Terms and Conditions
Updated 5th July 2016
1. Statutory Warranties
To the extent required by the Home Building Act 1989, Designer Plastering Pty LTD warrants that:
- The work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in this agreement;
- All materials supplied by Designer Plastering Pty Limited will be suitable for the purpose for which they are used and, unless otherwise stated in this agreement, those materials will be new;
- The work will be done in accordance with, and will comply with, the requirements of the Home Building Act 1989, relevant Australian standards and B.C.A
- The work will be done with due diligence and within the time stipulated or, if no time is stipulated, within a reasonable time;
- If the works consists of the construction of a dwelling, the making of alterations or additions to a dwelling, or the repairing, renovation, decoration or protective treatment of a dwelling; the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling;
- The work and any materials used in doing the work, will be reasonably fit for the specified purpose or result that the Customer has made known to Designer Plastering Pty Limited so as to show that the Customer relies on Designer Plastering Pty Limited skill and judgement.
2. Plans and Specifications
(a) All plans and specifications for work to be done under this agreement, including any variations to those plans and specifications are taken to form part of this agreement.
(b) Any agreement to vary this agreement, the plans and specifications or the work must be in writing and signed by both parties.
3. Quality of work
(a) Subject to clause 3 (b) all work done under this agreement will comply with-:
(i) the Building Code of Australia, to the extent required under the Environmental Planning and Assessment Act l979, including any regulation or other instrument made under that Act; and
(ii) All other relevant codes, standards and specifications that the work is required to comply with under any law; and
(iii) The conditions of any relevant development consent or complying development certificate.
(b) Designer Plastering is not liable if the work does not comply with the requirements of sub-clause 3(a) if the failure relates solely to:-
(i) A design or specification prepared by or on behalf of the Customer (but not by or on behalf of Designer Plastering PTY LTD); or
(ii) A design or specification required by the Customer, if Designer Plastering Pty Limited has advised the Customer in writing that the design or specification contravenes sub-clause 3(a) agreement.
4. Agreement Price and Payments
(a) The agreement price (subject to any agreed variations) is as identified in this agreement and includes all matters (including GST) that could be reasonably expected to be necessary for the completion of the work. The work will be complete when it is finished in accordance with this agreement, free of apparent defects and all rubbish and surplus material removed from the Site.
(b) The Customer must pay the agreement price or any part thereof to Designer Plastering Pty Limited on satisfactory completion of the work or each stage of the work, if applicable, within the time specified in the Payment Schedule.
(c) If the agreement price is not known, the agreement price shall be determined on the basis of the labour rates and materials supplied plus Designer Plastering Pty Limited margin for overheads, supervision and profit as set out in this agreement.
(d) A non-refundable deposit of 10% of the agreement price is required prior to commencement of the work.
(e) Designer Plastering Pty Limited will invoice the customer on completion of the work or as per the agreed payment schedule. The invoice will include the agreement price and any variations.
(f) The customer must pay the agreement price by the required payment date as stated on the invoice or written request for payment. If no time is stated then payment shall be due seven (7) days following the invoice date. Invoices less than $1,000 are due on completion of work.
(g) Retention does not apply to any payments unless agreed upon by both parties.
(h) Payments can be made by cash, bank cheque, electronic funds transfer, PayPal (plus surcharge of 2% of the price) or by any other method as agreed to between Designer Plastering Pty Limited and Customer.
(i) Unless otherwise stated the price does not include GST.
(j) A minimum charge of three hours (3) plus materials applies.
Either party may seek to vary the work. For any variation to the work Designer Plastering Pty Limited must provide a written notice to the Customer describing the variation, the cost of the additional or omitted work and any change to the Completion Date. The notice must be signed by both parties before any of the work is commenced. If the cost of the agreed variation, including Designer Plastering Pty Limited’s margin to cover overheads, supervision and profit exceeds the agreement price then the additional cost will be added to the agreement price. The cost of the omitted work will be deducted from the agreement price.
6. Time for Completion and Extensions of Time
Designer Plastering Pty Limited must complete the work by the Completion Date. Designer Plastering Pty Limited will be entitled to a reasonable extension of time in the event of delays to the work where the cause of the delay, including but not limited to inclement weather, industrial disputes or agreement variations, is beyond Designer Plastering Pty Limited’s control. Both Designer Plastering Pty Limited and the Customer must take all reasonable steps to minimise the delay. Any claim by Designer Plastering Pty Limited for an extension of time must be given to the Customer in writing within 10 business days of the event occurring.
7. Site Conditions and Underground Services
In the event that Designer Plastering Pty Limited encounters any latent conditions brought about by the physical conditions on, under or adjacent to the Site including underground cables, pipes or conduits or other artificial objects not reasonably foreseen or not disclosed at quotation stage which may require Designer Plastering Pty Limited to carry out additional work, then such additional work shall be treated as a variation to the agreement price. All excavations will be undertaken by machine unless otherwise stated or stipulated.
8. Access for Contractor
The Customer must provide unrestricted access for Designer Plastering Pty Limited and any employee, subcontractor or agent of Designer Plastering Pty Limited as required during working hours allowed by the relevant statutory authorities. The Customer must, before any work is commenced, remove any personal property likely to impede the work.
9. Insurance of Work and Personal Injury
Before commencement of any work under this agreement and throughout the duration of this agreement Designer Plastering Pty Limited will provide ongoing insurance cover for:
- Public liability to cover liabilities to third parties for death or personal injury or damage to property for an amount not less than $20 million;
- Property damage insurance for the work (including work in progress and materials);
- Employer’s liability and worker’s compensation insurance to cover any employees; and
- Home warranty insurance (where applicable) to cover defective and incomplete work.
