1. Definitions
1.1 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.2 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer if a limited liability Customer on a principal debtor basis.
1.3 “Goods” means all Goods or services supplied by The Flooring Guys to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between The Flooring Guys and the Customer in accordance with clause 4 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with The Flooring Guys’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and The Flooring Guys, including, for clarity, any terms and conditions attached to any purchase order of the Customer.
2.3 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on The Flooring Guys’ website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
2.4 The Flooring Guys retains the right to change specifications without notice in accordance with its policy of continued product development.
2.5 The Customer accepts and acknowledges that supply of certain species of timber may be restricted from time to time due to lack of resource and circumstances beyond The Flooring Guys control.
2.6 The Customer accepts that it shall be the sole responsibility of the Customer (or the Customer’s agent) to ascertain prior to placement of any order with The Flooring Guys any specific standards, requirements or ratings (e.g. Fire and Slip ratings) that any Goods to be supplied by The Flooring Guys are expected to comply with (particularly in respect of any application that the Goods are to be used for, or any specific end result that the Customer expects the Goods to achieve), and must advise The Flooring Guys of the same (in writing) when placing any order. Under no circumstances whatsoever will any liability be accepted by The Flooring Guys should Goods supplied subsequently prove to be unsuitable for the end result that the Customer is trying to achieve or does not meet any standard or rating that the Customer is required to comply with, except where it can be clearly determined that the Goods supplied did not meet the Customer’s requirements as were specified in the Customer’s order.
3. Change in Control
3.1 The Customer shall give The Flooring Guys not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by The Flooring Guys as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At The Flooring Guys’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by The Flooring Guys to the Customer; or
(b) the Price as at the date of delivery of the Goods according to The Flooring Guys’ current price list; or
(c) The Flooring Guys’ quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 The Flooring Guys reserves the right to change the Price if a variation to The Flooring Guys’ quotation is requested. 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, overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges, inaccurate measurements provided by the Customer or as a result of increases to The Flooring Guys in the cost of Goods and labour) shall allow The Flooring Guys the right to halt all Services until such time as The Flooring Guys and the Customer agree to changes to the plans and/or specifications as outlined in the quotation to incorporate such variances. The variances once approved shall be detailed in writing and charged for on the basis of The Flooring Guys’ quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At The Flooring Guys’ sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by The Flooring Guys, which may be:
(a) thirty (30) days following the date of the invoice;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by The Flooring Guys.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of one and a half percent (1.5%) of the Price), or by any other method as agreed to between the Customer and The Flooring Guys.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to The Flooring Guys an amount equal to any GST The Flooring Guys must pay for any supply by The Flooring Guys under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer 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.
5. Delivery of Goods
5.1 Subject to clause 5.2 it is The Flooring Guys’ responsibility to ensure that the services commence as soon as it is reasonably possible after order acceptance.
5.2 The services commencement date will be put back and the building period extended by whatever time is reasonable in the event that The Flooring Guys claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond The Flooring Guys’ control including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for installation; or
(c) notify The Flooring Guys that the site is ready.
5.3 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at The Flooring Guys’ address; or
(b) The Flooring Guys (or The Flooring Guys’ nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.4 At The Flooring Guys’ sole discretion the cost of delivery is in addition to the Price.
5.5 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then The Flooring Guys shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.6 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.7 Any time or date given by The Flooring Guys to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and The Flooring Guys will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6. Risk
6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, The Flooring Guys is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by The Flooring Guys is sufficient evidence of The Flooring Guys’ rights to receive the insurance proceeds without the need for any person dealing with The Flooring Guys to make further enquiries.
6.3 If the Customer requests The Flooring Guys to leave Goods outside The Flooring Guys’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
6.4 The Customer acknowledges and accepts that:
(a) Goods supplied may:
(i) 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
(ii) mark or stain if exposed to certain substances; and be damaged or disfigured by impact or scratching; and
(b) 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
(c) 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
(d) beadings, trim and/or silicone is not included unless specified in the quotation; and
(e) 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
(f) movement between boards may stretch polyurethane and cause an opaque line;
(g) gaps between boards may cause ‘quilting’; and
(h) swirling marks from rotary equipment is a normal part of the sanding process and can be visible under certain lighting; and
(i) some existing stains and markings (such as black marks around nails and water marks) on the floorboards cannot be removed; and
(j) cupping of timber can occur after sanding and polishing due to moisture levels in timber; and
(k) edge bonding 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 The Flooring Guys.
