Terms & Conditions - Carls Kitchens

Terms and Conditions

Contract Terms

DEFINITIONS

Accessories means the items or any of them described under that heading on the “ACCESSORIES” section
Appliances means the items or any of them described under that heading on the “APPLIANCES” section
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition Consumer Act 2010 (Cth).
Initial consultation is the first discussion & measurements taken to deduce whether requested products will fit correctly via on site estimative measurements which is undertaken by an authorised representative OR employee of the company
Company means the company supplying the product, appliances, fittings & accessories
Consumer Guarantee means each guarantee as set out in under Part 3-2, Division 1, Subdivision B of the Australian Consumer Law, as it applies to supplies by the Company of the Product, Appliances or Accessories, made under the contract.
Customer is the party whose details appear under that heading of the PPC.
Deposit means a sum equal to 10% of the Price.
Start date means the date agreed between the Company and the Customer pursuant to clause 6(a) as varied, if applicable, in accordance with clause 6(b) or clause 6(c).
Final Payment means a sum equal to 20% of Price.
Government Agency means any government or governmental, administrative, monetary, fiscal, or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
Price means the value of the contract described in the PPC or/estimated Quote given during initial consultation
Product means the items (or, where the context requires, any part thereof) described under the heading project product specification on the first page.
Progress Payment means a sum equal to 40% of the Price post site double measurement
Site Location means the place at which the Product, Appliances and Accessories are to be located & installed
PPC means ‘personalised project contract’ and sets out the client’s details & all relevant products, materials & labour to be completed for the approved project

ENTIRE AGREEMENT AND PRECEDENCE

The terms of the contract between the Customer and the Company (CK ABN 65 650 062 120 of CK® ABN & trading as CarlsKitchens® are comprised in this document (including the cover page) and the plans and the specifications provided to the Customer which together constitute the entire understanding between the parties, and supersede all prior agreements, understandings and communications, whether written or oral, in relation to their subject matter.
If there is any inconsistency:
1. between the terms of this document, on the one hand, and the plans or the specifications, on the other hand, the terms of this document will prevail to the extent of the inconsistency; or
2. between the plans and the specifications provided to the Customer, the plans will prevail to the extent of the inconsistency.
No employees or representatives engaged by the Company are authorised to make any changes whatsoever to the terms of the contract. Any changes to the terms of the contract must be agreed in writing between the Company and the Customer (and in the case of the Company, approved by a director of the Company or authorised representatives).

INITIAL CONSULTATION AND CONTRACT VARIATION

The Company will use reasonable endeavours to ensure the Price is correct at the date of this contract. However, because the Product is a ‘made to estimate’ product, the Customer acknowledges and agrees that the Price may be subject to variations which are necessary as a result of the initial consultation measures estimate which the Company will arrange & inform before production of the Product commences.
The Customer agrees to permit the Company to undertake initial consultation measures at a time (in the hours of 7 am and 8 pm, 5 days a week, with exceptions of weekdays confirmed & approved by the client) acceptable to both parties.
If, following initial consultation, the Company becomes aware that the Product specifications, as estimated at the date of this contract, must change:
1. the Company will, where necessary, redesign the Product and notify the Customer of the details of any proposed variation to the contract;
2. the parties must agree on any such variation to the contract, before production of the Product commences; and
3. in the event that the parties cannot agree on the variation, then either party is entitled to terminate the contract.
In the event the Company, having used reasonable endeavours, is prevented from carrying out a initial consultation for a period in excess of 3 months (or such longer period as is stated next to the heading “Initial consultation estimate Period & Post Double measurement period” on the first page of the contract), for any reason whatsoever, then the Company may by written notice to the Customer request that the Progress Payment be paid. If, having given that notice, the Company does not receive payment of the Progress Payment within 7 days, the Company may terminate the contract at its discretion.

