TERMS OF SERVICE
Scope Kitchen and Bathrooms Pty Ltd (ACN 683 715 826)
Terms and Conditions of Sale
The Client’s attention is drawn to clause 22 in which Scope K+B limits and excludes its liability for defective Goods, failure to deliver or defective services.
1 Interpretation
In these terms:
(a) Affiliate means, in relation to a party, its directors, officers, employees, contractors, agents, representatives, any Related Party, Related Body Corporate and Associate (as defined in the Corporations Act 2001) and anyone acting for or on behalf of that party in any capacity.
(b) Client means any person or entity who buys Goods or orders Services from Scope K+B, and that person or entity’s Affiliates.
(c) Client Document means any document issued by the Client requesting or requiring Scope K+B to procced with the provision of Goods including but not limited to purchase orders, letters of intent, terms of sale, supply agreement or purchase agreement.
(d) Claim means a claim, action, proceeding, notice, litigation, investigation, judgment, liability or demand made against the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual or deferred whether based in contract, tort or statute and whether involving a third party or party to the Order.
(e) Copyright Act means the Copyright Act 1968.
(f) Goods means any goods or Services sold or negotiated to be sold by Scope K+B to the Client.
(g) GST has the meaning given to that term in the GST Law.
(h) GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(i) Insolvent means one or more of the following events occurring to the Client:
(i) an application is made, or a resolution is passed, to wind up the Client;
(ii) a liquidator, receiver, controller or administrator is appointed in respect of the Client or any of its assets;
(iii) the Client is unable to pay its debts when they become due and payable;
(iv) the Client commits any act of bankruptcy within the meaning of the Bankruptcy Act 1966 (Cth); or
(v) the Client dies, ceases to be of full legal capacity or becomes incapable of managing its own affairs for any reason.
(j) Loss means a damage, loss, cost, expense or liability incurred by the person concerned however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
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(k) MTO means any Goods that have been specifically ordered for a Client (whether locally or from overseas) or which is specifically manufactured for the Client or is not a stocked item.
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(l) Order means a contract between the Client and Scope K+B for the sale and purchase of Goods and/or Services as set out in the relevant quotation and incorporating these Terms.
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(m) PPSA means Personal Property Securities Act 2009 (Cth).
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(n) Scope K+B means either Scope Kitchen and Bathrooms Pty Ltd (ACN 683 715 826), or another affiliated entity trading as specified in the quotation and order confirmation.
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(o) Services means any services Scope K+B provides either as part of supplying the Goods or as a separate service, including but not limited to installation of the Goods, or any other installation, construction, and interior design services related to kitchen and bathroom projects, or such other services as outlined in the Order.
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(p) State means New South Wales, Australia.
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(q) Terms means unless the context otherwise requires, Scope K+B’s standard terms and conditions of sale (as may be changed from time to time by Scope K+B by notice) set out in this document.
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(r) Warranties mean any warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied.
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(s) Website means Scope K+B’s website accessible at www.scopekitchensandbathrooms.com.au.
2 Quotes, Acceptance and Application
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(a) All quotes made by Scope K+B are valid for 60 days, following which they cannot be accepted by the Client unless Scope K+B specifically agrees.
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(b) Scope K+B agrees to sell, and the Client agrees to purchase, the Goods or Services in accordance with the terms and conditions of these Terms.
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(c) These Terms apply to any sale of Goods or Services between Scope K+B and Client. Each time the Client places an order (including without limitation, by accepting a quote, making any payment, accepting delivery of the Goods or Services, or performing any of these Terms) the Client is taken to have accepted these Terms and entered into an Order with Scope K+B.
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(d) These Terms override any inconsistent terms in any Client Document and are taken to be incorporated into any Client Document.
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(e) These Terms may be varied from time to time by Scope K+B with variation effected by Scope K+B publishing amended Terms on the Website. The Terms as published on the Website, at the time of placing an order or part of an order will apply to such order. Scope K+B may choose, but will not be required, to notify the Client of the existence or content of any variations of these Terms by any means. Any such variations do not apply to existing Orders.
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(f) To the fullest extent permitted by law any prior representations, agreements and arrangements, including representations as to the suitability of the Goods and Services, and any descriptions, illustrations and material contained in any advertisement, website, catalogue, price list or brochure are excluded from, and do not form part of, the Order unless specifically stated in the Order to the contrary.
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(g) All specifications, drawings, and particulars of weight and dimensions of the Goods are approximate only. Unless the accuracy of such specifications, drawings, and particulars of weight and dimensions of the Goods has been specifically confirmed by Scope K+B in writing in respect of a particular order, the Client cannot claim against Scope K+B for any deviation in such specifications, drawings, or particulars of weight or dimensions.
