Terms & Agreements
1. Definitions
Agreement means this Contract and any annexures.
Goods means the goods and/or Services and/or materials supplied by us to you under this Agreement.
GST means the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Force Majeure Event shall include but is not limited to an Act of God, war, natural disaster (including but not limited to an earthquake, flood, hurricane, volcano event, wildfire/bushfire or landslide), accidents, fire, storm, pandemic, COVID lockdown and/or transport delays as a result, terrorism, strike, embargo, civil disasters, change of legal/political environment, business disruption, revolt, energy failure and/or external telecommunications failure.
Parties is a reference to both us and you.
PPSA means
- the Personal Property Securities Act 2009; and
- the Personal Property Securities Regulations 2010,
as amended, supplemented, or affected by any other applicable legislation of the Commonwealth, or any State or Territory, of Australia;
PPSA Register means the Personal Property Securities Register within the meaning of, and as defined in, PPSA;
Services means the services to be provided by Next Level Painting Pty Ltd under this Agreement.
Terms means the Terms included in this Agreement.
You/Your means the Client to whom we are providing the services under this Agreement.
We/Us/Our means Next Level Painting Pty Ltd.
2. Term of Agreement & Estimate
- The terms of this Agreement will commence on the earlier of: the date you sign it; instruct us to commence work; or pay a deposit. These terms remain in effect until all the works you have instructed us to perform (Services) have been completed, unless the Services are terminated in accordance with this Agreement. The Term may be extended by written consent of the Parties.
- Any quotation provided is an estimate of the total costs based on your instructions and the apparent work that needs to be done to deliver the Services. The estimate may increase if additional time and materials are required. Where possible we will inform you in advance of any increases to the original estimate.
3. Payment Terms & Reimbursement of Expenses
- We require a deposit equal to 10% of the total of the amount in the quotation.
- On completion of the Services, we will invoice for the remaining amount owing. Invoices are due within 14 business days of receipt.
- Late payments of invoices will incur penalty fees of 5% p.a., calculated daily.
- Where the total fees for the Goods or Services exceed $10,000 we reserve the right to invoice you in installments while carrying out the Services, and before completion of the Services. We reserve the right to stop work in the event you cease paying the instalments.
- Once full payment has been received, we will transfer ownership of our works to you. Until this point, we retain ownership over the materials and any benefits derived from the Services.
- In the event that this Agreement is terminated by you before completion of the Services but where the Services have been partially performed, we will be entitled to a pro rata payment of the total quotation up to the date of termination.
- Where we need to purchase materials or make any reasonable and necessary expenses to provide the Services, you agree to reimburse us for such expenses if they are outside of the scope of the invoiced Services. Where possible we will pre-approve expenses with you first.
- Unless otherwise stated, all amounts, including out of pocket expenses, expressed and described on or in connection with this Agreement and/or invoices are listed in Australian Dollars (AUD) and are GST inclusive.
4. Termination
- The following events constitute an Event of Default:
- if you fail to make payment required by this Agreement on the due date for payment, and do not remedy such breach within 30 days of the due date;
- if we ascertain that you have made any false, misleading or inaccurate statements having a material effect in relation to the making of this Agreement;
- if in our reasonable opinion, you act in a manner which has, or is likely to, adversely affect our business.
- either party becomes insolvent.
- We may terminate this Agreement if you suffer an Event of Default as defined in clause 4(a) by giving you 30 days written notice.
- You may terminate this Agreement if we suffer an Event of Default under clause 4(a)(iv) by giving us 30 days written notice.
- On termination of this Agreement for any reason, or if an Event of Default occurs, you must pay for all Services and work performed by us up to the date of termination, including any part performance (on a pro-rata basis), and irrespective of whether the work or Services was delivered before the Event of Default or the termination. Default interest will be applied to this amount until any outstanding balance is paid in full. We retain the right to enforce any performance we deem appropriate including court action and you will be liable for legal and enforcement costs on the basis of full indemnity.
5. Confidentiality & Intellectual Property
- Both parties agree not to disclose any confidential information about the other party and their business except as required by law. Any intellectual property produced under this Agreement remains our property.
6. Use of Subcontractors
- We may, at our discretion, engage third party subcontractors to perform some or all of the Services under this Agreement.
Retention of Title and PPSA
- Items and property pertaining to the Goods supplied will remain our property and will not pass on to you until payment of the money owing for the Goods and any other money owing by you to us has been fully paid.
- You shall, at our request, assist in taking any measures necessary to protect our title in the Goods supplied.
