This Agreement is entered into between Flatpack Professor Pty Ltd (ACN 653 617 362) (we, us or our) and you, the Parties stated in the Quote (you or your), together the Parties and each a Party. Together, these terms and conditions and the Quote form the entire agreement under which we will carry out the Services for you (together, the Terms).

Our Disclosures:

Please read this Agreement carefully and contact us if you have any questions. By accepting this Agreement, you agree that:

• without limiting and subject to your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you; 
• to the maximum extent permitted by Law, we will not be liable for any Liability caused or contributed to by, arising from or connected with: any breach of this Agreement by you or any of your Personnel; any loss or damage to the Premises, any other property or the Products other than loss or damage to the Premises or Products directly caused or contributed to by our or our Personnel’s failure to comply with this Agreement or negligence; any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us; any Third Party Inputs; the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or any event outside of our reasonable control; and 
• subject to your Consumer Law Rights, our Liability for the supply of the Goods will be limited to, at our discretion repayment of the Price paid by you to us.

This Agreement does not intend to limit your rights and remedies at law, including any of your Consumer Law Rights.

1. Acceptance
   1. You accept this Agreement by the earlier of: 

1. signing and returning this Agreement (or the Quote) to us;  
2. making part or full payment of the Price.

    

2. Services
   1. 1. In consideration of your payment of the Price, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.
      2. If this Agreement expresses a time within which the Services are to be supplied, we will use reasonable endeavours to provide the Services by such time, but you agree that such time is an estimate only.

          

   3.   Variations 

   1. All variations to the Goods and Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause.

TERMS AND CONDITIONS

This Agreement is entered into between Flatpack Professor Pty Ltd (ACN 653 617 362) (we, us or our) and you, the Parties stated in the Quote (you or your), together the Parties and each a Party. Together, these terms and conditions and the Quote form the entire agreement under which we will carry out the Services for you (together, the Terms).

Our Disclosures:

Please read this Agreement carefully and contact us if you have any questions. By accepting this Agreement, you agree that:

• without limiting and subject to your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;

• to the maximum extent permitted by Law, we will not be liable for any Liability caused or contributed to by, arising from or connected with: any breach of this Agreement by you or any of your Personnel; any loss or damage to the Premises, any other property or the Products other than loss or damage to the Premises or Products directly caused or contributed to by our or our Personnel’s failure to comply with this Agreement or negligence; any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us; any Third Party Inputs; the Services being unavailable, or any delay in us providing the Services to you, for whatever reason; and/or any event outside of our reasonable control; and

• subject to your Consumer Law Rights, our Liability for the supply of the Goods will be limited to, at our discretion repayment of the Price paid by you to us.

This Agreement does not intend to limit your rights and remedies at law, including any of your Consumer Law Rights.

Acceptance

You accept this Agreement by the earlier of: 

• signing and returning this Agreement (or the Quote) to us;  
• making part or full payment of the Price.

Services

In consideration of your payment of the Price, we will provide the Services in accordance with this Agreement, whether ourselves or through our Personnel.

If this Agreement expresses a time within which the Services are to be supplied, we will use reasonable endeavours to provide the Services by such time, but you agree that such time is an estimate only.

 

Variations 

All variations to the Goods and Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under this Agreement, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause.

 

 

Delivery 

In consideration of your payment of the Delivery Fee, we will provide you with the Delivery Services, if applicable. 

We will use reasonable endeavours to deliver the Product to your Premises by the Booking time as agreed between the Parties. 

Following our delivery of the Product to your Premises, you agree to inspect the Product immediately and sign a delivery receipt to confirm that all of the Products have been delivered, there are no missing items, and the Products are in acceptable condition.

You agree:

• that we are not not responsible for packaging the Products;  
• we will be deemed to have finished performing the Delivery Services when we deliver the Products to your Premises and you sign a delivery receipt; and 
• In the performance of our Services (including the Delivery Services), risk in the Products will at all times stay with you and our liability is excluded under clause 13.

 

Payment

In consideration for us providing the Services, you agree to pay us the Price in accordance with this clause.

We may issue invoices to you on completion of the supply of the Services (as reasonably determined by us) and you must pay the amount in the invoice, using the payment method set out in the invoice, within 14 days of the date of the invoice, or as otherwise agreed between the Parties. 

When applicable, GST is payable on the Price and will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.

If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under this Agreement or at law): 

• after a period of 5 Business Days from the relevant due date, cease providing the Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs); and/or
• charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms. 

 

Premises 

You agree to provide us (and our Personnel) with access to the Premises (and the facilities at the Premises) and any other premises as is reasonably necessary for us to provide the Services, free from harm or risk to health or safety: 

• at the times and on the dates reasonably requested by us or as agreed between the Parties; and/or
• to enable us to comply with our obligations under this Agreement or at Law.

