Policies

 

Definitions

    • Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    • DNA” means Andrew Bruce Bowler T/A DNA Custom Cabinetry, its successors and assigns or any person acting on behalf of and with the authority of Andrew Bruce Bowler T/A DNA Custom Cabinetry.
    • Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting DNA to provide the Works as specified in any proposal, quotation, order, invoice, or other documentation, and:
      • if there is more than one Client, is a reference to each Client jointly and severally: and
      • if the Client is a partnership, it shall bind each partner jointly and severally; and
      • if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Client’s executors, administrators, successors and permitted assigns.
    • Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by DNA to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
    • Worksite” means the address nominated by the Client to which the Materials are to be supplied by DNA.
    • Intended Use” means a building product and the use thereof, for which the building product is intended to be, or is reasonably likely to be, associated with a building.
    • Non-Conforming Building Product” means building products that are regarded as Non-Conforming for an Intended Use if, when associated with a building:
      • the product is not, or will not be, safe; or
      • does not, or will not, comply with the relevant regulatory provisions; or
      • the product does not perform, or is not capable of performing, for the use to the standard it is represented to conform by or for a person in the chain of responsibility for the product.
    • Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
    • Cookies” means small files which are stored on a user’s computer.  They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using DNA’ website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
    • Price” means the Price payable (plus any GST where applicable) for the Works as agreed between DNA and the Client in accordance with clause 7
    • GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
  1. Acceptance
    • 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 any Works.
    • In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
    • Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
    • The Client acknowledges that the supply of Works on credit shall not take effect until the Client has completed a credit application with DNA and it has been approved with a credit limit established for the account.
    • In the event that the supply of Works requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, DNA reserves the right to refuse delivery.
    • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
  1. Authorised Representatives
    • Unless otherwise limited as per clause 2 the Client agrees that should the Client introduce any third party to DNA as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Materials or Works on the Client’s behalf and/or to request any variation to the Works on the Client’s behalf (such authority to continue until all requested Works have been completed or the Client otherwise notifies DNA in writing that said person is no longer the Client’s duly authorised representative).
    • In the event that the Client’s duly authorised representative as per clause 1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise DNA in writing of the parameters of the limited authority granted to their representative.
    • The Client specifically acknowledges and accepts that they will be solely liable to DNA for all additional costs incurred by DNA (including DNA’ profit margin) in providing any Works, Materials or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 2 (if any)).
  1. Out of Stock/Substitution
    • DNA will use its reasonable endeavours to ensure that all Materials ordered by the Client are supplied to the Client. If the Materials ordered are not available, DNA shall work with the Client on a case by case basis where options may include back order of Materials or amendment to the order.
  1. Errors and Omissions
    • The Client acknowledges and accepts that DNA shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      • resulting from an inadvertent mistake made by DNA in the formation and/or administration of this Contract; and/or
      • contained in/omitted from any literature (hard copy and/or electronic) supplied by DNA in respect of the Works.
    • In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of DNA; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
  1. Change in Control
    • The Client shall give DNA 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, change of trustees, or business practice). The Client shall be liable for any loss incurred by DNA as a result of the Client’s failure to comply with this clause.
  1. Price and Payment
    • At DNA’ sole discretion the Price shall be either:
      • as indicated on invoices provided by DNA to the Client in respect of Works performed or Materials supplied; or
      • DNA’ quoted Price (subject to clause 2) which shall be binding upon DNA provided that the Client shall accept DNA’ quotation in writing within thirty (30) days.
    • DNA reserves the right to change the Price:
      • if a variation to the Materials which are to be supplied is requested; or
      • if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
      • where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the Worksite, obscured building/Worksite defects, incorrect measurements, plans and/or specifications provided by the Client, safety considerations (discovery of asbestos, etc.), detection of moisture, removal of cabinets, prerequisite work by any third party not being completed, lack of required utilities, remedial work required due to existing workmanship being of a poor quality or non-compliant to the building code, hard rock barriers below the surface, iron reinforcing rods in concrete or hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Works; or
      • in the event of increases to DNA in the cost of labour or Materials which are beyond DNA’ control.
    • Variations will be charged for on the basis of DNA’ quotation, and will be detailed in writing, and shown as variations on DNA’ invoice. The Client shall be required to respond to any variation submitted by DNA within ten (10) working days. Failure to do so will entitle DNA to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    • At DNA’ sole discretion a non-refundable deposit may be required, and the following conditions may apply:
      • ten percent (10%) of the contract Price is payable up front and considered a non-refundable deposit; and
      • forty percent (40%) of the contract Price is payable when DNA has checked the measurements at the Worksite; and
      • a progress payment of forty percent (40%) of the contract Price is payable in accordance with DNA’ specified progress payment schedule; and
      • the balance payable on completion of the project.
    • Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by DNA, which may be:
      • by way of progress payments in accordance with DNA’ specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the Worksite but not yet installed; or
      • for approved credit account holders three (3) days following the date of any invoice; or
      • the date specified on any invoice or other form as being the date for payment; or
      • failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by DNA.
    • Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and DNA.
    • DNA may in its discretion allocate any payment received from the Client towards any invoice that DNA determines and may do so at the time of receipt or at any time afterwards. On any default by the Client DNA may re-allocate any payments previously received and allocated. In the absence of any payment allocation by DNA, payment will be deemed to be allocated in such manner as preserves the maximum value of DNA’ Purchase Money Security Interest (as defined in the PPSA) in the Materials.
    • The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by DNA nor to withhold payment of any invoice because part of that invoice is in dispute.
    • Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to DNA an amount equal to any GST DNA must pay for any supply by DNA under this or any other contract for the sale of the Materials. The Client must pay GST, 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.

