TERMS OF TRADE, CONTRACT AND DEED
Innovative Benchtop Solutions PTY Ltd T/A Kitchens Direct
When reading the contract, please ensure that you read the entire document up to the end of the contract as upon negotiation starting this agreement is final.
If you are collecting your own cabinets or have arranged collection by a 3rd party, please bear in mind that we do not supply restraints or packing of any kind. Flat packed cabinetry is boxed and requires a forklift to lift it on and off the vehicle/trailer so the load bay must not have fixed sides. Assembled cabinetry is bulky and usually requires a large load space and substantial amounts of protection (blankets) and restraints/tied owns. We do not accept responsibility for damage to cabinetry that is collected from us – all our cabinetry is checked prior to loading. You must also have at least 2 people to load the cabinetry as it may not be possible to utilise our staff (unless by prior arrangement).
Cabinetry MUST be collected on the nominated day
As we have no storage capability. If you miss the appointed collection day, we will ship the cabinetry to a storage unit and this will be at your cost. Alternatively you will be billed for using our facility as storage.
If you have any special requirements such as the need to follow specific floor tile lines, sink being centralised under the window, modifications to standard cabinetry depths, heights, widths or indeed ANY specific requirements at all then these MUST be on the contract and/or associated plans. Any requirements stated AFTER the factory order has been lodged cannot be included in the original contract and WILL be deemed a variation (see section 12 of CONDITIONS OF CONTRACT).
Cabinetry, Benchtops, Installation & Delays
All our cabinets & benchtops are made specifically for each individual client. This and other factors mean that very occasionally problems may arise that result in an unavoidable delay to the completion of your project. Whilst we will do our best to complete the installation as quickly as possible we do not guarantee a particular completion date. The installation process may result in some minor damage to paintwork, walls & ceilings; whilst we endeavour to avoid this you agree not to hold us responsible for such damage; it is a risk you must accept.
The ‘FINE PRINT’ – Terms & Conditions Of Contract
Innovative Benchtop Solutions PTY Ltd T/A Kitchens Direct is a private organisation. Our working & manufacturing practices, materials & installation conform to Australian Industry standards. This gives you a substantial level of security when compared with imported kitchens (& other imported cabinetry). Both you and we agree to accept these requirements as well as those in this specific contract.
1) OUR MAIN OBLIGATIONS
- make &/or supply the cabinets, built-ins &/or product detailed in the plans & specifications agreed (“the product”); &
- install the product at the site, according to this contract EXCEPT where the product is supplied on a ‘SUPPLY ONLY’ basis.
You must pay us the contract price by way of the progress payments on the final quotation. You must pay us any other amount which is payable under this contract on demand after we have carried out the work or incurred the cost.
3) ACCESS & USE OF FACILITIES
You must give us uninterrupted access to the situ to check measure & to deliver & install the product. If we ask for access to deliver the product, & you cannot give that access within 7 days, you are in serious breach of your obligations. You must provide to us, while we are at the site, adequate access to available water, electricity, toilet & washing facilities.
4) CHECK MEASURING
We will check measure the place at the site where the product is to be installed & we may modify the plans & specifications agreed to conform to the checked measurements. We will check measure within 10 days of when you tell us the site is ready.
5) OUR WARRANTY
We will carry out the work of making & installing the product in a proper manner. In addition to your rights under law, we warrant that our work of making & installing the product is, & that materials supplied by us are, free of defects at the time of completion of installation. We have to fix, at our cost, defects in the work notified to us in writing within a period of 4 weeks commencing on the day that we receive notification.
However, subject to law, we do not have to fix:
- Any problem caused by misuse, abuse, wear & tear or normal shrinkage or movement.
- Appliances made by others; or
- Any defect in, or problem caused by, work materials or appliances supplied by you.
You must familiarize yourself with the specific conditions of use pertaining to the materials used ESPECIALLY concerning benchtops. Detailed product use & warranty information is available on request.
6) INSTALLATION CONDITIONS
During installation (where performed by us), the working areas are to be treated as a construction site. This means that no-one may enter those areas except with the approval of our staff. The working area must be adequately vented/cooled/heated so as to assure reasonable working conditions. You indemnify us against injury claims due to unauthorized trespass in these areas. If requested by a member of staff to leave the working area, you agree to comply.
Due to the custom nature of the product, issues requiring fixing may arise (called SNAGGING). We will use our best endeavours to fix said issues in a reasonable time. However, it is usually not possible to remanufacture items within a period of less than 10 working days so a return visit will not generally be made in less than this time.
8) DELIVERY & COMPLETION DELAYS
We are not responsible for any delay caused by something beyond our control including any failure by you to:
- make a selection, have the site ready for installation or
- notify us that the site is ready
The delivery & installation dates on the contract will be put back by whatever time is reasonable if there is such a delay.
