TERMS & CONDITIONS

Solid Surface Service Agreement

1. Definitions
1.1 “Solid Surface” means Peter Richard Carpenter t/as Solid Surface of Distinction (ABN 66 768 314 886), its successors and assigns or any person acting on behalf of and with the authority of Solid Surface.
1.2 “Client” means the person/s buying the Service or Services as specified in any invoice, document or order, and if there is more than one, Client is a reference to each Client jointly and severally.
1.3 “Service” means all Goods, Services, Materials and Works, including the manufacture, installation and design of Goods, supplied by Solid Surface to the Client at the Client’s request from time to time (where the context so permits the terms Goods, Services, Materials and Works shall be interchangeable with each other).
1.4 “Price” means the Price payable for the Service as agreed between Solid Surface and the Client in accordance with clause 5 herein.
1.5 Words importing the singular shall include the plural and vice versa.
1.6 Words importing any gender include all genders.
1.7 Any reference to any person includes that person’s executors, administrators, agents, assigns or, being a company, its successors or permitted assigns.
1.8 Words describing individuals include companies and bodies corporate and vice versa.

2. Acceptance
2.1 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 the Service.
2.2 Where the Client is a tenant (and therefore not the owner of the land and premises where Services are to be undertaken or Goods installed) then the Client warrants that full consent has been obtained from the owner of the land for Solid Surface to enter, work on and install Goods on the land and premises. The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for all works provided under this agreement and to indemnify Solid Surface against any claim made by the owner of the premises (howsoever arising) in relation to the installation of Goods or undertaking of any services and the provision of any related Services by Solid Surface except where such claim has arisen due to the negligence of Solid Surface.
2.3 The Client agrees that, upon request, they will provide proof of ownership of the land for proposed works or that they are a tenant with the express consent of the owner of such land.
2.4 These terms and conditions may only be amended with Solid Surface’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Solid Surface.
2.5 In the event that:
(a) the Client requests a variation (requiring written details from the Client);
(b) an unforeseeable problem occurs or is discovered, requiring a variation; or
(c) a variation is made;
Solid Surface will give the Client a written variation document detailing the Service, the Price, the estimated time to undertake the variation, and the likely delay, if any and require written acceptance of the variation before commencing work on the variation.
2.6 The Client agrees to supply power, temporary lighting, toilet and first aid facilities to Solid Surface, as required.

3. Underground Services
3.1 Solid Surface will not undertake any priming, electrical, plumbing or building Services. If such Services are requested, or required, Solid Surface will engage a Subcontractor for all such work. Where Services are undertaken by a Subcontractor, Solid Surface accepts no liability for that Subcontractor’s work or actions.

3.2 In relation to any underground services (in that the surface of the ground is to be broken) Solid Surface may be required to first engage a third-party to ensure the safety of such activity. Solid Surface reserves the right to engage a third-party provider ‘service locator’ and on-charge the client for that service. Such an event will constitute a variation as detailed in clause 2.5 above. The Client will be consulted before any such engagement is made.
3.3 The Client agrees to indemnify Solid Surface in respect of any and all claims, loss, damages, costs and fines incurred as a result of damage to services not precisely located and notified.
3.4 Prior to Services commencing, the Client must advise Solid Surface of the precise location of any underground services and clearly mark the same. These services include, but are not limited to, electrical, gas, sewer and pumping services, sewer connections, sludge mains and water mains, irrigation pipes, telephone cables, fibre optic cables, oil pump mains and any other services that may be on that location.
3.5 Whilst Solid Surface will take all reasonable care to avoid damage to any underground services, the Client accepts and agrees to indemnify Solid Surface in respect of any and all claims, loss, damage, costs and fines incurred as a result of damage to services not precisely located and notified, as per the clauses herein.

4. Change in Control
4.1 Where the Client is a business or company, the Client shall give Solid Surface not less than seven (7) 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 numbers, email addresses or business practice). The Client shall be liable for any loss incurred by Solid Surface as a result of the Client’s failure to comply with this clause.