 

  1. Provision of the Works
    • Subject to clause 2 it is DNA’ responsibility to ensure that the Works start as soon as it is reasonably possible.
    • The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that DNA claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond DNA’ control, including but not limited to any failure by the Client to:
      • make a selection; or
      • have the Worksite ready for the Works; or
      • notify DNA that the Worksite is ready.
    • At DNA’ sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
    • Any time specified by DNA for delivery of the Works is an estimate only and DNA will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that DNA is unable to supply the Works as agreed solely due to any action or inaction of the Client, then DNA shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.
  2. Risk
    • If DNA retains ownership of the Materials under clause 15 then:
      • where DNA is supplying Materials only, all risk for the Materials shall immediately pass to the Client on delivery and the Client must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either:
        • the Client or the Client’s nominated carrier takes possession of the Materials at DNA’ address; or
        • the Materials are delivered by DNA or DNA’ nominated carrier to the Client’s nominated delivery address (even if the Client is not present at the address).
      • where DNA is to both supply and install Materials then DNA shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
    • The Client warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos) that DNA, or DNA’ employees, reasonably form the opinion that the Client’s premises is not safe for the Works to proceed then DNA shall be entitled to delay the provision of the Works (in accordance with clause 2) until DNA is satisfied that it is safe for the installation to proceed.
    • All potential waterproofing surfaces are subject to an inspection by DNA prior to the commencement of the Works. In the event that the surface is deemed unsuitable, then DNA reserves the right to halt the Works until such time as it is agreed between DNA and the Client as to the additional cost in further preparation of the surface in order to make it fit for waterproofing. The additional cost shall be charged as a variation to the quotation as per clause 2.
    • The Client acknowledges that:
      • all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in DNA’ or manufacturers fact sheets, price lists or advertising material are indicative only and that they have not relied on such information; and
      • Materials (including but not limited to paint, timber, tiles) supplied may:
        • exhibit variations in shade tone, colour, texture, markings, veining, surface and finish, and may fade or change colour over time. DNA will make every effort to match batches/samples of the Materials supplied in order to minimise such variations, but shall not be liable in any way whatsoever where such variations occur; and
        • expand, contract or distort as a result of exposure to heat, cold, weather; and
        • mark or stain if exposed to certain substances; and
        • be damaged or disfigured by impact or scratching.
      • the alignment of cabinetry joinery doors and carcasses may be affected by movement of homes or buildings; and
      • the polish finish of the Materials may be affected by environmental factors (including, but not limited to, humidity, weather, extreme heat etc.). Although DNA will employ all possible measures to obtain a high-quality finish, DNA shall not be liable for any change in finish which is due to environmental factors; and
      • the removal of an existing kitchen, (including, but not limited to, any electrical, plumbing, building work, Worksite preparation, the supply and/or fitting of appliances, range hoods or ducting, tapware, splashbacks, flooring or decorating work) will be shown as a variance in accordance with clause 2; and
      • solid timber kitchens may have matching natural timber veneer internal panels and open shelves, as internal panels and open shelves cannot be made in solid timber; and
      • natural stone, stainless steel and steel solid benchtops may only be measured after cabinet installation and therefore will result in a delay in completion (including but not limited to Materials being unavailable and reselection maybe necessary in accordance with clause 4 and 2); and
      • agrees that whilst DNA shall take all reasonable care during the performance of the Works, the Client agrees that DNA shall not be held liable for any loss, damages, or costs howsoever resulting from drilling or fixing the Materials into any masonry or rendered surfaces during the installation process.
    • Granite, marble engineered stone, limestone and glass have natural elements in the products that have naturally occurring variations in colour and shade tones, markings, and veining may vary from colour samples provided. DNA gives no guarantee (expressed or implied) that colour samples will match the Materials supplied. DNA will make every effort to match colour samples to the Materials supplied but will not be liable in any way whatsoever for colour samples differing from the Materials supplied.
