TERMS OF BUSINESS
The Trustee for G J Hope Family Trust Trading as GJH Cabinets are cabinet making, joinery and installation services. These Terms of Business govern all services provided by GJH Cabinets to the Customer.
· The following definitions apply in this document:
· ABN means Australian Business Number.
· ACN means Australian Company Number.
· Agreement means these Terms of Business.
· Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Albury, Australia.
· Change Request means a written notice from the Customer requesting a change to the Deliverables subject to the Quotation, or any additional work not specified in a Quotation or otherwise previously agreed to be provided by GJH Cabinets.
· Commencement Date means the earlier of:
o The date the Quotation is accepted by the Customer; or
o The date when GJH Cabinets first provides Services for the Customer.
· Consent means any consent or approval required by law to be obtained from a regulatory authority relative to any Services, including (without limitation) a building consent.
· Customer means the customer as identified on any Quotation i.e., O’Neill Homes and will be referred henceforth as the Customer.
· Customer IP means all Intellectual Property of the Customer contained in any information provided to GJH Cabinets in the course of providing the Work.
· Deliverable means any deliverable supplied by GJH Cabinets subject to this the Quotation.
· Expenses has the meaning set out in a clause below.
· Fee means a fee charged by GJH Cabinets for the provision of any Deliverable or Service.
· Fixed Fee Rate means any set Fee that applies to a particular set of Work.
· GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
· Intellectual Property means any intellectual property rights, whether registrable or not, including all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property of a party in any part of the world, and including applications for the registration of any such rights and any improvements, enhancements or modifications to such registrations.
· GJH Cabinets means The Trustee for G J Hope Family Trust Trading as GJH Cabinets.
· GJH Cabinets IP means all Intellectual Property of GJH Cabinets incorporated in the Work.
· New IP means Any Intellectual Property generated by GJH Cabinets for the Customer in the process of providing the Work but excludes any updates or further development of the Proprietary Technology.
· Privacy Act means the Privacy Act 1988 (Cth).
· Quotation means any quote, project specification, statement of work, or proposal prepared by GJH Cabinets, and accepted by the Customer in writing.
· Service means any service provided by GJH Cabinets subject to this Agreement, and includes a Deliverable where implied by context.
· Special Conditions means any arrangements made between the parties that are governed by this Agreement and/or change any term or condition of this Agreement.
· Tax Invoice has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
· Third-Party IP means any rights which are owned by a third-party that are attached to any materials included in the Work, which may be attached to (without limitation) code, web-design templates, photographs; written works; visual and artistic design; video and film; and audio recordings.
· Work means the Services and Deliverables subject to the Quotation.
Agreement and Commencement
· The relationship between the parties shall be governed by the terms of this Agreement until terminated under the provisions of this Agreement.
· This Agreement commences on the Commencement Date. Where the Commencement Date pre-dates the date on which the Customer accepts a Quotation or these Terms of Business, the Parties expressly acknowledge that the terms and conditions of this Agreement, to the extent reasonably possible, commenced on the Commencement Date, and this Agreement is the formalisation of an existing undocumented agreement between the Parties.
· In order to accept the terms of a Quotation the Customer must accept the terms of this Agreement. If the Customer does not accept the terms of this Agreement, it must not accept a Quotation.
· GJH Cabinets shall provide the following services (Services) to the Customer:
o Cabinet making.
o Delivery and/or installation of cabinetry and/or other products; and
o Such other services as may be agreed between the parties from time-to-time.
· Any project specification, proposal or quote prepared by GJH Cabinets and accepted by the Customer (whether orally or in writing) sets out the Quotation (Quotation) of the Services and Deliverables the Customer has requested (Work). The Work will not extend beyond that Quotation unless GJH Cabinets and the Customer agree in writing.
· GJH Cabinets will provide the following Work to the Customer:
· The Services; and
· Such other services and Deliverables as described in a Quotation as may be agreed from time to time.
· The Customer is responsible for obtaining each Consent necessary to enable GJH Cabinets to lawfully provide the Work.
· Notwithstanding GJH Cabinets providing the Services in accordance with this Agreement, GJH Cabinets shall not be responsible for the Customer’s failure to obtain or comply with a Consent.
