Lifestyle Wardrobes WA ABN 21 005 825 374
Terms and Conditions for the supply of Products and Services by Lifestyle Wardrobes WA
1. Contract Terms
(a) Contract: The contract between W. R. Kirdan Pty Ltd trading as Lifestyle Wardrobes WA [ABN 21 005 825 374] (Lifestyle) and the person, company or other legal entity who orders products or services from Lifestyle (Customer) relating to:
(i) any products supplied by Lifestyle (Lifestyle Products); and
(ii) any services supplied by Lifestyle (Lifestyle Services)
or other transactions, comprises:
(iii) these terms and conditions (Lifestyle Terms);
(iv) the Purchase Order including:
(A) the quotation given by Lifestyle; and
(B) the plans and specifications attached to the Purchase Order.
- (together the Contract)
The Contract in each case is the entire agreement and understanding between the parties on everything connected with the subject matter of the Contract.
(b) Home Building Act means the Home Building Contracts Act 1991 (WA) and regulations made under that Act.
(c) Installation Date means the scheduled date of installation in regard to the Purchase Order agreed to by the Customer, subject to variation as permitted under the Lifestyle Terms.
(d) Price has the meaning specified in clause 3.
(e) Purchase Order means:
(i) where Lifestyle has provided a quotation for the supply of Lifestyle Products and Lifestyle Services, the acceptance in writing of that quotation without variation in accordance with clause 2;
(ii) in any other case the acceptance in writing by Lifestyle of a Customer’s order for Lifestyle Products or Lifestyle Services on the Lifestyle Terms, and specifically excludes any terms or conditions written in the Customer’s order in addition to or inconsistent with the Lifestyle Terms which have not been accepted in writing by Lifestyle and such terms will not bind Lifestyle notwithstanding any statement that the Customer’s terms and conditions prevail over the Lifestyle Terms.
2. Orders for Lifestyle Products and Lifestyle Services
(a) Unless otherwise specified in the Contract, any quotation provided by Lifestyle for the purchase of Lifestyle Products or Lifestyle Services shall lapse and have no effect 30 days from the date of issue and may be withdrawn by Lifestyle at any time prior to acceptance by the Customer for any reason.
(b) A quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise from it unless and until the Purchase Order containing the quotation is received by Lifestyle and accepted in writing by Lifestyle.
(c) The design, quantity, quality, description and specification of the Lifestyle Products and Lifestyle Services are unless otherwise agreed, as set out in the Purchase Order.
3. Price of Lifestyle Products and Lifestyle Services
(a) Where a quoted Price has been given and accepted in accordance with clause 2, the price stated in that quote will be the Price of the Lifestyle Products and Lifestyle Services.
(b) Unless stated otherwise in a quotation:
(i) the Price quoted includes delivery and installation in accordance with Lifestyle’s standard practice;
(ii) where the Customer requests a method of delivery other than Lifestyles standard delivery, and Lifestyle agrees in writing, the Customer must pay for the cost of delivery by that method from the point of dispatch of the Lifestyle Products by Lifestyle.
(c) All prices shown in any Lifestyle publications including price lists, brochures, catalogues, electronic media and other advertising material are recommended selling prices only and there is no obligation on the part of Lifestyle or any reseller to maintain the same prices. All price lists and quotations are issued on an errors and omissions excepted basis and prices are subject to change without notice.
(d) Lifestyle may correct any clerical errors or omissions, whether in computation or otherwise in any quotation, Purchase Order or invoice.
(a) In the Contract “GST” means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (GST Act).
(b) All prices quoted or contained in the Contract or any publication of Lifestyle are inclusive of GST unless specifically stated otherwise.
(c) If the Customer is registered for GST they must provide their ABN prior to any Purchase Order being made.
(d) GST will be added to the price payable by the Customer for the Lifestyle Products and the Lifestyle Services at the rate applicable at the time of supply, and Lifestyle will provide a valid tax invoice to the Customer.
5.1 Supply Only
- Customers who purchase a Lifestyle Product for supply only without installation must deliver the written acceptance of the Purchase Order to Lifestyle together with payment of the Price in full.