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(h) Any request by the Client to cancel a contracted order must be made in writing. Scope K+B may, at its sole discretion, accept or reject the request and specify the terms and conditions and reasonable charges upon which such request may be agreed to.​​​​
3 Seller’s Quotations
​(a) Scope K+B, at its sole discretion, may provide quotations and measurements free of charge in advance of the Order being signed.​
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(b) Any quotation in relation to Goods or Services issued by Scope K+B is an estimate of the cost of the Goods and/or the delivery of the Services only and does not constitute an offer that is capable of acceptance by the Client unless expressly stated to the contrary in the quotation. Any quotation may be withdrawn or altered by Scope K+B without notice. Nothing in these Terms or the Order, or any verbal representation, shall oblige Scope K+B to honour any quotation that has been altered or withdrawn by Scope K+B.​
(c) Unless Scope K+B withdraws it, a quotation is valid for the period stated in it, or if no period is stated, for 60 days after the date of the quotation. Scope K+B is not required to honour any expired quotation. ​
(d) Price contained in any quotation is conditional upon supply of all quoted items and upon all the terms and conditions contained therein being included in the Order. Any variance in the quantities or request to include additional item or any failure to comply with the terms and conditions contained in the quotation will require Scope K+B to alter the quotation to account for any changes. ​
(e) All quotes are made on the basis that the work starts within six months of the quotation date. If the quote is accepted but the start date is delayed beyond the six month period for any or no reason, then Scope K+B has the right to amend the quote for any increased costs caused by the delay in commencement.​
(f) Client’s failure to comply with any preconditions contained in the quotation will result in revocation of the quotation. ​
(g) Client must keep the quotation confidential. Client must not share any part of the quotation, including, without limitation, pricing or product information, specifications, drawings or other technical information relating to the Goods with any third-parties without Scope K+B’s express prior written consent.​
(h) Scope K+B reserves the right to require the Client, and any directors, agents, representatives, employees, subcontractors or consultants to enter deed of confidentiality in respect to any quotation on terms satisfactory to Scope K+B.​
(i) Unless specified in the order or quotation as included in the price of the Goods, any specific packing and packing materials required by the Client are at the Client’s expense.
4 Descriptions and Specifications
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(a) The range of Goods and Services displayed on the Website may vary from printed catalogues. Photos and images on the Website and in printed material are for general illustration purposes only. The Client acknowledges that any information about Goods, their photos and images may differ from the actual Goods.
(b) All specifications, drawings, and particulars of weight and dimensions are approximate only (unless they expressly and unequivocally state otherwise). The Client cannot claim against Scope K+B for any deviation.
(c) The Client should not rely on any illustrations, specifications, drawings, and particulars of weight and dimensions for the purposes of assembling or installing the Goods unless such material expressly states it can be used for such purposes.
(d) Any indications of performance of the Goods are estimates only and the Client is not entitled to rely on those estimates, unless Scope K+B has given a specific guarantee of performance in the order or the quotation.
5 Variations
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No variations to any quotation or the Order will not be affected, processed or actioned until the full scope and value is agreed and documented in writing by the Client and Scope K+B.
6 Start Time
(a) Any start date or commencement date for the Services specified by Scope K+B in any quotation, Order, or other communication is an estimate only and does not constitute a contractual commitment.
(b) The actual commencement of the Services and each part of the Services is conditional upon and subject to:
(i) completion of any preconditions specified in the quotation or Order;
(ii) the Client satisfying all payment obligations required prior to commencement as set out in clause 13;
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(iii) where relevant to the Service (or part of them) receipt of all necessary third-party approvals, permits, and consents, including without limitation strata approvals, council approvals, building permits, and utility connections;
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(iv) where Services are to be provided on site, the site conditions specified in clause 19 being met to Scope K+B's satisfaction; and
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(v) any other matters specified in the quotation or Order as prerequisites to commencement.
(c) Where commencement of the Services is delayed due to any of the matters specified in clause 6(b) or other circumstances beyond Scope K+B's reasonable control, any completion date for the Services will be extended accordingly.
7 Delivery
(a) Any delivery time Scope K+B gives the Client for the Goods is only an estimate. Scope K+B is not liable to the Client for any loss or damage (including any consequential loss or damage) arising from late delivery. The Client must still accept and pay for the Goods even if Scope K+B delivers late.
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(b) Delivery times will be subject to an extension of time where the Client seeks alterations or additions in the works or the Goods or Services to be supplied, or if circumstances beyond the reasonable control of Scope K+B (including those specified in clause 27) occur.
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(c) In such an event Scope K+B will be entitled to seek an extension of the time for completion of the works or supply of Goods or Services. The parties will mutually agree to the period of extension, and any associated changes to the price.
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(d) Delivery of the Goods will be deemed to have taken place when:
(i) the Client takes possession of the Goods at Scope K+B’s address if the Goods are collected; or
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(ii) the Goods are delivered at the Client’s nominated address (if the Goods are delivered by Scope K+B or Scope K+B’s nominated carrier). Delivery to any person reasonably appearing to be an employee or agent of the Client will be deemed effective; or
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(iii) the Client’s nominated carrier takes possession of the Goods in which event the carrier will be deemed to be the Client’s agent.
