1.1 “Procloud Group” means Procloud Group of Procloud Group ABN # 69 165 422 757
1.2 “Procloud Group Head Office” – 10 / 193 South Pine Road, Brendale, Qld. 4500 Telephone: 1300 722 659 Mb: 0403 475 099
1.3 “Procloud Group Cancellation Costs” means any cost for labour, materials, tooling, drafting and transport, manufacturing work in progress, and any Government fees or taxes including GST and without limiting the generality of the foregoing any other loss and damage arising because of cancellation of this Quotation of other approval.
1.4 “Procloud Group Costs” means
- Its materials, labour and transportation costs; and
- Without limiting the generality of (a), any costs of Procloud Group performing the Work.
1.5 “Event” – means:
- Any industrial dispute;
- Any inclement weather;
- The failure of any person or entity to supply any materials of Procloud Group;
- Any law, riot, government restriction, civil commotion, Act of God; or
- Any other cause beyond Procloud Group’s control, which directly or indirectly affects Procloud Group’s ability to promptly perform its obligations to do the Work.
1.6 “Further product” means any goods made, created, manufactured or processed by You using in any way the Goods or the Product.
1.7 “Goods” means any component or materials which Procloud Group uses to manufacture the Product.
1.8 “Price” includes the sum of:
- The Quoted Amount;
- Any scaffold costs and plant hire;
- Any goods and services tax, sales tax and/or any other Government tax, duty or levy (other than income tax) payable on the goods and services which Procloud Group supplies to you under this Quotation or on the supply of those goods and services.
- Any local government, council or other statutory fees in respect of the Work and/or Product.
1.9 “Product” means anything which Procloud Group manufactures for You in performing the Work and includes all discrete Goods making up the Product.
1.10 “Progress Claim” means part of or all of the Quoted Amount which Procloud Group may require:
- Upon receipt of order;
- At any time up to completion of the work;
- Upon delivery of the product; or
- At any time or times during the performance of the Work
1.11 “Quotation” means the Quotation that You have requested from Procloud Group, and includes these terms and conditions and any subsequent contract formed. If you accept this Quotation, you accept these terms and conditions as part of any subsequent contract.
1.12 “Quotation Expiry Date” means 30 days from the date Procloud Group issues this quotation to you.
1.13 “Quoted amount” means the amount specified in this Quotation that Procloud Group will charge for performing the Work and is based on Procloud Group’s costs as at the date of the Quotation.
1.14 “Services” means any design, manufacture and/or installation service which You require Procloud Group to provide to perform the Work.
1.15 “Site” means any place the Product is installed or is to be installed and includes and means to access to that place.
1.16 “Work” means the provision by Procloud Group of Services using particular Goods to produce and/or install the Product at Your request.
1.17 “You” and “Your” means the person or company or entity who has requested this Quotation. Where that person is comprised or more than one person or company or entity then where ‘You” is used in this Quotation. All parties comprising “You” will be bound jointly and severally by these terms and conditions and each party warrants that it has the authority to bind all of the other parties.
1.18 The headings do not form part of this Quotation but are for aid and assistance in interpretation only.
1.19 Where the context permits or requires, words importing the singular number shall include the plural number and those importing a gender shall include the other genders and words importing natural persons shall include corporations.
2.1 Subject to clause 2.2, this Quotation remains valid and open for acceptance by You up to and including the Quotation Expiry Date.
2.2 Procloud Group may:
Vary or withdraw the Quotation at any time before You accept it;
- After the date of the Quotation but before the Work is completed, adjust the Quotation for any variation in Procloud Group’s Costs which occur after the date of this Quotation.
2.3 Unless otherwise specified in writing, this Quotation does not include the cost of:
- Providing any power supply or other energy source to operate an electric sign;
- Fees, charges, taxes or any other costs or disbursements associated with connecting the sign to a power supply that is not within one metre of the Site;
- Fees, charges, taxes or any other costs or disbursements associated with traffic control necessary for the installation of any signs;
- Fees, charges, taxes or any other costs associated with accessing a third party’s property for access or entry to any place required for the installation of any sign; or
- Fees, charges and taxes of and incidental to obtaining or providing access to the site; or
- Any other fees, charges, taxes, labour, materials or any cost or disbursement associated with the connection, provision or installation of a power supply that is not written in the Quotation.
2.4 You acknowledge that Procloud Group has made this Quotation on the basis that it will do the Work during normal working hours. If You request in writing and agree to pay any extra costs, Procloud Group will perform the Work outside normal working hours. Procloud Group will add the extra costs to the Quoted Amount.
2.5 Unless otherwise agreed to in writing by Procloud Group, this Quotation can only be accepted by You in writing and without any alteration or addition to the terms and conditions.