10. Contractor’s Indemnity in Favour of Customer
Designer Plastering Pty Limited indemnifies the Customer against all claims, demands, liabilities, costs, charges and expenses caused by any negligent act or omission on the part of Designer Plastering Pty Limited, its employees or agents arising out of, or as a consequence of, the carrying out of the work, except to the extent that the Customer or persons under the control or direction of the Customer contributed to the liability.
11. Damage to Property
Designer Plastering Pty Limited will make good any loss or damage to the work or property of the Customer caused by any negligent act or omission of Designer Plastering Pty Limited or Designer Plastering Pty Limited’s employees, agents or subcontractors. The Customer must, before any work commences, remove any furniture or personal goods from the vicinity of the work to minimise the risk of damage. Otherwise the Client shall bear the cost of repair or replace if needed.
The Customer must notify Designer Plastering Pty Limited in writing of any omissions or defective work or materials that become apparent within the defects liability period. Designer Plastering Pty Limited will promptly (but no later than 10 business days) from the date of receiving the written list of defects from the Customer make good the defective work or materials that are Designer Plastering Pty Limited’s responsibility at Designer Plastering Pty Limited’s own expense unless it’s defective from other trades.
If the Customer or Contractor considers a dispute has arisen in relation to any matter covered by this agreement, that party must immediately advise the other party on becoming aware of the dispute and give the other party written notice of the items of dispute within 48 hours of this advice. The parties may confer with a mutually agreed third party to assist to resolve the dispute by mediation. If the dispute relates to workmanship and cannot be resolved either party may refer the matter to the Office of Fair Trading.
14. Termination of Agreement by Customer
If Designer Plastering Pty Limited is placed under administration, goes into liquidation, declared bankrupt or fails to complete the work within an agreed time, or if no time is given, within a reasonable time, fails to remedy defective work or replace faulty or unsuitable materials, then the Customer may, where such default can be remedied, issue a written notice requiring Designer Plastering Pty Limited to remedy the default within 10 business days of receipt of the notice by Designer Plastering Pty Limited or within such other reasonable period as may be agreed. If the default is not remedied within 10 business days or some other reasonable period as agreed, or not capable of being remedied, the Customer may terminate this agreement immediately by written notice to Designer Plastering Pty Limited.
15. Termination of Agreement by Contractor
If the Customer is placed under administration, goes into liquidation, declared bankrupt or fails to make payment due under this agreement or fails to give adequate instructions or directions or denies Designer Plastering Pty Limited access to the Site or specific work areas that prevents Designer Plastering Pty Limited from proceeding, Designer Plastering Pty Limited may issue a written notice requiring the Customer to remedy the default within 5 business days of receipt of the notice by the Customer. If the default is not remedied, Designer Plastering Pty Limited may suspend or terminate this agreement immediately by written notice to the Customer.
16. Provisional Cost Items
A Provisional Cost (PC) is used when the cost of a specific item is yet to be determined. A PC is then allowed for the purchase of the item. If the actual cost of the item is greater than the sum allowed in this agreement, the excess amount together with Designer Plastering Pty Limited’s margin shall be added to the agreement price. If the actual cost is less than the sum allowed in this agreement, the difference shall be deducted from the agreement price. Designer Plastering Pty Limited’s margin for overheads, supervision and profit shall be as indicated in the schedule of rates and charges in this agreement.
17. Recovery of Damages
Designer Plastering Pty Limited is entitled to recover from the Customer any loss or damage suffered by Designer Plastering Pty Limited as a result of any delay in the progress of the work beyond Designer Plastering Pty Limited’s control caused by any act, default or omission on the part of the Customer or any person under the control or direction of the Customer.
18. Late payment and default
(a) Unless otherwise stated, invoices are due seven (7) days from invoice date. Invoices less than $1,000 are due on completion of work.
(b) If the Customer fails to pay the agreement price or any part thereof by the due date Designer Plastering Pty Limited is entitled to charge interest at the rate of 10% per annum on all monies due but not paid by the Customer such interest to be calculated on a daily basis from the due date to the date of payment
(c) In the event that a Customers payment is dishonoured the Customer shall be liable for the payment of any dishonour fees.
(d) Invoices unpaid at 30 days are automatically outsourced to a collection agency.
(e) The additional fees and charges incurred in pursuing the debt are payable by the Customer, including administration fees and legal costs.
19. Service of Notice
A notice (and other documents) will be deemed to have been given and received:-
(a) If addressed or delivered to the other party at the relevant address in this agreement or the address last communicated in writing to the person giving the notice; and
(b) Will be served on the earliest date of:-
(i) Actual receipt;
(ii) Confirmation of correct transmission or fax; or
(iii) 3 days after posting.
20. Cooling Off Period
If the agreement price or the market cost of labour and materials is more than $20,000, then this agreement is subject to a 5 day cooling off period. The cooling off period is available for 5 days after the Customer has been given a copy of the signed agreement or 5 days after the Customer becomes aware that a signed copy of this agreement should have been provided.
This agreement shall not be assigned by either party without the prior written consent of the other, such consent not to be unreasonably withheld.
In this agreement:
“Agreement price” means the amount stated in the Agreement;
“Defects liability period” means the period commencing on completion of the work and continuing for 12 weeks;
“Site” means the place where the work is to be carried out;
“Variation” means an omission or addition to the work or a change from the original scope of the work;
“Work” means the work to be carried out by Designer Plastering Pty Limited and includes labour and materials;