M. Thompson Pty Ltd T/A Brisbanes Finest Floors – Terms & Conditions of Trade
“BFF” shall mean Thompson Pty Ltd T/A Brisbanes Finest Floors, its successors and assigns or any person acting on behalf of and with the authority of M. Thompson Pty Ltd T/A Brisbanes Finest Floors.
“Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by BFF to the Client.
“Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
“Goods” shall mean all Goods supplied by BFF to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by BFF to the Client.
“Equipment” shall mean all Equipment including any accessories supplied on hire by BFF to the Client (and where the context so permits shall include any supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by BFF to the Client.
“Services” shall mean all Services supplied by BFF to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
“Price” shall mean the Price payable for the Goods as agreed between BFF and the Client in accordance with clause 4 of this contract.
The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
Any instructions received by BFF from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by BFF shall constitute acceptance of the terms and conditions contained herein.
Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of BFF.
The Client shall give BFF not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by BFF as a result of the Client’s failure to comply with this clause.
Goods are supplied by BFF only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
Price and Payment
At BFF’s sole discretion the Price shall be either:
as indicated on invoices provided by BFF to the Client in respect of Goods supplied; or
BFF’s quoted Price (subject to clause 2) which shall be binding upon BFF provided that the Client shall accept BFF’s quotation within six (6) months.
BFF reserves the right to change the Price in the event of a variation to BFF’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as floor preparation, rotten floor boards, cleaning, extra rooms, additional Goods required, take-up and disposal of old floor coverings, or as a result of increases to BFF in the cost of materials and labour) will be charged for on the basis of BFFs quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
At BFF’s sole discretion:
a deposit may be required; or
payment shall be due on delivery of the Goods; or
payment shall be due before delivery of the Goods; or
detailed progress payment claims may be submitted by BFF in accordance with BFF’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Client and BFF.
GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Delivery of Goods
At BFF’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by BFF or BFF’s nominated carrier).
The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then BFF shall be entitled to charge a reasonable fee for redelivery.
Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
The failure of BFF to deliver shall not entitle either party to treat this contract as repudiated.
BFF shall not be liable for any loss or damage whatsoever due to failure by BFF to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of BFF.
The Equipment shall at all times remain the property of BFF and is returnable on demand by BFF. In the event that the Equipment is not returned to BFF in the condition in which it was delivered BFF retains the right to charge the Price of repair or replacement of the Equipment.
The Client shall;
keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by BFF to the Client.
The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, BFF’s interest in the Equipment and agrees to indemnify BFF against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
If BFF retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, BFF is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by BFF is sufficient evidence of BFF’s rights to receive the insurance proceeds without the need for any person dealing with BFF to make further enquiries.
Where the Client expressly requests BFF to leave Goods outside BFF’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
The Client acknowledges and accepts that:
Goods supplied may:
exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines, indentations and may fade or change colour over time; and
expand, contract or distort as a result of exposure to heat, cold, weather; and
mark or stain if exposed to certain substances; and
be damaged or disfigured by impact or scratching; and
floor board replacement repairs (including but not limited to, cutting of doors, quad beading and sanding of doorsteps) are not included in the quotation unless specified; and
skirting Boards/Kick Boards may exhibit some markings on these surfaces due to the necessity of high speed sanding equipment to be operated right up to the skirting to achieve the best possible result; and
coatings may reject Polyurethane with some chemical substances for example, old wax, polish, oils and even natural resins in timber. Any subsequent recoats necessary to rectify this occurrence may be charged for; and
finishing in some areas filled with putty damaged by termite, or borer, or dry rot, will not have the same gloss level as the rest of the floor; and
beadings, trim and/or silicone is not included unless specified in the quotation; and
different types of old floor coverings for example “Black Japan”, old coatings or wax may produce a “two tone” effect in some older timbers, which cannot be sanded out; and
deep cuts from carpet trimming knives or deep gauges in timber may not be removed; and
residual contamination existing on the floorboards prior to the commencement of work (including but not limited to IE silicon, household cleaners, shampoo, conditioner, ironing aids, bug repellent) may affect the final appearance of the floorboards. BFF shall not be liable for any such affects on the finished floorboards; and
movement between boards may stretch polyurethane and cause an opaque line;
gaps between boards may cause ‘quilting’; and
swirling marks from rotary equipment is a normal part of the sanding process and can be visible under certain lighting; and
some existing stains and markings (such as black marks around nails and water marks) on the floorboards cannot be removed; and
cupping of timber can occur after sanding and polishing due to moisture levels in timber; and
edge bonging is a consequence of timber shrinkage and the boards been stuck together with the polyurethane and is not a result of the services provided by BFF.