2.6 Your written acceptance is not affective until received by Procloud Group.
- Cancellation of Contract/Quotation
3.1 Once You have accepted this Quotation, you may only cancel the subsequent Approval by written notice given to and received by Procloud Group.
3.2 Upon cancellation, ‘You’ are immediately liable to pay Procloud Group’s Cancellation Costs.
- Terms of Payment
4.1 You must pay to Procloud Group:
- A 50% Deposit upon commencement of the job.
- The amount specified in any Progress Claim submitted to You or final 50% payment upon hanging or pick-up of signage.
- Interest at the rate of 20% per annum on any outstanding amount owed to Procloud Group from the date due until paid.
- All financial institution fees, any legal costs and/or debt collection costs (the latter two on an indemnity basis), stamp duty and other government charges relating in any way to the establishment of operation of the contract or any security or any legal proceedings.
4.2 You must pay all money to Procloud Group at Procloud Group’s head office, or as directed by Procloud Group;
4.3 All payments required to be made by You to Procloud Group shall be made in full without any deductions or reductions for any set offs or counter claims by You.
4.4 Before the commencement of Work, you must complete and return Procloud Group’s application for Credit Account unless
- You have made full payment of the Quoted Amount to Procloud Group; or
- You have provided security for the Price which is satisfactory to Procloud Group.
4.5 Nothing in clause 4.4 limits Your liability to pay the Price.
4.6 No Work will be performed until You have complied with Clause 4.4, and Procloud Group will not be liable to You for any loss or damage resulting from delay caused by Your failure to comply with that clause.
4.7 Payment of progress claims, Price or the Quoted Amount is not subject to the Work or any part of the Work being certified or accepted by: (a) You; or (b) Any other person whether for You or for a person to whom You have contractual obligation in relation to the work.
- Certificate and Charge
5.1 A statement in writing signed by Procloud Group’s director, manager, financial controller, credit manager or other authorized officer stating the amount of money which You owe to Procloud Group is prima facie evidence of the amount payable by You to Procloud Group as at the date of the statement.
5.2 By accepting this quotation you charge all Your interest in any real property you own now or in the future secure payment of any monies you owe to or any debt you have to Procloud Group.
- Dimension and Design of Work
6.1 Unless otherwise agreed in writing, You:
- Must supply Procloud Group with details of the dimensions which Procloud Group will need to perform the Work;
- Must supply Procloud Group with design and specifications for the Product, including but not limited to colour, surface and type face;
- Are solely responsible for the correctness of any information You provide to Procloud Group.
6.2 Where you or Your agent have supplied Procloud Group with the design plans and specification for the Work, Procloud Group:
- Will not be liable for any loss or damage resulting from any defects or deficiencies in the design plans and specifications or any failure to meet any applicable Australian Standards;
- Shall be indemnified by You for any such loss and damage of the type to in 6.2(a).
7.1 You may by written notice to Procloud Group request variations to the Work;
7.2 Where You request additional Work You must:
- Pay all costs incurred by Procloud Group in performing the additional Work; and
- Grant any extension of time reasonable necessary to enable Procloud Group to perform the addition Work.
- Commencement and Completion
8.1 On or before the commencement of the Work, ‘You’ must provide Procloud Group free and unrestricted access to the Site to enable Procloud Group to commence and proceed with the Work.
8.2 If this Quotation specifies estimated commencement and completion dates You acknowledge that:
- Commencement of the Work will be subject to the provision of:
- Full information, documentation and co-operation from You;
- Goods from other suppliers;
- Access to any Site for the purpose of manufacture or installation of the product which shall be Your sole responsibility;
- Any necessary council or government permits or approvals which is your sole responsibility.
8.3 Procloud Group has given estimated dates in good faith taking into account present conditions and circumstances in Procloud Group’s control and the best information available to Procloud Group at the date of this quotation.
8.4 Unless this Quotation states otherwise, Procloud Group will not be liable for any penalties or damage either direct or indirect for any failure to commence or complete the Work on the estimated dates.
8.5 You agree to grant Procloud Group any reasonable extension of time to complete the Work if there is a delay which is not caused by or attributable to any act or default on the part of Procloud Group.
8.6 If Procloud Group commences the Work but is delayed for any reason by You or by any other party of Event, You agree to indemnify Procloud Group against any loss or damage including but not limited to any addition handing charges for storage, insurance or any other expenditure loss or damage which Procloud Group suffers or insures whether directly or indirectly as a result of the delay.
8.7 The Work is deemed completed on the earliest of either the issuing of the final invoice by Procloud Group to You or as otherwise notified in writing by Procloud Group to You.
