1. Definitions
1.1. O’Neill & Brown Fire Services Pty Ltd (“ONBFS”) shall mean the holder of an appropriate Licence with the authorised governing and licencing bodies and its successors and assigns.
1.2. “Client” refers to the individual or entity receiving services from ONBFS, or anyone acting on their behalf with proper authority.
1.3. “Guarantor” refers to the individual or entity receiving services from ONBFS, or anyone acting on their behalf with proper authority.
1.4. “Goods” refers to all items supplied by ONB to the Client, including any services provided as part of the agreement.
1.5. “Services” encompasses all services provided by ONBFS to the Client, including advice or recommendations, and may include the provision of goods where applicable.
1.6. “Price” is the agreed cost of the Goods or Services between ONB and the Client, as specified in Clause 5 of this contract.
1.7. “ONBFS” refers to O’Neill & Brown Fire Service, as mentioned in all ONB documents, including but not limited to quotations, reports, invoices, receipts, and these Terms and Conditions.
1.8. “Site” means the location where the Client’s work will be conducted.
1.9. A party’s failure to enforce any obligation under these Terms at any time does not constitute a waiver of the right to enforce that obligation or claim damages unless acknowledged in writing.
1.10. “Preventative Maintenance” refers to scheduled maintenance or servicing of common area assets.
2. Offer and Acceptance
2.1. Any instructions from the Client to ONBFS for the supply of Goods and/or acceptance of Goods from ONBFS constitutes acceptance of these terms and conditions.
2.2. Once accepted by the Client, these terms are irrevocable unless rescinded in accordance with these terms or by ONBFS’s written consent.
2.3. ONBFS’s agents or representatives are not authorized to make representations or agreements not explicitly expressed in writing by ONBFS, and ONBFS is not bound by any unauthorized statements.
2.4. The Client must provide ONBFS with at least fourteen (14) days’ written notice of any changes to the Client’s name, address, or business details.
3. Goods
3.1. Goods are as described in ONBFS’s invoices, quotations, work authorizations, or any other work commencement forms provided to the Client.
4. Preventative Maintenance Services
4.1. Monthly invoices will be issued in arrears for the agreed amount.
4.2. Additional charges may apply if re-inspection is required due to limited access or tenant interference.
4.3. Additional charges will apply for any assets identified after agreement acceptance that were not marked on works plans or identified during the site inspection.
4.4. Materials required as part of maintenance will be charged at additional cost.
4.5. No call-out fees will apply for defect rectification works identified in line with the Preventative Maintenance Agreement.
4.6. An inventory of all assets requiring maintenance will be conducted within three months from the commencement of the Services Agreement, resulting in a comprehensive electronic Asset Register.
4.7. The Asset Register will be updated with any changes, and reports will be provided to the Facility Manager on the condition of the assets and the need for major repairs.
4.8. Asset Condition Reports will be included with each service performed.
4.9. The frequency or duration of services will not be reduced without prior written approval from the Facility Manager.
4.10. All inspections, testing, and logging of maintenance activities must comply with the latest edition of relevant Australian Standards.
5. Price and Payment
5.1. The Price, at ONBFS’s discretion, shall be:
(a) As indicated on ONBFS invoices to the Client for supplied Goods; or
(b) As per any written quotation, valid for thirty (30) days unless otherwise agreed.
5.2. Variations from the scheduled works will be charged based on ONBFS’s quotation and noted as variations on the invoice, with payment due upon completion.
5.3. Work is quoted based on business hours (Monday to Friday, 7:00 AM to 3:30 PM). Work outside these hours may increase the quoted price.
5.4. A minimum of two hours is applicable to unscheduled attendance outside normal business hours.
5.5. At ONBFS’s sole discretion, payment for approved Clients shall be made by instalments in accordance with ONBFS’s delivery/payment schedule.
