1.            Definitions

1.1 “Chapman Floor Coverings” means David Benjamin Chapman T/A Chapman Floor Covering, its successors (CFC Direct) and assigns or any person acting on behalf of and with the authority of David Benjamin Chapman T/A Chapman Floor Coverings.

1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Chapman Floor Coverings 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 (including consultation, manufacturing and/or installation services) or Materials supplied by Chapman Floor Coverings 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 Chapman Floor Coverings and the Client in accordance with clause 6 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.            Acceptance

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 Chapman Floor Coverings.

 

3.            Electronic Transactions Act

3.1 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 (NSW), the Electronic Transactions Act 2001 (ACT), or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

4.            Errors and Omissions

4.1 The Client acknowledges and accepts that Chapman Floor Coverings 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 Chapman Floor Coverings 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 Chapman Floor Coverings in respect of the Works.

4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of Chapman Floor Coverings; the Client shall not be entitled to treat this contract as repudiated nor render it invalid. 

 

5.            Change in Control

5.1 The Client shall give Chapman Floor Coverings 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 of trustees or business practice). The Client shall be liable for any loss incurred by Chapman Floor Coverings as a result of the Client’s failure to comply with this clause.

 

6.            Price and Payment

6.1          At Chapman Floor Coverings’ sole discretion the Price shall be either:

(a)          as indicated on invoices provided by Chapman Floor Coverings to the Client in respect of Works performed or Materials supplied; or

(b)          Chapman Floor Coverings’ quoted Price (subject to clause 6.2) which shall be binding upon Chapman Floor Coverings provided that the Client shall accept Chapman Floor Coverings’ quotation in writing within thirty (30) days.

6.2          Chapman Floor Coverings reserves the right to change the Price:

(a)          if a variation to the Materials which are to be 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 (including, but not limited to, stock availability, limitations to accessing the site, subfloor condition, prerequisite work by any third party not being completed etc) which are only discovered on commencement of the Works; or

(d)          in the event of increases to Chapman Floor Coverings in the cost of labour or materials which are beyond Chapman Floor Coverings’ control.

6.3          Variations will be charged for on the basis of Chapman Floor Coverings’ quotation, and will be detailed in writing, and shown as variations on Chapman Floor Coverings’ invoice. The Client shall be required to respond to any variation submitted by Chapman Floor Coverings within ten (10) working days.  Failure to do so will entitle Chapman Floor Coverings 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.

6.4          At Chapman Floor Coverings’ sole discretion a deposit may be required.

6.5          Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Chapman Floor Coverings, which may be:

(a)          on completion of the Works; or 

(b)          by way of progress payments in accordance with Chapman Floor Coverings’ 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; or

(c)           the date which is either seven (7) or fourteen (14) days following the date of any invoice given to the Client by Chapman Floor Coverings.

6.6          Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Chapman Floor Coverings.

6.7          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 Chapman Floor Coverings nor to withhold payment of any invoice because part of that invoice is in dispute.

6.8          Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Chapman Floor Coverings an amount equal to any GST Chapman Floor Coverings must pay for any supply by Chapman Floor Coverings under this or any other contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. 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.

 

7.            Delivery of the Works

7.1          Subject to clause 7.2 it is Chapman Floor Coverings’ responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Chapman Floor Coverings claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Chapman Floor Coverings’ 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 Chapman Floor Coverings that the site is ready.

7.3          At Chapman Floor Coverings’ sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

7.4          Any time specified by Chapman Floor Coverings for delivery of the Works is an estimate only and Chapman Floor Coverings 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 Chapman Floor Coverings is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Chapman Floor Coverings shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

 

8.            Risk

8.1          If Chapman Floor Coverings retains ownership of the Materials under clause 12 then:

(a)          where Chapman Floor Coverings 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;

(i)            the Client or the Client’s nominated carrier takes possession of the Materials at Chapman Floor Coverings’ address; or

(ii)           the Materials are delivered by Chapman Floor Coverings or Chapman Floor Coverings’ nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

(b)          where Chapman Floor Coverings is to both supply and install Materials then Chapman Floor Coverings 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.

8.2          The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and are of suitable capacity to support the Materials once installed. If for any reason that Chapman Floor Coverings, or employees of Chapman Floor Coverings, reasonably form the opinion that the Client’s premises are not safe for the installation of Materials to proceed then Chapman Floor Coverings shall be entitled to delay installation of the Materials until Chapman Floor Coverings is satisfied that it is safe for the installation to proceed. 

8.3          Chapman Floor Coverings 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.

8.4          Whilst Chapman Floor Coverings will take all due care to avoid contamination of the finished surface, Chapman Floor Coverings accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the work site.

Carpet Risk

8.5          The Client acknowledges and accept that;

(a)          whilst carpet manufacturers make every effort to match dye lots, colours or shade may vary between batches of product and/or between sales samples and actual product supplied; and

(b)          carpet manufacturers cannot guarantee to produce perfectly uniform patterned product, therefore there is no guarantee that patterned product will match perfectly when installed; and

(c)           the installation process for carpet may require seams and cross-joins and that the appearance of these may be affected by light source and in particular the construction of the chosen product.

Timber Risk

8.6 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 Chapman Floor Coverings will make every effort to match sales samples to the finished Materials Chapman Floor Coverings accepts no liability whatsoever where such samples differ to the finished Materials supplied.

8.7          Timber is also a hydroscopic material subject to expansion and contraction; therefore, Chapman Floor Coverings will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods. 

8.8 Chapman Floor Coverings will only inspect or view a timber floor 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.

8.9          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.

 

            Vinyl or Cork Tile Flooring Risk

8.10 The Client acknowledges and agrees that Chapman Floor Coverings 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 vinyl, as vinyl will show scratches and will get cut as it is a soft and flexible Good; or

(b)          an object is dragged across it as vinyl can rip and tear; or

(c)           the vinyl discolours or bubbles in areas due to exposure to extreme heat (including, but not limited to, conservatories and floor to ceiling windows).

8.11        Chapman Floor Coverings does not recommend vinyl to be installed over a floor that is a combination of wood and concrete, or expansion joints in concrete floors, as any movement, joint, seams in bison board, or thin line board will show through the vinyl.

8.12        The Client acknowledges and agrees that vinyl will not fully seal a floor around the edges particularly around showers or baths; the Client also agrees water can get underneath and therefore bubble and/or discolour the vinyl.  Chapman Floor Coverings shall not be held liable for any loss, damages or costs however arising due to the same.

8.13        Chapman Floor Coverings shall advise the Client if Chapman Floor Coverings believes that there are any issues with the sub floor (including, but not limited to, moisture problems which may cause the vinyl to bubble and discolour) however the Client acknowledges that it is not always possible to identify such problems therefore the Client agrees that Chapman Floor Coverings shall not be held liable in any way whatsoever should any such issue go undetected causing damage to the Materials.  

