that is inventory, the Buyer will not allow any Security Interest to arise in respect of that Secured Property unless SKS has perfected its Security Interest in the Secured Property prior to the Buyer’s possession of the Secured Property.
(d) If Chapter 4 of the PPSA applies to the enforcement of the Security Interest arising under or in connection with these Conditions, the Buyer agrees:
(i) to the extent that section 115(1) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 95 to the extent that it requires SKS to give a notice to the Buyer, section 96, section 121(4), section 125 (obligation to dispose of or retain collateral), section 130 to the extent that it requires the Secured Party to give notice to the Buyer, paragraph 132(3)(d), subsection 132(4), section 142 and section 143 (reinstatement of security agreement; and
(ii) to the extent that section 115(7) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 127, section 129(2) and (3), section 132, section 134(2), section 135, section 136(3), (4) and (5) and section 137.
(e) If the Buyer makes payment to SKS at any time whether in connection with these Terms of Sale or otherwise, SKS may, at its absolute discretion, apply that payment in any manner it sees fit.
(f) The Buyer agrees to immediately notify SKS of any changes to its name or address as provided to SKS.
(g) The Buyer agrees to do anything SKS requests the Buyer to do (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed): to provide more effective security over the Secured Property; to register in respect of a Security Interest constituted by these Terms of Sale at any time; to enable SKS to exercise its rights in connection with the Secured Property; and to show SKS whether the Buyer has complied with these Terms of Sale.
(h) The Buyer shall pay on demand any losses arising from, and any costs and expenses incurred in connection with, any action taken by SKS under or in relation to the PPSA, including any registration, or any response to an amendment, demand or a request under section 275 of the PPSA.
(i) Any notices or documents which are required or permitted to be given to SKS for the purposes of the PPSA must be given in accordance with the PPSA.
(j) The Buyer waives the right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
33. Termination for Convenience
33.1. SKS, in good faith, may terminate, in its sole discretion and by notice in writing, these Terms of Sale or any Purchase Order issued.
33.2 If SKS terminates these Terms of Sale pursuant to clause 36.1 above, SKS or the other party will be entitled to be paid for the portion of the works completed up to the date of termination.
34. Below are the Technical Terms and Conditions which are to be read in conjunction with the General Terms and Conditions, both being read together are referred to as the Terms of Sale.
Technical Terms and Conditions
35. Definitions
The Definitions as set out in the General Terms and Conditions apply to these Technical terms and Conditions. Customer means Buyer as referred to in the Terms of Sale. 36. Hours of Work SKS’s offer is based on Normal Working Hours and a 5-day working week between Monday to Friday unless otherwise specified in the Proposal or Scope of Works. Outside these hours additional charges may apply. SKS will have continuous, uninterrupted, and unhindered access to the Site and the required people, equipment and facilities where the work is to be carried out.
37. Allowances
No allowance has been included for the payment of any SPECIAL ALLOWANCES to our employees engaged on this project unless specified in the Proposal. A requirement to pay such Allowances will therefore be treated as a variation.
38. Additional Works
Any additional works to that specified in the agreed Scope of Works or SKS Proposal will be carried out on an “hourly rate plus materials” basis or at an agreed price.
39. Warranty
SKS’s Standard Limited Warranty terms and conditions apply in relation to the Works, unless one of SKS’s Extended Warranty packages are purchased by the Buyer in which event the terms and conditions set out in any of SKS’s Extended Warranty packages will supersede the provisions as set out in this clause 40.
