Terms of Contract
Accessories means the items or any of them described under that heading on the first page.
Appliances means the items or any of them described under that heading on the first page.
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition Consumer Act 2010 (Cth).
Check Measure the check of the measurements of the Site Location to ensure that the Product will fit correctly at the Site Location, undertaken by an employee or agent of the Company.
Company means the company supplying the Product, Appliances and Accessories.
Consumer Guarantee means each guarantee as set out in under Part 3-2, Division 1, Subdivision B of the Australian Consumer Law, as it applies to supplies by the Company of the Product, Appliances or Accessories, made under this contract.
Customer is the party whose details appear under that heading on the first page.
Deposit means a sum equal to 10% of the Price.
Delivery Date means the date agreed between the Company and the Customer pursuant to clause 6(a) as varied, if applicable, in accordance with clause 6(b) or clause 6(c).
Final Payment means a sum equal to 60% of Price.
Government Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
Price means the value of the contract described in the top line under the heading payment schedule on the first page.
Product means the items (or, where the context requires, any part thereof) described under the heading kitchen product specification on the first page.
Progress Payment means a sum equal to 30% of the Price.
Site Location means the site at which the Product, Appliances and Accessories are to be located.
2. ENTIRE AGREEMENT AND PRECEDENCE
The terms of the contract between the Customer and the Company are comprised in this document (including the cover page) and the plans and the specifications provided to the Customer which together constitute the entire understanding between the parties, and supersede all prior agreements, understandings and communications, whether written or oral, in relation to their subject matter.
If there is any inconsistency:
between the terms of this document, on the one hand, and the plans or the specifications, on the other hand, the terms of this document will prevail to the extent of the inconsistency; or
between the plans and the specifications provided to the Customer, the plans will prevail to the extent of the inconsistency.
No agents or designers engaged by the Company are authorised to make any changes whatsoever to the terms of this contract. Any changes to the terms of the contract must be agreed in writing between the Company and the Customer (and in the case of the Company, approved by a director of the Company).
3. CHECK MEASURE AND CONTRACT VARIATION
The Company will use reasonable endeavours to ensure the Price is correct at the date of this contract. However, because the Product is a ‘made to measure’ product, the Customer acknowledges and agrees that the Price may be subject to variations which are necessary as a result of the Check Measure which the Company will arrange before production of the Product commences.
The Customer agrees to permit the Company to undertake the Check Measure at a time (between the hours of 7 am and 8 pm, 7 days a week) acceptable to both parties.
If, following the Check Measure, the Company becomes aware that the Product specifications, as estimated at the date of this contract, must change:
the Company will, where necessary, redesign the Product and must notify the Customer of the details of any proposed variation to the contract;
the parties must agree on any such variation to the contract, before production of the Product commences; and
in the event that the parties cannot agree on the variation, then either party is entitled to terminate the contract.
In the event the Company, having used reasonable endeavours, is prevented from carrying out a Check Measure for a period in excess of 3 months (or such longer period as is stated next to the heading “Extended Check Measure Period” on the first page), for any reason whatsoever, then the Company may by written notice to the Customer request that the Progress Payment be paid. If, having given that notice, the Company does not receive payment of the Progress Payment within 7 days, the Company may terminate the contract.
4. MINOR MODIFICATIONS AND VARIATIONS TO PRODUCT, APPLIANCES OR ACCESSORIES
The Company may make minor modifications to the specifications for the Product without notifying the Customer where such modifications are required as a result of the Check Measure, provided that such modifications do not materially affect the appearance, design and quality of the Product.
The Customer acknowledges that timber is a natural product and that variances in the colour, texture and grain is part of the natural beauty and individuality that timber provides. The Company therefore cannot guarantee that the Product supplied will be consistent or evenly matched in grain, texture or colour.
The Customer confirms that the Customer understands the plan provided with this document and that all details for the Product, Appliances and Accessories are both confirmed and shown correctly in the particulars on the first page of this document.
If for any reason beyond the Company’s reasonable control, the Company is unable to supply a particular item of Product, a particular Appliance or a particular Accessory, the Company will notify the Customer and with the consent of the Customer will replace it with an item of similar standard and value. The Customer’s consent to any such replacement will not be unreasonably withheld or delayed.
