Terms and Conditions for Guy Bright Designs

1.1 “Contractor” shall mean Guy Bright Designs 

1.2 “Owner” shall mean the Owner or any person acting on behalf of and with the authority of the Owner. 

1.3 “Works” shall mean the Works as described in the Description of Works in this contract. 

1.4 “Materials” shall mean the Materials required to complete the Works. 

1.5 “Prime Cost Item” shall mean an item that either has not been selected or whose price is not known, at the time this contract is entered into and for the cost of supply and delivery of which the Contractor must make a reasonable allowance in the contract. (Applicable only if appendix attached). 

1.6 “Provisional Sum” shall mean an estimate of the cost of carrying out particular Works under this contract for which the Contractor, after making all reasonable inquiries, cannot give a definite price at the time this contract is entered into. 

1.7 “Contract Price” shall mean the price of the Works as agreed between the Contractor and the Owner. 

2. Variations 

2.1 If the Owner requests a variation the Contractor will give the Owner a written variation document detailing the Works, the amended Contract Price, the estimated time to undertake the  variation, the likely delay to the completion date if any, and require written acceptance by the Owner of the variation before commencing Works on the variation. 

2.2 If the Contractor requests a variation, the Contractor will, in writing state the reason for the variation, provide a full description of the variation, state any effect the variation will have on the contract, including but not limited to, the Contract Price, completion date and whether further permits or authorisations are required, and shall require written acceptance by the Owner of the variation before commencing Works on the variation. 

2.3 All variations to this contract (including those to the plans and specifications) must be in writing, dated, and signed by both parties to the contract. 

2.4 All variations under this clause shall include an allowance for the Contractor’s overheads and profit. 

3. Contract Price And Payment 

3.1 Time for payment for the Works shall be of the essence and will be stated on the invoice. If no time is stated then payment shall be due seven (7) days following the date of the invoice. 

3.2 Any deposit shall be payable on the day that this contract is signed by the Owner. 

3.3 The Owner shall make progress payments (within 5 days of receipt from the Contractor in writing of a progress claim) for each completed stage of the Works as stated in this contract. Such payments shall include any amounts payable for Contract Price adjustments or variations claimed and not paid before each progress payment. (Applicable only if appendix attached). 

3.4 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Owner and the Contractor. 

3.5 The Contract Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in this contract. 

4. Delivery Of Works 

4.1 The Contractor will endeavour to complete the Works within the completion period stated in this contract and commence on the start date specified in this contract subject to clause 4.2. 

4.2 At the sole discretion of the Contractor the Works commencement date will be put back and/or the building period extended by whatever time is reasonable if the Contractor claims an extension of time by giving the Owner notice, where completion is delayed by an event beyond the Contractor’s control. 

4.3 Unless the Owner notifies the Contractor in writing within 5 business days of the date of the Contractor’s notice that it objects to the delay, the contract shall be extended by the time notified by the Contractor. 

4.4 The Works shall be deemed to be practically completed when the Works carried out under this contract have been completed following the plans and specifications set out in this contract, can be used by the Owner for their intended purpose, are free of major defects, and all other statutory requirements have been met. The Contractor shall advise the date of practical completion to the Owner in writing. 

4.5 The Contractor shall not be liable for any costs incurred by the Owner due to any unforeseen delays in completing the Works. 

5. Defects 

5.1 The Contractor shall rectify (at the Contractor’s own expense) any defects or omissions in the Works that have become apparent within four (4) weeks of the date that the Owner is advised that the Works have been completed, provided that the Owner has notified the Contractor in writing of any such defects or omissions no later than five (5) business days after the expiry of that four (4) week period. 

5.2 The Contractor shall remedy any defects brought to the Contractor’s attention under clause 5.1 within thirty (30) days of receiving such notification in writing. 

6. Owner’s Responsibilities 

6.1 It is the intention of the Contractor and agreed by the Owner that: 

(a) Any building/construction sites will comply with all New South Wales occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation; and 

(b) The Owner shall obtain and pay for all planning and building approvals required for the Works before the commencement of the Works by the Contractor unless otherwise agreed in writing between the Owner and the Contractor. In the event the Contractor agrees to obtain the approvals then the cost of those approvals shall be the Owner’s responsibility and shall be in addition to the Contract Price; and 

(c) The Owner shall remove from the work area any furniture, personal effects, or other property likely to impede the Contractor to minimise the risk of injury or any damage; and 

(d) The Owner shall provide the Contractor with clear and free access to the worksite to enable the Contractor to complete the Works. 

7. Contractor’s Responsibilities 

7.1 The Contractor shall make good (at the Contractor’s own expense) any loss or damage to the Works or property of the Owner caused by the negligence of the Contractor. 

8. Risk 

8.1 If the Contractor retains ownership of the Materials nonetheless, all risk for the Materials passes to the Owner on completion of the Works. 

8.2 The Owner is entitled to have reasonable access to inspect the Materials provided that: 

(a) Such inspection is carried out in the presence of the Contractor; and 

(b) The Owner shall remain a safe distance of two (2) metres from the Materials; and 

(c) The Owner does not interfere with the Materials; and 

(d) The Contractor shall not be responsible for any damage to the Materials by the Owner. 

8.3 The Owner must be on-site to supervise the marking out of the fence line, placement of boundary pegs, and during the installation of the fence. If the Owner fails to comply with this clause then the Contractor accepts no responsibility for installation decisions that need to be made by the Contractor in the Owner’s absence. 

8.4 The Owner acknowledges that it is their responsibility to remove any existing fence (including existing footings), trees, vines, and shrubs to allow the Contractor clear access along the proposed fence line before the commencement of work by the Contractor unless otherwise agreed in writing between the Contractor and the Owner. Under no circumstances will the Contractor handle removal of asbestos product. 

8.5 The Owner shall provide the Contractor with a suitable free power source. 

8.6Whilst the Contractor will take all due care during installation the Contractor will not accept responsibility for tiles or pavers damaged during installation. 

8.7 Where fencing is installed on a retaining wall the Contractor 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. 

8.8 The Contractor shall not be responsible for digging land out under fence lines nor removal of soil from the work site. 

8.9 The Owner acknowledges that pool fencing near saltwater may result in salt build-up resulting in corrosion and if fencing is not hosed regularly. 

9. Underground Locations 

9.1 Before the Contractor commencing any work the Owner must advise the Contractor of the precise location of all underground services on the site and mark the same. The underground mains & services the Owner 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. 

9.2 Whilst the Contractor will take all care to avoid damage to any underground services the Owner agrees to indemnify the Contractor 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 9.1. 

10. Title 

10.1 It is the intention of the Contractor and agreed by the Owner that ownership of Materials shall not pass until: 

(a) The Owner has paid all amounts owing for the particular Materials; and 

(b) The Owner has met all other obligations due by the Owner to the Contractor in respect of all contracts between the Contractor and the Owner. 

10.2 Receipt by the Contractor 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 and until then the Contractor’s ownership or rights in respect of Materials shall continue. 

10.3 It is further agreed that: 

(a) Until ownership of the Materials shall pass from the Contractor to the Owner the Contractor may give notice in writing to the Owner to return the Materials or any of them to the Contractor. Upon such notice, the rights of the Owner to obtain ownership or any other interest in the Materials shall cease; and 

(b) The Contractor shall have the right of stopping the Materials in transit whether or not delivery has been made; and 

(c) If the Owner fails to return the Materials to the Contractor then the Contractor or the Contractor’s agent may as the invitee of the Owner enter upon and into land and premises owned, occupied, or used by the Owner, or any premises where the Materials are situated and take possession of the Materials. 

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

11.1 In this clause: 

(a) Financing statement has the meaning given to it by the PPSA; 

(b) Financing change statement has the meaning given to it by the PPSA; 

(c) Security agreement means the security agreement under the PPSA created between the Owner and the Contractor by these terms and conditions; and 

(d) Security interest has the meaning given to it by the PPSA. 

11.2 Upon assenting to these terms and conditions in writing the Owner acknowledges and agrees that these terms and conditions: 

(a) Constitute a security agreement for the purposes of the PPSA; and 

(b) Create a security interest in: 

(i) All Materials previously supplied by the Contractor to the Owner (if any); 

(ii) All Materials that will be supplied in the future by the Contractor to the Owner. 

11.3 The Owner 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 the Contractor may reasonably require to: 

(i) Register a financing statement or financing change statement with 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, the Contractor 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 Materials charged thereby; 

(c) Not register a financing change statement in respect of a security interest without the prior written consent of the Contractor; 

(d) Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of the Contractor; and 

(e) Immediately advise the Contractor of any material change in its business practices of selling the Materials which would result in a change like proceeds derived from such sales. 

11.4 The Contractor and the Owner 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 Owner hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA. 

11.6 The Owner waives its 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 the Contractor, the Owner waives its right to receive a verification statement following section 157 of the PPSA. 

11.8 The Owner shall unconditionally ratify any actions taken by the Contractor under clauses 11.3 to 11.5. 

12. Intellectual Property 

12.1 Where the Contractor has designed, drawn, or written plans or a schedule of Works for the Owner, then the copyright in those plans, schedules, designs, and drawings shall remain vested in the Contractor, and shall only be used by the Owner at the Contractor’s discretion. 

12.2 The Owner warrants that all designs or instructions provided to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Owner’s order. 

13. Default & Consequences of Default 

13.1 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 the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 

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

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

14. Privacy Act 1988 

14.1 The Owner and/or the Guarantor/s (herein referred to as the Owner) agree for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Owner in relation to credit provided by the Contractor.  

14.2 The Owner agrees that the Contractor may exchange information about the Owner with those credit providers either named as trade referees by the Owner or named in a consumer credit report issued by a credit reporting agency for the following purposes: 

(a) To assess an application by the Owner; and/or 

(b) To notify other credit providers of a default by the Owner, 

and/or 

(c) To exchange information with other credit providers as to the status of this credit account, where the Owner is in default with other credit providers; and/or 

(d) To assess the creditworthiness of the Owner. 

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

14.3 The Owner consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). 

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

(a) The provision of Works; and/or 

(b) The marketing of Works by the Contractor, its agents or distributors; and/or 

(c) Analysing, verifying and/or checking the Owner’s credit, payment and/or status in relation to the provision of Works; and/or 

(d) Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Owner; and/or 

(e) Enabling the daily operation of Owner’s account and/or the collection of amounts outstanding in the Owner’s account in relation to the Works. 

14.5 The Contractor may give information about the Owner to a credit reporting agency for the following purposes: 

(a) To obtain a consumer credit report about the Owner; 

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

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

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

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

(c) Advice that the Contractor is a current credit provider to the Owner; 

(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 Owner’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 the Contractor, the Owner has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Owner’s credit obligations); 

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

(h) That credit provided to the Owner by the Contractor has been paid or otherwise discharged. 

15. Cancellation 

15.1 The Contractor may cancel this contract (Subject to clause 15.2) if the Owner: 

(a) Fails to make payment due under this contract; or 

(b) Denies the Contractor access to the worksite to complete or undertake any Works; or 

(c) Become insolvent, goes into liquidation or administration. 

15.2 Where the Contractor believes that the defaults in clause 15.1 can be rectified then the Contractor shall advise the Owner in writing that they have five (5) working days (from the date of the letter) in which to do so. If the Owner fails to rectify any default within that period then the Contractor shall advise the Owner in writing that they are cancelling the contract. 

15.3 If the contract is ended under this clause, the Contractor shall be entitled to a reasonable price for the Works carried out under  

this contract to the date the contract is ended (including the cost of any Materials delivered to the worksite or already ordered from suppliers but not yet paid for by the Owner). 

16. Statutory Warranties and Quality of Construction 

16.1 The Contractor warrants that: 

(a) The Works will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract; 

(b) All Materials supplied by the Contractor will be good and suitable for the purpose for which they are used and unless otherwise stated in the contract, those Materials will be new; 

(c) The Works will be done in accordance with, and will comply with, the Home Building Act 1989 or any other law; 

(d) The Works will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated within a reasonable time; 

(e) If the Works consists of the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the Works will result, to the extent of the Works conducted, in a dwelling that is reasonably fit for occupation as a dwelling; 

(f) The Works and any Materials used in doing the Works will be reasonably fit for the specified purpose or result, if the Owner expressly makes known to the holder of the Contractor licence or person required to hold a Contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the Works is required or result that the Owner desires the Works to achieve, so as to show that the Owner relies on the holder’s or person’s skill and judgment. 

