TERMS AND CONDITIONS - Barry O'Keeffe (trading as Stone Made (ABN 88 496 131 490)

1. ACCEPTANCE

1.1 Parties: These Terms are between Barry O'Keeffe (trading as Stone Made (ABN 88 496 131 490), its successors and assignees (referred to as “we” and “us”) and you, the person, organisation or entity described in the Quote (referred to as “you”). These Terms apply to all Services provided by us to you.

1.2 Acceptance: You have requested the Services set out in the Quote. You accept these Terms by:

(a) signing and returning the Quote;

(b) confirming by email or verbally that you accept the Quote;

(d) instructing us to proceed with the Services; or

(e) making part or full payment for the Services.

1.3 You agree that these Terms form the agreement under which we will supply Services to you. Please read these Terms carefully. Please contact us if you have any questions. Purchasing Services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms.

Our Contact details:

Barry O'Keeffe (trading as Stone Made (ABN 88 496 131 490)

45 Kalang Road

ELANORA HEIGHTS NSW 2101

info@stonemade.com.au

1.4 Deposit: If the Quote indicates that we require a Deposit and/or Materials Fee, we will not commence performing the Services until you have paid the Deposit and/or Materials Fee.

1.5 Cancellation: If you cancel the Services after we have ordered the materials for the Services, you will be required to pay in full for the cost of the materials. If no Deposit and/or Materials Fee have been paid to cover these costs, you must pay us within 7 days of receipt of an invoice for that amount.

2. SERVICES

2.1 We agree to perform the Services with due care and skill.

2.2 The quality of construction will comply with:

(a) the Building Code of Australia, to the extent required under the Environmental Planning and Assessment Act 1979;

(b) all other relevant codes, standards and specifications that the work is required to comply with under any law; and

2.3 We will not be liable for failure to comply with the above work compliance clause 2.2 if the failure relates solely to:

(a) a design or specification prepared by you or someone on your behalf; and

(b) a design or specification required by you if we have advised you in writing that it goes against the work compliance clause 2.2.

2.4 We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.

2.5 We may provide the Services to you using our employees, contractors and third party providers, and they are included in these Terms.

2.6 Third parties who are not our employees or our direct contractors will be your responsibility. We are not responsible for the products or services provided by those third parties.

3. PRICE, INVOICING AND PAYMENT

3.1 You agree to pay us the amounts set out in our Quote, including any Deposit required. All amounts are stated in Australian dollars (AUD). All amounts exclude Australian GST (where applicable). Payment may be made by way of payment methods as set out in our Quote when purchasing our Services.

3.2 You agree to pay our Invoices by the payment date set out on the Invoice. If you do not pay by the payment date, we may cease to provide the Services to you until we receive payment.

3.3 We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.

3.4 If invoices are unpaid after the payment date, we have the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to us.

3.5 We reserve the right to report bad debts to independent credit data agencies.

3.6 You agree to pay the Call Out Fees.

4. VARIATIONS

4.1 If the Quote states that the Fees and Expenses are an estimate only, you acknowledge that the final Fees and Expenses may be more or less than the estimated amounts.

4.2 The Fee and Services can be varied by written agreement between us, including by email.

4.3 We may at any time, in writing, inform you of the need for us to perform a Variation.

4.4 If you request a Variation to the Services, we have discretion as to whether we make the Variation.

4.5 Variations will not invalidate these Terms or be regarded as a repudiation of these Terms by us.

4.6 If in our reasonable opinion a Variation requires additional time to perform the Services, then we will amend the term of this Agreement after consultation with you.

4.7 If we need to charge an additional fee for a Variation (Additional Fee), then we will provide a written quote for the Additional Fee to you within 2 Business Days of notice of the Variation and prior to commencing performance of the Variation. If:

(a) You accept the quote then these Terms are amended to incorporate the Variation and the Additional Fee but otherwise remains the same; or

(b) You do not accept the quote we may in our discretion terminate these Terms immediately.

4.8 If we are unable to accommodate the Variation, we may request that we be paid for Services performed to date and terminate these Terms.

5. YOUR OBLIGATIONS AND WARRANTIES

5.1 You warrant that:

(a) there are no legal restrictions preventing you from agreeing to these Terms;

(b) you will cooperate with us, and provide us with information that is reasonably necessary to enable us to perform the Services as requested from time to time, in a timely manner;

(d) you will not infringe any third party rights in working with us and receiving the Services;

(e) you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that the Parties will use all reasonable efforts to resolve your concerns;

(f) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;

(g) You will ensure that, if the Services are to be performed on your property, you are authorised to occupy those premises and obtain the Services;

(h) You will ensure that if the Services are to be performed on your property, that at all times the property is safe and that all facilities provided by you for the purposes of enabling the Services to be performed are also safe;

(i) You will ensure that we have free and unimpeded access to the place in which the Services are to take place and that you will do all things to ensure that we are not delayed by matters within your control;

(j) You accept that we can display a Stone Made site sign on site fencing at the front of the property.