The Deposit is due and payable on date of this contract. The Progress Payment is due and payable on the later of the date the Check Measure is completed in accordance with clause 3(a) and, if applicable, the date the parties have agreed any necessary variations to the contract resulting from the Check Measure in accordance with clause 3(c) (or, if applicable, in accordance with clause 3(d)). The Final Payment is due and payable before delivery of the Product, Appliances and Accessories in accordance with clause 5(c).
The Company will only commence production of the Product (initiated by preparing working drawings) after the Company has:
received the Deposit;
conducted the Check Measure in accordance with clause 3(a) and the parties have agreed any necessary variations to the contract resulting from the Check Measure in accordance with clause 3(c); and
received payment of the Progress Payment.
The Company will notify the Customer when the Product is ready for delivery and the Customer must then pay the Final Payment. Once payment is received the Company will deliver the Product to the Site Location on the Delivery Date.
All payments must be made by BPAY, electronic funds transfer or credit card.
The Company is entitled to charge the Customer a fee in relation to every amount paid by the Customer using a credit card, calculated by multiplying the amount by the prevailing rate applied by the Company from time to time on credit card transactions involving the relevant credit card type (which rate will not exceed 3%). The fee is payable by the Customer at the same time as the amount in relation to which the fee is charged.
6. DELIVERY DATE
Following the Check Measure and any subsequent agreement between the parties as to any necessary variations to the contract which result from the Check Measure, the Customer and the Company will agree the Delivery Date for the Product, Appliances and Accessories, which date will be between 4 to 6 weeks later.
The Company will use reasonable endeavours to meet the Delivery Date agreed under clause 6(a). If circumstances prevent the Company from doing so, the Company will notify the Customer as soon as possible and provide an alternative date for delivery and such date will be treated as the revised Delivery Date for the purposes of the contract. The Customer must not unreasonably withhold their consent to the alternative date for delivery notified by the Company.
The Customer will use reasonable endeavours to enable delivery to take place on the Delivery Date. If circumstances prevent the Customer from doing so, the Customer will notify the Company as soon as possible and seek an alternative date for delivery, which date, if agreed by the Company, will become the Delivery Date the purposes of the contract. If the parties cannot agree on the alternative date, the date will be selected by the Company and that date will become the Delivery Date for the purposes of the contract. The Customer must not unreasonably withhold their consent to the alternative date for delivery selected by the Company.
The Company will contact the Customer to confirm when the Product, Appliances and Accessories are ready for delivery and the date of delivery (being the existing Delivery Date or an alternative date which complies with clause 6(b) or clause 6(c)). If the Customer cannot take delivery on that date, the Customer will be liable for Storage Fees from that date until the date the Product, Appliances and Accessories are delivered at the Site Location or the date the Company terminates the contract under clause 6(e). The Storage Fees will be charged at the rate determined and notified by the Company (not to exceed $100 per day) and such fees are due and payable on the date of delivery or termination as the case may be.
If the Company, having used reasonable endeavours, has not been able to deliver and continues to hold the Product, Appliances or Accessories for a period of six (6) months from the Delivery Date, the Company may terminate the contract.
The Company is authorised to destroy the Product if:
the Company terminates the contract under clause 6(e); or
if the Customer repudiates the contract at any time after production of the Product has commenced.
7. INSTALLATION CUSTOMER’S SOLE RESPONSIBILITY
The Company supplies Product, Appliances and Accessories only. It does not provide any trades work such as installation and this service is not included in the Price.
Suggestions by the Company of trades people or installers are not a recommendation and if the Customer engages any such person it does so independently of the Company and on the basis that the person is a contractor or sub-contractor to the Customer and not to the Company.
The Customer should make and rely upon the Customer’s own enquiries as to the skills and experience of any trades person or installer suggested by the Company (including whether the person is properly licensed to undertake the relevant work). The Company expressly disclaims any and all liability to Customer arising from any reliance the Customer places on the Company’s suggestion.
Any installation of the Product, Appliances or Accessories is the sole responsibility of the Customer. The Company shall not be responsible for any damage or loss the Customer suffers or incurs in connection with the installation of the Product or any Appliance or Accessory.