(e) The Client’s nominated address will be the address specified in the Order, commercial account application form pertaining to the Client, or as otherwise agreed in writing by Scope K+B.
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(f) The Client must make all arrangements necessary to accept delivery of the Goods whenever they are tendered for delivery.
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(g) Where the Goods are delivered by Scope K+B or Scope K+B’s nominated representative the delivery area must be clean and cleared prior to delivery in accordance with the instructions provided in this regard. The Client must ensure adequate access is available via stairways, doors and lifts.
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(h) Scope K+B may deliver the Goods in instalments. Each instalment must be treated as a sale under a separate contract. If Scope K+B fails to deliver any instalment, the Client must still accept and pay for the remaining instalments. If the Client fails to pay for any instalment, Scope K+B may treat the default as a breach of contract relating to each other instalment.
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(i) Scope K+B will not be liable for any loss or damage or expense arising from failure by Scope K+B to deliver or assemble the Goods at a specified time, promptly or at all.
8 Acceptance of Goods and Services
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(a) The Client will inspect and check all Goods received and Services performed, and within 7 days of receipt notify Scope K+B in writing of any shortage in quantity, defect, incorrect specification, damage or Goods or the Services not in accordance with Client’s order. The Client is responsible for checking that Goods and the Services comply with those ordered prior to acceptance. After use or expiry of the time stated herein, to the maximum extent permitted by law, the Client will be deemed to have:​
(i) agreed each of the Goods are in good and marketable condition and free from defects or damage at delivery;
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(ii) agreed that the Goods are delivered in full and that there is no shortage;
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(iii) accepted each of the Goods received in a delivery from Scope K+B, and must pay for them in full despite the shortfall; and
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(iv) in the case of the Services, agreed that the Services have been performed with reasonable skill and care and in accordance with any instructions given.
(b) If the quantity of goods delivered is more than the amount the Client ordered, the Client must immediately inform Scope K+B in writing and Scope K+B is entitled to recover the excess from the Client at the cost of Scope K+B.
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(c) If the Client wishes to reject and/or return the Goods or reject the Services, the Client must notify Scope K+B within 7 days of delivery of the Goods or completion of the Services. Scope K+B will inspect the Goods and agree a return or replacement of the Goods or the Services provided that:​​
(i) Scope K+B is reasonably satisfied that the Goods are materially defective or not compliant with the quotation;
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(ii) the Goods are unused, unmarked, in a saleable condition, without any further damage and must include the original packaging, delivery document and invoice; and
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(iii) in the case of the Services, Scope K+B is reasonably satisfied that they were not performed with reasonable skill and care.
​(d) The Client acknowledges and agrees that minor or cosmetic defects in the Goods or Services do not constitute grounds for a claim or return.
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(e) Except where any MTO are not materially in accordance with the Client’s specifications, the Client acknowledges and agrees that any MTO may not be returned.
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(f) Scope K+B reserves the right to recover its costs where the returned Goods prove not to be valid for return or are not defective. Returned Goods must be returned to Scope K+B at an address agreed by Scope K+B.
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(g) All freight, handling and other charges in relation to returning Goods (other than defective or not ordered Goods) are the responsibility of the Client.
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(h) Subject to clause 22, the Client will be liable for a restocking fee on all Goods accepted for return. The restocking fee will not apply to Goods returned for being defective, damaged or for failing to comply with the order. The current restocking fee is 30% of the price of the Goods returned.
9 Assembly of Goods
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(a) Depending on the Order, Goods may be delivered to the Client in an assembled or unassembled form.
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(b) Where the Order requires Scope K+B to assemble the Goods on site as part of the Services, any date(s) that Scope K+B gives the Client for assembly of Goods is only an estimate. Scope K+B is not liable to the Client for any loss or damage (including any consequential loss or damage) arising from a delay in, or failure to assembly the Goods.
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(c) Scope K+B is not liable for any loss or damage (including any consequential loss or damage) to Goods that have been assembled by the Client, or re-configured by the Client following their assembly by Scope K+B.
10 Storage ​
If the Client is unable (whether through its own fault or not) or unwilling to either:
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(a) take delivery of the Goods (including providing to Scope K+B adequate delivery instructions); or
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(b) collect the Goods,
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(c) within 7 days of request by Scope K+B,
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Scope K+B may charge for storage. The Client must pay charges monthly at commercial rates. The Goods are to be stored at the Client's risk.
11 Price and Costs ​
(a) Unless Scope K+B otherwise agrees in writing, the price of the Goods and Services will be:
(i) the price stated in any applicable and valid quote; or
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(ii) in the absence of an applicable and valid quote, the price Scope K+B usually charges for the Goods and/or Services.
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(iii) Any price concession or discount Scope K+B provides to the Client is conditional on the Client’s full compliance with the Order.
​(b) Prices quoted are those ruling at the date of issue of quotation and are subject to adjustment (including a proportional adjustment for fixed costs and profit) for any variation in:
(i) the cost of labour, material or transport;
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(ii) exchange rates, customs duty, freight or insurance;
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(iii) suppliers' prices;
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(iv) the amount of work required to produce the Goods due to a variation in specification approved by the parties; and
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(v) any other charges affecting the cost of production.
