Terms and Conditions – Design and Supply of Kitchen Materials
Application
These Terms and Conditions apply to:
the provision of design services for a “made to order” kitchen (Works); and
the supply of kitchen cabinetry, benchtops, hardware, panels, appliances and other kitchen materials (Materials),
by the Supplier to the Customer. These Terms and Conditions prevail over any inconsistent terms proposed by the Customer unless expressly agreed in writing by the Supplier.
Deposit and Payments
Upon acceptance of this Contract, the Customer must pay to the Supplier the deposit as specified in the Contract Particulars.
Following completion of the final site measure and confirmation of specifications (Check Measure), the deposit becomes non-refundable and the Customer must pay to the Supplier the progress payment as specified in the Contract Particulars. The progress payment must be paid prior to commencement of manufacture or procurement of the Materials.
The progress payment becomes non-refundable after commencement of manufacture or procurement of the Materials and the balance of the Contract Price is payable prior to delivery unless otherwise agreed by the Supplier in writing.
All payments are to be made via electronic funds transfer, BPAY or credit card (unless otherwise agreed by the Supplier in writing).
The Supplier may suspend performance until any overdue amount is paid in full.
The Supplier will charge interest on overdue amounts at the interest rate payable on Supreme Court judgments from time to time.
The Customer must pay all reasonable costs incurred by the Supplier:
for dishonoured or reversed payments; and
in recovering overdue amounts, including debt collection fees (and commissions) and legal costs on a solicitor-client basis.
Cooling off
The:
Customer may terminate this Contract for convenience by written notice to the Supplier within ten (10) business days after the Contract Date; and
Supplier may terminate this Contract for convenience by written notice to the Customer within ten (10) business days after the Contract Date.
If the Contract is terminated during the period specified in clause 3(a) then the Supplier will refund all monies paid by the Customer.
Check Measure and variations
As part of the Works, the Customer must provide reasonable access to the site to enable completion of the Check Measure on the date specified in the Contract Particulars.
Whilst the Supplier will provide reasonable guidance and suggestions, final approval of all plans and specifications relating to the Works remains the sole responsibility of the Customer.
The Customer is responsible for ensuring that all site dimensions, services, structural works and preparatory works are ready and suitable for the Materials.
Because the Materials are “made to order”, the Customer acknowledges and agrees that the Contract Price may be subject to variations which are necessary as a result of the Check Measure.
The Supplier may make minor modifications to the specifications for the Materials without notifying the Customer where such modifications are reasonably required as a result of the Works, provided that such modifications do not materially affect the appearance, design and quality of the Materials.
If, following the Works, the Supplier becomes aware that the Material specifications, as estimated at the Contract Date, must change:
the Supplier will, where necessary, redesign the Materials and must notify the Customer of the details of any proposed variation to this Contract;
the parties must (acting reasonably) agree on any such variation to this Contract, before production of the Materials commences; and
in the event that the parties cannot agree on the variation, then either party is entitled to terminate this Contract and the Supplier will refund all monies paid by the Customer.
Manufacture or procurement of the Materials will commence after the Customer signs off final production plans via the customer portal.
Any variations requested by the Customer after the Customer sign off via the customer portal are subject to the written approval of the Supplier and may result in additional costs and revised delivery timeframes.
Delivery
Following the Check Measure (and any subsequent agreement regarding variations), the parties will agree a Delivery Date for the Materials, which will be a date that is four (4) to eight (8) weeks after the Customer signs off final production plans via the customer portal.
Delivery dates are estimates only and are subject to material availability, manufacturing requirements and matters beyond the Supplier’s reasonable control.
The Customer will use reasonable endeavours to enable delivery to take place on the agreed delivery date, including ensuring the delivery site is safe, clear, accessible and ready for delivery. The Customer must disclose any access restrictions (including stairs, lifts, parking or site conditions). Where restrictions are not disclosed and access is unsuitable or deemed unsafe, the Customer must pay a rescheduling fee of $300 (incl. GST).
If the Customer fails to accept delivery on the agreed delivery date without at least three (3) business days’ notice to the Supplier, the Customer must pay a failed-delivery fee of $300 (incl. GST), a rescheduling fee of $300 (incl. GST) and the Supplier’s reasonably incurred storage fees (not to exceed $100 (incl. GST) per day) for the period from the agreed delivery date (or alternative delivery date) until the date the Materials are delivered or until the Supplier terminates this Contract.
If despite the Supplier’s reasonable endeavours, delivery has not occurred within six (6) months of the agreed delivery date, the Supplier may terminate the Contract and, in addition to the amounts payable by the Customer under clause 5(d), the Supplier may retain possession of (and resell) all Materials.
Risk in the Materials passes to the Customer upon delivery to the nominated site or collection by the Customer or its carrier.
Title to the Materials remains with the Supplier until all amounts owing have been paid in full.
