Terms and Conditions of Trade

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1. INTRODUCTION

1.1 Application of these Terms and Conditions

For the purposes of this agreement, “the Contractor” is David John Kerr ABN 60 059 716 081 trading as DK Cabinets and his successors and assigns or any person acting on behalf of and with the authority of David John Kerr; “the Client” is the applicant named on the account with the Contractor or where no account exists then on the quote and/or contract provided by the Contractor to the Client; “Cabinetry” mean the cabinets, built-ins and other products detailed in the plans and specifications agreed; “Components” mean hinges, door handles, drawer runners and associated hardware; “Site” means the address where the Contractor’s cabinetry is to be delivered and/or installed; and “Work” means cabinet making and installation.

2. QUOTATIONS

2.1 Contractor’s Quote

The Contractor shall give the Client a quote specifying the Work required to be done in order to fulfill the Client’s instructions and an estimate of the Contractor’s charge for the performance of such Work.

2.2 Acceptance by the Client

Where the Contractor has given the Client a quote:

a)     the Contractor need not commence Work until the quote has been accepted by the Client;

b)     the Client shall accept the quote by signing and returning a true copy of the quote accompanied by a purchase order number if applicable;

c)     acceptance by the Client of the quote will constitute acceptance by the Client of these terms and conditions;

d)     quotes are valid for thirty (30) days only unless an extension has been authorised by the Contractor; and

e)     the Client warrants that it has not relied on any representation by the Contractor other than as supplied in writing in the quote.

2.3 Contractor May Revise Quote

The Contractor may amend the quote, if not accepted within thirty (30) days from the date of the quote, to take into account any rise or fall in the cost of performing the Work as quoted and the Contractor shall notify the Client of such amendment as soon as practicable thereafter. The Contractor will not be obliged to commence Work until such time as the Customer agrees to the amendment of the quote.

2.4 Provisional Sums

Each provisional sum item will be listed in a separate schedule and have an allowance stated next to it for the price of the supply of the Work. The Client must pay the actual price of any Work and where the price is more than the allowance, the margin specified in the schedule applied to that difference.

2.5 Unforeseen Circumstances

The Contractor shall not be responsible for any problems with the Site which are only revealed when installing the Cabinetry. The Contractor will carry out any Work needed to fix any such problem if it is considered necessary for satisfactory installation of the Cabinetry. Any additional Work necessary due to an unforeseen circumstance is a variation and subject to clause 2.6. If a price is not agreed, the Client will be charged the actual cost plus another twenty per centum (20%) for the Work.

2.6 Variations

Where there are variations to an accepted quote:

a)     the Client shall indemnify the Contractor from any additional cost incurred by the Contractor, should the Client increase the scope of the Work and/or Cabinetry to be provided by the Contractor; and

b)     within a period subject to a progress payment, then those variations shall be payable at that time and no later.

2.7 Copyright

The copyright in all plans, 3D drawings, sketches, design ideas and custom made solutions which appear in the Contractor’s quote or contract shall be the property of the Contractor.

2.8 3D Drawings

3D drawings are available on request, for a fee. Should the Client accept the Contractors quote and/or contract then the said fee will be included in the quote and/or contract price subject to the original drawing and one subsequent change only. Any further changes will incur additional cost/s to the Client.

3. DELIVERY

Delivery of Cabinetry shall be made to the Client’s nominated address and the Client shall make all arrangements necessary to take delivery of Cabinetry whenever they are tendered for delivery. Delivery of Cabinetry to a third party and/or site nominated by the Client is deemed to be delivery to the Client for the purpose of this agreement. 

4. SITE ACCESS

4.1 The Client shall ensure that the Contractor has clear and uninterrupted access to the Site until the Contractor’s Work has been completed and the Contractor has been paid in full.

4.2 The Client will indemnify the Contractor from additional costs or penalties if the completion of the Contractor’s Work is delayed due to interrupted Site access.

5. RISK

The risk in the Cabinetry shall pass to the Client upon delivery of the Cabinetry to the Client or its agent or to a third party nominated by the Client.

6. PAYMENT

6.1 Time for Payment

The Client must, within the time specified in the quote and/or contract, upon the Client receiving the Contractor’s invoice or payment claim, pay the Contractor the total amount set out in the invoice or payment claim.