The Company makes no warranty, promise or representation to the Customer or anyone claiming through the Customer with respect to trades work conducted in connection the Product, Appliances or Accessories.
8. MANUFACTURER’S WARRANTIES
The Appliances and Accessories are supplied subject to warranties offered by the manufacturers or where appropriate, subject to the terms of any extended warranty schemes. This document does not alter any manufacturer’s warranties, which are supplied separately by the manufacturer.
9. TITLE AND RISK
On delivery to the Customer, risk in the Product, Appliances or Accessories is transferred to the Customer. The Company is not liable for any loss of or damage to the Product, Appliances or Accessories to the extent that it occurs after delivery (including, without limitation, as a result of any acts or omissions of the Customer, or any third party, such as a trades person or installer, engaged by the Customer).
The Customer will not legally own the Product, Appliances or Accessories until the Customer has paid the Price in full and until such time, the Customer will keep the Product, Appliances and Accessories in good repair, condition and properly insured.
If the Company determines a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA) arises under or in connection with this Agreement, the Product, Appliances or Accessories, the Customer must do everything (including obtaining consents, signing and producing documents, completing documents or procuring that they are completed and supplying information) which the Company reasonably requests or considers necessary for the purposes of enabling the Company to:
apply for any registration, or give any notification, in connection with the security interest; and
exercise rights in connection with the security interest in accordance with the PPSA.
10. CONSUMER GUARANTEES AND LIMITATION OF LIABILITY
Consumer guarantees imposed by the Australian Consumer Law require that the Product, Appliances and Accessories will:
have clear title (subject to clause 9(b)), not be subject to undisclosed securities and give the Customer a right to undisturbed possession;
be of acceptable quality and match any description;
comply with any express warranties (i.e. ‘extra promises’) the Company gives the Customer;
be fit for any purpose the Customer has made known to the Company (either expressly or by implication);
match any sample or demonstration model; and
have spare parts and facilities for the repair of any goods reasonably available for a reasonable period.
If the Product, Appliances or Accessories the Company supplies to the Customer fail to meet a Consumer Guarantee then:
when the problem is minor, the Company can choose between providing a repair or offering the Customer a replacement or refund;
when there is a major failure, the Customer can:
reject the Product, Appliances or Accessories within a reasonable period (unless attached to the Customer’s premises in such a way that they cannot be detached or isolated without damaging them) and either choose a refund or a replacement; or
ask for compensation for any drop in value of the Product, Appliances or Accessories as a result of the failure; and
the Customer can ask for compensation for any reasonably foreseeable loss incurred by the Customer as a result of the failure.
Aside from the Consumer Guarantees and as expressly set out on in this contract the Company makes no express or implied warranties or guarantees in connection with any Product, Appliances or Accessories.
To the maximum extent permitted by law:
the Company will not be liable for indirect, consequential, special, punitive or exemplary damages including but not limited to loss of use, loss of profits, loss of opportunity or loss by reason of delay, whether arising in negligence, from breach of contract or otherwise, in connection with this contract; and
the Company’s liability to the Customer for any loss or damage arising out of or in connection with this contract is limited to the Price.
If the Customer fails to make any payment under this contract on time, the Company will charge the Customer interest at the interest rate payable on Supreme Court judgments from time to time on what is unpaid. Such failure to pay is a serious breach of the Customer’s obligations.
The Customer must reimburse the Company for any debt collecting costs (and commissions) the Company pays to recover, or attempt to recover any overdue payment.
12. INTELLECTUAL PROPERTY RIGHTS
As between the parties, the Company owns all copyright and other intellectual property rights in the Product, the plans and the specifications.
If the Customer provides any sketch, plan or document, which the Company uses or relies upon and which infringes any third party’s copyright, the Customer will indemnify the Company against all liability or loss whatsoever suffered or incurred by the Company.
13. TERMINATION BY THE CUSTOMER
The Customer may terminate the contract by written notice to the Company, with immediate effect:
in the circumstances set out in clause 3(c)(iii); or
if the Company is in breach of a material term of this contract and the breach cannot be remedied or, if capable of remedy, is not remedied within thirty (30) days of the Customer providing a written notice of the breach to the Company requiring its remedy; or
if the Company becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration or control.