    • Marble and granite being porous products, therefore, all products supplied are sealed for protection. However, oil and other acidic substances are prone to causing discolouration and staining if left on surfaces for some time. The Client agrees to indemnify DNA against any damage occurring after delivery and installation.
    • Timber and veneer may exhibit variations in texture, shade, colour, surface, finish, markings, veining, and contain natural fissures, occlusions, and indentations. Whilst DNA will make every effort to match sales samples to the finished Materials DNA accepts no liability whatsoever where such samples differ to the finished Materials supplied.
    • Timber is a hydroscopic material subject to expansion and contraction; therefore, DNA will accept no responsibility for gaps that may appear in the timber during prolonged dry periods.
    • DNA shall upon installation ensure that all Materials are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Client specifically requires the Materials to be installed in any way which goes against DNA’ recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to DNA. Accordingly, DNA offers no warranty in regards to the aforementioned.
  1. Dimensions, Plans and Specifications
    • All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless the Client and DNA agree otherwise in writing.
    • DNA shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client.
    • If the giving of an estimate or quotation for the supply of Materials involves DNA estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of DNA’ estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
    • Should the Client require any changes to DNA’ estimated measurements and quantities, the Client shall request such changes in writing, in the case of an estimate before placing an order based on that estimate and in the case of a quotation before acceptance of that quotation.
  1. Worksite Access and Condition
    • The Client shall ensure that DNA has clear and free access to the Worksite at all times to enable them to undertake the Works, and for the delivery and installation of the Materials, and:
      • DNA shall not be liable for any loss or damage to the Worksite (including, without limitation, existing Worksite structures and materials that the Client requires to keep or re-use during the project, existing tiles, timber, vinyl or concrete floors, splashbacks, cabinetry, plastering, painted walls and ceilings, cornicing, appliances, plumbing items, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of DNA; and
      • if the Works are interrupted by the failure of the Client to adhere to the installation schedule agreed to between DNA and the Client, any additional costs will be invoiced to the Client as a variation in accordance with clause 2.
    • It is the intention of DNA and agreed by the Client that is the responsibility of the Client to:
      • remove any furniture, furnishings or personal goods from the vicinity of the Works and agrees that DNA shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause; and
      • provide adequate dustsheets to protect the Client’s furniture and décor. DNA will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any installation procedures; and
      • supply any necessary facilities to enable DNA to carry out the Works (including, but not limited to, electricity, water supply, and safety lighting, etc.); and
      • fully disclose any information in writing, prior to the scheduled installation, that may affect DNA’ installation procedures.
    • The Client agrees to be present at the Worksite when and as reasonably requested by DNA and its employees, contractors and/or agents.
    • DNA is not:
      • insured to remove furniture, dishwasher, cutlery, cabinet/wardrobe contents and/or fittings and will not do so, nor is DNA licensed to move gas or electrical appliances; or
      • responsible for the removal of rubbish from or clean-up of the Worksite of other people. This is the responsibility of the Client or the Client’s agent. Under no circumstances will DNA handle removal of asbestos product.
    • Where DNA requires that Materials, plant, and tools required for the Works be stored at the Worksite, the Client shall supply DNA a safe area for storage and shall take all reasonable efforts to protect all items from possible destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.
  1. Underground Locations
    • Prior to DNA commencing any work the Client must advise DNA of the precise location of all underground services on the Worksite and clearly mark the same. The underground mains and 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 the Worksite.
    • Whilst DNA will take all care to avoid damage to any underground services the Client agrees to indemnify DNA 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 1.
  1. Compliance with Laws
    • The Client and DNA shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any work health and safety laws (WHS) relating or any other relevant safety standards or legislation pertaining to the Works.
