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1. INTRODUCTION
1.1 Application of these Terms and Conditions
The Customer agrees that prior to placing an order with the
Contractor, the Customer has read and agreed to the terms and
conditions as set out hereunder. For the purposes of this
agreement, “Contractor” is CONTRACT FLOOR COVERINGS
PTY LTD A.B.N. 23 419 491 412 and the “Customer” is the
applicant named on the account with the Contractor or where no
account exists then on the Work Authorisation provided by the
Contractor to the Customer. In this Agreement “Goods” means
goods and services (on site assembly).
2. QUOTES
2.1 Contractor Supply Quote
The Contractor shall give the Customer a Quote specifying:
(a) the work required to be done in order to fulfill the
Customer’s instructions; and
(b) an estimate of the Contractor’s charge for the performance of
such work.
2.2 Acceptance by the Customer
Where the Contractor has given the Customer a Quote:
(a) The Contractor need not commence work until the Quote has
been accepted by the Customer;
(b) The Customer shall accept the Quote by instructing (in
writing) the Contractor to commence the works by signing and
returning a true copy of the Quote accompanied by a purchase
order number if applicable.
(c) Acceptance by the Customer of the Quote will constitute
acceptance by the Customer of these Terms and conditions.
(d) Quotes are valid for thirty (30) days only, unless an extension
has been authorised by the Contractor.
In acceptance of the Quote, the Customer warrants that it has not
relied on any representation by the Contractor and its
employees and agents other than as supplied in writing in the
Quote.
2.3 Contractor may Revise Quote
The Contractor may amend the Quote after a period of three (3)
months from the date of the signed acceptance of the
Quote/Work Authorisation to take into account any rise or fall in
the cost of performing the Order and the Contractor shall notify
the Customer of such amendment as soon as practicable
thereafter. Upon the Contractor giving the Customer notification
of such amendment the amended quote shall be deemed to be
the Quote for the purposes of the Terms and Conditions.
2.4 Variations to Initial Quote
The Customer shall indemnify the Contractor from any
additional cost incurred by the Contractor, should the Customer
increase the scope of the goods and/or services to be provided
by the Contractor.
2.5 Copyright
The copyright in all plans, sketches, design ideas and custom
made solutions which appear in the Contractor’s Quote shall be
the property of the Contractor.
2.6 Ideas
The Customer must keep confidential and not use any ideas
communicated by the Contractor to the Customer without the
Contractor’s prior consent.
3. SUBFLOORS PREPARATION
Prior to the start of the Work, the Customer shall ensure that the
subfloor is dry, hard, rigid, smooth, level, clean and free of dust
and grease to comply with Australian Standards AS 1884-1985.
Should the subfloor fail to comply with Australian Standards AS
1884-1985, necessitating additional work by the Contractor to
rectify the problem, this shall be deemed to be a variation as
specified in clause 2.4.
4. SITE ACCESS
The Customer shall provide exclusive site access for the
Contractor and/or nominated contractor to complete the
necessary Work.
5. PAYMENT
5.1 Time for Payment
With the exception of any deposit required to be paid prior to
commencement of work, the Customer must, within the time
specified in the Quote, upon the Customer receiving the
Contractor’s invoice, pay the Contractor the total amount set out
in the invoice.
5.2 Interest
The Contractor may charge interest at 1.5% per calendar month
on amounts not paid within the time specified in clause 5.1 and
5.4.
5.3 Deposit
The Contractor may require a deposit from the Customer, and if
a deposit is so requested by the Contractor the Customer
acknowledges the Contractor is under no obligation to start the
contract period or undertake any works as requested by the
Customer, until the deposit is received by the Contractor in full
and when all details pertaining to contract are finalised. In the
event of default as to payment owing to the Contractor on the
part of the Customer, the Contractor shall be entitled to forfeit
the deposit and claim for the balance owing on the Order and for
any other loss suffered by the Contractor by way of any remedy
available to it as provided in these Terms and Conditions or at
law or in equity generally.
5.4 Progress Payments
Where the work is to be carried out in stages or is to be
performed over an extended period of time, the Contractor shall
be entitled to payment for invoices submitted on a monthly basis
for work performed during that month.
When agreed progress payments are not honoured by the
Customer, the Contractor reserves the right to halt any further
work until such time as the outstanding payment is forthcoming.
In addition penalty interest (as specified in 5.2) may be charged.