8.14        The Client acknowledges that whilst floor levelling compound and floor preparation may help smooth out rough floors; this will not necessarily level a floor.

 

9.            Client’s Responsibilities

9.1          It is the Client’s responsibility to;

(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation; and  (b) remove all existing floor coverings, tacks and staples; and

(c)           fully disclose any information that may affect Chapman Floor Coverings’ installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa); and

(d)          ensure the sub-floor is adequately ventilated and is structurally sound; and

(e)          ensure that the levels of the sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness; and 

(f)           remove all fragile items such as glassware, crockery, pot plants, appliances, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by Chapman Floor Coverings in this regard; and

(g)          provide adequate dust sheets to protect the Client’s furniture and décor. Chapman Floor Coverings will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any sanding process. Flaking or crumbling walls should be temporarily covered by the Client, until the coatings are dry; and

(h)          extinguish all naked flames prior to coating including, but not limited to, pilot lights, heaters etc; and

(i)            supply power to within eight (8) metres of the project; and

(j)           ensure that full and final lighting as designed for the completed project is fully operational prior to sanding works commencing, and are made available for use at no cost for the duration of the project. Any costs incurred by Chapman Floor Coverings will be invoiced to the Client should this requirement not be met; and

(k)          make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between Chapman Floor Coverings and the Client, any additional costs will be invoiced to the Client as an extra.

9.2 Chapman Floor Coverings is not insured to remove furniture or fittings and will not do so, nor is Chapman Floor Coverings licensed to move gas or electrical appliances.

 

10.          Access

10.1 The Client shall ensure that Chapman Floor Coverings has clear and free access to the work site at all times to enable them to undertake the Works. Chapman Floor Coverings shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Chapman Floor Coverings.

 

11.          Compliance with Laws

11.1 The Client and Chapman Floor Coverings shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.

11.2       The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

11.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

 

12.          Title

12.1       Chapman Floor Coverings and the Client agree that ownership of the Materials shall not pass until: (a) the Client has paid Chapman Floor Coverings all amounts owing to Chapman Floor Coverings; and (b) the Client has met all of its other obligations to Chapman Floor Coverings.

12.2 Receipt by Chapman Floor Coverings 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 until ownership of the Materials passes to the Client in accordance with clause 12.1:

(a)          the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Chapman Floor Coverings on request. 

(b)          the Client holds the benefit of the Client’s insurance of the Materials on trust for Chapman Floor Coverings and must pay to Chapman Floor Coverings 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 Chapman Floor Coverings shall be sufficient evidence of Chapman Floor Coverings’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Chapman Floor Coverings 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 Chapman Floor Coverings and must pay or deliver the proceeds to Chapman Floor Coverings 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 Chapman Floor Coverings and must sell, dispose of or return the resulting product to Chapman Floor Coverings as it so directs. 

(f)           unless the Materials have become fixtures the Client irrevocably authorises Chapman Floor Coverings to enter any premises where Chapman Floor Coverings believes the Materials are kept and recover possession of the Materials.

(g)          Chapman Floor Coverings 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 Chapman Floor Coverings. 

(i)            Chapman Floor Coverings may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

 

13.          Personal Property Securities Act 2009 (“PPSA”)

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 and/or collateral (account) – being a monetary obligation of the Client to Chapman Floor Coverings for Works – that have previously been supplied and that will be supplied in the future by Chapman Floor Coverings 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 Chapman Floor Coverings 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 6.1(a)(i) or 6.1(a)(ii);

(b)          indemnify, and upon demand reimburse, Chapman Floor Coverings 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 Chapman Floor Coverings; 

(d)          not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Chapman Floor Coverings;

(e)          immediately advise Chapman Floor Coverings 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        Chapman Floor Coverings 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 Chapman Floor Coverings, 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 Chapman Floor Coverings under clauses 13.3 to 13.5.

13.9        Subject to any express provisions to the contrary (including those contained in this clause 13) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

14.          Security and Charge

14.1 In consideration of Chapman Floor Coverings 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 Chapman Floor Coverings from and against all Chapman Floor Coverings’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Chapman Floor Coverings’ rights under this clause.

14.3 The Client irrevocably appoints Chapman Floor Coverings and each director of Chapman Floor Coverings 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.          Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

15.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify Chapman Floor Coverings 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 Chapman Floor Coverings 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 Chapman Floor Coverings 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, Chapman Floor Coverings makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. Chapman Floor Coverings’ 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, Chapman Floor Coverings’ liability is limited to the extent permitted by section 64A of Schedule 2.

15.6 If Chapman Floor Coverings is required to replace any Materials under this clause or the CCA, but is unable to do so, Chapman Floor Coverings may refund any money the Client has paid for the Materials.

15.7 If Chapman Floor Coverings 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 Chapman Floor Coverings 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, Chapman Floor Coverings’ 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 Chapman Floor Coverings at Chapman Floor Coverings’ sole discretion;

(b)          limited to any warranty to which Chapman Floor Coverings is entitled, if Chapman Floor Coverings 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)          Chapman Floor Coverings 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, Chapman Floor Coverings 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 Chapman Floor Coverings’ prior approval;

(e)          the Client failing to follow any instructions or guidelines provided by Chapman Floor Coverings; (f) fair wear and tear, any accident, or act of God.

15.11     Chapman Floor Coverings may in its absolute discretion accept non-defective Materials for return in which case Chapman Floor Coverings may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Materials plus any freight costs.

15.12     Notwithstanding anything contained in this clause if Chapman Floor Coverings is required by a law to accept a return then Chapman Floor Coverings will only accept a return on the conditions imposed by that law.

 

16.          Intellectual Property

16.1 Where Chapman Floor Coverings has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Chapman Floor Coverings, and shall only be used by the Client at Chapman Floor Coverings’ discretion.  Under no circumstances may such designs, drawings and documents be used without the express written approval of Chapman Floor Coverings.  

16.2 The Client warrants that all designs, specifications or instructions given to Chapman Floor Coverings will not cause Chapman Floor Coverings to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Chapman Floor Coverings against any action taken by a third party against Chapman Floor Coverings in respect of any such infringement.

16.3 The Client agrees that Chapman Floor Coverings may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Chapman Floor Coverings has created for the Client.

 

17.          Default and Consequences of Default

17.1 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 Chapman Floor Coverings’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

17.2 If the Client owes Chapman Floor Coverings any money the Client shall indemnify Chapman Floor Coverings from and against all costs and disbursements incurred by Chapman Floor Coverings in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Chapman Floor Coverings’ contract default fee, and bank dishonour fees).

