Terms & Conditions of Trade
Conditions of Contract
- Contractor’s main Obligations
The Contractor will carry out and complete the Works in accordance with this Contract.
The Owner must pay the Contractor:
(a) the Contract Price in accordance with the Contract progress payments.
(b) any other amount which is payable under this Contract on demand after the Contractor has carried out the work or incurred the cost.
(c) Final payment is due within two weeks of kitchen installation date if work cannot be completed by Warrimoo Kitchens within this time frame due to client delay.
- Owner’s joint and Several Liability
If there is more than one Owner:
(a) the obligations in this Contract apply to each Owner individually and to all Owners collectively;
(b) a quote, notice, claim or any other constitute effective service on all Owners;
(c) if this Contract has been signed by each Owner (whether this document or in counterpart), unless the
Contractor has been notified otherwise, only one Owner is required to sign a document (including a quote, sketch, plan, specifications, notice, instruction, direction or other communication) or to give an instruction, direction or other communication, to legally bind all of the Owners.
- Access to the site
The Owner must give the Contractor uninterrupted access to the Site to check measure or for installation or any other purpose to complete the contracted job.
The Owner must give the Contractor and the Contractor’s workers and subcontractors adequate access to any available water, electricity, toilet and washing facilities when working or delivering to Site.
If the Contractor requests access to deliver the product/s and the Owner does not give access within 7 days the Contractor can then claim payment for the delivery stage, as defined in Clause 9 of Part A or otherwise the Owner must pay the Contractor for work performed and cost incurred up to the point of delivery.
- Check Measuring
The contractor will attend the Site and perform the check measure on or before the check measure date. The contractor may make minor modifications to the plans and specifications agreed to the checked measurements. The contractor will notify you of any modifications made.
Any additional work necessary to comply with the modified plans and specifications is a variation and Clause 8 Part B applies.
- Our Right to Fix
(a) If at any time the Owner claims the product is defective, they must notify the Contractor in writing, as soon as possible.
(b) If the Owner fails to notify the Contractor of a claim within a reasonable time of becoming aware of an alleged defect, the Contractor will not be responsible for any damage that results from the Owners delay in notification. (c) If the Contractor accepts responsibility, they have the right to fix the defect. Any defects that in the Contractors reasonable opinion may affect the safety of the works or may lead to it being damaged will
be fixed as soon as practicable. You must give the Contractor access to do the in accordance with Clause 4, Part B.
The Contractor shall not be responsible for any delay caused by something beyond their control, including (but not limited to) any failure by the Owner to:
(a) make a selection;
(b) have the Site ready for delivery if specified in the contract; (c) notify the Contractor that the Site is ready; or (d) give the Contractor sufficient access to the Site.
The delivery date will be put back and the completion date extended by whatever time is reasonable if the Contractor claims an extension of time by giving the Owner written notice.
For every day the subject of an extension of time where the Owner is responsible for the delay the Contractor may charge the Owner the total of the actual increase in cost to the Contractor to carry out the works plus another 20%.
- Plans & Variations
The Contractor may claim payment for a Variation as soon as the Variation is completed.
(a) All plans and specifications for the Works including any Variations to those plans and specifications form part of this contract;
(b) Any agreement to vary this contract, or to vary the plans and specifications for the Works, must be in writing and signed by the parties.
If the Owner or the Contractor requests a Variation, the Contractor will give the Owner a written quote detailing the Variation, the cost of the additional or omitted work and any changes to the Progress Schedule.
If the Owner agrees to the Variation by signing the quote/variation and returning it to the Contractor, the Contractor will carry out the Variation in the time agreed.
If the price of the Variation exceeds 15% of the Contract Price, the Owner must pay the Contractor an agreed deposit of 10% before the Contractor commences work on the Variation.
The Owner cannot unreasonably withhold consent to a variation that the Contractor requests in accordance with Clause 5 Part B.
- Unforeseen Circumstances
To the extent permitted under law, the Contractor will not be responsible or liable for work arising from factors beyond its control, unforeseen problems or which is outside the initial scope outlined in Part A.
For example, the Contractor will not be responsible or liable for additional work arising from the supply of a product at the request of the Owner and constructed to the Owner’s measurements which subsequently does not fit because the Owner’s measurements were incorrect.
If any such additional work is required, the Contractor may request a Variation.
Unless otherwise agreed, any such additional work required will be charged at the actual cost to the Contractor plus 20%.
