Contract Terms & Conditions of Trader – James Ford Fencing and Landscaping
1. Definitions1.1 “JF” means James Ford Fencing & Landscaping.
1.2 “Client” means the person/s buying the Goods (and/or hiring Equipment) agreeing to the work as specified in any invoice, document or quote, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by JF to the Client at the Client’s request.
1.4 “Equipment” means all Equipment including any accessories supplied on hire by JF to the Client
1.5 “Price” means the Price payable for the Goods and/or Equipment hire as agreed between JF and the Client in accordance with clause 4 below.
2.1 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 the Goods/Equipment.
2.2 These terms and conditions may only be amended with JF’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and JF.
3. Change in Control
3.1 The Client shall give JF 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 or fax number/s, or business practice). The Client shall be liable for any loss incurred by JF as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At JF’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by JF to the Client; or (b) JF’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise.
4.2 JF reserves the right to change the Price: (a) if a variation to the Goods which are to be supplied is requested; or (b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or (c) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, prerequisite work by any third party not being completed, change of design etc) which are only discovered on commencement of the Services; or (d) in the event of increases to JF in the cost of labour or which are beyond JF’s control.
4.3 At JF’s sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by JF, which may be: (a) on delivery of the Goods/Equipment; (b) before delivery of the Goods/Equipment; (c) by way of instalments/progress payments in accordance with JF’s payment schedule; (d) the date specified on any invoice or other form as being the date for payment; or (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by JF.
4.5 Payment may be made by cash, electronic/on-line banking, or by any other method as agreed to between the Client and JF.
4.6 In addition to the Price the Client must pay JF for any supply by JF under this or any other agreement for the sale of the Goods/hire of the Equipment. The Client must pay JF, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client 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. 5. Delivery of Goods/Equipment
5.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that: (a) the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at JF’s address; or (b) JF (or JF’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
5.2 At JF’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3 The Client must take delivery by receipt or collection of the Goods/Equipment whenever either is tendered for delivery. In the event that the Client is unable to take delivery of the
Goods/Equipment as arranged then JF shall be entitled to charge a reasonable fee for redelivery of the Goods/Equipment and/or the storage of the Goods.
5.4 JF may deliver the Goods/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by JF to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and JF will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
5.6 Subject to clause 5.7 it is JF’s responsibility to ensure that the Services start as soon as it is reasonably possible.
5.7 The Services commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that JF claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond JF’s control, including but not limited to any failure by the Client to: (a) make a selection; or (b) have the site ready for the Services; or (c) notify JF that the site is ready.
6.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, JF is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by JF is sufficient evidence of JF’s rights to receive the insurance proceeds without the need for any person dealing with JF to make further enquiries.
6.3 If the Client requests JF to leave Goods outside JF’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
6.4 Whilst JF will take all due care during installation JF will not accept any responsibility for tiles or pavers damaged during installation.
6.5 Where fencing is installed on a retaining wall JF shall not be liable for any movement in the fence due to consolidation, or the movement of soil or any other component of the retaining wall.
6.6 JF reserves the right to touch-up all products supplied and installed on the work site to rectify minor blemishes or damage to paintwork.
6.7 Where the Client has supplied materials for JF to complete the Services, the Client acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults
inherent in the materials. JF shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Client.
6.8 The Client acknowledges that Goods supplied may (a) 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 (b) expand, contract or distort as a result of exposure to heat, cold, weather; and (c) mark or stain if exposed to certain substances; and (d) be damaged or disfigured by impact or scratching.
7.1 The Client shall ensure that JF has clear and free access to the work site at all times to enable them to undertake the Services. JF 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 JF.
8. Underground Locations
8.1 Prior to JF commencing any work the Client must advise JF of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are 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 site.
8.2 Whilst JF will take all care to avoid damage to any underground services the Client agrees to indemnify JF in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause
9. Accuracy of Customers Plans and Measurements
9.1 JF shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, JF accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
9.2 In the event the Client gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or JF places an order based on these measurements and quantities JF accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
10. Client’s Responsibilities
10.1 If the Client states he or she wishes to be present during the work then it is not the responsibility of JF if work starts at the agreed time and the client is not present.
10.2 The Client acknowledges that it is their responsibility to remove any existing fence (including existing footings), trees, vines and shrubs to allow JF clear access along the proposed fence line prior to commencement of work by JF unless otherwise agreed in writing between JF and the Client. Under no circumstances will JF handle the removal of any asbestos product.
10.3 The Client shall provide JF with a suitable free power source.
10.4 JF shall not be responsible for digging land out under fence lines nor removal of soil from the work site.
11. Title To Goods
11.1 JF and the Client agree that ownership of the Goods shall not pass until: (a) the Client has paid JF all amounts owing to JF; and (b) the Client has met all of its other obligations to JF.
11.2 Receipt by JF 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.
11.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 11.1 that the Client is only a bailee of the Goods and must return the Goods to JF on request. (b) the Client holds the benefit of the Client’s insurance of the Goods on trust for JF and must pay to JF the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed. (c) the Client 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 Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for JF and must pay or deliver the proceeds to JF on demand. (d) the Client should not convert or process the Goods 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 JF and must sell, dispose of or return the resulting product to JF as it so directs. (e) the Client irrevocably authorises JF to enter any premises where JF believes the Goods are kept and recover possession of the Goods. (f) JF may recover possession of any Goods in transit whether or not delivery has occurred. (g) the Client 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 JF. (h) JF may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the (h) JF may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client 12. Client’s Disclaimer
14.1 The Client hereby disclaims any right to rescind, or cancel any contract with JF or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by JF and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
15. Defects, Warranties and Returns
15.1 The Client must inspect the work and notify JF in writing of any evident defect/damage within (7) days of completion, or failure to comply with the description or quote. Upon such notification the Client must allow JF to inspect the Goods/Equipment.
19.1 JF may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Equipment at any time before the Goods/Equipment are due to be delivered by giving written notice to the Client. On giving such notice JF shall repay to the Client any money paid by the Client for the Goods/Equipment. JF shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Client cancels delivery of the Goods/Equipment or WORK agreed the Client shall be liable for any and all loss incurred (whether direct or indirect) by JF as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.3 Cancellation of orders for Goods/Equipment made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20. Dispute Resolution
20.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute.