Residential Projects Terms and Conditions
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Contractor” means One Source Flooring Pty Ltd A.C.N. 618 621 702 as trustee for Creasey Family Trust, (“OSF”) its successors and permitted and with the written authority of OSF who agrees to be bound to the terms and conditions of this document and not deny its obligations to be so bound.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the written authority of the Client requesting the Contractor to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
- (a) if there is more than one Client, is a reference to each Client jointly and severally; and
- (b) if the Client is a partnership, it shall bind each partner jointly and severally; and
- (c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
- (d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Quote” means the quote annexed to these terms and conditions contained herein.
1.5 “Works” means all Works (including consultation and/or installation services) or Materials supplied 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).
1.6 “Worksite” means the address nominated by the Client to which the Materials are to be supplied by the Contractor and at which the works are to be performed.
1.7 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.8 “Price” means the Price payable (plus any GST) for the Works as agreed between the Contractor and the Client in accordance with clause 6 below.
1.9 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
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 delivery of any Works.
2.2 Upon acceptance of the Quote, the Client confirms that:
- (a) The details within this Quote are correct at all times subject to sub-paragraphs (e) & (g) ;
- (b) The product/s and their colours are correct;
- (c) The Client agrees to pay a deposit of 50% of the total cost prior to installation as known at the date of signing this document on the date the document is signed by both parties;
- (d) The Client agrees to pay the balance of the Invoice (as amended) post-installation;
- (e) The Client acknowledges that not all costs may be included within this Quote, e.g. floor preparation may not be quoted on until existing sub-floor is inspected and/or removed;
- (f) The Client agrees to pay any differences that cannot be discovered during the measure and quote stage, e.g. differences in floor preparation that can only be discovered once the existing flooring is tested or removed.
- (g) The Client understands if any variations are required, the costs may increase and the existing Quote will be updated;
- (h) The Client understands that the colour shade in the product purchased may vary from the sample;
- N.B. (i) The Client understands that cancellations are subject to our Returns and Refund Policy at the following link: https://onesourceflooring.com.au/terms-privacy/returns-and-refund-policy/
- (j) The Client understands that if they elect to book the installation in stages and the final stage is not booked within 3 months from the date of the order of the flooring, all monies paid towards the flooring will be forfeited and will not be refunded; and
- (k) The Client understands that all flooring jobs require 8-10% product wastage and this wastage is non-refundable. The Contractor recommends retaining all wastage in any packaging in a dry space to be used to replace any post-installation issues that may incur in the future. For carpet, the Contractor recommends keeping any offcuts. Alternatively, this can be removed from your property for a small fee. Please discuss any costs with the Contractor.
2.3 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail to the extent of the inconsistency.
2.4 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.5 The Contractor does not warrant the Materials will be available through the supplier/manufacturer and if it is found the Material is unavailable, will refund any deposit made within a reasonable time.
2.6 Where the Contractor gives any advice, recommendation, information, assistance or service provided by the Contractor in relation to Materials or Works supplied, such advice is given in good faith to the Client, or the Client’s agent and is based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the Contractor. Where 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.
2.7 In the event that the Materials and/or Works provided by the Contractor are subject to an insurance claim that the Client has made, then the Client agrees to honour their obligation for payment for such transactions invoiced by the Contractor and shall ensure payment is made by the due date irrespective of whether the insurance claim is successful or not; and further, will honour payment of any portion of the invoice that may be declined by the insurance company.
2.8 In the event that the Contractor is required to provide the Works urgently, that may require the Contractor’s staff to work outside normal business hours (including but not limited to working through lunch breaks, weekends and/or Public Holidays) then the Contractor reserves the right to charge the Client additional labour costs, unless otherwise agreed between the Contractor and the Client.
2.9 The Client acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, the Contractor reserves the right to vary the Price with alternative Materials as per clause 6.2, subject to prior confirmation and agreement of both parties. The Contractor also reserves the right to halt all Works until such time as the Contractor and the Client agree to such changes. The Contractor shall not be liable to the Client for any loss or damage the Client suffers due to the Contractor exercising its rights under this clause.
2.10 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that the Contractor shall, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
- (a) resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this Contract; and/or
- (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Works.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Authorised Representatives
4.1 The Client acknowledges that the Contractor shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to the Contractor, that person shall have the full authority of the Client to order any Works, and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to the Contractor, for all additional costs incurred by the Contractor, (including the Contractor’s profit margin) in providing any Works, or variation/s requested thereto by the Client’s duly authorised representative.