5.5 Damages
The Customer must pay to the Contractor any costs, expenses or
losses incurred by the Contractor as a result of the Customer’s
failure to pay to the Contractor all sums outstanding as owed by
the Customer to the Contractor including without limiting the
generality of the forgoing any debt collection and legal costs
incurred in enforcing payment on a Solicitor and own client
basis.
5.6 Cancellation
The Customer shall reimburse the Contractor for any costs,
expenses or losses incurred by the Contractor should the
Customer cancel the accepted Quote/Work Authorisation. The
time for payment for such cancellation shall be seven (7) days
from the Contractor’s invoice.
6. RISK
The risk in the Goods shall pass to the Customer upon
delivery/installation of the Goods to the Customer or its agent or
to a third party nominated by the Customer.
7. RETENTION OF TITLE
7.1 Title
Notwithstanding the delivery of the Goods or their installation,
title in any particular Goods shall remain with the Contractor
regardless of whether the Goods are on-sold by the Customer
until the Customer has paid and discharged any and all monies
owing pursuant to any invoice issued by the Contractor for the
Goods, including all applicable GST and other taxes, levies and
duties.
Any payment made by or on behalf of the Customer which is
later avoided by the application of any Statutory Provisions shall
be deemed not to discharge the Contractor’s title in the Goods
nor the Customer’s indebtedness to the Contractor and, in such
an event, the parties are to be restored to the rights which each
respectively would have had if the payment had not been made.
7.2 Bailment
The Customer acknowledges that it is in possession of the Goods
solely as Bailee until payment of all invoices for the Goods is
made pursuant to clause 7.1 and until that time:
(a) The Customer is not entitled to sell the Goods but only in the
ordinary course of business;
(b) The Customer must not encumber or otherwise charge the
Goods;
(c) The Customer shall be fully responsible for any loss or
damage to the Goods whatsoever and howsoever caused
following delivery or installation of the Goods to the Customer.
7.3 Repossession
The Customer hereby irrevocably grants to the Contractor the
right, at its sole discretion, to remove or repossess any Goods
from the Customer and sell or dispose of them, and the
Contractor shall not be liable to the Customer or any person
claiming through the Customer and the Contractor shall be
entitled to retain the proceeds of any Goods sold and apply
same towards the Customer’s indebtedness to the Contractor.
If the Customer commits an act of bankruptcy, enters into any
form of administration or liquidation, makes any composition or
arrangement with its creditors, ceases to carry on business or
breaches any fundamental clause of this agreement, then the
Contractor may, without prejudice to any other remedies it may
have, repossess any Goods delivered to the Customer on any
account which has not been paid in accordance with the terms
and conditions herein and commence proceedings to recover
the balance of any monies owing the Contractor by the
Customer.
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8. WARRANTY
8.1 The warranty period for the installation shall be as specified
on the Quote. The Warranty period cannot be extended for
whatever reason.
8.2 Any warranty as to the Goods on the part of the Customer
shall be limited to the written warranty provided by the
Manufacturer to the Customer on or before installation of the
Goods.
8.3 The Contractor warrants that the work will be carried out in
accordance with all relevant laws in an appropriate and skilful
way, in accordance with the plans and specifications (where
relevant) using materials that are good and suitable for the
purpose for which they are intended to be used.
8.4 The Contractor reserves the right to make null and void the
warranty should the Goods be modified, altered, damaged or
put to any undue stress other than in the way the Goods were
designed to perform.
8.5 In respect of all claims the Contractor shall not be liable to
compensate the Customer for any delay in either replacing or
repairing the workmanship/Goods or in properly assessing the
Customer’s claim.
9. DEFECTS
The Customer shall inspect the Goods on installation and shall
within seven (7) days of installation notify the Contractor of any
alleged shortage in quantity, damage or failure to comply with
the description. The Customer shall afford the Contractor an
opportunity to inspect the Goods within a reasonable time
following installation if the Customer believes the Goods are
defective in any way. If the Customer shall fail to comply with
these provisions the Goods shall be conclusively presumed to
be in accordance with the terms and conditions and free from
any damage.
10. SECURITY & CHARGE
The Customer hereby charges all property, both equitable and
legal, present or future of the Customer in respect of any monies
that may be owing by the Customer to the Contractor under the
Terms and Conditions or otherwise and hereby authorises the
Contractor or its solicitors to execute any consent form as its
attorney for the purpose of registering a caveat over any real
property owned by the Customer at any time or to register this
charge over assets of the Customer with the Australian Securities
and Investments Commission.