5.6. At ONBFS’s sole discretion, for certain approved Clients, payment will be due on completion of works unless agreed and documented by both the customer and O’Neill & Brown Fire Service. This will be stated on the invoice, quotation, or any other order forms. If no time is stated, then payment shall be on delivery of the Goods.
5.7. The sole responsibility of payment will fall onto whomever requested the works, whether that’s requested via WO, phone call, email etc. The requester may not:
(a) pass on the responsibility of payment to any third parties,
(b) ask ONBFS to chase third parties for payment in the event that the invoice becomes overdue,
(c) withhold payment to ONBFS while waiting for third parties such as insurance, builders, owners, tenants etc. If payment responsibility should fall to a third party, the client will pay ONBFS within the agreed payment terms and chase reimbursement externally.
5.8. Payments should be made via EFT or by Visa/Mastercard with no surcharge (excluding American Express).
5.9. Credit card fees will apply in line with relevant bank charges.
5.10. In the event of a dispute, the undisputed portion of the Services must be paid in accordance with the payment terms.
5.11. In the event that the Customer fails to make any payment by the due date, all monies owing to ONBFS will become immediately due and payable, and ONBFS may in its discretion:
(a) Cease Services or withhold delivery until payment is made in full,
(b) Engage debt collection services or initiate legal proceedings,
(c) Charge interest on overdue amounts at a rate of 2.5% per month.
5.12. All prices are presented excluding GST and other applicable taxes and duties.
6. Variations
6.1. Any variations, alterations, or modifications requested by the Client must be submitted in writing to ONBFS.
6.2. ONBFS, at its discretion, may accept or reject the requested changes and will notify the Client accordingly.
6.3. If ONBFS rejects the variation, the Client must accept and pay for the Goods as per the original quotation.
6.4. Accepted variations will result in adjustments to the original quoted price.
7. Delivery of Goods / Services
7.1. Goods will be delivered to the Client’s address, and the Client must make necessary arrangements to receive the Goods.
7.2. ONBFS may deliver the Goods in separate instalments, each of which will be invoiced and paid for in accordance with this contract.
7.3. Delivery to a third party nominated by the Client is considered delivery to the Client.
7.4. The Client must accept delivery of Goods even if the quantity varies by up to 5%, with the Price adjusted accordingly.
7.5. ONBFS’s failure to deliver does not entitle either party to treat the contract as repudiated.
7.6. ONBFS is not liable for any loss or damage resulting from delayed or failed delivery.
7.7. The Client must ensure ONBFS has clear and free access to the work site, and ONBFS is not liable for any damage to the site unless due to ONBFS’s negligence.
8. Delay in Services
8.1. If Services are delayed due to reasons beyond ONBFS’s control, such as encountering unfavourable soil, ONBFS may:
(a) Recover the costs of such delay from the Customer.
(b) Be indemnified by the Client for any increased costs or losses due to the delay. ONBFS will not be liable for any resulting loss or damage.
9. Risk
9.1. Risk in the Goods passes to the Client upon delivery, even if ONBFS retains ownership.
9.2. If Goods are damaged or destroyed before property passes to the Client, ONBFS is entitled to insurance proceeds without prejudice to its other rights under this contract.
10. Client’s Disclaimer
10.1. The Client disclaims any right to rescind or cancel the contract, sue for damages, or claim restitution based on any misrepresentation made by ONBFS’s employees or agents. The Client acknowledges reliance on their own judgment in purchasing the Goods, and ONBFS is not responsible for any terms, conditions, or warranties other than those expressly provided.
11. Defects / Returns
11.1. The Client must inspect the Goods upon delivery and notify ONBFS within one (1) week of any defects or discrepancies. If the Client fails to do so, the Goods are presumed to be in accordance with the contract and free from defects.
11.2. For defective Goods, ONBFS’s liability is limited to replacement or repair, provided:
(a) The Client has complied with Clause 11.1.
(b) The Goods have been stored and used properly.
(c) The Goods are returned in their original condition with all packaging and materials.
