1. Definitions
1.1 “All Stripped” shall mean All Stripped Franchising Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of All Stripped Franchising Pty Ltd.
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 All Stripped 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 “Services” shall mean all Services performed by All Stripped to the Customer as described on the invoices, quotation, work authorisation or any other forms as provided by All Stripped to the Customer, and includes any advice or recommendations.
1.5 “Price” shall mean the Price payable for the Services as agreed between All Stripped and the Customer 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 For contracts subject to Western Australian jurisdiction, clause 9 (Defects) may NOT apply to the Customer where the Customer is purchasing Services not for resale or hire where the Price of the Services does not exceed $40,000, or where the Price of the 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 All Stripped from the Customer for the performance of the Services and/or the Customer’s acceptance of Services undertaken by All Stripped 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 All Stripped.
3.4 The Customer shall give All Stripped 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 All Stripped as a result of the Customer’s failure to comply with this clause.
3.5 Services are performed by All Stripped 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.
4. Price and Payment
4.1 At All Stripped’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by All Stripped to the Customer in respect of Services performed; or
(b) All Stripped’s current Price at the date of delivery of the Services according to All Stripped’s “Price Guide”; or
(c) All Stripped’s quoted Price (subject to clause 4.2) which shall be binding upon All Stripped provided that the Customer shall accept All Stripped’s quotation in writing within sixty (60) days. Any estimate given over the telephone or site unseen is based on the assumption that the Customer has accurately measured the area which All Stripped is required to strip. All Stripped shall be entitled to treat any inaccurate measurements by the Customer as a variation and reserves the right to charge the Customer accordingly.
4.2 All Stripped reserves the right to change the Price in the event of a variation to All Stripped’s quotation. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of increases to All Stripped in the cost of materials and labour) will be charged for on the basis of All Stripped’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At All Stripped’s sole discretion a non-refundable deposit may be required.
4.4 At All Stripped’s sole discretion:
(a) payment shall be due on completion of the Services; or
(b) a detailed payment claim may be submitted at intervals not less than one (1) month for Services performed up to the end of each month. The value of Services so performed shall include the reasonable value of authorised variations.
4.5 Time for payment for the Services 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 credit card, or by direct credit, or by any other method as agreed to between the Customer and All Stripped.
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.
4.8 Receipt by All Stripped 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.
5. Specifications
5.1 The Customer acknowledges that All Stripped is unable to ascertain the quality or type of sub-floor or base underneath the flooring pertaining to the Services. As a result, in the event All Stripped finds that there is more than one layer of flooring to be removed, the original quoted Price shall be subject to a variation. Further, the Customer shall be liable for the actual cost of removing the flooring and any additional layers. All Stripped will make all reasonable attempts to obtain the Customer’s approval before proceeding once it is ascertained that the quoted Price will be exceeded.
5.2 The act of stripping the flooring may cause damage to the base or the sub-floor, where that sub-floor is inadequate for any reason. As a result, All Stripped may need to cease work until certain other works or repairs are carried out. All Stripped will not be liable for the cost of such repairs or additional works, or for any damage that is caused to the sub-floor as a result of inadequacies of any kind in the sub-floor.
6. Delivery
6.1 At All Stripped’s sole discretion delivery shall take place at the Customer’s nominated address (in the event that the Services are delivered by All Stripped or All Stripped’s nominated carrier).
6.2 The Customer shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Services as arranged then All Stripped shall be entitled to charge a reasonable fee for redelivery.
6.3 The Customer must ensure that All Stripped has free access to the work area and that all items are removed from the work area. All Stripped will take all reasonable care but will not be liable for damage to any items left in or near the work area.
6.4 The failure of All Stripped to deliver shall not entitle either party to treat this contract as repudiated.
6.5 All Stripped shall not be liable for any loss or damage whatsoever due to failure by All Stripped to deliver the Services (or any part of them) promptly or at all, where due to circumstances beyond the control of All Stripped.
7. Labour Hire
7.1 Whilst the labourer remains an employee of All Stripped they shall perform the Services in accordance with the Customer’s instructions. As such All Stripped shall not be liable for any actions of the labourer in following the Customer’s instructions.
8. Risk
8.1 If All Stripped retains ownership of the Services nonetheless, all risk for the Services passes to the Customer on delivery.