(k) You accept that we have the right to impose stand down charges and recover additional costs incurred where work is delayed by reason not in our control and where we are unable to reasonably reschedule services;

(l) if applicable, you hold a valid ABN which has been advised to us;

(m) if applicable, you are registered for GST purposes; and

(n) you will not employ, canvass, solicit, entice, induce or attempt to employ our employees or contractors.

6. UNDERGROUND WORK

(a) Fees for underground work such as digging, excavation and demolition are additional and are set out as Expenses within the Quote.

(b) When we are engaged to undertake underground work, we may request that you obtain plans of underground pipes and cables on the property at least two Business Days before the proposed work on the property.

(c) Should you fail to provide us with the appropriate plans for the property when requested you will indemnify us from any claim for costs, expenses or losses from a third party for any damage to third party property, including the asset owner. This includes any damage to pipes.

(d) You agree and acknowledge that you are responsible for the costs incurred by us as a result of us striking ground that is harder to dig than normal in our absolute discretion.

7. Work Health & Safety

You agree and acknowledge that:

(a) Whilst works are being carried out the property is considered a work site and therefore must comply with all legislation and must follow the following conditions.

(b) An approximate age of the property must be advised to ascertain potential risk.

(c) Disclosure of the presence of asbestos, where known by you, within the work site must be made prior to the commencement of works.

(d) All work areas must be free of potential hazard to us and any of our representatives.

(e) Any representative of ours can refuse to complete the Services if they believe that the working environment is in breach of company policy and/or legislation.

8. CONFIDENTIAL INFORMATION

8.1 We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than where necessary, to third party suppliers, or as required by law); to use all reasonable endeavours to protect your Confidential Information from any unauthorised disclosure; and only to use your Confidential Information for the purpose for which it was disclosed by you, and not for any other purpose.

8.2 You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect our Confidential Information from any unauthorised disclosure; and only to use our Confidential Information for the purpose for which it was disclosed or provided by us to you and not for any other purpose.

8.3 These obligations do not apply to Confidential Information that:

(a) is authorised to be disclosed;

(b) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms;

(d) must be disclosed by law or by a regulatory authority including under subpoena.

8.4 This clause will survive the termination of these Terms.

9. FEEDBACK AND DISPUTE RESOLUTION

9.1 Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Services, please contact us.

9.2 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:

(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.

(b) If the Parties cannot agree how to resolve the dispute at that initial meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.

9.3 Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.

10. RETENTION OF TITLE

10.1 Title in any goods we supply to you does not pass to you until they have been paid for in full, even if we have installed them.

10.2 To the extent allowed by law, if you fail to make a due payment, we may enter the site or your premises and take reasonable action to remove the goods without us being liable to you for damage to the site, premises of the goods caused by such removal.

11. TERM AND TERMINATION

11.1 Either Party may terminate these Terms if there has been a material breach of these Terms, subject to following the dispute resolution procedure.

11.2 We may terminate these Terms immediately, at our sole discretion, if:

(a) you commit a non-remediable breach of these Terms;

(b) you commit a remediable breach of these Terms and do not remedy the breach within a reasonable time after receiving written notice of the breach;

(c) we consider that a request for the Services is inappropriate, improper or unlawful, e.g. using any of your tools or equipment, such as scaffolding, that we deem unsafe in our sole discretion;

(d) you fail to provide us with clear or timely instructions to enable us to provide the Services;

(e) we consider that our working relationship has broken down including a loss of confidence and trust;

(f) for any other reason outside our control which has the effect of compromising our ability to perform the Services within the required timeframe; or

(g) you fail to pay an invoice by the due date.

11.3 On termination of these Terms you agree that any Deposit or payments made are not refundable to you, and you are to pay for all Services provided prior to termination, including Services which have been performed and have not yet been invoiced to you.

11.4 On termination of these Terms, you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and/or Intellectual Property.

11.5 On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and/or Intellectual Property.

11.6 On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.

11.7 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.

12. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS

12.1 Service Standard: We will provide the Services with due care and skill, the Services will be fit for the purpose that we advertise, and we will supply the Services within a reasonable time.

12.2 ACL: Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (Statutory Rights).

12.3 Statutory Rights: Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for the Services is governed solely by the ACL and these Terms.

12.4 Warranties: Under s18B Home Building Act 1989 the following warranties are implied by the holder of a contractor licence, or a person required to hold a contractor licence, in every contract to do residential building work:

(a) work will be done with due care and skill and in accordance with the plans and specifications set out in the contract;

(b) all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new,

(d) the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time

(e) if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling,

(f) the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder’s or person’s skill and judgment.

Except for the aforementioned warranties and your Statutory Rights, we exclude all other express and implied warranties representations and guarantees and all material and work is provided to you without warranties, representations and guarantees of any kind.