- Ability to Supply
9.1 Procloud Group will make every effort to carry out the Contract. If because of an Event, Procloud Group is unable to fulfil any Contract, Procloud Group:
- Will not be liable for any loss or damage which You may suffer (including consequential loss or damage);
- May at its option, give written notice to You either to: i. Terminate the Contract; or ii. Extent the time for performance of the Contract;
- Will be entitled to be paid by You for any part for the Work done or any Product delivered. That payment will be calculated using price rate set out in this Quotation. 9.2 You acknowledge that Procloud Group’s failure to perform the Contract because of anything set out in this clause will not entitle You to treat the Contract as repudiated.
10.1 Procloud Group will not be liable for any loss or damage if it or its sub-contractor strikes rock, pipes or wires or other obstructions when excavating any Site to install a foundation for the Work. You indemnify Procloud Group for any additional costs, loss or damage arising for any such occurrence during the excavations which will be payable at actual cost plus 15% plus any applicable GST.
- Protection of Work
11.1 All unfixed Goods or any Product on the Site will be at Your risk.
11.2 Procloud Group will not be liable for any damage caused by any person or suffered by any person, because of or in respect of any unfixed Goods or Product on the Site.
- Guarantees and warranty
12.1 Procloud Group guarantees:
- Neon and fluorescent electrical components for three months from the date of completion of the Work;
- Other Goods listed in this Quotation for 12 months from the date of completion of the Work when manufactured to Procloud Groups recommendation.
12.2 Procloud Group may guarantee certain Goods for a longer period than that set out in clause 12.1 above. You must obtain written confirmation from Procloud Group for any such extended guarantees.
12.3 Procloud Group will not be liable for any damage to the Product caused by vandalism, civil commotion, storm and tempest, Acts of God or accidental damage by a party other than Procloud Group.
12.4 To the extent permitted by the laws or Australia, Procloud Group excludes any expressed or implied conditions or warranties, by statute or common law or otherwise, which are not stated in this Quotation.
- Rights in relation to the Product
13.1 In connection with the Product while it remains the property of Procloud Group, You agree that:
- You have no right or claim to any interest in the Product to secure any liquidated or unliquidated debt or obligation Procloud Group owes to You;
- You are not entitled to claim any lien over the Product
- You will not create any absolute or defeasible interest in the Product in relation to any third party except as may be authorized by Procloud Group.
- Where You are in actual or constructive possession of the Product: i. You will not deliver the Product or any document of title to the Product to any person except as authorized in writing by Procloud Group.
13.2 In association with the Product, Procloud Group states to You that:
- Procloud Group has the right to supply the Product to You;
- The activities of Procloud Group in supplying the Product do not infringe the rights of the owner of the Product (where Procloud Group is not the owner of the Product);
- If the Product is not owned by Procloud Group, that Procloud Group is authorized to supply the Product to You.
13.3 Procloud Group and You agree that;
- Procloud Group retains property in the Product until Procloud Group has been paid in full for the Product under all individual agreements between Procloud Group and You;
- Procloud Group retains property in any Further Product until Procloud Group has been paid in full for the Product under all individual agreements for the supply of the Product between Procloud Group and You;
- You are a bailee of the Product and any Further Product until such time that property in it passes to You. This bailment continues in relation to each Product or Further Product until the Price has been paid in full, and you owe Procloud Group the duties and liabilities of a bailee;
- Pending payment in full for the Product, You:
- Must not supply any of the Product or Further Product to any person outside Your ordinary or usual course or business;
- Must not allow any person to have or acquire any security interest in the Product or Further Product;
- Must insure the Product and Further Product for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where You carry on business;
- Must not remove, deface or obliterate any identifying plate, mark or number on any of the Product; v. Must not deliver, move, or otherwise relocate the Product to any property or place not directly owned, leased or controlled by You, or permit any of these things to be done.
13.4 Despite clause 13.3, if You supply any of the Product or Further Product to any person before all moneys payable by You have been paid to Procloud Group, ‘You’ agree that:
- You hold the proceeds of re-supply of the Product or Further Product on trust for and as agent for Procloud Group immediately when they are receivable or are received;
- You must either pay the amount of the proceeds of re-supply to Procloud Group immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for Procloud Group;
- Any accessory or item which is incorporated into or with any Product by You or any person at Your direction or request becomes and remains the property of Procloud Group until Procloud Group is paid in accordance with clauses 13.3 (a) and 13.3 (b) when the property in the Product (including the accessory) passes to You;
13.5 Procloud Group is entitled to recover possession of the Product from any place owned, possessed or controlled by You and You agree that Procloud Group has an irrevocable licence to enter that place or the Site and recover possession of the Product if You:
- Fail to pay all or any part of any Progress Claim or the Price on or before the date or dates that payment falls due;
- Commit an act of bankruptcy or make or attempt to make any arrangement with Your creditors;
- Become an externally administered body or are wound up voluntarily or have a Receiver appointed;
- Cease or threaten to cease carrying on business;
- A judgement is made against You which is not set aside or satisfied within 7 days;
- In the case that You are a sole director company, the director dies, is hospitalised or is otherwise unable for any reason to act as a director for a period of more than 2 weeks consecutively;
- In the case that You are a business, if Your owner or manager dies, is hospitalised or is otherwise for any reason unable to act as owner or manager for a period of more than 2 weeks consecutively;
13.6 You agree that Procloud Group has the right to bring an action against You if Your fail to pay the Price, notwithstanding that ownership of the Product has not passed to You.