(c) Scope K+B will provide a reasonable opportunity to the Client to consider an adjustment in clause 11(b) above, and the Client may elect to inform Scope K+B that it does not accept the adjusted price, in which case the order will be voided.
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(d) Any prices quoted apply only if all of the Goods or Services included in the quotation are bought. If the Client orders part only, Scope K+B may submit a revised quotation.
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(e) Unless otherwise specified, the prices quoted in any quotation do not include any allowances to make good existing defects to the site. Scope K+B can undertake Services of such kind at an additional charge to the Client.
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(f) If Scope K+B suspends the Services on any order due to the Client's instructions or lack of instructions, Scope K+B may increase the Order price to cover any extra expense or cost incurred (including a proportional adjustment for fixed costs and profit).
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(g) The price must be paid in Australian dollars. Payments remitted in foreign currency must include all related bank charges and currency conversion costs both on payment and receiving end.
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(h) The Client will not be entitled to set off against or deduct from the price of Goods or Services any sums owed or claimed to be owed to the Client by Scope K+B.
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(i) Where the Client disputes a portion of any invoice, the Client must provide Scope K+B within 30 days of the invoice date, a written notice of the disputed amounts, together with a statement of particulars of the dispute, including calculations with respect to any errors or inaccuracies claimed. Invoiced amounts not objected to in writing within 30 days of the invoice date will be deemed to be correctly charged and accepted by the Client and the Client will be deemed to have waived all claims against the invoice.
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(j) Notwithstanding that the Client objects to any invoiced item or amount within the stipulated time, the Client will be required to pay the invoice in full.
12 GST on Price
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(a) Unless otherwise stated, the price is GST exclusive. Any pending or future changes to GST, Government imposts or any other taxes have not been included in the price, and consequently will be added or subtracted as the case may be.
(b) In addition to the price for the Goods, the Client must pay to Scope K+B an amount equal to any GST Scope K+B must pay for any supply by Scope K+B under the Order or under any agreement for sale of Goods or Services.
(c) 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 (or the corresponding first part of it if Scope K+B agrees to the Client paying the price by instalments).
13 Payment and credit granting
(a) If the total value of the Order is less than $20,000.00:
(i) A deposit of 50% of the total Order value is required before Scope K+B commences the demolition stage of the Services, or such other stage as Scope K+B sees fit; and
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(ii) The remaining 50% of the Order value will be invoiced upon final completion, provided that no additional works requested by the Client have delayed the completion timeline.​​
(b) If the Order is valued over $20,000.00:
​​​(i) Home Building Compensation Fund (HBCF) cover is compulsory. Scope K+B will obtain a HCBF certificate on the Client’s behalf (and at the Client’s cost) before starting any work or taking any money under the Order;
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(ii) A deposit of 10% of the total Order amount, in addition to the applicable HCBF certificate charge, shall be invoiced once the HCBF certificate is received;
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(iii) 40% of the Order amount will be invoiced before the commencement of demolition. Payment must be received before Scope K+B will commence the demolition works;
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(iv) 40% of the Order amount will be invoiced upon fit-out of electrical and plumbing services;.
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(v) if the Client has requested, and Scope K+B has agreed, to any additional costs for extra works or services these will be charged separately and payment is due in advance for those works; and
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(vi) The final 10% of the Order amount (less any Design and Administration Fee paid under clause 11(b)(ii) above), plus any unpaid additional costs for extra works, is payable upon completion.​
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(c) In instances where significant additional works are required to provide the Services, such as unforeseen or hidden plumbing issues or slab reconstruction, Scope K+B shall raises these issues with the Client and quote for that additional works, and then separate invoices will be issued by Scope K+B once trade invoices are received.
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(d) If Goods are ordered without accompanying Services, then payment for Goods must be made in advance of delivery of the Goods.
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(e) Scope K+B may suspend delivery of the Goods or performance of the Services if the Client has failed to pay on time or has exceeded its credit limit.
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(f) The Client must pay any invoices:​
​​​​(i) in accordance with the payment terms set out in an applicable and valid quote;
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(ii) in the absence of an other payment terms on the quote, in within three days of invoice.
(g) Where Scope K+B grants credit approval to the Client, Scope K+B may require a deposit or pre-payment as a condition of delivery. Credit approval once granted may be withdrawn at any time.
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(h) Scope K+B may require immediate payment of all amounts outstanding (whether or not then due and payable):​
​​(i) if the Client does not comply with any one or more of its obligations under the Order;
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(ii) if Scope K+B considers that the creditworthiness of the Client has become unsatisfactory and withdraws the credit approval; or
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(iii) if one or more Insolvency Events occur.​
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(i) Time is of the essence in respect of payment of invoices.