17.3 Further to any other rights or remedies Chapman Floor Coverings may have under this contract, if a Client has made payment to Chapman Floor Coverings, 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 Chapman Floor Coverings under this clause 17 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.

17.4 Without prejudice to Chapman Floor Coverings’ other remedies at law Chapman Floor Coverings shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Chapman Floor Coverings shall, whether or not due for payment, become immediately payable if:

(a)          any money payable to Chapman Floor Coverings becomes overdue, or in Chapman Floor Coverings’ 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 Chapman Floor Coverings;

(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.

 

18.          Cancellation

18.1 Without prejudice to any other remedies Chapman Floor Coverings may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Chapman Floor Coverings may suspend or terminate the supply of Works to the Client. Chapman Floor Coverings will not be liable to the Client for any loss or damage the Client suffers because Chapman Floor Coverings has exercised its rights under this clause.

18.2 Chapman Floor Coverings 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 Chapman Floor Coverings shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Chapman Floor Coverings for Works already performed. Chapman Floor Coverings shall not be liable for any loss or damage whatsoever arising from such cancellation.

18.3 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 Chapman Floor Coverings as a direct result of the cancellation (including, but not limited to, any loss of profits).

 

19.          Privacy Act 1988

19.1 The Client agrees for Chapman Floor Coverings 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 Chapman Floor Coverings. 

19.2 The Client agrees that Chapman Floor Coverings 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.

19.3        The Client consents to Chapman Floor Coverings being given a consumer credit report to collect overdue payment on commercial credit.

19.4        The Client agrees that personal credit information provided may be used and retained by Chapman Floor Coverings 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.

19.5       Chapman Floor Coverings 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.

19.6       The information given to the CRB may include:

(a)          personal information as outlined in 19.1 above;

(b)          name of the credit provider and that Chapman Floor Coverings 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 Chapman Floor Coverings has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g)          information that, in the opinion of Chapman Floor Coverings, 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).

19.7       The Client shall have the right to request (by e-mail) from Chapman Floor Coverings:

(a)          a copy of the information about the Client retained by Chapman Floor Coverings and the right to request that Chapman Floor Coverings correct any incorrect information; and

(b)          that Chapman Floor Coverings does not disclose any personal information about the Client for the purpose of direct marketing.

19.8        Chapman Floor Coverings 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. 

19.9        The Client can make a privacy complaint by contacting Chapman Floor Coverings via e-mail. Chapman Floor Coverings 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.

 

20.          Other Applicable Legislation

20.1 At Chapman Floor Coverings’ 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 1999 (New South Wales) and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.

20.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 20.1 (each as applicable), except to the extent permitted by the Act where applicable.

 

21.          Service of Notices

21.1       Any written notice given under this contract shall be deemed to have been given and received:

(a)          by handing the notice to the other party, in person;

(b)          by leaving it at the address of the other party as stated in this contract;

(c)           by sending it by registered post to the address of the other party as stated in this contract;

(d)          if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

(e)          if sent by email to the other party’s last known email address.

21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

22.          Trusts

22.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Chapman Floor Coverings may have notice of the Trust, the Client covenants with Chapman Floor Coverings as follows:

(a)          the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b)          the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.

(c)           The Client will not without consent in writing of Chapman Floor Coverings (Chapman Floor Coverings will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events; (i) the removal, replacement or retirement of the Client as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.

 

23.          General

23.1 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.

23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of either New South Wales or Australian Capital Territory in which state the Materials and/or Works were provided by Chapman Floor Coverings to the Client however, in the vent of a dispute that deems necessary for the matter to be referred to the Magistrates or higher Court then the jurisdiction will be subject to the Queanbeyan Court in the state of New South Wales in which Chapman Floor Coverings has its principal place of business. 

23.3 Subject to clause 15 Chapman Floor Coverings 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 Chapman Floor Coverings of these terms and conditions (alternatively Chapman Floor Coverings’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

23.4 Chapman Floor Coverings may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

23.5       The Client cannot licence or assign without the written approval of Chapman Floor Coverings.

23.6 Chapman Floor Coverings 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 Chapman Floor Coverings’ sub-contractors without the authority of Chapman Floor Coverings.

23.7 The Client agrees that Chapman Floor Coverings 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 Chapman Floor Coverings to provide Works to the Client. 

23.8 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.

 

23.9 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. 1.            Definitions

 

1.1 “Chapman Floor Coverings” means David Benjamin Chapman T/A Chapman Floor Coverings, its successors and assigns or any person acting on behalf of and with the authority of David Benjamin Chapman T/A Chapman Floor Coverings.

1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Chapman Floor Coverings 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 (including consultation, manufacturing and/or installation services) or Materials supplied by Chapman Floor Coverings 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 Chapman Floor Coverings and the Client in accordance with clause 6 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.            Acceptance

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 Chapman Floor Coverings.

 

3.            Electronic Transactions Act

3.1 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 (NSW), the Electronic Transactions Act 2001 (ACT), or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

4.            Errors and Omissions

4.1 The Client acknowledges and accepts that Chapman Floor Coverings 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 Chapman Floor Coverings 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 Chapman Floor Coverings in respect of the Works.

4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of Chapman Floor Coverings; the Client shall not be entitled to treat this contract as repudiated nor render it invalid. 

 

5.            Change in Control

5.1 The Client shall give Chapman Floor Coverings 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 of trustees or business practice). The Client shall be liable for any loss incurred by Chapman Floor Coverings as a result of the Client’s failure to comply with this clause.

 

6.            Price and Payment

6.1          At Chapman Floor Coverings’ sole discretion the Price shall be either:

(a)          as indicated on invoices provided by Chapman Floor Coverings to the Client in respect of Works performed or Materials supplied; or

(b)          Chapman Floor Coverings’ quoted Price (subject to clause 6.2) which shall be binding upon Chapman Floor Coverings provided that the Client shall accept Chapman Floor Coverings’ quotation in writing within thirty (30) days.

6.2          Chapman Floor Coverings reserves the right to change the Price:

(a)          if a variation to the Materials which are to be 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 (including, but not limited to, stock availability, limitations to accessing the site, subfloor condition, prerequisite work by any third party not being completed etc) which are only discovered on commencement of the Works; or

(d)          in the event of increases to Chapman Floor Coverings in the cost of labour or materials which are beyond Chapman Floor Coverings’ control.

6.3          Variations will be charged for on the basis of Chapman Floor Coverings’ quotation, and will be detailed in writing, and shown as variations on Chapman Floor Coverings’ invoice. The Client shall be required to respond to any variation submitted by Chapman Floor Coverings within ten (10) working days.  Failure to do so will entitle Chapman Floor Coverings 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.

