Terms & Conditions of Trade

1. Application

These Terms apply to all quotations, orders, and Services supplied by DWD to the Client, together with any special conditions in a quotation.

2. Definitions

2.1 “Client” means the person/s buying the Services as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.

2.2 “Services” means all goods or services supplied by DWD to the Client at the Client’s request from time to time.

2.3 “DWD” means DW Dean Pty Ltd A.B.N. 67 006 293 750 trading as DWD Epoxy & Concrete Solutions, its successors and assigns or any person acting on behalf of and with the authority of DWD.

2.4 “Price” means the Price payable for the Services, as agreed between DWD and the Client in accordance with clause 5 below.

2.5 “Terms” means the terms and conditions contained in this document.

3. Acceptance

3.1 DWD agrees to supply the Services to the Client in accordance with these Terms, subject to any other special conditions, caveats or provisos notified to the Client relating to the Services or a particular quotation.

3.2 The Client is deemed to have accepted and is immediately bound, jointly and severally, by these Terms and DWD’s quotation (including any supplemental conditions in the quotation or otherwise notified to the Client) if the Client:

(a) places an order for goods or Services;

(b) communicates acceptance of a quotation in writing (whether any requested deposit has been paid or not);

(c) allows the Services to be undertaken;

(d) pays any deposit to DWD required in a quotation; or

(e) makes any request or does any other action to cause DWD to proceed with providing the Services.

3.3 These Terms may only be amended with DWD’s consent in writing and prevail to the extent of any inconsistency with any other document or agreement between the Client and DWD.

4. Quotation and Deposits

4.1 Where DWD provides a quotation for the supply of Services, the scope of the Services is limited to those described in the quotation only. DWD may provide an amended quotation if the Client requests a change to the scope of the Services.

4.2 DWD may at any time vary the quotation for increases in tax, duty or any other Government charges relating to the Services which come into effect after the date of the quotation. If such increases become applicable after acceptance of a quotation, the quotation and Price are deemed varied so the Price includes those increases.

4.3 The Client must pay a deposit on terms indicated in the quotation, which is non-refundable unless otherwise indicated in the quotation.

4.4 DWD is not obligated to supply the Services until the deposit is paid by the Client and DWD confirms acceptance to the Client in writing.

4.5 Unless otherwise stated in a quotation or via direct communication to the Client, a quotation is only valid for thirty (30) days from the date of its issue and may be withdrawn at any time at DWD’s discretion.

4.6 Proposed dates are estimates until confirmed in writing by both parties. Any additional works, changes, or unforeseen site conditions will be treated as a variation and separately priced before proceeding.

5. Price and Payment

5.1 At DWD’s sole discretion the Price shall be either:

(a) as indicated on any invoice provided by DWD to the Client; or

(b) DWD’s quoted price (subject to clause 4.2).

5.2 DWD reserves the right to change the Price if:

(a) a variation to DWD’s quotation is requested by the Client;

(b) the availability or cost of materials or labour changes compared to those prevailing as at the date of the quotation;

(c) the complexity of circumstances underlying the need for the Services has not been reasonably and properly disclosed to DWD; or

(d) other circumstances outside of DWD’s control.

5.3 DWD may require a booking deposit on terms notified in the quotation. No booking will be confirmed until any required booking deposit has been received.

5.4 A deposit equal to 50% of the total Price is required unless otherwise detailed on any quote or agreed, at DWD’s sole discretion.

5.5 Unless otherwise communicated or quoted prior to Delivery or commencement of the Services, the cost of delivery is not included in the Price.

5.6 Time for payment of the Services is of the essence. The Price will be payable by the Client on the date/s determined by DWD which may be:

(a) on completion of Services;

(b) before commencement of Services;

(c) by way of instalments/progress payments in accordance with DWD’s payment schedule under any quotation or agreed by DWD in communication supplementing a quotation;

(d) the date specified on any invoice or other form as being the date for payment; or

(e) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by DWD.

