Terms & Conditions
1. Definitions and interpretation: FencrGatr is the “contractor” and the person ordering the work is the “customer”. See appendix a for full details.
2. General
2.1. These terms apply to all transactions between the customer and the contractor relating to the provision of goods and services. This includes all quotations, contracts, and variations. These terms take precedence over terms in any customer document.
2.2. Variations or waivers of these terms are ineffective unless in writing and signed by the parties, which can include electronic signatures (including email).
2.3. The supplier may amend details in a quote by written notice to the customer. Amended details supersede prior.
3. Quotation and contract formation
3.1. The contractor may provide the customer with a quote, however, reserves the right to decline to provide a quotation at any time and for any reason.
3.2. The contractor is not obliged to commence work until the quote has been accepted by the customer, however it retains discretion to decline to commence work for any reason, at any time. If a deposit is made, funds will be returned to the customer.
3.3. The contractor reserves the right to amend any quote before acceptance to account for variations in the cost of completion. The supplier will notify the customer of any amendment as soon as practicable, and the amended quote will become the work order for these terms of service.
3.4. An indication of the time frame for provision of the services is an estimate only and not a fixed time frame. Subject to any obligations under the australian consumer law (acl), this estimate is not binding on the contractor.
3.5. The contractor may provide an estimate or quotation based on information provided by the customer through various channels, including email, text message, phone, website inquiry, or any other applicable medium. This quote may be subject to variation following a site inspection.
3.6. The contractor may charge a fee for service for the preparation of a quotation for any reason deemed necessary.
3.7. Upon acceptance and payment of a 50% deposit, or any other amount as offered by the contractor, the quotation constitutes a contract to deliver the services described.
3.8. The quotation is provided as a total package. Any change to the scope of work will require a new quotation. Additional work outside of this contract will be considered a variation and may incur additional charges.
3.9. The party accepting the quotation (the customer) is responsible for ensuring the contractor receives payment as specified in this contract, or as otherwise agreed.
4. Payment terms
4.1. A 50% deposit of the total quoted amount is required to commence work planning and ordering, unless otherwise offered by the contractor.
4.2. The balance of the contract price becomes due and payable immediately upon completion of the works by the customer unless otherwise agreed. If payment is not made within 7 days, administration fees for costs associated with debt collection, including external debt collection, may apply.
4.3. The customer is responsible for ensuring the contractor receives all payments on time. Under the dividing fences act 1961 (the act), the property owner(s) ordering the construction of a dividing fence may recover costs from the neighbouring property owner(s) in default by way of court order. For further information, refer to: dividing fence matters overview.
5. Communication and work planning
5.1. The customer is responsible for coordinating all communications with other affected or interested parties, including boundary line agreements and fence line clearing with neighbours.
5.2. Boundary lines must be clearly identified and marked by the customer. Failure to do so will indemnify the contractor against any claims arising from the position of the constructed works.
5.3. Prior to work starting, the customer must ensure the fence line is cleared and enable access to water and power on both sides. Cleared means that the contractor can work safely and free of obstructions, vegetation, pet excrement, general garden waste, and children’s toys.
5.4. The customer must ensure the site is clear for safe work, including removal of any trip hazards or other job site inspection hazards identified by the contractor. Pets and children are not permitted outdoors unattended while works are underway, and any adults present must remain a safe distance (5 meters or more) from the site of the works.
5.5. All brick paving or similar requiring removal during construction will be left neatly onsite, contractor accepts no responsibility to replace items.
5.6. The customer is required to provide full access to the site and basic amenities for workers on site, such as hygiene (toilet) facilities and water.
5.7. In the event of unforeseen obstacles in-ground requiring additional labour, such as rocks, hard ground, concrete, pipes, wire, or excessive roots, additional costs may be incurred by the customer, which will be treated as a variation to the original contract.
5.8. The customer is responsible for removing or protecting all plants, ornaments, pipes, and other materials at the site that may be damaged during the works. The contractor shall exercise care but accepts no responsibility for any damage to these items.
6. Work site obstructions
6.1. The customer is responsible for locating and notifying the contractor of the position of all underground obstructions including electrical, gas, water, stormwater, sewerage pipes, telephone cables, and any other service facilities that may be affected by the construction and the contractor is indemnified against damages to any and all in-ground obstructions and any resulting damages otherwise.
6.2. If the site is not ready for installation on the notified date and notice is provided in under 48 hours, a callout fee of $350 (ex gst) may be applied.
6.3. Unless otherwise expressly stated, the customer is responsible for obtaining any and all permits required by a local or public authority.
6.4. All construction works will be installed by the contractor to manufacturer specifications, and the contractor will remediate any defects in materials or workmanship for up to 120 days after construction commences, subject to full payment being received within the timeframe in these terms and conditions.
6.5. The contractor will not be responsible for any damage to the constructed works, including storm and strong winds (gusts over 85kph) or other acts of god.
7. Termination and refunds
7.1. This contract may be terminated by either party until materials have been ordered. If work is cancelled by either party before this, funds will be refunded.