- Until the Goods have been paid for in full:
- you have possession of the Goods as bailee only;
- you must properly store, protect and insure the Goods, including storing them in a manner that shows clearly they are our property; and
- you may sell or consume the Goods, in the ordinary course of business, but only as our fiduciary agent.
- You have no authority to bind us to any liability by contract or otherwise and must not purport to do so.
- You must, if requested by us, deliver the Goods to us, failing which, we are irrevocably authorized to enter the place where the Goods are being stored and repossess the Goods, if:
- you fail to pay a due amount following demand by us;
- you commit an act of bankruptcy;
- a receiver is appointed to you;
- you go into liquidation, administration or some other form of insolvency administration;
- you cease to carry on business; or
- you enter into a scheme or compromise with your creditors.
- Our property in the Goods is not affected if the Goods become a fixture attached to your or a third party’s premises.
- We may commence legal action against you if Goods are not paid for, although property in the Goods has not passed to you.
- You irrevocably agree and consent to us registering our interest in the Goods on the PPSA Register pursuant to the provisions of the PPSA.
8. Access
- You shall ensure we have clear and free access to the work site at all times as required to enable us to undertake the Services.
- You agree that any building/construction site will comply with the relevant state occupational health and safety laws relating to the building/construction industry and any other relevant standards and legislation.
9. Warranties and Indemnities
- You agree that you are relying only on the Terms expressed in this Agreement and the relevant invoices, and not on any other information or representation given by us.
- We disclaim all liability arising from, or in any way connected with the Project and/or Services, including any liability for consequential or indirect losses, whether caused by breach of statute, contract, negligence or other tort.
- You will indemnify us against any claims resulting from any work or service we carry out on your request.
10. Force Majeure Event
- We will not be liable for any loss or inconvenience caused by a delay in delivery of materials or the provision of Services under this Agreement, including any delay caused by a Force Majeure Event.
- If we are wholly or partially unable to perform our obligations under this Agreement because of a Force Majeure Event, then:
- after the Force Majeure Event arises, we will use reasonable endeavours to notify you of the extent to which we are unable to perform our obligations;
- we will use reasonable endeavours to mitigate the effect of the Force Majeure Event; and
- we will not be liable to you for any liability or loss you may suffer or incur as a result of the Force Majeure Event.
- If a Force Majeure Event occurs and has continued for a period of more than 60 days, and we are unable to perform our obligations under these Terms, either party may terminate this Agreement.
11. Modification of Agreement
- Any modification of this Agreement will only be binding if stated in writing and signed by an authorised representative of each Party.
12. Dispute Resolution
Compulsory: If a dispute arises out of or relates to this Agreement, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
Notice: a party to this Agreement claiming a dispute (‘Dispute’) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
Resolution: on receipt of that notice (‘Notice’) by the other party, the parties to the Terms (‘Parties’) must:
- Within 14 days of the Notice endeavor in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
- If for any reason whatsoever, 14 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Australian Mediation Association or his or her nominee;
- The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and, without limiting the foregoing, undertake to pay any amounts requested by the mediator as a precondition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
- The mediation will be held in Sydney, NSW
Confidential: all communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential to the extent possible, and must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
Termination of Mediation: if 2 weeks have elapsed after the start of the mediation for the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
13. General
- This Agreement together with the Invoice contains the entire agreement between us and excludes any oral representations that are inconsistent with the written documents.
- The relationship between the Parties under this Agreement does not constitute a partnership, agency, joint venture or any form of fiduciary relationship or contract of employment.
- Nothing in this Agreement limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including Australian Consumer Law (or any liability under them) by which law may not be limited or excluded.
- Time is of the essence in this Agreement.
- Waiver of any provision of or right under this Agreement must be in writing signed by the party entitled to the benefit of the provision or right being waived.
- The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement does not amount to a waiver.
- This Agreement may only be varied by written agreement signed by both Parties.
- The clauses relating to Intellectual Property, Liability and Indemnities, and any other clause that by its nature is intended to survive the expiry or termination of this Agreement, shall be deemed to survive expiry and termination.
- If any part of this Agreement is found to be void and unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Agreement shall remain in force.
- You warrant to us that you have the power to enter into and perform the obligations of this Agreement without breaching any other legal rights or obligations.
- You agree that your relationship with us is not exclusive. We may enter into arrangements with other parties for similar work.
- All notices, approvals, consents or other communications under this Agreement must be provided in writing to the other Party, or their designated representative.
- This Agreement may be executed in counterparts.
- This Agreement is governed by the laws of NSW, and each Party submits to the exclusive jurisdiction of the courts of NSW.
