Terms &
Conditions
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1.1 “Supplier” means Next Floor Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Parquetry Flooring Company Pty Ltd ATF Parquetry Flooring Unit Trust T/A Parquetry Flooring Co Pty Ltd.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Supplier to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Works” means all Works or Materials supplied by the Supplier to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Supplier and the Client in accordance with clause 5 below.
1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and the Supplier.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3.1 The Client acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Works.
3.2 In the event, such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4.1 The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change in trustees, or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause
5.1 At the Supplier’s sole discretion, the Price shall be either:
(a) as indicated on invoices provided by the Supplier to the Client in respect of Works performed or Materials supplied; or
(b) the Supplier’s quoted Price (subject to clause 5.2) which shall be binding upon the Supplier provided that the Client shall accept the Supplier’s quotation in writing within ninety (90) days.
5.2 The Supplier reserves the right to change the Price:
(a) if a variation to the Materials which are to supplied is requested; or
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties which are only discovered on commencement of the Works; or
(d) in the event of increases to the Supplier in the cost of labour or materials which are beyond the Supplier’s control.
5.3 Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Client shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.4 At the Supplier’s sole discretion, a non-refundable deposit may be required for Materials specially ordered or as deemed necessary to complete the Works.
5.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by the Supplier, which may be:
(a) for Carpets, Vinyls and Rubber fifty percent (50%) at the time of ordering with the remainder due on completion of installation;
(b) for engineered floors, fifty percent (50%) at the time of ordering with the remainder due on completion of installation;
(c) for engineered floors and hybrids for supply only, fifty percent (50%) at the time of ordering with the remainder due on completion of delivery;
(d) for parquetry or unfinished timber boards, twenty-five percent (25%) on acceptance of quote, fifty percent (50%) on installation of flooring and balance twenty-five percent (25%) due on completion of the floor;
(e) by way of progress payments in accordance with the Supplier’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed;
(f) the date specified on any invoice or other form as being the date for payment; or
(g) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Supplier.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking/EFT, credit card excluding AMEX (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Supplier.
5.7 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
5.8 Unless otherwise stated the Price does include GST. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6.1 If the Supplier retains ownership of the Materials under clause 12 then;
(a) where the Supplier is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
(b) the Client or the Client’s nominated carrier takes possession of the Materials at the Supplier’s address; or
(c) the Materials are delivered by the Supplier or the Supplier’s nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
(d) where the Supplier is to both supply and install Materials then the Supplier shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
6.2 The cost of the delivery is included in the Price unless otherwise stated.
6.3 Notwithstanding the provisions of clause 6.1 if the Client specifically requests the Supplier to leave Materials outside the Supplier’s premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at sole risk of the Client and it shall be the Client’s responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at the Client’s expense.
6.4 In the event that polyurethane sealers are being applied to any surface, the Supplier recommends that the Client leaves the premises (while coatings are being applied). Such chemicals are harmful and may cause lung irritation, asthma-like respiratory reaction, irritation of the skin and eyes. The Supplier shall not be responsible if the Client suffers any such reaction due to the Clients negligence of the Suppliers recommendations.
7.1 The Client acknowledges and agrees that the Supplier is unable to commence any Works until the following is completed:
(a) all tiling in bathrooms, kitchen and laundries are completed; and
(b) all wall (gyprock/plaster) is completed; and
(c) all glazing be finished and doors are lockable; and
(d) electricity and water are connected and fully functional from within the premises; and
(e) concrete slab edges are sealed and/or protected from the elements; and
(f) all furniture and fittings in the installation area are removed; and
(g) storm seals must be fitted to all external doors in rooms where parquetry or our flooring is installed. Silicone sealer to be applied to both sides of aluminium door tracks on external doorways. Installed flooring must be protected from the elements.
(h) All furniture and personal items should be removed from the area to be carpeted prior to installation, unless stated on original order. Failure to do so will result in extra charges. Extras and accessories not included on original quotation will also result in additional charges.
7.2 It shall be the Clients responsibility to remove and/or cut down any doors (including, but not limited to, fitting trap doors. The Supplier may agree to remove and/or cut down any doors at the request of the Client and the Client shall be charged accordingly.
7.3 The Client accepts and acknowledges their responsibility to move and replace all appliances (including, but not limited to, dishwashers, fridges or stoves) when Works are required under them.
7.4 The Client must ensure that all pilot lights and/or naked flames are turned off prior to the commencement of a chemical application (such as polyurethane sealer).
7.5 Unless otherwise agreed between the Client and the Supplier, the removal of old flooring shall be at the Client’s responsibility. If the Supplier agrees to remove the old flooring at the request of the Client, an additional cost shall be charged.