5.7 DWD will render its final tax invoice for the Services upon completion of the Services.

5.8 Payment may be made by cash, electronic/on-line banking, or by any other method as agreed between the Client and DWD. All payments must be made free from any set-off, deduction, exchange or claim whatsoever.

5.9 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to DWD an amount equal to any GST DWD must pay for any supply by DWD under this or any other agreement for the sale of the Services. The Client must pay GST, without deduction or set-off of any other amounts, at the same time and on the same basis as the Client pays the Price. The Client must also pay any other applicable taxes except where they are expressly included in the Price.

5.10 The Client acknowledges that the Services and materials associated with the Services may be of substantial size/quantity and that storage of the same may be a significant burden to DWD. The Client authorises DWD to utilise third party storage facilities if storage is required and agrees to be responsible for all reasonable costs incurred as a result of storage and freight of the materials. The Client is liable to pay for storage and freight costs charged to DWD, at rates determined by DWD if:

(a) the Services are not able to be undertaken for any reason arising due to the actions of the Client; or

(b) materials required for the performance of the Services are not utilised by the anticipated time due to delay in performing the Services caused by the Client.

5.11 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 DWD nor to withhold payment of any invoice because part of that invoice is in dispute.

5.12 Late payments may incur reasonable administration and recovery costs in addition to any default interest under clause 11.

6. Completion of Services

6.1 Services are deemed to have been delivered and finalised for the Client upon notification by DWD to the Client once DWD considers the Services to have been completed and fully performed as set down in a quotation (“Delivery”).

6.2 DWD may perform the Services incrementally or in stages, as set down in a quotation or communication by DWD to the Client. Each separate instalment/increment/stage shall be invoiced and paid in accordance with these Terms.

6.3 Any time or date given by DWD to the Client is an estimate only. The Client must still accept or facilitate Delivery of the Services even if late, and DWD will not be liable for any loss or damage incurred by the Client as a result of Delivery being late.

6.4 The Client must:

(a) take and acknowledge Delivery whenever notified as being delivered by DWD;

(b) ensure all surfaces to which Services are to be performed/applied are free from defect, including such as water ingress or rising damp;

(c) facilitate Delivery and provide uninterrupted and exclusive access and occupation to the physical locations where Services are required to be performed;

(d) remove from the physical location where Services are to be Delivered any rubbish, furniture, personal effects or other property, pets or people likely to impede DWD’s performance,

in order to minimise delays, risk of injury or any possible damage. If the Client is unable to take delivery of the Services as arranged, DWD shall be entitled to charge a reasonable fee for redelivery and/or storage.

6.5 If the Client does not comply with clause 6.4, then DWD may at its discretion:

(a) delay Delivery and charge a re-delivery / re-booking fee of $200 plus GST (or such other reasonable amount notified by DWD having regard to the nature of the Services, the staff that were otherwise required to have been ready to complete the Services and whether storage is required in the meantime), payable in addition to the Price; or

(b) remain on-site and wait for uninterrupted access and/or remove items or rubbish from the Delivery location and, unless such tasks or delay were specifically included in the scope of the Services, charge the Client a delay / preparation fee payable in addition to the Price, calculated by multiplying the time of the delay or preparation by DWD’s hourly rate of $100 plus GST per hour, with a minimum charge of two (2) hours.

6.6 Unless agreed otherwise in writing, all Services are performed during DWD’s normal business hours, Monday to Friday between 8am and 5pm.

6.7 The client must provide safe and timely access to the site, including power, lighting, water (if required), and clear work areas, and is responsible for moving/protecting vehicles, furniture, equipment, and valuables unless otherwise agreed.

6.8 The client must disclose in writing, before works commence, any known location of services, conduits, cables, pipes, or other items that may be concealed beneath coatings, toppings, or within the work area, and should close windows and doors where practicable and protect indoor areas from dust and debris.

