Painting with Passion

TERMS AND CONDITIONS

1. Definitions

In these Terms unless the context requires otherwise:

Additional Charges means charges that are separate from the Price, and may include but are not limited to, transport, access and equipment hire costs.

Contract means the contract formed as a result of the acceptance of an Order by Watkins Painting & Decorating Pty Ltd. It includes these Terms and the Quote.

Confidential Information is information that:

• by its nature is confidential;
• is designated by the parties as confidential; or
• the parties know or ought to know is confidential;

and includes all information about the Watkins Painting & Decorating Pty Ltd and its related bodies corporate, including but not limited to, all technical, financial, commercial and other information in any form (for example: as a document or in electronic form) of or relating to them or their business affairs, which is made available or which becomes known during the terms of this Contract but does not include information that was in the public domain at the time of its disclosure.

Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence or otherwise).

Consumer Guarantees means the consumer guarantees contained in the Australian Consumer Law, which is contained in Schedule 2 of the Competition and Consumer Act 2010.

Customer means the customer set out in the Quote, offer or other document provided by Watkins Painting & Decorating Pty Ltd (in the absence of such information, the customer who placed the Order).

Delivery Dates means the dates set out in the Quote or such date as the parties otherwise agree in writing.

Watkins Painting & Decorating Pty Ltd means Watkins Painting & Decorating Pty Ltd  (ACN 615 523 656) ATF B.D Watkins Painting Family Trust.

Invoice means a tax invoice issued by Watkins Painting & Decorating Pty Ltd to the Customer specifying the Price and any ancillary costs payable by the Customer to Watkins Painting & Decorating Pty Ltd for the Services.

Insolvency Event means any of the following analogous events:

• the Customer, being an individual, commits and act of bankruptcy;
• a party becomes insolvent;
• a party disposes of whole or any part of its assets, operations or business other than in the ordinary course of business;
• the Customer is unable to pay Watkins Painting & Decorating Pty Ltd’s debts as the debts fall due;
• any step is taken by a mortgagee to take possession of or dispose of the whole or any part of a party’s assets, operations or business; or
• any steps is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or party of any party’s assets, operations or business.

Intellectual Property is all of Watkins Painting & Decorating Pty Ltd’s and its Related Bodies Corporate’s present and future patent and patent applications; rights to inventions; copyright and related rights; trademarks; service marks; trade names; domain names and URLs; rights in good will or to sue for passing off; rights in designs; registered designs; rights in computer software; database rights; rights in Confidential Information (including know-how and trade secrets); and any other intellectual property rights. These rights may be registered or unregistered.

Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees).

Order means any written or verbal order by the Customer to Watkins Painting & Decorating Pty Ltd for the Goods and/or Services.

Price means the price payable in respect of the Services, as specified in any Quote, or Invoice issued by Watkins Painting & Decorating Pty Ltd.

Related Bodies Corporate means related bodies corporate as defined by the Corporations Act 2001 (Cth).

Scope of Works means the means the project for which the Client has engaged Watkins Painting & Decorating Pty Ltd to perform the Services as set out in the Quote.

Quote means the Quote from Watkins Painting & Decorating Pty Ltd to the Customer for the provision of the Services.

Services means the services to be provided by Watkins Painting & Decorating Pty Ltd to the Customer as described in the Quote.

Terms means these Terms and Conditions of sale.

Work Site means the Customer’s site where the Scope of Works will be performed and the Services provided as set out in the Quote.

1. General

2.1.       These Terms apply to the sale of Goods and Services from Watkins Painting & Decorating Pty Ltd to the Customer to the exclusion of all other terms and conditions of Watkins Painting & Decorating Pty Ltd.

2.2.       Watkins Painting & Decorating Pty Ltd will not supply Goods and Services on any other terms or conditions than those set out herein.

1. Acceptance of Terms and placement of orders

3.1.       The Customer is deemed to have agreed to these Terms by:

• receiving a copy of these Terms;
• accepting the Quote verbally or in writing; or
• providing instructions to Watkins Painting & Decorating Pty Ltd in relation to the provision of the Goods and Services.
• By payment of your deposit (If applicable).

3.2.       If the Customer accepts an Order as specified in clause 3.1, the parties will have created a binding Contract and Watkins Painting & Decorating Pty Ltd will supply the Goods and/or Services to the Customer, and the Customer will pay the Price to Watkins Painting & Decorating Pty Ltd as specified on the Invoice in accordance with the terms of the Contract.

3.3.       The Customer must pay to Watkins Painting & Decorating Pty Ltd any costs associated with the Customer purporting to cancel the Contract, including any costs for the Services not yet delivered, to be calculated on a pro-rata basis, and costs for paint ordered and associated administration and management costs.

3.4.       Watkins Painting & Decorating Pty Ltd may cancel any Contract at any time prior to the provision of the Services with no liability other than to repay any amount of the Price paid by the Customer in advance of the cancellation.

1. Services

4.1.       Watkins Painting & Decorating Pty Ltd will provide to the Customer the Services.

4.2.       Watkins Painting & Decorating Pty Ltd will exercise reasonable care, skill and ability when performing the Services.

1. Client’s responsibilities and warranties

5.1.       The Customer must:

• ensure that Watkins Painting & Decorating Pty Ltd has clear and free access to the Work Site at all times to enable them to undertake the Services;
• the Customer must ensure that it has obtained the appropriate authority for Watkins Painting & Decorating Pty Ltd to perform the Services at the Work Site, including but not limited to, the Customer ensuring that authorities have been obtained from the nearby 

workers/tenants/public in relation to fire services, the paint fumes, and that the smoke detectors, alarms and air conditioners are in good working order.

• use all reasonable endeavours to ensure that there are no circumstances which may affect Watkins Painting & Decorating Pty Ltd’s ability to provide the Services;
• provide Watkins Painting & Decorating Pty Ltd with any details of any required specifications or properties of the Services at the time the Customer provides an Order to Watkins Painting & Decorating Pty Ltd;
• must ensure that the specifications or properties of the Services stated in any Order by the Customer will be fit for the intended purpose of the Services.

5.2.       The Customer warrants that the resources and information provided to Watkins Painting & Decorating Pty Ltd will be accurate and current, to the best of its knowledge.

5.3.       Watkins Painting & Decorating Pty Ltd will be entitled to rely on the Customers warranties set out in this clause 4.

5.4.       If there are any errors in any plans, specifications or other information provided by the Customer to Watkins Painting & Decorating Pty Ltd as set out in this clause 4, Watkins Painting & Decorating Pty Ltd will be entitled to vary the Price.

1. Price and Payment Terms

6.1.       The Customer must pay the Fees and the Reimbursable Expenses in the manner set out in the Invoice and within 7 days of the date of the invoice [or as otherwise agreed between the parties].

6.2.       If Watkins Painting & Decorating Pty Ltd requires a [20%] deposit [or as otherwise agreed] of the Price to be paid prior to commencing the Services (Deposit). Services will not be provided until Watkins Painting & Decorating Pty Ltd receives the Deposit.

6.3.       Reference to progress claim and reserve right to invoice monthly regardless of quote/terms

6.4.       If the Customer fails to make payment of any amount of the Price on the due date, Watkins Painting & Decorating Pty Ltd may suspend its Services and the Customer must pay to Watkins Painting & Decorating Pty Ltd interest on the full amount outstanding at the rate equal to 10%, calculated monthly for the period from the due date until payment is received.

6.5.       The Customer must reimburse Watkins Painting & Decorating Pty Ltd for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expense associated with any action by Watkins Painting & Decorating Pty Ltd to recover money from the Customer.

6.6.       The Customer agrees that it must pay to Watkins Painting & Decorating Pty Ltd on demand any expenses, fees and disbursements incurred by Watkins Painting & Decorating Pty Ltd in recovering any amount owing to it by the Customer, including any reasonable debt 

collection agency fees and legal expenses and any costs incurred by Watkins Painting & Decorating Pty Ltd in respect of any Order cancelled by the Customer.

6.7.       The Customer may not withhold, make deductions from, or set-off payment of any of the Price due to Watkins Painting & Decorating Pty Ltd for any reason.

6.8.       Watkins Painting & Decorating Pty Ltd may charge, in addition to the Price, any Additional Charges that Watkins Painting & Decorating Pty Ltd notifies to the Customer from time to time.

1. Variations to the Services

7.1.       If the Customer causes a delay in the performance of the Services without providing Watkins Painting & Decorating Pty Ltd with reasonable written notice in advance, Watkins Painting & Decorating Pty Ltd may add to the Price any additional costs incurred by Watkins Painting & Decorating Pty Ltd for the provision of the Services.

7.2.       If the Customer wishes to make changes to the Order for the Services or the Scope of Works, it must notify Watkins Painting & Decorating Pty Ltd in writing of those changes, and if those changes result in additional work or time required by Watkins Painting & Decorating Pty Ltd, Watkins Painting & Decorating Pty Ltd may vary the Price to include any additional costs incurred by Watkins Painting & Decorating Pty Ltd as a result of those changes.

1. Force Majeure

8.1.       Watkins Painting & Decorating Pty Ltd will not be liable to the Customer for any failure to perform, or delay in performing Watkins Painting & Decorating Pty Ltd’s obligations under this Contract if the failure or delay is due to an act of war, revolution or terrorism, an act of God, or any other event beyond the control of Watkins Painting & Decorating Pty Ltd. If such a failure or delay continues for a period of 30 days Watkins Painting & Decorating Pty Ltd may terminate this Contract by giving written notice.

8.2.       This clause 8 does not apply to any obligation to make payments under the Contract.

1. Liability

9.1.       Watkins Painting & Decorating Pty Ltd will not be liable to the Customer or any other person for any Liability or Claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any other remote abnormal or unforeseeable loss whether or not in the reasonable contemplation of the parties.

9.2.       Watkins Painting & Decorating Pty Ltd will not be liable for:

• any existing paint work on the Work Site where the existing paint work has bonded to the paintwork provided by Watkins Painting & Decorating Pty Ltd and has weakened Watkins Painting & Decorating Pty Ltd’ paint;
• any loss or damage to the Work Site, including, damage to pathways, buildings, driveways or grass areas.

1. Defects

10.1.     The Customer must promptly notify Watkins Painting & Decorating Pty Ltd in writing of any defects or faults in the Services or defective workmanship in carrying out the Services within seven (7) days of the Completion of the Services.

10.2.     Following the written notification by the Customer, the Customer must allow Watkins Painting & Decorating Pty Ltd access to inspect the Work Site and to review the Services.

10.3.     Subject to the Consumer Guarantees, Watkins Painting & Decorating Pty Ltd will not be liable for any defect or damage which may be caused or partly caused by, or arises as a result of:

• the Customer failing to properly maintain the Work Site;
• the Customer using the Work Site for any purpose other than for which it was designed;
• the Customer continuing to use the Work Site after any defects become apparent or should have become apparent;
• interference with the Services by the Customer or any third party without Watkins Painting & Decorating Pty Ltd’s written prior approval;
• the Customer failing to follow any instructions or guidelines provided by Watkins Painting & Decorating Pty Ltd;
• fair wear and tear, any accident, or force majure event as set out in clause 8 of this Contract.

10.4.     Variations to the colour, texture, surface and finish of the paint may occur due to surface texture of the material, gloss levels and lighting. Watkins Painting & Decorating Pty Ltd does not guarantee that the paint ordered will be identical to the samples. Watkins Painting & Decorating Pty Ltd takes no responsibility for any variations in the paint provided, and will not accept any defects or faults on account of the natural variations in the paint.

10.5.     Nothing in this clause 10 shall absolve the Customer’s payment obligations under clause 6.

1. Indemnity

The Customer agrees to indemnify Watkins Painting & Decorating Pty Ltd against any Liability arising from the Customer’s breach of the Contract or from its use of the Work Site including, without limitation, any damages resulting from negligence, mistake, omission or failure of 

performance, whether or not resulting from any act of Watkins Painting & Decorating Pty Ltd or its agents.

1. Confidential Information and Intellectual Property

12.1.     The Customer must not at any time, or for any reason, whether during the term of this Contract or after its termination disclose to any person, or use for their own or another person’s benefit any Confidential Information.

12.2.     The Customer acknowledges and agrees that:

• the Intellectual Property remains the property of Watkins Painting & Decorating Pty Ltd; and
• this Contract does not confer on the Customer any proprietary right or title to any of the Intellectual Property.

1. Termination

13.1.     Watkins Painting & Decorating Pty Ltd and the Customer may immediately terminate, or suspend the performance of, any Contract if:

• the other party breaches a term of the Contract (including these Terms) and does not remedy the breach within 7 days of notification;
• the other party breaches a term of the Contract (including these Terms) which is not capable of remedy;
• there is any direct or indirect change in the Control of either party; and
• if an Insolvency Event occurs.

13.2.     If the Contract is terminated for any reason:

• the Customer must immediately pay to Watkins Painting & Decorating Pty Ltd a pro-rata payment for the Goods provided and Services performed by Watkins Painting & Decorating Pty Ltd up to the date of termination [AND OTHER COSTS AS ABOVE], and any other money owed by the Customer to Watkins Painting & Decorating Pty Ltd under this Contract as at the date of termination; and
• termination does not affect any accrued rights or liabilities of the parties.

1. Subcontracting

Watkins Painting & Decorating Pty Ltd may sub-contract all or any part of its rights and obligations under the Contract without the Customer’s consent.

1. Jurisdiction

The Contract between Watkins Painting & Decorating Pty Ltd and the Customer is made in the State of Western Australia, and the parties agree to submit all disputes arising between them to the courts of such State.

1. Entire Agreement

16.1.     Watkins Painting & Decorating Pty Ltd and the Customer acknowledge that these Terms constitute the entire agreement between them, and that the only enforceable obligations and liabilities of Watkins Painting & Decorating Pty Ltd and the Customer in relation to the subject matter of these Terms is contained herein.

16.2.     All representations, communications and prior agreements are superseded by these Terms.

1. Variation

Watkins Painting & Decorating Pty Ltd may change these Terms at any time if it has given to the Customer at least 30 days’ notice in writing of the proposed change.

1. Control

The Customer must immediately provide written notice to the Customer if there is any direct or indirect change in the control of the Customer.