Bondi Floors

Terms & Conditions

1. Definitions

1.1 “Bondi Floors” means Bondi Floors Pty Ltd , its successors and assigns or any person acting on behalf of and with the authority of Bondi Floors Pty Ltd.

1.2 “Customer” means the company, organization, or person/s buying the Goods as specified in any invoice, document or order and if there is more than one, Customer is a reference to each Customer jointly and severally.

1.3 “Goods” means all Goods or Services supplied by Bondi Floors to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).

1.4 “Price” means the Price payable for the Goods as agreed between Bondi Floors and the Customer in accordance with clause 3 below.

2. Acceptance

2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.

2.2 These terms and conditions may only be amended with Bondi Floors’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Bondi Floors.

2.3 The Customer accepts and acknowledges that supply of certain species of timber may be restricted from time to time due to lack of resource and circumstances beyond Bondi Floors control.

3. Price and Payment

3.1 At Bondi Floors’ sole discretion the Price shall be either:

(a) as indicated on any invoice provided by Bondi Floors to the Customer; or

(b) the Price as at the date of delivery of the Goods according to Bondi Floors’ current price list; or

(c) Bondi Floors’ quoted price (subject to clause 3.2) which will be valid for the period stated in the quotation or otherwise for a period of twenty one (21) days.

3.2 Bondi Floors reserves the right to change the Price if a variation to Bondi Floors’ quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as floor preparation, rotten floor boards, cleaning, extra rooms, additional Goods required, take-up and disposal of old floor coverings, inaccurate measurements provided by the Customer or as a result of increases to Bondi Floors in the cost of Goods and labour) shall allow Bondi Floors the right to halt all Services until such time as Bondi Floors and the Customer agree to changes to the plans and/or specifications as outlined in the quotation to incorporate such variances. The variances once approved shall be detailed in writing and charged for on the basis of Bondi Floors’ quotation and will be shown as variations/extras on the invoice. Payment for all variations must be made in full at their time of completion.

3.3 At Bondi Floors’ sole discretion a plausible non-refundable deposit may be required.

3.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Bondi Floors, which may be:

(a) thirty (30) days following the date of the invoice;

(b) the date specified on any invoice quote or other form as being the date for payment; or

(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Bondi Floors.

3.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to between the Customer and Bondi Floors.

3.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to Bondi Floors an amount equal to any GST Bondi Floors must pay for any supply by Bondi Floors under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

4. Delivery of Goods

4.1 Subject to clause 4.2 it is Bondi Floors’ responsibility to ensure that the Services start as soon as it is reasonably possible.

4.2 The Services commencement date will be put back and the building period extended by whatever time is reasonable in the event that Bondi Floors claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond Bondi Floors’ control including but not limited to any failure by the Customer to:

(a) make a selection; or

(b) have the site ready for installation; or

(c) Notify Bondi Floors that the site is ready.

4.3 Delivery (“Delivery”) of the Goods is taken to occur at the time that:

(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at Bondi Floors’ address; or

(b) Bondi Floors (or Bondi Floors’ nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.

4.4 At Bondi Floors’ sole discretion the cost of delivery is in addition to the Price.

4.5 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Bondi Floors shall be entitled to charge a reasonable fee for redelivery and/or storage.

4.6 Any time or date given by Bondi Floors to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and Bondi Floors will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.

5. Risk

5.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.

5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Bondi Floors is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Bondi Floors is sufficient evidence of Bondi Floors’ rights to receive the insurance proceeds without the need for any person dealing with Bondi Floors to make further enquiries.

5.3 If the Customer requests Bondi Floors to leave Goods outside Bondi Floors’ premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.

