Terms of Application & Service

 

All contracts and dealings between Pro Flooring Solutions Australia Pty Ltd A.C.N. 607 365 800 (the Supplier) and You (the Customer), relating to any application of products or services performed (collectively, the Services) are subject to these Terms & Conditions of Sale (Terms) unless otherwise expressly agreed in writing.

 

1.    INTERPRETATION

1.1  Definitions. In these Conditions, the following definitions apply:

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Customer: the person who purchases Services from the Supplier.

Guarantor: means the person who signs this document on behalf of a Company or Trust.

Order: the Customer's order for Services as set out in the Worksheet.

Supplier: Pro Flooring Solutions Australia Pty Ltd A.C.N. 607 365 800.

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

Services: the application of products (subject to manufacturers’ recommendations for specific product details) and performance of services by the Supplier to the Customer as set out in the Worksheet.

Worksheet: the worksheet or estimate setting out the description or specification of the Services to be provided by the Supplier to the Customer.

1.2  Interpretation. In these Conditions, the following rules apply:

(a)   a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and a reference to a party includes its personal representatives, successors or permitted assigns;

(b)   a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted;

(c)   any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(d)   a reference to writing or written includes faxes and e-mails.

2.    BASIS OF CONTRACT

2.1  Execution of the Worksheet constitutes an offer (Order) by the Customer to engage the Supplier to perform the Work in accordance with these Terms. The Order shall only be deemed to be accepted when the Supplier countersigns the Worksheet or issues written acceptance of the Order at which point and on which date the Contract shall come into existence.

2.2  The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

2.3  These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.4  Any quotation given by the Supplier shall not constitute an offer, and is strictly valid for a period of 28 days from its date of issue.  Re-quoting may be required for time frames outside of this period.

2.5  Unless otherwise stated by the Supplier, any quotation is based on having clear access, free from trades over 1 site visit.

3.    SUPPLY OF SERVICES

3.1  The Supplier shall supply the Services to the Customer in accordance with the Work Sheet in all material respects.

3.2  The Services will be scheduled in as soon as is practical based on the Supplier’s current workload at the time of receiving the signed Worksheet and, or; a deposit of 25% of the total estimate and depending upon the availability of materials, labour and any other conditions beyond the Supplier’s control.

3.3  The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Work Sheet, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3.4  The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.5  The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

4.    CUSTOMER’S OBLIGATIONS

4.1  The Customer shall, prior to and after performance of the Services:

(a)   Access: to provide free and easy access to the job site for all necessary equipment as required to complete the works.  All areas are to be clean and clear, free from other trades prior to commencement on site. Additional charges apply at $100 + GST per hour per person or reasonable rates determined by us if cleaning of the surface is required.

(b)   Furniture & Similar: Items, including but not limited to stock, equipment, machinery, furniture doors, etc. are to be removed. Plants and grass edges are to be timed back off the site and all pots and tables, etc. are to be removed. Additional charges apply at $100 + GST per hour per person or reasonable rates determined by us if Items must be removed or cleared.

(c)   Utilities: to provide unobstructed, clean and clear access to adequate water and electrical services and adequate lighting as may be required.

(d)   Substrate: to ensure that the substrate surface is free of obstructions and in a condition ready to receive the application of the system coating.  Additional charges apply at $100 + GST per hour per person or reasonable rates determined by us if the surface must be cleared or treated.

(e)   Accuracy: ensure that the terms of the Order and any information it provides in the Work Sheet are complete and accurate;

(f)    Licences & Permits: obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start; and

(g)   General: co-operate with the Supplier in all matters relating to the Services.

4.2  If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a)   the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

(b)   the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in clause 4.1 or this clause 4.2; and

(c)   the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

5.    CHARGES

5.1  The Charges for the Services shall be as set out in the Worksheet.

5.2  A deposit of 25% is required prior to the commencement of the Services.  The balance of the full amount is to be paid on completion of the Services.

5.3  The Supplier shall invoice the Customer on completion of the Services and is immediately payable through the online link provided to the Customer.