5. Price and Payment
5.1 At Solid Surface’s sole discretion the Price shall be either:
(a) as indicated by the quote provided by Solid Surface’s Quote Agreement, valid for the period stated in the quotation or otherwise for a period of thirty (30) days; or
(b) on any invoice provided by Solid Surface to the Client.
5.2 Solid Surface will provide the client with a design document, detailing the work to be undertaken. Once the Client signs this document and approves the design, a deposit equal to 50% of the quote provided will be required, prior to any work being undertaken. The remaining 50% is then payable upon completion of the Service.
5.3 Solid Surface reserves the right to change the Price if a variation to Solid Surface’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Service (including, but not limited to, any increases to Solid Surface in the cost of taxes, levies, materials and labour or where additional Services are required due to the discovery of hidden or unidentifiable difficulties including, but not limited to, obscured building defects, safety considerations, change in specifications or prerequisite work by any third party not being completed, etc. which are only discovered on commencement of the Services) will be charged for on the basis of Solid Surface’s quotation and will be shown as variations on the invoice.
5.4 If Goods cannot be returned, Solid Surface reserves the right to claim the full costs of the Goods from the Client. If Goods can be returned, Solid Surface reserves the right to on-charge any restocking fee applied to such returns, and additionally any reasonable costs of time and travel incurred to undertake such returns.
5.5 Time for payment for the Service being of the essence, the Price will be payable by the Client, in full, upon completion of the Service or on Delivery of the Goods (whichever is later). At Solid Surface’s sole discretion, time for payment may alternatively be:
(a) 7 days from the date of any invoice provided;
(b) by way of instalments/progress payments as agreed in writing between the Parties of this agreement. Payments by weekly instalments may be required where any job requires 2 or more attendances by Solid Surface; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Solid Surface.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price) or by any other method as agreed to between the Client and Solid Surface.

5.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Solid Surface an amount equal to any GST Solid Surface must pay for any supply by Solid Surface under this or any other agreement for the sale of the Service. 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.
5.8 Solid Surface and the Client agree that the terms of this Agreement will not be finalised until:
(a) the Client has paid Solid Surface all amounts owing to Solid Surface; and
(b) the Client has met all of its other obligations to Solid Surface.
5.9 Receipt by Solid Surface 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 Solid Surface’s rights and ownership in relation to the Service, and this agreement, shall continue.

6. Undertaking Service
6.1 Service is taken to have occurred at the time that:
(a) Solid Surface (or their nominated carrier) deliver the Goods to the Client’s nominated address, even if the Client is not present at the address (as may be agreed between the parties); or
(b) Solid Surface undertakes the Service at the Client’s nominated address, either in full or in part over one or more days, even if the Client is not present at the address (as may be agreed between the parties); or
(c) Any other method of service occurring, as agreed in writing by the parties to this agreement.
6.2 At Solid Surface’s sole discretion, the cost of Service is included in the Price.
6.3 The time, date and location for Service is to be agreed between the parties. In the event that the Client is unable to receive Service as arranged then Solid Surface shall be entitled to charge a reasonable fee for reattendance and/or storage of Goods.
6.4 Solid Surface may undertake the Service in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6.5 Any time or date given by Solid Surface to the Client is subject to change. Solid Surface will not be liable for any loss or damage incurred by the Client as a result of Service being late.

