Terms of Trade – Joinery, Design and Minor Construction Services

This is an Agreement between the client named in the Agreement (“You”) and Building & Maintenance Services Pty Ltd ACN 060 462 133 (“the company”) for the company to provide joinery, design and minor construction services.

1. Definitions

1.1. In these Terms:

Confidential Information means any information or data, whether or not in a material form, which is confidential to either of Us, including confidential information acquired, collected or developed for the purpose of provision of the Services and supply of the Goods or obtained under these Terms, whether disclosed before or after the date we commence providing Services and the Goods to You, except that information which is already in the public domain otherwise than as a result of a breach of these Terms. 

Fees means the amount set out in the Quote. 

Goods means any goods supplied by Us as described in our Quote. 

Quote means the Building & Maintenance Services Pty Ltd document issued by Us to You and titled “Estimate for Joinery, Design and Minor Construction Services” or “Quote for Joinery, Design and Minor Construction Services”. 

Services means the services as described in our Quote. 

Terms means these terms and conditions. as amended from time to time. 

We and Us and words with a similar connotation mean Building & Maintenance Services Pty Ltd ACN 060 462 133 and includes our employees. You and Your and words with a similar connotation mean You, Your company, Your employees, Your administrators, successors and/or permitted assignees.

2. Incorporation

2.1. These Terms govern the provision of all our Services and supply of Goods to You. All other terms and conditions, express or implied are excluded to the fullest extent permitted by law including without limitation any of Your terms and conditions.

2.2. These Terms can only be amended in writing and signed by You and Us. These Terms will prevail to the extent of any inconsistency between any Quote and these Terms.

3. Obligations

3.1. We will provide a quotation for the works, make and/or supply the product, install the product on site, and carry out all works in accordance with the Agreement.

4. Quotations and request for Services and Goods

4.1. The Quote is valid for thirty (30) days from the date we issue it to You and is subject to withdrawal or change by Us at any time. Any Quote provided to You is a mere invitation to treat and does not constitute a contractual offer.

4.2. You are deemed to accept and agree to these Terms in full when You do all or any of accepting a Quote; providing further instructions to Us; making a payment to Us; or any other act by You that requires Us to commence the provision of Services and supply of the Goods. You may accept the Quote by notice in writing, by verbal acceptance or verbal notice, by providing further instructions or by payment of the deposit or any other amount to Us.

4.3. Additional fees apply to any variations that You direct to the original scope of Services and Goods that are outside the Quote.

4.4. We reserve the right to vary the price should market prices fluctuate as a result of circumstances outside of our control. We will notify you should our price be varied.

5. Deposit

5.1. A non-refundable deposit may be payable if outlined in the Quote (“Deposit”). You agree to pay Us the deposit as set out in the Quote or within a reasonable time frame and in any event, before we commence any work for You.

5.2. We will not start to provide the Services or supply the Goods until we receive the Deposit in cleared funds (if applicable).

6. Standards of Service

6.1. We agree to perform the Services and supply the Goods:

(a) in a diligent manner and with all necessary skill and care expected in accordance with the provisions of such Services and supply of Goods;

(b) expeditiously and in accordance with any time limits specified in the Quote;

(c) in accordance with all representations and warranties as to our experience and ability expressly or impliedly made by these Terms or by law;

(d) in accordance with all applicable acts, ordinances, rules, regulations and by-laws;

(e) in accordance with all Your policies and procedures that are provided to Us, but only to the extent that they are applicable to Us; and (f) in accordance with the information and instructions You provide to Us.

6.2. The Services and Goods are suitable to the circumstances in which they are provided and are not suitable to be applied by You to any future project. We recommend that You seek further professional advice or services in other instances and for future similar projects as our advice and the Services and Goods are not designed to be reapplied by You to future projects.

6.3. We will attend the site to check measurements prior to make or supply or installation of the product. Should any modifications be required, we will notify you. Should there be any additional work with respect to the variation on measurements, we will advise you.