You agree to ensure that your Premises has a clear, clean, level space for us to assemble the Products at the time of the Booking (as determined by us acting reasonably), and we will not be responsible for clearing the space or moving any furniture.

We have a commitment to our Personnel to provide a safe work environment. You must not engage in any behaviour, including bullying, that violates this commitment at your Premises.  You must ensure that the Premises is safe for us and our Personnel. We reserve the right to immediately cease providing Services to you violate this commitment or at any time our Personnel feel unsafe.

If the Premises does not meet the requirements in this clause 6 or you otherwise fail to comply with this clause 6, you agree:

• to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 6; and 
• we will deem the Booking as cancelled by you under clause 7.3. 

 

Cancellations 

You may cancel a Booking with us at any time by giving us notice by email or by phone.

Where you cancel your Booking more than 12 hours before the time of your Booking, we will not charge you any part of the Price for the Services.

Where you cancel your Booking less than 12 hours before the time of your Booking, we reserve the right to charge you 50% of the Price for the Services unless we determine, in our sole discretion, that you have provided a reasonable excuse.

You agree and acknowledge that this payment is reasonable, given that the we would not have been able to be allocated to alternate work in such a short period of time.

We may cancel a Booking at any time. Where we cancel the Booking, we will:

• contact you as soon as possible to inform you of the cancellation; and 
• you will not be charged for any Services that are cancelled by us.

This clause 7 will survive termination or expiry of this Agreement.

 

Damage

Subject to your rights under the Australian Consumer Law, you agree:

• to promptly (after assembly has been completed as notified by us to you (Assembly Time)):

• • inspect the assembled Product; and
  • sign an assembly report (Assembly Report) to confirm that the Products have been assembled to your reasonable satisfaction, being in compliance with the Product instructions; 

• to notify us in writing immediately if you consider that the Products have been damaged during the assembly of the Products by us, specifying the nature of the damage (Assembly Damage); and 
• if we agree that we have caused Assembly Damage during the performance of our assembly Services, we will, at our own cost, remedy the Assembly Damage, or if we are unable to remedy the Assembly Damage we will offer you a choice of a credit or a refund of the Price (excluding the Delivery Fee), as your sole and exclusive remedy in respect of the Assembly Damage.  

• Warranties and Representations

You represent, warrant and agree:

• to comply with this Agreement and all applicable Laws; 
• that all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;  
• to comply with our reasonable requests or requirements; 
• that you (and to the extent applicable, your Personnel) will provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide the Services;
• that we are not party to any contract between you and the Supplier, and will not be liable for any aspect of the interaction between you and a Supplier, including any description of the Product, or any defect or fault in the Product including the instructions; and

You agree: 

• that we are unable to assemble the Products if you do not provide us with the Product instructions and on such scenario, the Booking will be deemed to be cancelled by you under clause 7.3;
• that we will assemble the Products in accordance with the Product instructions as provided by you to us based on the instructions prepared by the Product manufacturer, and we will not modify any Products or deviate from the Supplier Product instructions; and 
• that we will not be responsible for performing any electrical work or installing any Products unless otherwise agreed in writing between the Parties; and 
• we may charge you an additional fee under clause 3 if we are required to collect or return a faulty Product or missing part from the Supplier on your behalf. 

 

Insurance 

We agree to effect and maintain public liability insurance for the duration of the Term. You acknowledge and agree that you may not be entitled to the benefit of our public liability insurance policy, including where you and your Personnel cause any damage to property as part of the Delivery Services or Services.

We recommend that you effect and maintain your own insurance to cover the Products including insurance to protect against any damage to the Products in transit if we supply Delivery Services, and to check with your insurer or insurance broker that such insurance will cover the Products during the period of our provision of the Services.

 

Intellectual Property 

As between the Parties, each Party retains all intellectual property rights in its intellectual property developed prior to or independently of this Agreement. Nothing in this Agreement constitutes an assignment or transfer of such rights. 

As between the Parties, ownership of all intellectual property Rights in any intellectual property developed, adapted, modified or created in connection with this Agreement, or the provision of the Goods and Services will at all times vest, or remain vested, in us.

This clause 11 will survive termination or expiry of this Agreement. 

 

Australian Consumer Law 

Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at law, nothing in this Agreement excludes those Consumer Law Rights.  

Subject to your Consumer Law Rights, we exclude all warranties, and all material, work and services (including the Services) are provided to you without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis, except where expressly set out in this Agreement.

This clause 12 will survive the termination or expiry of this Agreement.

