1.1 “Contractor” means Rojo Corporation T/A Guaranteed Tiling Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Guaranteed Tiling Pty Ltd.
1.2 “Client” means the person/s requesting the Contractor to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
1.3 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by the Contractor in the course of it conducting, or supplying to the Client, any Services.
1.4 “Services” means all Services supplied by the Contractor to the Client at the Client’s request from time to time.
1.5 “Price” means the price payable for the Services as agreed between the Contractor and the Client in accordance with clause 4 of this contract.
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 Services provided by the Contractor.
2.2 These terms and conditions may only be amended with the Contractor’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and the Contractor.
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 any invoice provided by the Contractor to the Client; or
(b) the Contractor’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of ninety (90) days.
4.2 The Contractor reserves the right to change the Price if a variation to the Contractor’s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties or as a result of increases to the Contractor in the cost of materials and labour) will be charged for on the basis of the Contractor’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At the Contractor’s sole discretion a deposit may be required.
4.4 Time for payment for the Services 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 Services;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is ten (10) days following the date of any invoice given to the Client by the Contractor.
4.5 Payment may be made by cash, cheque, EFTPOS, 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 supply by the Contractor under this or any other agreement for providing the Contractor’s Services. 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. Delivery of Services
5.1 At the Contractor’s sole discretion delivery of the Services shall take place when the Services are supplied to the Client at the Client’s nominated address.
5.2 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.3 The Contractor may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
5.4 Any time specified by the Contractor for delivery of the Services 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 Services 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 Services as agreed solely due to any action or inaction of the Client then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
6.1 Irrespective of whether the Contractor retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as the Contractor may repossess the Incidental Items. The Client must insure all Incidental Items on or before delivery.
6.2 The Contractor reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure in accordance with clause 6.1.
7. Client’s Responsibilities
7.1 It shall be the Client’s responsibility to provide the Contractor with clear and unobstructed access to the nominated work area, and adequate parking facilities for the Contractor’s vehicles and trailers close to the entrance of the site, in order for the Contractor to deliver the Services. In the event that the work area is not cleared, or parking facilities are not provided then:
(a) the Contractor may (at their sole discretion) deliver the Services around the obstructed area at the absolute risk of the Client; and
(b) the Contractor shall not be liable for any damage, howsoever caused; and
(c) the Contractor shall be entitled to charge the Client parking fees and additional labour costs; or
(d) the Contractor shall be entitled to full payment of the Price, without any deduction by the Client.
7.2 If the Client requires the Contractor return to deliver the Services in the previously obstructed area, then the Contractor shall be entitled to treat this as a Client requested variation, as per clause 4.2.
7.3 On completion of the Services the Contractor shall remove from the site all rubbish, demolished or dismantled material, subject to reasonable access to the site being provided.
8. Underground Locations
8.1 Prior to the Contractor delivering the Services the Client must provide to the Contractor written details of the precise location of all electrical cables, copper piping, and items of like nature. Whilst the Contractor will take all care to avoid damage to any electrical cabling or piping the Client agrees to indemnify the Contractor in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to electrical cabling or piping not precisely located and notified.
8.2 The Client acknowledges that any fixture that has been built on top of items to be removed may be damaged irrespective of the care taken by the Contractor, and the Client agrees to indemnify the Contractor should this situation arise.
8.3 The Contractor’s quotation does not include the cost of removing any fixtures, fittings or furnishings, other than what is specified. If there is a requirement for such work to be done this shall be treated as a Client requested variation, as per clause 4.2 and the Client acknowledges that the Contractor shall not be held responsible for any damage caused to such fixtures, fittings, furnishings, or the walls and ceilings, by such removal.
9. Apartments, Townhouses and Units
9.1 It shall be the Client’s responsibility to ensure:
(a) the Contractor is advised of any laws, rules or regulations that may affect the completion of the works where the work site is operated by on-site management and/or Body Corporate; and
(b) on-site management and/or Body Corporate are given appropriate notice, as per the prescribed Body Corporate Rules; and
(c) any preparation required for the works (i.e. covers for lifts, isolating smoke alarms, etc) is pre-arranged with the on-site management and/or Body Corporate.
9.2 The Client acknowledges and agrees that any costs of cleaning, which may be required as a result of the works undertaken, is payable by the Client.
9.3 The Contractor shall make all endeavours to ensure all jack-hammering will be kept inside the noise allocation period, in accordance with the Body Corporate Rules.
10.1 The Contractor and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
(a) the Client has paid the Contractor all amounts owing for the Services; 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.
10.2 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 ownership or rights in respect of the Incidental Items shall continue.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 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 Incidental Items that have previously been supplied and that will be supplied in the future by the Contractor to the Client.
11.3 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 11.3(a)(i) or 11.3(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 Incidental Items charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items in favour of a third party without the prior written consent of the Contractor.
11.4 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.
11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by the Contractor, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Client must unconditionally ratify any actions taken by the Contractor under clauses 11.3 to 11.5.
11.9 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.
12. Security and Charge
12.1 In consideration of the Contractor agreeing to supply Services, 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).
12.2 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.
12.3 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 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect the Contractor’s Services on completion of the Services and must within forty eight (48) hours days notify the Contractor in writing of any evident defect in the Services or Incidental Items provided (including the Contractor’s workmanship) or of any other failure by the Contractor to comply with the description of, or quote for, the Services which the Contractor was to supply. The Client must notify any other alleged defect in the Contractor’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to review the Services or Incidental Items that were provided.
13.2 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 (Non-Excluded Guarantees).
13.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 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 Services. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 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.
13.6 If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying the Services 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 Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Client which were not defective.
13.7 If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defective Services or Incidental Items 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) otherwise negated absolutely.
13.8 Notwithstanding clauses 13.1 to 13.7 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) interference with the Services by the Client or any third party without the Contractor’s prior approval;
(b) the Client failing to follow any instructions or guidelines provided by the Contractor;
(c) fair wear and tear, any accident, or act of God.
14. Default and Consequences of Default
14.1 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.
14.2 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 collection agency costs, and bank dishonour fees).
14.3 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 supply of Services 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.
14.4 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, 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.
15.1 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any money paid by the Client for the Services. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of the Services the Client shall be liable for any 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).
16. Privacy Act 1988
16.1 The Client agrees for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Contractor.
16.2 The Client agrees that the Contractor may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other purposes as shall be agreed between the Client and Contractor or required by law from time to time):
(a) the provision of Services; and/or
(b) the marketing of Services by the Contractor, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.
16.5 The Contractor may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that the Contractor is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of the Contractor, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by the Contractor has been paid or otherwise discharged.
17. Building and Construction Industry Payments Act 2004
17.1 At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
17.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
18.1 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’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.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the courts of Queensland.
18.3 Subject to clause 13 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 of the Services).
18.4 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.
18.5 The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.6 The Client agrees that the Contractor may amend these terms and conditions at any time. If the Contractor makes a change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for the Contractor to provide Services to the Client.
18.7 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.
18.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.