MINOR MODIFICATIONS AND VARIATIONS TO PRODUCT, APPLIANCES, FITTINGS OR ACCESSORIES

The Company may make minor modifications to the specifications for the Product without notifying the Customer where such modifications are required as a result of the initial consultation measure or POST double measurement, provided that such modifications do not materially affect the appearance, design and quality of the Product.
The Customer acknowledges that timber is a natural product and that variances in the colour, texture and grain is part of the natural beauty and individuality that timber provides in design. The Company therefore cannot guarantee that the Product supplied will be consistent or evenly matched in grain, texture or colour.
The Customer confirms that the Customer understands the plan provided with this document and that all details for the Product, Appliances and Accessories are both confirmed and shown correctly in the particulars on the given layout document & all respective details in writing of this contract are reflect in the given layout
If for any reason beyond the Company’s reasonable control, the Company is unable to supply a particular item of Product, a particular Appliance or a particular Accessory, the Company will notify the Customer and with the consent of the Customer will replace it with an item of similar standard and value. The Customer’s consent to any such replacement will not be unreasonably withheld or delayed unless external factors occur in which the customer will be informed of delays

PAYMENTS

The Deposit is due and payable on date of the initial quote, given no major changes occur in material variances. The Progress Payment is due and payable on the date the PPC is created & signed by the client & authorised representative is completed in accordance with clause 3(a) and, if applicable, the date the parties have agreed any necessary variations to the contract resulting from the Double measurement in accordance with clause 3(c) (or, if applicable, in accordance with clause 3(d)). The 3^rd payment is due upon all major materials & carcasses have been installed, fitted & ready for final hand-off. The Final Payment is due and payable upon full completion of the respective project with all relevant Products, Appliances and Accessories in accordance installed & existing with clause 5(c).
The Company will only commence production of the Product & creation of a PPC (initiated by preparing working drawings) after the Company has:
1. received the Deposit;
2. confirmed the customer has agreed to all designs, materials & details relevant to their project in accordance with clause 3(a) and the parties have agreed any necessary variations to the contract resulting from the Double measurement in accordance with clause 3(c); and
3. received payment of the Progress Payment upon signing the PPC with an authorised representative’s witness & signature
The Company will notify the Customer when the Product is to be delivered to their site location where they will pay the 3^rd on delivery payment.Once payment is received once the product is delivered, works may the commence to complete the project
All payments must be made by BPAY, electronic funds transfer or credit card using the associated company account
The Company is entitled to charge the Customer a fee in relation to every amount paid by the Customer using a credit card, calculated by multiplying the amount by the prevailing rate applied by the Company from time to time on credit card transactions involving the relevant credit card type (which rate will not exceed 3%). The fee is payable by the Customer at the same time as the amount in relation to which the fee is charged.

START DATE & DELIVERY

Following the initial consultation & double measurement and any subsequent agreement between the parties as to any necessary variations to the contract which result from the double measurement, the Customer and the Company will agree to a start date suitable to the client & the company.
The Company will use reasonable endeavours to meet the Start Date agreed under clause 6(a). If circumstances prevent the Company from doing so, the Company will notify the Customer as soon as possible and provide an alternative date for project start and such date will be treated as the revised start date for the purposes of the PPC. The Customer must not unreasonably withhold their consent to the alternative date for project initiation notified by the Company.
The Customer will use reasonable endeavours to enable the project to begin on the start date. If circumstances prevent the Customer from doing so, the Customer will notify the Company as soon as possible and seek an alternative start date, which date, if agreed by the Company, will become the StartDate for the purposes of the contract. If the parties cannot agree on the alternative date, the date will be selected by the Company and that date will become the Start Date for the purposes of the contract. The Customer must not unreasonably withhold their consent to the alternative start date for by the Company.
The Company will contact the Customer to confirm when the Product, Appliances and Accessories are ready for delivery and the date of delivery (being the existing Delivery Date or an alternative date which complies with clause 6(b) or clause 6(c)). If the Customer cannot take delivery on that date, the Customer will be liable for Storage Fees from that date until the date the Product, Appliances and Accessories are delivered at the Site Location or the date the Company terminates the contract under clause 6(e). The Storage Fees will be charged at the rate determined and notified by the Company (not to exceed $100 per day) and such fees are due and payable on the date of delivery or termination of the PPC.
If the Company, having used reasonable endeavours, has not been able to deliver & install throughout the confirmed & agreed start date and continues to hold the Product, Appliances or Accessories for a period of three (3) months from the confirmed & agreed start date, the Company may terminate the PPC.
The Company is authorised to destroy the Product if:
1. the Company terminates the contract under clause 6(e); or
2. if the Customer repudiates the contract at any time after production of the Product has commenced.

