1. Definitions
1.1. “Contractor” means J & N Bull Pty Ltd T/A El Toro Window Cleaning, its successors, employees, agents and assigns or any person acting on behalf of and with the authority of J & N Bull Pty Ltd T/A El Toro Window Cleaning.
1.2. “Client” means the person/s or any person acting on behalf of and with the authority of the Client to request the Contractor to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and: (a) if there is more than one Client, is a reference to each Client jointly and severally; and (b) if the Client is a part of a trust, shall be bound in their capacity as a trustee; and (c) includes the Client’s executors, administrators, successors and permitted assigns.
1.3. “Services” means all Services provided by the Contractor to the Client, at the Client’s request, from time to time, and includes any tangible items supplied or used by the Contractor (“Goods”) such as cleaning products or materials supplied, consumed, created or deposited incidentally by the Contractor in the course of conducting, or providing to the Client, any Service. Where the context so permits the terms ‘Service’ or ‘Goods’ shall be interchangeable for the other.
1.4. “Price” means the Price payable for the Services as agreed between the Contractor and the Client in accordance with clause 6 of this contract.
2. Acceptance
2.1. The Client shall engage the Contractor and the Contractor shall provide the Services on the terms of this Agreement and as agreed between the parties.
2.2. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order by email or other means for, or accepts Services provided by the Contractor.
2.3. These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and the Contractor.
2.4. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1. The Client acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s): (a) resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this contract; and/or (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Services.
3.2. In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Change in Control
4.1. The Client shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address or contact phone, change of trustees or business practice). The Client shall be liable for any loss incurred by the Contractor as a result of the Client’s failure to comply with this clause.
5. Obligations and Duties of the Client
5.1 During the engagement, the Client shall: (a) grant full access to any premises, office and other facilities as reasonably required to allow the Contractor to perform the Services; (b) facilitate and coordinate collaboration with the Client’s internal department to ensure a seamless and efficient access and transaction; (c) provide the Contractor with specifications about their requirements before the Services commence; (d) inform the Contractor of all health and safety and security requirements that apply at the Client’s premises; and (e) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Contractor to provide the Services.
5.2 If the Contractor’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees then, without prejudice to any other right or remedy it may have, the Contractor shall be allowed an extension of time to perform its obligations equal to the delay caused by the Client.
6. Price and Payment
6.1. At the Contractor’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by the Contractor to the Client; or (b) the Contractor’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of six (6) months.
6.2 If the Client wishes to make a change to the scope of Services, it shall: (a) notify the Contractor and provide as much details as the Contractor reasonably requires of the proposed changes, including the timing of the proposed change; and (b) the Contractor shall notify the Client about whether or not the proposed Services are accepted and the associated revised charges, timetable, milestones and any other relevant term.
6.3. The Contractor reserves the right to change the Price if a variation to the Contractor’s quotation is requested. Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.4. At the Contractor’s sole discretion a non-refundable deposit may be required at the time of requesting the Services.
6.5. Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, and if not specified on an invoice, the Client shall pay each invoice submitted to it by the Contractor within seven (7) business days of receipt.
6.6. Payment may be made by cash, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Contractor.
6.7. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
6.8. Receipt by the Contractor of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Contractor’s ownership or rights in respect of the Services/Goods shall continue.
6.9 If the Contractor has to procure specific Goods, materials, or equipment solely for the purpose of fulfilling the Client’s request for Services, the Client agrees to: (a) reimburse the Contractor for the full cost of such Goods, materials, or equipment; (b) in the event of the cancellation of the Services or if the said Goods, materials, or equipment are no longer required due to a change in the scope of Services requested by the Client, pay a restocking or return fee, which will be determined by the Contractor based on the costs incurred; and (c) understand that certain Goods, materials, or equipment may be non- returnable, and in such cases, the Client will be responsible for the full cost of the Goods, even if the engagement is cancelled or the scope of Services changes.
6.10 The cost for specially procured Goods, materials or equipment may be invoices separately and will be due within seven (7) business days of the invoice date unless otherwise agreed upon in writing. If such costs are not included in the initial quotation or invoice, the Contractor will notify the Client in advance and seek approval before procurement.
6.11 Without prejudice to any other right or remedy that it may have, if the Client fails to pay the Contractor any sum due under this Agreement on the due date: (a) the Client shall pay interest in accordance with clause 12; and (b) until such time the payment has been made, the Contractor may suspend or postpone part or all of the Services.
8. Disclaimers
8.1 The Contractor shall not be responsible for any pre-existing damages, scratches, or defects on or around windows. The Client should notify the Contractor of any such pre-existing damages before the Services commence.