5.4  The Customer shall pay each invoice submitted by the Supplier strictly within the agreed trading terms unless otherwise agreed by the Supplier.

5.5  Time for payment shall be of the essence of the Contract.

5.6  If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 10% per cent per annum. Such interest shall accrue on a daily basis from the due date of the moneys owing until the actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

5.7  The Customer agrees to indemnify the Supplier against any costs (including without limitation legal costs on a full indemnity basis) that the Supplier may incur in connection with recovery or attempted recovery of overdue amounts.

5.8  The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

6.    LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

6.1  The Supplier and Customer agree that section 23(3) of Schedule 2 of the Competition and Consumer Act 2010 (Cth) does not apply to this Agreement as the supply of goods or services are not to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

6.2  Given that this Agreement is not a consumer contract in accordance with section 23(3) of the Consumer Act, provisions relating to ‘unfair terms’ of a consumer contract in Schedule 2 of the Consumer Act shall not apply to this Agreement to the extent permitted by law.

6.3  If it is found by a court of competent jurisdiction that this Agreement is a Consumer Contract under section 23(3) of Schedule 2 of the Consumer Act, then clauses 26.4 – 26.5 apply.

6.4  The Supplier’s liability for a breach of a condition or warranty implied by Schedule 2 Part 3-2 Division 1 of the Consumer Act is hereby limited to:

  • in the case of goods, any one or more of the following:-

    • the replacement of the goods or the supply of equivalent goods;

    • the repair of the goods;

    • the payment of the cost of replacing the goods or of acquiring equivalent goods;

    • the payment of the cost of having the goods repaired; or

  • in the case of services:-

  • the supplying of the services again; or

  • the payment of the cost of having the services supplied again.

6.5  The Supplier’s liability under Schedule 2, Part 3-2 Division 1 s55 of the Consumer Act is expressly limited to a liability to pay to the Customer an amount equal to:

  • the cost of replacing the goods;

  • the cost of obtaining equivalent goods; or

  • the cost of having the goods repaired,

whichever is the lowest amount.

6.6  Nothing in these Conditions shall limit or exclude the Supplier's liability for:

(a)   death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or

(b)   fraud or fraudulent misrepresentation.

6.7  Subject to clause 6.1:

(a)   the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

(b)   the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount that the Supplier quoted the Customer to perform the Services.

6.8  The Customer shall indemnify the Supplier and hold it harmless from any consequential, indirect or special loss or damage, loss of actual or anticipated profits or revenue, loss of business, business interruption, waste costs the Customer has incurred including, without limitation, any loss or damage suffered by the Customer in relying on the result provided by the Supplier in connection with the Services where an Amenities Search would identify a cable, water, gas or pipeline that was not otherwise observable in the results supplied by the Supplier.

6.9  This clause 6 shall survive termination of the Contract.

7.    WARRANTY

7.1  All best trade practices and due care will be taken to ensure adequate preparation, bonding and installation of the applications in accordance with the manufacturers’ technical advice.

7.2  For all Services:

a)      the Supplier warrants that the Services will be performed in strict accordance with the manufacturers’ application procedures; and

b)      any application product (if used) is covered for a period of five (5) years against faulty workmanship and defective application,

Provided that:

1.      the substrate on which the products are applied maintains a standard and fitness meeting all statutory requirements and having suffered no deterioration leading to premature coating failure; and

2.      cracks in pavers or any surface after completion are the result of movement in the foundation below and the Supplier shall not be liable.

3.      the Customer adheres to regular maintenance and cleaning of the surface.

7.3  The Supplier shall not be liable under this warranty for any damages/ claims (whole or part thereof) arising from any failure to the resurfacing system caused by: hydrostatic pressure, settling, movement, cracking, lifting, excessive or rising moisture, or failure of the foundation, corrosion, excessive wear and tear, tyre marks or oil, plant stains, application or construction of concrete or any other element otherwise outside the control of the Supplier.