CUSTOMER LABOUR APPLICATIONS & CRITERIA

The Company supplies Product, Appliances, Fittings, Accessories & labour such as installation, removal, electrical, plumbing, gyprocking, painting, plastering, flooring, etc, & all relevant work needed to complete the project . The company gives the option for the client to provide their own labour given they are fully capable of completing the pre-requisite task for the company to continue the project with no obstruction to The Company’s standard procedures.
Suggestions by the Company of trades people or installers are not a recommendation and if the Customer engages any such person, it does so at its own discretion, acknowledging The Company is not liable for any vexations that occur due to such undertakings
The Customer should make and rely upon the Customer’s own enquiries, discretions & knowledge to the skills, task and experience of the agreed labour confirmed to be completed by the customer or any trades person or labour hired by the customer (including whether the customer/hired tradesmen is properly licensed to undertake the relevant work). The Company expressly disclaims all liability to Customer arising from any reliance the Customer places on the Company’s suggestion.
Any installation of the Product, Appliances or Accessories is the sole responsibility of the Customer, given the customer has agreed to provide services for such labour and/or product. The Company shall not be responsible for any damage or loss the Customer suffers or incurs in connection with the installation of the Product or any Appliance or Accessory via labour hire or by their own actions.
The Company makes no warranty, promise or representation to the Customer or anyone claiming through the Customer with respect to trades work conducted in connection the Product, Appliances or Accessories.

MANUFACTURER’S WARRANTIES

The Product, Appliances and Accessories are supplied subject to warranties offered by the manufacturers & Partners or where appropriate, subject to the terms of any extended/Limited warranty schemes. This document does not alter any manufacturer’s warranties, which are supplied separately by the manufacturer. The company provides a general warranty coverage card with the PP. Any materials that have separate warranty schemes & T&C’S are stated to have separate applications and exclusions to the customer for the respective materials

TITLE AND RISK

On delivery to the Customer, risk in the Product, Appliances or Accessories is transferred to the Customer. The Company is not liable for any loss of or damage to the Product, Appliances or Accessories to the extent that it occurs after Delivery & installation (including, without limitation, because of any acts or omissions of the Customer, or any third party, such as a trades person or installer, engaged by the Customer).
The Customer will not legally own the Product, Appliances or Accessories until the Customer has paid the Price in full and until such time, the Customer will keep the Product, Appliances and Accessories in good repair, condition and properly insured.
If the Company determines a ‘security interest’ for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA) arises under or in connection with this Agreement, the Product, Appliances or Accessories, the Customer must do everything (including obtaining consents, signing and producing documents, completing documents or procuring that they are completed and supplying information) which the Company reasonably requests or considers necessary for the purposes of enabling the Company to:
1. apply for any registration, or give any notification, in connection with the security interest; and
2. exercise rights in connection with the security interest in accordance with the PPSA.