6.4          At Chapman Floor Coverings’ sole discretion a deposit may be required.

6.5          Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Chapman Floor Coverings, which may be:

(a)          on completion of the Works; or 

(b)          by way of progress payments in accordance with Chapman Floor Coverings’ 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; or

(c)           the date which is either seven (7) or fourteen (14) days following the date of any invoice given to the Client by Chapman Floor Coverings.

6.6          Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Chapman Floor Coverings.

6.7          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 Chapman Floor Coverings nor to withhold payment of any invoice because part of that invoice is in dispute.

6.8          Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Chapman Floor Coverings an amount equal to any GST Chapman Floor Coverings must pay for any supply by Chapman Floor Coverings under this or any other contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. 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.

 

7.            Delivery of the Works

7.1          Subject to clause 7.2 it is Chapman Floor Coverings’ responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Chapman Floor Coverings claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Chapman Floor Coverings’ 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 Chapman Floor Coverings that the site is ready.

7.3          At Chapman Floor Coverings’ sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

7.4          Any time specified by Chapman Floor Coverings for delivery of the Works is an estimate only and Chapman Floor Coverings 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 Chapman Floor Coverings is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Chapman Floor Coverings shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

 

8.            Risk

8.1          If Chapman Floor Coverings retains ownership of the Materials under clause 12 then:

(a)          where Chapman Floor Coverings 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;

(i)            the Client or the Client’s nominated carrier takes possession of the Materials at Chapman Floor Coverings’ address; or

(ii)           the Materials are delivered by Chapman Floor Coverings or Chapman Floor Coverings’ nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

(b)          where Chapman Floor Coverings is to both supply and install Materials then Chapman Floor Coverings 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.

8.2          The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and are of suitable capacity to support the Materials once installed. If for any reason that Chapman Floor Coverings, or employees of Chapman Floor Coverings, reasonably form the opinion that the Client’s premises are not safe for the installation of Materials to proceed then Chapman Floor Coverings shall be entitled to delay installation of the Materials until Chapman Floor Coverings is satisfied that it is safe for the installation to proceed. 

8.3          Chapman Floor Coverings 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.

8.4          Whilst Chapman Floor Coverings will take all due care to avoid contamination of the finished surface, Chapman Floor Coverings accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the work site.

Carpet Risk

8.5          The Client acknowledges and accept that;

(a)          whilst carpet manufacturers make every effort to match dye lots, colours or shade may vary between batches of product and/or between sales samples and actual product supplied; and

(b)          carpet manufacturers cannot guarantee to produce perfectly uniform patterned product, therefore there is no guarantee that patterned product will match perfectly when installed; and

(c)           the installation process for carpet may require seams and cross-joins and that the appearance of these may be affected by light source and in particular the construction of the chosen product.

Timber Risk

8.6 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 Chapman Floor Coverings will make every effort to match sales samples to the finished Materials Chapman Floor Coverings accepts no liability whatsoever where such samples differ to the finished Materials supplied.

8.7          Timber is also a hydroscopic material subject to expansion and contraction; therefore, Chapman Floor Coverings will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods. 

8.8 Chapman Floor Coverings will only inspect or view a timber floor 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.

8.9          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.

 

            Vinyl or Cork Tile Flooring Risk

8.10 The Client acknowledges and agrees that Chapman Floor Coverings 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 vinyl, as vinyl will show scratches and will get cut as it is a soft and flexible Good; or

(b)          an object is dragged across it as vinyl can rip and tear; or

(c)           the vinyl discolours or bubbles in areas due to exposure to extreme heat (including, but not limited to, conservatories and floor to ceiling windows).

8.11        Chapman Floor Coverings does not recommend vinyl to be installed over a floor that is a combination of wood and concrete, or expansion joints in concrete floors, as any movement, joint, seams in bison board, or thin line board will show through the vinyl.

8.12        The Client acknowledges and agrees that vinyl will not fully seal a floor around the edges particularly around showers or baths; the Client also agrees water can get underneath and therefore bubble and/or discolour the vinyl.  Chapman Floor Coverings shall not be held liable for any loss, damages or costs however arising due to the same.

8.13        Chapman Floor Coverings shall advise the Client if Chapman Floor Coverings believes that there are any issues with the sub floor (including, but not limited to, moisture problems which may cause the vinyl to bubble and discolour) however the Client acknowledges that it is not always possible to identify such problems therefore the Client agrees that Chapman Floor Coverings shall not be held liable in any way whatsoever should any such issue go undetected causing damage to the Materials.  

8.14        The Client acknowledges that whilst floor levelling compound and floor preparation may help smooth out rough floors; this will not necessarily level a floor.

 

9.            Client’s Responsibilities

9.1          It is the Client’s responsibility to;

(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation; and  (b) remove all existing floor coverings, tacks and staples; and

(c)           fully disclose any information that may affect Chapman Floor Coverings’ installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa); and

(d)          ensure the sub-floor is adequately ventilated and is structurally sound; and

(e)          ensure that the levels of the sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness; and 

(f)           remove all fragile items such as glassware, crockery, pot plants, appliances, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by Chapman Floor Coverings in this regard; and

(g)          provide adequate dust sheets to protect the Client’s furniture and décor. Chapman Floor Coverings will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any sanding process. Flaking or crumbling walls should be temporarily covered by the Client, until the coatings are dry; and

(h)          extinguish all naked flames prior to coating including, but not limited to, pilot lights, heaters etc; and

(i)            supply power to within eight (8) metres of the project; and

(j)           ensure that full and final lighting as designed for the completed project is fully operational prior to sanding works commencing, and are made available for use at no cost for the duration of the project. Any costs incurred by Chapman Floor Coverings will be invoiced to the Client should this requirement not be met; and

(k)          make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between Chapman Floor Coverings and the Client, any additional costs will be invoiced to the Client as an extra.

9.2 Chapman Floor Coverings is not insured to remove furniture or fittings and will not do so, nor is Chapman Floor Coverings licensed to move gas or electrical appliances.

 

10.          Access

10.1 The Client shall ensure that Chapman Floor Coverings has clear and free access to the work site at all times to enable them to undertake the Works. Chapman Floor Coverings shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Chapman Floor Coverings.

 

11.          Compliance with Laws

11.1 The Client and Chapman Floor Coverings shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.

11.2       The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

11.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

 

12.          Title

12.1       Chapman Floor Coverings and the Client agree that ownership of the Materials shall not pass until: (a) the Client has paid Chapman Floor Coverings all amounts owing to Chapman Floor Coverings; and (b) the Client has met all of its other obligations to Chapman Floor Coverings.

12.2 Receipt by Chapman Floor Coverings 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 until ownership of the Materials passes to the Client in accordance with clause 12.1:

(a)          the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Chapman Floor Coverings on request. 