5.2 Supply and Install
- Customers who purchase a Lifestyle Product requiring supply and installation must deliver the written acceptance of the Purchase Order to Lifestyle together with payment of a non-refundable deposit (Deposit) which will be:
(ii) 20% of the Price where the Contract is regulated under the Home Building Act; or
(iii) 50% of the Price where the Contract is not regulated under the Home Building Act,
- and the balance of the Price must be paid by the Installation Date.
5.3 Production of Lifestyle Products
- Production of the Lifestyle Products ordered will only commence when the written acceptance of the Purchase Order has been received by Lifestyle and the payment pursuant to clauses 5.1 or 5.2 as applicable has been paid.
5.4 Payment methods
(a) Lifestyle will accept payment by Visa or Mastercard debit and credit cards, electronic funds transfer to Lifestyle’s bank account or payment in cash. Lifestyle may refuse to accept payment by cheque.
(b) Where a Deposit is paid by Visa or Mastercard the Customer authorises Lifestyle to debit from that Visa or Mastercard the balance of the Price payable on the Installation Date unless the Customer has paid the balance prior to the Installation Date.
(c) Where a Customers elects to pay using electronic funds transfer or cash payment of the balance of the Price must be made no later than three days prior to the Installation Date.
(d) Lifestyle may refuse to accept payment by credit card and may impose conditions on any acceptance of payment by credit card.
(e) A payment is only received by Lifestyle when clear funds from the payment are available in Lifestyle’s bank account.
(f) The Customer must make all payments when due without any retention, set-off or deductions for any claim.
Interest on overdue accounts will be charged at the rate specified by Lifestyle from time to time or (if no rate is specified) a rate which is 3 percentage points greater than the rate that would be charged to Lifestyle by its usual bank for overdrafts in excess of $100,000.00 from time to time.
7.1 Lifestyle Variations
(a) The Contract shall not be varied without the agreement of Lifestyle in writing.
(b) The Customer agrees that:
(i) Prices quoted for Lifestyle Products and installation based on instructions by the Customer to Lifestyle including by way of specifications, measurements, sketches or plans whether verbal or in writing, are subject to a check measure by Lifestyle; and
(ii) Lifestyle retains the right to vary dimensions and design of ordered Lifestyle Products where required to conform with Lifestyles standard construction methods,
- and where adjustments to the dimensions or design are required Lifestyle may amend the Price quoted to take into account the changes in dimension and design.
(c) Where the Contract is regulated by the Home Building Act and the Contract is a “home building work contract” as defined in section 3(1) of the any Lifestyle variation pursuant to his clause must also comply with the Home Building Act.
7.2 Customer Variations
(a) In the event that the Customer wishes to vary the Contract by way of varying the design or specifications of the Purchase Order, the Customer may notify Lifestyle in writing of the proposed variation (Variation) no later than 6 weeks prior to the scheduled Installation Date. Lifestyle is under no obligation to accept the request for the Variation.
(b) If Lifestyle is prepared to consider the Variation, Lifestyle will advise the Customer of the terms of such Variation including:
(i) the cost to be charged for, or the basis on which any cost will be calculated for, the requested Variation;
(ii) if items to be used in the Lifestyle Products have been received from Lifestyle’s suppliers, any re-stocking fee that may be incurred to change items;
(iii) vinyl wrapped items cannot be changed once they have been ordered;
(iv) any change to the times for the delivery of the Lifestyle Products or Lifestyle Services; and
(v) any changes required by Lifestyle to any other term of the Contract as a condition of agreeing the Variation, and if the Customer agrees to such costs and changes in writing within 7 days of Lifestyle advising the costs and changes, the Contract will be varied on those terms.
(a) The Customer may not terminate a Contract or otherwise cancel any Purchase Order unless:
(i) Lifestyle agrees in writing to the termination; and
(ii) the Customer pays to Lifestyle the reasonable loss, cost and expense of Lifestyle as assessed by Lifestyle in connection with such termination,
- and upon such termination Lifestyle shall be regarded as discharged from any further obligations under any Contract with the Customer.