6.2 Interest

The Contractor may charge interest at a rate of two percent (2%) above the commercial lending rate of the Australia & New Zealand Banking Group Limited (ANZ) calculated on a daily basis on amounts not paid within the time specified in the Contractor’s tax invoice or payment claim.

6.3 Deposit

The Contractor will require a deposit from the Client, unless otherwise stated in writing by the Contractor. The Client acknowledges the Contractor is under no obligation to start any Work as requested by the Client 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 Client, the Contractor shall be entitled to forfeit the deposit and claim any profit or margin contemplated by or allowed for in the contract in addition to any remedy available to the Contractor at law or in equity.

6.4 Progress Payments

When agreed progress payments are not honoured by the Client, the Contractor reserves the right to halt any further Work until such time as the outstanding payment is forthcoming. 

6.5 Remedial Work

The Client hereby agrees that in the event remedial work is required for Work completed to date, the Client or the Client’s project manager shall only hold back the value/amount (agreed by both parties) of having the Work replaced and not the entire due payment. The balance must be paid on receipt of the Contractor’s invoice or payment claim.

6.6 Damages

The Client must pay to the Contractor any costs, expenses or losses incurred by the Contractor as a result of the Client’s failure to pay to the Contractor all sums outstanding as owed by the Client 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.

6.7 Cancellation

The Client shall reimburse the Contractor for any costs, expenses or losses incurred by the Contractor should the Client cancel the accepted quote and/or contract (and where applicable following the cooling off period, in the case of a consumer). The time for payment for such cancellation shall be seven (7) days from the Contractor’s invoice.

7. CLIENT FINANCE

7.1 Upon the Contractor’s request, the Client agrees to provide, in a timely manner, information that supports sufficient funds are available to meet all payments due to the Contractor. The accuracy of the information provided by the Client is hereby expressed to be of the essence of this contract and in the event that it is found that the information thus provided is inaccurate or untrue, the Contractor may, without prejudice to its right otherwise to recover damages, determine its employment under the contract after first giving seven (7) calendar days notice in writing of an intention to do so.

7.2 Should the Client arrange leasing or other finance, the Client must provide to the Contractor, within fourteen (14) days of accepting the quote and/or contract, appropriate evidence of the leasing or other finance arrangements. A contract will then be entered into between the finance company and the Contractor subject to the Contractor’s terms and conditions of trade.

8. RETENTION OF TITLE

8.1 Title

Notwithstanding the delivery or installation of the Cabinetry, title in any particular Cabinetry shall remain with the Contractor until the Client has paid and discharged any and all monies owing pursuant to any invoice or payment claim issued by the Contractor for the Cabinetry, including all applicable GST and other taxes, levies and duties. Where the Cabinetry has been on sold by the Client, the Client will be taken to hold the proceeds of sale of such Cabinetry upon trust for the Contractor and to account to the Contractor for these proceeds. Any payment made by or on behalf of the Client which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge the Contractor’s title in the Cabinetry nor the Client’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.

8.2 Bailment

The Client acknowledges that it is in possession of the Cabinetry solely as Bailee until payment of all invoices and progress payments for the Cabinetry are made pursuant to clause 8.1 and until that time:

a)     the Client is not entitled to sell the Cabinetry but only in the ordinary course of business;

b)     the Client must not encumber or otherwise charge the Cabinetry; and

c)     the Client shall be fully responsible for any loss or damage to the Cabinetry whatsoever and howsoever caused following delivery or installation of the Cabinetry to the Client.

 

8.3 Repossession

The Client hereby irrevocably grants to the Contractor the right, at its sole discretion, to remove or repossess any Cabinetry (including such Cabinetry considered to be a fixture, including but not limited to kitchen and bathroom Cabinetry already installed) and sell or dispose of it, and the Contractor shall not be liable to the Client or any person claiming through the Client and the Contractor shall be entitled to retain the proceeds of any Cabinetry sold and apply same towards the Client’s indebtedness to the Contractor.

If the Client 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 Cabinetry delivered to the Client 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 Client.