(b)          the Client holds the benefit of the Client’s insurance of the Materials on trust for Chapman Floor Coverings and must pay to Chapman Floor Coverings 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 Chapman Floor Coverings shall be sufficient evidence of Chapman Floor Coverings’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Chapman Floor Coverings 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 Chapman Floor Coverings and must pay or deliver the proceeds to Chapman Floor Coverings 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 Chapman Floor Coverings and must sell, dispose of or return the resulting product to Chapman Floor Coverings as it so directs. 

(f)           unless the Materials have become fixtures the Client irrevocably authorises Chapman Floor Coverings to enter any premises where Chapman Floor Coverings believes the Materials are kept and recover possession of the Materials.

(g)          Chapman Floor Coverings 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 Chapman Floor Coverings. 

(i)            Chapman Floor Coverings may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

 

13.          Personal Property Securities Act 2009 (“PPSA”)

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 and/or collateral (account) – being a monetary obligation of the Client to Chapman Floor Coverings for Works – that have previously been supplied and that will be supplied in the future by Chapman Floor Coverings 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 Chapman Floor Coverings 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 6.1(a)(i) or 6.1(a)(ii);

(b)          indemnify, and upon demand reimburse, Chapman Floor Coverings 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 Chapman Floor Coverings; 

(d)          not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Chapman Floor Coverings;

(e)          immediately advise Chapman Floor Coverings 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        Chapman Floor Coverings 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 Chapman Floor Coverings, 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 Chapman Floor Coverings under clauses 13.3 to 13.5.

13.9        Subject to any express provisions to the contrary (including those contained in this clause 13) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

14.          Security and Charge

14.1 In consideration of Chapman Floor Coverings 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 Chapman Floor Coverings from and against all Chapman Floor Coverings’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Chapman Floor Coverings’ rights under this clause.

14.3 The Client irrevocably appoints Chapman Floor Coverings and each director of Chapman Floor Coverings 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.          Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

15.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify Chapman Floor Coverings 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 Chapman Floor Coverings 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 Chapman Floor Coverings 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, Chapman Floor Coverings makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. Chapman Floor Coverings’ 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, Chapman Floor Coverings’ liability is limited to the extent permitted by section 64A of Schedule 2.

15.6 If Chapman Floor Coverings is required to replace any Materials under this clause or the CCA, but is unable to do so, Chapman Floor Coverings may refund any money the Client has paid for the Materials.

15.7 If Chapman Floor Coverings 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 Chapman Floor Coverings 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, Chapman Floor Coverings’ 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 Chapman Floor Coverings at Chapman Floor Coverings’ sole discretion;

(b)          limited to any warranty to which Chapman Floor Coverings is entitled, if Chapman Floor Coverings 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)          Chapman Floor Coverings 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, Chapman Floor Coverings 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 Chapman Floor Coverings’ prior approval;

(e)          the Client failing to follow any instructions or guidelines provided by Chapman Floor Coverings; (f) fair wear and tear, any accident, or act of God.

15.11     Chapman Floor Coverings may in its absolute discretion accept non-defective Materials for return in which case Chapman Floor Coverings may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Materials plus any freight costs.

15.12     Notwithstanding anything contained in this clause if Chapman Floor Coverings is required by a law to accept a return then Chapman Floor Coverings will only accept a return on the conditions imposed by that law.

 

16.          Intellectual Property

16.1 Where Chapman Floor Coverings has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Chapman Floor Coverings, and shall only be used by the Client at Chapman Floor Coverings’ discretion.  Under no circumstances may such designs, drawings and documents be used without the express written approval of Chapman Floor Coverings.  

16.2 The Client warrants that all designs, specifications or instructions given to Chapman Floor Coverings will not cause Chapman Floor Coverings to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Chapman Floor Coverings against any action taken by a third party against Chapman Floor Coverings in respect of any such infringement.

16.3 The Client agrees that Chapman Floor Coverings may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Chapman Floor Coverings has created for the Client.

 

17.          Default and Consequences of Default

17.1 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 Chapman Floor Coverings’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

17.2 If the Client owes Chapman Floor Coverings any money the Client shall indemnify Chapman Floor Coverings from and against all costs and disbursements incurred by Chapman Floor Coverings in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Chapman Floor Coverings’ contract default fee, and bank dishonour fees).

17.3 Further to any other rights or remedies Chapman Floor Coverings may have under this contract, if a Client has made payment to Chapman Floor Coverings, 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 Chapman Floor Coverings under this clause 17 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.

17.4 Without prejudice to Chapman Floor Coverings’ other remedies at law Chapman Floor Coverings shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Chapman Floor Coverings shall, whether or not due for payment, become immediately payable if:

(a)          any money payable to Chapman Floor Coverings becomes overdue, or in Chapman Floor Coverings’ 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 Chapman Floor Coverings;

(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.

 

18.          Cancellation

18.1 Without prejudice to any other remedies Chapman Floor Coverings may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Chapman Floor Coverings may suspend or terminate the supply of Works to the Client. Chapman Floor Coverings will not be liable to the Client for any loss or damage the Client suffers because Chapman Floor Coverings has exercised its rights under this clause.

18.2 Chapman Floor Coverings 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 Chapman Floor Coverings shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Chapman Floor Coverings for Works already performed. Chapman Floor Coverings shall not be liable for any loss or damage whatsoever arising from such cancellation.

18.3 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 Chapman Floor Coverings as a direct result of the cancellation (including, but not limited to, any loss of profits).

 

19.          Privacy Act 1988

19.1 The Client agrees for Chapman Floor Coverings 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 Chapman Floor Coverings. 

19.2 The Client agrees that Chapman Floor Coverings 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.

19.3        The Client consents to Chapman Floor Coverings being given a consumer credit report to collect overdue payment on commercial credit.

19.4        The Client agrees that personal credit information provided may be used and retained by Chapman Floor Coverings 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.

19.5       Chapman Floor Coverings 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.

19.6       The information given to the CRB may include:

(a)          personal information as outlined in 19.1 above;

(b)          name of the credit provider and that Chapman Floor Coverings 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 Chapman Floor Coverings has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g)          information that, in the opinion of Chapman Floor Coverings, 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).

19.7       The Client shall have the right to request (by e-mail) from Chapman Floor Coverings:

(a)          a copy of the information about the Client retained by Chapman Floor Coverings and the right to request that Chapman Floor Coverings correct any incorrect information; and

(b)          that Chapman Floor Coverings does not disclose any personal information about the Client for the purpose of direct marketing.

19.8        Chapman Floor Coverings 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. 

19.9        The Client can make a privacy complaint by contacting Chapman Floor Coverings via e-mail. Chapman Floor Coverings 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.