(b) If the Customer terminates this Contract or refuses to accept delivery of the Lifestyle Products without Lifestyle’s agreement in writing then the damages payable by the Customer to Lifestyle shall unless otherwise determined be the full Price of the Lifestyle Products plus any additional costs incurred by Lifestyle relating to the termination or repudiation, less the current scrap or resale value (if any) of the Lifestyle Products as determined by Lifestyle.
8. Delivery of Lifestyle Products and Lifestyle Services
(a) Lifestyle may subject to any specific provision in a Purchase Order, at its sole discretion, advise the Customer of the programme for the commencement and the completion of the supply of Lifestyle Products and provision of the Lifestyle Services.
(b) If Lifestyle is delayed in the supply of the Lifestyle Products or provision of the Lifestyle Services (or any of them) for any reason contributed to by the Customer’s act or omission, then Lifestyle will be entitled to be paid all reasonable costs arising directly from such delay.
(c) If the Customer requests Lifestyle to change its programme for the delivery of the Lifestyle Products or provision of the Lifestyle Services, and Lifestyle agrees to the change then the Customer shall pay all of Lifestyle’s reasonable costs including any increase in cost of goods or services of third party suppliers to Lifestyle incurred in following such Customer’s request.
(d) Delivery will be deemed complete if the Lifestyle Products are delivered to the Customer, or to such other address nominated in the Purchase Order and, if Lifestyle is also installing the Lifestyle Products, then when the Lifestyle Products are installed.
(e) If delivery occurs at a nominated address, delivery is deemed to have occurred irrespective of whether the Customer is in attendance for receipt of the delivery.
(f) Where Lifestyle is engaged to provide installation:
(i) all electrical, plumbing, patching and painting required prior to and after installation is the responsibility of the Customer;
(ii) all renovation work required to be completed prior to installation, such as the removal and disposal of existing wardrobes, is the responsibility of the Customer unless otherwise stated in the Purchase Order;
(iii) the Customer acknowledges that cutting, drilling and power tools will be required to be used during installation at the Customer’s premises and cornices, skirting board and walls will be cut and drilled as a part of the custom-fitting process of installation; and
(iv) the Customer must secure any dogs or pets away from the installation area during installation.
9. Delay in Delivery
(a) Any period of time for delivery specified in a Contract is an estimate only and Lifestyle will not be liable for delay, failure or inability to deliver the Lifestyle Products or Lifestyle Services (or any part of them). The Customer will not be entitled to terminate the Contract because of any delay in delivery.
(b) If delivery is delayed by the Customer for a period of more than 21 days after the date on which the Customer is notified that the Lifestyle Products or any completed items forming part of the Lifestyle Products are ready for delivery:
(i) Lifestyle is entitled to present invoices to the Customer for payment of the Lifestyle Products;
(ii) the risk in such Lifestyle Products shall immediately pass to the Customer; and
(iii) Lifestyle may arrange suitable storage of such Lifestyle Products at Lifestyle’s premises or elsewhere.
(c) Lifestyle shall not be liable for any prevention of, or delay in performance of its obligations (or of its suppliers and subcontractors) under the Contract which is caused by any event or circumstance which is beyond the reasonable control of Lifestyle including any strike, lockout or other labour dispute, fires, floods, epidemics, quarantine restrictions, delays in transportation accidental breakdown to any machinery or facilities necessary for the manufacture, transportation or delivery of the Lifestyle Products and Lifestyle Services. (Delay Events).
(d) In the event of such delay, Lifestyle’s performance dates will be extended for such length of time as may be reasonably necessary to compensate for the Delay Event.
(e) If a Delay Event continues for a period of 3 months or more, Lifestyle may (without affecting the accrued rights and obligations of the parties as at the date of termination) terminate this agreement immediately by written notice to the Customer.
10. Lifestyle warranties and liability
(a) Lifestyle warrants that subject to clause 10(b):
(i) the Lifestyle Products and Lifestyle Services to be supplied under the Contract will conform to the description in the Contract;
(ii) all products manufactured by Lifestyle are guaranteed against faulty workmanship, materials or design by Lifestyle for a period of ten years from the date of delivery (Warranty Period);
(iii) Lifestyle in its discretion may either repair or replace any Lifestyle Products covered by Lifestyle’s warranties.
