General Terms and Conditions of Trade

1. Definitions

1.1.1 “FGC” shall mean FGC Capital Projects Limited trading as FGC.

1.1.2 “Customer” shall mean the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing goods and services FGC Capital Projects Limited.

1.2 “Goods” shall mean:

1.2.1 all Goods supplied and/or installed by FGC into the Customers nominated premise; and

1.2.2 all Goods supplied by FGC to the Customer; and

1.2.3 all Goods supplied by FGC and further identified in any invoice issued by FGC to the Customer, which invoices are deemed to be incorporated into and form part of the works; and

1.2.5 all Goods that are marked as having been supplied by FGC or that are stored by the Customer in a manner that enables them to be identified as having been supplied by FGC; and

1.2.6 all of the Customer’s present and after-acquired Goods that FGC has performed work on or to or in which goods or materials supplied or financed by FGC have been attached or incorporated.

1.2.7 The above descriptions may overlap but each is independent of and does not limit the others.

1.3 “Goods” shall also mean all goods, goods, software, services and advice provided by FGC to the Customer and shall include without limitation the supply of security goods and all charges for labour, hire charges, insurance charges, or any fee or charge associated with the supply of Goods by FGC to the Customer.

1.4  “Price” shall mean the cost of the Goods as agreed between FGC and the Customer and includes all disbursements e.g. charges FGC pay to others on the Customer's, but shall exclude any applicable Goods & Services Tax which the Goods may be subject to and any freight charges that the Customer shall be liable for.

1.5  “Special-Order Goods” shall mean any Goods (i) that FGC procures for Customer (including goods that are custom made, modified, altered, or includes special features), (ii) not readily saleable by FGC to other customers, (iii) identified by FGC as non-cancellable or non-returnable, or (iv) that FGC specially stocks in its inventory as instructed by Customer or pursuant to a forecast provided by Customer.

1.6 “Charge Up” shall mean any costs incurred by FGC for goods supplied and services performed that do not form part of a written quotation.  Standard Charge Up rates for goods shall include the cost of the goods to FGC inclusive of the overhead/indirect costs incorporated in procuring, processing and supplying the goods.  Standard “Charge Up” rates for labour shall be derived from FGC’s standard rate card.

2.  Quotation & Pricing

2.1 Our quotations remain valid for one calendar month from the date on the quote.  Prices we quote exclusive of GST and are based on the cost of labour, materials, duties, sales taxes, transport charges, insurance rates, overhead/indirect costs and any other government charges we have to pay from time to time. 

2.2 If between the dates of quotation and completion of the work there are variations the quoted prices will be subject to amendment to provide for such variations. For labour escalations, base rates will be taken as our standard charge-out rates.

2.3 Subject always to clause 2.4, where no price is stated in writing or agreed to orally the Goods and Services supplied by FGC shall be at FGC’s charge-up rates.

2.4 The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods and Services that is beyond the control of FGC, e.g. materials cost increases, between the date of the commencement of works and delivery of the Goods and/or Services, including but not limited to, any increase in the cost of raw materials or labour, and any variation in exchange rates.

2.5. All charges, fees and costs payable by the Customer to FGC under this Agreement are based on FGC’s rates and/or margins as set out in the Quotation, Schedule of Rates, Service Order or Invoice.

2.6 Unless expressly agreed in writing in advance by FGC, the Customer acknowledges and agrees that FGC is under no obligation to provide, disclose or produce any supplier invoices, supplier quotations, supplier cost records, subcontractor invoices, or other third-party cost documentation in support of any amount charged.

2.7.1 For work performed on a Time and Materials or Charge-Up basis:  a. Labour is charged at FGC’s applicable labour rates; and b. materials, goods and equipment are charged at FGC’s material rates (which include overhead/indirect costs and margin). The Customer acknowledges that the rates and prices charged are the basis for payment and do not require disclosure of underlying labour orsupplier costs.

