This Document, together with the Agreement (hereafter collectively called the Agreement) creates a binding contract to establish the Terms and Conditions under which Works are provided and to govern the relationship between the Parties.
Repair my house (hereafter referred to as the ‘Service provider’). A company incorporated in Melbourne, Victoria. VBA registration number of DB-M 28801 & DB-L 28802 and The Person who, after receiving an Agreement from the Service provider requests that Works are provided (hereafter referred to as the ‘Client’).
Definitions and interpretations
Within this Agreement the following words shall have the given meaning
‘Domestic Client’ means a Client who is an individual, not acting in the capacity of a business that is having Works carried out on their residential property. ‘Goods’ means any item, materials, product, part or component (including replacement parts) ‘Person’ means a natural person, corporate body, company, partnership, firm, association, organization, business trust, or society. ‘Personnel’ means all employees organised by the Service provider, consultants, agents, sub-contractors, tradesmen, engineers and/or any other Person employed or provided by the Service provider. ‘Parties’ means both the Service provider and Client. ‘Service(s)’ means work carried out by Service provider or Personnel. ‘Termination’ means the ending of an Agreement. ‘Agreement’ means any type of written Agreement, quotation, contractor correspondence (may include Agreement via text message, Apps or email). ‘Working day’ means 8am to 4pm Monday to Friday (not including public holidays or rostered days off)
‘Works’ means the Service(s), Products or Materials collectively.
1. These Terms and Conditions shall be implied into all Agreements for the Service provider to supply goods and service(s) to the Client.
2. Pre-contractual statements or information given by the Service provider or the Client shall not in itself create an Agreement or obligation, however any statement or information which is relied on when providing a quotation or deciding whether to enter into this Agreement shall be incorporated into the Agreement if an Agreement is subsequently entered into.
3. The Agreement will begin and become binding when;
a) The Client has requested an Agreement for some Works.
b) The Service provider has provided an Agreement for the Works (this constitutes an invitation to treat).
c) The Client has made a request for the Service provider to provide the Works stated in the Agreement.
d) Both Parties have agreed to sign the Agreement (Acceptance).
4. The Agreement may be for
a) Scheduled servicing, repairs, maintenance, new homes or improvements;
b) Emergency or urgent repairs;
c) Ongoing or regular maintenance;
5. The Agreement can only be amended or varied.
a) by mutual consent;
b) to comply with Laws, regulations, codes or standards;
c) to comply with court orders;
d) to correct any errors.
6.Both Parties acknowledge and accept that the Agreement is subject to consumer protection rights, including but not limited to right to prescribed information; rights for cancellations and refunds; rights in respect of services being delivered to satisfactory standards; and warranties and guarantees that any goods provided shall be fit for purpose, as described and without fault or defect.
7.The Agreement and its obligations cannot be transferred or novated without the written consent of the Service provider.
8. Upon the request of the Client, the Service provider may, but is not obliged to provide a quotation
to supply work.
9. The Service provider may or may not need to visit the premises to assess the works before a quotation can be provided.
10. If In the event, that a visit or assessment is not possible (for example an emergency or remote location) then the Service provider may offer a non-binding estimate of costs based on the information provided by the Client
11. The Service provider may advise the Client with determining what service(s) or goods may be appropriate, but any final decisions as to what service(s) or goods are required shall be solely of the Clients.
12. In circumstances where a fault or cause cannot be established, identified or assessed without significant time or effort then the Service provider may charge for any investigatory or assessment work providing such costs are agreed before the chargeable investigatory or assessment work begins.
13. All Agreements shall be valid for a period of 28 days after the date of issue unless otherwise agreed, where the
Client does not accept an Agreement or enter into an Agreement for any service(s) within such period, it shall be deemed to have no binding effect and no Agreement is entered into.
14. An Agreement shall become binding when an Agreement has been signed by both Parties, both Parties may vary, amend or withdraw from the agreement or any of its obligations at any time before any such Agreement has been signed.
15. It is acknowledged that the Agreement contains certain elements which may be varied by the Service provider even though the Agreement has been accepted by both Parties, if at the time the Agreement was provided or signed –
a) It was not possible to assess or ascertain the full extent of the Works or the number of man-hours or the cause of an issue or a requirement for replacement parts;
b) Inaccurate or false information was provided by the Client;
c) There are additional issues or requirements that were foreseen or unforeseen (Termite/Pest infestation, Water Damage/Rot, Hidden Asbestos and other Dangerous materials, Underground rock, Underground service(s) pipes and all other “Mains works” being Electrical, Plumbing or building related) these will incur additional costs
d) To correct a typographical, clerical or other error or omission.