16.2 Claims in regards to statutory warranties must be made within six (6) years for structural Works or within two (2) years for non-structural Works both periods commencing from the date the Works have been completed in accordance with clause 4.4 herein.  The time periods specified in this clause shall be extended for an additional six (6) months in the event that a homeowner or subsequent purchaser becomes aware of a defect within the last six (6) months of the time periods specified. 

16.3 The Contractor also warrants that all Works done under this contract will comply with: 

(a) The Building Code of Australia (to the extent required under the Environmental Planning and Assessment Act 1979, including any regulation or other instrument made under that Act); and 

(b) All other relevant codes, standards and specifications that the Works are required to comply with under any law; and 

(c) The conditions of any relevant development consent or complying development certificate. 

16.4 Despite clause 16.3, this contract may limit the liability of the Contractor for a failure to comply with clause 16.3 if the failure solely relates to: 

(a) A design or specification prepared by or on behalf of the Owner (but not by or on behalf of the Contractor); or 

(b) A design or specification required by the Owner, if the Contractor has advised the Owner in writing that the design or specification contravenes clause 16.3. 

16.5 For Materials not manufactured by the Contractor the warranty shall be the current warranty provided by the manufacturer of the Materials. The Contractor shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty. 

17. Surplus Materials 

17.1 Unless otherwise stated elsewhere in this contract: 

(a) Demolished Materials remain the Owner’s property; and 

(b) Materials which the Contractor brings to the site which are surplus remain the property of the Contractor. 

18. Disputes 

18.1 If the Owner or Contractor believes a dispute has arisen in relation to any matter under this contract, then that party must promptly give the other party written notice setting out the matter in dispute. 

18.2 Both parties shall meet within 14 days of the giving of such notice to attempt to resolve the dispute. 

18.3 In the event that the dispute cannot be resolved then the matter shall be referred to the Office of Fair Trading for assistance in the resolution of the dispute. 

19. The Commonwealth Competition and Consumer Act 2010, Home Building Act 1989, Home Building Regulations 2004, and Fair Trading Acts 

19.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Competition and Consumer Act 2010, Home Building Act 1989, Home Building Regulations 2004, and Fair Trading Acts in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable. 

20. General 

20.1 If any provision of this contract shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 

20.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency. 

20.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales. 

20.4 The Contractor shall be under no liability whatever to the Owner for any indirect loss and/or expense (including loss of profit) suffered by the Owner arising out of a breach by the Contractor of this contract. 

20.5 In the event of any breach of this contract by the Contractor, the remedies of the Owner shall be limited to damages. Under no circumstances shall the liability of the Contractor exceed the Contract Price. 

20.6 Unless otherwise provided in writing the Owner shall not be entitled to set off against or deduct from the Contract Price any sums owed or claimed to be owed to the Owner by the Contractor. 

20.7 Where more than one Owner has entered into this agreement, the Owners shall be jointly and severally liable for all payments of the Contract Price and any other obligations of the Owner under this contract. 

20.8 None of the Contractor’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Contractor in writing nor is the Contractor bound by any such unauthorised statements. 

20.9 The Contractor may license or sub-contract all or any part of its rights and obligations without the Owner’s consent. The Owner agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-Contractors without the authority of the Contractor. 

20.10 The Contractor reserves the right to review this contract at any time. If, following any such review, there is to be any change to this contract, then that change will take effect from the date on which the Contractor notifies the Owner of such change and the Owner accepts such change. 

20.11 Neither party shall be liable for any default due to any act of God, war, terrorism, fire, flood, storm or other event beyond the reasonable control of either party. 

20.12 The failure by the Contractor to enforce any provision of this contract shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision. 

20.13 This contract, the plans and specifications have precedence in that order if there is any inconsistency between them. 

If you have any questions about our terms and conditions, please call us on (+61) 418 232 818.

Thanks

Guy Bright