14 Default
(a) If the Client or its Affiliates default in the payment of money:
​​(i) the Client or its Affiliates must pay Scope K+B:
(A) interest at the rate equivalent to 1.5% per month (calculated daily) on any amounts owing to it under the Order; and
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(B) all expenses including, without limitation, legal expenses on a full indemnity basis, and all debt collection agency costs incurred by Scope K+B in enforcing Scope K+B’s rights under these Terms; and/or
(ii) Scope K+B may in the notice state that, unless the default is remedied, all money owing under the Order which is not yet due for payment is now due. If the notice is not complied with then that money becomes due; and/or
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(iii) Scope K+B may suspend any further deliveries of the Goods to the Client and terminate any other agreement with the Client; and/or
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(iv) Scope K+B may reverse any rebates and discounts allowed to the Client; and/or
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(v) provide to a credit reporting agency details of the payment default; and/or
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(vi) exercise any other rights at law including pursuant to the PPSA; and/or
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(vii) Scope K+B may terminate the Order.
(b) A certificate of debt signed by the representative of Scope K+B will be prima facie evidence and proof of money owing by the Client to Scope K+B at the time of the certificate.
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(c) If Scope K+B terminates the Order in accordance with this clause 14, Scope K+B may, without prejudice to any other right or remedy available to Scope K+B suspend any further deliveries of the Goods to the Client and sell or otherwise dispose of the Goods and apply the proceeds of the sale to the overdue amount.
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(d) An administration fee of $55 including GST plus associated bank charges may be applied to cheque payments returned unpaid by bank for any reason. This fee may increase without notice to cover Scope K+B’s expenses and costs.
15 Cancellation
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15.1 No cancellation by Client:
(a) The Client is not permitted to cancel an Order except with Scope K+B’s written consent (on a case by case basis) and subject to any conditions that Scope K+B may specify in this regard.
(b) If the Client purports to cancel an Order, the Client must fully indemnify Scope K+B for any loss, damage, cost or expense (including loss of profits) expected by Scope K+B.
15.2 Termination by Client:
(a) The Client may terminate the Order in either of the following events:
(i) Scope K+B materially breaches any material term of the Order and fails to remedy such breach to the reasonable satisfaction of the Client within 21 days of notice from the Client specifying the breach; and
(ii) Scope K+B is Insolvent.
15.3 Termination by Scope K+B:
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(a) Scope K+B may terminate the Order in either of the following events:
(i) The Client breaches any term of the Order and fails to remedy such breach within 7 days;
(ii) if Scope K+B reasonably considers that it may be unable to satisfy the order within a reasonable time; or
(iii) if Goods remain uncollected or the Client is unable or unwilling to take delivery of the Goods after a period of 14 days from notification to the Client that they are ready for collection/delivery;
(iv) the Client is, or reasonably suspected by Scope K+B to be, Insolvent.
15.4 Consequences of termination:
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(a) On termination of an Order for any reason:
(i) any invoiced fee or charge becomes due for payment immediately;
(ii) Scope K+B is entitled to recover possession (including by entering the Client’s premises) of any delivered Goods whose title has not yet passed to the Client in accordance with the Order; and
(iii) Scope K+B shall invoice, and the Client shall immediately pay, a fair value for any Services performed by Scope K+B but not yet invoiced for.
15.5 No claim:​
The Client has no claim against Scope K+B for any damage, loss, cost or expense arising from cancellation under this clause 15.
16 PPSR
​(a) The Client agrees that each Order constitutes a security agreement for the purposes of the PPSA and creates a security interest (as defined in the PPSA) in all Goods previously supplied by Scope K+B to the Client and all future Goods supplied to the Client, which the Client charges to secure all amounts owed to Scope K+B whatsoever.
(b) The Client agrees to do all such things, including providing any necessary consents, signing all necessary documents, and providing any further information, as reasonably required by Scope K+B from time to time, to enable Scope K+B to register a perfected security interest in respect of all Goods supplied by Scope K+B to the Client, or exercise any rights in connection with any security interest.
(c) The Client acknowledges that it will be liable for the costs and expenses incurred by Scope K+B in relation to the registration, maintenance, enforcement or discharge of any security interest, and must make payment to Scope K+B for any such reasonable costs incurred by Scope K+B on demand by Scope K+B.
(d) The Client acknowledges that it will assist Scope K+B, to the extent required, in relation to the registration, maintenance, enforcement or discharge of any security interest.
(e) The Client agrees not to register, or permit to be registered, a security agreement in relation to the Goods in favour of a third party without the prior written consent of Scope K+B.
(f) The Client acknowledges that it will not, without prior written notice to Scope K+B, change its corporate or trading name or amend any registration documentation, or act in any manner, which would adversely impact on Scope K+B’s registered security interest.
(g) To the extent permissible, the Client agrees to waive its rights to receive notices under the PPSA.
17 Title and Risk
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(a) Until the Client has paid all amounts owing by the Client to Scope K+B (and all cheques or negotiable instruments have been paid) the title and property in the Goods does not pass to the Client.