8.2 Stripping floors usually produces substantial amounts of dust. All Stripped uses dust extraction units wherever reasonably possible and take care to vacuum and dust the work area at the completion of work. Despite this, All Stripped cannot eliminate dust completely and it is the Customer’s responsibility to protect and clean areas outside the work area, as necessary.
8.3 Stripping floors also involves substantial noise production and vibration. All Stripped recommends that surrounding neighbours are notified, especially where the site is located in an apartment complex or commercial premises. In some commercial premises, it is recommended that floors be stripped after hours, to minimise the risk that work may need to be suspended as result of complaints from neighbouring retailers. In the event All Stripped is required to cease work for any reason for any period, including as a result of complaints from neighbours, All Stripped reserves the right to charge an hourly waiting charge, per person engaged to work on the floor. In certain circumstances, a minimum call out fee will apply.
9. Defects
9.1 The Customer shall inspect the Services on completion and shall within two (2) days of completion (time being of the essence) notify All Stripped of any alleged defect, shortage in quantity, damage or failure to comply with the description or quotation. The Customer shall afford All Stripped an opportunity to inspect the Services within a reasonable time following completion if the Customer believes the Services are defective in any way. If the Customer shall fail to comply with these provisions the Services shall be presumed to be free from any defect or damage. For defective Services, which All Stripped has agreed in writing that the Customer is entitled to reject, All Stripped’s liability is limited to rectifying the Services except where the Customer has acquired Services 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 Services or rectification of the Services.
10. Default and Consequences of Default
10.1 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 All Stripped’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
10.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by All Stripped.
10.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify All Stripped from and against all costs and disbursements incurred by All Stripped in pursuing the debt including legal costs on a solicitor and own client basis and All Stripped’s collection agency costs.
10.4 Without prejudice to any other remedies All Stripped may have, if at any time the Customer is in breach of any obligation (including those relating to payment) All Stripped may suspend or terminate the provision of Services to the Customer and any of its other obligations under the terms and conditions. All Stripped will not be liable to the Customer for any loss or damage the Customer suffers because All Stripped has exercised its rights under this clause.
10.5 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.
10.6 Without prejudice to All Stripped’s other remedies at law All Stripped shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to All Stripped shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to All Stripped becomes overdue, or in All Stripped’s 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.
11. Security and Charge
11.1 Despite anything to the contrary contained herein or any other rights which All Stripped 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 All Stripped or All Stripped’s 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 All Stripped (or All Stripped’s 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 All Stripped elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify All Stripped from and against all All Stripped’s 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 All Stripped or All Stripped’s 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 11.1.
12. Cancellation
12.1 All Stripped may cancel any contract to which these terms and conditions apply or cancel the Services at any time before the Services have commenced by giving written notice to the Customer. On giving such notice All Stripped shall repay to the Customer any sums paid in respect of the Price. All Stripped shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.2 In the event that the Customer cancels the Services the Customer shall be liable for any loss incurred by All Stripped (including, but not limited to, any amounts owing for Services already performed and any loss of profits) up to the time of cancellation.
13. Privacy Act 1988
13.1 The Customer and/or the Guarantor/s agree for All Stripped 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 All Stripped.
13.2 The Customer and/or the Guarantor/s agree that All Stripped 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.
13.3 The Customer consents to All Stripped being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
13.4 The Customer agrees that personal credit information provided may be used and retained by All Stripped for the following purposes and for other purposes as shall be agreed between the Customer and All Stripped or required by law from time to time:
(a) provision of Services; and/or
(b) marketing of Services by All Stripped, its agents or distributors in relation to the Services; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Services; 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 Services.
13.5 All Stripped 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.
14. Construction Contracts Act 2004
14.1 At All Stripped’s sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Construction Contracts Act 2004 may apply.
14.2 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.
15. General
15.1 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.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the State in which the sale is made and are subject to the jurisdiction of the courts of that State.
15.3 All Stripped shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by All Stripped of these terms and conditions.
15.4 In the event of any breach of this contract by All Stripped the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Services.
15.5 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 All Stripped nor to withhold payment of any invoice because part of that invoice is in dispute.
15.6 All Stripped may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
15.7 The Customer agrees that All Stripped 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 All Stripped notifies the Customer of such change.
15.8 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.
15.9 The failure by All Stripped to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect All Stripped’s right to subsequently enforce that provision.