8.2 The Contractor shall not be responsible for damage to loose, brittle or damaged window seals. It is the Client’s responsibility to notify the Contractor of any fragile windows at risk.
8.3 If certain windows are not reasonably accessible, the Contractor is not responsible for leaving them uncleaned. Additional charges may apply for cleaning windows that require special equipment or additional labour to access.
8.4 In the event of unexpected severe weather conditions, the Contract may reschedule the Services for safety reasons. The Contractor shall not be held liable for delays due to weather conditions.
8.5 While the Contractor aims to provide the Services thoroughly, some windows may have long-standing stains, paint marks, or residues that cannot be removed without the risk of damage. The Contractor shall not be held liable for not removing such marks or residues.
9. Heat Waiver
9.1 The client acknowledges that heat- treated glass, which includes both fully tempered and heat strengthened types, can exhibit quality issues that make it more susceptible to scratches, even under normal cleaning processes. It is mutually understood and agreed upon by all parties involved that utilising razor blades and scrapers are standard tools and techniques in the window cleaning industry. Such tools, when used properly, can safely remove construction debris, including but not limited to plaster, paint, texture, tape, stickers, from quality glass surfaces without causing scratches.
9.2 Given the inherent quality issues with heat-treated glass and the standard use of razors and scrapers in the course of providing the Services, the Contractor shall not be held liable for any scratches that may appear on any heat-treated glass during the performance of the Services.
9.3 Furthermore, the Client understands and agrees that razor blades and scrapers will be the primary tools employed for all construction window cleaning undertaken by the Contractor.
9.4 By agreeing to these terms and conditions, the Client hereby releases and waives any claim or action against the Contractor, its employees, officers, or agents, relating to scratches on heat- treated glass that might occur whilst performing the Services.
10. Risk
10.1. Whilst the Contractor shall take all due care in the performance of the Services, it shall be the Client’s responsibility that prior to the Services commencing that: (a) blinds are pulled up and curtains are opened; and (b) all personal effects are removed from window sills to allow access to the work area.
10.2. The Client accepts and acknowledges that the Contractor accepts no liability for any subsequent loss or damage (including, but not limited to, internal water damage due to defective/ leaking window sills or seals which were not brought to the Contractor’s attention prior to the commencement of the Services) to the Client’s property which may occur during the cleaning process where such loss or damage is due to pre-existing faults or leaks.
10.3. Where the Contractor is required to undertake Services, the Client warrants that the structure of the premises in or upon which these Services are to be undertaken is sound and will sustain the Services and work incidental thereto, and the Contractor shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising in connection with the Services and work incidental thereto.
10.4. Where applicable, suitable anchor points for platforms, abseiling or other high-rise work must be safe for the equipment to be attached to.
10.5 Furthermore, the Client warrants that: (a) there are no hazardous materials or conditions present at the premises where the Services are to be performed; (b) all information provided to the Contractor about the premises, its conditions, and requirements for the Services are accurate and complete; (c) any existing damages, imperfections, or conditions of concern to the windows or surrounding structures have been reported to the Contractor prior to the commencement of the Services; (d) all areas requiring the Services are freely accessible and any locks, barriers or other impediments have been removed; (e) if the premises are leased, rented, or under any form of third party control, the Client ensures that they have obtained all necessary permissions for the Contractor to perform the Services; and (f) there are no undisclosed surveillance devise that would record the Contractor without their knowledge and consent in private or non- public areas where Services are rendered.
11. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
11.1. The Client must inspect the Contractor’s Services on completion of the Services and must within twenty-four (24) hours notify the Contractor in writing of any evident defect in the Services or Goods provided (including the Contractor’s workmanship) or of any other failure by the Contractor to comply with the description of, or quote for, the Services which the Contractor was to supply. The Client must notify any other alleged defect in the Contractor’s Services or Goods as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to review the Services or Goods that were provided.
11.2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non- Excluded Guarantees).
11.3. The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non- Excluded Guarantees. 11.4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.
11.5. If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.6. If the Contractor is required to rectify, re-supply, or pay the cost of re- supplying the Services under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Goods which have been provided to the Client which were not defective.
11.7. If the Client is not a consumer within the meaning of the CCA, the Contractor’s liability for any defective Services or Goods is: (a) limited to the value of any express warranty or warranty card provided to the Client by the Contractor at the Contractor’s sole discretion; (b) otherwise negated absolutely.