Termination
The contract may only be terminated as follows:
by either party if the other party breaches this Contract and that breach is not capable of remedy or, if capable of remedy, the breaching party does not remedy the breach within twenty (20) business days of being notified in writing of the breach;
by either party immediately upon written notice if the other party enters into bankruptcy or any form of insolvency;
if the Supplier, having used reasonable endeavours, is prevented from carrying out a Check Measure within:
3 months of the Contract Date (or such later date specified in the Contract Particulars or agreed by the Supplier in writing) then the Supplier may by written notice to the Customer request that the Progress Payment be paid. If, having given that notice, the Supplier does not receive payment of the Progress Payment within five (5) business days, the Supplier may terminate this Contract by written notice to the Customer (unless the delay is caused solely by the Supplier); or
6 months of the Contract Date (or such later date specified in the Contract Particulars or agreed by the Supplier in writing) then the Supplier may terminate this Contract by written notice to the Customer, unless the delay is caused solely by the Supplier; or
by the Supplier immediately upon written notice if the Materials have not been delivered within twelve (12) months after the Contract Date (unless the delay is caused solely by the Supplier).
Upon termination, the Supplier may retain amounts reasonably required to cover costs incurred, commitments made, administrative expenses and any losses arising from the termination (or such other amount permitted by applicable law), with any remaining balance to be refunded to the Customer.
No Installation Services
The Supplier supplies Materials only and does not undertake installation, supervision of installation, construction, fitting, site works, design certification, stone, glass or any trades work unless expressly agreed in a separate written contract. Any related introductions or cost estimates provided by the Supplier are indicative only and do not constitute recommendations.
The Customer is solely responsible for engaging and managing suitably qualified installers and contractors.
To the fullest extent permitted by law, the Supplier accepts no responsibility or liability for:
the acts or omissions of third parties; or
any loss or damage arising from installation or third-party works.
Warranty and Liability
The Supplier warrants that the Materials will comply with any express manufacturer’s warranty and any non-excludable rights and guarantees provided under law, including (as applicable) the Australian Consumer Law and any other laws applicable to the State or Territory in which the Works and Materials are supplied.
Except for rights that cannot lawfully be excluded, all other warranties, representations and conditions are excluded.
Where the Supplier breaches a consumer guarantee and the law permits limitation of liability, the Supplier’s liability is limited, at its option, to:
replacing the Materials;
supplying equivalent materials;
repairing the Materials; or
paying the cost of replacing or repairing the Materials.
The Materials may incorporate decorative board, laminate, engineered timber and timber-veneered finishes and metal finishes (including on tapware and handles). Variations in colour, pattern, texture, grain and finish are inherent to such materials and the Supplier cannot guarantee that the Materials supplied will be consistent or evenly matched in colour, pattern, texture, grain or finish across batches, samples or showroom displays.
To the maximum extent permitted by law, the Supplier is not liable for any indirect, consequential, special or economic loss, including loss of profit, loss of opportunity, loss of revenue, delay costs or third-party claims.
To the maximum extent permitted by law, the Supplier’s aggregate liability arising out of or in connection with the supply of the Materials shall not exceed the amount paid by the Customer under this Contract.
The Supplier will maintain insurance to the extent required by law.
Statutory Compliance
This Contract is intended to operate as a contract for design and supply of goods only.
To the extent necessary to comply with any applicable legislation, any provision of this Contract that would otherwise be void, unenforceable or inconsistent with that legislation will be reduced, severed or read down accordingly. Nothing in this Contract excludes, restricts or modifies any right, guarantee, warranty or remedy which cannot lawfully be excluded, restricted or modified.
Force Majeure
The Supplier is not liable for any delay or failure to perform caused by events beyond its reasonable control, including supply chain disruptions, transport delays, labour shortages, natural disasters, government action or other unforeseen events.
Subcontracting
The Supplier may subcontract any of its obligations under this Contract.
Intellectual Property
All intellectual property rights in any drawings, plans, designs, specifications, quotations and other materials supplied by the Supplier remain the property of the Supplier (or its licensors). The Customer is granted a non-exclusive licence to use such materials solely for the purpose of receiving and using the Materials and must not reproduce, disclose or use them for any other purpose without the Supplier’s prior written consent.
Confidentiality
Each party must keep confidential and not disclose any non-public commercial, technical or business information received from the other party, except as required to perform this contract, with the other party’s consent, or as required by law. This obligation does not apply to information that is publicly available (other than through a breach of this clause) or lawfully obtained from a third party. This clause survives termination of the contract.
Taxes
The Customer acknowledges and agrees that, except where this contract expressly provides that amounts are GST inclusive, the Supplier can charge and the Customer must pay, the amount of any taxes at the same time as the supply (and in case of GST, subject to the Supplier providing to the Customer a valid tax invoice).
Dispute Resolution
Before commencing legal proceedings or other external dispute resolution procedures in relation to a dispute under this Contract:
the parties must first meet and attempt to resolve the reasons for dissatisfaction or dispute within five (5) business days; and
if following the meeting the Issue is unresolved, the parties must resolve the dispute by reference to the procedures in relevant Fair Trading or (as applicable) domestic building dispute tribunal, or the equivalent government department in the State where the Materials are supplied.
The parties acknowledge that dispute resolution costs will be borne by the unsuccessful party (or otherwise are required by applicable law).
Governing Law
These Terms and Conditions are governed by the laws of the State or Territory in which the Works and Materials are supplied and the parties submit to the non-exclusive jurisdiction of its courts.