· The Customer is responsible for providing GJH Cabinets with a copy of each applicable Consent, including the documentation that must be complied with relative to the Consent (including any plans etc.).
· GJH Cabinets shall comply with each Consent and related documentation provided by the Client when providing the Work.
Notification of Defects
· The Customer may assess the Services to determine if they were properly provided by GJH Cabinets, or to determine if they contain any defects within 10 Business days of Completion of Work.
· The Customer may notify any defects or problems with the Services by providing GJH Cabinets with written notice giving GJH Cabinets a reasonable amount of time to rectify the alleged issued (which in default shall not be less than 15 business days from date of notice). GJH Cabinets shall rectify any bona fide defects specified in the written notice in a prompt and professional manner.
· No Change Request from the Customer is valid until accepted in writing by GJH Cabinets.
· Unless agreed otherwise in writing, GJH Cabinets’ usual rates (as specified in the Quotation or otherwise provided to the Customer) shall apply in respect of any Change Request undertaken by GJH Cabinets.
· GJH Cabinets warrants that it is an independent service provider to the Customer and that it is not an employee or partner of the Customer in any way.
· GJH Cabinets will not:
o Hold itself out as an agent of the Customer, except to the extent necessary to carry out the Work; or
o Incur obligations or liabilities on behalf of the Customer unless the Customer provides written authority.
· GJH Cabinets will:
· Ensure that the Work is complete and provided in a timely manner and/or in accordance with any timeframes agreed by the parties.
· Ensure that the Work is provided in accordance with the standards outlined in the Quotation.
· Establish and maintain clear channels of communication at all times with the Customer, and promptly answer any questions asked by the Customer.
· Comply with all the relevant laws and industry standards in respect of providing the Work; and
· Act in accordance with the Customer’s reasonable directions while providing the Work.
· the CLIENT’s key obligations
· The Customer will:
· Ensure that GJH Cabinets has access to all the:
· Premises, resources, and personnel required to enable GJH Cabinets to provide the Work; and
· Consents, documentation and information reasonably requested by GJH Cabinets to provide the Work.
· Establish and maintain clear channels of communication at all times with GJH Cabinets.
· Promptly provide clear, complete and timely instructions and all necessary information and documents to enable GJH Cabinets to provide the Work effectively.
· The Customer must immediately advise GJH Cabinets, if GJH Cabinets have misunderstood the Customer or made incorrect assumptions.
· Promptly provide GJH Cabinets with a copy of all applicable plans, policies, procedures, rules, regulations, standards of conduct and requirements relevant to the provision of the Work.
· GJH Cabinets may engage such third parties as are necessary to provide the Work without the Customer’s approval.
· GJH Cabinets shall be responsible for ensuring that all third-party subcontractors comply with GJH Cabinets’ obligations under this Agreement.
Fees & Payment
§ GJH Cabinets will charge the Customer such fees as specified in the Quotation (Fees) which may include:
o A Fixed Fee Rate.
o an upfront Fee; and/or
o payment terms in accordance with a specified payment schedule.
§ Where a Fixed Fee Rate applies the Customer agrees:
o To pay the upfront Fee for GJH Cabinets’ commitment to undertake the agreed Work.
o The Fixed Rate Fee only covers work done within the Quotation.
o The Customer must provide instructions (and all required information and other documents) to GJH Cabinets within the timeframe(s) specified in the Quotation; and
o The Fixed Fee Rate does not cover any work done outside of excluded above.
§ GJH Cabinets reserve the right to not undertake any work falling outside of the scope of work above without additional payment or an agreement by the Customer to pay GJH Cabinets at its hourly rates. GJH Cabinets will advise the Customer as soon as reasonably practicable where work falls outside of these parameters and give the Customer an estimate of the additional costs/rates.
§ If GJH Cabinets obtains any goods or services for the Work from third parties the Customer agrees to pay these at cost (Expenses). Such Expenses may include, without limitation:
o Electrical services or materials.
o Plumbing services or materials.
o Structural building or carpentry services, and/or materials; and
o Any other expense not included in the Fees subject to the Quotation.
