 "Timberlast WA")
1. DEFINITIONS
'Timberlast W.A' means Timberlast W.A composite decking, its employees, contractors, sub-contractors and any other party authorised by it.
'Deposit' means the deposit as further described in Clause 3 of this Agreement inclusive of any terms attached thereto specially non-refundability but not limited thereto.
'Product' means the decking boards and installation of the boards or any other services contracted between Timberlast W.A and the client.
'The Timberlast W.A website' means www.timberlastwa.com.au or such other address as Timberlast WA may advise the client of from time to time in writing.
'The Manufacturer's website' means any website of any manufacturer who's product is provided by or supplied by Timberlast as set out in the website or any such other place as they may advise the client of.
'The site' means the physical locale where the delivery and/or installation are to take place.
Subject to law the quotation, these conditions and the plans and the specifications (inclusive of labour specifications which are available of the Timberlast W.A website and in product specifications and other specifications available on the Manufacturer's Website) comprise the contract which contains the whole agreement between Timberlast W.A and the Client. If there is any inconsistency, the conditions, the plans and the specifications have precedence in that order. The contract is taken to have been entered into when the quotation is accepted and the deposit paid.
3. DEPOSIT
A 10% non-refundable deposit is required before an order can be accepted or materials ordered. Receipt of a deposit and a signed and dated quotation/order is acknowledgment of agreement by the addressee of this document, "the Client" to all proposals, costs, payables and specification of goods contained in this document, the terms and conditions set out on the back of the quotation and the terms and conditions set out by the Manufacturer.
4. QUOTATION
This quotation is valid for fourteen (14) days from the date of issue by Timberlast W.A. Timberlast W.A is only responsible for the carrying out of works listed and agreed upon in the quotation. Any additional work required, to comply with local authority requirements and regulations, shall be completed at the client's expense.
5. PAYMENT
The client agrees to pay Timberlast W.A in the agreed form between the parties. Timberlast W.A has complete discretion as to how this payment should be made and when. This will be agreed to by the parties upon acceptance of the quotation and the deposit being paid. If the client fails to make payment when due or payable, then all monies owing to Timberlast W.A shall become immediately due and payable and the client will further pay to Timberlast W.A:
a. Interest on the amount outstanding at a rate of 6% per annum, calculated monthly from the date of default to the actual payment.
b. All legal costs and associated expenses and any other expenses whatsoever, including but not limited to the full cost of debt collection, reasonably incurred by Timberlast W.A in consequence of the client's default shall be paid by the client on demand. And the client agrees that such costs shall be assessed on an indemnity basis.
Property in the product shall remain the property of Timberlast W.A until installed at the site or collected by the client.
If the client fails to make a due payment to Timberlast W.A then Timberlast W.A reserves the right to lodge a security interest entry for the debt on the Personal Property Security Register (PPSR) in accordance with the Personal Property Securities Act 2009 (Cth) (PPSA). The client understands and accepts that it is at the discretion of Timberlast W.A to either lodge a purchase money security interest (PMSI) or a standard security interest.
The client authorises Timberlast W.A to place a security interest over personal property including but not limited to motor vehicles, boats, caravans, trailers, artwork, crops, inventory, livestock, plant and machinery, shares, intellectual property and investment instruments.The client agrees to do any anything required by Timberlast W.A for the purposes of:
i) Ensuring that the security interest is enforceable, perfected and otherwise effective; and/or
ii) Enabling Timberlast W.A to apply for any Registration, complete any Financing Statement or Financing Change Statement or given notification, in connection with the Security Interest; and/or
iii) Enabling Timberlast W.A to exercise rights in connection with the Security Interest; and/or
iv) Ensuring that Timberlast W.A has priority over all other Security Interests in the goods.
i) Registration, amendment, or discharge of any Financing Statement registered by or on behalf of Timberlast W.A; and
ii) Enforcement of any Security Interest granted to Timberlast W.A by the client.
Disputes and/or claims do not constitute grounds for non-payment of amounts other than those in dispute.
7. ACCESSThe client must give Timberlast W.A uninterrupted access to the site to check, measure, deliver and install the product. If Timberlast W.A asks for access and the client cannot provide adequate access within 7 days, the client is in serious breach of their obligations. It is the client's responsibility to ensure that Timberlast W.A is able to reasonably access the site and has sufficient possession in order to conduct its work.
The client warrants that the site will be clear, level and free of hindrance prior to the commencement of any work. The client must provide adequate access to electricity. If Timberlast W.A attempts to access the site and is unable to reasonable do so the charges related to travel and delivery within the quotation will have taken to be spent and any additional attempts will have to be renegotiated and paid for.