7. Risk
7.1 Risk of damage to or loss of property passes to the Client on completion of Service and the Client must insure their property, and any goods, prior to the Service.
7.2 Except as required by relevant law, Solid Surface provides no period for defects.
7.3 If any Goods are damaged or destroyed following Service but prior to ownership passing to the Client, Solid Surface is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Solid Surface is sufficient evidence of Solid Surface’s rights to receive the insurance proceeds without the need for any person dealing with Solid Surface to make further enquiries.
7.4 If the Client requests Solid Surface to leave Goods outside their own premises, or outside Solid Surface’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
7.5 The Client acknowledges that in the event any toxic substances (including, but not limited to, poisons, or any other contaminants) are discovered at the place of work that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify Solid Surface against any costs incurred by Solid Surface as a consequence of such discovery and/or removal. If the Client requests Solid Surface to remove such materials, Solid Surface reserves the right to charge for such Service. Under no circumstances will Solid Surface handle removal of asbestos products.
7.6 The Client shall ensure that Solid Surface has clear and free access to the place of work at all times to enable them to undertake the Services. Solid Surface shall not be liable for any loss or damage to the site unless due to the negligence of Solid Surface.
7.7 Where Solid Surface is required to install Goods, the Client warrants that the structure of the area in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and Solid Surface shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the area be unable to accommodate the installation.

7.8 The Client acknowledges that the Goods supplied may fade, change or lose colour, expand, contract or distort due to weather and age, mark or stain or be damaged or disfigured by impact. Whilst Solid Surface will make every effort to match samples supplied in order to minimise such variations, Solid Surface shall not be liable in any way for such variations.
7.9 Where the Client has supplied Goods for Solid Surface to complete the Services, the Client acknowledges and accepts responsibility and liability for the suitability of purpose, quality and any faults inherent in those Goods. Solid Surface shall not be liable for any defects in Goods, any loss or damage to property (or any part thereof), howsoever arising from the use of Goods supplied by the Client. Goods supplied by the Client must be available onsite prior to the commencement of Services.
7.10 Any advice, recommendation, information, assistance or service provided by Solid Surface in relation to Goods or Services supplied is given in good faith, is based on Solid Surface’s own knowledge and experience and shall be accepted without liability on the part of Solid Surface and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Service.
7.11 Where Solid Surface gives advice or recommendations to the Client, or their agent, regarding the suitability of Goods, and such advice or recommendations are not acted upon by the Client, Solid Surface shall not be liable in any way whatsoever for any damages or losses that occur and any warranties, resupply or defects clauses will be revoked.
7.12 Subject to clause 7.11, the Client accepts and acknowledges that Goods supplied and installed by Solid Surface require reasonable maintenance. Solid Surface reserves the right to not accept liability for such Goods where they may have become negatively affected, or unusable, due to the Client’s failure to reasonably maintain such Goods and/or, follow instructions, guidelines, advice or recommendations provided by Solid Surface in regard to the proper maintenance of the Goods.
7.13 The Client accepts that machinery and tools used by Solid Surface in the undertaking of Services may generate dust, smoke or dirt. Solid Surface recommends that furniture is covered and windows and doors are opened whilst such machinery is in use. The Client acknowledges that Solid Surface will make all reasonable efforts to clean a work area, however the Client accepts that Solid Surface may not remove all dirt, dust or other rubbish. Solid Surface does not accept liability for such removal.

8. Dimensions, Design, Plans and Specifications
8.1 Solid Surface shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client.
8.2 If the giving of a quotation for the supply of Service involves Solid Surface estimating measurements and quantities, it shall be the responsibility of Solid Surface to verify the accuracy of Solid Surface’s estimated measurements and quantities in the preparation of quotes and sales proposals.
8.3 Solid Surface reserves the rights to make changes to the measurements after the Agreement has been signed to comply with regulations and requirements for installation.

9. Compliance with Laws
9.1 The Client and Solid Surface shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable, including any work health and safety (WHS) laws relating to the relevant industry and any other relevant safety standards or legislation.
9.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Service.

10. Intellectual Property
10.1 Where Solid Surface has designed, drawn, written plans or a schedule or developed a Service for the Client, or created any products for the Client, then the copyright in any designs, drawings, plans, schedules, products and documents shall remain vested in Solid Surface, and shall only be used by the Client at Solid Surface’s discretion.
10.2 The Client warrants that all designs, specifications or instructions given to Solid Surface will not cause Solid Surface to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Solid Surface against any action taken by a third party against Solid Surface in respect of any such infringement.
10.3 The Client agrees that Solid Surface may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Service which Solid Surface has created for the Client.

