1.1 Application of these Terms and Conditions
The Client agrees that prior to placing an order with the Contractor, the Client has read and agreed to the terms and conditions as set out here under. For the purposes of this agreement, “Contractor” is IMAGE CABINETS PTY LTD A.B.N. 14 090 142 671 and the “Client” is the applicant named on the account with the Contractor or where no account exists then on the Quote or Work Authorisation provided by the Contractor to the Client. In this agreement “Goods” means goods and services (on site assembly); “Components” mean hinges, door handles, drawer runners and associated hardware.
2.1 Contractor Supply 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 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 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.
(e) the Client 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 to take into account any rise or fall in the cost of performing the Order 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.
Where there are variations to the original Quote
(a) the Client shall indemnify the Contractor from any additional cost incurred by the Contractor, should the Client increase the scope of the goods and/or services to be provided by the Contractor; and
(b) variations within a period subject to a progress payment shall be payable at that time and no later.
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.
The Client must keep confidential and not use any ideas communicated by the Contractor to the Client without the Contractor’s prior consent.
Delivery of the Goods shall be made to the Client’s nominated address. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.Delivery of Goods to a third party and/or site nominated by the Client is deemed to be delivery to the Client for the purpose of this
4. SITE ACCESS
4.1The Client shall ensure that the Contractor has clear and uninterrupted access to the work 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 should the completion of the Contractor’ work be delayed due to interrupted site access.
5.1 Time for Payment
The Client must, within the time specified in the Quote, upon the Client receiving the Contractor’s invoice, pay the Contractor the total amount set out in the invoice or payment claim.
The Contractor may charge interest at a rate of thirty per centum per annum (30% per year) calculated on a daily basis on amounts not paid within the time specified in clause 5.1, 5.4 and 5.5
The Contractor will require a deposit from the Client. The time for such payment will be specified in the Contractor’s Quote.The Client acknowledges the Contractor is under no obligation to start
the contract period or undertake any works 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 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
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.
5.5 Remedial Work
The Client hereby agrees that in the event remedial work is required for work completed to date, 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.
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.
The Client shall reimburse the Contractor for any costs, expenses or losses incurred by the Contractor should the Client cancel the accepted Quote or Work Authorisation. The time for payment for such cancellation shall be seven (7) days from the Contractor’s invoice.
6. CLIENT FINANCE
6.1 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.
6.2 Should the Client arrange leasing or other finance, the Client must provide to the Contractor, within fourteen (14) days of accepting the Quote, 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.
The risk in the Goods shall pass to the Client upon delivery/installation of the Goods to the Client or its agent or to a third party nominated by the Client.
8. RETENTION OF TITLE
Notwithstanding the delivery of the Goods or their installation, title in any particular Goods shall remain with the Contractor 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. Where the Goods
have been onsold by the Customer, the Customer will be taken to hold the proceeds of sale of such Goods upon trust for the Contractor and to account to the Contractor for these proceeds. 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.
The Client acknowledges that it is in possession of the Goods solely as Bailee until payment of all invoices and progress payments for the Goods is made pursuant to clause 8.1 and until that time:
(a) the Client is not entitled to sell the Goods but only in the ordinary
course of business;
(b) the Client must not encumber or otherwise charge the Goods;
(c) the Client 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 Client.
The Client hereby irrevocably grants to the Contractor the right, at its sole discretion, to remove or repossess any Goods from the Client and sell or dispose of them, 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 Goods 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 Goods 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.
9.1 The warranty on workmanship shall be for a period as specified in the Quote or Work Authorisation.
9.2 Any warranty as to the Components on the part of the Client shall be the same as the written warranty provided by the Manufacturer to the Contractor on or before installation of the Goods.
9.3 The Client shall indemnify the Contractor against all warranties attached to products used in the Contract, but purchased independently of the Contractor.
9.4 The Contractor warrants that the work will be carried out in accordance with all relevant laws in an appropriate and skilful way, inaccordance 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.
9.5 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.
9.6 In respect of all claims the Contractor shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Client’s claim.
The Client shall inspect the Goods on installation and shall within fourteen (14) days of installation notify the Contractor 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 Goods within a reasonable time following installation if the
Client believes the Goods are defective in any way. If the Client 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.
11.1 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 Client in relation to the provision of the Goods or of services 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, 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.
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 Contractor’s failure to complete or delay in completing the Order or to deliver the Goods.
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 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.
11.5 Contractor’s Indemnity
(a) The Client shall ensure they or their representative remains on site during the performance of the Contractor’s work.
(b) The Client shall sign off that the work has been completed at the stages agreed, in accordance with the Quote. After the sign off has been received, the Client shall indemnify the Contractor from any costs or expenses associated with remedial work to damaged Goods.
(c) The Client shall indemnify the Contractor from any claims or charges relating to the damage and/or loss of property from the job site if the Client has not complied with clause 11.5 (a).
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 Reference Organisation and/or any other individual or organisation which maintains credit references and/or default listings.
12.2 The Client also authorises the Contractor to make enquiries with respect to the Client’s commercial and consumer credit worthiness and to exchange information with other Credit Providers in respect to previous commercial and consumer defaults of the Client.
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 or to register this charge over assets of the Client with the Australian Securities and Investments Commission.
14. SUBCONTRACTORS DISPUTE RESOLUTION
Without prejudice to either party’s rights under the Building and Construction Industry Payments Act 2004 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
15. GENERAL MATTERS
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 laws of the State of Queensland and all disputes arising between the Customer and the Supplier will be submitted to the Brisbane Registry of any Court as is
competent to hear the matter.