(b) To the full extent permitted by law:
(i) Lifestyle is not responsible for or liable for any repair, replacement, loss or damage with regard to the Lifestyle Products or the Lifestyle Services after the expiry of the Warranty Period.
(ii) In the case of materials not manufactured by Lifestyle:
(A) Lifestyle does not provide any warranty or guarantee and the Customer must rely solely on any warranty or guarantee given by the manufacturer.
(B) Lifestyle will, if requested in writing by the Customer, endeavour to assist the Customer to obtain from the manufacturer the benefit of any guarantee or warranty which the manufacturer may have expressly given in writing as to the quality or fitness for any purpose of the materials, but Lifestyle shall not be liable in any way for any breach by the manufacturer of any obligations pursuant to any manufacturer’s warranty or guarantee.
(iii) All warranties, guarantees, conditions, rights and remedies, express or implied, statutory or otherwise in relation to the Lifestyle Products and Lifestyle Services, are expressly excluded (except to the extent such liability is legally incapable of being excluded or limited), in respect of any:
(A) damage to the Lifestyle Products caused after risk passes; or
(B) damage caused by:
(1) anyone other than Lifestyle and its authorised agents;
(2) misuse, accident, neglect, moisture or storage of goods capable of causing damage to the Lifestyle Products;
(3) arising from transport or delivery of the Lifestyle Products if the Customer has nominated a carrier other than Lifestyle’s normal carrier; or
(4) improper installation, maintenance, repair, alteration, modification or adjustment by anyone other than Lifestyle;
(C) consequential or indirect loss or damage incurred with respect to the Lifestyle Products or provision of Lifestyle Services however arising.
(iv) Lifestyle’s liability, if any, in respect of any breach of any conditions or warranties shall be limited to, at the discretion of Lifestyle:
(A) the replacement of the Lifestyle Products or the supply of equivalent Lifestyle Products or Lifestyle Services;
(B) the repair of the Lifestyle Products;
(C) the payment of the cost of replacing the Lifestyle Products or of acquiring equivalent products or services;
(D) the payment of the cost of having the Lifestyle Products repaired;
(E) supplying the Lifestyle Services again; or
(F) payment of having the Lifestyle Services supplied again.
(v) Any repairs, alterations or other work carried out to Lifestyle Products or to rectify, alter or change anything arising from alleged defective Lifestyle Services by a person other than an authorised representative of Lifestyle shall invalidate any warranty given by Lifestyle.
(c) The Customer may not claim against Lifestyle in respect of any defect which should have been apparent on a reasonable visual examination of the Lifestyle Products but is not notified to Lifestyle after the Customer has had a reasonable opportunity to discover the defect in the Lifestyle Products and in any event within 21 days of delivery of the Lifestyle Products.
(d) Lifestyle will not be liable for any losses or damages suffered by the Customer as either a direct or indirect consequence of any regulatory non-compliance whatsoever resulting from any act or omission on the part of the Customer.
(e) Any court action for any claim arising from or relating to the Contract or pursuant to any law against Lifestyle must be commenced within 18 months after the cause of action accrues and this clause is a complete bar to any action commenced after that time.
11. Repair of Goods not under Warranty
Where Lifestyle Products require repair, and the repair is not covered by any warranty given by Lifestyle:
(a) Lifestyle may charge a fee for inspection, assessment of the repairs and preparation of a repair quotation and this fee shall be payable by the Customer in any event even if the Customer does not proceed with the repair;
(b) any repairs that Lifestyle undertakes under this clause are guaranteed against faulty workmanship and only in respect of any replacement components that were used in the repair for a period of 90 days from date of completion of the repair;
(c) despite anything to the contrary in this clause, Lifestyle is not under any obligation to repair any Lifestyle Products where the repair is not covered by a warranty given by Lifestyle.
12. Customer representations and warranties
(a) The Customer by making a Purchase Order represents and warrants that:
(i) the Customer has full power and authority to enter into and perform its obligations under the Contract;
(ii) all information provided to Lifestyle by or on behalf of the Customer is true and correct in all material respects and is not, whether by omission of information or otherwise, misleading;
(iii) the Customer is solely responsible for obtaining all necessary permits and licences to comply with all applicable legislation, regulations, by-laws or rules (if any) in connection with the installation of the Lifestyle Products; and
(iv) the Customer will comply with all instructions of Lifestyle in relation to the fitting, installation and use of the Lifestyle Products and in the course of the supply of the Lifestyle Services.