This clause does not limit clause 35 (statutory rights).
- Prime Cost & Provisional Sum Items
Except as otherwise agreed between the Owner and the Contractor in this Contract, the Contractor is not responsible for the supply or installation of any appliances or connection to any services.
Unless the Owner and the Contractor agree otherwise, such work shall be listed as prime cost or provisional sum items.
Each prime cost or provisional sum item shall be listed in Clause 6 Part A (to be attached) with a stated allowance specifying the estimated cost of supplying the item and/or providing the work.
Where the actual cost of supplying the item and/or providing the work is less than the prime cost or provisional sum allowance set out in Clause 6 Part A, the Contract Price will be reduced by an amount equal to the difference.
Where the actual cost of supplying the item or providing the work is more than the prime cost or provisional sum allowance set out in Clause 6 Part A, the difference plus a % surcharge will be added to the Contact Price.
When required by the Contractor, the Owner must promptly make all selections relating to prime cost or provisional sum items.
The contractor must provide a copy of any relevant invoice, receipt or other document evidencing the purchase price of the item at the time payment is requested. If the contractor purchases a prime cost item, any discount for prompt payment will be allowed in favour of the contractor. All written warranties for such items must be given to the owner on completion of the work and must be enforceable by the owner.
The Contractor will make every reasonable effort to ensure that work methods and materials used correspond with sample products selected and/or provided by the Owner. However, the Contractor will not be responsible for variations in the colour or grain of products such as timber, granite and other natural materials.
To the extent permitted under law, the Contractor will not be responsible for the suitability of material used to manufacture a product if specified by the Owner This clause does not limit clause 35 (statutory rights).
- Surplus Materials
Unless otherwise agreed between the Owner and the Contractor in this Contract, surplus materials will at all times remain the property of the Contractor.
- Security Interest
The legal title in the Product does not pass to the Owner until all amounts payable under this Contract have been paid in full.
The Owner grants to the Contractor a security interest (and where applicable, a Purchase Money Security Interest) in the Products (including all related proceeds) supplied under this Contract as security for all or part of the amount payable by the Owner to the Contractor under this Contract. The Owner authorises the Contractor to register a financing statement with respect to this security interest on the PPSR and agrees to provide any information to the Contractor necessary to register this security interest.
Until this security interest has been satisfied, in addition to any remedies available to the Contractor under Part 4 of the PPSA:
(a) the Products must remain clearly identifiable from any other goods of the Owner;
(b) If the Owner fails to make a due payment in accordance with this Contract, the Contractor may enter the Site and take reasonable action to remove the Product, without being liable to the Owner for any damage to the Site which may be caused by such removal;
(c) The Owner irrevocably authorises, permits and allows the Contractor unrestricted access to the Site to retrieve the Product in accordance with this clause; and
(d) The Owner may not sell or deal with the Products without the Contractor’s prior written consent.
Notice requirements under sections 95, 118, 121(4), 130, 132 and 135 of the PPSA shall not apply and not place any obligations on the Contractor in favour of the Owner.
Contractor warrants that work will be performed with due care and skill, the materials and workmanship of the products shall be free from defects for a period of 2yrs workmanship & 7yrs materials from the date the Products are installed at the Site (Warranty Period). The benefits given to the Owner under this warranty are in addition to other rights and remedies the Owner has under law. This warranty should be read in conjunction with any other warranties accompanying the Products.
To make a claim under this Warranty, the Owner must during the Warranty Period notify the Contractor (using the contact details provided in this Contract) and provide valid proof of purchase of the Products together with a suitable description of the defect.
After the Contractor has accepted the defects claim, the Contractor may at its discretion either repair or replace the Product (or pay the cost of doing the same). The Owner irrevocably authorises, permits and allows the Contractor unrestricted access to the Site to inspect or fix defective works in accordance with this clause.
This warranty covers the Products only and does not cover:
(a) appliances or materials made or provided by other parties or the Owner;
(b) defects due to normal wear and tear, shrinkage, or changes in climate or geographic conditions which cause movement and variations in building work;
(c) defects due to use of the Products which is unusual, negligent (including misuse and abuse), contrary to any other instructions supplied with the Products; or
(d) defects due to factors beyond the Contractor’s control.
The Contractor’s liability to the Owner under this warranty is limited to repairing or replacing the Products (or the cost of doing the same).