2.7.2 In the case of the supply of Goods and Services being on “Charge Up” FGC reserves the right to increase labour and material costs by the amount of any increase in the cost of supply of the Goods and Services that is beyond the control of FGC between the date of engagement and delivery of the Goods and/or Services, including but not limited to, any increase in the cost of raw materials, labour, insurances, any variation in exchange rates and overhead/indirect costs for the delivery of the Goods and/or Services.

2.8 The Customer has no right to audit FGC’s supplier invoices, cost records or profit margins unless an open-book audit regime is expressly included in a written Agreement signed by both parties.

2.9 FGC may withhold any supplier or subcontractor information to protect the confidentiality of commercially sensitive supplier information such as sensitive pricing, discounts, terms of supply or other confidential information, to the maximum extent permitted by law.

2.10 Nothing in this clause limits FGC’s obligations to provide cost evidence only to the extent required by applicable law where such evidence is expressly required.

 3. Estimates

Unless stated otherwise, any price we give you before providing a written quotation or commencing any Work is an estimate exclusive of GST of the anticipated cost for us to complete the Work and is not legally binding upon us.

5. Payment

5.1 The Customer shall pay in full and without deduction or setoff for the Goods or Services on the 20th of the month following the date of the invoice (“Invoice Date”) where the Customer acquires the Goods or Services for the purposes of business. The payment is made only when funds have fully cleared through the banking system into our bank account.

5.2 The Customer shall pay in full and without deduction or setoff for the Goods or Services on the date set out in the invoice (“Invoice Date”) where the Customer does not acquire the Goods or Services for the purposes of business, unless otherwise agreed in writing.  The payment is made only when funds have fully cleared through the banking system into our bank account.

5.3 Notwithstanding FGC may require full or partial payment in advance for materials or equipment. 

5.4 Any retentions are to be paid in accordance with the agreed contract. 

5.4 The Customer agrees to pay the undisputed amount in any invoice where the Customer has notified FGC that any charge is in dispute subject always to clause 6.1.

5.5 If payment is not received by the due date, you are in default and agree to pay default interest at the rate of 5.0% above our trading bank overdraft rate from the date payment was due until payment is received.  The right to charge interest is in addition and without prejudice to our other rights in respect of non or late payment.

5.6 If payment on any invoice is overdue by 7 days or more from the due date, we may suspend performing any Works until the amount overdue is paid in full.

5.7 If any Work is suspended all amounts owing including accrued interest up to the date of suspension must be paid in full before any further Works will be carried out.

5.8 We will notify you in writing within 5 working days of
suspending any Works.

5.9 We may refuse to continue any unfinished Works notwithstanding that all amounts owing up to the date of suspension has been paid.

5.10 Payments received shall first be applied in reduction of interest and costs and then in reduction of outstanding accounts as we determine (at our sole discretion) as specified to the customer.

5.11 Any amount that is paid which is less than the amount on any invoice issued is not accepted in full and final settlement but rather held on account in part payment only of the invoiced amount, unless we agree in writing to accept the amount in full and final settlement.

5.12 Any expenses, disbursements and legal costs incurred by FGC in the enforcement of any rights contained in this contract shall be paid by the Customer, including any reasonable solicitor’s fees or debt collection agency fees.

6. Disputes

6.1 Any disputes with the invoice in regard to the goods or services provided must be raised in writing within 5 business days of the invoice being issued.

6.2 Failure to make payments without any deductions whatsoever on the specified due dates shall attract interest at the rate of 5% above our trading bank overdraft rate.

7. Title and Ownership

7.1 You agree that the systems, works and all its component parts and including fitting, accessories and software installed or modified as part of the works shall remain our sole and absolute property of FGC until the contract price, together with all money and interest (if any) payable for extras, variations or other work done (if any) has been paid in full without any deductions when due.

7.2  If the Goods are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Goods shall remain with FGC until the Customer has made payment for all Goods and Services, and where those Goods are mixed with other property so as to be part of or a constituent of any new Goods, title to these new Goods shall deemed to be assigned to FGC as security for the full satisfaction by the Customer of the full amount owing between FGC and Customer.