5. Change in Control
5.1 The Client shall give the Contractor no 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, change of trustees, 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.
6. Price and Payment
6.1 At the Contractor’s sole discretion the Price shall be either:
(a) as indicated on Invoices/Quotes (subject to clause 6.2) provided by the Contractor to the Client in respect of Works performed or Materials supplied; or
(b) the Price as at the date of delivery of the Works according to the Contractor’s current price list.
6.2 The Contractor reserves the right to change the Price:
- (a) if a variation to the Materials which are to be supplied is requested; or
- (b) if a variation to the Works originally scheduled is requested; or
- (c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, the requirement to remove the existing flooring to determine the floor preparation work required for installation, limited access to the site, obscured site defects which require remedial work, prerequisite work by any third party not being completed, or change of design, remedial work required due to existing workmanship being of a poor quality or non-compliant etc.) which are only discovered on commencement of the Works; or
- (d) if during the course of the Works, the Materials cease to be available from the Contractor’s third-party suppliers, then the Contractor reserves the right to provide alternative Materials; or
- (e) in the event of increases to the Contractor in the cost of labour or materials which are beyond the Contractor’s control.
6.3 Variations will be charged for on the basis of the Contractor’s Variation Form, and will be detailed in writing, and shown as variations on the Contractor’s Variation Form. The Client shall be required to respond to any variation submitted by the Contractor at the time of the Variation Consultation. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion (when invoiced).
6.4 At the Contractor’s sole discretion a non-refundable deposit may be required as per clause 6.5.
6.5 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) deposit before commencement of the Works;
- (b) balance on completion of the Works; or
- (c) 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 but not yet installed. Unless otherwise specified, such progress payment claims shall be fifty percent (50%) for all orders upon the acceptance of this Contract and the final fifty percent (50%) due within twenty four (24) hours after installation; or
6.6 Should the Client cancel or delay the Works, they must advise at least 5 days in advance or the Contractor may impose a cancellation fee of $500.
6.7 Payment may be made by cash, in-person or over the phone via credit card, electronic/on-line banking as per the bank account noted on the Quote, or by any other method as agreed to between the Client and the Contractor.
6.8 The Contractor may in its discretion allocate any payment received from the Client towards any invoice that the Contractor determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Contractor may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Contractor, payment will be deemed to be allocated in such manner as preserves the maximum value of the Contractor’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
6.9 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 Quote because part of that Quote is in dispute.
6.10 Unless otherwise stated the Price does include GST. 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 contract for the sale of the Materials. 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.
7. Supply of Materials
7.1 If the Client chooses to purchase flooring and does not require installation of, it is the responsibility of the Client to ensure that the meterage/take off is correct. Any surplus stock is non-refundable and the Contractor cannot guarantee that their supplier/manufacturer will have additional stock if required. If not, the Contractor will, to the best of their ability, work with the supplier/manufacturer to source the best alternative.
7.2 The Client acknowledges there will not be refunds on delivery fees if the Materials are returned for a change of mind or an incorrect selection has been made (whether pertaining to size or colour).
7.3 The Contractor does not allow a return or replacement of goods where the damage has occurred after delivery for reasons not related to the condition of the goods at the time of supply.
8. Provision of the Works
8.1 The commencement of the works shall be regulated to meet both the requirements of the client and the availability of other persons or companies of the contractor reasonably engages to perform the work and the contractor may require an extension of time as is set out in the clauses as follows.
8.2 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 failure by the Client to:
- (a) make a selection; or
- (b) have the Worksite ready for the Works; or
- (c) notify the Contractor that the Worksite is ready.
8.3 The costs of the delivery is included in the price quoted by the contractor for the work.
8.4 The Contractor may deliver the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
8.5 Should additional time or Materials be required, the Contractor will discuss with the Client and the cost of such time and Materials.
8.6 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 re-supplying the Works at a later time and date, and/or for storage of the Materials.
8.7 The Contractor will ensure that the seams are finished well, but do not guarantee complete invisibility. As a result of installation, there may be slight damage to paint work or surfaces and the Client agrees to indemnify the Contractor in respect of all and any claims to the seams and paint work or surfaces.