If this contract is terminated by the Customer in the circumstances referred to in clause 13(a)(i), the Company will repay all monies paid by the Customer with the exception of any credit card fees paid and less a deduction $800 for expenses incurred by the Company up to the date of termination.
If the contract is terminated by the Customer in the circumstances referred to in clauses 13(a)(ii) or 13(a)(iii), all monies paid by the Customer will be refunded.
14. TERMINATION BY THE COMPANY
The Company may terminate this contract with immediate effect by written notice to the Customer:
within 14 days of the date of this contract, in its absolute discretion and for any reason whatsoever (and without being obliged to give reason); or
without limiting clause 14(a)(i):
in the circumstances set out in clause 3(c)(iii), 3(d) or clause 6(e);
if the Customer is in breach of a material term of this contract and the breach cannot be remedied or, if capable of remedy, is not remedied within thirty (30) days of the Company providing a written notice of the breach to the Customer requiring its remedy; or
if the Customer becomes or threatens to become, threatens or resolves to become or is in jeopardy of becoming bankrupt subject to any form of insolvency administration or control.
If the contract is terminated by the Company in the circumstances referred to in clause 14(a)(i), the Company will repay all monies paid by the Customer including the Deposit and any credit card fees paid by the Customer.
If this contract is terminated by the Company in the circumstances referred to in clause 14(a)(ii) or the Customer repudiates the contract, and such termination or repudiation occurs:
before the Check Measure, the Company will repay any monies paid by the Customer with the exception of any credit card fees paid and less a deduction $800 for expenses incurred by the Company up to the date of termination;
after the Check Measure but before the Company commences production of the Product, the Company will repay any monies paid by the Customer with the exception of any credit card fees paid and less a deduction $1600 for expenses incurred by the Company up to the date of termination; or
after production of the Product has commenced:
the Company will be entitled to retain any monies paid by the Customer (including credit card fees) prior to the date of termination;
the Final Payment, if not already paid, becomes immediately due and payable by the Customer to the Company in full; and
if applicable, the Customer must pay any Storage Fees that have accumulated up to the date of termination in accordance with 6(d).
The Customer acknowledges and agrees that, except where this contract expressly provides otherwise:
all amounts referred to in this contract are exclusive of all GST and all other Federal or State government sales related taxes or charges levied upon each supply made under this contract (Taxes); and
the Company can charge the Customer, and the Customer must pay to the Company, the amount of such Taxes at the same time as the supply (and in the case of GST, subject to the Company providing to the Customer a valid tax invoice).
16. SPECIAL OFFERS BY THE COMPANY
The Customer accepts that any special offer made in this contract supersedes and operates to the exclusion of all other offers made prior to the date of this contract and agrees that any other offers will not apply to this contract, unless otherwise stipulated in writing by the Company.
The Customer acknowledges and agrees that if the Customer has taken out finance with a third party to purchase any or all of the Product, the Appliances or Accessories, the Customer will be responsible for the repayment of that finance.
If the whole or any part of a provision of this contract is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this clause has full force and effect and the validity and enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this contract or is contrary to public policy.
19. GOVERNING LAW
The Company and the Customer agree that the terms of this contract shall be governed in accordance with the laws of Victoria, Australia.
20. DISPUTE RESOLUTION
Before the Customer commences any legal proceedings or other external dispute resolution procedures in relation to a dispute arising out of or in connection with this contract, it must follow the following escalation procedure:
the Customer must notify the Company in writing advising of:
their reasons for its dissatisfaction (Issue); and
their available dates to meet and discuss the Issue with the Company;
within 7 days of receiving the Notice, the Company must notify the Customer, in writing, advising of its available dates to meet and discuss the Issue;
the parties must meet and discuss the Issue, and use reasonable endeavours to resolve the Issue within 7 days of the meeting; and
if within 7 days from the meeting referred to in the preceding sub-paragraph the parties have failed to resolve a dispute, the parties must resolve the dispute by reference to the procedures the Department of Consumer Affairs (Victoria) or the equivalent government department in the State where the Product is to be delivered.