- Your obligations and liabilities in this Quotation do not merge and will not be deemed to have merged or will not be prejudicially affected by any judgement or order obtained by Procloud Group against You.
- No waiver by Procloud Group of any breach by You shall be deemed to be a waiver of any continuing or recurring breach and the rights and remedies expressed or implied in this quotation shall not be prejudiced or affected by any time other indulgence given or granted by Procloud Group to You.
- Unless otherwise agreed by the parties in writing, the terms of this Quotation represent the entire agreement between the parties in respect of the Contract.
- Governing Law
17.1 The Quotation and subsequent Contract will be governed by the laws of Queensland.
17.2 Any dispute arising in conjunction with this Quotation shall be heard in Queensland courts and you irrevocably submits to the jurisdiction of these courts.
17.3 You and Procloud Group agree that proceedings may be commenced in any court in Queensland having jurisdiction and consent to that court having locality jurisdiction notwithstanding that the court would not have jurisdiction without this consent.
- If a clause or clauses in this Quotation are void, illegal or unenforceable, they may be severed without affecting the enforceability of the other provisions in this Quotation.
- Change of conditions
19.1 Procloud Group may vary the terms and conditions of this Quotation by notice in writing to You.
19.2 You agree that the ordering of any further Work after the notice of varied terms and conditions from Procloud Group will be acceptance of the varied terms and conditions.
20.1 All notices must be in writing and in the English language.
20.2 Any notice may be given to You by Procloud Group by:
- Personal delivery;
- Or delivery to the Your last known address;
- By facsimile;
- By certified mail;
- By ordinary mail, in which case unless the contrary is proven it will be deemed to have been delivered on the second business day following the date of posting; or
- By email, in which case unless the contrary is proven it will only be deemed to have been delivered upon acknowledgement of the email being sent by the receiver to the sender.
20.3 All notice that is given by You to Procloud Group is only deemed to be given on the date of receipt by Procloud Group.
- Read and Understood Terms
21.1 You acknowledge that you have read, and understood and accepted the terms of this quotation prior to accepting it.
- Your Authority
22.1 You authorise Procloud Group to make such enquires and receive such information from any of your bankers and business referees provided by You and otherwise from anyone as Procloud Group may reasonably consider necessary;
22.2 Certify that any information provided to Procloud Group is true and correct;
22.3 You acknowledge that Procloud Group has informed You in accordance with Section 18E(8)9c) of the Privacy Act 1988 as amended, that certain terms of personal information about You is permitted to be kept on a credit information file and might be disclosed to credit reporting agencies; 22.4 In accordance with Sections 18H and/or 18K and/or Section 18L(4) of the Privacy Act 1988 as amended, You:
- Agree to report being given to Procloud Group, for the purpose, of assessing the application for credit or commercial credit or assessing whether to accept You as guarantor as the case may be;
- Agree that Procloud Group may use, for the purpose off, assessing an application for credit or assessing whether to accept You as guarantor, information concerning Your commercial activities or commercial credit worthiness obtaining from a person or body carrying on business or undertaking involving the provision of information about the commercial credit worthiness of persons;
- Authorise Procloud Group to exercise Your rights of access to Your credit information files and credit reports.
22.5 You agree that Procloud Group may give to and seek from any credit provider reports and information that have any bearing on Your credit worthiness, credit standing, credit history or credit capacity for any of the following purposes:
- To assess an application by You for credit or commercial credit;
- To notify other credit providers of a default by You;
- To exchange information with other credit providers as to the status of your account where You are in default with Procloud Group or with any other credit provider;
- To assess Your credit worthiness or commercial credit worthiness at any time;
- To assess whether to accept You as guarantor or to continue supplying credit to You
22.6 You agree that Procloud Group may seek from a credit reporting agency, a credit report containing personal information about You to assess whether to accept You as a guarantor for credit applied for, or provided to a party where You are named as guarantor;
22.7 You agree that these authorisations shall continue to have effect for the duration of the person during which the credit or commercial credit is provided or sought by You from Procloud Group.
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