16. Where an Agreement includes a time frame or scheduled date for service(s) to commence, such will always be considered to be an estimate; time is not of essence to this Agreement.
17. An Agreement may contain
a) The name and address of both Parties;
b) The service(s) and goods to be provided.
c) Any estimated time frame or deadline.
d) The cost of any additional service(s) (which may be estimated).
e) The Terms of payment.
18. The Client may request for additional Works to be carried out with in an Agreement by
a) indicating which goods and service(s) are required.
19. Upon receiving a request to undertake any service(s), the Client should check all details within the Agreement are correct and inform the Service provider of any errors or inaccuracies. If no such notice is given within 3 Working Days of any service(s)commencing, or when the Works begin if sooner, then the Agreement provided by the Service provider shall be Deemed to be error free.
20. Where an Agreement is entered into, there is a five-business day ‘Cooling Off Period’ under the Domestic Building Contracts Act 1995, which shall commence when an Agreement is supplied by the Service provider to the Client, and end after five business days.
21. During the Cooling Off Period
a) The Service provider is prohibited from providing or commencing Works during the Cooling Off Period except where;
ii) The Works are for emergency or urgent repairs or maintenance;
iii) the Client expressly requests that the Works are carried out within the Cooling Off Period by Verbally agreeing or signing a waiver for the right to cancel (may be stated on the Agreement) or otherwise expressing their intention to waiver the Right to Cancel in writing.
b) the Client may have the right to cancel this Agreement within the five-day cooling off period and obtain a full refund of all monies paid less $100.00 AUD providing the Service provider has not outlaid any monies(s) for materials or any other contributing service(s) in respect of the Agreement. If the Service provider has outlaid any monies(s) then the Service provider shall provide the Client with proof (paid receipts/invoices) or any other supporting evidence of expenses paid upon request. In the interests of clarity, the right to cancel shall not apply
ii) Works for emergency or urgent repairs or maintenance;
iii) where an Agreement is provided, and both the Service provider and Client agree for work(s) to commence within the five-day cooling off period date, whereupon the Client has accepted the Agreement or any of the Service provider’s terms of Agreement
iv) To any non-standard Goods that are Purchased or manufactured to meet the Client’s specific requirements. In any event, any above-mentioned non-standard goods purchased or manufactured shall be paid for by the Client in full including any other incorporated cost(s).
22. Where the right to cancel exists and the Client wishes to exercise that right, the Client must inform the Service provider within the five day Cooling Off Period by written notice containing a clear and concise statement. Any written notices may be sent via post, email and any other online systems provided by the Service provider. Any written notices sent by post will only be valid if at racking number is provided.
23. Within five days of the Service provider receiving a valid cancellation notice the Client will be reimbursed all money paid in accordance with in section (21.b) using the same method with which the payment was made.
24. f the Client wishes to cancel the Agreement within the five day Cooling Off Period; after the Client requested that the Works commence (wavering the right to cool off), and service(s)where not completed;
Any payments outlaid by the Service provider that exceed payments paid in advance by the Client. The Client will then be liable for any outstanding costs within 7 business days after receiving the notice of cancelation. The Service provider will be entitled to charge for any goods or service(s) provided before the notice of cancelation was received. If any payments were made by the Client to the Service provider that are greater than the Service(s) providers entitled charges, a refund of the balance shall be issued to the Client within 7 business days after receiving the Client’s notice of cancelation.
25. The right to cancel will be lost when Works are completed or after the five day Cooling off period has lapsed.
26. The Works provided under this Agreement shall be for goods and service(s)
27. The Service(s) provider shall provide his Personnel with all materials and equipment required to perform all service(s) within the Agreement. and All goods requested by or agreed with the Client.
28. If during a health and safety risk assessment, or at any time whilst Service(s) are being provided, a risk to health and safety is discovered (i.e. Asbestos) that cannot be eliminated, mitigated or managed to a Work Safe acceptable level, the Service provider may withdraw his Personnel from the premises, or withdraw all Personnel from completing service(s) until such risk has been eliminated or becomes manageable.
29. Where the service(s) includes Goods, all Goods shall comply with any standards or specifications stated by the manufacturer. In the case that Second hand, refurbished, or ex display goods are used, this shall be stated in the Agreement.
30. The Service(s) provider may delay ordering Goods that are required or needed to complete service(s) until payment is received by the Client.
