ACT Renovations Pty Ltd – Terms and Conditions of Trade
1. Definitions
1.1 “Contractor” means ACT Renovations Pty Ltd ATF Minshull Family Trust T/A ACT Renovations Pty Ltd, its successors and assigns, or any person acting on behalf of, and with the authority of, ACT Renovations Pty Ltd ATF Minshull Family Trust T/A ACT Renovations Pty Ltd.
1.2 “Client” means the person/s ordering the Works as specified in any quotation, invoice, order or other document, and if there is more than one Client, is a reference to each Client jointly and severally.
1.3 “Works” means all Works or Materials provided by the Contractor to the Client, at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Works (plus any GST where applicable), as agreed between the Contractor and the Client in accordance with clause 4 below.
1.5 “Site” means the address nominated by the Client at which the Works are to be undertaken by the Contractor.
1.6 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts provision of, any Works.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Contractor.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of either the Electronic Transactions Act 2000 (NSW) or the Electronic Transactions Act 2001 (ACT), or any other applicable provisions of those Acts or any Regulations referred to in those Acts.
3. Change in Control
3.1 The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At the Contractor’s sole discretion, the Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Client in respect of Works provided; or
(b) the Contractor’s quoted Price (subject to clause 4.2) which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within thirty (30) days.
4.2 The Contractor reserves the right to change the Price:
(a) if a variation to the Materials which are to be provided is requested (including due to inaccuracies in quantities or dimensions or other information supplied to the Contractor for quotation purposes); or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, inclement weather, obscured site defects, required prerequisite work not completed, iron reinforcing rods in concrete, or hidden pipes and wiring/cabling, etc.) which are only discovered on commencement of the Works; or
(d) as a result of an increase in the Contractor’s costs due to changes in statutory, government, or local body charges, taxes, levies, etc. with respect to the Works, increases to the Contractor in the cost of labour or Materials or due to relevant industry awards (e.g. site allowance and severance pay), or fluctuations in currency exchange rates, which are outside the control of the Contractor.
4.3 At the Contractor’s sole discretion, a non- refundable deposit may be required.
4.4 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:
(a) on completion of the Works;
(b) by way of progress payments in accordance with the Contractor’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed;
(c) payment for approved Clients shall be due fourteen (14) days following the end of the month in which a statement is posted to the Client’s address or address for notices; or
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice furnished to the Client by the Contractor.
4.5 Payment may be made by cheque, electronic/on-line banking, or by any other method as agreed to between the Client and the Contractor.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any provision of Works by the Contractor under this contract or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price, except where they are expressly included in the Price.
5. Provision of the Works
5.1 Subject to clause 5.2, it is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.
5.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any event under clause 19.7, or any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Works; or
ACT Renovations Pty Ltd – Terms and Conditions of Trade
(c) notify the Contractor that the site is ready.
5.3 The Contractor may provide the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.4 Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Works as agreed solely due to any action or inaction of the Client, then the Contractor shall be entitled to charge a reasonable fee for resupplying the Works at a later time and date, and/or for storage of the Materials.
5.5 The Client shall ensure that the Contractor has clear and free access to the site at all times to enable them to undertake the Works. The Contractor shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor.
5.6 Prior to the Contractor commencing the Works the Client must clearly mark the exact location and identify all services on the site, including, but not limited to, drains, pipes, sewers, mains and telephone and data cables, to enable the Contractor to prevent damage to all such services. Should the Client fail to provide the Contractor with the appropriate plans for the site as specified, the Client shall indemnify the Contractor from any claim for costs, expenses or losses.
6. Risk
6.1 If the Contractor retains ownership of the Materials under clause 8 then;
(a) where the Contractor is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by the Contractor or the Contractor’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address); or
(b) where the Contractor is to both supply and install Materials then the Contractor shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
6.1 Notwithstanding the provisions of clause 6.1, where the Contractor requires that Materials, fittings and appliances, or plant and tools required for the Works be stored at the work site, the Client shall supply the Contractor a safe area for storage and shall take all reasonable efforts to protect all items from possible destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.
6.2 The Client acknowledges that Materials provided may exhibit variations in shade, colour, texture, surface and finish, markings, veining, and contain natural fissures, occlusions, and indentations, and may fade or change colour over time. Whilst the Contractor will make every effort to match batches of product, or sales samples to the finished Materials, in order to minimise such variations, the Contractor shall not be liable in any way whatsoever where such variations occur.
6.3 Where the Client has supplied products for the Contractor to complete the Works, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in those products. The Contractor shall not be responsible for any defects in the Works, any loss or damage to the products and/or Materials (or any part thereof), howsoever arising from the use of products supplied by the Client.
6.4 Where the Contractor is required to install the Materials the Client warrants that the structure of the premises or equipment in or upon which these Materials are to be installed or erected is sound and will sustain the installation and work incidental thereto and the Contractor shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation.
6.5 The Contractor will not accept responsibility for any damage to the floor due to microenvironments caused by air-conditioning, heating or large expanses of glass windows without curtains or blinds or variations in moisture content either above or below the flooring.
