Terms & Conditions
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 HILLIER FAMILY TRUST ATF NORTHSIDE JOINERY PTY LTD (A.B.N. 60 933 744 691) 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 and off site assembly); “Components” mean hinges, door handles, drawer runners and associated hardware.
2.1 Contractor 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.
3.1 Cartage, freight and transit insurance will be the Contractor’s care unless otherwise arranged and specified in writing.
3.2 If delivery of the Goods and Components is to be made to the Client’s nominated address, the Client shall make all arrangements necessary to take delivery of the Goods and Components whenever they are tendered for delivery. Failure to do so may incur additional costs.
3.3 Delivery of the Goods made to the Client at the Contractor’s address will be on an agreed date and failure by the Client to uplift completed Goods from the Contractor’s address on this agreed date will entitle the Contractor to raise an invoice subject to the Contractor’s payment terms (as if the Client had taken possession of the Goods). In addition, the Client may incur storage charges estimated on a daily basis.
3.4 Delivery of Goods and Components 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.
3.5 The failure of Contractor to deliver shall not entitle either party to treat this agreement as repudiated. The Contractor shall not be liable for any loss or damage whatsoever due to the failure by the Contractor to deliver the Goods due to reasons beyond the Contractor’s control.
4.1 The Client shall inspect the Goods and Components on delivery and shall within seven (7) days of delivery notify the Contractor in writing of any alleged damage or failure to comply with the description. The Client shall afford the Contractor an opportunity to inspect the Goods and Components within a reasonable time following delivery if the Client believes the Goods and Components are defective in any way. If the Client shall fail to comply with these provisions the Goods and Components shall be conclusively presumed to be in accordance with these terms and conditions and free from any defects.
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 five percent per annum (35% 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.
6.1 On completion of the Work (and if 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.
7.1 The Client must pay an amount equivalent to the amount payable by the Contractor as GST on supply made by the Contractor to the Client under this agreement.
8.1 The risk in the Goods and Components shall pass to the Client upon delivery to the Client or to a third party nominated by the Client.
9.1 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.
10.1 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 on-sold 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.
11.1 The warranty on workmanship shall be for a period as specified in the Quote or Work Authorisation.
11.2 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.
11.3 The Client shall indemnify the Contractor against all warranties attached to products used in the Contract, but purchased independently of the Contractor.
11.4 The Contractor warrants that the work will be carried out in accordance with all relevant laws in an appropriate and skilful way, in
accordance with the plans and specifications (where relevant) using materials that are good and suitable for the purpose for which they are intended to be used.
11.5 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.
11.6 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.
12.1 Non-excludable Rights
The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the 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”).
12.2 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 NonExcludable Right is limited, at the Contractor’s option, to the supplying of the Goods and/or any services again or payment of the cost of having the Goods and/or services supplied again.
12.3 Indirect Losses
Notwithstanding any other provision of these terms and conditions, the Contractor is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the 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.
12.4 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.
13.1 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.
13.2 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.
Security and Charge
14.1 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.
15.1 Client Acknowledgment
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.
15.1a Natural Stone Acknowledgment
The Contractor cannot be held liable for the natural characteristics of any natural stone during any step of the fabrication & installation process, this includes post installation, as well. The Contractor is responsible for assisting the customer in selecting a stone, measuring, fabricating & installing the stone.
Natural stones can consist of inclusions, blemishes, minor fissures, voids and many other natural characteristics that cannot be avoided when doing the slab layout. Customers should inspect the stone prior to fabricating to ensure that they like the overall surface of the stone as FCMG does not re-finish the surface of the stone. Of course, major blemishes/defects such as a random spot in an overall consistent colored slab and/or cracks will be avoided as best as possible.
Natural stones expand & contract throughout the year just as most items do. If items press against the stone while expanding and if the stone is also expanding, the pressure can cause cracking.
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.
15.3 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.