6.5 Timber is a hydroscopic material subject to expansion and contraction, therefore, The Flooring Guys will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods or swelling and/or cupping caused by moisture and periods of high humidity.
6.6 The Flooring Guys shall not be liable for any damage or inconsistencies in the floor boards caused by air-conditioning, air flow, sun exposure, and dust in the air, heating or large expanses of glass windows without curtains or blinds, or any other site conditions that affect the completed condition of the floors.
6.7 Whilst The Flooring Guys will take all due care to avoid contamination of the finished surface, The Flooring Guys accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the worksite.
6.8 The Flooring Guys 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.
7. Customers Responsibilities
7.1 It is the Customers 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 effect The Flooring Guys’ 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 a 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, furniture and ornaments. Breakages and damages are the responsibility of the Customer. All care taken but no responsibility accepted by The Flooring Guys in this regard; and
(g) provide adequate dustsheets to protect the Customers furniture and décor. The Flooring Guys will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any sanding process. Flaking or crumbing walls should be temporarily covered by the Customer, 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 a 15 amp/240 volt electrical power source to within 20 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 The Flooring Guys will be invoiced to the Customer 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 Customer to adhere to the installation schedule agreed to between The Flooring Guys and the Customer, any additional costs will be invoiced to the Customer as an extra; and
(l) The Flooring Guys is not insured to remove furniture or fittings and will not do so, nor is The Flooring Guys licensed to move gas or electrical appliances.
7.2 The Customer agrees to indemnify The Flooring Guys against any claims howsoever arising from the provisions in clause 7.
8. Customers Disclaimer
8.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to him by any servant or agent of The Flooring Guys and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that The Flooring Guys shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequent Customer.
9. Access
9.1 The Customer shall ensure that The Flooring Guys has clear and free access to the work site at all times to enable them to undertake the works. The Flooring Guys 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 The Flooring Guys.
10. Title
10.1 The Flooring Guys and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid The Flooring Guys all amounts owing to The Flooring Guys; and
(b) the Customer has met all of its other obligations to The Flooring Guys.
10.2 Receipt by The Flooring Guys 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.
10.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 10.1 that the Customer is only a bailee of the Goods and must return the Goods to The Flooring Guys on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for The Flooring Guys and must pay to The Flooring Guys the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for The Flooring Guys and must pay or deliver the proceeds to The Flooring Guys on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of The Flooring Guys and must sell, dispose of or return the resulting product to The Flooring Guys as it so directs.
(e) the Customer irrevocably authorises The Flooring Guys to enter any premises where The Flooring Guys believes the Goods are kept and recover possession of the Goods.
(f) The Flooring Guys may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of The Flooring Guys.
(h) The Flooring Guys may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing the Customer 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 Goods that have previously been supplied and that will be supplied in the future by The Flooring Guys to the Customer.
11.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which The Flooring Guys 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 11.3(a)(i) or 11.3(a)(ii);
(b) indemnify, and upon demand reimburse, The Flooring Guys 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 Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of The Flooring Guys;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of The Flooring Guys;
(e) immediately advise The Flooring Guys of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.4 The Flooring Guys and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
11.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by The Flooring Guys, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Customer must unconditionally ratify any actions taken by The Flooring Guys under clauses 11.3 to 11.5.
11.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of The Flooring Guys agreeing to supply the Goods, the Customer and/or the Guarantor 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 Customer and/or the Guarantor either now or in the future, to secure the performance by the Customer and/or the Guarantor of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
12.2 The Customer and/or the Guarantor indemnifies The Flooring Guys from and against all The Flooring Guys’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising The Flooring Guys’ rights under this clause.
12.3 The Customer irrevocably appoints The Flooring Guys and each director of The Flooring Guys as the Customer’s and/or the Guarantor true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s and/or the Guarantor behalf.
13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify The Flooring Guys in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow The Flooring Guys to inspect the Goods.
13.2 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 (Non-Excluded Guarantees).
13.3 The Flooring Guys acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, The Flooring Guys makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Flooring Guys’ liability in respect of these warranties is limited to the fullest extent permitted by law.
13.5 If the Customer is a consumer within the meaning of the CCA, The Flooring Guys’ liability is limited to the extent permitted by section 64A of Schedule 2.
13.6 If The Flooring Guys is required to replace the Goods under this clause or the CCA, but is unable to do so, The Flooring Guys may refund any money the Customer has paid for the Goods.