11. CONTRACTOR’S INDEMNITY
(a) The Customer shall ensure they or their representative
remains on site during the performance of the Contractor’s
work.
(b) The Customer shall indemnify the Contractor from any claims
or charges relating to the damage and/or loss of property from
the job site if the Customer has not complied with the conditions
specified in clause 11(a)
12. LIABILITY
12.1 Non-excludable Rights
The parties acknowledge that, under applicable State and
Commonwealth law, certain conditions and warranties may be
implied in these Terms and Conditions and there are rights and
remedies conferred on the Customer in relation to the provision
of the Goods or of services which cannot be excluded, restricted
or modified by the Agreement (“Non-excludable Rights”).
12.2 Disclaimer of Liability
The Contractor disclaims all conditions and warranties
expressed or implied, and all rights and remedies conferred on
the Customer, by statute, the common law, equity, trade, custom
or usage or otherwise and all those conditions and warranties
and all those rights and remedies are excluded other than any
Non-excludable Rights. To the extent permitted by law, the
liability of the Contractor for a breach of a Non-Excludable Right
is limited, at the Contractor’s option, to the supplying of the
Goods and/or any services again or payment of the cost of
having the Goods and/or services supplied again.
12.3 Indirect Losses
Notwithstanding any other provision of these Terms and
Conditions, the Contractor is in no circumstances (whatever the
cause) liable in contract, tort including without limitation,
negligence or breach of statutory duty or otherwise to
compensate the Customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated
savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any
nature whatsoever caused by the Contractor’s failure to
complete or delay in completing the Order or to deliver the
Goods.
12.4 Force Majeure
The Contractor will have no liability to the Customer in relation
to any loss, damage or expense caused by the Contractor’s
failure to complete the Order or to deliver the Goods as a result
of fire, flood, tempest, earthquake, riot, civil disturbance, theft,
crime, strike, lockout, breakdown, war, the inability of the
Contractor’s normal Contractors to supply necessary material or
any other matter beyond the Contractor’s control.
13. PRIVACY
13.1 The Customer hereby authorises the Contractor to collect,
retain, record, use and disclose consumer and/or commercial
information about the Customer, in accordance with the Privacy
Act 1988, to persons and/or legal entities who are a Solicitor or
any other professional consultant engaged by the Contractor, a
Debt Collector, Credit Reference Organisation and/or any other
individual or organisation which maintains credit references
and/or default listings.
13.2 The Customer also authorises the Contractor to make
enquiries with respect to the Customer’s consumer and
commercial credit worthiness; to exchange information with
other Credit Providers in respect to previous consumer and
commercial defaults of the Customer and to notify other Credit
Providers of a consumer and/or commercial default by the
Customer.
14. SUB CONTRACTORS DISPUTE
14.1 Resolution
Without prejudice to either party’s rights under the Building and
Construction Industry Payments Act 2005 and the Subcontractors’
Charges Act 1974, either party may refer any dispute under, or
arising out of, this contract to the Institute of Arbitrators &
Mediators Australia, for resolution under the Rules of the
Construction Industry Dispute Resolution Scheme. Each case will
first be referred to a Conciliator appointed by the Institute unless
each party wishes to proceed directly to arbitration. If the
conciliation is not satisfactorily concluded within six weeks or if
the parties want to proceed directly to arbitration, the Institute
will appoint an Arbitrator who will make a final and binding
award.
15. GENERAL MATTERS
15.1 Severability
Any provision in these Terms and Conditions which is invalid or
unenforceable in any jurisdiction must be read down for the
purposes of that jurisdiction, if possible, so as to be valid and
enforceable. If that provision cannot be read down then it is
capable of being severed to the extent of the invalidity or
unenforceability without affecting the remaining provisions of
these Terms and Conditions or affecting the validity or
enforceability of that provision in any other jurisdiction.
15.2 Governing Law and Jurisdiction
These Terms and Conditions are governed by the law in force in
the State or Territory in which the Contractor’s premises are
located and the parties submit to the non-exclusive jurisdiction
of the courts of that State or Territory and any courts which may
hear appeals from those courts in respect of any proceedings in
connection with these Terms and Conditions.
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