These terms and conditions of sale together with the Quote (Terms) form a contract ATTILA KITCHENS PTY LTD (ACN 673 988 835) of 5B Feathertop Avenue, Templestowe Lower VIC 3107 (“ATTILA”, “us”, “we”, “our”) and you, the customer (being the party named in the Quote) (“Customer,” “”you,”, “your“) for provision of the Services by ATTILA to you. Except as otherwise expressly agreed upon in writing between a duly authorised officer of ATTILA and you, these Terms shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued. By engaging ATTILA for the Services, you agree to be bound bythese Terms.
In these Terms, unless the context otherwise requires:
“Check Measure”means the on-site measurement verification process to ensure accuracy for custom cabinetry fabrication and installation.
“Commencement Date” means the date agreed between ATTILA and you for the Services to commence at the Site.
“Contractor”means any subcontractor or third-party service provider engaged by ATTILA for the provision of Services.
“Design Plans” means the design plans, specifications, layout, materials, finishes, and custom features for the Services as provided by the client or as supplied and agreed to between ATTILA and you in writing.
“Final Payment”means the settlement of all outstanding monies payable by youto ATTILA including any variations approved in writing between you and ATTILA.
“Intellectual Property” includes but is not limited to trade marks, patents, copyrights, processes, know-how, registered designs and concepts.
“Order” means the Services agreed to and as outlined in the Quote.
“PPSA” means the Personal Properties Securities Act 2009 (Cth) and the Personal Property Securities Regulations 2010 (Cth).
“PPSR” means the Personal Property Securities Register.
“Price”means the price payable for Products and Services setout in the Quote agreed between you and ATTILA in accordance with clause 4 of this Agreement.
“Products”means kitchen cabinets, joinery, components, fittings, benchtop products, appliances, and other hardware and items set out in the Quote.
“Progress Payment”means the payments madeas per the Payment Schedule based on the agreed stages of completion of the Services.
“Quote”means any quotation document provided by ATTILA to you in relation to provision of the Products and Services.
“Services”means where applicable and set out in the Quote and Order the design, manufacturing, supply, and installation of the Products supplied by ATTILA and or any third party Supplier to you.
“Site”means your property or location where installation of the Services will occur as set out in the Quote and Order.
“Suppliers”means any third-party entities, including but not limited to manufacturers, distributors, and vendors, that provide materials, Products, or Services used in connection with this Agreement.
1.1 – All orders placed with ATTILA shall only be accepted subject to these Terms. ATTILA may only vary these terms in accordance with the Law and with your approval in writing.
1.2 – These Terms shall prevail if there isany inconsistency with any other documents enteredinto between you and ATTILA.
2.1 – You appoint and engage ATTILA to provide the Services in accordance with the Quote and Order subject to these Terms.
2.2 – If you supply ATTILA any DesignPlans they must be in a form reasonably acceptable to ATTILA to provide its Services and the Services will be provided in accordance with those agreed plans.
2.3 – If the Design Plans are supplied by ATTILA on your request they must be approved in writing by you before the Order is placed and ATTILA warrants to provide the Services in accordance with those Design Plans ATTILA shall not be held liable for any design errors variations or omissions if the Design Plans were approved and accepted by you.
2.4 – You acknowledge and agree if you request any variations or additional work over and above the scope of work set out in the Quote after it has been accepted and the Order has been placed by you, ATTILA will be entitled to provide you a revised Quote to cover that additional work with revised timelines (Revised Quote). The Revised Quote must be approved in writing by you, before ATTILA proceeds with such additional Services
2.5 – For the avoidance of doubt, the Services to be provided by ATTILA exclude any structural alterations, electrical work, plumbing, or installation of appliances (Excluded Services) unless otherwise stated in the Quote which shall be your responsibility.
3.1 – In consideration of ATTILA provision of the Services you shall pay the Price as set out in the Quote and Order to ATTILA.
3.2 – You must pay a non-refundable deposit of 30% of the total Price (Deposit)upon ATTILA’s acceptance of the Order.