It is the responsibility of the client to inform Timberlast W.A of any services, examples being but not limited to plumbing, reticulation, septics, drains, electrical wire, that may affect the installation of the deck. No party may access the working area except with approval from Timberlast W.A. If requested by Timberlast W.A to leave the working area the client must agree and comply immediately. The client indemnifies Timberlast W.A against unauthorised trespass to the working area and to the site any person.8. MEASURING
If the client provides to Timberlast W.A the measurements of the site where the product is to be installed it takes all responsibility for these measurements being correct. The risks of any costs associated with the failure of measurement lies entirely with the client.
9. SPECIFICATIONS
The work of making and installing the product will be carried out in accordance with the quotation. Specifications of materials and hardware are available from both the Timberlast W.A website and the Manufacturer's website. It is the clients responsibility to obtain there specifications and conduct due diligence to ensure the product is appropriate and suitable. These specifications include, but are not limited to:
a. Variations in the pattern, the stain and the grain or variations from the sample, are not defects.
b. Weight rating
c. Warranties (including manufacturers warranties)
d. Templating specifications
e. Installation
f. Finish
g. Joints and tolerances
h. Durability and reparability
i. Care and cleaning
j. No responsibility for items not supplied by Timberlast W.A
The warranty is limited to the original purchaser and property owner and cannot be transferred. The product is covered by a 10 year manufacturer's warranty which is subject to the installation guidelines and subject to inspection. For the details of that warranty contact the Manufacturer.
The installation of the product is covered with a 12 month labour only warranty. If the client claims the installation is defective the client must advise Timberlast W.A by written notice as soon as possible. Timberlast W.A will rectify, at their costs, defects in the installation works notified in writing within a period of 28 days (subject to material availability and remanufacture time) commencing on the day that Timberlast W.A receive notification PROVIDED THAT the client offers reasonable access to allow Timberlast W.A to rectify such defects.Reasonable access is defined as access during the hours of 8.00 am to 5.00 pm Monday to Friday excluding public holidays.
The client agrees not to request compensation for loss of wages due to this reasonable access. However, subject to law, Timberlast W.A do not have to rectify:a. Any problem caused by misuse, abuse, wear and tear or normal shrinkage or movement
b. Any work that has been completed by others
c. Any defects in, or problems caused by, work materials supplied by the client
Timberlast W.A further reserves the right where manufacture warranties apply to have the rectification done by the manufacture directly in which case the access must be provided to the manufacturer on the same terms as it would have been provided by Timberlast W.A.
The maximum period of Warrantee is 10 Years and for each year or part thereof (shorter than a year) that expires since installation a 10 percent deduction per year (or part thereof) shall apply being calculated as a deduction against the original purchase price. As an example if the product has been installed for 7 years only a 30% of original price remains warrantied.
11. FAILURE TO COMPLY WITH QUOTATIONAny claim that the material provided or the installation does not comply with the quotation, is subject to these terms and conditions, and must be made within 7 days of possession by the client. Such claims must be made in writing and addressed to Timberlast W.A, 4/30 Blackburn Drive Port Kennedy WA 6172.
12. QUOTATION IS SUBJECT TO CHANGE IF NOT ACCEPTED WITHIN 14 DAYS
13. INTERESTAll unpaid invoices are subject to interest UNLESS Timberlast W.A agrees in writing to postponement of payment. If the client fails to make any payment under the contract within 7 days of the payment becoming due and payable, the client will be liable for the full undiscounted cost of the job including all items formally offered as 'free'. In addition, the client will be liable for interest charged 6% per annum on the unpaid amount from the date of the payment becoming due and payable. In addition the client will be charged a reasonable administration fee per working day for each day the payment remains overdue, commencing from 7 days of the date when the payment is due and payable.
14. RISK AND INDEMNITY
All risks in any product ordered by the client shall pass to the client from the time the goods are received or installed in the client's premises. If the client receives the goods at the office of Timberlast W.A they are responsible for all risks associated with the transporting of the product. The client may, within 3 working days of receiving the product or installation, examine the products and notify Timberlast W.A of any damage. If the damage is a result of the client transporting of the goods Timberlast W.A takes no responsibility. Damage reported after 3 days will be deemed to be post-delivery/post-installation and the client may be charged for the cost of replacement.
Timberlast W.A reserves the right to sub-contract the manufacture and/or supply of any part of the product quoted or installation of product at its discretion.