SKS hereby, as per the SKS Standard Limited Warranty terms and conditions, guarantees that the installation performed on that certain section of works located at the above address to be free from defects in material and workmanship for a period of one year from the date of commencement of use, substantial completion or date of notice of completion for each separable portion, whichever is the first to occur: This Standard Limited Warranty applies and is limited as follows:
a) To the property only as long as it remains in the possession of the original owner named above.
b) To the construction work that has not been subject to accident, misuse or abuse.
c) To the construction work that has not been modified, altered, defaced, or had repairs made or attempted by contractors other than SKS or SKS nominated Sub-Contractors.
d) SKS limited warranty does not include cover costs related to labour, plant and access equipment if required to repair and/or replace defective materials covered under a manufacturer warranty. Refer to SKS Standard Rates for breakdown of applicable costs.
e) That SKS be immediately notified in writing within ten (10) days of first knowledge of defect by owner or by the owners nominated representative.
f) That SKS shall be given first opportunity to make any repairs, replacements or corrections to the defective construction at no cost to owner within a reasonable period of time.
g) Under no circumstances shall SKS be liable by virtue of this warranty or otherwise for damage to any person or property whatsoever for any special, indirect, secondary or consequential damages of any nature however arising out of the use or inability to use because of the construction defect.
h) All warranty claims must be received by the SKS Service Manager and then approved by SKS;
i) Subject to the 'Warranty Exclusions” conditions as set out herein and written notification being given to SKS; and
j) Onsite service is within metropolitan boundaries as defined by in Appendix 1 to the SKS Standard Limited Warranty terms and conditions. Service outside these areas will be charged at the standard rates (which are subject to change without notice) as listed under Standard Rates as contained in the SKS Standard Limited Warranty terms and conditions from time to time. SKS warranty will not apply in the following circumstances:
k) Travel outside the metropolitan boundaries as defined by SKS in Appendix 1 to the SKS Standard Limited Warranty terms and conditions.
l) Damage or defects caused by the failure to maintain any item or keep it in good working order as described in the SKS Service & Maintenance Agreement.
m) As a result of unforeseen site conditions occurring beyond contractor’s control.
n) Damage resulting from fire, freezing, storms, electrical malfunction or surge, lightening, earthquake, pest damage, acts of God, or other unforeseen causes or accidents.
o) Damage from alterations, misuse, or abuse by any person; ordinary wear and tear; or problems caused by lack of maintenance.
p) Damage resulting from failure to observe any operation instructions furnished at the time of installation.
q) Any item furnished, installed, modified, altered, or repaired by any other person other than or an SKS approved contractor.
r) The warranty is not valid unless the contract is paid in full.
s) Conditions resulting from condensation on, expansion of, or contraction of materials.
t) Pre-existing conditions of the installation or its components.
u) Specifications or Drawings by design professionals or the owner, those persons impliedly warrant that the resulting installation and its component’s will be suitable for the particular purpose for which they were intended. The same applies to substitute material approved by the owner and/or their representatives.
v) The owner agrees to provide contractor, or it’s representative, access to the premises and the first opportunity of repairing or replacing any defective items. If contractor is not given that opportunity, any expenses incurred by another contractor will be at owner’s expense. The Warranty does not cover:
w) Travel outside the metropolitan boundaries as defined by SKS in Appendix 1 to the SKS Standard Limited Warranty terms and conditions.
x) Any consequential loss, economic loss or loss of profit howsoever arising including but not restricted to any print losses, loss of profit and cleaning costs.
y) Any loss, injury or damage attributable to any fault in workmanship or material in the product beyond making good by replacement of such product or making good any defects.
Subject to the to the SKS Standard Limited Warranty terms and conditions as set out above, we warrant SKS work for 365 days from date of practical completion. Such warranty is considered to be Null and Void should a second or third party tamper with or alter SKS works. Unless otherwise stated in the SKS proposal, third party Vendor warranties will not apply to this Proposal.
Any General Deeds of Warranty terms, Warranty and/or Defects Liability Period are limited to 12 months only, commencing from Practical Completion of SKS works. A separate DLP period and commencement date will be applicable to each stage of completed works.