32. Where the Goods are supplied which are different to specifications or manufacturer stated by the Client the Service provider warrants the Goods supplied shall not materially affect the quality or performance.
33. The Client must ensure, that all warnings, labels, instruction manuals and other information provided with any goods (appliances, fixtures or fittings) is observed and adhered to, as any damage caused by misuse or negligence is the sole responsibility of the Client.
34. The Service provider
a) shall use reasonable skill and care in performing the Works;
b) shall provide any Works in full compliance with all applicable Laws and Regulations.
c) shall provide all Personnel, materials and equipment required or necessary to complete the Works and fulfil the contractual obligations;
d) shall ensure all Personnel have the knowledge and qualifications that are necessary and required to perform the works
e) shall carry out the Works in a manner that eliminates any risk to health and safety.
f) shall inform the Client of any event, occurrence or situation that arises during the Works that was unforeseen or foreseen when the Agreement was entered into, that will or has the potential to affect any obligation or impede the ability to provide the Works in a timely manner, in order to rectify the issue and determine a suitable solution that can be sanctioned.
g) shall hold and maintain all insurances required by Law.
h) may subcontract any of its obligations under the Agreement to any third party, however the Service Provider shall remain liable to the Client for the subcontracted obligations as if they were provided by the Service providers themselves.
35. The Client
a) shall keep the Service provider up to date and must inform the Service provider of any changes to the information already provided;
b) shall be responsible for the service(s) and behaviour of their own third party Personnel organised on their behalf, and not interfere with the Personnel of repair my house.
c) shall arrange and provide access to the premises or site where the Works are to be to be performed.
d) shall clear the area where the Works are to be performed of all personal items.
e) shall disclose any service(s) information with any third party that may affect, limit or restrict the Service providers ability or right to perform the Works.
f) Warrants to having the authority and capacity to appoint the Service provider, to perform any service(s) and to having the means and resources to ensure that the Service provider is paid for the service(s)provided.
Fees and Charges
36. In consideration for providing the service(s), the Service provider shall be entitled to charge, and the Client obliged to pay all fees and charges which become due under this Agreement within 24 hours of any service(s) being completed.
37. The Fees may be –
a) an hourly rate – where the length of time taken to provide the service(s) shall be recorded and charged accordingly, plus the cost of any Materials or Goods.
b) a fixed price – where Work carried out at an agreed price which includes the costs of Goods or Materials.
c) Periodic payments where Service(s) are to be provided on a regular, periodic or ongoing basis, plus the cost of any Goods or Materials provided during the Agreement.
d) Any additional fees which are not known at the time an Agreement is provided which may include, but not limited to
The cost of any replacement parts, Goods or Materials;
ii) Travel time where the replacement parts, Goods or Materials must be collected by the Personnel.
iii) Additional work that is necessary to achieve a desired outcome, but the additional work is not discovered until the service(s) have commenced;
iv) Any third-party fees and charges, including legal fees and court costs that are or become necessary to enforce the terms and conditions of this Agreement;
v) any other arrangement as agreed between the Parties.
38. Fees may become due in advance of any Works commencing; or in instalments or periodic payments; or up on completion of the Works; or any combination or other arrangements which the Parties wish to make,
39. If in the event, that any fee or charge is not paid within a specified date(stated) or within 24 hours after service(s)have been complete (not stated) the Service(s) provider may –
a) Withhold or suspend providing the Works.
b) Cancel an order for Goods that have not been delivered;
c) Interest charge at 8% of the total amount to be paid per week, in addition to all agreement fees.
d) Charge a fee of any additional costs incurred in managing or recovering the fees due.
40. This Agreement may be Terminated
a) Upon completion of a specific task, project, service(s) or assignment stated within an Agreement.
b) Upon a fixed or minimum period expiring.
c) By the Client if exercising a Right to Cancel where such right exists.
d) By either Party giving notice of not less than 14 days when an ongoing Service is provided, or for service(s) on an ongoing Agreement and any minimum period terms have expired.
e) Should either Party become incapable of performing their obligations due to death, incapacity, bankruptcy, insolvency.
Effects of Termination
41. . Both parties shall be relieved of their contractual obligations however, Termination shall not affect or reduce any accrued rights, obligations or benefits up to the date of Termination.
42. If Termination is as a result of a breach of this Agreement by the Client, all fees and charges that would have become due had the Agreement been fully performed shall become due immediately.
43. If Termination is as a result of a breach of this Agreement by the Service provider, all fees and charges for Works that have been provided up to the point of Termination shall be made payable and the Client shall receive a refund of all monies paid in advance for any undelivered service(s).