6.4. We advise that colour variations may apply. You agree and acknowledge that the colour and grain of timber, granite, or any natural product may vary. We will use our best efforts to match any natural product with any sample provided by

7. Specifications and Drawings 

7.1. All specifications and illustrations submitted by Us and/or annexed the Quote are approximate only. Further any descriptions, illustrations and data contained in any catalogues, price lists and/or other advertising or promotional material are intended to only present a general view of the Services and/or Goods described therein and do not form part of this Agreement unless expressly agreed by all parties.

7.2. You are required to provide sufficient information, drawings and data to enable Us to supply the Services and Goods.

7.3. Any drawings are provided by Us in relation to the Services and/or Goods remain the property of Us at all times and all intellectual property rights including but not limited to patent, copyright, design, trademark, know how, trade secret, formula, drawings, plans, specifications in respect to the Goods or their manufacture and provision of Services remain vested in Us.

7.4. You agree to retain all intellectual property information and samples as confidential and will not copy or otherwise disclose the information to any third party. 

7.5. Should you provide Us any sketch, plan or other documentation which infringes on another parties intellectual property, then you indemnify Us on all claims and damages.

8. Confidentiality

8.1. Neither You or Us may disclose any Confidential Information to any person that is not a party to these Terms unless that disclosure:

(a) is necessary for the purposes of performing its obligations under these Terms;

(b) is consented to by the other party’s authorised delegate in writing; or

(c) is required by law to be disclosed.

8.2. We must use the same degree of care towards the Confidential Information that You or Us would use to protect our own confidential information of like nature, but no less than a reasonable degree of care. 

8.3. Within 30 days of completion of the Services or supply of the Goods; termination of these Terms; or receipt of written notice from You, we agree to return or destroy, as directed by You, all forms of the Confidential Information in our custody or control, including all materials containing Confidential Information. We may keep copies of any materials that we produce for You and that may contain Confidential Information. 

8.4. You acknowledge and agree that the materials we produce for You constitute Confidential information and You must not, for whatever reason, either for Yourself, for a third party or with the assistance of any third party, provide to any other person or party, appropriate, copy, memorise or in any manner reproduce (or reverse engineer) any of our Confidential Information. 

8.5. In the event that we suspect illegality at Your premises, then we will report the same to the relevant authority. You do not have any recourse against Us in relation to the same.

9. Our Fees

9.1. You agree to pay for the following, over and above the Quote, if so requested by Us:

(a) All goods and services tax payable not otherwise included in the Fees or in the Quote. We will issue a tax invoice to You for goods and services tax; 

(b) Repeated or varied services due to Your act or omission or a variation request by You. Additional work required will be charged in accordance with our hourly rate as set out in the schedule of rates in the Quote. 

(c) Interest accruing daily on the unpaid balance of the Fees or any amount payable, calculated daily from its due date until the date of payment at a rate of 10% per annum. 

(d) Any additional costs or expenses incurred by Us because You give Us incorrect information. 

(e) Any costs or expenses incurred by Us as a result of the site where Services are to be carried out not being accessible or where there are delays or complications in delivering any Goods or performing the Services arising from difficultly in accessing the site. 

(f) The cost of consumables used in the provision of the Services according to the market rate as apportioned by Us. 

(g) The cost of transport of any Goods.

9.2. You acknowledge and agree that We are able to increase or decrease our fees at any time and You will be notified at least 1 month prior to any increase in fees. 

9.3. You will provide Us with all keys, access cards and codes to enable Us to access all necessary premises for where Services are to be carried out if work is required out of business hours. If not provided and there is no other reasonable way of accessing the premises, a fee of 25% will apply on each occasion. 

