Pergolas of Distinction

A division of Lifestyles of Distinction Pty Ltd 

TERMS AND CONDITIONS 

The Customer acknowledges and agrees to be bound by these terms and conditions (“Terms”), which form an integral part of the Works as described in the quote provided.

  1. Interpretation, In these terms:
    1. “Australian Consumer Law” means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as varied from time to time.
    2. “Builder” means Lifestyles of Distinction Pty Ltd as the Trustee for Lifestyle Investment Trust trading as Pergolas of Distinction or any other Related Company (as defined in the Corporations Act 2001 (Cth)).
    3. “Claim” means all actions, suits, causes of action, arbitrations, debts, dues, costs, claims, counterclaims, demands, verdicts and judgments either at law or in equity or arising under a statute, or account whatsoever arising from these Terms and the Works provided by the Builder.
    4. “Completion” means when the Builder informs the Customer that the Work is Practically Complete and presents and invoice for the balance of the contract price. 
    5. “Customer” means the person or persons named in the quote and if more than one person they are jointly and severally liable. 
    6. “Goods” means goods supplied by us in the performance of the Work, and includes the plans and specifications specified in the quote.
    7. “PPSA” means the Personal Property Securities Act 2009 (Cth) as varied from time to time.
    8. “Works” means the works described in the quote including any variations.
    9. “Site” means that part at the Customer’s property, or leased property which the Customer has the right to access and occupy, where the Works are to be carried out. 
  1. General
    1. These Terms will apply to the Works despite any conflicting terms proposed by the Customer, unless waived in writing by the Builder. 
    2. The Builder agrees to sell the Goods and carry out the Works and the Customer agrees, in accepting any quote, to purchase the Goods and allow the Builder to carry out the Works on these Terms. 
    3. This quote is accepted by the Customer by signing and dating where indicated on the front page.  While the Customer is liable to pay the specified deposit, failure to pay the deposit does not void these Terms or the Customer’s obligations under the quote. 
    4. This quote excludes all promotions unless the promotion is specified in Special Comments. 
    5. Any special materials left over at the time of completion of the Works will remain the property of the Builder.
    6. Where a party comprises more than one person, notices need only be sent to one person, and only one person need sign any quotes, variations or notices.
  2. Sale of Goods
    1. The Customer acknowledges that once the order for the Goods is placed, Goods will be manufactured to order. Accordingly, the full amount for the Goods will have to be paid even if the order is cancelled by the Customer.
    2. Risk in the Goods sold passes to the Customer on delivery to the Site.
    3. Title in the Goods passes to the Customer on payment for the Goods.
  3. Price Matching
    1. The Builder may agree to price match a competitor’s written quote, if substantially identical works are to be undertaken and the terms of the competitor’s contract are substantially the same as the Builder’s (in the Builder’s sole discretion, acting reasonably).
    2. Where it cannot be established to the reasonable satisfaction of the Builder at the time that the contract is signed that the Builder’s proposed Works and the terms of the contract are substantially identical with that of the competitor, then this contract is subject to and conditional upon the Builder satisfying itself that the Works and the terms of the contract are substantially identical with that of the competitor’s quote.
    3. If the Builder fails to satisfy itself that Works and/or that the contract terms are identical to that of a competing quote, then the Builder shall notify the Customer in writing of that fact and will, at the Builders discretion, refund the deposit and any other moneys paid in full except where the moneys relate to Goods ordered to specifications required by the Customer.
    4. If the Builder fails to notify the Customer that the Works and/or that the contract terms are not identical within fourteen (14) days of the date of this contract, then the Builder will remain bound by this contract.
  4. Customer’s obligation
    1. Prior to the installation of the Works;
      1. it is the Customer’s obligation to indicate to the Builder the location of any underground services, not limited to, but including the stormwater, sewage, electricity, gas, water and communication lines; and
      2. any damage caused to these services, that was not identified to the Builder by the Customer, will be at the Customer’s sole expense and the Customer indemnifies the Builder to the maximum extent permitted at law in regard to this.
    2. The Customer must provide all weather and uninterrupted access, occupation and possession to the Site to the Builder to carry out the Works and at the Customer’s cost provide the Builder with adequate access to available water, electricity and toilet washing facilities and the Customer indemnifies the Builder in respect of any Claim in breach of this clause except to extent that the Builder negligently caused or contributed to the Claim.
    3. The Customer is responsible for:
      1. any subsoil stormwater connections or installations (unless included above).
      2. the removal of any dirt/soil stockpiled as a consequence of the Works.
      3. any relocation of stormwater, sewage, electricity, gas, water and communication lines or devices, or solar panels of a consequence of the Works.
      4. the removal of any asbestos that is not included in the quote.
    4. The Customer will carry out regular and preventive maintenance on the Works after Completion.
    5. It is the Customer’s obligation to confirm boundary alignment (if relevant).
    6. Any recourse on the nominated boundary alignment is at the Customer’s responsibility and where the Works are carried out on a boundary of the Site, the Customer indemnifies the Builder in respect of any Claim regarding the boundary except to extent that the Builder negligently caused or contributed to the Claim.
  5. Payment
    1. Once an order for the Goods is placed by the Customer, or a quote for Works signed, the Customer is liable to the Builder for the cost of the Goods and/or the Works.
    2. On provision of a valid tax invoice, the Customer must pay the Builder within fourteen (14) days of the date of the invoice, or such longer period as provided for in the invoice and without limiting clauses 11.2 and 11.3,  the Customer acknowledges that the Builder can issue an invoice for:
      1. Ten Percent (10%) of the total cost of the Works being a deposit of the Goods and design drawing cost on signing the Terms; 
      2. Fifty percent (50%) which can be invoiced together and/or in instalments at the Builder’s discretion during the Works for the following:
        1. an amount for the cost of the Goods (and any other materials needs for the Works) at the time the Goods (or materials) are ordered by the Builder; 
        2. an amount for the cost upon delivery of materials on Site; and 
        3. an amount for any additional costs incurred due to a variation to the scope of the Works as agreed between the Customer and Builder; and
        4. progress payments for work undertaken by the Builder; and 
      3. the balance forty percent (40%) of the total cost on Practical Completion.
    3. Practical Completion means substantially complete and reasonably fit for use (as per HIA Adelaide website), allowing owner to take possession while remaining the rights to have minor defects and omissions attended to.
    4. Default interest will be charged on overdue amounts in accordance with clause 15.1.
  6. Approvals
    1. On receipt of the deposit the Builder shall make any applications that are required by law or regulations for development approval and obtain building indemnity insurance if required and arrange for the Construction Industry Training Board (“CITB”) to be paid where applicable.
    2. The Works will not commence until the Builder is satisfied that statutory or regulatory requirements are satisfied.
    3. The cost of any approvals can be charged to the Customer.
  7. Variations
    1. Any variation to the quote must be in writing and signed by the Builder and the Customer. And a variation may occur as a consequence of a request by you as the Customer or we as the Builder may discover something that was not evident at the tome the quote was provided to you.
    2. A variation may be sent by the Builder to the Customer electronically using the email address notified to the Builder in writing and may be accepted by the Customer electronically.
    3. The Builder may charge the Customer extra for a variation.
    4. The Builder will charge the Customer an administration fee for each variation as set out in the quote.
    5. The Builder will charge additional labour and materials required will be charged at cost and will then add a margin of fifteen percent (15%) to the labour and materials costs.
    6. If the Customer request a variation which reduces the price the Builder will retain the Builders margin on the component on the reduced price calculated at the rate of fifteen percent (15%).
  8. Maintenance Period
    1. The maintenance period will commence from Practical Completion but can only be claimed on once full payment of the final invoice has been made by the Customer.
    2. The Builder will for a period of thirty (30) days after Practical Completion remedy any defective works.
    3. If the Customer wishes to make a claim for defective works, the procedure in clauses 10.4, 10.5 and 10.6 must be followed.
  9. Warranties