§ For the avoidance of doubt any services contained in Expenses shall not constitute subcontracting pursuant to previous item of this Agreement.
§ GJH Cabinets shall obtain approval from the Customer prior to incurring the cost of any Expenses.
§ Unless otherwise stated, Fees are inclusive of GST, which is payable in addition at the prevailing rate.
Invoicing & Payment
§ GJH Cabinets shall provide a Tax Invoice to the Customer for any paid work provided.
§ The Customer agrees to pay any Tax Invoice promptly and within the stated timeframe, which in default shall be 14 Business Days from the date of the invoice. Payment shall be by electronic transfer into GJH Cabinets’ nominated bank account unless otherwise agreed between the Parties.
Disputed Tax Invoice
§ Should the Customer dispute any charge on a Tax Invoice, the Customer must notify GJH Cabinets of the disputed item within 5 business days of the date of the Tax Invoice.
§ The Customer must pay the amount of the Tax Invoice not in dispute within the stated timeframe.
§ Failure by the Customer to notify GJH Cabinets of a disputed Tax Invoice within 10 business days shall be deemed acceptance by the Customer of the entire Tax Invoice.
§ GJH Cabinets may charge interest at a rate of 0.5% per week on overdue Tax Invoices.
§ If the Customer does not pay the full Fees as required, GJH Cabinets may suspend all services.
§ If Fees are not brought out of arrears within 28 days of becoming overdue, GJH Cabinets may cease providing the Work without notice and end this Agreement.
§ The Customer agrees that GJH Cabinets shall not be responsible or liable in any way for:
o Interruptions to the availability of Work in any event.
o Loss of Customer IP in any event.
GJH Cabinets IP
§ The Customer acknowledges that GJH Cabinets retains ownership of all GJH Cabinets IP.
§ GJH Cabinets grants the Customer a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the GJH Cabinets IP to the extent that it is contained within the Work.
§ GJH Cabinets acknowledges that the Customer retains ownership of all of Customer IP.
§ The Customer grants GJH Cabinets a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the Customer IP to the extent that it is used within the Work.
§ New IP is owned absolutely by GJH Cabinets and vests in GJH Cabinets immediately.
§ To the extent that the Customer may at any time acquire any right, title or interest in the New IP, the Customer, by this document, agrees to assign to GJH Cabinets all such rights, title and interest in the New IP.
§ GJH Cabinets grants the Customer a non–exclusive, perpetual, non–transferable, royalty free and worldwide licence to use the New IP to the extent that it is contained within the Work.
Privacy And Direct Marketing
§ Where the Customer provides GJH Cabinets with the personal information of its customers, employees, contractors or other individuals, the Customer warrants that it is duly authorised to do so.
§ The Customer consents to GJH Cabinets’ use of the Customer’s contact details to maintain an ongoing professional relationship with the Customer and any associated entity, including in order to provide updates, invitations and other communications GJH Cabinets consider may interest the Customer.
§ If any dispute arises between the Customer and GJH Cabinets in connection with this Agreement (Dispute), then either party may notify the other of the Dispute with a notice (Dispute Notice) which:
§ Includes or is accompanied by full and detailed particulars of the Dispute; and
§ Is delivered within 10 Business Days of the circumstances giving rise to the Dispute first occurring.
§ Within 10 (Ten) Business Days after a Dispute Notice is given, a representative (with the authority to resolve the dispute) of the Customer and GJH Cabinets must meet and seek to resolve the Dispute.
§ A party must not bring court proceedings in respect of any Dispute unless it first complies with the requirements of the dispute resolution mechanism outlined in this clause.
§ Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory, or declaratory relief in respect of a Dispute.
§ Despite the existence of a Dispute, the parties must continue to perform their respective obligations under this document and any related agreements.
Liability & Indemnity
§ The Customer agrees that it uses the Services and Deliverables at its own risk.
§ The Customer shall indemnify GJH Cabinets for any claim that arises from the Customer’s failure to obtain or comply with any Consent required in relation to any Work.
§ The Customer acknowledges that GJH Cabinets is not responsible for the conduct or activities of the Customer and that GJH Cabinets is not liable for such under any circumstances.