9.4. You must make access with respect to the shortest access route available for easy installation including all access equipment, materials and amenities

10. Payment 

10.1. An invoice will be sent to You following Your acceptance of these Terms and the Quote. Payment for Services and Goods will be due as follows:

(a) 10% of the price to accept the quotation, also known as the initial deposit 

(b) 20% of the price within 7 days of the issue of our invoice relating to our shop drawings 

(c) 50% of total contract price upon purchase of material to start production 

(d) 20% final balance will be due and payable upon completion of production, ex-factory.

10.2. Alternatively, We may seek payment as per the following, in some circumstances; A deposit equal to 50% of the invoice is payable before provision of the Services and supply of the Goods and the balance of the invoice is payable on completion of the Services in production, ex-factory. 

10.3. We reserve the right to change payment terms at any time. 

10.4. The time of payment is an essential term of these Terms. A late interest fee will be applied in circumstances where You do not make payment within 14 days. You indemnify Us on demand against all costs, Fees, expenses and legal costs (on an indemnity basis) incurred by Us in recovering any outstanding unpaid amount from You. 

10.5. In the event that You fail to make payment within 14 days, We reserve the right to suspend further Services and provision of Goods to You until You have made payment. 

10.6. We shall have a specific lien (including right of sale) over the Goods subject to this Agreement until the price of the Goods has been paid in full. 

10.7. Unless otherwise indicated, monetary references are in Australian dollars.

11. Risk and Title 

11.1. The risk of loss of or damage to the Goods will pass to you at the time of delivery. 

11.2. Property and title to the Goods supplied to you will not pass to you until such time as the Goods have been paid for in full and regardless of if it has been installed or not. 

11.3. Until full payment has been made, you must insure the Goods at their respective costs, naming Us as loss payee, for full replacement cost against all risks. We reserve all rights to apply the proceeds of any insurance payment to reduce the amount that You owe to Us.

12. Delay 

12.1. If You or Us is delayed or prevented from performing any obligations under these Terms due to any cause or circumstance that is outside of our (respective) control, we agree to delay the performance of the affected obligations until the cause or circumstance is abated or until such time as mutually agreed between You and Us.

12.2. Where We have incurred costs in preparation for performance of Our obligations, including time, materials and other services, 

12.3. and where these costs cannot be mitigated upon notification of a cancellation of work these costs are to be paid by You in full. 

12.4. Unless otherwise expressly agreed in writing by Us, all delivery dates provided to you are approximate only. Although every reasonable effort will be made by Us to deliver the Goods and perform the Services by the estimated delivery date, any failure by Us to deliver the Goods or perform the Services by any particular date does provide for cancellation of this Agreement by You, void any of the terms of this Agreement or entitle You to claim any compensation whatsoever (including liquidated or unliquidated damages) for late delivery by Us.

13. Termination 

13.1. If You cancel Your request for provision of Services or supply of Goods, the following charges apply:

(a) Earlier than five (5) business days before the scheduled provision of Services, there is no penalty; and 

(b) Within three (3) business days of the scheduled provision of Services, we may charge You a cancellation fee of 50% of the Quote.

13.2. In the event that You cancel Your request for provision of Services or supply of Goods after a third party has been engaged by Us to carry out all or part of Your Services or supply Your Goods, You will be liable for any third-party cancellation fees and charges that may be charged to Us in connection with Your cancellation. 

13.3. We reserve the right to terminate or suspend Our performance of the whole or any outstanding part of the request for Services without liability to You in all or any of the following circumstances where:

(a) You breach these Terms; 

(b) You enter into bankruptcy, liquidation or a composition with Your creditors, have a receiver or manager appointed over all or any part of Your assets, enter into administration or become insolvent; 

(c) We notify You of having reasonable grounds for suspecting that an event in clause 12 has occurred or will occur, or You will not pay for Services on the due date; 

(d) You have been abusive or threatening to Us; 

(e) In our sole discretion, You do not provide Us with a safe working environment.

13.4. Either party can terminate this Agreement for convenience by providing four (4) weeks’ written notice of termination. 