Our goods come with guarantees which cannot be excluded under the Australian Consumer Law. You are entitled to a replacement, repair or refund for a major failure and to compensation for other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
If the Owner is in breach of this Contract in any way whatsoever, the Contractor may by written notice immediately suspend the carrying out of the Works.
The Contractor must recommence the carrying out of the Works within a reasonable time after the Owner remedies the breach, and gives the Contractor written notice of that fact.
If the Owner is in serious breach of this Contract, the Contractor must give the Owner a written notice in accordance with clause 31 detailing the nature of the breach and requesting that the Owner remedy the breach within 14 days.
If the Contractor is in serious breach of this contract, the Owner must give the Contractor a written notice in accordance with clause 31 detailing the nature of the breach and requesting that the Contractor remedy the breach within 14 days.
If either party receives a written notice under this clause and does not remedy the breach within 14 days, the other party may terminate this Contract by giving written notice to that effect.
- Effect of ending this contract
If this contract is ended the Owner must without prejudice to any right or remedy, pay the contractor the actual cost of providing the work carried out to the day this contract is ended.
If a party to this Contract becomes, at any time insolvent, then the other party may terminate this Contract by giving written notice to that effect.
To be insolvent means:
- any act of bankruptcy under the Bankruptcy Act 1966 by a natural person;
- the appointment of a liquidator, provisional liquidator, receiver, receiver and manager, administrator or the entering into of a deed of arrangement if a corporation; or
- any act of insolvency, under the Corporations Act 2001 by a corporation.
All Product and materials shall be at the Owner’s risk once delivered to the Site.
The Contractor shall have public liability insurance of at least $5 million. The Owner must have in place similar and adequate insurance. If the Owner requires the Contractor to insure the product against loss or damage after it has been delivered to the Site, or to similarly insure the Owner’s property while the product is being installed on the Site, the Owner must advise the Contractor in writing and will be charged the Contractor’s actual cost of taking out such insurances, plus an additional 20% for arranging this insurance.
- Charge Over Land
The Owner agrees to charge the Site (or the land upon which the Works is to be carried out) in favour of the Contractor as equitable mortgagee to secure the payment of all moneys that are, or may become, payable under this Contract to the extent that a court or tribunal of competent jurisdiction has made an order that the Owner pays that amount to the Contractor.
The Contractor owns the copyright in all plans, specifications and workshop drawings created by or on behalf of the Contractor.
If the Owner provides the Contractor with any sketch, plan or other document which infringes upon another person’s copyright or moral right, the Owner will indemnify the Contractor, and keep the Contractor indemnified, against all claims and costs.
- Default Interest
If the Owner fails to make any payment due under this Contract on time, the Contractor will charge the Owner interest on the unpaid amount at the interest rate payable on New South Wales Supreme Court judgments as varied from time to time.
- Debt Collecting Cost
The Owner must reimburse the Contractor for any debt collection costs, including (but not limited to) any legal fees and commissions, which the Contractor pays to recover, or attempt to recover, from the Owner any overdue amount payable under this Contract.
- Whole Agreement
Subject to law, Part A: Contract Details and Part B: Conditions of Contract and the sketches, quotations, plans and the specifications, including any Variations to those plans and specifications;
- comprise this contract;
- comprise the whole agreement between the Owner and the Contractor; and
- supersede any prior negotiations, discussions or understandings between the Owner and the Contractor.
- Prevailing Documents
In the event of any inconsistency or ambiguity as to the agreement between the Owner and the Contractor, the Conditions of Contract, the plans and the specifications have precedence in that order.
The Contractor may sub-contract any obligations under this Contract.
The Owner must not give instructions to any subcontractors or workers on the Site.
Where a price is not agreed for any additional charges or omissions from the building works, the amount of Goods and Service Tax attributable to the value for that supply is to be added to the price calculated under the terms of this Contract.
In the event of a dispute arising between the Owner and the Contractor in relation to a matter covered by this Contract, the disputing party must notify the other party in writing of the items in dispute. The Owner and the Contractor may seek to resolve the dispute by consulting with a mutually agreed third party mediator.
If the parties cannot agree on a mediator, or the dispute is unable to be resolved by mediation, the Owner or the Contractor may notify NSW Fair Trading of the dispute in accordance with the Home Building Act 1989 and the Home Building Regulation 2014.