5.4 The Customer acknowledges and accepts that:

(a) Goods supplied may:

(i) 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

(ii) mark or stain if exposed to certain substances; and

(iii) be damaged or disfigured by impact or scratching; and

(b) skirting Boards/Kick Boards may exhibit some markings on these surfaces due to the necessity of high speed sanding equipment to be operated right up to the skirting to achieve the best possible result; and

(c) Coatings may reject Polyurethane with some chemical substances for example, old wax, polish, oils and even natural resins in timber. Any subsequent recoats necessary to rectify this occurrence may be charged for; and

(d) beadings, trim and/or silicone is not included unless specified in the quotation; and

(e) different types of old floor coverings for example “Black Japan”, old coatings or wax may produce a “two tone” effect in some older timbers, which cannot be sanded out; and

(f) movement between boards may stretch polyurethane and cause an opaque line;

(g) gaps between boards may cause ‘quilting’; and

(h) swirling marks from rotary equipment is a normal part of the sanding process and can be visible under certain lighting; and

(i) some existing deep cuts, stains and markings (such as black marks around nails and water marks) on the floorboards cannot be removed; and

(j) cupping of timber can occur after sanding and polishing due to moisture levels in timber; and

(k) Edge bonding is a consequence of timber shrinkage and the boards been stuck together with the polyurethane and is not a result of the services provided by Bondi Floors.

5.5 Timber is a hydroscopic material subject to expansion and contraction, therefore, Bondi Floors will accept no responsibility for gaps that may appear in the flooring during prolonged dry periods or swelling and/or cupping caused by moisture and periods of high humidity.

5.6 Bondi Floors shall not be liable for any damage or inconsistencies in the floor boards caused by air-conditioning, air flow, sun exposure, and dust in the air, heating or large expanses of glass windows without curtains or blinds, or any other site conditions that affect the completed condition of the floors.

5.7 Whilst Bondi Floors will take all due care to avoid contamination of the finished surface, Bondi Floors accepts no responsibility for contamination by natural contaminates such as dust or hair which may be present at the worksite.

5.8 Bondi Floors will only inspect or view a timber 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.

6. Customers Responsibilities

6.1 It is the Customers responsibility to;

(a) have all areas clean and clear to enable scheduled work to be completed in accordance with the schedule of installation; and

(b) remove all existing floor coverings, tacks and staples unless agreed in writing otherwise; and

(c) fully disclose any information that may affect Bondi Floors’ installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams); and.

(d) ensure the sub-floor is adequately ventilated and is structurally sound; and

(e) ensure that the levels of a sub-floor are satisfactory as the floor coverings can only follow the contours of the sub-floor and will not correct unevenness; and

(f) Remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Customer. All care taken but no responsibility accepted by Bondi Floors in this regard; and

(g) Provide adequate dustsheets to protect the Customers furniture and décor. Bondi Floors will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any sanding process. Flaking or crumbling walls should be temporarily covered by the Customer, until the coatings are dry; and

(h) extinguish all naked flames prior to coating including but not limited to pilot lights heaters etc; and

(i) supply a 15 amp/240 volt electrical power source to within 20 meters of the project; and

(j) Ensure that full and final lighting as designed for the completed project is fully operational prior to sanding works commencing, and are made available for use at no cost for the duration of the project. Any costs incurred by Bondi Floors will be invoiced to the Customer should this requirement not be met; and

(k) Make the premises available on the agreed date and time. If installation is interrupted by the failure of the Customer to adhere to the installation schedule agreed to between Bondi Floors and the Customer, any additional costs will be invoiced to the Customer as an extra; and

(l) Bondi Floors is not insured to remove furniture or fittings and will not do so, nor is Bondi Floors licensed to move gas or electrical appliances.

6.2 The Customer agrees to indemnify Bondi Floors against any claims howsoever arising from the provisions inclause 6.

7. Customers Disclaimer

7.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to him by any servant or agent of Bondi Floors and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgment and that Bondi Floors shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequent Customer.

8. Access

8.1 The Customer shall ensure that Bondi Floors has clear and free access to the work site at all times to enable them to undertake the works. Bondi Floors 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 Bondi Floors.

8.1 An elevator must be available for deliveries to the 4th floor and above.

9. Time of completion

9.1 Bondi Floors will make every reasonable effort to complete Services as stated in Bondi Floors' quotes; however, the time of completion of all Services is based on previous estimates ,can only be used as approximation within reason, and will not be bounding against any claims.