7. Risk & Liability

7.1 Risk of damage to or loss of the finalised product of Services shall at no time pass to DWD and to the extent DWD is required to take on any such risk then this shall re-pass to the Client on Delivery. Upon request by the Client, DWD may at its discretion repair any staining, scratches and/or holes not specifically associated with the Services, at the expense of the Client.

7.2 If there is any damage or destruction to materials utilised in Services but prior to Delivery, DWD is entitled to receive all insurance proceeds payable for the Services and/or materials utilised in performance of Services. The production of these Terms by DWD is sufficient evidence of DWD’s rights to receive the insurance proceeds without the need for any person dealing with DWD to make further enquiries.

7.3 If the Client requests DWD to leave materials outside DWD’s premises for collection, or deliver the materials to or perform Services at an unattended or unsupervised location, then such materials shall be deemed Delivered once left and shall be at the Client’s sole risk, and all Services performed shall be deemed performed once DWD undertakes them and gives notice to the Client. DWD shall in no event be liable for damage or loss which occurs once Delivered at an unattended or unsupervised location.

7.4 The Client acknowledges that DWD shall not be responsible for any defects in the materials used in the Services, or any loss or damage howsoever arising, from the Client not adhering to:

(a) the manufacturer’s recommended maintenance methods and regimes; and

(b) any of DWD’s recommendations via written communications, care instructions, or terms sheets.

7.5 DWD is not liable for and offers no guarantee against cracking and/or lifting of the Services which may result from structural movement, poor substrates or other pre-existing defects whether they are readily apparent or not, and the Client releases DWD from any such liability or claim on this basis. Unless specifically included in scope, DWD is not responsible for pre-existing defects including cracking, moisture/hydrostatic pressure, laitance, contamination, movement, or structural failure.

7.6 Excluding the negligence of DWD, the Client releases DWD from all liability to the Client for any cost, loss or damage (direct, indirect, consequential, economic, physical or otherwise, including loss of profits) of any nature arising in any way:

(a) from any defect or failure of the Services which are supplied to the Client; or

(b) incurred by the Client or any third party by reason of any delay in Delivery of the Services.

7.7 Should DWD be delayed in or prevented from Delivering due to any cause beyond its control, DWD shall be entitled to cancel or suspend Delivery without incurring any liability to the Client for any cost, loss or damage whatsoever arising therefrom.

7.8 Notwithstanding anything to the contrary, and to the extent permitted by law, the liability of DWD for any cost, loss, damage, or injury whatsoever shall be limited to rectification of defective workmanship/product in the affected area only or, if that is not practicable, to the Price of the Services, and DWD shall not be liable for any consequential or indirect damage or loss of any kind whatsoever (including loss of profit, business interruption, alternative accommodation/usage costs, cleaning costs, or temporary lodging).

7.9 Where guards or security are included in the Services quoted for, there is no express or implied term or warranty given by DWD that such guards will comply with any safety requirements which may be applicable, and it shall be the sole responsibility of the Client to ensure that the guards meet those safety requirements.

7.10 The Client indemnifies DWD against all and any claims including all costs and expenses associated with, made by any third persons for any loss, injury or damage of any nature whatsoever arising from the use of those things arising from the Services on and from Delivery, including use in any manner in contravention of any recommendation made by the manufacturer or DWD.

7.11 Without limiting this clause 7, and to the extent permitted by law, DWD is not liable for:

(a) damage to hidden, undisclosed, or incorrectly located services, utilities, or items arising during preparation, coating removal, grinding, cutting, drilling, or related works, unless clearly identified and marked by the Client in writing before works commence;

(b) failure of, or damage to, client-supplied power points, outlets, fittings, circuits, RCDs/safety switches, breakers, switchboard components, or other site services arising from ordinary use during the works; any RCD, safety switch, or circuit breaker trip; the cost of resetting, repairing, or replacing any such item; or claims that electrical appliances, equipment, or devices were damaged or failed due to power use, trips, surges, interruptions, or supply conditions during the works;

(c) dust, odour, fumes, noise, cleaning, hose-down, cleaner fees, alternative accommodation, hotel or temporary lodging costs, loss of use of the property, or similar claims arising from normal site conditions of the works; or

(d) coating failure or damage caused by chemicals, oils, fuels, solvents or contaminants left on the surface, ongoing oil or fluid leaks that are not cleaned off, high-pressure washing/pressure cleaning (including Gerni or similar), abrasive or unsuitable cleaning methods, neglect, or lack of maintenance.

8. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

8.1 The Client must inspect the Delivered product on Delivery and must within seven (7) days of Delivery notify DWD in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Services as soon as reasonably possible after any such defect becomes evident, and in any event within seven (7) days of becoming apparent, with photos and reasonable access provided for inspection. Upon such notification the Client must allow DWD to inspect the Services.

8.2 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 (Non-Excluded Guarantees).

8.3 DWD acknowledges that nothing in these Terms purports to modify or exclude the Non-Excluded Guarantees, which shall prevail to the extent of any inconsistency.

8.4 Except as expressly set out in these Terms or in respect of the Non-Excluded Guarantees, DWD makes no warranties or other representations under these Terms including but not limited to the quality or suitability of the Services requested. DWD’s liability in respect of these warranties is limited to the fullest extent permitted by law.

8.5 If the Client is a consumer within the meaning of the CCA, DWD’s liability is limited to the extent permitted by section 64A of Schedule 2.

8.6 If DWD is required to replace the items associated with Services performed under this clause or the CCA, but is unable to do so, DWD may refund any money the Client has paid for the Services.

8.7 If the Client is not a consumer within the meaning of the CCA, DWD’s liability for any defect or damage in the products Delivered by the Services is:

(a) limited to the value of any express warranty or warranty card provided to the Client by DWD at DWD’s sole discretion;

(b) limited to any warranty to which DWD is entitled, if DWD did not manufacture the materials utilised in performance of the Services; or

(c) otherwise negated absolutely.

8.8 Subject to this clause 8 and the CCA, DWD is not liable to provide remediation unless:

(a) the Client has complied with the provisions of clause 8.1; and

(b) DWD has agreed that the Services performed are defective; and

(c) notification of the defective Services is made within a reasonable time of Delivery.

8.9 Limited Workmanship Warranty: Subject to the CCA and these Terms, the Limited Workmanship Warranty in clause 19 applies to the Services. The exclusions in clause 19.2 apply in addition to (and without limiting) clauses 7.11 and 9.

8.10 Notwithstanding clauses 8.1 to 8.9 but subject to the CCA, DWD shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of the matters described in clause 19.2, or by the Client continuing to use the finished product after any defect became apparent or should have become apparent to a reasonably prudent operator or user.

8.11 Notwithstanding anything contained in this clause if DWD is required by a law to provide remedial services then DWD will only do so on the conditions imposed by that law.

9. Site Conditions, Utilities and Finished Surfaces

9.1 Existing coatings, sealers, toppings, and substrate surfaces may conceal electrical cables, conduits, pipes, reinforcing, or other services and items that are not reasonably discoverable prior to works. Unless such items have been clearly identified and marked by the Client in writing before works commence, DWD is not responsible for damage to any hidden, undisclosed, or incorrectly located services, utilities, or items arising during preparation, coating removal, grinding, cutting, drilling, or related works. Any inspection, repair, or reinstatement of such items is the Client’s responsibility and cost. If DWD is requested to assist, that work will be treated as a variation.

9.2 Where the Client provides power points, outlets, circuits, RCDs/safety switches, switchboards, water supply, lighting or other site services for use during the works, the Client is responsible for ensuring that those services are safe, operational, compliant and of sufficient capacity for DWD’s equipment and the intended works.