(b) Until all amounts owed to Scope K+B are paid, the Client:
(i) must keep the Goods separate from the goods of the Client and third parties and identified as Scope K+B’s goods;
(ii) in respect of any Goods that are used in construction or mixed with other materials, the Client will record the value of goods so consumed and, upon any sale of the finished product remit the proceeds of the sale to Scope K+B.
(c) The Client irrevocably authorises Scope K+B to enter any premises where the Goods are kept, and to use the name of the Client and to act on its behalf, if necessary, to recover possession of the Goods.
(d) If the Client does not specify what Goods each payment is made for, the payments will be treated in the following order:
(i) first, to the Goods that are no longer in the Client’s possession;
(ii) then, to whatever Goods that are still in the Client’s possession, at Scope K+B’s absolute election.
(e) Subject to clause 8, risk in the Goods passes to the Client when delivery occurs pursuant to clause 7 or when the Goods are in the Client’s custody, whichever is first.
18 Novation
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The Client must not assign, novate, or otherwise transfer its rights or obligations under an Order, in whole or in part, without the prior written consent of Scope K+B, which consent may be withheld at Scope K+B’s sole discretion. Any purported assignment, novation, or transfer without such consent will be void and of no effect. Scope K+B reserves the right to assign, novate, or transfer its rights or obligations under the Order without the consent of the Client.
19 Works and Site Conditions
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(a) This clause 19 applies where Scope K+B is required to provide Services on site, including without limitation to any installation or assembly of the Goods on site.
(b) Scope K+B will not commence the Services pursuant to any Order, unless the site conditions specified by Scope K+B have been met to Scope K+B’s satisfaction.
(c) Unless otherwise agreed, the Client acknowledges the following:
(i) Scope K+B has allowed in the price for a 5-day week / 36-hour week, working normal business hours;
(ii) Scope K+B has quoted on the assumption that the site will be safe, secure, and in compliance with all applicable industry and health and safety standards. Scope K+B has not provisioned for any costs relating to industrial or safety issues that are not of Scope K+B’s making;
(iii) the quotation does not include any provision for any cost or expense that Scope K+B may be required to incur to remove, handle, or treat any toxic, hazardous or carcinogenic materials that may be found upon or within the site. Additional charge will apply for any remediation required in this regard; and
(iv) Client will ensure strict and uninterrupted continuity of works, and single delivery of Goods and materials.
(d) Where Scope K+B is required to provide the Services to the derogation of the conditions specified in this clause 19, then additional costs will apply and will be recoverable from the Client.
(e) The Client will be responsible for obtaining all permits and approvals that may be required by Scope K+B to provide the Services, including to produce, deliver, unload, store, erect, install, undertake and inspect the work at the site, and for payment of all fees in relation thereto.
(f) The Client acknowledges and agrees that the nature of the work undertaken by Scope K+B will create dust. The Client will be responsible to protect any dust free equipment stored or situated within the area where the work is being carried out, or where dust may infiltrate.
(g) Unless otherwise specified, the prices quoted in a quotation require Scope K+B to only remove rubbish or materials generated from its works and to clean any chalk or similar marks on glass put or caused in course of trade.
(h) Unless specifically stated in an Order, the Client will make available adequate supply of potable water, electric power and lighting, toilet and hoisting facilities free of charge at the site.
(i) Once Scope K+B achieves completion of the Services in accordance with the Order, the Client will be responsible for adequate protection of all works performed and executed and Goods supplied at no expense to Scope K+B.
(j) Scope K+B will not be required to rectify or remedy any damage done to or inflicted by others upon any works undertaken or Goods supplied by Scope K+B. Additional charge will apply for any remediation required in this regard.
20 Prolongation Costs
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(a) Scope K+B is entitled to receive prolongation costs in the event of any delays to the provision of the Services which are beyond the reasonable control of Scope K+B including, without limitation, industrial relations issues, latent conditions, adverse weather conditions, delays by others including delays in shipping, delays by customs in releasing goods, delays in delivery by any of Scope K+B’s suppliers and other instances specified in clause 27.
(b) The prolongation costs will include delay costs (in terms of daily site costs, labour rates etc) and storage costs (both pre and post access).
(c) The value of any prolongation costs will be identified in advance by the Client and Scope K+B and will be included in the Order.
21 Acceleration Costs
(a) Scope K+B cannot promise that it will accelerate the building process or any aspect of the delivery and performance of the Services on request of the Client. Scope K+B is under no obligation to expedite or accelerate the completion of any works, and any such acceleration will be solely at Scope K+B’s discretion and subject to agreement on additional terms, including any costs associated with such acceleration.
(b) Scope K+B is entitled to receive acceleration costs where, notwithstanding, the delay in performance of the Services, the date for completion agreed by the parties and specified in the Order is not extended accordingly. Scope K+B will be entitled to recover in full any additional costs and expenses incurred by Scope K+B including towards deploying extra resources to achieve the original completion date.
22 Warranty, Liability and Indemnity
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(a) Scope K+B warrants that the Services will be performed with reasonable skill and care.