9.2 Bondi Floors will not be responsible for ancillary or consequential damages or any other expenses (including, but not limited to time lost from work, hotel expenses, meals, inconvenience) that may occur from unforeseen delays in delivery of Services.

10. Title

10.1 Bondi Floors and the Customer agree that ownership of the Goods shall not pass until:

(a) the Customer has paid Bondi Floors all amounts owing to Bondi Floors; and

(b) the Customer has met all of its other obligations to Bondi Floors.

10.2 Receipt by Bondi Floors 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 recognized.

10.3 It is further agreed that:

(a) until ownership of the Goods passes to the Customer in accordance with clause 10.1 that the Customer is only a bearer of the Goods and must return the Goods to Bondi Floors on request.

(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Bondi Floors and must pay to Bondi Floors the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.

(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for Bondi Floors and must pay or deliver the proceeds to Bondi Floors on demand.

(d) the Customer should not convert or process the Goods or intermingle them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of Bondi Floors and must sell, dispose of or return the resulting product to Bondi Floors as it so direct

(e) the Customer irrevocably authorises Bondi Floors to enter any premises where Bondi Floors believes the Goods are kept and recover possession of the Goods.

(f) Bondi Floors may recover possession of any Goods in transit whether or not delivery has occurred.

(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Bondi Floors.

(h) Bondi Floors may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

11. Personal Property Securities Act 2009 (“PPSA”)

11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

11.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Bondi Floors to the Customer.

11.3 The Customer undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Bondi Floors may reasonably require to;

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii);

(b) indemnify, and upon demand reimburse, Bondi Floors for all expenses incurred in registering a financing statement or financing change statement on the

Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of Bondi Floors;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Bondi Floors;

(e) Immediately advise Bondi Floors of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

11.4 Bondi Floors and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

11.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

11.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

11.7 Unless otherwise agreed to in writing by Bondi Floors, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

11.8 The Customer must unconditionally ratify any actions taken by Bondi Floors under clauses 11.3 to 11.5.

11.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

12. Security and Charge

12.1 In consideration of Bondi Floors agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

12.2 The Customer indemnifies Bondi Floors from and against all Bondi Floors’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Bondi Floors’ rights under this clause.

12.3 The Customer irrevocably appoints Bondi Floors and each director of Bondi Floors as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Customer’s behalf.

13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

13.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify Bondi Floors in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Bondi Floors to inspect the Goods.

13.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the 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).

13.3 Bondi Floors acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Bondi Floors makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Bondi Floors’ liability in respect of these warranties is limited to the fullest extent permitted by law.

13.5 If the Customer is a consumer within the meaning of the CCA, Bondi Floors’ liability is limited to the extent permitted by section 64A of Schedule 2.

13.6 If Bondi Floors is required to replace the Goods under this clause or the CCA, but is unable to do so, Bondi Floors may refund any money the Customer has paid for the Goods.

13.7 If the Customer is not a consumer within the meaning of the CCA, Bondi Floors’ liability for any defect or damage in the Goods is:

(a) limited to the value of any express warranty or warranty card provided to the Customer by Bondi Floors at Bondi Floors’ sole discretion;

(b) limited to any warranty to which Bondi Floors is entitled, if Bondi Floors did not manufacture the Goods;

(c) otherwise negated absolutely.

13.8 Subject to this clause 13, returns will only be accepted provided that:

(a) the Customer has complied with the provisions of clause 13.1; and

(b) Bondi Floors has agreed that the Goods are defective; and

(c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and

(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, Bondi Floors shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) the Customer failing to properly maintain or store any Goods;

(b) the Customer using the Goods for any purpose other than that for which they were designed;

(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Customer failing to follow any instructions or guidelines provided by Bondi Floors;

(e) fair wear and tear, any accident, or act of God.

13.10 Bondi Floors may in its absolute discretion accept non-defective Goods for return in which case Bondi Floors may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Goods plus any freight costs.

13.11 Notwithstanding anything contained in this clause if Bondi Floors is required by a law to accept a return then Bondi Floors will only accept a return on the conditions imposed by that law.

