Terms and Conditions

1. Definitions

  1. “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
  2. “Contractor” means Burgess Paint N Panel , its successors or any person acting on behalf of and with the authority of Burgess Paint N Panel.
  3.  “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
    i. if there is more than one Client, is a reference to each Client jointly and severally;
    ii. if the Client is a partnership, it shall bind each partner jointly and severally;
    iii. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
    iv. includes the Client’s executors, administrators, successors and permitted assigns.
  4. “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by the Contractor to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall beinterchangeable for the other).
  5. “Worksite” means the address nominated by the Client to which the Materials are to be supplied by the contractor.
  6. “Intended Use” means a product and the use thereof, for which the product is intended to be, or is reasonably likely to be, associated with a building.
  7. “Non-Conforming Product” means products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:
    i. the product is not, or will not be, safe;
    ii. does not, or will not, comply with the relevant regulatory provisions; or
    iii. the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.
  8. “Confidential Information” means information of a confidential nature oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, date of birth, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
  9. “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Contractor and the Client in accordance with clause 6 below.
  10. “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth)

2. Acceptance

  1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
  2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
  3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
  4. The Client acknowledges and accepts that where the Client has postponed or delayed the Works, the Contractor must be notified within twenty-four (24) hours of the proposed commencement date as agreed to between both parties. Where such notice is received inside this timeframe, the Contractor reserves the right to charge a reasonable fee (as per clause 6.2) for the delay in the commencement of the Works.
  5. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2001 (ACT) or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and omissions

  1. The Client acknowledges and accepts that the Contractor shall, without prejudice accept no liability in respect of any alleged or actual error(s) and/or omission(s):
    i. resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this Contract; and/or
    ii. contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Works.
  2. In the event such an error and/or omission occurs in accordance with clause 3.1 and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

4. Change in control

  1. The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone, change of trustees, or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause 

6. Price and payment

  1. The Price shall be:
    i. the Contractor’s quoted Price which shall be binding upon the Contractor provided that the Client accepts the Contractor’s quotation in writing within thirty (30) days; or
    ii. as indicated on invoices provided by the Contractor to the Client in respect of Works performed/delivered (refer clause 6.3).
  2. The Contractor reserves the right to change the Price:
    i. if a variation to the Works is requested by the Client; and/or
    ii. where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, obscured building/Worksite defects, sub floor condition, incorrect measurements, plans and/or specifications provided by the Client, safety considerations (discovery of asbestos, etc.), prerequisite work by any third party not being completed, lack of required utilities, remedial work required due to existing workmanship being of a poor quality or non- compliant to the building code, stock availability, etc.) which are only discovered on commencement of the Works.
  3. Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to complete and sign a variation form and submit this to the Contractor within two (2) working days. Failure to do so will entitle the Contractor to NOT proceed with the variation. Payment for all variations will be sent in the form of an invoice and must be made in full at the time of their completion.
  4. A deposit of half the quoted Price will be required to secure the Works prior to the commencement date. The relevant invoice for the deposit will be submitted to the Client and payment will be required within seven (7) days for the Works to proceed. Late payment of the deposit will entitle the Contractor to reschedule the Works commencement date.
  5. Payment may be made by bank cheque, electronic/on-line banking, or cash.
  6. Unless otherwise stated the Price includes GST

7. Provision of Works

  1. It is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible. 
  2. The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any failure by the Client to:
    i. make a selection;
    ii. have the Worksite ready for the Works; or
    iii. notify the Contractor that the Worksite is ready.
  3. The Contractor may deliver the Works by separate instalments as necessary.
  4. Any time specified by the Contractor for delivery of the Works is an estimate only and the Contractor will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Works as agreed solely due to any action or inaction of the Client, then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date

