JIM’S FENCING – CONTRACT TERMS AND CONDITIONS
All our quotations are subject to the following Terms and Conditions. By accepting the Quotation, you agree to be bound by the below Terms and Conditions.
Unless otherwise stipulated, words used in these Terms and Conditions have the following meaning:-
” means the
- Dividing Fences Act 1961 (WA);
- Fences Act 1975 (SA);
- Dividing Fences Act 1968 & Fences Amendment Act 2014 (VIC);
- Boundary Fences Act 1908 (TAS);
- Dividing Fences Act 1991 No 72 (NSW);
- Common Boundaries Act 1981 (ACT);
- Dividing Fences and Trees Act 2011 (QLD);
- Fences Act 2015 (NT);
” means the Quotation and these Terms and Conditions;
” means any present or future, actual or contingent, claim, cause of action, demand, complaint, damages, loss, cost or expense;
” means the party which engaged the Contractor and who is named as the Client on the Quotation;
” means the land occupied by the Client irrespective of whether the land is owned or leased by the Client;
” means the boundary between the Client’s Land and the Neighbour’s Land;
” means the price offered in the Quotation for the Goods and Services;
” means the Jim’s Fencing franchisee which issued the Quotation and includes any subcontractors and agents engaged to supply the Goods or Services;
” has the meaning given by the Act
” means any material supplied by the Contractor relating to, or connected with, the Services;
” means the party which owns or occupies, or both, the Neighbour’s Land;
” means the land adjoining the Client’s Land;
” means a notice issued under the Act
to a Neighbour seeking contribution to the costs associated with construction or repair of a Dividing Fence;
” means the quotation document supplied with these terms and conditions, describing the goods or services, or both, which the Contractor has agreed to supply;
“Rate of Interest
” means the rate of 15% per annum; and
” means the services described in the Quotation;
” means the place at which the Works are to be carried out as specified in the Quotation;
means collectively the Goods and Services to be supplied by the Contractor.
- TERMS OF PAYMENT
- The Client is responsible for the payment to the Contractor of the Contract Price for the Works.
- Upon acceptance of the Quotation, the Contractor may, at the Contractor’s discretion, require the Client to deposit a sum not exceeding 50% of the Contract Price, which deposit is not refundable.
- Any deposit requested by the Contractor under clause 2.2 above must be paid to the Contractor prior to the Contractor commencing the Works.
- The Contract Price, or the balance of the Contract Price if a deposit has been paid by the Client, becomes due and payable immediately upon completion of the Works.
- If the Client:-
- cancels the Agreement
- repudiates the Agreement; or
- breaches any of the terms of the Agreement,
prior to the completion of the Works, the Client is to pay to the Contractor the cost of any Goods which the Contractor has purchased for the Works in addition to a proportion of the Contract Price equal to the proportion of Works completed as determined by the Contractor.
- The Contractor retains title to Goods supplied while any money remains due and owing to the Contractor and upon full payment of the Contract Price, and all other moneys payable to the Contractor by the Client under the Agreement, title of the Goods will pass to the Client.
- The Client is in default of the Agreement if the Client:-
- fails to pay any sum of money by the date upon which it becomes due and payable;
- fails to provide reasonable access to the Contractor;
- fails to observe, and perform, any other obligation under this Agreement;
- becomes insolvent.
- The Contractor may, at the Contractor’s sole discretion, immediately terminate this Agreement should the Client default on any term of the Agreement.
- Upon the Contractor terminating the Agreement, all moneys then payable under the Agreement become due and payable to the Contractor immediately.
- The Contractor is not obliged to refund any deposit paid by the Client if the Client is in default of the Agreement under clause 3.1 or does any of the things described in clause 2.5 above.
- The Client agrees to indemnify the Contractor for all costs, including legal costs on a solicitor and own client basis, incurred by the Contractor in, or associated with, enforcing the terms of this Agreement arising as a result of the Client’s default of this Agreement.
- Interest will accrue at the Rate of Interest, on a daily basis, on any sum which the Client fails to pay when that sum becomes due and payable under the Agreement.
- The Client authorises the Contractor to enter upon the Client’s Land to recover and remove Goods to which the Contractor retains title pursuant to clause 2.6.
- DIVIDING FENCES
- If the Works relate to a Dividing Fence, the Client acknowledges that the Client may seek contribution from the Neighbour for the costs associated with the repair or replacement of the Dividing Fence subject to the provisions of the
- The Contractor shall, at the request of the Client, send a Notice to the Neighbour.
- Despite the Contractor sending a Notice to the Neighbour under clause 4.2, the Neighbour’s failure to make payment in accordance with the Notice does not affect the Client’s liability to the Contractor and the Client will continue to be liable for payment of the Contract Price to the Contractor.
- The Client hereby indemnifies and will keep the Contractor harmless against any and all Claims which may be made by the Neighbour, or any third party, against the Contractor in respect of Works which relate to a Dividing Fence.
- CHARGE OVER REAL PROPERTY
- To better secure payment of the Contract Price and any other moneys payable by the Client to the Contractor under the Agreement, the Client hereby irrevocably charges in favour of the Contractor, the Client’s interest in any real property which the client has now or acquires in the future.
- ELECTRICITY AND WATER SUPPLY
- The Client must supply electricity and water at all times while the Contractor is carrying out the Works.
- If the Client fails to supply electricity and water pursuant to clause 6.1, the Client will be liable for:-
- costs of generator hire;
- costs of water cartage;
- costs of additional labour engaged by the Contractor; and
- damages associated with the additional time spent by the Contractor in carrying out the Works as a result of the Client’s breach of clause 6.1.