3.3 – ATTILA reserves the right to vary the Price by giving you written notice if:
(a) you request variations to the Products or Services after you accept the Quote and place an Order; or
(b) additional works are required due to ATTILA’s discovery of unforeseenmatters that may require Excluded Services( set out above) to carry out the Services on or after the Commencement Date, including but not limited to Siteaccess or incompletework carried out by a third party; or
(c) any unforeseen delays caused by your actions.
ATTILA will provide written notice to you of any such variations that may impact the Price and you agree to provide written approval to ATTILA before ATTILA is required to proceed with its Services.
3.4 – Unless otherwise agreed, you must make payment of the Price within the period specified in the tax invoice submitted to you by ATTILA for the Services provided. For the avoidance of doubt, ATTILA will only commence provision of the Services upon:
(a) receipt of the Deposit and the Progress Payment in full by you; and
(b) completion of the Check Measure and any variations if any to the Quote and Order are agreed to in writing.
3.5 – Where you order a custom flat pack as per your Design Plan to be supplied by ATTILA and ATTILA does not provide any assembly or other installation Services you must pay the full cost of the Orderpriorto ATTILAcommencing manufacture and production of the Products.
3.6 – Payment of the Price and the Depositcan be made to ATTILA via bank transfer, credit card (subject to a 1% surcharge), or other method agreed to.
3.7 – Any disputes regardingthe Price must be raised within five (5) business days of the invoice date and your receipt of the invoice and shall be resolved in accordance with clause 18 of these Terms.
4.1 – Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services) Act 1999 (Cth) have the same meaning in this clause.
4.2 – Any consideration to be paid or provided for a supply made under or in connection with these Terms, unless specifically described in these Terms as “GST inclusive” does not include an amount on account of GST.
5.1 – Interest on overdue invoices shall accrue daily from the date when payment becomes due until the date of payment at a rate of 2% higher than the rate set out by the Penalty Interest Rates Act 1983 (Vic) and such interest shall compound monthly.
5.2 – If you default in payment of any invoice to ATTILA when due, you indemnify ATTILA from and against all costs and disbursements incurred in pursuing the debt including legal and collection agency costs.
5.3 – Without prejudice to any other remedy that ATTILA may have, ATTILA may suspend or terminate the Services to you, if you remain in default of payment of any invoice.
5.4 – If ATTILA suspends or terminates all or any part of the Services pursuant to clause 6.3:
(a) all amounts owing by you to ATTILA shall, whether or not due for payment, become immediately due and payable; and
(b) ATTILA will not be liable to you for any loss or damage you may suffer if any by reason of ATTILA exercising such rights under this clause.
6.1 – The Products and/or Services will be installed and carried out in accordance with the Quote and Design Plan approved
6.2 – You acknowledgethat the installation of the Products and/or Services may be carried out by ATTILA orContractors engaged by ATTILA who have the requisite expertise to provide the Services.
6.3 – You are responsible for ensuring the Site meets all structural and utility requirements before the scheduled installation date.ATTILA will not be responsible for delays or costs as a result of the Site not being ready in which case,you agree to cover any additional charges incurred, including but not limited to re-delivery fees, staff time, travel, and other associated costs resulting from the delay.
7.1 – Where Contractors perform installation or other services, any applicable warranties provided by them shall be passed on to you and ATTILA will make reasonable efforts to provide you with details of such warranties upon request.
7.2 – ATTILA warrants that in providing the Services it shall do so with due care and skill in accordance with relevant industry practices and standards and in accordance with all statutory warranties implied by Law.
7.3 – WhereProducts installed by ATTILA have a Supplier warranty or extended warranty ATTILA will do all things reasonably necessary to pass on the benefit of those warranty terms to you.
7.4 – ATTILA makes no representations or warranties regarding the quality, durability, or performance of Products supplied by the third party. Any warranty claim must be submitted in writing by youto ATTILAwithin a reasonable period to enable ATTILA to inspect the alleged defect and communicate with that Supplier.
7.5 – Any warranty given under these terms will not cover damage caused by you or any other third parties who may misuse the Products or due to improper or inadequate maintenance, or unauthorised modifications.
8.1 – You acknowledge that the ownership, title and rights associated with all Intellectual Property in any material prepared by ATTILA (including in its performance of the Services) shall at all times belong to, vest in and remain vested in ATTILA.
