Home Finishes

Home Finishes Terms & Conditions

1. Definitions
1.1 “Home Finishes” shall mean B.W Gaffin & K. Gaffin T/A Home Finishes its successors and assigns or any person acting on behalf of and with the authority of B.W Gaffin & K. Gaffin T/A Home Finishes.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Home Finishes to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Home Finishes to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Home Finishes to the Customer.
1.5 “Services” shall mean all Services supplied by Home Finishes to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Home Finishes and the Customer in accordance with clause 5 of this contract.

2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”) and application of these terms and conditions to consumers
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
2.2 Clause 9 (Defects) and clause 10 (Warranty) may NOT apply to the Customer where the Customer is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Customer is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.

3. Acceptance
3.1 Any instructions received by Home Finishes from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Home Finishes shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Home Finishes.
3.4 The Customer shall give Home Finishes not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Home Finishes as a result of the Customer’s failure to comply with this clause.
3.5 Goods are supplied by Home Finishes only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3.6 Home Finishes does not accept any responsibility for measurements taken from plans provided by the Customer, as these constitute a guide only.

4. Price And Payment
4.1 At Home Finishes’ sole discretion the Price shall be either:
(a) as indicated on invoices provided by Home Finishes to the Customer in respect of Goods supplied; or
(b) Home Finishes’ quoted Price (subject to clause 4.2) which shall be binding upon Home Finishes provided that the Customer shall accept Home Finishes’ quotation in writing within thirty (30) days.
4.2 Home Finishes’ reserves the right to change the Price in the event of a variation to Home Finishes’ quotation.
4.3 At Home Finishes’ sole discretion a deposit may be required.
4.4 Home Finishes may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorized variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed.
4.5 At Home Finishes’ sole discretion:
(a) payment shall be due before delivery of the Goods; or
(b) payment for approved Customers shall be made by installments in accordance with Home Finishes’ payment schedule.
4.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two percent (2.0%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and Home Finishes.
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

5. Delivery Of Goods
5.1 At Home Finishes’ sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at Home Finishes’ address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Home Finishes or Home Finishes’ nominated carrier).
5.2 At Home Finishes’ sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Customer’s account.
5.3 The Customer shall make all arrangements necessary to take delivery 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 Home Finishes shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 Home Finishes may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The failure of Home Finishes to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Home Finishes shall not be liable for any loss or damage whatever due to failure by Home Finishes to deliver the Goods (or any of them) promptly or at all where due to circumstances beyond the control of Home Finishes.

6. Customer’s Responsibilities
6.1 It is the intention of Home Finishes and agreed by the Customer that:
(a) any building/construction sites will comply with all Western Australia occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation; and
(b) the Customer shall obtain and pay for all planning and building approvals required for the works prior to commencement of the works by Home Finishes unless otherwise agreed in writing between the Customer and Home Finishes. In the event Home Finishes agrees to obtain the approvals then the cost of those approvals shall be the Customer’s responsibility and shall be in addition to the Price; and
(c) the Customer shall remove from the work area any furniture, personal effects or other property likely to impede the Contractor in order to minimise the risk of injury or any possible damage; and
(d) the Customer shall provide Home Finishes with clear and free access to the worksite to enable Home Finishes to complete the works and/or to remedy any defects after the completion date.

7. Risk
7.1 If Home Finishes retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Home Finishes is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Home Finishes is sufficient evidence of Home Finishes’ rights to receive the insurance proceeds without the need for any person dealing with Home Finishes to make further enquiries.

8. Title
8.1 Home Finishes and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Home Finishes all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to Home Finishes in respect of all contracts between Home Finishes and the Customer.
8.2 Receipt by Home Finishes of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Home Finishes’ ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Home Finishes shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from Home Finishes to the Customer Home Finishes may give notice in writing to the Customer to return the Goods or any of them to Home Finishes. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) Home Finishes shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to Home Finishes then Home Finishes or Home Finishes’ agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as Home Finishes has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Home Finishes for the Goods, on trust for Home Finishes; and
(f) the Customer shall not deal with the money of Home Finishes in any way which may be adverse to Home Finishes; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Home Finishes; and
(h) Home Finishes can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Home Finishes will be the owner of the end products.

9. Defects
9.1 The Customer shall inspect the Goods on delivery and shall within three (3) days of delivery (time being of the essence) notify Home Finishes of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Home Finishes an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Home Finishes+ has agreed in writing that the Customer is entitled to reject, Home Finishes’ liability is limited to either (at Home Finishes discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.

10. Warranty
10.1 For Goods not manufactured by Home Finishes, the warranty shall be the current warranty provided by the manufacturer of the Goods. Home Finishes shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
10.2 To the extent permitted by statute, no warranty is given by Home Finishes as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Home Finishes shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

11. Intellectual Property
11.1 Where Home Finishes has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Home Finishes, and shall only be used by the Customer at Home Finishes’ discretion.
11.2 The Customer warrants that all designs or instructions to Home Finishes will not cause Home Finishes to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Home Finishes against any action taken by a third party against Home Finishes in respect of any such infringement.

12. Default & Consequences of Default
12.1 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 one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
12.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Home Finishes from and against all costs and disbursements incurred by Home Finishes in pursuing the debt including legal costs on a solicitor and own client basis and Home Finishes’ collection agency costs.
12.3 Without prejudice to any other remedies Home Finishes may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Home Finishes may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Home Finishes will not be liable to the Customer for any loss or damage the Customer suffers because Home Finishes has exercised its rights under this clause.
12.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.5 Without prejudice to Home Finishes’ other remedies at law Home Finishes shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Home Finishes shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Home Finishes becomes overdue, or in Home Finishes’ opinion the Customer will be unable to meet its payments as they fall due; or
(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.

13. Security And Charge
13.1 Despite anything to the contrary contained herein or any other rights which Home Finishes may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Home Finishes or Home Finishes’ nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Home Finishes (or Home Finishes’ nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Home Finishes elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Home Finishes from and against all Home Finishes’ costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Home Finishes or ’ nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.

14. Cancellation
14.1 Home Finishes 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 Home Finishes shall repay to the Customer any sums paid in respect of the Price. Home Finishes shall not be liable for any loss or damage whatever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Home Finishes (including, but not limited to, any loss of profits) up to the time of cancellation.

15. Privacy Act 1988
15.1 The Customer and/or the Guarantor/s agree for Home Finishes to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by Home Finishes.
15.2 The Customer and/or the Guarantor/s agree that Home Finishes may exchange information about the Customer and the Guarantor/s 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 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 credit worthiness of Customer and/or Guarantor/s.
15.3 The Customer consents to Home Finishes being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Customer agrees that personal credit information provided may be used and retained by Home Finishes for the following purposes and for other purposes as shall be agreed between the Customer and Home Finishes or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Home Finishes, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by 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.
15.5 Home Finishes 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; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

16. Construction Contracts Act 2004
16.1 At Home Finishes’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Construction Contracts Act 2004 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any provisions of the Construction Contracts Act 2004 of Western Australia, except to the extent permitted by the Acts where applicable.

17. General
17.1 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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia and are subject to the jurisdiction of the courts of Western Australia.
17.3 Home Finishes shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Home Finishes of these terms and conditions.
17.4 In the event of any breach of this contract by Home Finishes the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 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 Home Finishes.
17.6 Home Finishes may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
17.7 The Customer agrees that Home Finishes may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Home Finishes notifies the Customer of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.9 The failure by Home Finishes to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Home Finishes’ right to subsequently enforce that provision.