44. The Client’s details and personal information will be processed and stored by the Service provider in archives or for any legal or statistical use.
The Service provider shall not share, disclose, distribute or sell personal information unless it is necessary to fulfil the contractual obligations under this Agreement; or it is required to do so by Law, by Court order, under the instruction of a legal representative or with the Clients consent.
Complaints and disputes
45. If in the Client is dissatisfied with any aspect of the Works, they should raise the matter in writing with sufficient detail to enable the Service provider to understand the issues, in addition to the remedy being sought.
46. The Service provider shall endeavour to respond to a complaint within 7 days, if the Service provider needs more than 7 days to investigate the complaint, or to gather relevant information then the Client will be informed when a response is anticipated, which shall not exceed 28 days*
47. Where a complaint is accepted, (Service provider at fault) the Service(s) provider shall offer to put matters right and rectify any issues immediately
48. Where a complaint is rejected (client at fault) or the remedy required by the Client is excessive or unreasonable the Service Provider shall inform the Client within 7 days and include the reasons why that decision was made.
49. The Parties shall attempt in good faith to resolve any disputed matters by negotiation between themselves or their appointed representatives, however, if a remedy or resolution cannot be agreed the Parties may agree to mediation by a trade association who offers such service(s).In the event that Parties cannot reach an amicable resolution to resolve any complaint using procedures in mention, the Client may wish to contact, Consumer Affairs of Victoria, The Ombudsman office, or seek their own legal advice.
Liabilities and indemnities
50. Nothing in this Agreement will limit or exclude the Service provider’s liability for death or personal injury resulting from negligence; for fraud or fraudulent misrepresentation; or in any other way that is not permitted under applicable law.
51. The Service provider shall not be liable for damages or loss (including special, indirect, consequential, exemplary and punitive) of business, opportunity, reputation, profits, income or revenue. Under no circumstances shall either Parties liability exceed the financial value of this Agreement or an amount that would be inconsistent with or exceeds any rights in law.
52. The Service provider shall not be liable under this Agreement, and the Client shall fully and unconditionally indemnify the Service provider against all, and every type of expenses, costs, losses or damages incurred, received or suffered whether in law, statute, equity, contract or tort resulting from –
a) Any errors, mistakes or incorrect information or detail provided by the Client;
b) Any delay in the Client providing detail, information or feedback which result in a delay in the Works being provided or delivered;
c) Any personal items of the Client that are not removed or adequately protected by the Client;
d) Use or misuse of Goods, including but not limited to
i) not in accordance with manufactures or the Service providers instruction;
ii) inconsistent with any warning or notice issued in relation to the Goods or their use;
iii) beyond stated limits or restrictions;
iv) beyond intended purpose.
e) Any changes, modifications or attempted repair or remedy by the Client or any third party on their behalf;
f) Anything that could not have been reasonably foreseen, predicted, avoided or prevented;
g) Anything beyond the Service provider’s reasonable control. For the avoidance of doubt any delays or postponement of Works due to events such as a failure of suppliers or couriers to deliver ordered Goods, power failures, interruptions to the flow of data over the internet, telecommunications or network failure, sickness of Personnel, adverse and extreme weather, traffic congestion or vehicle breakdown and the like, are all considered to be beyond the Service providers reasonable control;
h) conditions which do not arise as a result of a breach of a duty of care or negligence;
I) war, strikes, governmental restrictions, fires, floods, or any other natural disasters.
53. Any notices necessary or required under the provisions of this Agreement shall be served by hand or by way of recorded delivery mail or courier or electronic mail. Notices shall be deemed to have been delivered immediately if by hand, upon signing if by recorded delivery or courier, or 1 hour after sending an electronic mail if the electronic mail has not been returned undelivered.
Law and jurisdiction
54. Unless expressly stated a person or company who is not party to the Agreement shall not have any rights, benefits or obligations under this Guarantee or any part of it.
55. No forbearance, indulgence, relaxing, inaction or delay in either party enforcing performance, its contractual or legal rights shall prejudice, restrict or otherwise adversely affect the rights of that party to enforce its rights at a later date or later breach.
56. If any provision of this Agreement is or shall become invalid or unenforceable in the opinion of a court of Law it shall in no way affect or diminish the remainder of the Agreement and it shall remain valid and enforceable to the fullest extent permitted by Law. Both parties shall seek and agree to an alternative provision that is valid and enforceable and reflects the intent of the original term.
57. The validity, construction and performance of this Agreement shall be governed by the all laws and subject to the Victorian State jurisdiction.