To the extent required by law, the Builder warrants that:

  1. The Works will be carried out in a proper and workmanlike manner and in accordance with the plans and specifications set out in the quote.
  2. All materials required by the Builder for the use in the Works will be good and suitable for the purpose for which they are used and that, unless otherwise stated in these Terms, those materials will be new. 
  3. The Works will be carried out in an appropriate and skillful way with reasonable care, skill and care.
  4. If the Customer wishes to claim under any warranty in this agreement, the Customer must give the Builder written notice of its claim within seven (7) days of becoming aware of any defect.
  5. The Builder will then investigate the matter. The Customer must give the Builder access to the Site so that it can do this.
  6. The Builder will make a decision (acting reasonably) about the Customer’s claim within a reasonable period, and then fix any defects within 30 days of the conclusion of its investigation.
  1. Extension of Time
    1. Should an event occur which is outside the Builder’s reasonable control, then the period for completion of the Works will be extended by a reasonable period. If the Builder requires an extension of time, then the time will be extended automatically without the need to give notice. Without limitation, examples of events outside of the Builder’s control include the Customer failing to give access or instructions, inclement weather, a delay in obtaining council approval, accident and strike or other standard force majeure events beyond the reasonable control of the Builder.
    2. Should the Customer request the Builder to withhold delivery of the Goods for a period of five (5) days or more for any reason (other than for a breach of contract by the Builder), then the Builder reserves the right to issue the Customer with an invoice for the balance of the cost of the Goods. 
    3. Should the Customer request the Builder to suspend work for a period of five (5) or more days, then the Builder reserves the right to issue the Customer with an invoice with respect to Work done and completed to the date of cessation. 
  2. Termination
    1. If either party is in material breach of these Terms, the party not in breach may give the other party a written request to remedy that breach. If the breach is not remedied within five (5) business days or such longer period as provided for in the notice, the party not in breach may terminate the contract for the Works by giving written notice to that effect. 
    2. If the contract for the Works is terminated by the Customer for a breach by the Builder, the Customer must without prejudice to any other right or remedy pay to the Builder the actual cost of providing the Work carried out to the day the contract for the Works is ended. 
    3. If the contract is terminated by the Builder, the Customer remains liable for all amounts under the quote for the Works.
    4. The party in breach of the Terms will be liable for any costs, charges and expenses (including all reasonable legal fees on a full indemnity basis) occurred in obtaining advice on the default in the performance or observance of the terms and/or  the exercise of or enforcement of any covenant, power or authority arising from  a breach of the Terms (“Costs”) which are incurred or expended by the party not in breach of these Terms and these Costs are payable immediately on demand.
  3. Limitation of liability
    1. To the extent permitted by law, the total liability of the Builder, its employees, servants, contractors and agents to the Customer is limited to one or more of the following at the option of the Builder:
      1. Replacement of the Goods or supply of equivalent Goods;
      2. The supply of the Works again;
      3. The repair of the Goods;
      4. Payment of the cost of replacing the Goods or of acquiring equivalent Goods;
      5. Payment of the cost of having the Goods repaired or the Works re-supplied;