SKS specifically excludes liability for any labour costs for the removal of faulty Goods or parts and/or for the labour required to install and commission any replacement Goods or faulty parts, unless such costs are included in any Service Level Agreement (SLA Matrix package) purchased by the Buyer. The provision of labour by SKS to the Buyer will be on the terms and conditions as set out in the Service Level Agreement (SLA Matrix package) purchased by the Buyer.
40. Unit Rates
The Unit Rates quoted are for additional work only and have been assessed on work being carried out during the normal sequence of the building construction. Any unit rates specified for deletions would be subject to negotiation.
41. Hoisting/ Lifting
All hoisting and lifting required for the installation would be made available free of hire charges to SKS, unless otherwise agreed.
42. Design
Where specified or requested within the tender enquiry documents, we have provided for the design of the services to be supplied or installed by us. The design of equipment to be supplied and or installed by others, would be the responsibility of the client or suppliers.
43. Tender Schedule
We may enclose a priced tender schedule based on our interpretation of the requested price breakdown for your information. Please be aware this tender schedule is indicative only and not to be used for additions, deletions and progress claim valuations. Progress payment schedules and a detailed price break up will be submitted on favourable consideration of our proposal following on from agreement with your construction and procurement program.
44. Return of Goods
Special conditions may apply to the return of active equipment including a restocking fee. Any special conditions can be provided by us at the time of order acceptance. In all cases, goods returned will only be credited to the Customer’s account if returned in the same condition as delivered to the Customer initially and if returned and received by us within 21 days from the initial delivery. Freight costs will apply in all instances.
45. Project Lead Time
Due to current industry and supply-chain inconsistency equipment lead-times cannot be guaranteed. Where the supplied quotation is designed or specified by a consultant and/or the client, costs will be applied to propose alternate equipment/designs to meet program if the specified equipment lead times are not suitable.
46. Down Time
This project has been tendered on the basis of a smooth, uninterrupted flow of works. No allowance has been included for lost time due to down time caused by others. Costs incurred by SKS for lost time will be charged to the customer’s account if the down time cannot be mitigated by scheduling alternative work.
47. Escorts/ Security
If a customer requires that SKS staff are to be escorted or accompanied by security personnel while on the customer’s premises, the customer is responsible for providing the escort/ security and payment for all costs associated with the provision of the escort and any delays while waiting for an escort will be treated as a variation.
48. Equipment Supplied by Others
If equipment and devices are supplied by others, SKS’s Proposal is based upon them being suitable for the required purpose. Such items are to be delivered to us prior to the required installation time.
49. Proprietary Items and Documentation
All documents and items provided to the customer by SKS are proprietary items and documents and as such will remain the property of SKS until ownership is transferred by agreement. All documents and items are to be treated as commercial in confidence and trade secret and are not to be disclosed, discussed or shown to any party without our consent.
50. Work to be carried out by Builder
We would require the following work to be carried out by the Builder at no cost to SKS, unless otherwise noted in our offer.
a) All penetrations through floors, walls and ceiling, if required, and sealing after installation of cables, etc.
b) All chasing of floors, walls and ceilings if required and making good including painting.
c) The setting out and provision of openings in suspended and plaster type ceilings for all recessed light fittings, speakers etc. and also provision of adequate supports to allow the installation of light fittings etc., recessed or surface.
d) Provision for wiring access to face brick work and block work.
e) Painting of all conduits, cable trays, cable ladders etc. if specified.
f) Removal and replacing of ceiling tiles.
g) Temporary electrical services.
h) Site facilities i.e., change rooms, mess sheds, toilets etc…
i) Supply authority costs.
j) Service Provider costs.
k) Scanning for existing / live services
51. Conduits/ Ducting
Where conduits and ducting are existing or provided by others, such conduits/ ducting should be:
a) Ready to accept cabling
b) Adequate and useable
c) Of dimensions stated
d) Fixed in location
e) Contain useable draw-wires for the purpose of installing cables
f) Designed and sizes to suit the intended cable installation in accordance with applicable standards.