Timber is a hydroscopic material subject to expansion and contraction, therefore BFF will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods.
BFF shall not be liable for any damage or inconsistencies in the floor boards caused by air-conditioning, air flow, sun exposure, dust in the air, heating or large expanses of glass windows without curtains or blinds, or any other site conditions that effect the completed condition of the floors.
Whilst BFF will take all due care to avoid contamination of the finished surface, BFF accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the worksite.
BFF 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.
It is the Clients responsibility to:
have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation. BFF is not insured to remove furniture or fittings and will not do so nor is BFF licensed to move gas or electrical appliances; and
remove all existing floor coverings, tacks and staples; and
remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damage are the responsibility of the Client. All care is taken but no responsibility accepted by BFF in this regard; and
provide adequate dustsheets to protect the Clients furniture and décor. BFF cannot accept any responsibility for the cleaning or repair cost attributed to dust or damage caused by the sanding or cutting process. Flaking or crumbing walls should be temporarily covered by the Client, until the coatings are dry; and
supply power to within 8 metres of the project; and
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 BFF and the Client, any additional costs will be invoiced to the Client as a variation to the original quote as per clause 2.
BFF shall not be liable if the Client does not follow BFF’s recommendation to:
no foot traffic on the flooring for a minimum of twenty-four (24) hours but preferably seven (7) days; and
no furniture to be placed on floor for a minimum of forty-eight (48) hours; and
felt to be placed under furniture legs to reduce any damage by impact or scratching.
The Client acknowledges that it is the responsibility of the Client to remove all rubbish from the work site unless the Client instructs BFF prior to the commencement of the Services. This will then attract a surcharge for this removal and will be treated as a variation as per clause 2.
The Client agrees to indemnify BFF against any claims howsoever arising from the provisions in clause 8.
The Client agrees to indemnify BFF from any damage caused by any other tradesman during and after the completion of the Services. If the Client instructions BFF to rectify any damage caused by any other tradesman, this will become a variation to the original quotation and will be charged at BFF’s normal hourly rate per clause 2.
The Client shall ensure that BFF has clear and free access to the work site at all times to enable them to undertake the works. BFF 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 BFF.
Prior to BFF commencing any work the Client must advise BFF of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
Whilst BFF will take all care to avoid damage to any underground services the Client agrees to indemnify BFF in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 1.
BFF and the Client agree that ownership of the Goods shall not pass until:
the Client has paid BFF all amounts owing for the particular Goods; and
the Client has met all other obligations due by the Client to BFF in respect of all contracts between BFF and the Client.
Receipt by BFF 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 and until then BFF’s ownership or rights in respect of the Goods shall continue.
It is further agreed that:
where practicable the Goods shall be kept separate and identifiable until BFF shall have received payment and all other obligations of the Client are met; and
until such time as ownership of the Goods shall pass from BFF to the Client BFF may give notice in writing to the Client to return the Goods or any of them to BFF. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
BFF shall have the right of stopping the Goods in transit whether or not delivery has been made; and
if the Client fails to return the Goods to BFF then BFF or BFF’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and
the Client is only a bailee of the Goods and until such time as BFF has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to BFF for the Goods, on trust for BFF; and
the Client shall not deal with the money of BFF in any way which may be adverse to BFF; and
the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of BFF; and
BFF can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that BFF will be the owner of the end products.