 

20.          Other Applicable Legislation

20.1 At Chapman Floor Coverings’ 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 1999 (New South Wales) and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.

20.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 20.1 (each as applicable), except to the extent permitted by the Act where applicable.

 

21.          Service of Notices

21.1       Any written notice given under this contract shall be deemed to have been given and received:

(a)          by handing the notice to the other party, in person;

(b)          by leaving it at the address of the other party as stated in this contract;

(c)           by sending it by registered post to the address of the other party as stated in this contract;

(d)          if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

(e)          if sent by email to the other party’s last known email address.

21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

22.          Trusts

22.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Chapman Floor Coverings may have notice of the Trust, the Client covenants with Chapman Floor Coverings as follows:

(a)          the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b)          the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.

(c)           The Client will not without consent in writing of Chapman Floor Coverings (Chapman Floor Coverings will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events; (i) the removal, replacement or retirement of the Client as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.

 

23.          General

23.1 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.

23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of either New South Wales or Australian Capital Territory in which state the Materials and/or Works were provided by Chapman Floor Coverings to the Client however, in the vent of a dispute that deems necessary for the matter to be referred to the Magistrates or higher Court then the jurisdiction will be subject to the Queanbeyan Court in the state of New South Wales in which Chapman Floor Coverings has its principal place of business. 

23.3 Subject to clause 15 Chapman Floor Coverings 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 Chapman Floor Coverings of these terms and conditions (alternatively Chapman Floor Coverings’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

23.4 Chapman Floor Coverings may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

23.5       The Client cannot licence or assign without the written approval of Chapman Floor Coverings.

23.6 Chapman Floor Coverings 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 Chapman Floor Coverings’ sub-contractors without the authority of Chapman Floor Coverings.

23.7 The Client agrees that Chapman Floor Coverings 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 Chapman Floor Coverings to provide Works to the Client. 

23.8 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.

 

23.9 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. 1.            Definitions

 

1.1 “Chapman Floor Coverings” means David Benjamin Chapman T/A Chapman Floor Coverings, its successors and assigns or any person acting on behalf of and with the authority of David Benjamin Chapman T/A Chapman Floor Coverings.

1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting Chapman Floor Coverings 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 (including consultation, manufacturing and/or installation services) or Materials supplied by Chapman Floor Coverings 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 Chapman Floor Coverings and the Client in accordance with clause 6 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.            Acceptance

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 Chapman Floor Coverings.

 

3.            Electronic Transactions Act

3.1 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 (NSW), the Electronic Transactions Act 2001 (ACT), or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

4.            Errors and Omissions

4.1 The Client acknowledges and accepts that Chapman Floor Coverings 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 Chapman Floor Coverings 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 Chapman Floor Coverings in respect of the Works.

4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of Chapman Floor Coverings; the Client shall not be entitled to treat this contract as repudiated nor render it invalid. 

 

5.            Change in Control

5.1 The Client shall give Chapman Floor Coverings 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 of trustees or business practice). The Client shall be liable for any loss incurred by Chapman Floor Coverings as a result of the Client’s failure to comply with this clause.

 

6.            Price and Payment

6.1          At Chapman Floor Coverings’ sole discretion the Price shall be either:

(a)          as indicated on invoices provided by Chapman Floor Coverings to the Client in respect of Works performed or Materials supplied; or

(b)          Chapman Floor Coverings’ quoted Price (subject to clause 6.2) which shall be binding upon Chapman Floor Coverings provided that the Client shall accept Chapman Floor Coverings’ quotation in writing within thirty (30) days.

6.2          Chapman Floor Coverings reserves the right to change the Price:

(a)          if a variation to the Materials which are to be 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 (including, but not limited to, stock availability, limitations to accessing the site, subfloor condition, prerequisite work by any third party not being completed etc) which are only discovered on commencement of the Works; or

(d)          in the event of increases to Chapman Floor Coverings in the cost of labour or materials which are beyond Chapman Floor Coverings’ control.

6.3          Variations will be charged for on the basis of Chapman Floor Coverings’ quotation, and will be detailed in writing, and shown as variations on Chapman Floor Coverings’ invoice. The Client shall be required to respond to any variation submitted by Chapman Floor Coverings within ten (10) working days.  Failure to do so will entitle Chapman Floor Coverings 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.

6.4          At Chapman Floor Coverings’ sole discretion a deposit may be required.

6.5          Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by Chapman Floor Coverings, which may be:

(a)          on completion of the Works; or 

(b)          by way of progress payments in accordance with Chapman Floor Coverings’ 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; or

(c)           the date which is either seven (7) or fourteen (14) days following the date of any invoice given to the Client by Chapman Floor Coverings.

6.6          Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Chapman Floor Coverings.

6.7          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 Chapman Floor Coverings nor to withhold payment of any invoice because part of that invoice is in dispute.

6.8          Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Chapman Floor Coverings an amount equal to any GST Chapman Floor Coverings must pay for any supply by Chapman Floor Coverings under this or any other contract for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. 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.

 

7.            Delivery of the Works

7.1          Subject to clause 7.2 it is Chapman Floor Coverings’ responsibility to ensure that the Works start as soon as it is reasonably possible.

7.2 The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that Chapman Floor Coverings claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond Chapman Floor Coverings’ 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 Chapman Floor Coverings that the site is ready.

7.3          At Chapman Floor Coverings’ sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.

7.4          Any time specified by Chapman Floor Coverings for delivery of the Works is an estimate only and Chapman Floor Coverings 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 Chapman Floor Coverings is unable to supply the Works as agreed solely due to any action or inaction of the Client, then Chapman Floor Coverings shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.

 

8.            Risk

8.1          If Chapman Floor Coverings retains ownership of the Materials under clause 12 then:

(a)          where Chapman Floor Coverings 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;

(i)            the Client or the Client’s nominated carrier takes possession of the Materials at Chapman Floor Coverings’ address; or

(ii)           the Materials are delivered by Chapman Floor Coverings or Chapman Floor Coverings’ nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).

(b)          where Chapman Floor Coverings is to both supply and install Materials then Chapman Floor Coverings 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.

8.2          The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation of the Materials and are of suitable capacity to support the Materials once installed. If for any reason that Chapman Floor Coverings, or employees of Chapman Floor Coverings, reasonably form the opinion that the Client’s premises are not safe for the installation of Materials to proceed then Chapman Floor Coverings shall be entitled to delay installation of the Materials until Chapman Floor Coverings is satisfied that it is safe for the installation to proceed. 

8.3          Chapman Floor Coverings 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.

8.4          Whilst Chapman Floor Coverings will take all due care to avoid contamination of the finished surface, Chapman Floor Coverings accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the work site.

