Terms and Conditions
1. Definitions
1.1 "Prescott Cabinets" shall mean Glen Iris Trust The McDonald Family Trust T/A Prescott Cabinets its successors and assigns or any person acting on behalf of and with the authority of Glen Iris Trust The McDonald Family Trust T/A Prescott Cabinets
1.2 "Client" shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Prescott Cabinets to the Client
1.3 "Guarantor" means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis
1.4 "Goods" shall mean Goods supplied by Prescott Cabinets to the Client (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 Prescott Cabinets to the Client
1.5 "Services" shall mean all Services supplied by Prescott Cabinets to the Client 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 Prescott Cabinets and the Client in accordance with clause 4 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 11 (Defects), clause 12 (Warranty) may NOT apply to the Client where the Client 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 Client 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 Prescott Cabinets from the Client for the supply of Goods and/or the Client's acceptance of Goods supplied by Prescott Cabinets shall constitute acceptance of the terms and conditions contained herein
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Prescott Cabinets
3.4 The Client shall give Prescott Cabinets not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client's name and/or any other change in the Client's details (including but not limited to, changes in the Client's address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Prescott Cabinets as a result of the Client's failure to comply with this clause
3.5 Goods are supplied by Prescott Cabinets only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client's order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade
4. Price And Payment
4.1 At Prescott Cabinets' sole discretion the Price shall be either:
(a) as indicated on invoices provided by Prescott Cabinets to the Client in respect of Goods supplied; or
(b) Prescott Cabinets' quoted Price (subject to clause 4.2) which shall be binding upon Prescott Cabinets provided that the Client shall accept Prescott Cabinets' quotation in writing within thirty (30) days. The Price quoted shall cover only cabinetry, no allowance has been made for any other surfaces (including but not limited to appliances, splashbacks, sinks and taps, flooring etc.) such items shall be detailed a variation charge in accordance with clause 4.2
4.2 Prescott Cabinets reserves the right to change the Price in the event of a variation to Prescott Cabinets' quotation
4.3 At Prescott Cabinets' sole discretion a deposit may be required
4.4 At Prescott Cabinets' sole discretion:
(a) payment for approved Clients shall be made by instalments in accordance with Prescott Cabinets' payment schedule; or
(b) payment for approved Clients shall be due thirty (30) days following the end of the month in which a statement is posted to the Client's address or address for notices
4.5 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
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and Prescott Cabinets
4.7 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 Prescott Cabinets' sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Prescott Cabinets' address; or
(b) the Client takes possession of the Goods at the Client's nominated address (in the event that the Goods are delivered by Prescott Cabinets or Prescott Cabinets' nominated carrier)
5.2 At Prescott Cabinets' sole discretion the costs of delivery are included in the Price
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, (including having the site prepared for installation of the Goods). In the event that the Client is unable to take delivery of the Goods as arranged then Prescott Cabinets shall be entitled to charge a reasonable fee for redelivery
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement
5.5 Prescott Cabinets 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 Prescott Cabinets to deliver shall not entitle either party to treat this contract as repudiated
5.7 Prescott Cabinets shall not be liable for any loss or damage whatsoever due to failure by Prescott Cabinets to deliver the Goods (or any of them) promptly or at all where due to circumstances beyond the control of Prescott Cabinets
6. Risk
6.1 If Prescott Cabinets retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Prescott Cabinets is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Prescott Cabinets is sufficient evidence of Prescott Cabinets' rights to receive the insurance proceeds without the need for any person dealing with Prescott Cabinets to make further enquiries
6.3 Timber is a natural product and as such colour, shade tone, markings, and veining may vary from samples provided. Whilst Prescott Cabinets will make every effort to match sales samples to the finished Goods Prescott Cabinets accepts no liability whatsoever where the samples differ to the finished Goods
6.4 The Client acknowledges that Goods supplied may:
(a) 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
(b) expand, contract or distort as a result of exposure to heat, cold, weather; and
(c) mark or stain if exposed to certain substances; and
(d) be damaged or disfigured by impact or scratching
6.5 Whilst all care shall be taken to secure any property entrusted to Prescott Cabinets, all such items shall be left with Prescott Cabinets at the Client's sole risk.