13.5. Termination by Us in accordance with these Terms is without prejudice to Our other remedies and Our right to recover payment from You for any Services provided by Us up to and including the date of termination.

14. Our Warranties

14.1. We represent and warrant to You that

(a) To the extent required by the Home Building Act 1989, we warrant that:

(b) the works will be performed with due care and skill manner and in accordance with the plans and specifications set out in this quote;

(c) all materials supplied by Us will be good and suitable for the purpose for which they are used and that, unless otherwise stated in this contract, those materials will be new;

(d) the works will be done in accordance, and will comply with, the Home Building Act 1989 or any other law;

(e) the works will be done with due diligence and within the time stipulated in this quote, or if no time is stipulated, within a reasonable time; 

(f) the works and any materials used in doing the works will be reasonably fit for the specified purpose or result, if You expressly make known to Us or any other person with express or apparent authority to enter into or vary the contractual arrangements on Our behalf, the particular purpose for which the works are required or the result that You desire the work to achieve, so as to show that you rely on our skill and judgment. 

(g) the Goods when delivered to You will generally comply with the description for the Goods in the Quote or as otherwise expressly agreed between the parties. 

(h) Unless otherwise expressly advised in writing, all Goods shall be warranted to be free from material defects for a period as per the O&M Manual from the date of delivery of the Goods and all Services shall be warranted to be supplied with due care and skill for a period in accordance with the O&M Manual from the date the Services are provided. 

(i) The warranty in (c) above does not: 

  • include Our labour costs and any removal, reinstallation and other consequential costs will be at Your expense. The warranty cover for repaired/replaced items will expire on the same date as the warranty for the rest of the Goods and/or Services; and
  • apply in respect of defects due to or arising from incorrect or negligent handling, disregard of operating and/or maintenance instructions, overloading, unsuitable operating conditions, defective civil or building work, accident, neglect, faulty erection (unless carried out by Us), acts of God, repairs or alterations carried out without our prior consent, noncompliance with our manual or operating instructions, fair wear and tear or by any other causes beyond our reasonable control.

(j) We have the power and capacity to enter into this Agreement and perform the Services and supply the Goods and Our obligations under these Terms. 

(k) We have sufficient skill, expertise, capacity and resources to perform the Services and supply the Goods. 

(l) We will notify You of any changes to ownership of Building & Maintenance Services Pty Ltd. 

(m) We reserve the right to use independent third parties to undertake the Services and supply the Goods.

15. Your agreements and Indemnity 

15.1. You agree that by accepting the Quote, You have first reviewed the Quote provided by Us and are satisfied with the scope of the Goods and Services outlined in the Quote and that the scope meets Your needs. 

15.2. You agree that You did not rely on our skill or judgment in relation to the suitability of the Goods or Services for any particular purpose whatsoever and no claim may be made against Us relating to the suitability of the Goods or Services. 

15.3. You acknowledge and agree that You have fully disclosed all relevant information to Us so that we may provide the Services and supply the Goods to You. 

15.4. You agree You will provide Us with a safe work environment.
15.5. You agree that when appropriate all communication will be done through writing. 

15.6. You acknowledge and agree to comply with all laws, acts ordinances, rules, regulations and by-laws, including specifically the Fair Work Act. 

15.7. You agree that if we reasonably suspect that You have contravened the Fair Work Act or any other legislation, we may have an obligation to take steps including to change the nature of Our Services or the scope of Our Services at Your expense, to report the contravention or any other steps or action in our sole discretion. 

15.8. You indemnify Us against any claims, loss and/or damages that may arise from Your failure to comply with this clause

16. Limitation of Liability 

16.1. To the extent permitted by law, we are not liable in any way to You for any form of loss, damage or injury sustained or incurred by You or any third party in consequence of, or resulting directly or indirectly out of the provision of Services, the use of our Services, or any breach by Us of any contract incorporating these Terms or these Terms. 