- The Quotation is based on the Works being carried out the Site unobstructed and clear.
- Prior to commencement of the Works, the Client must:-
- clear any obstructions at the Site; and
- provide the Contractor with full access to the Site.
- In the event that the site is obstructed, the Contractor reserves the right to refuse to carry out the Works without penalty to the Contractor.
- In the event that the Client fails to remove obstructions pursuant to clause 7.2(a) including, without limitation, service facilities, electrical cables, telephone cables, gas pipes, water pipes, stormwater pipes and sewerage pipes, the Client hereby indemnifies the Contractor against any Claims made by any person or authority in respect of any damage sustained to the uncleared obstruction.
- The Contractor accepts no responsibility for the absence of any concealed, or subterranean, obstructions such as, without limitation, rock, wire, pipes, tree roots, broken posts, foundations, thick or reinforced concrete and the Client agrees to pay to the Contractor the Contractor’s costs of removal of concealed, or subterranean, obstructions, which costs will be in addition to the Contract Price.
- The Client is liable to remove, or otherwise protect, all plants, ornaments, pipes and other materials at the Site which may be damaged during the Works.
- The Contractor accepts no responsibility for damage occurring as a result of the Client’s failure to remove, or adequately protect, the Client’s property under clause 7.6.
- Upon completion of the Works, the Contractor will remove from the site any off-cuts, packaging straps, cement bags or other debris related to the Works.
- Unless otherwise expressly stipulated in the Quotation, the Client is responsible for obtaining any permits required by a local or public authority and supplying the relevant permits to the Contractor.
- The Client indemnifies and will keep the Contractor harmless against any Claim made as a result of the Contractor’s performance of the Works and the failure of the Client to obtain a relevant permit.
- In the event that the Client is unable to obtain, or supply, or both, a permit in accordance with clause 8.1, which permit, in the Contractor’s opinion, is necessary to lawfully complete the Works, the Contractor reserves the right to decline, without penalty, to undertake the Works until the permit is provided to the Contractor.
- The Client warrants that the pegs and boundaries are in the correct position for the Works.
- The Client acknowledges that the Contractor has not made any representations as to the accuracy of the position of the boundaries or pegs.
- The Client hereby indemnifies and will keep the Contractor harmless against all Claims arising from the position of the Works.
- FENCE HEIGHT AND GROUND LEVEL
- The heights of fences as shown in the Quotation are nominal only.
- Fences will be constructed from standard production material components which shall result in, as near as is reasonably practicable, the heights nominated in the Quotation.
- The height of fences will be measured from:-
- where there is no retaining wall, from ground level; or
- where the fence is constructed above a retaining wall, from the top of the retaining wall,
to the top of the fence.
- The height of the fence may vary in relation to the natural undulation of the land along the fence.
- The Contractor will, at an additional cost to the Client, fill any gaps which arise due to the natural undulation of the land.
- FENCE POSITION
- The Contractor, at the Contractor’s sole discretion, will determine the side on which the fence posts are to be installed unless otherwise agreed between the Contractor and the Client.
- The Contractor will carry out the Works along the existing fence unless:-
- the Client instructs the Contractor to carry out the Works on an alternative line; and
- where the Works are on a Common Boundary, all Neighbours consent to the fence being constructed on the alternative line nominated in clause 11.2(a).
- All gates will be installed square and hung level and hinged to posts with standard hinging sufficient to clear the existing ground level.
- The Contractor will charge an additional fee to the Client for any non-standard, rake purpose or contour gate.
- ROCK/BRICK/CONCRETE HOLES
- If the Works require the Contractor to core holes in rock, brick or concrete, the Contractor will charge the Client a minimum $50.00 (excluding GST) which fee will be dependent upon the degree of difficulty in coring the hole and the methods used to core the hole.
- The Contractor will advise the Client of the fee which the Client will be obliged to pay prior to undertaking the coring works.
- The warranties provided by the Contractor are exhaustively set out in the Quotation and the Client acknowledges that the Contractor has made no further express or implied warranties with the exception of the warranties set out in the Quotation.
- CLAIMS AGAINST CONTRACTOR
- The Client may make no claim against the Contractor in respect of the Works unless the Client has:-
- notified the Contractor in writing of the complaint setting out:-
- the nature of the complaint; and
- the works required to remedy the Works which are the subject of the complaint;
- provided the Contractor with access to the Site to inspect the Works which are the subject of the Complaint; and
- provided the Contractor with a period of not less than 14 days to remedy the Works.
- VARIATION AND PRIORITY
- Any variation to the Agreement must be in writing and signed by the Contractor and the Client.
- If there are any inconsistencies between the Quotation and these Terms and Conditions, the terms set out in the Quotation will take priority over these Terms and Conditions.
- If any part of these Terms and Conditions are found to be contrary to any written law then that part of these Terms and Conditions will be read down or severed and the remainder of these Terms and Conditions shall remain in full force and effect.
- In addition to any requirement under the Act or any written law with respect to the Works, the Contractor guarantees, for a period of 12 months from the date of completion of the Works, that the Works will be:-
- free from defects; and
- carried out in a proper and workmanlike manner.
- If the Works are not free from defects or not completed in a proper and workmanlike manner the Client must provide to the Contractor written notice of the claim within seven days of the Client becoming aware of the defect or failure of the Contractor to carry out the works in a proper and workmanlike manner.
- The Client must provide access to the Contractor to repair, replace or make good any of the Goods or Services which the Client claims are defective or have not been carried out in a proper and workmanlike manner.
- The Contractor does not warrant or guarantee any goods supplied or services rendered which are outside the scope of the Works and Quotation.