11.3. ONBFS will be responsible for all defects and deficiencies, except usual wear and tear, until the expiry of the Defect Liability Period (“DLP”) of 12 months, unless otherwise specified.
(a) The DLP will commence from the time that the Goods have been delivered and/or the services have been completed, unless otherwise agreed in writing.
(b) The client may provide ONBFS a notice in writing that identifies a defect in the works.
12. Warranty
12.1. ONBFS’s warranty on Goods is limited to the manufacturer’s warranty. ONBFS is not liable beyond these express conditions.
12.2. Any warranty on Goods installed by ONBFS is limited to the written warranty provided by the manufacturer at the time of installation.
12.3. ONBFS reserves the right to make null and void the warranty should the Goods or any part of the works be modified, altered, damaged or put to any undue stress other than in the way the Goods or works were designed to perform.
12.4. ONBFS warrants that Goods supplied will be of merchantable quality if used for their intended purpose. Warranty is excluded if the Goods are used contrary to instructions provided by ONBFS.
12.5. ONBFS will repair any damage to the Site caused by its actions, provided it is within the scope of the warranty.
13. The Commonwealth Trade Practices ACT and Fair-Trading ACTS
13.1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act, including the Federal Competition and consumer Act 2010 amendments, or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
14. Intellectual Property
14.1. All intellectual property created by ONBFS remains the sole property of ONBFS. The Client only acquires the right to use such intellectual property within their business and agrees not to exploit or reverse-engineer it.
14.2. The Client warrants that ONBFS’s provision of Services will not infringe on any third-party intellectual property rights. The Client indemnifies ONBFS against any claims arising from such infringement.
14.3. The Client acknowledges that all technical information and materials provided by ONBFS are confidential and agrees not to disclose them without ONBFS’s express written consent.
15. Marketing Materials
15.1. The Customer grants ONBFS the right to:
(a) Take and use images of completed works for promotional purposes. (b) Reproduce and publish the Client’s name and trademarks to disclose the relationship with ONBFS.
16. Default & Consequences of Default
16.1. Interest on overdue invoices will accrue at a rate of 2.5% per month, compounded daily until payment is made.
16.2. If the Client defaults on payment, they will indemnify ONBFS for all costs incurred in collection, including legal fees.
16.3. ONBFS may suspend or terminate the supply of Goods if the Client breaches any obligations, without liability for any loss or damage suffered by the Client.
16.4. An administration fee of the greater of $20.00 or 10.00% of the overdue amount will be levied if payment is not made within two months.
16.5. If the Client becomes insolvent or a receiver is appointed, ONBFS may cancel any unperformed orders, and all amounts owing will become immediately payable.
17. Title
17.1. Ownership of Goods does not pass to the Client until:
(a) The Client has paid for the Goods in full, and
(b) The Client has met all other obligations under this contract.
17.2. Receipt of non-cash payments does not constitute payment until cleared.
17.3. Until ownership passes, ONBFS retains the right to demand the return of Goods, stop Goods in transit, and enter the Client’s premises to repossess Goods.
18. Security and Charge
18.1. The Client and Guarantor agree to mortgage or charge their interest in land or assets to secure all amounts payable under this contract. ONBFS may lodge a caveat until payment is made.
18.2. The Client and Guarantor indemnify ONBFS for all costs incurred in securing payment, including legal fees.
18.3. The Client and Guarantor appoint ONBFS as their attorney to execute documents necessary to secure ONBFS’s rights under this contract.
19. Cancellation
19.1. ONBFS may cancel this contract or delivery of Goods at any time before delivery, without liability for loss or damage. The Client may cancel delivery but will be liable for costs incurred by ONBFS up to the time of cancellation.
20. Privacy ACT 1988
20.1. The Client and/or the Guarantor/s agree for ONBFS to obtain from a credit-reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by ONBFS
20.2. The Client and/or the Guarantor/s agree that ONBFS may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
(a) To assess an application by Client.
(b) To notify other credit providers of a default by the Client.
(c) To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and
(d) To assess the credit worthiness of Client and/or Guarantor/s.
20.3. The Client consents to ONBFS being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
20.4. The Client agrees that Personal Data provided may be used and retained by ONBFS for the following purposes and for other purposes as shall be agreed between the Client and ONBFS or required by law from time to time:
(a) Provision of Services & Goods.
(b) Marketing of Services and/or Goods by ONBFS, its agents or distributors in relation to the Services and Goods.
(c) Analysing, verifying, and/or checking the Client’s credit, payment and/or status in relation to provision of Services/Goods.
(d) Processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and
(e) Enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services and Goods.
(f) ONBFS may give, information about the Client to a credit reporting agency for the following purposes:
(g) to obtain a consumer credit report about the Client; and/or
(h) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
21. Unpaid ONBFS’s Rights to Dispose of Goods
21.1. In the event that:
(a) ONBFS retains or regains possession or control of the Goods; and
(b) Payment of the Price is due to ONBFS; and
(c) ONBFS has made demand in writing of the Client for payment of the Price in terms of this contract; and
(d) ONBFS has not received the Price of the Goods, then, whether the property in the Goods has passed to the Client or has remained with ONBFS, ONBFS may dispose of the Goods and may claim from the Client the loss to ONBFS on such disposal.
22. Building and Construction Industry Security of Payments ACT (state specific)
22.1. If there are disputes or unpaid claims, the provisions of the Building and Construction Industry Security of Payments Act (state specific) may apply.
22.2. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act (state specific), except to the extent permitted by the Act where applicable.
23. Lien & Stoppage in Transit
23.1. Where ONBFS has not received or been tendered the whole of the Price, or the payment has been dishonoured, the ONBFS shall have:
(a) a lien on the goods.
(b) the right to retain them for the Price while ONBFS is in possession of them:
(c) a right of stopping the goods in transit whether delivery has been made or ownership has passed, and
(d) a right of resale,
(e) the foregoing right of disposal, provided that the lien of ONBFS shall continue despite the commencement of proceedings or judgement for the Price having been obtained.
24. Excavation
24.1. Unless otherwise stated in writing by ONBFS the cost or quoted price in respect of all digging, excavation, dewatering and similar works (Excavation Works) is based on the soil or ground being clean and not dense (e.g. clay soil) or rocky (Unfavourable Soil).
24.2. If ONBFS encounters Unfavourable Soil whilst undertaking the Services, then ONBFS may:
(a) delay or extend the date that Services are due to be completed.
(b) charge an additional fee or cost to cover the cost in respect of the additional work and time required to undertake the Services (including the Excavation Works).
25. Excavation and Concrete Works
25.1. Unless otherwise stated in writing by ONBFS, the cost to undertake:
(a) Excavation Works.
(b) Concrete cutting or drilling or similar works (Concrete Works); or
(c) The reinstatement of driveway, footpath, court paving, gardens, lawn, and similar areas will be in addition to the price quoted in any Job Order.
25.2. Any quoted price in respect of Concrete Works is based on a concrete thickness of 150mm. If ONBFS encounters a concrete thickness of greater than 150mm whilst undertaking Concrete Works then ONBFS may (in its sole discretion) charge an additional fee or cost to cover the cost in respect of the additional work, equipment or time required to undertake such Concrete Works.
26. Buried or Unseen Services
26.1. The Client will indemnify ONBFS and keep ONBFS indemnified against any liability, loss, claim or proceedings of any kind (whether arising under statute or common law) arising from services which are buried, or unseen being disturbed or damaged. ONBFS will not be liable for any repair work and any repair work required will be paid at the Clients expense. Such liability, loss, claims, or proceedings includes but is not limited to:
26.2. Damage to the property, real or personal.
26.3. Death or personal injury; and
26.4. Consequential or economic loss of any kind.