6.6 Whilst the Contractor will take all due care to avoid contamination of the finished surface, the Contractor accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the site.
6.7 The Client will only inspect or view a timber floor from a standing position, as this is generally how it will be viewed. Minor marks or slight imperfections in the floor finish that can only be viewed from a crouching or kneeling position will not be considered defects.
6.8 Timber is a hydroscopic material subject to expansion and contraction, therefore the Contractor will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods.
6.9 The Client acknowledges that Materials provided may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather, and therefore the Contractor will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
6.10 The Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, the Contractor accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
6.11 The Client acknowledges that, under no circumstances, will the Contractor handle removal of asbestos product. In the event asbestos (or other hazardous material) is discovered on Site:
(a) the Contractor shall suspend the Works as per clause 5.2; and
(b) the Client shall be fully responsible for the resolution of any resulting problems; and
(c) any additional cost incurred by the Contractor shall be added to the Price under clause 4.2.
6.12 Concreting
(a) where the Contractor gives advice or recommendations to the Client, or the Client’s agent, regarding the suitability of the worksite for the laying of concrete slabs, foundations or similar works and such advice or recommendations are not acted upon then the Contractor shall require the Client or their agent to authorise commencement of the works in writing. The Contractor shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
ACT Renovations Pty Ltd – Terms and Conditions of Trade
(b) the Contractor gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the Works such as:
(i) hairline cracking of paving and grout; or
(ii) damage caused by contact with chemicals, solvents, oils or any other substances; or
(iii) the effects by elements such as heat exposure or wet weather conditions that prolong the curing process.
(c) the Client acknowledges and agrees that it is their responsibility to organise and be liable for all costs associated with protecting the concrete and shall take all reasonable precautions to protect against destruction or damage by way of vandalism. In the event that the concrete is destroyed or damaged due to vandalism then the cost of re pair or replacement shall be borne by the Client.
(d) the Contractor shall not be liable for any defect in the Works if the Client does not follow the Contractor’s recommendation to:
(i) water the concrete for a periodically to limit the risk of possible cracking due to weather conditions;
(ii) no foot traffic and/or any vehicles on the concrete for a minimum of forty-eight (48) hours but preferably seven (7) days;
(iii) no heavy furniture to be placed on the concrete area for a minimum of twenty-four (24) hours.
(e) The Client shall supply an area suitable for washing out the Contractor’s equipment and for depositing all unused concrete and slurry.
7. Compliance with Laws
7.1 The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
7.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
8. Title
8.1 The Contractor and the Client agree that the Client’s obligations to the Contractor for the provision the Works shall not cease (and ownership of the Materials shall not pass) until:
(a) the Client has paid the Contractor all amounts owing to the Contractor; and
(b) the Client has met all other obligations due by the Client to the Contractor in respect of all contracts between the Contractor and the Client.
8.2 Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then the Contractor’s rights and ownership in relation to the Works, and this contract, shall continue.
8.3 It is further agreed that, until ownership of the Materials passes to the Client in accordance with clause 8.1:
(a) the Client is only a bailee of the Materials and, unless the Materials have become fixtures, must return the Materials to the Contractor on request.
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed. The production of these terms and conditions by the Contractor shall be sufficient evidence of the Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Contractor to make further enquiries.
(c) the Client will not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand.
(d) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs
(e) and unless the Materials have become fixtures, the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of the Materials.
(f) the Contractor may recover possession of any Materials in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Contractor.
(h) the Contractor may commence proceedings to recover the Price notwithstanding that ownership of the Materials has not passed to the Client.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials, and/or any monetary obligations of the Client to the Contractor for Works, previously provided (if any), and/or that will be provided in the future, by the Contractor to the Client.
9.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Contractor may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.2(a)(i) or 9.2(a)(ii);
(b) indemnify, and upon demand reimburse, the Contractor for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;
ACT Renovations Pty Ltd – Terms and Conditions of Trade
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Works in favour of a third party without the prior written consent of the Contractor.
9.4 The Contractor and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by the Contractor, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Client shall unconditionally ratify any actions taken by the Contractor under clauses 9.2 to 9.5.
9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10. Security and Charge
10.1 In consideration of the Contractor agreeing to provide Works, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.
10.3 The Client irrevocably appoints the Contractor and each director of the Contractor as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Client must inspect the Works on completion and must within seven (7) days of such time notify the Contractor in writing of any evident defect/damage, error or omission, shortage in quantity, or failure to comply with the description or quotation. The Client must notify any other alleged defect in the Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to inspect/review the Works provided.
11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“NonExcluded Guarantees”).
11.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Works. the Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
11.5 If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.6 If the Contractor is required to rectify, re-provide, or pay the cost of re-providing the Works under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works which have been provided to the Client which were not defective.
11.7 If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Works is:
(a) limited to the value of any express warranty, or warranty card, provided to the Client by the Contractor (at the Contractor’s sole discretion);
(b) limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Materials;
(c) otherwise negated absolutely.