9. Worksite Access and Condition
9.1 All rubbish generated by the Contractor will be placed in a designated area appointed by the Client but the responsibility of removal of same is the Client or the Client’s agent, unless otherwise agreed and paid for under the terms of the quote provided to the client.
9.2 It is the intention of the Contractor and agreed by the Client that:
- (a) the Client shall ensure that the Contractor has clear and free access to the Worksite at all times to enable them to undertake the Works (including for the delivery and installation of the Materials). The Contractor shall not be liable for any loss or damage to the Worksite (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of the Contractor; and
- (b) it is the Client’s responsibility to provide the Contractor, while at the Worksite, with adequate access to available water, electricity, light, toilet and washing facilities.
- (c) Should the Worksite be unsafe or the conditions of installation not met (e.g. when the Client engages a separate Contract for floor preparations), and the Contractor discovers this upon arrival, then the Client agrees to pay to the Contractor a fee of $500, which is an additional fee separate to the Quote.
10.1 In the event the Client gives information relating to measurements and quantities of Materials required in completing the Works, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or the Contractor places an order based on these measurements and quantities. Any surplus stock is non-refundable and returns will not be accepted. Neither will there be refunds of delivery fees if the Client returns goods due to a change of mind or incorrect selection.
10.2 The Contractor does not guarantee that the supplier/manufacturer will have additional stock if required, but may, at their complete discretion, endeavour to seek an alternative Material. The Contractor accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
11.1 If the Contractor retains ownership of the Materials under clause 14 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 either:
- (i) the Client or the Client’s nominated carrier takes possession of the Materials at the Contractor’s address; or
- (ii) 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).
(b) where the Contractor is to both supply and install Materials then the Contractor shall maintain public liability insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
11.2 Notwithstanding the provisions of clause 11.1 if the Client specifically requests the Contractor to leave Materials outside the Contractor’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.
11.3 The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe structures or risk) that the Contractor reasonably forms the opinion that the Client’s premises is not safe for the Works to proceed then the Contractor shall be entitled to delay the provision of the Works (in accordance with clause 8.2) until the Contractor is satisfied that it is safe for the installation.
11.4 In the event asbestos or any other toxic substances are discovered at the property, it is the Client’s responsibility to ensure the safe removal of the same. The Client further agrees to indemnify the Contractor against any costs incurred by the Contractor as a consequence of such discovery including the Contractor’s right to charge the Client for any stand-down time. Under no circumstances will the Contractor handle removal of asbestos products.
11.5 If under any circumstances the Works are delayed to the failings of any third party to complete preliminary Works, or the Worksite is unsafe as determined by the Contractor, then the Contractor reserves the right;
- (a) vary the quoted price as per clause 6.2; and/or
- (b) charge the Client for any stand-down that has been incurred to the amount of $500.
11.6 Holes, cut outs and cutting of the Materials may weaken the strength of the Materials and although it’s unlikely, cracking may occur. The Contractor accepts no responsibility against cracks occurring after such Materials (that are subject to holes and cutouts) are installed.
11.7 The Client acknowledges that Materials supplied may:
- (a) exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
- (b) expand, contract or distort as a result of exposure to moisture, heat, cold, weather; and
- (c) mark or stain if exposed to certain substances; and
- (d) be damaged or disfigured by moisture, impact or scratching.
11.8 Whilst the Contractor will make every effort to match sales samples to the finished Materials, the Contractor accepts no liability whatsoever where such samples differ to the finished Materials supplied.
11.9 The Client agrees to be present at the Worksite when and as reasonably requested by the Contractor and its employees. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between the Contractor and the Client, any costs will be invoiced to the Client as an extra.
11.10 It is the Clients responsibility to;
- (a) make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between the Contractor and the Client, any additional costs will be invoiced to the Client in accordance with clause 6.2; and
- (b) fully disclose any information that may affect the Contractor’s installation procedures; and
- (c) provide adequate dust sheets to protect the Client’s furniture and décor. The Contractor will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any installation procedures; and
- (d) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by the Contractor in this regard.
11.11 The Contractor is not insured to remove furniture or fittings and will not do so.
11.12 The Contractor shall not be liable for any defect or damage resulting from incorrect or faulty installation carried out by any other third party.