    • Both parties acknowledge and agree:
      • to comply with the National Construction Code of Australia (NCC) and comply with section74AA (products associated with building works and/or the intended use) and section 74AE (Chain of Responsibility) of the QBCC Act 1991, in respect of all workmanship and building products to be supplied during the course of the Works; and
      • that Works will be provided in accordance with any current relevant Australian/New Zealand Standards applicable.
    • Where the Client has supplied products for DNA to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose and use for their products and the Intended Use and any faults inherent in those products. However, if in DNA’ opinion, it is believed that the materials supplied are Non-Conforming products and will not conform with state and/or territory regulations, then DNA shall be entitled, without prejudice, to halt the Works until the appropriate conforming products are sourced and all costs associated with such a change to the plans and design will be invoiced in accordance with clause 2.
    • The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
    • DNA shall comply with the terms and conditions of all such consents and approvals in so far as such consents and approvals relate to the carrying out of the Works.
  1. Insurance
    • DNA shall have public liability insurance of at least five million ($5m). It is the Client’s responsibility to ensure that they are similarly insured.
  1. Title
    • DNA and the Client agree that ownership of the Materials shall not pass until:
      • the Client has paid DNA all amounts owing to DNA; and
      • the Client has met all of its other obligations to DNA.
    • Receipt by DNA 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.
    • It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 1:
      • the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to DNA on request.
      • the Client holds the benefit of the Client’s insurance of the Materials on trust for DNA and must pay to DNA the proceeds of any insurance in the event of the Materials being lost, damaged, or destroyed.
      • the production of these terms and conditions by DNA shall be sufficient evidence of DNA’ rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with DNA to make further enquiries.
      • the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes, or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for DNA and must pay or deliver the proceeds to DNA on demand.
      • the Client should not convert or process the Materials 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 DNA and must sell, dispose of or return the resulting product to DNA as it so directs.
      • unless the Materials have become fixtures the Client irrevocably authorises DNA to enter any premises where DNA believes the Materials are kept and recover possession of the Materials.
      • DNA may recover possession of any Materials in transit whether delivery has occurred.
      • the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of DNA.
      • DNA may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
  1. Personal Property Securities Act 2009 (“PPSA”)
    • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    • Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials and/or collateral (account) – being a monetary obligation of the Client to DNA for Works – that have previously been supplied and that will be supplied in the future by DNA to the Client.
    • The Client undertakes to:
      • 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 DNA may reasonably require to:
        • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities
        • register any other document required to be registered by the PPSA; or
        • correct a defect in a statement referred to in clause 3(a)(i) or 16.3(a)(ii);
      • indemnify, and upon demand reimburse, DNA 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.
      • not register a financing change statement in respect of a security interest without the prior written consent of DNA.
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of DNA.
      • immediately advise DNA of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
    • DNA and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    • The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    • The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    • Unless otherwise agreed to in writing by DNA, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Client shall unconditionally ratify any actions taken by DNA under clauses 3 to 16.5.
    • Subject to any express provisions to the contrary (including those contained in this clause 16), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
  1. Security and Charge
    • In consideration of DNA agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    • The Client indemnifies DNA from and against all DNA’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising DNA’ rights under this clause.
    • The Client irrevocably appoints DNA and each director of DNA as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.