8.2 – You must not:
(a) use, sell, lease, loan, distribute (including uploading to social media or the internet), or in any manner commercially exploit any of ATTILA’s Intellectual property without ATTILA’s prior written consent;
(b) infringe ATTILA’s Intellectual Property rights and not cause or permit anything which may damage or endanger such rights and not assist or allow others to do so.
8.3 – The parties’ obligations pursuant to this clause continue after the expiration or termination of these Terms or the completion of the Services.
9.1 – The risk for the Goods passes to you on delivery to your Site. If the Goods are destroyed or damaged after delivery on Site ATTILA will not be liable for the cost of damage replacement or repair of the Goods, or for compensating you for any loss. You agree to take out all necessary insurances over the Goods with effect from the time of delivery on Site.
9.2 – ATTILA will provide notice to you once the Goods are ready for delivery and you will be required to ensure the Goods will be able to be safely stored on Site and you will make payment of the Final Payment before ATTILA arranges delivery of the Goods to the Site. The delivery date may be anestimated date. Delivery is deemed to have occurred as soon as the Goods arrive at the Site and you or your authorised person signs to accept the delivery.
9.3 – The parties agree that ownership, property, legal and equitable title in the Goods remains with ATTILA until Final Payment has been made in full and received by ATTILA.
9.4 – If the Final Payment is not made within 14 days of final demand in writingATTILA shall, without prejudice to any other remedies, be entitled to suspend the installation of the Goods or at its option retake possession of the Goods and hold them until Final Payment has been made.
9.5 – For the purposes of the PPSA you agree that the retention of titlerights over the Goods gives ATTILA a security interest in the Goods delivered until payment in full and ATTILA is a Secured Party and you, the consumer, are a Buyer and/or Grantor in accordance with the legislation. Until Final Payment is made to ATTILA in full for any orders, ATTILA retains a security interest in the Goods.
9.6 – You agree to do and sign anything reasonably required by ATTILA to ensure ATTILA’s security interest is a perfected security interest with priority over all other security interests in the Goods.
9.7 – It you default in the performance of any obligation under these Terms or otherwise, ATTILA may enforce its security interest in the Goods by exercising all or any of its rights under these Terms and/or the PPSA.
10.1 – ATTILA may make minor variations to the Product specifications if such changes are required by the Check Measure or for other unforeseen circumstances provided they do not materially impact the Product’s appearance, design, or quality.
10.2 – ATTILA will advise you of any such changes which may include but are not limited to the following:
I. Substitution of materials with equivalent or superior alternatives due to supply availability.
ii. Slight adjustments to dimensions for installation accuracy or improved fit
iii. Use of alternative hardware or fittings with comparable specifications
iv. Modifications to internal construction methods that do not affect structural integrity
v. Minor colour or finish shade differences resulting from production batches
vi. Adjustments made on-site to accommodate unforeseen building or site conditions.
10.1.1 – The cost of any custom made Products requested by you shall be non-refundable once ATTILLA has commenced manufactureof such Products.
10.1.2 – Any cancellation of an Order must be made in writing to ATTILA.
(a) If you cancel an Order without cause within seven (7) days of the Order being placed with ATTILA, a cancellation fee being the greater of 20% of the total order value (Price) or the actual value of the Services completed by ATTILA at that stage may be charged to you and you may also be held liable to indemnify ATTILA in relation to the cost of ATTILAregistering a financing statement or financing change statement on the PPSR.
(b) If a cancellation of an Order is accepted by ATTILA, ATTILA may in its discretion offer you a credit equal to the amount you have paid to that date, less any costs incurred by ATTILA up to that date including but not limited to materials, labour, and administrative expenses.
11.1.1 – Each party who receives confidential information (Confidential Information) (the Recipient) agrees with the other party (the Owner) to keep that Confidential Information confidential and not disclose it or allow it to be disclosed to any third party except with the consent of the Owner.
11.1.2 – Upon termination or expiration of these Terms, each party must continue to keep confidential all Confidential Information of each other party and at each Owner’s option, return to that Owner or destroy and certify the destruction of that Owner’s confidential information.
12.1.1 – The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these Terms and there are rights and remedies conferred on you in relation to the provision of the Services which cannot be excluded, restricted or modified by agreement (Non-excludable Rights).