§ The Customer agrees to indemnify GJH Cabinets for any loss, damage, cost or expense that GJH Cabinets may suffer or incur as a result of or in connection with the Customer’s use of or conduct in connection with the Work, including any breach by the Customer of these Terms of Business.
§ In no circumstances will GJH Cabinets be liable for any direct, incidental, consequential or indirect damages, damage to property, loss of property, loss or corruption of data, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the Customer’s access to, or use of, or inability to use a Deliverable or Service, whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not GJH Cabinets knew or should have known of the possibility of such damage, or business interruption of any type, whether in tort, contract or otherwise.
§ Certain rights and remedies may be available under the Competition and Consumer Act 2010 (Cth) or similar legislation of other States or Territories and may not be permitted to be excluded, restricted, or modified. Apart from those that cannot be excluded, GJH Cabinets and GJH Cabinets’ related entities exclude all conditions and warranties that may be implied by law. To the extent permitted by law, GJH Cabinets liability for breach of any implied warranty or condition that cannot be excluded is restricted, at GJH Cabinets option to:
o The re-supply of services or payment of the cost of re-supply of services; or
o The replacement or repair of goods or payment of the cost of replacement or repair.
§ This Agreement shall end when the Services and/or Deliverables have been completed by GJH Cabinets in the reasonable opinion of the Customer, or at any time agreed by the parties in writing.
§ Without affecting any other rights or obligations of the parties, either party may terminate this Agreement by giving 30 days’ written notice.
§ Where a party is in breach of this Agreement, the other party may provide the breaching party a notice to remedy the breach within a reasonable time, which shall not be less than 10 business days. Should the breach remain unremedied then the other party may terminate this contract by written notice.
§ Should the Customer terminate this Agreement without cause, it shall remain liable to pay any Fees that it had agreed to pay GJH Cabinets for all active and/or delivered Work.
Modification of Terms
§ The terms of this Agreement may be updated by GJH Cabinets from time-to-time.
§ Where GJH Cabinets modifies the terms, it will provide the Customer with 30 days’ written notice, and the Customer will be required to accept the modified terms in order to continue using the Services.
§ If the Customer does not accept the modified terms, it must notify GJH Cabinets and terminate this Agreement.
Electronic Communication, Amendment & Assignment
§ The words in this clause that are defined in the Electronic Transactions Act 1999 (Cth) have the same meaning.
§ The Customer can direct notices, enquiries, complaints and so forth to GJH Cabinets as set out in this Agreement. GJH Cabinets will notify the Customer of a change of details from time-to-time.
§ GJH Cabinets will send the Customer notices and other correspondence to the details that the Customer submits to GJH Cabinets, or that the Customer notifies GJH Cabinets of from time-to-time. It is the Customer’s responsibility to update its contact details as they change.
§ A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.
§ Notices must be sent to the parties’ most recent known contact details.
§ The Customer may not assign or otherwise create an interest in this Agreement.
§ GJH Cabinets may assign or otherwise create an interest in its rights under this Agreement by giving written notice to the Customer.
Notices to GJH Cabinets must be sent to:
GJH Cabinets Pty Ltd
234 North Street
Albury, NSW, 2640
§ Special Conditions. The parties may agree to any Special Conditions to this Agreement in writing.
§ To the extent that the Quotation is inconsistent with the terms of this Agreement, the terms of the Quotation will prevail. To the extent that the Special Conditions are inconsistent with any other term of this Agreement, the Special Conditions will prevail.
§ Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
§ The relationship of the parties to this Agreement does not form a joint venture or partnership.
§ No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
§ Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.
§ Governing Law. This Agreement is governed by the laws of the state of New South Wales. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
§ Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
§ Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise:
o The singular includes the plural, and the opposite also applies.
o If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
o A reference to a clause refers to clauses in this Agreement.
o A reference to legislation is to that legislation as amended, re‑enacted or replaced, and includes any subordinate legislation issued under it.
o Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
o A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).
o A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
o A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
o A reference to dollars or $ is to an amount in Australian currency unless otherwise explicitly specified.
END TERMS OF BUSINESS