 

  1. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
    • The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify DNA in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow DNA to inspect the Materials or to review the Works provided.
    • Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
    • DNA acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    • Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, DNA makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. DNA’ liability in respect of these warranties is limited to the fullest extent permitted by law.
    • If the Client is a consumer within the meaning of the CCA, DNA’ liability is limited to the extent permitted by section 64A of Schedule 2.
    • If DNA is required to replace any Materials under this clause or the CCA, but is unable to do so, DNA may refund any money the Client has paid for the Materials.
    • If DNA is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then DNA may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
    • If the Client is not a consumer within the meaning of the CCA, DNA’ liability for any defect or damage in the Materials is:
      • limited to the value of any express warranty or warranty card provided to the Client by DNA at DNA’ sole discretion.
      • limited to any warranty to which DNA is entitled if DNA did not manufacture the Materials.
      • otherwise negated absolutely.
    • Subject to this clause 18, returns will only be accepted provided that:
      • the Client has complied with the provisions of clause 1; and
      • DNA has agreed that the Materials are defective; and
      • the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      • the Materials are returned in as close a condition to that in which they were delivered as is possible.
    • Notwithstanding clauses 1 to 18.9 but subject to the CCA, DNA shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      • the Client failing to properly maintain or store any Materials.
      • the Client using the Materials for any purpose other than that for which they were designed;
      • the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user.
      • interference with the Works by the Client or any third party without DNA’ prior approval.
      • the Client failing to follow any instructions or guidelines provided by DNA;
      • fair wear and tear, any accident, or act of God.
    • DNA may in its absolute discretion accept non-defective Materials for return in which case DNA may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.
    • Notwithstanding anything contained in this clause if DNA is required by a law to accept a return, then DNA will only accept a return on the conditions imposed by that law.
    • Subject to clause 1, customised, or non-stocklist items or Materials made or ordered to the Client’s specifications are not acceptable for credit or return.
  1. Intellectual Property
    • Where DNA has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in DNA, and shall only be used by the Client at DNA’ discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of DNA.
    • The Client warrants that all designs, specifications or instructions given to DNA will not cause DNA to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify DNA against any action taken by a third party against DNA in respect of any such infringement.
    • The Client agrees that DNA may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which DNA has created for the Client.
  1. Default and Consequences of Default
    • 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 DNA’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    • If the Client owes DNA any money the Client shall indemnify DNA from and against all costs and disbursements incurred by DNA in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, DNA’ contract default fee, and bank dishonour fees).
    • Further to any other rights or remedies DNA may have under this Contract, if a Client has made payment to DNA, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by DNA under this clause 20 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    • Without prejudice to DNA’ other remedies at law DNA shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to DNA shall, whether or not due for payment, become immediately payable if:
      • any money payable to DNA becomes overdue, or in DNA’ opinion the Client will be unable to make a payment when it falls due;
      • the Client has exceeded any applicable credit limit provided by DNA;
      • the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
  1. Cancellation
    • Without prejudice to any other remedies DNA may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions DNA may suspend or terminate the supply of Works to the Client. DNA will not be liable to the Client for any loss or damage the Client suffers because DNA has exercised its rights under this clause.
    • DNA may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice DNA shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to DNA for Works already performed. DNA shall not be liable for any loss or damage whatsoever arising from such cancellation.
    • In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by DNA as a direct result of the cancellation (including, but not limited to, any loss of profits).
    • Cancellation of orders for products 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.
  1. Dispute Resolution
    • Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, either arbitration or the relevant governing agency for the state in which the Works were performed such as:
      • in accordance with the Commercial Arbitration Act 2013 or its replacement(s); or
      • Queensland Civil and Administrative Tribunal (QCAT).
  1. Privacy Policy
    • All emails, documents, images or other recorded information held or used by DNA is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. DNA acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). DNA acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by DNA that may result in serious harm to the Client, DNA will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
    • Notwithstanding clause 1, privacy limitations will extend to DNA in respect of Cookies where the Client utilises DNA’ website to make enquiries.  DNA agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
      • IP address, browser, email client type and other similar details;
      • tracking website usage and traffic; and
      • reports are available to DNA when DNA sends an email to the Client, so DNA may collect and review that information (“collectively Personal Information”)