We will use our best endeavours to ensure that Installation work by us is completed in a timely manner. However, due to the custom nature of the product, delays in completion may be unavoidable. (See SNAGGING above).
You agree not to request compensation for reasonable delays in completion. Where there have been additional expenses (e.g. plumbing) due to issues that may be of our causing, we will cover a reasonable cost for the trades concerned. If, for any reason, we have to reduce or increase the size of a cabinet or cabinets, we will only pay compensation where a reduction in size is greater than 10% of the cabinet volume. The amount of compensation will be limited to the difference in price between the cabinet(s) originally supplied and the re-manufactured cabinet(s). Note that due to the fact that we oversize some cabinets without charging an excess, this means that compensation for a reduction may not be applicable.
10) ACCIDENTAL DAMAGE
You agree not to request compensation for minor damage to ceilings and walls caused by the installation of our product. Such damage is generally unavoidable and must be considered an unavoidable risk when new cabinetry is to be installed.
11) OUR RIGHT TO FIX
If at any time you claim the product is defective, you must tell us by written notice, as soon as possible. We are only to fix detects for which clause 5 makes us responsible. If we accept responsibility, we have the right to fix the defect, but must do so within 28 days (subject to materials availability). You must offer us reasonable access to allow us to fix specified defects. Reasonable access is defined as access during the hours of 8am to 5pm Monday to Friday excluding public holidays. You agree not to request compensation for loss of wages due to giving us reasonable access.
12) COLOUR VARIATION / TOLERANCES
It is important you note that the colour & (if relevant) grain of materials can vary. We will use our best efforts to match the colour or grain of the product to any sample selected or provided by you, but we have no liability it they are different.
All items we offer carry a reasonable tolerance and this is to be made clear. 6mm outsider of specifications is considered “within tolerance” any small scuffs or marks not noticeable from 2000 millimeters away in a well-lit naturally light environment and considered “within tolerance”.
All CNC items carry a 2mm tolerance to begin with.
13) SURPLUS MATERIALS
Unless you & we have a different agreement somewhere else in this contract:
- Only suitable new materials will be used;
- Demolished materials remain your property;
- Materials we bring to the site which are surplus remain our property.
14) PROVISIONAL SUMS & APPLIANCES
Unless you & we have a different agreement somewhere else in this contract, we are not responsible to install any appliances or to connect anything to any services.
You must pay for appliances & for work that is the subject of a provisional sum at cost plus 40%.
15) SAMPLE PRODUCTS
Work methods & materials used will correspond with the sample product displayed in our showrooms, so far as appropriate.
16) VARIATIONS AND PROVISIONAL SUM AT YOUR REQUEST
A `variation’ means any change in the product, delivery/installation dates or any extra work.
If you request a variation; we will give you a written signed quote detailing the price & estimated time to do it.
It you accept the quote; we will then do the variation in the time agreed. The price of a variation does not form part of the contract price & the payment schedule does not apply to it. We can claim payment for a variation as soon as we have completed it. If you set back the date of the delivery by more than 3 days, you WILL be charged a storage fee for the storage of the cabinetry (we have extremely limited storage capability). Alternatively, you may arrange storage at your own cost but you will also need to allow for any additional delivery charges for ‘double handling’.
17) UNFORESEEN CIRCUMSTANCES
We are not responsible for any problems with the site which are only revealed when installing the product. Any additional work necessary to unforeseen circumstances is a variation, prior to doing a variation required due to unforeseen circumstances we must give you a written notice stating:
- The reason for the variation: &
- The cost of the variation.
We must give you the written notice within 10 working days after we become or should reasonably have become aware of the problem that requires that we do the variation.
You will be charged our actual cost plus another 20% for the work.
18) WORK BY YOU
If you are to provide plumbing & electrical services, or to supply or install appliances, you must have the site ready & appliances available at least 24 hours before the time stated to install the product. It you do not, we may provide, supply or install the services or appliances as a variation if we first follow the notice procedure set out in clause 13. You will be charged our actual cost plus another 20% for the provision, supply or installation.
We may sub-contract any of our obligations. You must not give instructions to our subcontractors or to workers on the site. If additional instructions are necessary, these must be discussed with the branch office concerned who will then pass them on to the workers/subcontractors if appropriate.
The product is at your risk once it is delivered to the site. You have 3 working days after delivery for DIY cabinetry or 3 working days after installation for Kitchens Direct installed cabinetry to examine the items and notify us of any damage. Damage reported after this date will be assumed to be post-delivery/installation damage and you may be charged for the cost of replacements.
21) WHOLE AGREEMENT
Subject to law, these conditions & the plans & the specifications comprise this contract which contains the whole agreement between you & us.
22) PREVAILING DOCUMENTS
These conditions, the plans & the specifications have precedence in that order it there is any inconsistency between them.