 

Exclusions to liability

Despite anything to the contrary, to the maximum extent permitted by Law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by, arising from or connected with:

• any breach of this Agreement by you or any of your Personnel;
• any loss or damage to the Premises, any other property or the Products other than loss or damage to the Premises or Products directly caused or contributed to by our or our Personnel’s failure to comply with this Agreement or negligence in the performance of the Services and in which case clause 14 will apply;
• any works, services, goods, materials or items which do not form part of the Services (as expressed in this Agreement), or which have not been provided by us;
• any Third Party Inputs;
• the Services being unavailable, or any delay in us providing the Services to you, for whatever reason;
• any decisions or steps taken by us pursuant to clause 6; and/or
• any event outside of our reasonable control including:
  • any direction by you in relation to how we move or assemble the Products (excluding any written instructions provided by the Supplier) or the speed at which we provide the Services;
  • your or any of your Personnel’s acts or omissions;
  • any loss or damage to the Premises, any other property or the Products caused or contributed to by you or your Personnel (including but not limited to a failure by you to provide the correct Product instructions), or any third party (including but not limited to any motor vehicle accident); 
  • loss or damage due to no fault or error by us including where we took steps to avoid loss and damage or caused by situations outside our control including but not limited to weather, wind, light, parking or access;
  • any Products packed, unpacked or moved by any person other than us or our Personnel (including you or your Personnel); and 
  • any loss or damage as a result of any latent or patent defects in any Products other than directly caused or contributed to by our or our Personnel’s failure to comply with this Agreement or negligence in the performance of the Services.

This clause 13 will survive the termination or expiry of this Agreement.

 

Limitations on liability

Despite anything to the contrary but subject to your Consumer Law Rights, to the maximum extent permitted by law:  

• neither Party will be liable for Consequential Loss; 
• a Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
• our aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the Price paid by you to us in respect of the supply of the relevant Services to which the Liability relates.  

This clause 14 will survive the termination or expiry of this Agreement.

 

Term and Termination

This Agreement will commence on the date this Agreement is accepted in accordance with its terms and will continue until the earlier of the date:

• we have completed the supply of the Services to you (as reasonably determined by us); or 
• this Agreement is terminated in accordance with this clause 15,

• (Term). 

 

This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party) if the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.

Upon expiry or termination of this Agreement:

• we will immediately cease providing the Services;
• without limiting and subject to your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you; 
• you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement; 
• by us pursuant to clause 15.2, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and 
• upon request, a Party must destroy or return the confidential information of the other Party, except for any confidential information required to be maintained by law.

Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.  

This clause 15 will survive the termination or expiry of this Agreement.

• General

 

Amendment:

Subject to clause 3, this Agreement may only be amended by written instrument executed by the Parties.

 

Assignment:

Subject to clause 16.3 and clause 16.6, a Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld). 

 

Assignment of Debt:

You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with this Agreement, to a debt collector, debt collection agency, or other third party. 

 

Disputes: 

A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 16.4. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute.

If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Australian Disputes Centre in accordance with Australian Disputes Centre Guidelines for Commercial Mediation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

 

Force Majeure:

Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:

• as soon as reasonably practical, notifies the other party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
• uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event. 

• Where the Force Majeure Event prevents a Party from performing a material obligation under this agreement for a period in excess of 60 days, then the other Party may by notice terminate this Agreement, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party’s obligation to pay any amount that is due and payable to the other Party under this Agreement. 

 

Subcontracting:

We may subcontract the provision of any part of the Services without your prior written consent.  We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractor.

 

Governing law:

This Agreement is governed by the laws of New South Wales.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.  

Notices: Any notice given under this Agreement must be in writing addressed to the addresses set out in this Agreement, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and 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.

 

Precedence:

If there is any inconsistency between the terms of the Quote and this Agreement, the terms of this Agreement will prevail.

 

Relationship of Parties:

This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

 

Definitions 

In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Quote, and:

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time. 

Agreement means these terms and conditions and any documents attached to, or referred to in, each of them. 

Booking means any bookings made by you for a time for us to provide the Services. 

Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.

Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise: 

• any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into this Agreement as the probable results of the relevant breach, act or omission; and/or
• without limiting subclause (a), any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data.

However, the Parties agree that your obligation to pay us the Price under this Agreement will not constitute “Consequential Loss”.

Consumer Law Rights has the meaning given in clause 1.

Delivery Fee means the fee for our delivery services, as set out in the Quote.

Delivery Services means the delivery services as set out in the Quote. 

Dispute has the meaning given in clause 16.4.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of the Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Price means the price set out in the Quote, as adjusted in accordance with this Agreement, which includes the Delivery Fee (if any).

Premises means the location where we are to provide the Services, as set out in the Quote.

Product means the product/s as set out in the Quote.

Quote means any quote (including any online quote) to which this Agreement are attached by reference. 

Services means the services set out in the Schedule, as adjusted in accordance with this Agreement.

Supplier means the supplier and or manufacturer of the Product. 

Third Party Inputs means third parties or any goods and services provided by third parties, including customers, end users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Services may be contingent on, or impacted by.