(b) Scope K+B warrants that all supplied Goods comply with applicable Australian standards.
(c) In respect of any kitchen cabinet Goods manufactured by Scope K+B, Scope K+B will provide a 7 year product warranty. This warranty is provided on the condition that the Goods are used in accordance with their intended purpose and maintained in accordance with any provided guidelines. The warranty does not cover damage or defects arising from misuse, neglect, unauthorised modification or repair, or external factors such as accidents or natural disasters. The Client must notify Scope K+B of any warranty claim within 30 days of becoming aware of the issue, and Scope K+B reserves the right to inspect the Goods before processing any warranty claims.
(d) In respect of any Goods not manufactured by Scope K+B or components thereof, the original manufacturer’s warranty will apply. Scope K+B will use its reasonable endeavours to make available to the Client the benefit of any guarantee or warranty given by the manufacturer to Scope K+B in respect of any Goods not manufactured by Scope K+B. Where a third party manufacturer warranty applies, the Client agrees to comply with any applicable warranty terms and conditions, to the extent that they contain additional warranty requirements.
(e) To the maximum extent permitted by law, Scope K+B excludes all Warranties except for those:
(i) expressly stated in these Terms or in a warranty card provided together with the relevant Good; and
(ii) that cannot be excluded by law.
(f) To the extent that any applicable law restricts Scope K+B’s right to exclude Warranties under these Terms, the Order must be read subject to those provisions and nothing in these Terms is intended to alter or restrict the operation of such provisions. If those statutory provisions apply, Scope K+B’s liability is limited in the following manner:
(i) in the case of Goods:
(A) the replacement of the Goods or the supply of equivalent Goods;
(B) the repair of the Goods;
(C) the payment of the costs of replacing the Goods or of acquiring equivalent Goods; or
(D) the payment of the cost of having the Goods repaired; and
(ii) in the case of the Services:
(A) the supplying of the Services again; or
(B) the payment of the cost of having the Services supplied again.
(g) To the maximum extent permitted by applicable law and subject to clause 22(i), neither party will have any liability in connection with the Order for any indirect, consequential, special, incidental, or punitive damages, or any direct lost revenues, profits, savings, or goodwill.
(h) Subject to clause 22(i) each party's maximum aggregate liability for damages in connection with the Order is limited to the price of the Goods.
(i) Scope K+B excludes responsibility for (including under any product warranty given) any liability, loss, damage, cost or expense directly or indirectly incurred or suffered by Scope K+B caused by or contributed to by any of the following:
(i) normal wear and tear or the gradual reduction in operating performance of the Goods having regard to the age of the Goods and the nature and frequency of use of the Goods;
(ii) repair or modification of the Goods carried out:
(A) without the proper written consent of Scope K+B; or
(B) by a person other than Scope K+B or its agent;
(iii) an accident, abuse, misuse, mechanical or electrical overload, abrasion, corrosion, incorrect installation, failure to perform required preventative maintenance, neglect of a person other than of the Company, including any wilful, negligent or inappropriate act or omission of a person other than of the Company which occurs during transportation of Goods, the loading and/or unloading of Goods, installation of Goods, or moving of Goods;
(iv) Scope K+B complying with any instruction of the Client about the Goods or services;
(v) any defect in any moulds or other materials provided by or on behalf of the Client;
(vi) the Client's failure to:
(A) adequately provide or display safety markings or safety information on or with the Goods;
(B) comply with any law about the Goods or their use (for example, their sale, marketing, labelling or marking);
(C) take any reasonable precaution to bring to the attention of any potential users of the Goods any dangers associated with Goods;
(D) take any reasonable precaution to detect any matters in relation to which Scope K+B may become liable in any way;
(vii) the Client making any statement about the Goods (for example, about their performance or characteristics) without Scope K+B's approval;
(viii) the use or operation of the Goods by the Client, including use of any accessories not manufactured or approved by Scope K+B; and
(ix) any negligence or breach of duty by the Client or any breach by the Client of these terms.
(j) Nothing in the Terms excludes or limits either party's liability for:
(i) its fraud or fraudulent misrepresentation;
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(ii) its infringement of the other party's Intellectual Property Rights;
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(iii) its payment obligations under the Terms; or
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(iv) matters for which liability cannot be excluded or limited under applicable law.
23 Intellectual Property Rights
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(a) The Client must not do anything which breaches or otherwise interferes with Scope K+B’s intellectual property rights or those of any third-party licensors. The Client may not distribute, reproduce, publish, alter, modify or create derivative works from the website content without Scope K+B’s prior written permission or that of the relevant third-party licensor or exploit such content for commercial benefit.
(b) The Client acknowledges and agrees that damages may not be an adequate remedy for a breach of this clause 23 and that equitable or injunctive relief may be necessary.