DWD relies on those services in good faith and cannot verify their condition, capacity, rating or compliance. If adequate power or other required site services are not available, DWD may delay, suspend or reschedule the works. Any resulting delay, return visit, rebooking or additional costs will be treated as a variation and payable by the Client.

To the extent permitted by law, DWD is not liable for failure of or damage to client-supplied power or electrical services arising from ordinary use during the works, including RCD or circuit-breaker trips, where the loss or damage was not caused by DWD’s negligence.

9.3 Preparation and coating works (including grinding, coating removal, cutting, mixing, and application) produce dust, noise, fumes, and odour as a normal and expected part of the works. Dust may enter adjoining areas of the property, including indoor living areas, despite reasonable care. Unless specifically included in the quotation as a paid containment, cleaning, or protection service, the Client is responsible for any cleaning of the dwelling or property arising from dust or debris from the works; DWD is not obliged to hose down the house/building, perform indoor cleaning, or engage cleaners; and liability exclusions for cleaning and alternative accommodation claims are set out in clause 7.11(c).

9.4 Product odours and fumes (including from epoxies, resins, primers, solvents, and related products) are inherent to the works. The Client should arrange suitable ventilation and, if sensitive to odour or fumes, temporary absence from the site during application and curing.

9.5 The Services typically involve the use of powerful and toxic chemicals. While precautions are taken, no responsibility will be accepted for injury to any person or loss or damage of any property arising from reasonable performance of the Services. By accepting and/or instructing DWD to undertake Services, the Client agrees to release and indemnify DWD from any liability for any such injury, loss or damage, to the extent permitted by law.

9.6 Many of the Services require DWD to grind and coat the surface. DWD does not undertake or offer levelling services and unless specifically included in any quote, no Services shall be deemed to include any works to make the surfaces level in any way. The coating will follow any imperfections of the surface, many of which may be imperceptible, or difficult to see, when the surface is uncoated. Such imperfections are likely to be highlighted by the coating products (particularly gloss finishes). These imperfections may include differences in finished floor levels across the slab, cracks and holes, rain-affected concrete, etc. and DWD shall in no event be responsible for:

(a) remedying the imperfections prior to completion of Services; or

(b) remedying the imperfections after completion of the Services whether the Services make the imperfections more readily apparent or not.

9.7 It is the Client’s responsibility to keep the area where Services are undertaken secure and free from vehicles, people, pets and other animals at all times while the Services are being undertaken and during any period after Delivery required for any finish to properly set, harden or cure. Typical minimum cure periods (subject to product and weather) are: foot traffic 48 hours minimum; vehicle traffic/heavy use 7 days minimum. Early use may void warranty for affected areas. DWD shall in no event be responsible to remedy any damage to the finishes caused by any failure under this clause and if DWD agrees to remedy such damage then it shall be on terms agreed by the parties. The Client should not expect any remedy to be undertaken free of charge.

9.8 If hidden or unforeseen conditions are discovered (e.g., moisture issues, adhesive contamination, weak concrete, additional grinding/repairs, or undisclosed services), work may pause and a variation will be issued for approval before continuing.

10. Intellectual Property

10.1 Where DWD has designed, drawn or developed products, or photographed or recorded procedures or finished results arising from the Services for the Client, then the copyright in any designs, drawings, documents and photographs shall remain the property of DWD, and shall only be used by the Client at DWD’s discretion. The Client agrees that DWD shall be entitled to utilise any photographs or recordings of the procedure or finished product for its own marketing purposes, without the Client’s further consent or approval.

10.2 The Client warrants that all designs, specifications or instructions given to DWD will not cause DWD to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify DWD against any action taken by a third party against DWD in respect of any such infringement.

10.3 The Client agrees that DWD may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or product arising from the Services which DWD has created for the Client.

10.4 The Client indemnifies DWD against all claims, proceedings, costs and expenses incurred or resulting from the breach of this clause or infringement of any registered design or pending or registered patent by any product, design or method of manufacture supplied by the Client to DWD.