7.6 The Client must ensure that all alarm systems and smoke detectors are deactivated whilst the Supplier is on site. If the Client is unable to deactivate the alarm systems and smoke detectors, then the Client shall be responsible for making any necessary alternative arrangements.
7.7 The Client must advise the Supplier if under floor heating has been or will be installed prior to commencement of the Works.
7.8 It is the Suppliers policy that the all nail holes in beadings will not be filled. The filling of any nail holes will be the Clients sole responsibility.
7.9 The Client agrees to provide heating for flooring when the temperature becomes less than ten (10) degrees during the installation and finishing process.
7.10 Whilst our suppliers use the best available techniques to minimise pattern distortion during manufacture, the extensible nature of textile products means that some distortion due to shrinkage or stretch is unavoidable, such that perfect pattern match cannot be guaranteed particularly over multiple width installations.
7.11 If at time of installation it is determined that floor preparation is required, then the Client is liable for this cost.
7.12 Carpet Joins are a necessary part of every carpet installation. Some carpet weaves such as loop pile may be more noticeable. There also may be the appearance of a shade difference between carpet on either side of a join caused by light reflection. The Client acknowledges that these do not indicate and installation or manufacturing defect.
7.13 Individual Manufacturer’s warranty applies in accordance with consumer law.
7.14 As some carpets are more visible than others all seams and join locations are placed at the discretion of the Supplier unless specially instructed.
8.1 The Supplier will not accept responsibility for any damage to the floor due to microenvironments caused by air-conditioning, heating or large expanses of glass windows without curtains or blinds.
8.2 Whilst the Supplier will take all due care to avoid contamination of the finished surface, the Supplier accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the worksite.
8.3 The Supplier will only inspect or view a installed floor covering from a standing position, as this is generally how you will be living on it. Minor marks or slight imperfections in the floor finish that can only be viewed from a crouching or kneeling position will not be considered defects.
8.4 The Client acknowledges that variations of colour, shade and grain are inherent in all kiln dried products and natural wood. While every effort will be taken by the Supplier to match colour, shade or grain of product, the Supplier shall not be liable for any loss, damages or costs however arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied.
8.5 The Supplier recommends the Client to allow up to three (3) months after completion of the Works before applying any rugs etc onto the flooring. The Supplier will not be held liable or responsible for any damages caused to any rugs, mats etc due to the Clients negligence of this clause.
8.6 The Client acknowledges and agrees that some chemical substances, chemical cleaning products (including, but not limited to, old wax, polish, oils, fly spray, silicon, ironing sprays or some natural resins within the timber) may reject floor finishes. If this occurs, the Supplier may (in order to rectify the problem) apply subsequent coating which may be an additional charge. The Supplier cannot guarantee adhesion of any subsequent recoats.
9.1 Timber is a natural product and as such may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst the Supplier will make every effort to match sales samples to the finished Materials the Supplier accepts no liability whatsoever where such samples differ to the finished Materials supplied.
9.2 Timber is a hydroscopic material subject to expansion and contraction; therefore, the Supplier will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods.
9.3 The Client acknowledges that Materials supplied may:
(a) fade or change colour over time; and
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching.
9.4 The Client acknowledges that some air conditioners can cause movement in the timber floors and the Supplier shall not be held responsible for any movement of the timber as a result of any air conditioning. The Client agrees that air conditioners must be fully functional during the installation process.
9.5 Whilst the Supplier will make every reasonable effort, some stains and/or imperfections may still be evident after sanding and coating (such as, Black Japan, water stains, dog or cat urine, rust around nail holes or deep cuts from trimming knives).
10.1 The Client acknowledges and agrees that the Supplier shall not be liable for any loss, damages or costs however arising in the event that:
(a) a heavy or sharp object is dropped or falls on the cork, as cork will show scratches and will get cut as it is a soft and flexible Good; or
(b) an object is dragged across it as cork can rip and tear.
10.2 The Client acknowledges that variations of colour and shade are inherent in all natural materials. While every effort will be taken by the Supplier to match colour or shade of product, the Supplier shall not be liable for any loss, damages or costs however arising resulting from any variation in colour or shading between batches of product or sale samples and the final product supplied.
10.3 The Supplier hereby requests the Client to remove any and all appliances in the installation area prior to the commencement of any works. The Client acknowledges and agrees that the Supplier shall not be held liable for any loss, damages or costs arising due to the Client’s failure to comply with this clause.