23) FAILURE TO MAKE PAYMENTS – FURTHER CHARGES
It you fail to make any payment under this contract on time (within 7 days), you will be liable for the full undiscounted cost of the job including all items formerly offered as ‘free’ In addition we will charge you interest at the interest rate payable on Supreme Court Judgments from time to time on what is unpaid after then. Such failure to pay is a serious breach of your obligations. In addition to the interest charge, you will be charged an administration fee of $50 per working day for each day where the payment is still overdue beginning within 7 days of the date the payment is due.
24) DEBT COLLECTING COSTS
You must reimburse to us any debt collecting costs (and commissions) we pay to recover, or attempt to recover, any overdue payment.
25) RETENTION OF TITLE & WARRANTY
Property in the product does not pass to you until it has been paid for in full, even if we have installed it. It you fail to make a due payment, we may enter the site & take reasonable action to remove the product without us being liable to you for damage to the site or the product caused by such removal. We will not accept any claims against our warranty unless the contract is completed and all payments have been received.
26) CHARGE OVER LAND
You agree that the land on which the site is located is charged in our favour as equitable mortgagee to secure the payment of all amounts to be paid by you under this contract.
We own all copyright created by us in the product, the plans, the specifications & the workshop drawings. It you give us any sketch, plan or other document which infringes someone else’s copyright, and you indemnify us against all claims & costs.
28) YOUR JOINT & SEVERAL LIABILITIES
If there is more than one of you then all your obligations are joint & several; we only have to give notices to one of you; & only one of you need accept a quote or sign a notice, & then all are bound.
It you are in serious breach of your obligations, we may give you a written request to remedy the breach within 14 days. It the breach is not so remedied within that time, we may then terminate this contract by giving you a written notice.
Should you become insolvent, then we may, by giving a written notice, terminate this contract. To be insolvent means:
- Any act of bankruptcy under the Bankruptcy Act by a natural person;
- The appointment of a liquidator, provisional liquidator, receiver, receiver & 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.
Where a price is not agreed for an additional charge or omission from the work, the amount of Goods & Services GST attributable to the value for that supply is to be added to the price calculated under the terms of this contract.
32) PROVISIONAL SUM AND PRIME COST SUM
A provisional sum (PS) is a sum we come up with to best estimate the projected costs associated with a particular item or cost centre and generally includes labour and product charges, the item is fixed should our provisional sum fall within our estimate and can rise should it exceed our estimate in which case we will credit the provisional sum on your final account and debit the actual costs incurred and add a mark-up for management of that cost or item.
A prime sum (PC) is a sum we come up with to best estimate the projected costs associated with a particular item or cost centre and generally only includes labour charges and not product charges, an example of this would be tiling, where tiling would be a PC Item and only cater for the labour associated with that cost with customer to provide the product, if the request to include tiles becomes that of Kitchens Direct, this will become a provisional sum (PS) the item is fixed should our sum fall within our estimate and can rise should it exceed our estimate in which case we will credit the price cost sum on your final account and debit the actual costs incurred and add a mark-up for management of that cost or item.
33) RIGHT OF FIRST AND LAST REFUSAL (FALROR)
There is always the possibility that deadlines can change be it as a result of the customer and or Kitchens Direct, often this can lead to the customer wishing works to be handed over to a third party in hopes to achieve better deadlines and even pricing, this cannot be done without written agreement by Kitchens Direct, Kitchens Direct reserve the first and last right of refusal (FALROR), if Kitchens Direct actively and in writing refuse works, a credit will be signed by both parties and once the account agreed to, the customer may engage a third party (please read more to this point), if Kitchens Direct do not actively refuse the work as agreed, engaging a third party will not eradicate the costs due and payable to Kitchens Direct for those works. Furthermore should an alternative or new work scope be added to the contract, Kitchens Direct reserve the right to quote on the works and view alternative quotes both sourced by Kitchens Direct and the customer at their discretion to be in a position to offer the works to the customer, price may not necessarily be the determining factor as to the choice of supplier and this choice of supplier is at the discretion of Kitchens Direct.
34) LIQUIDATED DAMAGES
If a contract is engaged with Innovative Benchtop Solutions also TA Kitchens Direct, irrespective of the customer’s fine print, this contract (TERMS OF TRADE) forms the final agreement, if documents are provided for Retail, Trade or Commercial customers to Kitchens Direct indicating the potential for liquidated damages of any kind, Kitchens Direct and innovative Benchtop Solutions indemnify themselves against these claims and will not under any circumstances be liable for these claims in any way shape or form, either by the customer or another third party.