9. SCHEDULE OF WARRANTIES

9.1 To the extent required by the Domestic Building Contracts Act, the Contractor warrants that:

a)     the Work will be carried out in accordance with all relevant laws and legal requirements 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 and that, unless otherwise stated in this contract, those materials will be new;

b)     each provisional sum item allowance, if calculated by the Contractor, has been calculated with reasonable skill and care, having regard to all the information reasonably available when this contract is entered into (including information about the nature and location of the Site).

9.2 The Contractor warrants that the Work is, and that materials, Cabinetry and Components supplied are, free of defects at the time of completion of installation.

9.3 Subject to law, the Contractor does not have to fix:

a)     any problem caused by misuse, abuse, wear and tear or normal shrinkage or movement; or

b)     appliances made by others; or

c)     any defects in, or problems caused by, work materials or appliances supplied by the Client.

10. DEFECTS

The Client shall inspect the Cabinetry on installation and shall within seven (7) days of installation notify the Contractor in writing (or in the case of a minor problem by phone) of any alleged shortage in quantity, damage or failure to comply with the description.  The Client shall afford the Contractor an opportunity to inspect the Cabinetry within a reasonable time following installation if the Client believes the Cabinetry is defective in any way.  If the Client shall fail to comply with these provisions the Cabinetry shall be conclusively presumed to be in accordance with these terms and conditions and free from any damage. 

11. LIABILITY

11.1 Non-excludable Rights

The parties acknowledge that, under the Australian Consumer Law, certain conditions and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the Client in relation to the provision of the Cabinetry or of Work which cannot be excluded, restricted or modified by the agreement (“Non-excludable Rights”).

11.2 Disclaimer of Liability

The Contractor disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Client, by statute, the common law, equity, supply, 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 Cabinetry and/or any Work again or payment of the cost of having the Cabinetry and/or Work supplied again.

11.3 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 Client 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 failure of the Contractor to complete or delay in completing the Work or to deliver the Cabinetry.

11.4 Force Majeure

The Contractor will have no liability to the Client in relation to any loss, damage or expense caused by the Contractor’s failure to complete the Work or to deliver the Cabinetry as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the Contractor’s normal suppliers to supply necessary material or any other matter beyond the Contractor’s control.

11.5 Contractor’s Indemnity

11.5.1 If the Client agrees to provide plumbing and electrical services or to supply appliances then the Client must have the Site ready and appliances available when requested by the Contractor.

11.5.2 The Client shall indemnify the Contractor from damage to the Contractor’s Cabinetry and Components caused by other trades.

12. PRIVACY

12.1 The Client hereby authorises the Contractor to collect, retain, record, use and disclose commercial and/or consumer information about the Client’s credit worthiness, credit standing, credit history or credit capacity, 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 reporting agency and/or any other individual or organisation which maintains credit references and/or default listings.

12.2 The Contractor may give information about the Client to a credit reporting agency for the purposes of obtaining consumer and commercial credit reports and/or lodging consumer and commercial defaults on the Client’s credit file. This information may be given before, during or after the provision of credit to the Client and will be in accordance with the Privacy Act 1988 and subsequent amendments.

13. SECURITY AND CHARGE

The Client hereby charges all property, both equitable and legal, present or future of the Client in respect of any monies that may be owing by the Client 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 Client at any time.

14. PAYMENT CLAIM

On completion of the Work (and where applicable) the Contractor shall make a payment claim in accordance with The Building and Construction Industry Payments Act 2004. The Client must respond appropriately and within the time specified in the Act.

15. GENERAL MATTERS

15.1 Client Acknowledgment

15.1.1 Imperfections on bench tops and two pack paintwork may be evident in certain light. In most cases this will be accepted industry standards and the Client agrees to this assertion.

15.1.2 The Client shall give the Contractor the right to photograph the completed kitchen. These photographs may be used in the Contractor’s promotional and/or advertising material.

15.2 Warranty, Maintenance & Care

Appropriate warranty, maintenance and care information is available on application from the Contractor’s office during normal office hours 8.30am until 4pm Monday – Friday.

15.3 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.

15.4 Governing Law and Jurisdiction

These terms and conditions are governed by the laws of the State of Queensland and all disputes arising between the Client and the Contractor will be submitted to the Brisbane Registry of any Court as is competent to hear the matter.

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