12.1.2 – ATTILA to the extent it may do so at Law disclaims all conditions and warranties, express or implied, and conferred on you, by statute, the common law, equity, trade custom or usage other than the Non-excludable Rights. To the extent permitted by law, the liability of ATTILA for a breach of a Non-excludable Right is limited, at ATTILA’s option, to the supplyof Services again or refund of the cost of the Services.
12.1.3 – The maximum liability of ATTILA for any and all breaches of these Terms will be capped at the amounts previously paid by you to ATTILA for the relevant Services.
12.1.4 – You acknowledge that your rights and remedies regarding any defective Products are limited to those provided by ATTILA at Law and which cannot be excluded and under the Supplier’s warranty and ATTILA’s liability if any is limited to the replacement or repair of such defective Products.
14.1.1 – To the maximum extent permitted by law, ATTILA shall not be held liable for any failure or delay in performing its obligations under these Terms if such failure or delay is caused by circumstances beyond its reasonable control, including but not limited to: Natural disasters, pandemics or epidemics, acts of government or public authorities, war, terrorism, civil unrest, strikes, supply chain disruptions or utility or telecommunications failures, and ATTILA shall be entitled to a reasonable extension of time for the performance of such obligations.
15.1.1 – These Terms may be terminated under the following circumstances:
15.1.2 – Breach of Obligations: If either party fails to fulfill its obligations as outlined in these Terms and does not remedy the breach in the timeframe specified in the breach notice which is required to be served by the non-breaching party to the breaching party outlining the breach and the timeframe in which the breach is to be remedied by.
15.1.3 – Force Majeure:Ifunforeseen circumstances beyond the control of either party, such as natural disasters, acts of war, or government actions, render the continuation of the Terms impossible or impractical.
15.1.4 – Mutual Agreement: If both parties mutually agree in writing to terminate these Terms.
15.1.5 – Misrepresentation: If either party has provided false, misleading, or incomplete information that materially affects the terms or performance of these Terms.
15.1.6 – Where a party (subject to the terms that apply to cancellation of an order) terminatesthese Terms by providing written notice to the other party the notice must state:
15.1.7 Thereasons for termination, referencing the applicable grounds;
15.1.8 The effective date of termination, which shall not be less than 7 days from the date of the notice, unless otherwise agreed.
15.1.9 In cases of breach, the non-breaching party must allow the breaching party a cure period of at least seven (7) days to rectify the issue, unless the breach is irreparable or materially detrimental to the non-breaching party.
15.2.1 – You shall pay ATTILA for all Products delivered, Services rendered, and expenses incurred up to the date of termination. Any outstanding invoices must be settled within seven(7) days of termination, or
15.2.2 – you must at ATTILA’s option,return all Products provided by ATTILA within7 days of termination.
15.2.3 – Those provisions, including but not limited to confidentiality, intellectual property rights, and dispute resolution, shall survive the termination of the Agreement.
16.1 – The parties agree to first attempt to resolve any disputes arising from these Terms through good faith negotiation.
16.2 – If the dispute cannot be resolved through negotiations within 30 days, the parties agree to submit the dispute to mediation by an independent mediator agreed upon by both parties.
16.3 – The costs of mediation shall be shared equally between the parties.
16.4 – If the dispute is not resolved through mediation, either party may initiate legal proceedings in the courts of Victoria, Australia.
17.1.1 – Nothing in these Terms is intended or will be construed as constituting a relationship of agent and principal, employer and employee, joint venture or partnership alliance between the parties.
17.1.2 – No provision of these Terms shall be deemed to be waived except by express written consent executed by the party which is claimed to have waived the relevant provision.
17.1.3 – These Terms may not be assigned to a party without the prior written consent of the other party.
17.1.4 – If a provision or part of a provision of these Terms is held invalid, unenforceable or illegal for any reason, then such provision or part, as the case may be, shall be deemed to be severed from these Terms and the Terms shall otherwise remain in full force and effect.
17.1.5 – The laws of the State of Victoria governs these Terms and the parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and of the Commonwealth of Australia.
17.1.6 – The Agreementis governed by the laws of Victoria, Australia.