CONSUMER GUARANTEES AND LIABILITY LIMITATION

Consumer guarantees imposed by the Australian Consumer Law require that the Product, Appliances and Accessories will:
1. have clear title (subject to clause 9(b)), not be subject to undisclosed securities and give the Customer a right to undisturbed possession;
2. be of acceptable quality and match any description;
3. comply with any express warranties (i.e. ‘extra promises’) the Company gives the Customer;
4. be fit for any purpose the Customer has made known to the Company (either expressly or by implication);
5. match any sample or demonstration model; and
6. have spare parts and facilities for the repair of any goods reasonably available for a reasonable period given by the PPC warranty
If the Product, Appliances or Accessories the Company supplies to the Customer fail to meet a Consumer Guarantee then:
1. when the problem is minor, the Company can choose between providing a repair or offering the Customer a replacement or refund;
2. when there is a major failure, the Customer can:
  1. reject the Product, Appliances or Accessories within a reasonable period (unless attached to the Customer’s premises in such a way that they cannot be detached or isolated without damaging them) and either choose a refund or a replacement; or
  2. ask for compensation for any drop in value of the Product, Appliances or Accessories because of the failure; and
3. the Customer can ask for compensation for any reasonably foreseeable loss incurred by the Customer because of the failure.
Aside from the Consumer Guarantees and as expressly set out on in this contract the Company makes no express or implied warranties or guarantees in connection with any Product, Appliances or Accessories.
To the maximum extent permitted by law:
1. the Company will not be liable for indirect, consequential, special, punitive, natural disasters, misuse, mistreatment, third-part mistreatment, robbery, civil crimes, building emergencies & accidents)or exemplary damages including but not limited to loss of use, loss of profits, loss of opportunity or loss by reason of delay, whether arising in negligence, from breach of contract or otherwise, in connection with this contract; and
2. the Company’s liability to the Customer for any loss or damage arising out of or in connection with this contract is limited to the Price.

INTEREST

If the Customer fails to make any payment under this contract on time, the Company will charge the Customer interest at the interest rate payable on Supreme Court judgments from period increments on what is unpaid. Such failure to pay is a serious breach of the Customer’s obligations.
The Customer must reimburse the Company for any debt collecting costs (and commissions) the Company pays to recover, or attempt to recover any overdue payment under the PPC payment procedures

INTELLECTUAL PROPERTY RIGHTS

As between the parties, the Company owns all copyright and other intellectual property rights in the Product, the plans, and the specifications.
If the Customer provides any sketch, plan, or document, which the Company uses or relies upon and which infringes any third party’s copyright, the Customer will indemnify the Company against all liability or loss whatsoever suffered or incurred by the Company.

TERMINATION BY THE CUSTOMER

The Customer may terminate the contract by written notice to the Company, with immediate effect:
1. in the circumstances set out in clause 3(c)(iii); or
2. if the Company is in breach of a material term of this contract and the breach cannot be remedied or, if capable of remedy, is not remedied within thirty (30) days of the Customer providing a written notice of the breach to the Company requiring its remedy; or
3. if the Company becomes, threatens, or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration or control.
If this contract is terminated by the Customer in the circumstances referred to in clause 13(a)(i), the Company will repay all monies paid by the Customer except for any credit card fees paid and less a deduction $800 for expenses incurred by the Company up to the date of termination.
If the contract is terminated by the Customer in the circumstances referred to in clauses 13(a)(ii) or 13(a)(iii), all monies paid by the Customer will be refunded.
If the contract is terminated under circumstances defined in clause 13(a)(i) prior to a PPC being created & time taken to engage in information gathering & appointment setups with a deposit made, 50% of the deposit will be refunded of the original price quoted. Any material additions which incur price prior to initial quoted price deposit made will not be refunded
If the contract is terminated by the customer under circumstances defined in clause 13(a)(i) where a PPC is not created & no major time has been taken to gather information & proceed with natural steps to follow the project’s completion, the full deposit will be refunded of the initial quoted