7.3 The Customer gives irrevocable authority to FGC to enter any premises occupied by the Customer or on which Goods are situated at any reasonable time after default by the Customer or before default if FGC believes a default is likely and to remove and repossess any Goods and any other property to which Goods are attached or in which Goods are incorporated.  FGC shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded.  FGC may either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Goods and credit the Customer’s account with the invoice value thereof less such sum as FGC reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.

7.4 Where Goods are retained by FGC pursuant to clause 8.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.

7.5 The following shall constitute defaults by the Customer:

7.5.1 Non-payment of any sum by the due date.

7.5.2 The Customer does not acknowledge the overdue sum and enter discussion on an alternative due date or agree to a payment plan within 5 working days of the payment being due.

7.5.2 The Customer intimates that it will not pay any sum by the due date.

7.5.3 Any Goods are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize Goods.

7.5.4 Any Goods in the possession of the Customer are materially damaged while any sum due from the Customer to FGC remains unpaid.

7.5.5 The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.

7.5.6 A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.

7.5.7 Any material adverse change in the financial position of the Customer.

5. Facilities

You agree to provide at your cost sufficient safe storage for our materials and working space required for the performance of our work. You also agree to provide at your cost the uninterrupted use of light, electricity or other power and other facilities as we may reasonably need, including use of goods and passenger lifts, hoists and builders' scaffold, if such facilities exist.

6. Overtime

Unless specifically stated otherwise, our quote provides for work to be done on weekdays during normal working hours. Should it become necessary to work on other days or after and/or before such hours at your request owing to machinery in motion, public congestion or other circumstances rendering impracticable or hazardous the carrying out of this work during such
ordinary working hours, you agree to be liable and pay extra cost associated with overtime and out-of-hours work.

7. Extras & Variations

Whenever any alteration or addition to the building, equipment, appliances, fittings or fixtures after our survey or by any
alteration made to the plans the quote was based on, or by any delay in the continuity of the work caused by any act or default on your part, you agree to pay the additional costs incurred to the contract.

8. Damage to Property

Any damage that may happen to the/your property during the work of installation and directly caused by our negligence shall be made good only if reported to us in writing immediately after its occurrence. Any claim is limited to the maximum amount payable under our Public Liability Insurance.

3. Force Majeure

We cannot accept any responsibility or liability for the delay or damage caused directly or indirectly by weather conditions, labour disputes, strike, lockout, accident, fire, act of God, pandemic, blockade, embargo, inability to obtain fuel, power, raw materials, labour, transportation facilities, governmental laws or regulations, labour or civil commotion, riots, crime, or any event (whether of a similar or dissimilar nature) that are beyond our control.

9. Arbitration

If there should be any dispute that arises between us as during the course of the contract then the dispute shall be referred to arbitration in accordance with the provisions of the Arbitration Act 1908 and its amendments or any similar Act.

 10. All Goods and Services Acquired for Business Purposes

You warrant that in terms of Section 43 of the Consumer Guarantees Act 1993, you are acquiring our goods and services supplied under this Agreement for the purposes of a business and as a result of this warranty it is agreed that the provisions of the Consumer Guarantees Act 1993 shall not apply to this Agreement.

11. Information

You agree that we may obtain information about you or any other person (including any credit or debt collection agencies) in the course of our business, and you consent to any person providing us with such
information.  You agree that we may give any information we have about you relating to your credit worthiness to any
other person, including any credit or debt collection agency, for credit assessment and debt collection purposes. In addition, any other information collected by us about you is assessed or collected for use in the course of our business, including direct marketing activities and you authorize us to use this information for these purposes. You must notify us of any change in
circumstances that may affect the accuracy of the information provided by you to us.  If you are an individual, i.e. a natural person, you have rights under the Privacy Act 1993 to access and request correction of any personal information which we hold about you.

12. Variation

These terms shall not be varied unless agreed by both parties in writing.