14. Intellectual Property

14.1 Where Bondi Floors has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Bondi Floors.

14.2 The Customer warrants that all designs, specifications or instructions given to Bondi Floors will not cause Bondi Floors to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Bondi Floors against any action taken by a third party against Bondi Floors in respect of any such infringement.

14.3 The Customer agrees that Bondi Floors may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Bondi Floors has created for the Customer.

15. Default and Consequences of Default

15.1 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 Bondi Floors’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

15.2 If the Customer owes Bondi Floors any money the Customer shall indemnify Bondi Floors from and against all costs and disbursements incurred by Bondi Floors in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Bondi Floors’ collection agency costs, and bank dishonour fees).

15.3 Without prejudice to any other remedies Bondi Floors may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Bondi Floors may suspend or terminate the supply of Goods to the Customer. Bondi Floors will not be liable to the Customer for any loss or damage the Customer suffers because Bondi Floors has exercised its rights under this clause.

15.4 Without prejudice to Bondi Floors’ other remedies at law Bondi Floors shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Bondi Floors shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Bondi Floors becomes overdue, or in Bondi Floors’ opinion the Customer will be unable to make a payment when it falls due;

(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.

16. Compliance with Laws

16.1 The Customer and Bondi Floors 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.

16.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.

16.3 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.

17. Cancellation

17.1 Bondi Floors 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 Customer. On giving such notice Bondi Floors shall repay to the Customer any money paid by the Customer for the Goods. Bondi Floors shall not be liable for any loss or damage whatsoever arising from such cancellation.

17.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by Bondi Floors as a direct result of the cancellation (including, but not limited to, any loss of profits).

17.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stock list items, will definitely not be accepted once production has commenced, or an order has been placed.

18. Privacy Act 1988

18.1 The Customer agrees for Bondi Floors to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Bondi Floors.

18.2 The Customer agrees that Bondi Floors may exchange information about the Customer 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 the 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 creditworthiness of the Customer.

The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

18.3 The Customer consents to Bondi Floors being given a consumer credit report to collect overdue payment on commercial credit (Section 18K (1)(h) Privacy Act 1988).

18.4 The Customer agrees that personal credit information provided may be used and retained by Bondi Floors for the following purposes (and for other purposes as shall be agreed between the Customer and Bondi Floors or required by law from time to time):

(a) the provision of Goods; and/or

(b) the marketing of Goods by Bondi Floors, its agents or distributors; and/or

(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the 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 Goods.

18.5 Bondi Floors 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;

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

18.6 The information given to the credit reporting agency may include:

(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);

(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;

(c) advice that Bondi Floors is a current credit provider to the Customer;

(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

(f) information that, in the opinion of Bondi Floors, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);

(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;

(h) that credit provided to the Customer by Bondi Floors has been paid or otherwise discharged.

19. Unpaid Bondi Floors’ Rights

19.1 Where the Customer has left any item with Bondi Floors for repair, modification, exchange or for Bondi Floors to perform any other service in relation to the item and Bondi Floors has not received or been tendered the whole of any moneys owing to it by the Customer, Bondi Floors shall have, until all moneys owing to Bondi Floors are paid:

(a) a lien on the item; and

(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.

19.2 The lien of Bondi Floors shall continue despite the commencement of proceedings, or judgment for any moneys owing to Bondi Floors having been obtained against the Customer.

20. Building and Construction Industry Security of Payments Act 1999

20.1 At Bondi Floors’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.

20.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.

21. General

21.1 The failure by Bondi Floors to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Bondi Floors’ 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.

21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which Bondi Floors has its principal place of business, and are subject to the jurisdiction of the Waverley Local Court in New South Wales.

21.3 Subject to clause 13 Bondi Floors 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 Bondi Floors of these terms and conditions (alternatively Bondi Floors’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

21.4 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 Bondi Floors nor to withhold payment of any invoice because part of that invoice is in dispute.

21.5 Bondi Floors may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

21.6 The Customer agrees that Bondi Floors may amend these terms and conditions at any time. If Bondi Floors makes a change to these terms and conditions, then that change will take effect from the date on which Bondi Floors notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for Bondi Floors to provide Goods to the Customer.

21.7 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.

21.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

 

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