13.7 If the Customer is not a consumer within the meaning of the CCA, The Flooring Guys’ liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Customer by The Flooring Guys at The Flooring Guys’ sole discretion;
(b) limited to any warranty to which The Flooring Guys is entitled, if The Flooring Guys did not manufacture the Goods;
(c) otherwise negated absolutely.
13.8 Subject to this clause 13, returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 13.1; and
(b) The Flooring Guys has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, The Flooring Guys 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 Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by The Flooring Guys;
(e) fair wear and tear, any accident, or act of God.
13.10 The Flooring Guys may in its absolute discretion accept non-defective Goods for return in which case The Flooring Guys may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.
13.11 Notwithstanding anything contained in this clause if The Flooring Guys is required by a law to accept a return then The Flooring Guys will only accept a return on the conditions imposed by that law.
14. Intellectual Property
14.1 Where The Flooring Guys has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of The Flooring Guys.
14.2 The Customer warrants that all designs, specifications or instructions given to The Flooring Guys will not cause The Flooring Guys to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify The Flooring Guys against any action taken by a third party against The Flooring Guys in respect of any such infringement.
14.3 The Customer agrees that The Flooring Guys may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which The Flooring Guys has created for the Customer.
15. Default and Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at The Flooring Guys’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 If the Customer owes The Flooring Guys any money the Customer shall indemnify The Flooring Guys from and against all costs and disbursements incurred by The Flooring Guys in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, The Flooring Guys’ collection agency costs, and bank dishonour fees).
15.3 Without prejudice to any other remedies The Flooring Guys may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions The Flooring Guys may suspend or terminate the supply of Goods to the Customer. The Flooring Guys will not be liable to the Customer for any loss or damage the Customer suffers because The Flooring Guys has exercised its rights under this clause.
15.4 Without prejudice to The Flooring Guys’ other remedies at law The Flooring Guys shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to The Flooring Guys shall, whether or not due for payment, become immediately payable if:
(a) any money payable to The Flooring Guys becomes overdue, or in The Flooring Guys’ opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
16. Compliance with Laws
16.1 The Customer and The Flooring Guys 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.
16.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.
16.3 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
17. Cancellation
17.1 The Flooring Guys 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 Customer. On giving such notice The Flooring Guys shall repay to the Customer any money paid by the Customer for the Goods. The shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by The Flooring Guys as a direct result of the cancellation (including, but not limited to, any loss of profits).
17.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
18. Privacy Act 1988
18.1 The Customer agrees for The Flooring Guys to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by The Flooring Guys.
18.2 The Customer agrees that The Flooring Guys may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
18.3 The Customer consents to The Flooring Guys being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 The Customer agrees that personal credit information provided may be used and retained by The Flooring Guys for the following purposes (and for other purposes as shall be agreed between the Customer and The Flooring Guys or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by The Flooring Guys, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
18.5 The Flooring Guys may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
18.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that The Flooring Guys is a current credit provider to the Customer;
(d) 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;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of The Flooring Guys, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by The Flooring Guys has been paid or otherwise discharged.
19. Unpaid The Flooring Guys’ Rights
19.1 Where the Customer has left any item with The Flooring Guys for repair, modification, exchange or for The Flooring Guys to perform any other service in relation to the item and The Flooring Guys has not received or been tendered the whole of any moneys owing to it by the Customer, The Flooring Guys shall have, until all moneys owing to The Flooring Guys are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
19.2 The lien of The Flooring Guys shall continue despite the commencement of proceedings, or judgment for any moneys owing to The Flooring Guys having been obtained against the Customer.
20. Building and Construction Industry Security of Payments Act 1999
20.1 At The Flooring Guys’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 or corresponding legislation in the state in which the Goods are being supplied may apply.
20.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
21. General
21.1 The failure by The Flooring Guys to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect The Flooring Guys’ 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.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which The Flooring Guys has its principal place of business, and are subject to the jurisdiction of the Maitland Court in New South Wales.
21.3 Subject to clause 13 The Flooring Guys shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by The Flooring Guys of these terms and conditions (alternatively The Flooring Guys’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
21.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by The Flooring Guys nor to withhold payment of any invoice because part of that invoice is in dispute.
21.5 The Flooring Guys may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
21.6 The Customer agrees that The Flooring Guys may amend these terms and conditions at any time. If The Flooring Guys makes a change to these terms and conditions, then that change will take effect from the date on which The Flooring Guys notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for The Flooring Guys to provide Goods to the Customer.
21.7 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.
21.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.