7.4  The Customer acknowledges that all best trade practices and due care will be taken however there will be some minor imperfections in the finished surface, such as roller marks, reflective cracking, minor undulation or trowel marks.  By accepting the Order, the Customer acknowledges that he/she is aware of these facts.

7.5  Unless specifically listed in the Worksheet, no allowances have been made to reinstate or caulk joints or treat or repair cracks.  In the event of cracking or structural defects, the Supplier accepts no responsibility for damage to the finished product resulting from structural damage in the surface.  Active cracks will be treated in accordance with the manufacturers’ requirements to reduce the degree of visible surface cracking.  No guarantee or responsibility can be accepted for these structure defects and any subsequent damaged to the finished surface.

8.    SURFACE CONDITION NOT SUITABLE

8.1  This clause shall apply where the Worksheet indicates that the Surface Condition is not suitable.

8.2  The Customer acknowledges that despite the advice of the Supplier to the contrary, the Customer requires the Services to be performed on a surface that is not suitable, advisable or conducive to the application of products or carrying out of services to a standard that will be fit for the purpose intended.

8.3  The Customer hereby waives all warranties in relation to the Services and indemnifies the Supplier from any claim, loss, damages, injury to person or property arising from the Supplier performing the Services to the fullest extent at law.

8.4  The Customer was given an option by the Supplier to have the surface made suitable by the Supplier carrying out additional Services at additional cost but declined to have the Services include preparing the surface to make it suitable. The Supplier therefore cannot provide any warranty or guarantee in relation to the provision of Services.

9.    CANCELLATION OR TERMINATION

9.1  Cancellation or deferring the agreed starting date (could) result in costs charged to the Customer for the procured materials, plant, labour and consequential loss including the loss of any deposit unless approved in writing by the Supplier.

9.2  The Supplier reserves the right to cancel work and terminate this Contract at any time and without fault prior to completing the Services. The Supplier will refund deposits where possible.  Where the Supplier has commenced the Services it will refund the Customer pro-rata for the Services completed.

10.  DISPUTES

10.1 The Customer shall give written notice of any claims pursuant to the warranty within (14) days of any defect coming to the notice of the Customer.

10.2 Where a coating or paving application is deemed defective as reasonably deemed by the Supplier, the Supplier shall make available all labour required to rectify the defect free of charge.  In certain circumstances, an independent assessment may be required to determine the cause in which any costs associated will be attributed to the Customer.

10.3 In the event of a dispute between the Supplier and the Customer, the Customer agrees to pay Supplier all such amounts owing to the Supplier by the Customer until such time as the dispute is resolved.

10.4 Should the Supplier and the Customer be unable to resolve the dispute, the Customer must obtain an independent assessment and report. The Supplier will complete remedial works to items the assessment and report finds at its cost.

11.  AMENDMENTS

This Agreement may be amended by the Supplier from time to time. Notice is deemed given (whether or not actually received) when the Supplier displays the amended terms on its website http://www.qcfloors.com.au.

12.  GOVERNING LAW

This Agreement is governed by the laws of Queensland and each party submits to the non-exclusive jurisdiction of the courts of Queensland.

13.  GUARANTEE

13.1 If there is any default or failure by the Customer in making any payment, or on any breach or non-observance of any of the terms, covenants, conditions and warranties of this agreement, and notwithstanding that this agreement may be terminated or liable to termination at the instance of us, the guarantor will be responsible to the Supplier in respect of the Customer’s obligations in the same manner as if the Customer’s  guarantor were the Customer under this agreement.         

13.2 The guarantor covenants and agrees with the Supplier to indemnify the Supplier and keep the Supplier indemnified from and against all and any loss, damage, cost, charge or expense or other liability, however incurred, by the Supplier in connection with or in consequence of or arising out of any breach or default or attempted breach or default by the Customer of any of the Customer’s obligations. This indemnity is a separate and distinct and principal obligation of the guarantor and will not be construed otherwise.

13.3 The guarantor will pay any money due to the Supplier by reason of the indemnity, on demand. This includes all costs associated with collection, including legal fees and any late payment charges.

no: 1319596

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