10.4 The Supplier shall advise the Client if the Supplier believes that there are any issues with the sub floor (including, but not limited to, moisture problems which may cause the cork to discolour) however the Client acknowledges that it is not always possible to identify such problems therefore the Client agrees that the Supplier shall not be held liable in any way whatsoever should any such issue go undetected causing damage to the Materials.
10.5 The Client acknowledges that whilst floor levelling compound and floor preparation may help smooth out rough floors; this will not necessarily level a floor
11.1 Subject to clause 11.2 it is the Supplier’s responsibility to ensure that the Works start as soon as it is reasonably possible.
11.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Supplier claims an extension of time (by giving the Client notice) where completion is delayed by an event beyond the Supplier’s control, including but not limited to any failure by the Client to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify the Supplier that the site is ready.
11.3 Any time specified by the Supplier for delivery of the Works is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Supplier is unable to supply the Works as agreed solely due to any action or inaction of the Client, then the Supplier shall be entitled to charge a reasonable fee for resupplying the Works at a later time and date, and/or for storage of the Materials.
12.1 The Supplier and the Client agree that ownership of the Materials shall not pass until:
(a) the Client has paid the Supplier all amounts owing to the Supplier; and
(b) the Client has met all of its other obligations to the Supplier.
12.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3 It is further agreed that:
(a) until ownership of the Materials passes to the Client in accordance with clause 12.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Supplier on request.
(b) the Client holds the benefit of the Client’s insurance of the Materials on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c) the production of these terms and conditions by the Supplier shall be sufficient evidence of the Supplier’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Supplier to make further enquiries.
(d) the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
(e) the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
(f) unless the Materials have become fixtures the Client irrevocably authorises the Supplier to enter any premises where the Supplier believes the Materials are kept and recover possession of the Materials.
(g) the Supplier may recover possession of any Materials in transit whether or not delivery has occurred.
(h) the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Supplier.
(i) the Supplier may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
13.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials that have previously been supplied and that will be supplied in the future by the Supplier to the Client.
13.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of the Supplier; and
(e) immediately advise the Supplier of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
13.4 The Supplier and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by the Supplier, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Client shall unconditionally ratify any actions taken by the Supplier under clauses 13.3 to 13.5.
13.9 Subject to any express provisions to the contrary (including those contained in this clause 14) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14.1 In consideration of the Supplier agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2 The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.
14.3 The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
15.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Client must allow the Supplier to inspect the Materials or to review the Works provided.
15.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (NonExcluded Guarantees).
15.3 The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5 If the Client is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6 If the Supplier is required to replace any Materials under this clause or the CCA, but is unable to do so, the Supplier may refund any money the Client has paid for the Materials.
15.7 If the Supplier is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then the Supplier may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
15.8 If the Client is not a consumer within the meaning of the CCA, the Supplier’s liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Supplier at the Supplier’s sole discretion; (b) limited to any warranty to which the Supplier is entitled, if the Supplier did not manufacture the Materials; (c) otherwise negated absolutely.
15.9 Subject to this clause 15, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 15.1; and
(b) the Supplier has agreed that the Materials are defective; and
(c) the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Materials are returned in as close a condition to that in which they were delivered as is possible.
15.10 Notwithstanding clauses 15.1 to 15.9 but subject to the CCA, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Materials;
(b) the Client using the Materials for any purpose other than that for which they were designed;
(c) the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Works by the Client or any third party without the Supplier’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by the Supplier; fair wear and tear, any accident, or act of God.
15.11 In the case of second hand Materials, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second-hand Materials prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Supplier has agreed to provide the Client with the second-hand Materials and calculated the Price of the second-hand Materials in reliance of this clause 15.11.
15.12 The Supplier may in its absolute discretion accept non-defective Materials for return in which case the Supplier may require the Client to pay handling fees of up to fifteen percent (15%) of the value of the returned Materials plus any freight costs.
15.13 Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will only accept a return on the conditions imposed by that law.
16.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
16.2 If the Client owes the Supplier any money the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Supplier’s contract default fee, and bank dishonour fees).
16.3 Further to any other rights or remedies the Supplier may have under this contract, if a Client has made payment to the Supplier, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 16 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
16.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Supplier;
(c) the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
17.1 Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Works to the Client. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause
17.2 The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Supplier for Works already performed. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.3 In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.4 Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18.1 The Client agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Supplier.
18.2 The Client agrees that the Supplier may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
18.3 The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
18.4 The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Works.
18.5 The Supplier may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
18.6 The information given to the CRB may include:
(a) personal information as outlined in 18.1 above;
(b) name of the credit provider and that the Supplier is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Supplier, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.7 The Client shall have the right to request (by e-mail) from the Supplier:
(a) a copy of the information about the Client retained by the Supplier and the right to request that the Supplier correct any incorrect information; and
(b) that the Supplier does not disclose any personal information about the Client for the purpose of direct marketing.