TERMINATION BY THE COMPANY

The Company may terminate this contract with immediate effect by written notice to the Customer:
1. within 14 days of the date of this contract, in its absolute discretion and for any reason whatsoever (and without being obliged to give reason); or
2. without limiting clause 14(a)(i):
  1. in the circumstances set out in clause 3(c)(iii), 3(d) or clause 6(e);
  2. if the Customer is in breach of a material term of this contract and the breach cannot be remedied or, if capable of remedy, is not remedied within thirty (30) days of the Company providing a written notice of the breach to the Customer requiring its remedy; or
  3. if the Customer becomes or threatens to become, threatens, or resolves to become or is in jeopardy of becoming bankrupt subject to any form of insolvency administration or control.
If the contract is terminated by the Company in the circumstances referred to in clause 14(a)(i), the Company will repay all monies paid by the Customer including the Deposit and any credit card fees paid by the Customer.
If this contract is terminated by the Company in the circumstances referred to in clause 14(a)(ii) or the Customer repudiates the contract, and such termination or repudiation occurs:
1. before a PPC is created, the Company will repay any monies paid by the Customer with the exception of any credit card fees paid and less a deduction $800 for expenses incurred by the Company up to the date of termination;
2. after the double measurement & PPC creation but before the Company commences production of the Product, the Company will repay any monies paid by the Customer apart from any credit card fees paid and less a deduction $1000 for expenses incurred by the Company up to the date of termination; or
3. after production of the Product has commenced:
  1. the Company will be entitled to retain any monies paid by the Customer (including credit card fees) prior to the date of termination;
  2. the Final Payment, if not already paid, becomes immediately due and payable by the Customer to the Company in full; and
  3. if applicable, the Customer must pay any Storage Fees that have accumulated up to the date of termination in accordance with 6(d).

TAXES

The Customer acknowledges and agrees that, except where this contract expressly states otherwise:

all amounts referred to in this contract are exclusive of all GST and all other Federal or State government sales related taxes or charges levied upon each supply made under this contract (Taxes); and
the Company can charge the Customer, and the Customer must pay to the Company, the amount of such Taxes at the same time as the supply (and in the case of GST, subject to the Company providing to the Customer a valid tax invoice).

FINANCE

The Customer acknowledges and agrees to the T&C’S set out by the HUMM90® that if the Customer has taken out finance with a third party to purchase any or all the Product, the Appliances or Accessories, the Customer will be responsible for the repayment of that finance & will deal with the partnered finance institution to alleviate any means of inability to repay

SEVERANCE

If the whole or any part of a provision of this contract is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this clause has full force and effect and the validity and enforceability of that provision in any other jurisdiction is not affected. This clause has no effect if the severance alters the basic nature of this contract or is contrary to public policy.

GOVERNING LAW

The Company and the Customer agree that the terms of this contract shall be governed in accordance with the State laws of New South Wales, Australia.

DISPUTE RESOLUTION

Before the Customer commences any legal proceedings or other external dispute resolution procedures in relation to a dispute arising out of or in connection with this contract, it must follow the following escalation procedure:

the Customer must notify the Company in writing advising of:
1. their reasons for its dissatisfaction (Issue) to be completely valid in discussion & application and;
2. their available dates to meet/contact and discuss the Issue with the Company;
within 7 days of receiving the Notice, the Company must notify the Customer, in writing, advising of its available dates to meet and discuss the Issue;
the parties must meet and discuss the Issue, and use reasonable endeavours to resolve the Issue within 7 days of the meeting; and
if within 7 days from the meeting referred to in the preceding sub-paragraph the parties have failed to resolve a dispute, the parties must resolve the dispute by reference to the procedures the Department of Fair Trading (New South Wales) or the equivalent government department in the State where the Product is to be delivered.

TOLERANCE

The Company will not, at its absolute discretion change, alter, replace or fix any warranted products if the carried assessment by an authorised representative indicates voluntary damage by the customer. The customer will see a $100 call-out fee & will have their warranty completely voided for future use. If the user attempts to argue, threaten, show aggressive behaviour, yell or attempt to harm an authorised representative through face-to-face contact or through virtual contact i.e, messaging/emails for free replacement or mis-informed warranty information at their fault, they will face legal consequences, be charged under Australian consumer law & have their warranty completely voided of its future usage.