If the Client consents to DNA’ use of Cookies on DNA’ website and later wishes to withdraw that consent, the Client may manage and control DNA’ privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site.

  • The Client agrees for DNA to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by DNA.
  • The Client agrees that DNA may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
    • to assess an application by the Client; and/or
    • to notify other credit providers of a default by the Client; and/or
    • to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
    • to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
  • The Client consents to DNA being given a consumer credit report to collect overdue payment on commercial credit.
  • The Client agrees that personal credit information provided may be used and retained by DNA for the following purposes (and for other agreed purposes or required by):
    • the provision of Works; and/or
    • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
    • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
    • enabling the collection of amounts outstanding in relation to the Works.
  • DNA may give information about the Client to a CRB for the following purposes:
    • to obtain a consumer credit report;
    • allow the CRB to create or maintain a credit information file about the Client including credit history.
  • The information given to the CRB may include:
    • Personal Information as outlined in 3 above;
    • name of the credit provider and that DNA is a current credit provider to the Client;
    • whether the credit provider is a licensee;
    • type of consumer credit;
    • details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
    • advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and DNA has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
    • information that, in the opinion of DNA, the Client has committed a serious credit infringement;
    • advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
  • The Client shall have the right to request (by e-mail) from DNA:
    • a copy of the Personal Information about the Client retained by DNA and the right to request that DNA correct any incorrect Personal Information; and
    • that DNA does not disclose any Personal Information about the Client for the purpose of direct marketing.
  • DNA will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
  • The Client can make a privacy complaint by contacting DNA via e-mail. DNA will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

 

  1. Service of Notices
    • Any written notice given under this Contract shall be deemed to have been given and received:
      • by handing the notice to the other party, in person.
      • by leaving it at the address of the other party as stated in this Contract.
      • by sending it by registered post to the address of the other party as stated in this Contract.
      • if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission.
      • if sent by email to the other party’s last known email address.
    • Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
  1. Trusts
    • If the Client at any time upon or subsequent to entering into the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not DNA may have notice of the Trust, the Client covenants with DNA as follows:
      • the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
      • the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
      • the Client will not without consent in writing of DNA (DNA will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
        • the removal, replacement or retirement of the Client as trustee of the Trust;
        • any alteration to or variation of the terms of the Trust;
        • any advancement or distribution of capital of the Trust; or
        • any resettlement of the trust property.
  1. Building Industry Fairness (Security of Payment) Act 2017
    • At DNA’ sole discretion, if there are any disputes or claims for unpaid Works and/or Materials then the provisions of the Building Industry Fairness (Security of Payment) Act 2017 may apply.
    • Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building Industry Fairness (Security of Payment) Act 2017 of Queensland, except to the extent permitted by the Act where applicable.
  1. General
    • The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    • These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which DNA has its principal place of business and are subject to the jurisdiction of the courts in Beenleigh, Queensland.
    • Subject to clause 18, DNA shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by DNA of these terms and conditions (alternatively DNA’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
    • DNA may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
    • The Client cannot licence or assign without the written approval of DNA.
    • DNA may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of DNA’ sub-contractors without the authority of DNA.
    • The Client agrees that DNA may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for DNA to provide Works to the Client.
    • Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    • Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

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T/A DNA Custom Cabinetry

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