12.5 Delay: Where the provision of Services depends on your information or response, we have no liability for a failure to perform the Services, where it is affected by your delay in response or supply of incomplete or incorrect information.

12.6 Referrals: We may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or their failure to advise or provide services.

12.7 Availability: To the extent permitted by law, we exclude liability for:

(a) the Services being unavailable; and

(b) any Claims for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation or any loss or damage relating to business interruption or otherwise, suffered by you or made against you, arising out of or in connection with your inability to access or use the Services or the late supply of Services, even if we were expressly advised of the likelihood of such loss or damage.

12.8 Disclaimers: To the extent permitted by law we disclaim all responsibility and liability for:

(a) any Efflorescence that occurs in new stonework;

(b) any imperfections in the stone. We source high quality materials, however due to stone being a natural product, matching existing stone can sometimes be difficult;

(d) any breakage in the stone. Natural fault lines in the stone, may cause breakage from time to time without notice;

(e) sandstone is a natural product and therefore subject to variations in colour, tone, shade and texture. Colour matching is at times very difficult, therefore you must expect slight variations;

(f) any damage due to exposure to the elements e.g. salt, wind, water, weather conditions etc.;

(g) pests such as ants and other pests which may damage mortar beds;

(h) naturally occurring damage, ageing and discolouration of stone;

(i) products or services you purchase from a third party, including work done prior to us performing remedial work and where we did not prepare the foundations involving concrete footings;

(j) any leaks caused by our penetration through the wall;

(k) any damage to grassed areas;

(l) any damage to pipes during excavation where you fail to provide us with plans; and

(m) any damage caused to your property other than due to our negligent act or omission.

12.9 Limitation: To the extent permitted by law, our total liability arising out of or in connection with the Services, however arising, including under contract, tort including negligence, in equity, under statute or otherwise, is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates. Our total liability to you for all damages in connection with the Services will not exceed the price paid by you under these Terms and pursuant to the Quote for the 12 month period prior to the act which gave rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made.

12.10 This clause will survive the termination of these Terms.

13. INDEMNITY

13.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:

(a) any information provided by you that is not accurate, up to date or complete or is misleading or a misrepresentation;

(b) your breach of these Terms;

(d) your breach of any law or third party rights; and

(e) any injury caused by your property (or access to the property) and/or your equipment being unsafe.

13.2 You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.

13.3 This clause will survive the termination of these Terms.

14. GENERAL

14.1 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988(Cth) and any other applicable legislation or privacy guidelines.

14.2 Publicity: You consent to us stating that we provided Services to you, including but not limited to mentioning you on our website and in our promotional material.

14.3 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.

14.4 GST: If and when applicable, GST payable on the Fee for the Services will be set out on our invoices. You agree to pay the GST amount at the same time as you pay the Fee.

14.5 Relationship of Parties: These Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.

14.6 Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).

14.7 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.

14.8 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control. This includes any restrictions caused by a global pandemic.

14.9 Notices: Any notice required or permitted to be given by either Party to the other under these Terms will be in writing addressed to the relevant address in the Quote. Any notice may be sent by standard post or email, and notices will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

14.10 Jurisdiction & Applicable Law: These terms are governed by the laws of New South Wales and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales.

14.11 Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between the Parties and supersede any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.

14.12 Special Conditions: The Special Conditions will prevail to the extent of any inconsistency with these Terms.

15. DEFINITIONS

15.1 Business Day means a day which is not a Saturday, Sunday or bank or public holiday in New South Wales, Australia.

15.2 Call Out Fees (if any) are set out in the Quote.

15.3 Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute, whether indirect, incidental, special, consequential and/or incidental, and whether involving a third party or a Party to the Terms or otherwise.

15.4 Confidential Information includes confidential information about you, your credit card or payment details, and the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, technology, and other information of either Party whether or not such information is reduced to a tangible form or marked in writing as "confidential".

15.5 Deposit (if any) set out in the Quote.

15.6 Expenses (if any) are set out in the Quote.

15.7 Fees are set out in the Quote.

15.8 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.

15.9 Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs, any corresponding property rights under the laws of any jurisdiction, discoveries, circuit layouts, trade names, trade secrets, secret processes, know-how, concepts, ideas, information, processes, data or formulae, business names, company names or internet domain names, and any Confidential Information.

15.10 Materials Fee is set out in the Quote.

15.11 Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).

15.12 Party and Parties means a party or parties to these Terms.

15.13 Quote means the Quote to which these Terms are attached.

15.14 Services are set out in the Quote.

15.15 Special Conditions means the special conditions, if any, detailed in these Terms and/or in the Quote.

15.16 Terms means these terms and conditions.

15.17 Variation means amended or additional services, including but not limited to changes to the Quote or Fees or varying the Services by:

(a) carrying out additional Services;

(b) omitting any part of the Services; or