(c) Any moulds or materials provided by the Client to Scope K+B for the provision of Scope K+B belong to the Client. The Client must collect any moulds or other materials provided within 30 days of the Services being completed. If the Client fails to collect in this period then Scope K+B is granted the worldwide, royalty free and irrevocable right to: (a) use the moulds for its own production purposes; (b) replicate the moulds; (c) provide manufacturing services to other customers using the moulds; and (d) allow its customers to use the manufactured products for their own purposes.
24 Engagement of Subcontractors
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(Scope K+B will be entitled to engage subcontractors and suppliers to perform any Services under the Order on such terms as Scope K+B deems fit.
25 Privacy Consent
(a) Scope K+B will handle personal information of the Client in accordance with Scope K+B’s privacy policy available on the Website. The privacy policy constitutes part of these Terms and the Client is deemed to accept the privacy policy.
(b) The Client acknowledges and agrees that Scope K+B may give information to third parties about the Client, its guarantors, directors or proprietors including, without limitation, for the following purposes:
(i) to obtain a consumer credit report about the Client, and any guarantor, director or proprietor of the Client;
(ii) to allow the credit reporting agency to create or maintain a credit information file containing information about the Client, and any guarantor, director or proprietor of the Client;
(iii) for registration on the register maintained under PPSA or other public records or registers;
(iv) to obtain commercial credit information about the Client, and any guarantor, director or proprietor of the Client from a credit reporting agency; and
(v) to share it with a debt collection agency or any other person for the purposes of enforcing Scope K+B’s rights under these Terms.
(c) The Client acknowledges that Scope K+B may send the Client direct marketing communications and information about its goods and services. This may take the form of emails, SMS, mail or other forms of communication, in accordance with applicable laws. The Client may opt out of receiving marketing materials from Scope K+B by contacting Scope K+B by using the opt-out facilities provided (e.g. an unsubscribe link).
26 Online Store
(a) Any Client accessing and using the Website must:
(i) strictly comply with these Terms and any policy displayed on the Website;
(ii) not breach any law (including international law) which may apply in respect of the Client’s use of the Website;
(iii) not conduct vulnerability tests or scans on the Website or attempt to make unauthorised modifications to the Website;
(iv) not interfere with the proper working of the Website or any activities conducted via the Website including by using any automated or manual software or process to “crawl’’, ‘’spider’’ or engage in similar conduct in relation to the Website;
(v) except to the extent the Copyright Act allows the Client to do so, not reverse engineer or otherwise seek to obtain any source code forming part of the Website.
27 Force Majeure
(a) Scope K+B is not liable for failure to comply with these Terms, any Order or an agreement for sale of Goods if the failure (directly or indirectly) arises out of any circumstances which are not within Scope K+B's reasonable control. If such circumstances occur, Scope K+B may delay or cancel delivery of the Goods or reduce the quantity to be delivered.
(b) The circumstances are taken to be beyond Scope K+B's reasonable control includes, without limitation, strikes, lock outs, pandemic, epidemic, any government ordered shut-downs, accidents, war, fire, flood, explosion, shortage of power, breakdown of plant or machinery, shortage of raw materials from normal source of supply, stoppage of means of transportation following an order of government, act of God or any order or direction of any local, state or federal government, government authority or instrumentality.
(c) Scope K+B is not obliged to remedy such circumstances. Scope K+B is especially not obliged to settle any strike, lock out or any other kind of labour dispute.
28 General
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(a) A notice, consent or other communication under these Terms is only effective if it is in writing, signed and either left at the addressee's address or sent to the addressee by mail, email or fax. If it is sent by mail, it is taken to have been received 3 working days after it is posted. Notices sent by email or fax are taken to be read on the day they are received, unless they are received after 5 PM or not on a business day in the State, in which case they are deemed to be received on the next business day in the State. A person's address, email and fax number are those set out in the quotation. Scope K+B may send a notice to the Client's last known address.
(b) A right of Scope K+B may only be waived in writing, signed by Scope K+B. No other conduct of Scope K+B (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right. A waiver of a right by Scope K+B on one or more occasions does not operate as a waiver of that right if it arises again. The exercise of a right by Scope K+B does not prevent any further exercise of that right or of any other right.
(c) An Order constitutes the entire agreement between the parties to the exclusion of all other agreements. Neither party relies on any prior representation by the other party, including any innocent or negligent misrepresentation.
(d) An Order is governed by the law in force in the State. Each party submits to the exclusive jurisdiction of the courts exercising jurisdiction in State, and any court that may hear appeals from any of those courts, for any proceedings in connection with an Order, and waives any right it might have to claim that those courts are an inconvenient forum.
(e) The Client agrees that Scope K+B is entitled to recover any monies owed to it by the Client or its Affiliates by setting off such amounts (together with interest and costs of collection) against any sum owed to the Client or its Affiliates by Scope K+B.
(f) Any right that Scope K+B may have under an Order is in addition to, and does not replace or limit, any other right that Scope K+B may have.
(g) Any provision of an Order which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these terms enforceable, unless this would materially change the intended effect of the Order.
(h) The Client must not assign its rights and/or its obligations under an Order without Scope K+B’s prior written consent, which will not be unreasonably withheld.