(b) The representations and warranties given in this clause survive the Contract.
13. Copyright in design
Lifestyle retains all copyright and intellectual property rights in or related to the design and construction of the Lifestyle Products.
14. Dispute resolution
(a) The parties using their best endeavours and acting in good faith must attempt to resolve any dispute arising under the Contract on the following terms prior to commencing any court proceedings:
(i) negotiations must be conducted between representatives of the parties who have authority to settle the dispute within 14 days of a party providing written notice to the other party of the matter and circumstances giving rise to the dispute (Notice of Dispute);
(ii) if the dispute has not been resolved within 14 days of a party giving a Notice of Dispute, the parties must refer the dispute to a mediator with all mediator fees and expenses payable equally by the parties;
(iii) if a mediator cannot be agreed either party may request the President of the Law Society of Western Australia to appoint a mediator;
(iv) mediation must take place in accordance with any directions of the mediator within 60 days of the date of the Notice of Dispute.
(b) Any dispute not resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in Western Australia.
The Customer must not assign or otherwise dispose of all or any of its rights in, to and under the Contract without the prior written consent of Lifestyle.
16. Retention of title of Lifestyle Products
(a) Title in the Lifestyle Products will pass from Lifestyle to the Customer (or its nominated agent) only when Lifestyle receives payment in full for such Lifestyle Products, unless otherwise agreed in writing by Lifestyle.
(b) Until Lifestyle has received payment in full for the Lifestyle Products and all other moneys owed by the Customer to Lifestyle, the Customer will hold the Lifestyle Products as a bailee of Lifestyle.
(c) If the Customer fails to pay any debt owed to Lifestyle when it is due the Customer:
(i) agrees that Lifestyle may recover or retake possession of all or any of the Lifestyle Products which have not been paid for in full and dispose of such Lifestyle Products;
(ii) grants Lifestyle and any person authorised by Lifestyle permission and an irrevocable licence to enter, after giving written notice to the Customer of its intention to do so, at any time any property where any Lifestyle Product is placed or stored and do all things necessary and use such force as is necessary in order to recover or retake possession of the Lifestyle Products which have not been paid for in full; and
(iii) accepts liability for the safe custody and return of the Lifestyle Products to Lifestyle and indemnifies Lifestyle for any costs and loss.
17. Risk Passes on Delivery
All risk in and responsibility for, the Lifestyle Products passes to the Customer upon delivery to the Customer.
18. Home Building Contracts Act 1991
If this Contract is regulated by the Home Building Act and the Contract is a “home building work contract” as defined in section 3(1) of the Home Building Act, then to the extent that any provisions of the Contract are inconsistent with the Home Building Act, the provisions of the Home Building Act shall prevail to the extent of that inconsistency.
19. Personal Property Securities Act
(a) Capitalised terms in this clause 19, that are not otherwise defined elsewhere in the Contract, have the same meaning as set out in the Personal Property Securities Act 2009 (Cth) (PPSA) unless the context otherwise requires.
(b) This agreement constitutes a security agreement pursuant to the PPSA in relation to the Lifestyle Products and Lifestyle Services supplied by Lifestyle to the Customer and any Lifestyle Products or Lifestyle Services that will be supplied in the future by Lifestyle to the Customer.
(c) The Customer:
(i) agrees that one or more Security Interests (as that term is defined in the PPSA) may be registered by Lifestyle in relation to the Lifestyle Services and Lifestyle Products and the Proceeds arising in respect of any dealing in the Lifestyle Product in accordance with the PPSA (and in any other manner Lifestyle considers appropriate);
(ii) agrees to do all such things and sign all such documentation and provide any further information (such information to be complete accurate and up-to-date in all respects) as are necessary and reasonably required to enable Lifestyle to:
(A) acquire a perfected Security Interest in the Lifestyle Product and its Proceeds (or otherwise to secure payment for the Securities, if any);
(B) register a Financing Statement or Financing Change Statement;
(C) ensure that Lifestyle’s security position, and rights and obligations are not adversely affected by the PPSA;
(iii) waives its rights to receive a copy of any Verification Statement after the registration of a Financing Statement or Financing Change Statement in respect of the Security Interest created by the Contract.