8. Worksite access and condition

  1. It is the intention of the Contractor and agreed by the Client that:
    i. the Client shall ensure that the Contractor has clear and free access to the Worksite at all times to enable them to undertake the Works (including carrying out Worksite inspections, gain signatures for required documents, and for the delivery and installation of the Materials). The Contractor shall not be liable for any loss or damage to the Worksite unless due to the negligence of the Contractor; and
    ii. it is the Client’s responsibility to provide the Contractor, while at the Worksite, with adequate access to available water, electricity and toilet facilities.
  2. The Client agrees to be present at the Worksite when and as reasonably requested by the Contractor and its employees, contractors and/or agents.
  3. Worksite Inductions:
    i. in the event the Client requires an employee or sub-contractor of the Contractor to undertake a Worksite induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay the Contractor’s standard (and/or overtime, if applicable) hourly labour rate;
    ii. where the Contractor is in control of the Worksite, the Client and/or the Client’s third party contractors must initially carry out the Contractor’s Health & Safety induction before access to the Worksite will be granted. Inspection of the Worksite during the course of the Works will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by the Contractor.
  4.  It is the Client’s responsibility to:
    i. protect the Works from vandalism or interference by any third party including the Clients pets or other animals;
    ii. fully disclose any information that may affect the Contractor’s installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa);
    iii. the underground mains and services including, but 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 the Worksite;
    iv. ensure the sub-floor is adequately ventilated and is structurally sound;
    v. ensure that the levels of the sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness;
    vi. provide adequate dust sheets to protect the Client’s furniture and décor; and
    vii. extinguish all naked flames prior to coating including, but not limited to, pilot lights, heaters etc.
  5. The Contractor is not insured to remove furniture or fittings and will not do so, nor is the
    Contractor licensed to move gas or electrical appliances

9. Risk and liability

  1. The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe structures or risk) that the Contractor reasonably form the opinion that the Client’s premises is not safe for the Works to proceed then the Contractor shall be entitled to delay the provision of the Works until the Contractor is satisfied that it is safe for the installation.
  2. The Contractor will not accept responsibility for any damage to the floor due to hydrostatic water problems, moisture vapour permeating the concrete slab, microenvironments caused by air-conditioning, heating or large expanses of glass windows without curtains or blinds.
  3. Whilst the Contractor will take all due care to avoid contamination of the finished surface, the Contractor accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the Worksite.
  4. The Contractor gives no guarantee (expressed or implied) as to the length of time the curing process will take and/or against cracking of concrete that may occur naturally in the Works such as:
    i. hairline cracking of paving and grout;
    ii. damage caused by contact with chemicals, solvents, oils or any other substances; or
    iii. the effects by elements such as heat exposure or wet weather conditions that prolong the curing process.
  5.  The Contractor shall not be liable for any defect in the Works, if the Client does not follow the Contractor’s recommendation (which is hereby given) to:
    i. not allow foot traffic for a minimum of twenty-four (24) hours and vehicles for a minimum of five (5) days;
    ii. not place heavy furniture on the Works area for a minimum of seventy-two (72) hours; and
    iii. protect the Works from inclement weather whilst the curing process is in progress.
  6. If the Client fails to protect the Works as per the Contractor’s recommendation, then any additional Works/Materials required will be charged as a variation as per clause 6.2.ii.
  7. The Contractor will only inspect or view the finished floor from a standing position, as this is generally how you will be living on it. Minor marks or slight imperfections in the floor finish that can only be viewed from a crouching or kneeling position will not be considered defects.
  8. The Client acknowledges:
    i. that variations of colour and texture are inherent in concrete. The Contractor shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between different batches of product; and
    ii. that any slip-resistant coating applied by the Contractor will assist in preventing slips and falls, however it will not completely eliminate such incidents from occurring. The treated surface may become slippery particularly after being exposed to wet, oily or greasy conditions. The Contractor is not liable for any injury to persons or any subsequent damage occurring as a result of a mishap whilst using the treated surface. It will remain the Clients responsibility to provide for their own safety and that of their family and visitors.

10. Compliance with relevant and applicable laws

  1. The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any work health and safety laws (WHS) relating or any other relevant safety standards or legislation pertaining to the Works.
  2. Both parties acknowledge and agree that Works will be provided in accordance with any current Australian Standards applicable.
  3. The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
  4. The Contractor shall comply with the terms and conditions of all such consents and approvals in so far as such consents and approvals relate to the carrying out of the Works.

11. Title

  1. The Contractor and the Client agree that ownership of the Materials shall not pass until:
    i. the Client has paid the Contractor all amounts owing to the Contractor; and
    ii. the Client has met all of its other obligations to the Contractor.
  2. Receipt by the Contractor 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.
  3. It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 12.1:
    i. the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to the Contractor on request;
    ii. the Client holds the benefit of the Client’s insurance of the Materials on trust for the Contractor and must pay to the Contractor the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
    iii. the production of these terms and conditions by the Contractor shall be sufficient evidence of the Contractor’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with the Contractor to make further enquiries;
    iv. the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for the Contractor and must pay or deliver the proceeds to the Contractor on demand;
    v. the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Contractor and must sell, dispose of or return the resulting product to the Contractor as it so directs;
    vi. unless the Materials have become fixtures the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of the Materials;
    vii. the Contractor may recover possession of any Materials in transit whether or not delivery has occurred;
    viii. the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Contractor; and
    ix. the Contractor may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.