11.8. Notwithstanding clauses 11.1 to 11.7 but subject to the CCA, the Contractor shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Client failing to properly maintain or store any Goods; (b) the Client using the Goods for any purpose other than that for which they were designed; (c) the Client continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) interference with the Services by the Client or any third party without the Contractor’s prior approval; (e) the Client failing to follow any instructions, guidelines or obligations provided by the Contractor or mentioned in these terms and conditions; and/or (f) fair wear and tear, any accident, or act of God.
12. Default and Consequences of Default
12.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of five percent (5%) per calendar month (and at the Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2. If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
12.3. Further to any other rights or remedies the Contractor may have under this contract, if a Client has made payment to the Contractor, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Contractor under this clause 9 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
12.4. Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable if: (a) any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Client will be unable to make a payment when it falls due; (b) the Client has exceeded any applicable credit limit provided by the Contractor; (c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client
13. Cancellation
13.1. Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Services to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
13.2. The Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice the Contractor shall repay to the Client any money paid by the Client for the Services. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.3. In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).
13.4 In the event that the Client cancels the Services after the Contractor has already purchased Goods specifically for the performance of those Services, the Client agrees to reimburse the Contractor for any and all costs associated with such Goods, whether or not they can be returned to suppliers. If the Goods can be returned but there’s a restocking or other related fee, the Client will be liable for this fee. A detailed invoice for such Goods and associated fees will be provided to the Client.
14. Termination
14.1 The Contractor may terminate this Agreement immediately and withdraw an invoice without notice if the Client has: (a) failed to show up at the agreed location where the Services are to be performed; (b) committed serious or persistent misconduct, (c) committed fraud, theft, or dishonesty; or (d) breached any obligation under these terms and conditions. In the event of termination by the Contractor, the terms of clause 13.2 will apply.
15. Privacy Policy
15.1. The Client agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Contractor.
15.2. The Client agrees that the Contractor may exchange information about the Client with those credit providers and with related body corporates for the following purposes: (a) to assess an application by the Client; and/ or (b) to notify other credit providers of a default by the Client; and/or (c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or (d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
15.3. The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
15.4. The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by): (a) the provision of Services; and/or (b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or (d) enabling the collection of amounts outstanding in relation to the Services.
15.5. The Contractor may give information about the Client to a CRB for the following purposes: (a) to obtain a consumer credit report; (b) allow the CRB to create or maintain a credit information file about the Client including credit history.
15.6. The information given to the CRB may include: (a) personal information as outlined in 11.1 above; (b) name of the credit provider and that the Contractor is a current credit provider to the Client; (c) whether the credit provider is a licensee; (d) type of consumer credit; (e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested); (f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Contractor has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments); (g) information that, in the opinion of the Contractor, the Client has committed a serious credit infringement; (h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
15.7. The Client shall have the right to request (by e-mail) from the Contractor: (a) a copy of the information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect information; and (b) that the Contractor does not disclose any personal information about the Client for the purpose of direct marketing.
15.8. The Contractor will destroy personal information upon the Client’s request (by email) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
15.9. The Client can make a privacy complaint by contacting the Contractor via email. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
16. Dispute Resolution
16.1 If a dispute arises out of or relates to the terms of these terms and conditions, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
16.2 A party to these terms and conditions claiming a dispute (the “Dispute”) has arisen under the terms of these terms and conditions, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the “Notice”).
16.3 On receipt of the Notice by the other party, the Parties to these terms and conditions must within seven days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.
16.4 If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the Law Society of New South Wales or his or her nominee and attend a mediation.
16.5 It is agreed that mediation will be held in New South Wales, Australia.
16.6 The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre- condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.
16.7 All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" negotiations.
16.8 If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation and the mediator must do so.
16.9 In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.
17. General
17.1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2. These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales, the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the courts in New South Wales.
17.3. Subject to clause 8, the Contractor shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
17.4 The Client agrees to indemnify, defend, and hold harmless the Contractor, its officers, directors, employees, agents, licensors, suppliers, and any third-party information providers to the Service from and against all losses, expenses, damages, and costs, including reasonable legal fees, resulting from any violation of this Agreement (including negligent or wrongful conduct) by the Client or any other person accessing the Service on behalf of the Client. This indemnification shall survive the termination of this Agreement.
17.5. The Contractor may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
17.6. The Client cannot licence or assign without the written approval of the Contractor.
17.7. The Contractor may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub-contractors without the authority of the Contractor.
17.8. The Client agrees that the Contractor may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Contractor to provide Goods to the Client.
17.9. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
17.10. Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.