(d) The Customer agrees to not:
(i) register a Financing Change Statement in respect of a Security Interest contemplated or constituted by the Contract; or
(ii) register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the Lifestyle Product in favour of a third party,
without Lifestyle’s prior written consent.
(e) For the purposes of section 20(2) of the PPSA, the collateral is the Lifestyle Product including any Lifestyle Products which are described in any Purchase Order provided by Lifestyle to the Customer from time to time.
(f) If Chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interest created under the Contract, the parties agree that the following sections of the PPSA will not apply or are waived, as the context requires namely section 95 (notice of removal of accession to the extent that it requires Lifestyle to give a notice to the Customer); section 96 (retention of accession); section 121(4) (notice to grantor); section 125 (obligations to dispose of or retain collateral); sections 129(2), 129(3) and 130 (notice of disposal to the extent it requires Lifestyle to give a notice to the Customer); section 132(3)(d) (contents of statement of account after disposal); section 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (re-instatement of security agreement).
(g) The Customer agrees that, until all monies owing to Lifestyle are paid in full:
(i) it must not sell or grant any other Security Interest in the Lifestyle Product or its Proceeds, without the prior written consent of Lifestyle;
(ii) it must not, without the prior written consent of Lifestyle change its name, its details or initiate any change to any documentation registered under the PPSA pursuant to the Contract.
(h) If any provisions of the Contract are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
20. Competition and Consumer Act 2010 (CCA)
Where the provisions of the Competition and Consumer Act 2010 (Cth) (CCA) apply, the provisions of the Lifestyle Terms will be read subject to the application of the CCA and in the case of any conflict, the provisions of the CCA will apply:
(a) nothing in the Lifestyle Terms is intended to limit or replace any rights of “consumers” as that term is defined under the CCA.
(b) the Customer agrees that if the Customer buys any Lifestyle Products for the purposes of re-supply, manufacture or repair of other goods, the CCA will not apply to such supplies;
(c) if the Customer on sells any Lifestyle Products it agrees that it will not make any representations in relation to the Lifestyle Products which are not:
(i) contained on the packaging of the Lifestyle Products;
(ii) contained in any materials supplied by Lifestyle;
(iii) set out in any applicable manufacturer’s warranty; or
(iv) approved in writing by Lifestyle.
(d) if the Customer on sells the Lifestyle Products to consumers who purchase them for the purposes of re-supply, manufacture or repair of other goods, the Customer agrees to contract out of the CCA in writing with those consumers.
Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a party under the Contract must be in writing and in English addressed to the other party at their address identified in the Contract documents.
(a) The Contract is governed by the laws of Western Australia. The Customer and Lifestyle submit to the non-exclusive jurisdiction of the courts of Western Australia.
(b) Waiver of any right, power, authority, discretion or remedy arising upon a breach of or default under this agreement must be in writing and signed by the party granting the waiver.
(c) Nothing in the Contract shall constitute an agency, employment or partnership relationship between the parties or any of their respective employees, contractors, servants or agents, unless an agreement in writing provides otherwise.
(d) If any term or part of the Lifestyle Terms is found to be illegal or unenforceable, that part or term shall be deemed not to be part of the Lifestyle Terms and the remainder of these conditions shall continue in full force and effect.
In the Lifestyle Terms headings are for convenience only and do not affect the interpretation of the Lifestyle Terms and, unless the context otherwise requires:
(a) words importing the singular include the plural and the converse;
(b) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) an expression importing a natural person includes an individual, a firm, a body corporate, an unincorporated association and any government agency;
(d) a reference to legislation or to a provision of legislation includes any modification of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(e) a reference to a party to a document includes that party’s successors and permitted assigns;
(f) a reference to writing includes communication by electronic means such as email and facsimile which is capable of being read by the recipient of that communication; and
(g) the meaning of terms is not limited by specific examples introduced by expressions “including” or “for example”, or similar expressions.