11. Default and Consequences of Default
11.1 Where an invoice has remained unpaid for 7 business days, a reminder will be sent to the Client, in writing, and an administration fee of $250.00 (inclusive of GST) will be charged to the Client;
If the invoice remains unpaid after the reminder has been provided, solicitors or collection agents will be engaged and the Client agrees to indemnify Solid Surface for any and all reasonable collection costs (in accordance with clause 11.3).
11.2 Interest on overdue invoices shall accrue daily from the date that payment was due, until the date of payment, at a rate of five percent (5%) per annum pro rata, after as well as before any judgment.
11.3 If the Client owes Solid Surface any money the Client shall indemnify Solid Surface from and against all costs and disbursements incurred by Solid Surface in recovering the debt (including but not limited to collection fees, legal costs on a solicitor and own client basis, Solid Surface’s contract default fee, Court or any other institution filing fees and bank dishonour fees).
11.4 Without prejudice to any other remedies Solid Surface may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Solid Surface may suspend or terminate the supply of Service to the Client. Solid Surface will not be liable to the Client for any loss or damage the Client suffers because Solid Surface has exercised its rights under this clause.
11.5 Without prejudice to Solid Surface’s other remedies at law Solid Surface shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Solid Surface shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Solid Surface becomes overdue, or in Solid Surface’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

12 Title
12.1 Solid Surface and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Solid Surface all amounts owing to Solid Surface; and
(b) the Client has met all of its other obligations to Solid Surface.
12.2 It is further agreed that until ownership of the Goods passes to the Client:
(a) the Client is only a bailee of the Goods and unless the Goods have become fixtures must, return the Goods to Solid Surface on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Solid Surface and must pay to Solid Surface the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the production of these terms and conditions by Solid Surface shall be sufficient evidence of Solid Surface’s right to receive the insurance proceeds direct from the insurer without the need for any person dealing with Solid Surface to make further enquiries.
(d) the Client must not sell, dispose of, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Solid Surface and must pay or deliver the proceeds to Solid Surface on demand.
(e) the Client should not convert or process the Goods 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 Solid Surface and must sell, dispose of or return the resulting product to Solid Surface as it so directs.
(f) unless the Goods have become fixtures the Client irrevocably authorises Solid Surface to enter any premises where Solid Surface believes the Goods are kept and recover possession of the Goods.
(g) Solid Surface may recover possession of any Goods in transit whether or not delivery has occurred.

(h) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Solid Surface.
(i) Solid Surface may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.

13. Guarantee
13.1 As security for the due and punctual payment and performance of the Client’s obligations under this Agreement, the Client may be required to (at Solid Surface’s discretion), prior to the undertaking of Services by Solid Surface, provide to Solid Surface a Guarantor to enter into this Agreement and guarantee and indemnify Solid Surface on any or all of the following terms:
(a) The Guarantor unconditionally guarantees full Payment of all money owed by the Client under this Agreement and any auxiliary documents and the observance and performance of all of the Client’s obligations as specified in or implied by this Agreement;
(b) The Guarantor indemnifies and must keep indemnified Solid Surface against any costs, expenses, claims, liabilities, losses and damaged incurred by Solid Surface in respect of any default by the Client under this Agreement, or arising out of any claim by any third-party relating to the terms of this Agreement;
(c) This guarantee covers all Services undertaken by Solid Surface, including Variations;
(d) This guarantee is in favour of Solid Surface and its employees, successors, assigns and agents;
(e) This guarantee extends to claims by Solid Surface for breaches of material terms of this Agreement and repudiation of this Agreement and to Solid Surface’s reasonable legal and other expenses of seeking to enforce those obligations;
(f) Solid Surface may require the Guarantor under this guarantee to pay to Solid Surface any outstanding amounts, or any other amount to compensate Solid Surface for any loss or damage incurred under this Agreement, without Solid Surface being required to institute any proceedings against the Client in respect of such claims or breaches;
(g) Solid Surface’s rights against the Guarantor are not affected by:
(i) the death, bankruptcy or winding up of the Client or Guarantor;
(ii) the Client’s liability under this Agreement, any variation or any other auxiliary documents, assignments or extensions of the Agreement between the Parties;
(iii) any release of the Client or any Guarantor;
(h) This Guarantee is to be a continuing Guarantee and will be irrevocable and will remain in full force and effect until the whole of the money payable or which may become payable pursuant to the provisions of this Agreement has been paid and until all obligations of the Client, pursuant to this Agreement, have been duly and properly observed and performed or satisfied.