Carpet Risk

8.5          The Client acknowledges and accept that;

(a)          whilst carpet manufacturers make every effort to match dye lots, colours or shade may vary between batches of product and/or between sales samples and actual product supplied; and

(b)          carpet manufacturers cannot guarantee to produce perfectly uniform patterned product, therefore there is no guarantee that patterned product will match perfectly when installed; and

(c)           the installation process for carpet may require seams and cross-joins and that the appearance of these may be affected by light source and in particular the construction of the chosen product.

Timber Risk

8.6 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 Chapman Floor Coverings will make every effort to match sales samples to the finished Materials Chapman Floor Coverings accepts no liability whatsoever where such samples differ to the finished Materials supplied.

8.7          Timber is also a hydroscopic material subject to expansion and contraction; therefore, Chapman Floor Coverings will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods. 

8.8 Chapman Floor Coverings will only inspect or view a timber floor 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.

8.9          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.

 

            Vinyl or Cork Tile Flooring Risk

8.10 The Client acknowledges and agrees that Chapman Floor Coverings 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 vinyl, as vinyl will show scratches and will get cut as it is a soft and flexible Good; or

(b)          an object is dragged across it as vinyl can rip and tear; or

(c)           the vinyl discolours or bubbles in areas due to exposure to extreme heat (including, but not limited to, conservatories and floor to ceiling windows).

8.11        Chapman Floor Coverings does not recommend vinyl to be installed over a floor that is a combination of wood and concrete, or expansion joints in concrete floors, as any movement, joint, seams in bison board, or thin line board will show through the vinyl.

8.12        The Client acknowledges and agrees that vinyl will not fully seal a floor around the edges particularly around showers or baths; the Client also agrees water can get underneath and therefore bubble and/or discolour the vinyl.  Chapman Floor Coverings shall not be held liable for any loss, damages or costs however arising due to the same.

8.13        Chapman Floor Coverings shall advise the Client if Chapman Floor Coverings believes that there are any issues with the sub floor (including, but not limited to, moisture problems which may cause the vinyl to bubble and discolour) however the Client acknowledges that it is not always possible to identify such problems therefore the Client agrees that Chapman Floor Coverings shall not be held liable in any way whatsoever should any such issue go undetected causing damage to the Materials.  

8.14        The Client acknowledges that whilst floor levelling compound and floor preparation may help smooth out rough floors; this will not necessarily level a floor.

 

9.            Client’s Responsibilities

9.1          It is the Client’s responsibility to;

(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation; and  (b) remove all existing floor coverings, tacks and staples; and

(c)           fully disclose any information that may affect Chapman Floor Coverings’ installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa); and

(d)          ensure the sub-floor is adequately ventilated and is structurally sound; and

(e)          ensure that the levels of the sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness; and 

(f)           remove all fragile items such as glassware, crockery, pot plants, appliances, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by Chapman Floor Coverings in this regard; and

(g)          provide adequate dust sheets to protect the Client’s furniture and décor. Chapman Floor Coverings will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any sanding process. Flaking or crumbling walls should be temporarily covered by the Client, until the coatings are dry; and

(h)          extinguish all naked flames prior to coating including, but not limited to, pilot lights, heaters etc; and

(i)            supply power to within eight (8) metres of the project; and

(j)           ensure that full and final lighting as designed for the completed project is fully operational prior to sanding works commencing, and are made available for use at no cost for the duration of the project. Any costs incurred by Chapman Floor Coverings will be invoiced to the Client should this requirement not be met; and

(k)          make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between Chapman Floor Coverings and the Client, any additional costs will be invoiced to the Client as an extra.

9.2 Chapman Floor Coverings is not insured to remove furniture or fittings and will not do so, nor is Chapman Floor Coverings licensed to move gas or electrical appliances.

 

10.          Access

10.1 The Client shall ensure that Chapman Floor Coverings has clear and free access to the work site at all times to enable them to undertake the Works. Chapman Floor Coverings shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of Chapman Floor Coverings.

 

11.          Compliance with Laws

11.1 The Client and Chapman Floor Coverings shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.

11.2       The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.

11.3 The Client agrees that the site will comply with any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.

 

12.          Title

12.1       Chapman Floor Coverings and the Client agree that ownership of the Materials shall not pass until: (a) the Client has paid Chapman Floor Coverings all amounts owing to Chapman Floor Coverings; and (b) the Client has met all of its other obligations to Chapman Floor Coverings.

12.2 Receipt by Chapman Floor Coverings 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 until ownership of the Materials passes to the Client in accordance with clause 12.1:

(a)          the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to Chapman Floor Coverings on request. 

(b)          the Client holds the benefit of the Client’s insurance of the Materials on trust for Chapman Floor Coverings and must pay to Chapman Floor Coverings 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 Chapman Floor Coverings shall be sufficient evidence of Chapman Floor Coverings’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with Chapman Floor Coverings 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 Chapman Floor Coverings and must pay or deliver the proceeds to Chapman Floor Coverings 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 Chapman Floor Coverings and must sell, dispose of or return the resulting product to Chapman Floor Coverings as it so directs. 

(f)           unless the Materials have become fixtures the Client irrevocably authorises Chapman Floor Coverings to enter any premises where Chapman Floor Coverings believes the Materials are kept and recover possession of the Materials.

(g)          Chapman Floor Coverings 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 Chapman Floor Coverings. 

(i)            Chapman Floor Coverings may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

 

13.          Personal Property Securities Act 2009 (“PPSA”)

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 and/or collateral (account) – being a monetary obligation of the Client to Chapman Floor Coverings for Works – that have previously been supplied and that will be supplied in the future by Chapman Floor Coverings 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 Chapman Floor Coverings 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 6.1(a)(i) or 6.1(a)(ii);

(b)          indemnify, and upon demand reimburse, Chapman Floor Coverings 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 Chapman Floor Coverings; 

(d)          not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of Chapman Floor Coverings;

(e)          immediately advise Chapman Floor Coverings 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        Chapman Floor Coverings 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 Chapman Floor Coverings, 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 Chapman Floor Coverings under clauses 13.3 to 13.5.

13.9        Subject to any express provisions to the contrary (including those contained in this clause 13) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

14.          Security and Charge

14.1 In consideration of Chapman Floor Coverings 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 Chapman Floor Coverings from and against all Chapman Floor Coverings’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Chapman Floor Coverings’ rights under this clause.

14.3 The Client irrevocably appoints Chapman Floor Coverings and each director of Chapman Floor Coverings 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.          Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

15.1 The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify Chapman Floor Coverings 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 Chapman Floor Coverings 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 Chapman Floor Coverings 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, Chapman Floor Coverings makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. Chapman Floor Coverings’ 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, Chapman Floor Coverings’ liability is limited to the extent permitted by section 64A of Schedule 2.