6.6 All appliances, hardware and 3D drawings are purely for the visual aid of the Client and may not accurately represent finished look or positioning of the Clients chosen product
6.7 Where non-standard appliances, such as under mount sinks and taps, which are separate from the sink/basin are to be built-in to the Goods, the Client must confirm the positioning of such appliances during the design phase. Prescott Cabinets shall not be liable whatsoever for any errors in the Goods that are caused by inaccurate measurements being supplied or confirmed by the Client
6.8 It is the Client's responsibility to advise Prescott Cabinet's Production Manager of any instructions or alterations that arise on the day of installation. Prescott Cabinet's shall not be held liable for any errors or omissions that arise in the event that the Client discusses such instructions or alterations with Prescott Cabinet's Site Installer who may misunderstand or fail to pass on the correct instructions or alterations to the Production Manager
6.9 The process of removing bench tops or cabinets may cause damage to surrounding walls or tiles. The Client agrees to indemnify Prescott Cabinet's against any such damages
6.10 The Client acknowledges that once appliances are delivered to the Client's premises it becomes the Client's responsibility to ensure that the appliances are insured adequately or at all
6.11 Prescott Cabinet's shall at no time during the installation of the cabinet connect associated appliances (such as dishwashers, hot plates or ovens). Appliances shall be placed in their location however it is the Client's sole responsibility to arrange connection of such appliances
7. Damages
7.1 The Buyer shall ensure that the Seller has clear and free access to the work site at all times to enable them to undertake the works. The Seller 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 Seller
8. Underground Locations
8.1 Prior to the Seller commencing any work the Buyer must advise the Seller of the precise location of all underground services on the site and clearly mark the same. The underground mains services the Buyer must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site
8.2 Whilst the Seller will take all care to avoid damage to any underground services the Buyer agrees to indemnify the Seller in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1
9. Title
9.1 Prescott Cabinets and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Prescott Cabinets all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Prescott Cabinets in respect of all contracts between Prescott Cabinets and the Client
9.2 Receipt by Prescott Cabinets 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 Prescott Cabinets' ownership or rights in respect of the Goods shall continue
9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Prescott Cabinets shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Prescott Cabinets to the Client Prescott Cabinets may give notice in writing to the Client to return the Goods or any of them to Prescott Cabinets. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Prescott Cabinets shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Prescott Cabinets then Prescott Cabinets or Prescott Cabinets' agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Prescott Cabinets has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Prescott Cabinets for the Goods, on trust for Prescott Cabinets; and
(f) the Client shall not deal with the money of Prescott Cabinets in any way which may be adverse to Prescott Cabinets; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Prescott Cabinets; and
(h) Prescott Cabinets can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Prescott Cabinets will be the owner of the end products
10. Defects
10.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Prescott Cabinets of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Prescott Cabinets an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Prescott Cabinets has agreed in writing that the Client is entitled to reject, Prescott Cabinets' liability is limited to either (at Prescott Cabinets' discretion) replacing the Goods or repairing the Goods except where the Client 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
10.2 Goods will not be accepted for return other than in accordance with 11.1 above
11. Warranty
11.1 To the extent permitted by statute, no warranty is given by Prescott Cabinets as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Prescott Cabinets shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising
12. Intellectual Property
12.1 Where Prescott Cabinets has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Prescott Cabinets, and shall only be used by the Client at Prescott Cabinets' discretion
12.2 The Client warrants that all designs or instructions to Prescott Cabinets will not cause Prescott Cabinets to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify Prescott Cabinets against any action taken by a third party against Prescott Cabinets in respect of any such infringement
13. Default Consequences of Default
13.1 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 at Prescott Cabinets' sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment
13.2 In the event that the Client's payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Prescott Cabinets
13.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Prescott Cabinets from and against all costs and disbursements incurred by Prescott Cabinets in pursuing the debt including legal costs on a solicitor and own client basis and Prescott Cabinets' collection agency costs
13.4 Without prejudice to any other remedies Prescott Cabinets may have, if at any time the Client is in breach of any obligation (including those relating to payment), Prescott Cabinets may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Prescott Cabinets will not be liable to the Client for any loss or damage the Client suffers because Prescott Cabinets has exercised its rights under this clause
13.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) 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
13.6 Without prejudice to Prescott Cabinets' other remedies at law Prescott Cabinets shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Prescott Cabinets shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Prescott Cabinets becomes overdue, or in Prescott Cabinets' opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client 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 Client or any asset of the Client
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which Prescott Cabinets may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 Prescott Cabinets or Prescott Cabinets' nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Prescott Cabinets (or Prescott Cabinets' 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 Prescott Cabinets elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Prescott Cabinets from and against all Prescott Cabinets' costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Prescott Cabinets or Prescott Cabinets' nominee as the Client's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 15.1
15. Cancellation
15.1 Prescott Cabinets 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 Client. On giving such notice Prescott Cabinets shall repay to the Client any sums paid in respect of the Price. Prescott Cabinets shall not be liable for any loss or damage whatsoever arising from such cancellation
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Prescott Cabinets (including, but not limited to, any loss of profits) up to the time of cancellation
16. Privacy Act 1988
16.1 The Client and/or the Guarantor/s agree for Prescott Cabinets to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Prescott Cabinets
16.2 The Client and/or the Guarantor/s agree that Prescott Cabinets may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s
16.3 The Client consents to Prescott Cabinets being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988)
16.4 The Client agrees that personal credit information provided may be used and retained by Prescott Cabinets for the following purposes and for other purposes as shall be agreed between the Client and Prescott Cabinets or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Prescott Cabinets, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client'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 Client; and/or
(e) enabling the daily operation of Client's account and/or the collection of amounts outstanding in the Client's account in relation to the Goods
16.5 Prescott Cabinets may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client
17. Unpaid Prescott Cabinets' Rights
17.1 Where the Client has left any item with Prescott Cabinets for repair, modification, exchange or for Prescott Cabinets to perform any other Service in relation to the item and Prescott Cabinets has not received or been tendered the whole of the Price, or the payment has been dishonoured, Prescott Cabinets shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Prescott Cabinets is in possession of the item;
(c) a right to sell the item
17.2 The lien of Prescott Cabinets shall continue despite the commencement of proceedings, or judgment for the Price having been obtained
18. Construction Contracts Act 2004
18.1 At Prescott Cabinets' 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
18.2 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
19. General
19.1 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
19.2 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
19.3 Prescott Cabinets shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Prescott Cabinets of these terms and conditions
19.4 In the event of any breach of this contract by Prescott Cabinets the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods
19.5 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Prescott Cabinets nor to withhold payment of any invoice because part of that invoice is in dispute
19.6 Prescott Cabinets may license or sub-contract all or any part of its rights and obligations without the Client's consent
19.7 The Client agrees that Prescott Cabinets 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 Prescott Cabinets notifies the Client of such change
19.8 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
19.9 The failure by Prescott Cabinets to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Prescott Cabinets' right to subsequently enforce that provision
© Copyright 2010 Prescott Cabinets.