18.8 The Supplier will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
18.9 The Client can make a privacy complaint by contacting the Supplier via e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
19.1 At the Supplier’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payments Act 2009 may apply.
19.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of South Australia, except to the extent permitted by the Act where applicable.
20.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, arbitration in accordance with the Commercial Arbitration Act 2010 or its replacement(s).
20.2 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.3 These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia, the state in which the Supplier has its principal place of business and are subject to the jurisdiction of the Brisbane Courts in Queensland.
20.4 Subject to clause 15 the Supplier shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
20.5 The Supplier may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
20.6 The Client cannot licence or assign without the written approval of the Supplier.
20.7 The Supplier may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Supplier’s subcontractors without the authority of the Supplier.
20.8 The Client agrees that the Supplier may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Supplier to provide Works to the Client.
20.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
20.10 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
In consideration of the Supplier agreeing to supply the Goods and/or Services to the Client, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to the Supplier to secure the performance by the Client of its obligations under these terms and conditions including, but not limited to, the payment of any money.
The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause 9.
The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client’s behalf.
The Client indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Client) against the Supplier or, for which the Supplier is liable, in connection with any loss arising from or incidental to the provision of Goods and/or Services, any Order or the subject matter of these terms and conditions including, but not limited to, any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party/party legal costs for which the Supplier is liable in connection with any such claim or demand. This provision remains in force after the termination of these terms and conditions.
The Client acknowledges and understands that there may be colour variations in flooring products (“shading”), which is inherent in flooring products (including but not limited to ceramic tiles, carpeting, and wooden boards), from the sample to the delivered product and the sample is indicative only of the shade and finish. The Client also acknowledges that shading is not a manufacturing fault and that neither the manufacturer nor the Supplier will accept liability for any flooring products which may be affected by shading.
The Supplier is not liable for any loss caused to the Client by reason of Force Majeure, strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God, pandemics, Government Legislation or any other activity beyond the Supplier’s control.
In relation to the supply of Goods, the Supplier’s liability is limited to:
(a) Replacing the Goods or supplying similar goods;
(b) Repairing the Goods;
(c) Providing the cost for replacing the Goods or for acquiring equivalent Goods; and/or
(d) Providing the cost for having the Goods repaired.
In relation to the supply of Services, the Supplier’s liability is limited to:
(a) supplying the Services again; or
(b) providing for the cost of having the Services supplied again.
The Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Client.
Every exemption from liability to which the Supplier is entitled under these terms and conditions will extend to protect any subcontractor, employee or agent of the Supplier and for the benefit of such persons they shall be deemed to be parties to the contract between the Client and the Supplier.
If the Client is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2. The Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
1. (a) the Client failing to properly maintain or store any Goods;
2. (b) the Client using the Goods for any purpose other than that for which they were designed;
3. (c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
4. (d) the Client failing to follow any instructions or guidelines provided by the Supplier;
5. (e) fair wear and tear, any accident, or act of God or Force Majeure as defined.
Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will only accept a return on the conditions imposed by that law.
If the Client is a corporation, the Client warrants that all of its directors have signed this agreement or that the director who has signed this agreement has authority to sign on behalf of the Client pursuant to a minute of the corporation, and that all of its directors will enter into a guarantee and indemnity with the Supplier in relation to the Client’s obligations to the Supplier.
If the Client is the trustee of a trust (whether disclosed to the Supplier or not), the Client warrants to the Supplier that:
The Client enters into this agreement in both its capacity as trustee and in its personal capacity;
The Client has the right to be indemnified out of the trust assets;
The Client has the power under the trust deed to sign this agreement; and
The Client will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.
The Client must give the Supplier a copy of the trust deed upon request.
If the Client enters into this agreement as a partnership or as partners, the Client warrants that all of the partners have signed this agreement and that all of the partners will enter into a guarantee and indemnity with the Supplier in relation to the Client’s obligations to the Supplier.
If the Client is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for the new partners to sign a guarantee and indemnity as guarantor.
A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing. Any waiver that has not be made by the Supplier in writing shall not constitute a waiver of the Supplier’s rights under these terms and conditions.
1. The Client must pay GST on any taxable supply made by the Supplier to the Client under this agreement, The payment of GST is in addition to any other consideration payable by the Client for a taxable supply.
2. If, as a result of any legislation becoming applicable to the subject matter of this agreement; or Any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration; The Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Client, then the Client must pay the Supplier these additional amounts on demand.
The Client acknowledges and agrees that this agreement will be governed by the laws of Queensland, and the laws of the Commonwealth of Australia which are in force in Queensland.