16. GST
When any price quoted or price for an item does not contain a goods or services tax amount and goods and goods and services tax is assessed on said supply, the goods and services tax component shall be added to the price calculated under the terms of the contract. If it is agreed for an additional charge or omission from the work, the amount of goods and services tax attributable to the value for that supply is to be added or deducted as is relevant to/from the price calculated under the terms of his contract.
Timberlast W.A reserves the right to use the services of a debt collection agency. The client indemnifies Timberlast W.A for the costs of debt collection or any legal costs incurred in the collection on an indemnity basis.
18. APPLICABLE LAW
The client and any guarantors of the client agree that the law of Western Australia shall apply to this agreement and its/their dealings with Timberlast W.A and consent to the jurisdiction of the relevant court in Western Australia or any court of the Commonwealth of Australia having jurisdiction in the matter, HOWEVER, this clause does not force Timberlast W.A to litigate. Timberlast W.A may in its discretion, submit the matter by agreement with the client to arbitration, expert determination or mediation.
If the client for any reason, after the deposit has been paid and the original quotation accepted, requests a variation it will be at the client's costs. If the product has already been ordered and cannot be used in the variation the client is still liable for the payment of that product and it is at their discretion what they choose to do with it. If the product has already been ordered and can be used in the variation it is at the discretion of Timberlast W.A to quote for the new work on top of the original existing quotation. It is at the discretion of Timberlast W.A to choose if the product from the original order can be varied for a client.
Timberlast W.A is not responsible for any problems with the site which are only revealed when installing the product. Any materials specified on any quotation shall be materials used and any amendments to such quotation shall constitute a variation of the agreement.
20. DELAYThe client shall not unduly delay the installation of the product. If the client causes the date of delivery or installation to be delayed by more than 3 days, the client consents to a storage fee for the storage of the product. If the client wishes to arrange storage, the client must pay any additional delivery charges incurred by Timberlast W.A for 'double handling'.
Timberlast W.A is not responsible for any delay caused by anything beyond its control including but not limited to any failure by the client to make a selection, have the site ready for installation or notify Timberlast W.A that the site is ready. Delivery and installation dates on the contract will be put back to whatever time is reasonable if there is such a delay.
Whilst every endeavour will be taken there is no guarantee by Timberlast W.A that it will complete the contract by the date nominated by the customer. When a nominated date is given by Timberlast W.A it is an estimate only.The client accepts that Timberlast W.A is not responsible for any consequential loss or any costs or damage to the client arising from any delays of supply to installation of the product.
If Timberlast W.A is prevented from completing the work or supplying the product within three months of the deposit being paid and the delays are caused because of any reason outside Timberlast W.A's control then Timberlast W.A reserves the right to requote the project against their current published price.21. ACCIDENTAL DAMAGE
The client agrees not to request compensation for minor damage to the gardens, lawns or property caused by the delivery or installation of Timberlast W.A's product. Such damage is generally unavoidable despite reasonable steps being taken.
If any condition, covenant or stipulation or any part thereof of this Agreement or the application thereof to any person or circumstance shall become invalid or unenforceable, the remaining conditions, covenants or stipulations shall not be affected and remain valid and enforceable.
If it is necessary to sever a condition, covenant or stipulation from the contract to allow the rest of the contract to remain valid and enforceable, only so much as is necessary to severed. All remaining clauses shall be read as if the severed part had never been part of the agreement.
23. ACTS OF DEFAULTWithout limitation to the quality or provisions of this agreement and for avoidance of doubt, the following shall also be acts of immediate default by the client:
a. If the client shall become insolvent. To become insolvent means any act of bankruptcy under the Bankruptcy Act by a natural person; the appointment of a liquidator, provisional liquidator, receiver, receiver and manager or the entering into of a deed of arrangement if a corporation; or any act of insolvency under the Corporations Law by a corporation; or
b. If the client fails to pay any amount due under this contract on the date it becomes due and payable or fails to comply with any of the duties of the client under this Agreement.
24. TERMINATION
If the client is in serious breach of its obligations, Timberlast W.A may give the client a written request to remedy the breach within 14 days. If the breach is not remedied within 14 days, Timberlast may terminate the contract by providing the client with written notice.
Timberlast W.A owns all copyright and other intellectual property rights created by Timberlast W.A in the product, the plans, the specifications, the workplace drawings, any models. If the client provides Timberlast W.A with any sketch, plan or other document which infringes another party's copyright, the client agrees to indemnify Timberlast W.A against all claims and costs.
26. WEBSITE AND INVOICE INFORMATION
The client understands that the manufacturers of the product and its website sets out the specifications of the product and the manufacturer's warranty.
It is the clients responsibility to do due diligence concerning the type, quality and use of the materials based on the information provided on the website.