- Removal of Items
The Owner acknowledges that before or during the carrying out of the Works, any existing appliances or any items such as kitchen, bathroom, wardrobe (built-in or otherwise), window, cabinetry, flooring, plumbing, or electrical, and any accessories, components or fittings forming part of any of the items that are not required for the Product may be removed to make way for the Product and the Works.
Where there is a dispute between the Owner and the Contractor in relation to a matter covered by this Contract, the Owner agrees that once any of the appliances, items or any part of any of the items are removed from the Site, the Owner will not recover from the Contractor those appliances items or any part of any of those items, nor claim damages for same.
- Giving of Notices
Where this Contract requires written notice to be given to a party for any reason, such notice may be served by:
- giving it to the party personally;
- leaving it at the party’s address specified in Part A; or
- sending it by registered mail to the party’s address specified in Part A.
Unless otherwise stated in this contract:
Contract means Part A and Part B of this document and any sketches, quotations, plans, specifications and Variations relating to this document;
Contract price means the amount stated in Clause 3 of Part A, subject to any changes in accordance with the Conditions of Contract;
Contractor means the Contractor named in Clause 2 of Part A; Days means calendar days;
Owner means the Owner named in Clause 1 of Part A;
Provisional Sum Item includes a contingency sum and a prime cost item.
Unforeseen Circumstances means any hidden problems which the Owner did not tell the Contractor about or are only revealed when installing the product.
Payment Schedule means the schedule set out in Clause 10 of Part A;
PPSA means the Personal Property Securities Act 2009 ;
PPSR means the Personal Property Securities Register established under the PPSA;
Product means the cabinets, built-ins and/or other products described in Clause 5 of Part A and set out in the plans and specifications, including any Variations;
Progress Schedule means the schedule set out in Clause 9 of Part A;
Site means the premises described in Clause 4 of Part A where the Works are to be carried out for supply and install. Or where the work is to be delivered if the contract is supply & deliver.
Works means any one/or more than one of the following: supply, manufacture, install, deliver (as specified in the Contract )and/or provision of other work in relation to the cabinets, built-ins and/or other products described in Clause 5 of Part A and set out in the plans and specifications, including any Variations;
Variation means any change in the Works or the method of carrying out the Works; and like words have the same meaning.
All monetary amounts are in Australian currency.
Each provision of this contract shall be read as separate and severable so that if any provision is held by a court of competent jurisdiction to be void or unenforceable for any reason, that provision will be severed from the contract and the remainder of the contract will be construed as if the severed provision had never existed.
- Applicable Law
This contract will be governed by, and construed in accordance with, the laws of New South Wales.
- Statutory Rights
The Australian Consumer Law, Competition and Consumer Act 2010 and the Home Building Act 1989 (NSW) contain statutory guarantees and warranties that cannot be excluded. These Acts also prescribe remedies available to consumers and customers in circumstances where there is a breach of such warranties and guarantees or there is a defect. Nothing in this Contract operates to exclude or limit those statutory guarantees and remedies insofar as they apply to the Contractor, the Owner and the Products under this Contract.
- Mandatory Conditions
To the extent required by the Home Building Act 1989 and subject to this clause, the works will comply with:
- The Building Code of Australia (to the extent required under the Environmental Planning and Assessment Act 1979, including any regulation or other instrument made under that Act);
- All other relevant codes, standards and specifications that the work is required to comply with under any law; and
- The conditions of any relevant development consent or complying development certificate.
The Contractor is not liable if the works do not comply with the above requirements if the failure relates solely to:
- A design or specification prepared by or on behalf of the Owner (but not by or on the Contractors behalf):
- A design or specification required by the Owner, if the Contractor has advised the Owner in writing that the design or specification contravenes the above requirements.
To the extent required by the Home Building Act 1989:
- All plans and specifications for the works including any variations to those plans and specifications form part of the contract.
- Any agreement to vary this contract, or to vary the plans and specification for the works, must be in writing and signed by the parties.
- Limitation of Liability
To the fullest extent permitted by law, the following are hereby excluded:
- all express or implied representations and warranties relating to this Contract not contained in it; and
- any liability arising in relation to the Products and the Works that the Contractor supplies to the Owner however arising (including consequential loss).
The Contractor’s total liability for breach of this Contract is limited at the Contractor’s option to:
- the replacement of the Products or Works or the supply of equivalent Products or Works;
- the repair or rectification of the Products or Works;
- the payment of the cost of replacing or acquiring equivalent Products or Works; or (d) the payment of the cost of the repair or rectification of the Products or Works.