11.13 The Contractor shall not be held responsible for any damage to the Materials or delays to delivery caused by outside agents. Where the Client requests the Contractor to repair such damage then the Contractor reserves the right to charge the Client for any costs incurred in rectifying such damage.
12. Moisture Testing
12.1 “Moisture Testing” means, where appropriate, the carrying out of ‘Tests’ using the following ‘instruments’;
- Moisture Encounter Test; detects, locates and evaluates moisture conditions within various building materials by non-destructively measuring the electrical impedance.
- Moisture Metre Test; measures moisture by scan or pin (using an in situ probe) that provides information to minimise moisture-related flooring problems and failures.
One Source Flooring does not claim to be experts in moisture testing. Testing is performed based on the instructions specified by the ‘instrument’ Manufacturer within their Product Manual. Any results interpreted from these instruments are also based on these guides and at no point is One Source Flooring liable for future flooring outcomes based on these results. In particular, if the customer does not follow floor preparation recommendations from One Source Flooring based on these readings i.e. installing a moisture barrier.
We recommend that all customers refer to Our Complete Guide to Flooring Installation to ensure that all relevant steps are followed to minimise any potential moisture-related issues prior to and post installation.
13. Hidden Services
13.1 Prior to the Contractor commencing any work the Client must advise the Contractor of the precise location of all services on the Worksite and clearly mark the same. The mains and services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the Worksite.
13.2 Whilst the Contractor will take all care to avoid damage to any services 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 services not precisely located and notified as per clause 12.1.
14. Compliance with Laws
14.1 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 laws (WHS) relating or any other relevant safety standards or legislation pertaining to the Works.
14.2 Both parties acknowledge and agree that Works will be provided in accordance with Australian Standard AS 1884-2012 Floor coverings – Resilient sheet and tiles – and will also be installed to meet individual manufacturer’s specifications.
14.3 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
14.4 The Contractor shall comply with the terms and conditions of all such consents and approvals in so far as such consents and approvals relate to the carrying out of the Works.
15.1 The Contractor and the Client agree that 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 of its other obligations to the Contractor.
15.2 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.
15.3 It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 14.1:
- (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;
- (c) 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;
- (d) the Client must 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;
- (e) 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;
- (f) 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;
- (g) the Contractor may recover possession of any Materials in transit whether or not delivery has occurred;
- (h) 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;
- (i) the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
16. Personal Property Securities Act 2009 (“PPSA”)
16.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
16.2 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 collateral (account) – being a monetary obligation of the Client to the Contractor for Works – that have previously been supplied and that will be supplied in the future by the Contractor to the Client.
16.3 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 15.3(a)(i) or 15.3(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 Materials 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 Materials and/or collateral (account) in favour of a third party without the prior written consent of the Contractor;
(e) immediately advise the Contractor of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
16.4 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.
16.5 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.
16.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
16.7 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.
16.8 The Client shall unconditionally ratify any actions taken by the Contractor under clauses 15.3 to 15.5.
16.9 Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
17. Security and Charge
17.1 In consideration of the Contractor agreeing to supply the Materials, 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).
17.2 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.
17.3 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 16 including, but not limited to, signing any document on the Client’s behalf.
18. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
18.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify the Contractor in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to inspect the Materials or to review the Works provided.
18.2 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).
18.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
18.4 The contractor refers to the terms and conditions contained in it’s contemporaneous 5 year installation guarantee and states that it’s liability in respect of any warranties as regards quality or suitability of the materials or the works are limited by the terms of the installation guarantee.
18.5 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.
18.6 Any requirement of the contractor to replace materials under this clause or under any relevant legislation is limited by reference to the Returns and Refunds policy to which specific reference is made in this document.
18.7All of the succeeding clauses to this clause 17 are at all times subject to the Returns and Refunds Policy which prevails to the extent of any inconsistency with the terms of these provisions to which specific reference is made in this document.
18.8 If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying 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 and Materials which have been provided to the Client which were not defective.
18.9 When requesting a refund or return (subject to agreement of the Contractor), the Client must provide proof of purchase and advise how payment was made at the time, as this will determine how a refund is processed. If the Client has paid by debit or credit card, the Contractor will refund the same card used to pay for the deposit/order. If the Client returns to the Contractor’s Showroom or warehouse for a refund, the Client must bring the same card with them.