11.8 Notwithstanding clauses 11.1 to 11.7 but subject to the CCA, the Contractor shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to provide proper maintenance to the Works;
(b) the Client using the Works for any purpose other than that for which they were designed;
(c) the Client continuing to use the Works after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Works by the Client or any third party without the Contractor’s prior approval; (e) the Client failing to follow any instructions or guidelines provided by the Contractor;
(f) fair wear and tear, any accident, or act of God.
11.9 Notwithstanding anything contained in this clause if the Contractor is required by a law to accept a return then the Contractor will only accept a return on the conditions imposed by that law.
12. Intellectual Property
12.1 Where the Contractor has designed, drawn, written plans or a schedule of Works, or created any Materials for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and Materials shall remain vested in the Contractor, and shall only be used by the Client at the Contractor’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Contractor.
12.2 The Client warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.
12.3 The Client agrees that the Contractor may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or Materials (or any digital media thereof) which the Contractor has created for the Client.
ACT Renovations Pty Ltd – Terms and Conditions of Trade
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
13.3 Further to any other rights or remedies the Contractor may have under this contract, if the Client has made payment to the Contractor and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 13 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
13.4 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14. Cancellation
14.1 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the provision of Works to the Client. the Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
14.2 The Contractor may cancel any contract to which these terms and conditions apply, or cancel provision of the Works at any time before the Works have commenced, by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Contractor for Materials already procured. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.3 In the event that the Client cancels this contract, or the provision of Works by the Contractor, the Client shall be liable for any Works provided by the Contractor up to the date of cancellation and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits), and shall be invoiced accordingly for immediate payment.
14.4 Cancellation of orders for Materials made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
15. Privacy Act 1988
15.1 The Client agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Contractor.
15.2 The Client agrees that the Contractor may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
15.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
15.4 The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Works.
15.5 The Contractor may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
15.6 The information given to the CRB may include:
(a) personal information as outlined in 15.1 above;
(b) name of the credit provider and that the Contractor is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Contractor has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Contractor, the Client has committed a serious credit infringement;
ACT Renovations Pty Ltd – Terms and Conditions of Trade
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
15.7 The Client shall have the right to request (by email) from the Contractor:
(a) a copy of the information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect information; and
(b) that the Contractor does not disclose any personal information about the Client for the purpose of direct marketing.
15.8 The Contractor will destroy personal information upon the Client’s request (by email) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
15.9 The Client can make a privacy complaint by contacting the Contractor via email. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
16. Dispute Resolution
16.1 If any dispute or difference concerning this agreement arises between the Contractor and the Client, then either party may give the other written notice of the dispute. Within five (5) days after giving such notice, the parties shall meet at least once to attempt to resolve the dispute and the person attending must have the authority to agree to a resolution. The parties may agree to have the dispute referred to an expert determination conciliation or arbitration or similar process. Nothing in this clause prejudices the rights of either party to have the dispute or associated matters dealt with under the Building and Construction Security of Payment Act 1999, as amended.
17. Building and Construction Industry Security of Payments Act 1999 (NSW)
17.1 At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Works then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
17.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
18. Requirements Under the Building Act 2004 ACT
18.1 Where the Contractor undertakes any residential building work in Australian Capital Territory (ACT) the cost of which is twelve thousand dollars ($12K) or greater then the following clauses 18.2 & 18.3 shall also apply to this contract in compliance with Part 6 of the Building Act 2004 ACT.
18.2 The Contractor warrants the following:
(a) that the residential building work has been or will be carried out in accordance with the Building Act 2004 ACT;
(b) that the work has been or will be carried out in a proper and skilful way; and
(i) in accordance with the approved plans; or
(ii) if the Work involves or involved handling asbestos or disturbing friable asbestos, in accordance with approved plans that comply with the provisions specified under the Building Act 2004 ACT in relation to the asbestos;
(c) that good and proper Materials for the Works have been or will be used in carrying out the Works;
(d) if the work has not been completed, and the contract does not state a date by which, or a period within which, the work is to be completed, that the work will be carried out with reasonable promptness;
(e) if the owner of the land where the work is being or is to be carried out is not the Contractor, and the owner expressly makes known to the Contractor, or an employee or agent of the Contractor, the particular purpose for which the work is required, or the result that the owner desires to be achieved by the work, so as to show that the owner is relying on the Contractor’s skill and judgment, that the work and any material used in carrying out the work is or will be reasonably fit for the purpose or of such a nature and quality that they might reasonably be expected to achieve the result.
18.3 Where the Contractor is not acting as a sub-contractor the Contractor shall take out a policy of residential building work insurance in compliance with Division 6.3 of the Building Act 2004 ACT.
19. General
19.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the State in which the Contractor has its principal place of business, and are subject to the jurisdiction of the courts in that State.
19.3 Subject to clause 11, the Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price).
19.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
19.5 The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent. The Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
19.6 The Client agrees that the Contractor may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Works to the Client.
19.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
19.8 Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.
