APPLICATION OF TERMS & CONDITIONS
These terms and conditions (including the Quotation) comprise the entire agreement between AFKW Pty Limited (ACN 159 276 178) t/as On Time Painting NSW (“we”, “us” or “our”) and the person, company or other entity identified as the Customer (“you” or “your”) for the performance of the Works by us.
In consideration for you paying to us the Contract Price in the manner and at the times set out in the Quotation, we will perform the works in accordance with these terms and conditions.
QUALITY OF CONSTRUCTION
(1) All work done by us will comply with:
(a) 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)); and
(b) all other relevant codes, standard & specifications that the work required to comply with under any law, and
(c) the conditions of any relevant development consent or complying development certificate.
(2) Despite sub-clause 3(1), we may limit our liability for a failure to comply with sub-clause 3(1) if the failure relates solely to:
(a) a design or specification prepared by or on behalf of you (but not by or on behalf of us); or
(b) a design or specification required by you, if we have advised you in writing that the design or specification contravenes sub-clause 3(1).
It is agreed, subject to this and the other clauses contained within these terms and conditions, that: we will:
(a) comply with the statutory warranties in section 18B of the Home Building Act 1989 and complete the work in accordance with the requirements of the terms & conditions; and
(b) comply with all relevant Australian Standards, laws and the requirements of the relevant local council and all statutory authorities with respect to the work. you will:
(a) pay the Contract Price in the manner specified in these terms and conditions.
The deposit will be 10% of the Contract Price.
PAYMENT 6.1 CONTRACT PRICE
You must pay the price as set out in the Quotation (“the Contract Price”).
6.2 PAYMENT SCHEDULE
Unless otherwise noted on the Quotation, you will be required to pay progress payments on receipt of our Tax Invoice at the following stages of work;
(a) For projects under $10,000.00 at 100% completion;
(b) For projects $10,000.00 and over, at 50% completion and 100% completion;
(c) For projects $40,000.00 and over, at 30%, 70% and 100% completion.
6.3 PAYMENT TERMS
(a) You are required to make payment within 24 hours of receipt of our Tax Invoice, unless otherwise agreed in writing by us (“the Payment Date”).
(b) If you are unable to make payment on the Payment Date, you must notify us in writing.
(c) We may charge interest at 5% per month on any amounts outstanding, until such time as the payment is made.
(d) Any amounts outstanding after fourteen (14) days of the Payment Date will trigger debt collection and/or legal proceedings, and you will be liable for any costs and fees we incur in enforcing repayment of the debt.
The provisions of this clause apply irrespective of whether clauses 13, 14 and 15 have been enacted.
COLOUR SELECTION You are solely responsible for paint colour selection. We will perform the Works using paint colours directed by you. Such direction may be provided to us directly or by a designer or colour consultant retained by you or by us. You acknowledge that the final colour may differ from colour swabs, electronic images or other samples owing to natural factors which contribute to colour variations such as light, and the age of the surface painted. You also acknowledge that slight variations may occur if we are to digitally colour match previously painted surfaces, or you have selected non-Dulux colours. It is your responsibility to test and verify your colour selections before we commence the Works.
VARIATIONS 8.1: The work to be done or materials used may be varied at the request of either party, or due to other such matters that could not reasonably be expected to be foreseen by an experienced, competent and skilled contractor for the completion of the work at the date of the Quotation.
8.2: Variations to the Contract Price and any cost adjustments must be agreed by both parties, and the Contract Price will vary accordingly.
8.3 Unless specifically identified in the Quotation as forming part of the Works, the following may be deemed to be variations:
(a) additional coats of paint required as a result of a colour selection that does not provide adequate coverage over the existing surface;
(b) you change the paint colour, brand or finish after the Works have commenced or paint has been ordered by us;
(c) where performance of the works have been suspended in accordance with clause 14;
(d) where any colour scheme exceeds those included in the Quotation Form;
(e) where access methods on which the quote was based (such as scaffolding or EWPs (cherry pickers, booms, scissor lifts etc)) are restricted due to site, safety, engineering, accessibility, or supply issues; and
(f) any information relevant to Site access, scope of Works or estimate time to complete the Works which you knew (or after reasonable consideration and making reasonable enquiries prior to engaging us should have known) may affect the performance of the Works in any way but did not make available to us prior to accepting our quote.
APPROVALS Any and all necessary building and other approvals for the work must be obtained and paid by you prior to commencing the Works.
STATUTORY WARRANTIES We warrant that;
(a) the work will be done with due care and skill and in accordance with the plans and specifics set out in the Quotation;
(b) all materials supplied by us will be good and suitable for the purpose for which they are used and, unless otherwise stated in the Quotation, those materials will be new;
(c) the work will be done in accordance with, and will comply with, the Home Building Act 1989 or any other law;
(d) the work will be done with due diligence and within the time stipulated in the Quotation, or if no time is stipulated, within a reasonable time; and
(e) the work and any materials used in doing the work will be reasonably fit for the specific purpose or result, if you expressly make known to us the particular purpose for which the work is required or the result that you desire the work to achieve, so as to show that you rely on our skill and judgment.
11.1: Subject to clauses 11.2 & 11.3, we warrant against peeling or flaking paint and defective workmanship:
(a) in respect to work involving roofs, floors and handrails for a period of 12 months form the completion of those works;
(b) in respect of all other works for a period of 24 months from the completion of the works; and
(c) on the basis that our liability for peeling or flaking paint or defective workmanship under this clause is limited in accordance with clause 12.