14. Security and Charge
14.1 In consideration of Solid Surface agreeing to supply the Goods, 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 or caveated, 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).
14.2 The Client indemnifies Solid Surface from and against all Solid Surface’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Solid Surface’s rights under this clause.
14.3 The Client irrevocably appoints Solid Surface and each director of Solid Surface as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on the Client’s behalf.

15. Cancellation
15.1 Solid Surface may cancel any contract to which these terms and conditions apply or cancel Service at any time before the Service is provided or delivered by giving notice to the Client. On giving such notice Solid Surface shall invoice the Client for any work completed up to that point and any materials purchased. The Client will have the option to purchase those materials from Solid Surface at cost value plus any fees charged by Solid Surface for delivery of those materials to an address nominated by the Client. Solid Surface shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 The Client may cancel any contract to which these terms and conditions apply. The following cancellation fees apply:
(a) Within 7 days – 20% of the total cost of the Service;
(b) Within 48 hours – 30% of the total cost of the Service;
(c) Within 24 Hours – 50% of the total cost of the Service;
(d) On the day – Full cost of the service, and any additional, reasonable fees for time and travel incurred by Solid Surface. The above percentages include an administration fee for cancellation.
The Client may cancel any contract to which these terms and conditions apply by giving 7 days’ notice to Solid Surface. Solid Surface reserves the right to charge an administration fee, and any reasonable costs for time and travel incurred by Solid Surface.
15.3 Solid Surface reserves the right not to refund any deposit where the Client has cancelled or terminated the contract.
15.4 In the event that the Client cancels or terminates this agreement, Solid Surface reserves the right to charge an administrative fee of up to $250.00 to the Client.
15.5 Cancellation or termination shall only be accepted by Solid Surface if provided in writing. The Client shall be liable for any and all loss incurred (whether direct or indirect) by Solid Surface as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.6 Cancellation of orders for Service made to the Client’s specifications, or for non-stock list items, will not be accepted once production has commenced, or an order has been placed and any deposit will be forfeited at the sole discretion of Solid Surface.

16. General
16.1 The failure by Solid Surface to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Solid Surface’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.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia, the state in which Solid Surface has its principal place of business and are subject to the jurisdiction of the courts in that state.
16.3 Except as otherwise provided for in these terms and conditions, Solid Surface 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 Solid Surface of these terms and conditions (alternatively Solid Surface liability shall be limited to damages which under no circumstances shall exceed the Price).
16.4 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 Solid Surface nor to withhold payment of any invoice because part of that invoice is in dispute.
16.5 Solid Surface may license or sub-contract all or any part of its rights and obligations without the Client’s consent. Solid Surface will endeavour to notify the Client of such license or sub-contracting; however, it is not obliged to do so.
16.6 Solid Surface will not be liable for any loss or damage to any person or property caused by a third party who has been licensed or sub-contracted by them.
16.7 Solid Surface makes no assertion to, nor will they be liable for any claims regarding the quality of work provided by any licensed or sub-contracted party.
16.8 The Client agrees that Solid Surface may amend these terms and conditions at any time. If Solid Surface makes a change to these terms and conditions, then that change will take effect from the date on which Solid Surface notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Solid Surface to provide Service to the Client.

16.9 Neither party shall be liable for any delay or 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.
16.10 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.