52. Joinery
No allowance has been included for the alteration of Joinery or the provision of any additional Joinery resultant from the installation works.
53. Painting
No allowance has been included for the painting of our installed items/ equipment to match the existing facilities.
54. Site Hutment
No allowance has been included for the supply of site hutment, messing facilities or lay-down areas.
55. Work Environment
All SKS staff are required to work in accordance with SKS’s HSEQ policy. We reserve the right to inspect a designated place of work and withdraw SKS staff if we judge that the working environment to be unsafe.
56. Trenching
(a) Unless otherwise stated in the SKS Proposal, all trenching will be affected by standard excavation means, standard excavation will include but not be limited to chain diggers, backhoes and excavators. Vacuum diggers, NDD and similar machinery are not included nor deemed to be standard excavation machinery.
(b) Unless otherwise stated in the SKS Proposal the following items are deemed to be excluded from this offer; Restoration to existing conditions, Spoil removal, Compacting, Saw cutting, Unknown Underground or Surface Services encountered whilst trenching, Removal or Treatment of Contaminated Soil and Make good of any finished surfaces
57. Rock Excavation
The excavation and removal of rock or rocklike substances is not included within our offer. If encountered, the additional cost incurred on the actual quantity of excavation material would be TBA. Rock shall be defined as reef-shale, rock, concrete, masonry, or cemented conglomerate having the appearance or consistency of rock, and which would normally be loosened by blasting, or by pneumatic tools, or excavated by hand with sledgehammers, or requiring removal by mechanical means.
58. Existing underground Services
All care would be taken during excavation works; however, no responsibility or associated costs would be accepted for any damage that may occur to existing underground services unless identified prior to excavation.
59. Asbestos/ PCB’s/ Hazardous Substances
The tender price is based on the assumption that the work for which this tender is provided (The Works) will be executed in an asbestos/ PCB/ hazardous free environment. The builder/ client shall accept full responsibility for the resolution of any problems and for delays and additional costs which may result from the presence of asbestos/ PCB’s/ hazardous substances or asbestos/ PCB/ hazardous contaminated materials in or about the site on which The Works or any part thereof are to be performed. Where circumstances require, we would expect the builder/ client to provide the relevant clearance certification prior to the works being undertaken.
60. Scaffolding
Suitable scaffolding is to be provided by others at all work faces that cannot be accessed via scissor lifts, ladders and mobile platforms. The scaffold is to be complete without the need for education of assembly by our personnel and in sufficient time to enable the installation to be carried out without any delays or interruptions.
61. Exchange Rate
Unless otherwise stated any specific items which have been imported, the costs of which make up the price in relation to Terms of Sale, are subject to exchange rate fluctuations from the time the Terms of Sale were agreed to and the time the specific item is paid for by more than 5% with a cost of more than $15,000 (AUD), SKS may at its sole discretion issue a variation or negative variation for such price increase as a result of the exchange rate fluctuations. Such variation is to be fully detailed and must contain all relevant information.
62. Licensing
Unless otherwise stated in the SKS proposal, licensing for software, hardware or any other product dependant on a license or requiring licencing is not included in the SKS proposal.
63. Confidentiality
The Client/ Customer agrees to keep confidential and or not to use or disclose any of the information contained within this offer.
64. Program Delay
SKS shall order all equipment in line with the works construction program issued by the client and as agreed by SKS and all relevant parties and/or the procurement schedule. In the event the construction works program is delayed, SKS shall receive the equipment into our stock location and invoice the customer for the goods as though the Goods are delivered and reserves the right to recover storage, insurance and handling costs incurred due to the delay.
65. Equipment Delay
SKS shall order all equipment in line with the works construction program issued by the client and as agreed by SKS and all relevant parties and/or the procurement schedule. In the event of an equipment delivery delay, given SKS have ordered in line with the procurement schedule, SKS shall work with the client to source alternative equipment in lieu of the specified equipment, however we reserve the right to charge the customer for any costs incurred for the temporary and/or specified equipment replacement.