8. Additional clauses
8.1. The customer expressly agrees that use of the goods and services is at the customer’s risk. To the full extent allowed by law, the supplier’s liability for breach of any term implied into these terms by any law is excluded.
8.2. All information, specifications, and samples provided are approximations only. Small deviations that do not substantially affect the customer’s use of the goods or services will not entitle the customer to reject the goods or make any claim.
8.3. Where materials are delivered to a work site before installation, risk in goods passes to the customer immediately upon delivery. Property and title in materials supplied to the customer under these terms of trade does not pass to the customer until all money (including money owing in respect of other transactions between the contractor and the customer) due and payable have been fully paid.
8.4. The contractor may repossess the goods if payment is not made within 7 days (or such longer time as the contractor may, in its complete discretion, approve) of delivery; and the customer grants an irrevocable license to the contractor or its agent to enter the customer’s premises to recover possession of materials pursuant to this paragraph. The customer indemnifies the supplier for any damage to property or personal injury which occurs as a result of acting on this clause.
8.5. Under no circumstances is the contractor liable for any loss, damages, costs, expenses, or other claims (including consequential damages and loss of profits) resulting from any defect, deficiency, or discrepancy in the provision of materials or services.
8.6. Any advice, recommendation, information, assistance, or service provided by the contractor is given in good faith and believed to be accurate at the time of its provision. However, it is provided without any warranty of accuracy or reliability.
8.7. To the fullest extent permissible at law, the contractor is not liable for any direct, indirect, punitive, incidental, special, consequential damages, or any damages whatsoever arising out of or in any way connected with the provision or failure to provide goods or services.
8.8. The customer indemnifies and keeps indemnified the supplier against any claim or demand made by any person against the supplier in connection with any loss arising from or incidental to the provision of goods or services, any order, or these terms.
8.9. If circumstances beyond the supplier’s control prevent or hinder the provision of services, the contractor is not obliged to provide them while those circumstances continue and may elect to terminate this agreement or keep the agreement on foot until such circumstances cease.
9. Dispute resolution
9.1. If a dispute arises, the following procedure applies:
– A party may give another party a notice of a dispute, which must be dealt with in accordance with the contractor’s complaints policy on www.fencrgatr.com.
– If a dispute is notified, it must be referred to the parties’ senior management for resolution within 21 business days.
– If unresolved, the parties agree to settle the dispute by mediation administered by the Australian commercial disputes centre (acdc).
– A party must not commence legal proceedings unless the dispute has been referred for resolution under this procedure.
– Despite the existence of a dispute, each party must continue to perform its obligations under these terms.
10. Miscellaneous
10.1. These terms are governed by the laws of the state or territory where the supplier’s registered office is situated. Each party submits to the jurisdiction of the courts of that state or territory.
10.2. These terms and any quotes and written variations represent the entire agreement between the parties.
10.3. These terms supersede all prior negotiations and communications.
10.4. If any provision of these terms is void, voidable, or unenforceable, the remaining provisions continue in full force and effect.
10.5. A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
10.6. Notices or communications must be in writing and delivered personally, sent by pre-paid mail, fax, or email.
10.7. A notice or communication is deemed given if mailed, on the second business day after posting; if sent by fax or email before 4 pm on a business day, on that day; otherwise, on the next business day.
10.8. A party may change its postal or email address or fax number by giving notice in writing to the other party.
Appendix a: definitions:
Additional charge: Fees for additional work performed at the customer’s request or expenses incurred by the contractor as reasonably required
Business day: Any day that is not a saturday, sunday, or public holiday in the location where the services are provided.
Customer: The person or entity identified on a quote or order as the customer, including their agents and assigns.
Materials / goods: Any goods supplied by the supplier, including those provided in the course of delivering services.
Intellectual property rights: Intellectual property rights protected by statute or common law, including copyright, trademarks, patents, and registered designs.
Loss: Includes costs, expenses, lost profits, damages, personal injury, and property damage.
Order: A purchase order for goods or services placed by the customer in response to a quote, as varied in writing by the parties.
Pps law: The personal property securities act 2009 (cth) and any associated regulations.
Quote: A written description of the goods or services to be provided, an estimate of the supplier’s charges, and an estimated time frame for the work.
Services: The services to be provided by the supplier to the customer in accordance with a quote and these terms of trade.
Contractor or supplier: FencrGatr and its agents and assigns.
Variation: Any alteration to the originally agreed scope of work as requested by the customer or required due to unforeseen circumstances, resulting in changes.
Interpretation: Reference to writing includes email and other electronic communications. The singular includes the plural and vice versa. References to clauses or Paragraphs refer to this document. References to a party include their executors, administrators, successors, and assigns. Where an expression is defined, other Grammatical forms of that expression have corresponding meanings. Headings are for ease of reference only and do not affect interpretation. If an act is required to be done on a day that is not a business day, it must be done on the next business day.
In addition to the express rights of termination provided in these terms of trade, a party may terminate these terms of trade by giving 7 days written notice to the other party.