And does not extend to any consequential loss or damage whatsoever.

  1. Whole agreement

Subject to law in South Australia, the quote including these Terms and any written and signed variation comprises the whole agreement between the Customer and the Builder and can only be varied in writing by the parties. 

  1. Default interest

If the Customer fails to pay any monies or part of monies owing to the Builder as and when due and payable under these Terms, the Builder shall be entitled to charge the Customer interest at the reserve bank cash target rate plus four percent (4%) at the cash rate that applies on the date the Builder issued the Invoice, and interest accrues and compounds on a daily basis from the date the money was due  to the date of actual payment. 

  1. Indemnity

Without limiting any other clauses, the Customer will indemnify and keep the Builder indemnified against all the Builder’s costs and disbursements (including legal costs and disbursements on a solicitor and own client basis) which are incurred by the Builder in exercising its rights under this agreement except to the extent that the costs and disbursements where incurred due to the Builder’s breach of these Terms. 

  1. Retention of Title
    1. As title in the Goods does not pass to the Customer until it has been paid for in full, if the Customer fails to make a due payment, the Builder may enter the Site and take reasonable action to remove uninstalled Goods without being liable for damage to the Site caused by such removal.
    2. The Customer provides access to the Builder at all times to the Site and this right of access survives termiantion of these Terms.
  2. PPSA
    1. If the Builder determines that this quote or any rights arising out of it, grant to the Builder a security interest within the meaning of the PPSA, the Builder may in its discretion register that interest on the Personal Property Securities Register (as defined in the PPSA) and the Customer shall provide the Builder reasonable assistance in affecting such registration.
    2. Without limiting the above security interest, the Customer grants to the Builder a purchase money security interest (as defined in the PPSA) over the Goods that are subject to the retention of title arrangement described under clause 17.
    3. To the extent permitted by law, the Customer agrees that the Builder is not required to comply with any of the non-mandatory provisions set out in the PPSA, including but not limited to section 157(1) of the PPSA and any of the provisions set out in section 115(1) of the PPSA or any other notice provision of the PPSA.
    4. The Builder and the Customer agree not to disclose information of the kind referred to in section 275(1) of the PPSA, except in the circumstances required by section 275(7) of the PPSA. 
  3. Privacy
    1. The privacy of the Customer’s personal information is important to the Builder. The Builder is committed to respecting the Customer’s right to privacy and protecting the personal information provided by the Customer. The Builder is bound by the Australian Privacy Principles in the Privacy Act 1988 (Cth). 
    2. The Customer acknowledges that any personal information or credit related personal information collected by the Builder is subject to the Builder’s Privacy Policy available at www.pergolasofdistinction.com.au  
    3. Certain information about customers is retained for warranty and other purposes related to our commercial operations that is not divulged to third parties.
  4. GST
    1. The Customer acknowledges that the sale of the Goods and/or provision of the Works is a taxable supply pursuant to A New Tax System (goods and Services Tax) Act 1999 (Cth) (“GST Act”) and that any defined words from the GST Act have the same meanings in these Terms.
    2. Unless expressly stated, all amounts are listed as the GST exclusive amount.
    3. The Customer is liable to pay GST on receipt of a tax invoice at the same time and in addition the amounts contained in any invoices.
  5. Force Majeure

Neither party is liable for any failure to perform its obligations under these terms, if the failure or delay is due to anything beyond that party’s reasonable control. If that failure exceeds sixty (60) days, the other party may terminate these terms with immediate effect by giving notice to the other party. This clause does not apply to any obligation to pay the price due by the customer in accordance with these terms. 

  1. Law
    1. The law of these Terms shall be the law of the State of South Australia.
    2. The parties submit to the exclusive jurisdiction of the courts of South Australia.

AUSTRALIAN CONSUMER LAW 

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have goods repaired or replaced if the goods fail to be of acceptable qualify and the failure does not amount to a major failure.

For the avoidance of doubt, clause 13 of these terms is not intended to and will not be taken to have the effect of excluding, restricting or modifying the application of Part 5-4 of the Australian Consumer Law, the exercise of a right conferred by such a provision, or any liability of the Builder in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law to a supply of goods or services.

The contract details of the Builder are set out on the first page of these Terms.