66. Completion Criteria
The installation will be deemed to be complete when the Scope of Works has been performed and the relevant testing criteria met, or when the customer starts to utilise the installation for business.
67. Customer Responsibility
Where applicable, it will be the responsibility of the Purchaser to perform the following:
Provide free and clear access.
Provide a single point of contact for total project co-ordination.
Provide a single point of contact for resolution of any on-site requirements.
Agree to the project schedule prior to the commencement of the works.
Provide a minimum of 5 days’ notice for the re-scheduling of any works.
Ensure the system is operating to their satisfaction once the installation has been tested and verified by the Company.
Additional Terms and Conditions - Audio Visual
68. Defects Liability Period (DLP) and Service Level Agreement (SLA)
(a) Technical helpdesk support may be chargeable under DLP
(b) Onsite attendance for system faults and rectification excludes labour costs as per warranty and manufacturers terms and conditions
(c) Remote troubleshooting calls for fault resolution is excluded under DLP, as per warranty terms and conditions
(d) No allowance has been made for Software and Firmware upgrades or integration between differing technologies
(e) Loan stock and or spare(s) does not guarantee like for like or equivalent replacement and is dependent on availability and will incur labour charges for installation and removal
69. Audio visual
Unless stated otherwise within this Proposal the following works, services or supply of equipment is not included;
(a) any additional structural support required to walls or ceilings for equipment mounting
(b) supply, installation and commissioning of all network cabling, infrastructure, active switching hardware, PoE and Wi-Fi required for the proposed AV system
(c) configuration of data networks to support the AV systems, including any VLANS for audio, video and communications equipment
(d) all software licensing including Microsoft
(e) all bridging/interoperability infrastructure
(f) all PCs, laptops, servers and operating systems
(g) any modification or provision of joinery to house AV equipment
(h) floor boxes, table boxes and umbilicals for AV services
(i) provision of GPOs and data outlets for AV equipment
(j) provision of uninterruptible power supply for AV equipment
Note: SKS Group will only provide services to software and systems that SKS Group has provided and installed. Any additions or amendments to the original installation, will void any service level agreement unless agreed by both parties in writing as it may require additional fees.
Additional Terms and Conditions - Electrical and Communications
70. Electrical Works
In compliance with the State Electrical Safety legislation and the SKS Group “Working on Live or Energised Equipment” policy, live electrical work will not be performed. It may be necessary to disconnect power to part or all of customer’s premises to successfully and safely complete the works covered in our quotation.
71. Supply Authority Charges
Our tender makes no allowances for any Supply Authority Charges associated with:
High voltage supply
Sub-station establishment
Equipment
HV metering
LV metering, and
Shutdowns
If any such costs are applicable they would be additional to our price unless otherwise stated.
72. Earth Electrodes
No allowance has been made in this tender for special compounds, grouting and drilling through rock or rocklike substances for placing of electrodes. If encountered, then the additional cost incurred would be a variation.
73. Demolition
In our quotation we have included to isolate all the main electrical power to the floor area to be demolished. Actual demolition of the existing lights, power points and other electrical equipment is to be carried out by the builder on site, unless otherwise stated.
74. Sub-Mains
We have allowed to supply and install sub mains, as type and size shown on the drawings.
75. Cable Clause
a) SKS has allowed to supply and install all cable types and sizes as shown in schedule
b) Due to the extremely volatile price of copper, cables will be priced at the date of tender. All copper cable in this project has been based on the prevailing per tonnage rate at the time of tender. If for the duration of this project the pricing of all copper cable is subject to a rise of the published tonnage rate from the tender date of more than 3%, this will be subject to a variation.