For the mentioned above,The Company is also no longer responsible to assist any customer for damage and will no longer accept, receive or issue assistance for any any purchased product & future damage of the product by the company

The Company will not under any circumstance change, modify or alter any warranted product at their expense or be liable for indirect or consequential loss or damage (such as natural disasters, misuse, mistreatment, accidents, third-party mistreatment, robbery, civil crimes, building emergencies, etc). In no event shall The Company’s liability exceed the purchase price of the warranted product or its replacement. The Company comes with guarantees that cannot be excluded under Australian consumer law. The Company promises entitlement to a replacement or refund upon major loss or failure & compensation fort any other reasonably foreseeable loss or damage. The Company reserves the right to deem warranted products unacceptable for replacement for any of the exclusions stated above or if the warranty product(s) does not amount to any major failure or damage that might cause harm, discomfort, or inability to be operated.

INDIVIDUAL PRODUCT & LABOUR WARRANTY WORKMANSHIP

1.The Company warrants to the original purchaser that the purchased product (s) are free from defective workmanship. The detailed warranty only applies if the purchased products are properly maintained and used for standard domestic use. The warranty is individually applied for each product purchased under this contract and lasts until the warranted products exceed or expire their given period for repairs applicable under limited conditions

2.If the warranted product by the defective manufacture is no longer available, The Company, in its absolute discretion, will attempt to replace the product with. Substituted item which will be as similar in dimension, design, colour & functionality.

3.The company will issue a fix for labour damages or issues within the completed project that are applicable for fixes. The Company will not place efforts to charge the customer for tedious labours & complete fixes that are caused by the customers mistreatment, environmental factors at the customers expense or vexations raised via third party factors not aware of the consequences that follow

EXCLUSIONS

This warranty is void if any person, other than The Company’s authorised representative, labour hire or tradesmen installs, repairs or alters the warranted product without the authorised request of The Company. If any of the following exclusions are brought to light during inspection, the warranty does not cover the stated product under the respective supplier’s limited warranty:

Wear & tear suffered through normal use (scratches or cuts) or damage caused by impacts or accidents
Use of inappropriate chemicals which might damage the product upon user misinformation
Mistreatment, negligence, or misuse
Improper care of products (not cleaned regularly or cleaned using inappropriate products)
Fading, discolouration or damage caused by regular exposure to intensive or excessive sunlight (including UV light), moisture or heat (including steam or water on doors, panels, drawer fronts, appliances, cabinetry interior & exterior
Alterations or modifications of the warranted product carried out by the customer or any other un-authorised representative from The Company

Stone exclusions

The Company provides stone with partnered companies such as Quantum Quartz® and Caesarstone® which all have their respective stone warranty. Each company has certain protocols to deal with stone faults caused only by manufacture errors and steps to assess whether the caused damage is covered under their warranty T&C’s.In no event is The Company & their stone supplier responsible for any stone damage caused by the following:

misuse, mistreatment, or abuse
irregular cleaning
Stains caused by irregular cleaning or accidents
Cracks caused through exposure to excessive sunlight (includes UV light)
Cracks caused by heat from external appliances, pots, pans, hot water, or electric fry pans
Applying excessive weight to any surface area via an object exceeding the max load capacity or sitting, standing, or climbing on the product

Floor exclusions

The Company provides flooring with partnered companies which all have their respective flooring warranty. Each company has certain protocols to deal with flooring faults caused only by manufacture errors and steps to assess whether the caused damage is covered under their warranty T&C’s.In no event is The Company & their floor supplier responsible for any damage caused by the following:

misuse, mistreatment, or abuse
irregular cleaning
Stains caused by irregular cleaning or accidents through day-to-day use
Cracks caused through exposure to excessive sunlight (includes UV light)
Sinking caused by heavy items placed for excessive periods of time
Rising caused by water seeping through scratches, cracks or excessive water being used
Scratches caused by sliding, moving, or dropping light items or heavy items
Applying excessive weight to any surface area via an object exceeding max weight load and i.e., jumping, running etc.

THIS DOCUMENT SUPERSEDES ALL PREVIOUS VERSIONS & IS SUBJECT TO CHANGE WITHOUT NOTICE