18.10 If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Materials 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.
18.11 Subject to this clause 17, returns will only be accepted provided that:
- (a) the Client has complied with the provisions of clause 17.1; and
- (b) the Contractor has agreed that the Materials are defective; and
- (c) the Materials are returned within a reasonable time at the Client’s cost; and
18.12 Notwithstanding clauses 17.1 to 17.12 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 properly maintain or store any Materials as outlined in the manufacture’s care and maintenance guides provided by OSF to the client.
- (b) the Client using the Materials for any purpose other than that for which they were designed;
- (c) the Client continuing to use any Materials 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.
18.13 If carpet is purchased from the Contractor and it has been cut in readiness for installation, the Client acknowledges they will not be refunded under any circumstances.
18.14 If any hard flooring (timber, hybrid, vinyl and laminate) has left the Contractor’s warehouse, the Contractor will not accept any returns. It is possible for the Contractor to process a refund, at their discretion, however, re-handling fees will apply as per clause 16.11.
18.15 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.
18.16 Subject to clause 17.1, customised, or non-stocklist items or Materials made or ordered to the Client’s specifications are not acceptable for credit or return.
18.17 If, the Client changes their mind and the flooring is in transit to, or has arrived at the Contractor’s warehouse, the Client will be required to pay all costs incurred by the Contract, which include, but not limited to:
- (a) The cost of the flooring;
- (b) The transport costs for the Client’s original flooring to the Contractor’s warehouse;
- (c) The transportation costs for the Client’s original flooring order to be returned to the supplier/manufacturer;
- (d) A 30% re-handling fee;
- (e) The transport costs of the Client’s new flooring;
- (f) Any fees imposed by the supplier/manufacturer for the return of the original flooring or the order of the new flooring;
- (g) The difference in the price if the new flooring is a higher cost than the original flooring, and these costs may be deducted from the deposit paid by the Client. For any avoidance of doubt, the ownership of the flooring, whether it be the original flooring or the new flooring will not pass, unless in accordance with clause 13.
18.18 The Contractor does not allow a return or replacement of the Materials where the damage has occurred after delivery for reasons not related to the condition of the Materials at the time of supply.
18.19 The Contractor offers a 5 Year Installation Guarantee, the terms of which can be found as follows: https://onesourceflooring.com.au/terms-privacy/5-year-installation-guarantee/
19. Default and Consequences of Default
19.1 Interest on overdue invoices/Quotes shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of five percent (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.
19.2 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 costs to engage debt collection agencies, the Contractor’s contract default fee, and bank dishonour fees).
19.3 Further to any other rights or remedies the Contractor may have under this Contract, if a 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 17 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.
19.4 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.
20.1 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 supply 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.
20.2 The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are 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 Works already performed. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
20.3 In the event that the Client cancels the delivery of Works 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, transport costs, a 30% re-handling fee, fees incurred from the supplier/manufacturer, etc).
20.4 Cancellation of orders for products 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.
21. Unpaid Seller’s Rights
21.1 Where the Client has left any item with the Contractor for repair, modification, exchange or for the Contractor to perform any other service in relation to the item and the Contractor has not received or been tendered the whole of any monies owing to it by the Client, the Contractor shall have, until all monies owing to the Contractor are paid:
- (a) a lien on the item; and
- (b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
21.2 The lien of the Contractor shall continue despite the commencement of proceedings, or judgment for any monies owing to the Contractor having been obtained against the Client.
22. Service of Notices
22.1 Any written notice given under this Contract shall be deemed to have been given and received:
- (a) by handing the notice to the other party, in person;
- (b) by leaving it at the address of the other party as stated in this Contract;
- (c) by sending it by registered post to the address of the other party as stated in this Contract;
- (d) if sent by email to the other party’s last known email address.
22.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
23.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Contractor may have notice of the Trust, the Client covenants with the Contractor as follows:
- (a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
- (b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
- (c) the Client will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
24.1 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.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which the Contractor has its principal place of business, and are subject to the jurisdiction of the courts in that state.
24.3 Subject to clause 17, 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 Works).
24.4 The Contractor may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
24.5 The Client cannot licence or assign without the written approval of the Contractor.
24.6 The Contractor may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, 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.
24.7 The Client agrees that the Contractor may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to 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.
24.8 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.
24.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.