1. Application of terms and conditions
These terms and conditions (which incorporate the Quotation) comprise the entire agreement between you; the Client and Us; PDS NSW ABN 95 570 417 172 (“we”, “us” or “our”) identifies as PDS NSW (‘you” or “your”) identifies as the Client and for the performance of the Works by us.
2. The Works
In consideration for you paying us the Price as set out in the Quotation, we will perform the Works in accordance with these terms and conditions. For which you pay us for the services provided
3. Working hours and Site Access
3.1 We will perform the Works during our normal working hours of 7.30am to 3.30pm. If you require us to perform the Works outside of our normal working hours, or access to the Site is restricted in a way which means we cannot perform the Works during our normal working hours, this will be deemed to be a variation and clause 10 shall apply.
3.2 The Customer must be able to: (a) provide us, and our equipment, with access to the Site to carry out the Works, including gaining access to any locked or restricted areas at the Site; and (b) co-ordinate, to our reasonable requirements, the performance of any other works at the Site or occupation of the Site by others to enable us to carry out the Works.
4. Payment terms
4.1 You must pay the Price as set out in the Quotation. Unless otherwise stated with written agreement signed by us and you.
4.2 We will invoice you for Progress Payments as and where is deemed necessary and agreed on and the Final Payments will be due at completion of the works. A deposit will be requested and detailed on the quotation and becomes payable on acceptance of the quotation price.
4.3 Invoices must be paid on completion of the works as agreed by you and set out in our terms. If you do not pay an invoice upon completion of the works, you acknowledge and agree that you may be liable for late payment fees or charges, which may include all reasonable costs incurred by us in seeking to recover payment (such as legal fees and engaging a debt recovery agency). All invoices must be paid without any deduction or set off. The existence of any dispute or claim in relation to the Works is not a valid reason for withholding or delaying the payment of any invoice.
5. Site Conditions
5.1 You acknowledge that the Price is based on the Site being free from latent defects or conditions which may affect the Works and being in the same condition as the date of issue of the quote. If we, consider that latent defects or conditions or changed site conditions affect the performance of the Works, this will be deemed to be a variation and clause 10 shall apply.
5.2 Unless specifically included in the description of Works in the Quotation, no allowance has been made for Site induction or training. Any time we spend attending Site inductions or training required in order for us to gain access to the
Site will incur additional costs based on a reasonable hourly rate per person (nominated by us) and will be payable by you (in addition to the Price).
5.3 You will provide suitable Site amenities (including power, water and toilet facilities) and, if requested by us, Site storage facilities, at no cost to us.
6. Substrate and surface conditions
6.1 You acknowledge that the extent of surface preparation included in the scope of the Works is limited to sanding or scraping to the previous coat (if applicable) and filling minor surface depressions to create a flush surface. Unless specifically stated in the description of the Works in the Quotation , the Works exclude rectification of faults or defects in the building structure or substrate condition, delaminating previous coatings and repairs or replacement (in whole or in part) of existing
substrate surfaces.
6.2 If we determine that substrate, surface or structural repairs or replacements (including the removal of any lead paint, asbestos or other hazardous material) should be undertaken prior to carrying out any part of the Works, we will notify you. We may suspend performance of the Works pending completion of such repairs or replacements being carried out by you or persons engaged by you at your cost. We will not be responsible for any delay in performance of the Works as a result of any substrate, surface or structural repairs or replacements we determine should be undertaken. If we notify you that substrate,
surface or structural repairs or replacements should be undertaken and you decline to do so:
(a) we may terminate our obligation to perform the Works if, in our view, failing to carry out the repairs or replacements may endanger the health or safety of us or any other person or any property and we may issue an invoice for that part of the Works which have been performed and materials supplied up to the date of such termination; or
(b) if you request that we continue performing the Works, we will only do so on the basis that the warranty in clause 9 does not apply to any of the Works performed at the Site, you release us for any claim that may arise out of, or in connection with, our performance of the Works and indemnify from any loss or damage we may suffer (including by way of claim from any third party) in performing the Works.
7. Delays
7.1 The Price is based on the understanding that the Works will be carried out as one continuous project, without delay, with the provision of equipment and services by third parties and access to the Site as and when needed. Any delays due to reasons outside our reasonable control which result in additional costs or labour (including but not limited to industrial action, Site inaccessibility or delays caused by your act or omission) will be assessed by us and charged to you at applicable hourly rates (in addition to the Price).
7.2 If for any reason the Works are not completed by the estimated time for completion, we will provide you with a revised estimate for timing of completion of the Works.
8. Colour selection
You are solely responsible for paint colour selection. We will perform the Works using paint colours directed by you in writing. Such written direction may be provided to us directly or by a designer or colour consultant retained by you or by us, provided that the direction in all cases has been signed by you. You acknowledge that the final colour may differ from colour swabs, electronic images or other samples owing to natural factors which contribute to colour variations such as light and the age of
the surface painted. It is your responsibility to test and verify your colour selections through the use of sample pots before we commence the Works.