12. Defects and disputes

  1. The Client must inspect the Works on completion and must complete and sign a Job Completion form. By signing this form, the Client has agreed that all Works have been completed as per quote and is satisfied with the Work that has been performed. If the Client is not satisfied with the outcome of how the Contractor has completed the Works, the Client has seven (7) days to send a written letter including photographs to the Contractor. Failure to do so within this time frame, the Contractor will not take any responsibility carried on from this period and therefore will accept that the Works have no defects and the Job Completion form will be over righted as satisfied with no errors.
  2. Under applicable State, Territory and Commonwealth Law (including, without limitation the Competition and Consumer Act 2010 (CCA)), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
  3. The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
  4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Works. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
  5.  If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.
    f. If the Contractor is required to replace any Materials under this clause or the CCA, but is unable to do so, the Contractor may refund any money the Client has paid for the Materials/Works.
  6. If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
  7.  If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defect or damage in the Materials is:
    i. limited to the value of any express warranty or warranty card provided to the Client by the Contractor at the Contractor’s sole discretion;
    ii. limited to any warranty to which the Contractor is entitled, if the Contractor did not manufacture the Materials;
    iii. otherwise negated absolutely.
    i. The Contractor shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
    i. the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
    ii. interference with the Works by the Client or any third party without the Contractor’s prior approval;
    iii. the Client failing to follow any instructions or guidelines provided by the Contractor; and
    iv. fair wear and tear, any accident, or act of nature.

13. Default and consequences of default

  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 a half percent (2.5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthlyat such a rate) after as well as before any judgment.
  2. If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
  3. Further to any other rights or remedies the Contractor may have under this Contract, if a Client has made payment to the Contractor, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
  4. Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if:
    i. any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when it falls due;
    ii. the Client has exceeded any applicable credit limit provided by the Contractor;
    iii. the Client becomes insolvent or bankrupt, 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
    iv. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

14. Cancellation of Works

  1. Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Works to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
  2. The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Contractor for Works already performed. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
  3. In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).

15. Privacy

  1. All emails, documents, images or other recorded information held or used by the Contractor is personal information, and therefore considered confidential information.
  2. The Contractor acknowledges its obligation in relation to the handling, use, disclosure and processing of personal information pursuant to the Privacy Act 1988 (Privacy Act). The Contractor acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s personal information, held by the Contractor that may result in serious harm to the Client, the Contractor will notify the Client in accordance with the Privacy Act. Any release of such personal information must be in accordance with the Act (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
  3. The Client has the right to request (by email) from the Contractor:
    i. a copy of the personal information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect personal information; and
    ii. that the Contractor does not disclose any personal information about the Client for the purpose of marketing.
  4. The Contractor will destroy personal information upon the Client’s request (by email) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
  5. The Client can make a privacy complaint by contacting the Contractor via email. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Office of the Australian Information Commissioner at www.oaic.gov.a

16. Trusts

  • a. If the Client at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Contractor may have notice of the Trust, the Client covenants with the Contractor as follows:
    i. the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
    ii. the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
    iii. the Client will not without consent in writing of the Contractor (the Contractor will not unreasonably withhold consent), cause, permit, or suffer to happen any of the
    following events:
    • the removal, replacement or retirement of the Client as trustee of the Trust;
    • any alteration to or variation of the terms of the Trust;
    • any advancement or distribution of capital of the Trust; or
    • any resettlement of the trust property.

17. General

  1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
  2. These terms and conditions and any contract to which they apply shall be governed by the laws of the Australian Capital Territory in which the Contractor has its principal place of business and are subject to the jurisdiction of the courts in that territory.
  3. Subject to clause 15, the Contractor 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 the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
  4. The Contractor may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
  5. The Client cannot licence or assign without the written approval of the Contractor.
  6. The Contractor may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
  7. The Client agrees that the Contractor may amend the general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Works to the Client.
  8. Neither party shall be liable for any default due to any act of nature (fire, flood, storm etc), war, terrorism, strike, lock-out, industrial action, or other event beyond the reasonable control of either party.
  9. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.