11.2: You may only claim against the warranty provided under clause 11.1 only if:
(a) you have paid the Contract Price in full;
(b) you have given us written notice of your intention to claim against the warranty within 14 days of the alleged defect first coming to your attention;
(c) the alleged defect or defects are not excluded under the terms of any warranty provided by the manufacturer of the paint products used in the performance of the Works; and
(d) us concluding, to our satisfaction acting reasonably, that the alleged defect does not arise out of, in connection with, or in the vicinity of any latent Site conditions or Site risks (such as structural, building design, or environmental conditions), substrate or surface conditions (such as those set out in clause 11.3), or any of your acts or omissions (including your failure to maintain the painted surface in reasonable condition or excessive wear and tear).
11.3: The warranty in clause 11.1 does not cover, and we will in no way be liable for any claim arising out of or in connection with:
(a) substrates with existing corrosion or moisture ingress;
(b) surfaces affected by building movement or structural issues;
(c) Settling, movement, cracking, lifting, peeling, flaking, deterioration, effervescence, moisture ingress, or other failure of the painted substrate or a previous surface coating;
(d) concrete surfaces affected by concrete cancer or with a carbon contaminated concrete substrate;
(e) previously coated surfaces which may contain additives such as Xylene etc;
(f) ferric metals with existing rust conditions or non-ferric metals with existing oxidising issues;
(g) any galvanised metals whatsoever;
(h) any painted floor coating or natural timber coating performed in the course of the Works;
(i) failures as a result of colour choice including but not limited to such things as dark colours exposed to sunlight;
(j) paint products that have an additive / effect (such as metal oxidisation paints);
(k) water ingress or damage connected with the cleaning and preparation of surfaces;
(l) adhesion or performance issues caused as a result of faulty product or changes made to the formula of the product by the manufacturer; and
(m) any part of the Works where we have notified you that a surface is unsuitable for a particular coating and you directed us to apply that coating.
11.4: In addition to the warranty under clause 11.1, you will be entitled to any warranty provided by the manufacturer of paint products supplied by us in the performance of the Works.
12.1: To the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by stature, custom or the general law that impose any liability or obligation on us are excluded.
12.2: To the extent that the Australian Consumer Law permits us to limit our liability, or is not applicable, then our liability in respect of any claim arising out of or in connection with the agreement in relation to the Works or our performance or non-performance of the Works (whether arising under any contract, indemnity, statue, in tort (for negligence or otherwise), or on any other basis (in law or equity) is limited (in each case) as follows:
(a) In the case of defective services, supplying those services again or payment of the cost of having those services supplied again (at our election), and does not extend to services the subject of the Works which are not defective; and
(b) In the case of defective goods, to any remedy provided by the manufacturer in accordance with their warranty only, and any claim or dispute as to the suitability of the remedy will be a matter between you and the manufacturer directly; and
(c) We will not be liable to you for any claim in the nature of economic loss, loss of profits, revenue or anticipated savings, opportunity cost or any direct or indirect consequential loss whatsoever.
Clause 12 shall prevail over any inconsistency with any other provision of these terms and conditions.
13.1: If either party considers that a dispute has arisen in relation to the Works, either during the progress of the work, after completion of the work, or after the agreement has been terminated, that person must promptly give to the other party written notice of the items of dispute, and the parties must make every effort to resolve the dispute informally following such notification.
13.2: If the parties are unable to resolve the dispute informally, the parties must agree to appoint an independent mediator to conduct mediation. If a mediator cannot be agreed between the parties, of if the dispute Is not resolved following the assistance of such a third party, the parties may seek the assistance of Fair Trading to resolve the dispute.
If you, without reasonable and substantial cause;
(a) fail to pay a progress payment or any other amount due to us within the time allowed;
(b) imply you may not make, or will not be able to make either current or future payments to us;
(c) fail to perform any work or supply any materials as required under the Quotation;
(d) do not have the site clean and ready for work to be undertaken; or
(e) deny us access to the site, or otherwise prevent us from continuing with the work;
we may without prejudice to any other rights under these terms and conditions, suspend the work by giving written notice to you.
The suspension will stand until such time is the default is remedied, unless the contractor has terminated the agreement in accordance with Clause 15.
15.1: We may terminate the agreement for the performance of works at our convenience by giving you five (5) days written notice.
15.2: You may terminate the agreement for the performance of works only in circumstances where we are unable or unwilling to complete the work, abandon the work, or fail to proceed diligently with the work, by giving us five (5) days written notice.
15.3: Upon termination by either party, we are entitled to be paid by you for that part of works completed up to the date of termination. We are also entitled to be paid by you an amount up to the full outstanding Contract Price if the termination arises pursuant to clause 14.
15.4: If termination occurs prior to the start of works, we reserve the right to retain from the deposit an amount determined by us for costs incurred in respect to the works, including such things as administrative time, client correspondence, scheduling, preparations, site visits, and purchases etc.
15.5: Clauses 6, 11, 12, 13 and 17 survive any termination of these terms and conditions.
The work will be complete when we have finished the work in accordance with the Works set out in the Quotation, and all rubbish and surplus material have been removed from site.
17.1: The laws of New South Wales govern the agreement between you and us for the performance of the works and each party submits to the non-exclusive jurisdiction of the courts of New South Wales.
17.2: Any notice required to be given in writing shall be deemed to be given if delivered by hand, emailed, or sent by post to the person to whom it is intended and shall in the case of posting be deemed to be received after the expiry of two full business days from the date of posting.
17.3: If any provision of these terms and conditions is illegal or unenforceable, that provision is severed, and the remainder of the terms and conditions and provisions of the Quotation shall continue in force.
17.4: These terms and conditions constitute the entire agreement between the parties and supersedes any prior agreement, understanding or representation between us and you and any terms provided by you that purport to govern our performance of the works.