16.2. For the avoidance of doubt, we provide guidance and Services to You but we are not liable to You for any misinterpretation of such guidance and Services or any failure by You to implement the guidance and Services in the manner or way in which we inform You. We are also not liable to You for any future application of the guidance or Services or the way in which You interpret or apply the guidance or Services we supply. 

16.3. Should any law render any of these Terms void or ineffective, You agree that our liability is limited, at our sole discretion and option to:

(a) the resupply of Services or Goods; 

(b) the total fees paid by You to Us for the Services and Goods under the single Quote.

16.4. We are not liable for failure to provide the Services or supply the Goods for any reason whatsoever outside our reasonable control including, but not limited to industrial action, riots or war, governmental action or regulation, act of God. Any such failure does not affect Your obligation to pay for all or any Services or Goods previously supplied by Us to You. 

16.5. We are not liable for any damage to Your premises or property where You have permitted Us to use Your premises or property. 

16.6. If we supply products to You, We are not liable for any damage, loss or injury as a result of Your incorrect use of the products. 

16.7. Our liability to You under this clause 13 (if any) will be reduced proportionately to the extent that any unlawful, negligent or other act or omission by You contributed to the relevant liability, loss, damage, or expense. 

16.8. You release and indemnify Us against all or any claims, loss and/or damages that You incur or that arise where we are not liable under this clause 13.

17. Advertising Consent 

17.1. By accepting the Quote, You grant Us the right to generically refer to the nature of the services carried out by Us for You, without using Your name or any of Your personal information, for any lawful purpose, including advertising and marketing.

19. Dispute Resolution 

19.1. If a dispute arises out of, or relates to the Services or these Terms, neither of Us may commence any court proceedings relating to the dispute unless we have first complied with this clause 16, except where either of Us seeks urgent interlocutory relief. 

19.2. Whichever of Us claims that a dispute (“Dispute”) has arisen in relation to the Services or under these Terms, that claiming party must give written notice to the other party specifying the nature of the Dispute. 

19.3. On receipt of that notice, we must endeavour to resolve the Dispute expeditiously using informal dispute resolution techniques such as discussion, series of discussions, mediation or determination or similar techniques agreed by Us. 

19.4. If We do not agree within 5 business days of receipt of the notice referred to above (or such further period as agreed in writing by Us) as to:

(a) The dispute resolution technique and procedures to be adopted; 

(b) The timetable for all steps in the technique; and 

(c) The selection and compensation of the independent person required for such technique, then we must mediate the Dispute in accordance with the Mediation Rules of New South Wales, and the nominee of the President of the Law Society of New South Wales will select the mediator and determine the mediator’s compensation.

20. General 

20.1. Governing Law: These Terms are governed by the laws of the State of New South Wales and You and Us both submit to the jurisdiction of the courts of that state. 

20.2. Severability: If any provision of these Terms is held to be invalid in any way or unenforceable, the remaining provisions shall not in any way be affected or impaired, and these Terms must be construed to give effect to Our original intent. 

20.3. Waiver: Waiver of any provision of or right under these Terms: (a) Must be in writing signed by whichever of Us is entitled to the benefit of that provision or right; and (b) Is effective only to the extent set out in any written waiver. 

20.4. Entire Agreement: These Terms, the Quote and any attachments constitute the entire agreement between Us with respect to its subject matter and supersede all prior agreements and understandings between Us in connection with these Terms and/or in connection with the Services and the Goods. 

20.5. Notices: Notices under these Terms must be in writing, in English and delivered to the address for the relevant party as set out in the Quote or as otherwise advised to that party by the other party. A notice is taken to be received if hand delivered, on delivery; if sent by prepaid post, on the second business day after the date of posting; if sent by email at the time that would be the time of receipt under the Electronic Transactions Act 1999. 

20.6. Survival: The following terms survive expiry or termination of these Terms; clause 7 (confidentiality); clause 13 (limitation of liability); clause 17 (dispute resolution); clause 18.1 (governing law); and this clause 18.6 (survival).