15.6 If Chapman Floor Coverings is required to replace any Materials under this clause or the CCA, but is unable to do so, Chapman Floor Coverings may refund any money the Client has paid for the Materials.

15.7 If Chapman Floor Coverings 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 Chapman Floor Coverings 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, Chapman Floor Coverings’ 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 Chapman Floor Coverings at Chapman Floor Coverings’ sole discretion;

(b)          limited to any warranty to which Chapman Floor Coverings is entitled, if Chapman Floor Coverings 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)          Chapman Floor Coverings 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, Chapman Floor Coverings 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 Chapman Floor Coverings’ prior approval;

(e)          the Client failing to follow any instructions or guidelines provided by Chapman Floor Coverings; (f) fair wear and tear, any accident, or act of God.

15.11     Chapman Floor Coverings may in its absolute discretion accept non-defective Materials for return in which case Chapman Floor Coverings may require the Client to pay handling fees of up to twenty percent (20%) of the value of the returned Materials plus any freight costs.

15.12     Notwithstanding anything contained in this clause if Chapman Floor Coverings is required by a law to accept a return then Chapman Floor Coverings will only accept a return on the conditions imposed by that law.

 

16.          Intellectual Property

16.1 Where Chapman Floor Coverings has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Chapman Floor Coverings, and shall only be used by the Client at Chapman Floor Coverings’ discretion.  Under no circumstances may such designs, drawings and documents be used without the express written approval of Chapman Floor Coverings.  

16.2 The Client warrants that all designs, specifications or instructions given to Chapman Floor Coverings will not cause Chapman Floor Coverings to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Chapman Floor Coverings against any action taken by a third party against Chapman Floor Coverings in respect of any such infringement.

16.3 The Client agrees that Chapman Floor Coverings may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which Chapman Floor Coverings has created for the Client.

 

17.          Default and Consequences of Default

17.1 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 Chapman Floor Coverings’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

17.2 If the Client owes Chapman Floor Coverings any money the Client shall indemnify Chapman Floor Coverings from and against all costs and disbursements incurred by Chapman Floor Coverings in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Chapman Floor Coverings’ contract default fee, and bank dishonour fees).

17.3 Further to any other rights or remedies Chapman Floor Coverings may have under this contract, if a Client has made payment to Chapman Floor Coverings, 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 Chapman Floor Coverings under this clause 17 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.

17.4 Without prejudice to Chapman Floor Coverings’ other remedies at law Chapman Floor Coverings shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Chapman Floor Coverings shall, whether or not due for payment, become immediately payable if:

(a)          any money payable to Chapman Floor Coverings becomes overdue, or in Chapman Floor Coverings’ 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 Chapman Floor Coverings;

(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.

 

18.          Cancellation

18.1 Without prejudice to any other remedies Chapman Floor Coverings may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Chapman Floor Coverings may suspend or terminate the supply of Works to the Client. Chapman Floor Coverings will not be liable to the Client for any loss or damage the Client suffers because Chapman Floor Coverings has exercised its rights under this clause.

18.2 Chapman Floor Coverings 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 Chapman Floor Coverings shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to Chapman Floor Coverings for Works already performed. Chapman Floor Coverings shall not be liable for any loss or damage whatsoever arising from such cancellation.

18.3 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 Chapman Floor Coverings as a direct result of the cancellation (including, but not limited to, any loss of profits).

 

19.          Privacy Act 1988

19.1 The Client agrees for Chapman Floor Coverings 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 Chapman Floor Coverings. 

19.2 The Client agrees that Chapman Floor Coverings 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.

19.3        The Client consents to Chapman Floor Coverings being given a consumer credit report to collect overdue payment on commercial credit.

19.4        The Client agrees that personal credit information provided may be used and retained by Chapman Floor Coverings 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.

19.5       Chapman Floor Coverings 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.

19.6       The information given to the CRB may include:

(a)          personal information as outlined in 19.1 above;

(b)          name of the credit provider and that Chapman Floor Coverings 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 Chapman Floor Coverings has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g)          information that, in the opinion of Chapman Floor Coverings, 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).

19.7       The Client shall have the right to request (by e-mail) from Chapman Floor Coverings:

(a)          a copy of the information about the Client retained by Chapman Floor Coverings and the right to request that Chapman Floor Coverings correct any incorrect information; and

(b)          that Chapman Floor Coverings does not disclose any personal information about the Client for the purpose of direct marketing.

19.8        Chapman Floor Coverings 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. 

19.9        The Client can make a privacy complaint by contacting Chapman Floor Coverings via e-mail. Chapman Floor Coverings 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.

 

20.          Other Applicable Legislation

20.1 At Chapman Floor Coverings’ 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 1999 (New South Wales) and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.

20.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 20.1 (each as applicable), except to the extent permitted by the Act where applicable.

 

21.          Service of Notices

21.1       Any written notice given under this contract shall be deemed to have been given and received:

(a)          by handing the notice to the other party, in person;

(b)          by leaving it at the address of the other party as stated in this contract;

(c)           by sending it by registered post to the address of the other party as stated in this contract;

(d)          if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;

(e)          if sent by email to the other party’s last known email address.

21.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

22.          Trusts

22.1 If the Client at any time upon or subsequent to entering in to the contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Chapman Floor Coverings may have notice of the Trust, the Client covenants with Chapman Floor Coverings as follows:

(a)          the contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b)          the Client has full and complete power and authority under the Trust to enter into the contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.

(c)           The Client will not without consent in writing of Chapman Floor Coverings (Chapman Floor Coverings will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events; (i) the removal, replacement or retirement of the Client as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust; (iii) any advancement or distribution of capital of the Trust; or (iv) any resettlement of the trust property.

 

23.          General

23.1 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.

23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of either New South Wales or Australian Capital Territory in which state the Materials and/or Works were provided by Chapman Floor Coverings to the Client however, in the vent of a dispute that deems necessary for the matter to be referred to the Magistrates or higher Court then the jurisdiction will be subject to the Queanbeyan Court in the state of New South Wales in which Chapman Floor Coverings has its principal place of business. 

23.3 Subject to clause 15 Chapman Floor Coverings 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 Chapman Floor Coverings of these terms and conditions (alternatively Chapman Floor Coverings’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).

23.4 Chapman Floor Coverings may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

23.5       The Client cannot licence or assign without the written approval of Chapman Floor Coverings.

23.6 Chapman Floor Coverings 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 Chapman Floor Coverings’ sub-contractors without the authority of Chapman Floor Coverings.

23.7 The Client agrees that Chapman Floor Coverings 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 Chapman Floor Coverings to provide Works to the Client. 

23.8 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.

 

23.9 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.