9. Liability and indemnity
9.1 This clause shall prevail over any inconsistency with any other provision of these terms and conditions.
9.2 To the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are excluded. If the performance of the Works is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law, nothing contained in these terms or conditions excludes, restricts or modifies the application of any provision, the exercise of any right
or remedy, or the imposition of any liability under the Australian Consumer Law. To the extent that the Australian Consumer Law permits us to limit our liability, or is not applicable, then our liability in respect of any claim arising out of or in connection with the agreement between us and you relating to the Works or our performance or non-performance of the Works (whether arising under any contract, indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity) is
limited (in each case, at our option) as follows:
(a) in the case of defective services, supplying those services again or payment of the cost of having those services supplied again, and does not extend to services the subject of the Works which are not defective; and
(b) in the case of defective goods, replacing those goods, supplying equivalent goods or having those goods repaired, or payment of the cost of replacing those goods, of acquiring equivalent goods or of having those goods repaired, and does not extend to goods the subject of the Works which are not defective; and
(c) we will not be liable to you for any claim in the nature of economic loss, loss of profits, revenue or anticipated savings, opportunity cost or any direct or indirect consequential loss whatsoever.
9.3 You must act reasonably to mitigate any loss you claim to suffer arising out of or in connection with the agreement between us and you relating to the Works or our performance or non-performance of the Works (whether arising under any contract, indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity). Our liability may be reduced or extinguished to the extent your losses would have been reduced had you acted reasonably to the extent and in the manner required under the law to mitigate any such loss, including by notifying us immediately after becoming aware of any property damage that you allege we caused or contributed to in the course of performing the Works.
9.4 You agree to indemnify, and keep indemnified, us, our officers, employees, subcontractors and agents against all damage, expense, loss or liability whatsoever suffered or incurred, or any third party claim, which arises out of or in connection with any breach of your obligations under these terms and conditions or any of your acts or omissions, expect to the extent that such damage, expense, loss or liability or third party claim is caused by, or is contributed to by, our act or omission.
10. Variations
10.1 Any variation or amendment to these terms and conditions or the information set out in the Quotation (such as scope of Works) is only valid if it is in writing and signed by you and one of our authorised officers before the variation or amendment takes effect. We cannot agree to variations or amendments to perform work outside the scope of works
10.2 We will generally only agree to variations which are within the general scope and nature of the Works and which are capable of being executed within these terms and conditions.
10.3 As a condition to agreeing to any variation in the scope of the Works, we may require that the Price and payment terms be varied (whether by applying an hourly rate to be paid for such variations or an additional lump sum price for such variations).
10.4 Unless specifically identified in the Quotation as forming part of the Works, the following will be deemed to be variations:
(a) additional coats of paint required as a result of a colour selection that does not provide adequate coverage over the existing surface;
(b) you change the paint colour, brand or finish after the Works have commenced or paint has been ordered by us;
(c) where performance of the Works requires access to property which adjoins the Site and you have been unable to secure access rights or access rights are reduced or withdrawn resulting in additional scaffolding or alternative access expenses;
(d) where any colour scheme exceeds a maximum of three colours;
(e) where the access methods on which the quote was based (such as scaffolding or EWPs (cherry pickers, booms, scissor lifts etc) are restricted due to engineering issues or Site conditions (such as utility poles or wires or minimum clearances); and
(f) any information relevant to Site access, scope of Works or estimated time to complete the Works which you knew (or after reasonable consideration and making reasonable enquiries prior to engaging us should have known) may affect the performance of the Works in any way but did not make available to us prior to accepting our quote.
11. Dispute Resolution
11.1 If a dispute arises between us and you in relation to these terms and conditions or the performance of the Works, neither party can commence court proceedings (except if seeking urgent injunctive or interlocutory relief) unless it has first complied with this clause 11.
11.2 The party claiming that a dispute has arisen must notify the other party to the dispute in writing giving reasonable details and particulars of the dispute.
11.3 If the parties are unable to resolve the dispute within 5 business days of receipt of the dispute notice (or such longer time as is reasonable for the parties to meet to discuss the dispute), the dispute must be referred to mediation.
11.5 The cost of mediation is to be borne equally between us and you.
12. Termination
We may terminate the agreement between us and you for the performance of the Works at our convenience by giving 7 days written notice. We will be entitled to invoice you, and be paid, for that part of the Works completed up to the date of termination.
13. Cancellation of Services
In the event our services are cancelled and a deposit has been paid, in order to obtain a full refund 5 days written notice must be given. If materials have been purchased this cost will be deducted from the deposit, the materials will be made available to you and if delivery is required to you by us a charge of $150 will be further deducted from the deposit and the balance will be paid to you within 14 days of your cancellation date.
14. Miscellaneous
These terms and conditions constitute the entire agreement between us and you as to the subject matter of this document and supersedes any prior agreement, understanding or representation between us and you and any terms provided by you that purport to govern our performance of the Works.
PDS NSW Terms and Conditions