35) OFFSET TRADES, LOSSES AND CLAIMS
If a contract is engaged with Innovative Benchtop Solutions also TA Kitchens Direct, irrespective of the customers fine print, this contract (TERMS OF TRADE) forms the final agreement, if a customer chooses to involve other trades, contractors and businesses for any reason to complete any works on site that directly or indirectly are linked with the work scope by Kitchens Direct, these cost are born by the customer exclusively and do not affect the agreed price provided by kitchens direct, unless written approval is provided by the Directors of Innovative Benchtop Solutions, failure to do this may result in Kitchens Direct providing a credit to those items to the value of the cost price only whilst retaining any profits associated with those costs/items of work. Furthermore should this be agreed to that Kitchens Direct allow to offset trades, losses or claims, Invoices will need to be produced and provided to Kitchens Direct for the associated costs. Any claims will be finalised and paid out after the contract value is paid in full including those services, costs or variations and will be tracked via purchase orders provided.
36) GOODWILL CLAIMS
Often it is asked of our trades people, staff and contractors to assist in some way with works not forming a part of the agreed to work scope, if damages or losses occur as a result of this, Kitchens Direct will not be held liable in any such way.
Example: Customer asks Kitchens Direct staff or contractor to assist to move a TV out of the way, Kitchens Direct agree out of goodwill to help out, in error the TV is scratched, damaged or destroyed, Kitchens Direct will not replace or be liable for the associated repairs or replacement – we assist with good intentions and no responsibility.
37) PERSONAL GUARANTEE
The purchaser offers Personal Guarantees against the products and items on purchase.
The obligations of the Guarantor under this deed are principal obligations and Innovative Benchtop Solutions PTY Ltd TA Kitchens Direct is not required to take action first against the Customer or marshall its security.
- The Guarantor must not prove or claim in the assets of the Customer in competition with Innovative Benchtop Solutions PTY Ltd TA Kitchens Direct, if the Customer is made bankrupt, wound up or makes a deed of arrangement, composition or compromise in satisfaction of its debts or (being a natural person) dies. If directed by Innovative Benchtop Solutions PTY Ltd TA Kitchens Direct the Guarantor shall lodge a proof of debt and must hold any distribution or payment received on trust for Innovative Benchtop Solutions PTY Ltd TA Kitchens Direct.
- To secure payment of all monies which may become payable by the Guarantor to Innovative Benchtop Solutions PTY Ltd TA Kitchens Direct under this deed, the Guarantor charges as legal or beneficial owner and as trustee of every trust all the Guarantor’s interest in all the undertaking and property of the guarantor whether present or future including real property both present and future and the Guarantor consents to Innovative Benchtop Solutions PTY Ltd TA Kitchens Direct lodging a caveat or caveats over such real property or registering charge/s on the Personal Property Security Register noting its interests hereunder. If the Guarantor is a company Innovative Benchtop Solutions PTY Ltd TA Kitchens Direct shall be entitled to require the Guarantor to enter into a formal deed of charge for registration under the Corporations Law. In this clause “trust” means each trust for which the Guarantor holds land as trustee.
- This deed is binding on the Guarantor and the Guarantor’s executors, administrators and successors or assigns.
- The Guarantor shall pay all Innovative Benchtop Solutions PTY Ltd TA Kitchens Direct costs, fees and expenses associated with this deed and the enforcement of this deed and any costs associated with lodging caveats or registering securities and all stamp duty on this deed or any securities.
- A certificate signed by any Manager or Creditor Manager of Innovative Benchtop Solutions PTY Ltd TA Kitchens Direct stating the balance of the monies due to Innovative Benchtop Solutions PTY Ltd TA Kitchens Direct by the Customer is proof of that amount as at the date unless the Guarantor proves to the contrary.
- If more than one person is the Guarantor then the liability of those persons under this deed is a joint and several liability and every reference to a Guarantor shall apply to and bind each of those persons. “Co-Surety” includes any other person named as Guarantor or who otherwise guarantees payment of the monies.
- In this deed unless a contrary intention appears from the context a reference to a person includes a reference to a corporation and the singular number includes the plural. The Guarantor acknowledges having received a copy of the Customer’s Credit application and Credit Terms and Conditions and fully understands the risks associated with this deed and freely elects to execute this deed.
By confirmation of any order or service or payment or deposit paid, assumes the purchaser has read, understood and agreed to all the above terms both personally and or commercially and wishes to engage in them, all quotes and invoices refer to the very document and its location / address so there is no reason for any prospective buyer or purchaser to misinterpreted or be unaware of the contents agreed to, this Contract, Deed and Terms Of Trade remains the final contract by Benchtop Solutions PTY Ltd TA Kitchens Direct and ignores any others unless agreed to in writing by the Directors of Benchtop Solutions PTY Ltd TA Kitchens Direct and witnessed.
This contract can also be changed, amended or altered and can do so during before engaging, or during engagement without notice.
Conclusion of this contract means all payments have been made in full.