The Client acknowledges and agrees that any contract for the supply of Goods and/or Services between the Supplier and the Client is formed at the address of the Supplier.
The parties to this agreement submit to the non-exclusive jurisdiction of the courts of Queensland and the relevant federal courts and courts competent to hear appeals from those courts.
No retention is applicable to this agreement.
If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.
The Client agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Client.
Any proposed variation to these terms and conditions by the Client must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
If there is more than one Client, then the liability of each Client under these terms and conditions will be joint and several.
These terms and conditions apply to all transactions between the Client and the Supplier relating to the provision of Goods and/or Services, including all quotations, contracts and variations. These terms and conditions take precedence over any terms and conditions contained in any document of the Client or elsewhere.
This agreement constitutes the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of not further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
(a) The Client shall indemnify and undertakes to keep indemnified the Supplier from and against any actions claims demands royalties costs and expenses of whatsoever description brought against or suffered by the Supplier by reason of or in consequence of any infringement of letters patent copyright trade marks or registered designs owned by any person arising from the manufacture of goods to the design specification or requirements of the Client. Where no tolerances or materials are specified by the Client’s drawings specifications or instructions the Supplier may manufacture the goods in its discretion to the appropriate Australian Standard or in accordance with usual trade usage.
(b) No responsibility is accepted for the safe custody of any of the Client’s dies, patterns or tools (whether included in the price of goods sold or not or as part of any quotation), samples, drawings, specifications, templates, or information supplied by the Client, all of which are held at the Clients entire risk as to loss or damage by any cause whatsoever (and none of which will be returned unless so requested by the Client, within twenty-one (21) days of the date of receipt by the Supplier of the order to which it relates) and the Supplier shall be under no liability to the Client or any other person for any disclosure of any information contained therein or for any reproduction thereof in any material form by any servant or agent of the Supplier.
(c) Where the Client supplies materials to the Supplier they will be held at the Client’s risk and the Supplier shall not be liable for any loss of or damage to such materials from any cause whatsoever (including but without limiting the generality of the foregoing loss of material due to faulty processing or during manufacture) whether due to the negligence of the Supplier its servants or agents or otherwise.
(d) Where materials are specified or supplied by the Client the Client shall be responsible for ensuring that such materials are fit for their required purpose.
Any recommendations or advice given by the Supplier to the Client related to the goods in any way whatsoever shall not form part of the contract and the Supplier shall not be liable to the Client if such recommendations or advice shall be incorrect incomplete or misleading PROVIDED HOWEVER that this provision shall not affect any rights of the Client under any statutory provisions which may be applicable but in any event the liability of the Supplier shall be limited in accordance with the terms of Clause 5 hereof.
The Supplier will use reasonable endeavours to deliver the goods on or within the time or times specified in the contract but failure so to do by reason of the inability of the Supplier to obtain supplies of the raw materials from its usual sources or any strike or lockout or by reason of war riots civil commotion fire act of God or any other cause whatsoever beyond the control of the Supplier shall not constitute a breach of contract but the contract shall be deemed to be suspended with liberty to the Supplier at any time to cancel it or any unfilled part thereof or to renew it upon the cessation of the cause preventing delivery.
If the manufacture or use or sale of any of the goods shall be forbidden or restricted by any competent Government Authority or if the contract shall be cancelled or suspended under the conditions thereof or if the Client shall at any time be in default under the contract the Client shall not be relieved thereby of the obligations imposed by the contract but without prejudice to any other rights which the Supplier may have under the contract shall be liable to pay in full for such of the goods as shall have already been manufactured or a proportional part (to be determined, unless otherwise agreed by arbitration pursuant to the provisions of the Commercial Arbitration Act 1984) for such as shall have been partially manufactured together with all costs charges and expenses incurred by the Supplier in preparatory work necessary for the manufacture of the goods including the costs of materials on hand and unabsorbed tooling and die costs if applicable.
Any photographs, illustrations, drawings or descriptive materials relating to goods contained in any catalogue brochure or advertisement are for the purpose of identification only and shall not constitute any contract relating to the goods or sale by description. The Supplier reserves the right to alter the design, construction, detail or specification of any of its goods described in any catalogue, brochure or advertising matter without notice.
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Warehouse
Unit 2/264 Leitchs Road, Brendale, QLD, 4500
Opening Hours
Monday – Friday 8am – 5pm
Next Floor Pty Ltd
ABN: 53 642 452 319
QBCC Licence: 15222944
Phone
0416 012 231
Email
admin@nextfloor.com.au
Postal Address
PO Box 681 Albany Creek QLD 4035