The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify BFF of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford BFF an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which BFF has agreed in writing that the Client is entitled to reject, BFF’s liability is limited to either (at BFF’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
Goods will not be accepted for return other than in accordance with 1 above.
Subject to the conditions of warranty set out in clause 2 BFF warrants that if any defect in any workmanship of BFF becomes apparent and is reported to BFF within three (3) years of the date of delivery (time being of the essence) then BFF will either (at BFF’s sole discretion) replace or remedy the workmanship.
The conditions applicable to the warranty given by clause 1 are:
the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
failure on the part of the Client to properly maintain any Goods; or
failure on the part of the Client to follow any instructions or guidelines provided by BFF; or
any use of any Goods otherwise than for any application specified on a quote or order form; or
the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
fair wear and tear, any accident or act of God.
the warranty shall cease and BFF shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without BFF’s consent.
in respect of all claims BFF shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
For Goods not manufactured by BFF, the warranty shall be the current warranty provided by the manufacturer of the Goods. BFF shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
Where BFF has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in BFF, and shall only be used by the Client at BFF’s discretion.
The Client warrants that all designs or instructions to BFF will not cause BFF to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify BFF against any action taken by a third party against BFF in respect of any such infringement.
The Client agrees that BFF may use any documents, designs, drawings or Goods created by BFF for the purposes of advertising, marketing, or entry into any competition.
Default and Consequences of Default
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 BFF’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by BFF.
If the Client defaults in payment of any invoice when due, the Client shall indemnify BFF from and against all costs and disbursements incurred by BFF in pursuing the debt including legal costs on a solicitor and own client basis and BFF’s collection agency costs.
Without prejudice to any other remedies BFF may have, if at any time the Client is in breach of any obligation (including those relating to payment) BFF may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. BFF will not be liable to the Client for any loss or damage the Client suffers because BFF has exercised its rights under this clause.
If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
Without prejudice to BFF’s other remedies at law BFF shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to BFF shall, whether or not due for payment, become immediately payable in the event that:
any money payable to BFF becomes overdue, or in BFF’s opinion the Client will be unable to meet its payments as they fall due; or
the Client becomes insolvent, 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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Security and Charge
Despite anything to the contrary contained herein or any other rights which BFF may have howsoever:
where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to BFF or BFF’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that BFF (or BFF’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
should BFF elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify BFF from and against all BFF’s costs and disbursements including legal costs on a solicitor and own client basis.
the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint BFF or BFF’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 1.
BFF may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice BFF shall repay to the Client any sums paid in respect of the Price. BFF shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by BFF (including, but not limited to, any loss of profits) up to the time of cancellation.
Privacy Act 1988
The Client and/or the Guarantor/s (herein referred to as the Client) agree for BFF to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by BFF.
The Client agrees that BFF may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
to assess an application by the Client; and/or
to notify other credit providers of a default by the Client; and/or
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
to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
The Client consents to BFF being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
The Client agrees that personal credit information provided may be used and retained by BFF for the following purposes (and for other purposes as shall be agreed between the Client and BFF or required by law from time to time):
the provision of Goods; and/or
the marketing of Goods by BFF, its agents or distributors; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
BFF may give information about the Client to a credit reporting agency for the following purposes:
to obtain a consumer credit report about the Client;
allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
The information given to the credit reporting agency may include:
personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
details concerning the Client’s application for credit or commercial credit and the amount requested;
advice that BFF is a current credit provider to the Client;
advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
information that, in the opinion of BFF, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
that credit provided to the Client by BFF has been paid or otherwise discharged.
Building and Construction Industry Payments Act 2004
At BFF’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of Queensland, except to the extent permitted by the Act where applicable.
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.
These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of
BFF 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 BFF of these terms and conditions.
In the event of any breach of this contract by BFF the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
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 BFF nor to withhold payment of any invoice because part of that invoice is in dispute.
BFF may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
The Client agrees that BFF may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which BFF notifies the Client of such change.
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.
The failure by BFF to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect BFF’s right to subsequently enforce that provision.