76. Fly/Patch Leads
No allowance has been made for the supply and or installation of fly and patch leads unless otherwise stated within our proposal
77. Active Equipment
No allowance has been made for the supply and or installation of active equipment within our proposal including the patching of services
78. Accessories
No allowance has been made for the supply and or installation of service poles, soft wiring and accessories unless otherwise stated within our proposal
79. Carrier Services
No allowance has been made for lead in and carrier services, including pathways, such as NBN, Telstra or Optus
80. WAPs
No allowance has been made for the supply and or installation of WAPs unless stated within our proposal
81. Cable Access
Where access to each designated outlet location is unattainable via wall/partition voids, surface mounted PVC duct will be installed between the ceiling void and the outlet to provide mechanical protection and neat containment of cables.
82. Cable Terminations
All UTP cables will be terminated to 568A pin specifications as nominated in AS/NZS 11801:2019.
83. Identification
Upon completion of the project, labels will be affixed to each UTP outlet. Where applicable, each label will correspond to a similar label affixed to the respective distribution panel port in the equipment cabinet. All installed fibre cores and fibre cables will be identified by the installation of labels, which will be affixed at each location.
84. Testing
All installed UTP cabling, and terminations will be tested according to Australian Standard AS/NZS 11801: 2019.All installed terminated fibre cores will be tested utilising Optical Time Domain Reflectometer (OTDR) and/or Optical Loss Test Set (OLTS), where applicable. All electrical terminations will be tested according to Australian Standard AS/NZS 3000:2018 – ‘Wiring Rules.’
85. Standards
The UTP and Fibre cabling shall be installed in accordance with AS/NZS 11801:2019- ‘Telecommunications installations – Integrated telecommunications cabling systems for commercial premises’ and AS/NZS 3000:2018 – ‘Wiring Rules’.
Additional Terms and Conditions – Smart Buildings
86. Defects Liability Period (DLP) and Service Level Agreement (SLA)
(a) Technical helpdesk support may be chargeable under DLP
(b) Onsite attendance for system faults and rectification excludes labour costs as per warranty and manufacturers terms and conditions
(c) Remote troubleshooting calls for fault resolution is excluded under DLP, as per warranty terms and conditions, unless the fault is found to be directly the result of a fault in the Works completed by SKS Group.
(d) No allowance has been made for Software and Firmware upgrades during the Defects Liability Period.
(e) No allowance has been made to adjust software or firmware of systems provided by SKS Group as part of the works to accommodate changes in subsystem configurations completed by other parties during the DLP.
(f) Modification of hardware or software provided by SKS Group by parties other than SKS Group during the Defects Liability Period may result in the nullification of the warranty.
(g) Loan stock and or spare(s) does not guarantee like for like or equivalent replacement and is dependent on availability and will incur labour charges for installation and removal
87. Integrated Communications Networks
Unless stated otherwise within this proposal the following works, services or supply of equipment is not included;
(a) any additional structural support required to walls or ceilings for equipment mounting
(b) Modification or configuration of subsystem technologies to enable communication on the Integrated Communications Network hardware
(c) Provision of Internet Services (including WAN Routers)
(d) Software licences for hardware or software after the completion of the DLP (e) Reconfiguration or expansion of network hardware or software after practical completion
(f) Server Hardware and Software for systems connected to the ICN
(g) Head-End Hardware and Software for subsystems connected to the ICN
(h) The provision of cybersecurity software for servers and endpoints
(i) The cybersecurity design and configuration of devices provided by others that are connected to the ICN
(j) The physical security design for ICN infrastructure (k) Patch leads/fly leads
(l) Uptime of network equipment greater than 99% of business hours (unless explicitly stated in the proposal)
(m) 240V Power to Network Racks
(n) Air Conditioning and Ventilation as required for network equipment.
(o) Spare stock
Note: SKS Group will only provide services to software and systems that SKS Group has provided and installed. Any additions or amendments to the original installation will void any service level agreement unless agreed by both parties in writing as it may require additional fees.