11. Default and Consequences of Default

11.1 Notwithstanding any other right of DWD under these Terms or at law, if the Client fails to make payment of DWD’s tax invoice by its due date then DWD is entitled to charge default interest to the Client. The Client is liable to pay such default interest and acknowledges that the default interest will be a rate of 2.5% per calendar month or, should that be determined not to be enforceable by a court of competent jurisdiction, then at the rate charged by DWD’s financier for overdraft interest rate for unsecured overdrafts in excess of $100,000 plus 2% per annum.

11.2 Interest shall be calculated on a daily basis from the due date to the date of payment in full.

11.3 Interest will capitalise at the end of each calendar month such that the interest then forms part of the monies owed and will itself bear interest in addition to the monies already unpaid. This clause does not merge upon any judgment obtained by DWD against the Client, unless waived by DWD in its sole and absolute discretion. Interest is immediately due and payable as a liquidated debt to DWD from the date that it accumulates.

11.4 If the Client owes DWD any money the Client shall indemnify DWD from and against all costs and disbursements incurred by DWD in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, DWD’s contract default fees, and bank dishonour fees).

11.5 Without prejudice to any other remedies DWD may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these Terms DWD may suspend or terminate the supply of the Services to the Client. DWD will not be liable to the Client for any loss or damage the Client suffers because DWD has exercised its rights under this clause.

11.6 Without prejudice to DWD’s other remedies at law DWD shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to DWD shall, whether or not due for payment, become immediately payable if:

(a) any money payable to DWD becomes overdue, or in DWD’s opinion the Client will be unable to make a payment when it falls due;

(b) 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

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

12. Cancellation

12.1 DWD may cancel any contract to which these Terms apply or cancel Delivery of Services:

(a) at any time before Services are commenced; or

(b) in the event of default by the Client then from the date of such default,

by giving written notice to the Client. On giving such notice DWD shall repay to the Client any money paid by the Client for the Services (subject to any amounts DWD is entitled to retain under these Terms). DWD shall not be liable for any loss or damage whatsoever arising from such cancellation.

12.2 The Client may only cancel orders 24 hours before the Service. Cancellation of orders for Services made to the Client’s specifications, or for non-stocklist items, cannot be accepted once production has commenced, or an order has been placed.

12.3 In the event that the Client cancels delivery or clause 12.1(b) applies, the Client shall be liable for any and all loss incurred (whether direct or indirect) by DWD as a direct result of the cancellation and supply of the Services to the date of cancellation, including but not limited to any loss of profits, expenditure on wages and other business expenses and materials that were allocated to the Services. DWD shall be entitled to deduct all such costs from any deposit paid. Where materials have already been ordered or works have commenced, the Client remains responsible for costs reasonably incurred up to the cancellation date.

13. Building and Construction Industry Security of Payment Act 2002

13.1 At DWD’s sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 (Vic) may apply.

13.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of that Act except to the extent permitted by the Act where applicable.

14. Ownership of Materials and Works

14.1 Ownership of materials and installed works remains with DWD until all amounts owing are paid in full, where permitted by law.

15. General

15.1 The failure by DWD to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect DWD’s right to subsequently enforce that provision. If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

15.2 These Terms and any contract to which they apply shall be governed by the laws of Victoria, Australia, and are subject to the jurisdiction of the courts of Victoria.

15.3 DWD may license or sub-contract all or any part of its rights and obligations without the Client’s consent; however this does not reduce or diminish DWD’s obligations under these Terms.

15.4 The Client agrees that DWD may amend these Terms at any time. If DWD makes a change to these Terms, then that change will take effect from the date on which DWD notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for DWD to provide Services to the Client.

15.5 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.

15.6 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.

15.7 The Client shall give DWD 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, contact phone or fax number/s, or business practice) should the Services not yet have been Delivered. The Client shall be liable for any loss incurred by DWD as a result of the Client’s failure to comply with this clause.

15.8 Completion dates are estimates only and may be affected by weather, supplier delays, site readiness, access restrictions, or unforeseen conditions. Reasonable extensions of time apply.

16. Security and Charge

16.1 In consideration of DWD agreeing to supply the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these Terms (including, but not limited to, the payment of any money).

16.2 The Client indemnifies DWD from and against all DWD costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising DWD’s rights under this clause.

16.3 The Client irrevocably appoints DWD and each director of DWD as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.

17. Privacy Act 1988

17.1 The Client agrees for DWD to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by DWD.

17.2 The Client agrees that DWD may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency 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.

17.3 The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

17.4 The Client consents to DWD being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

17.5 The Client agrees that personal credit information provided may be used and retained by DWD for the following purposes (and for other purposes as shall be agreed between the Client and DWD or required by law from time to time):

(a) the provision of Services; and/or

(b) the marketing of Services by DWD, its agents or distributors; and/or

(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.

17.6 DWD may give information about the Client to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Client; and

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

17.7 The information given to the credit reporting agency may include:

(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);

(b) details concerning the Client’s application for credit or commercial credit and the amount requested;

(c) advice that DWD is a current credit provider to the Client;

(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

(f) information that, in the opinion of DWD, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);

(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once; and

(h) that credit provided to the Client by DWD has been paid or otherwise discharged.

18. Force Majeure

18.1 Any agreement to undertake Services is subject to the absence of circumstances or conditions outside the control of DWD. This may include events impacting ability to undertake the Services such as strike, accidents, thermal conditions, natural disasters, acts of God, terrorism and/or other delays beyond DWD’s control.

18.2 The Client releases DWD from any claim that it may have or damages incurred as a result of delays or damage arising from circumstances described in clause 18.1.

19. Limited Workmanship Warranty

19.1 DWD warrants to the Client that:

(a) all Services supplied by DWD will be free from defects in workmanship; and

(b) all Services will meet all specifications advertised and/or published by DWD as at the time of purchase (including hardness, serviceable duration, wear and resistance).

Subject to clauses 19.2 and 8, such warranty shall be for a period of three (3) years from Delivery of Services (Warranty Period).

19.2 During the Warranty Period, any Services which are defective or faulty as a result of poor materials or workmanship will be repaired or replaced (in the sole discretion of DWD) by DWD at its own cost, provided:

(a) the location where Services were Delivered is owned by and in the possession of the Client;

(b) the Client has made all payments due to DWD and is not otherwise in default;

(c) written notice of the defect is given to DWD within fourteen (14) days of discovery of the defect (prolonged notification may result in excess damage which could have been prevented), with photos and reasonable access provided for inspection;

(d) the Services have not been repaired, altered, subjected to negligence, misuse, accident or damage, otherwise than by DWD;

(e) the Client has abided by any recommendations of DWD or the manufacturer in the maintenance and upkeep of the Services; and

(f) the alleged defect or fault is not a result of fair wear and tear, circumstances outside of DWD’s control, circumstances not disclosed to DWD which could reasonably impede the quality of the Services, or any intrinsic defect with the surface to which Services and materials used in completing them have been applied.

19.3 The foregoing warranty is made in lieu of other product warranties expressed or implied, including merchantability and fitness for particular purposes which are hereby specifically or indirectly disclaimed to the fullest extent allowable by law (and without limiting the Non-Excluded Guarantees under clause 8).

19.4 DWD does not give any warranty in respect of anything manufactured by a third party including such materials or tools that are used, incorporated into or are components of the Services Delivered by DWD. If a third-party manufacturer gives a warranty to DWD in relation to such materials and such warranty does not extend to third parties, DWD will use its best endeavours to have the materials repaired or replaced under the third-party’s warranty if the conditions under clause 19.2 are satisfied.

19.5 Upon the supply of any replacement material, part or component to the Client by DWD, the defective component becomes the property of DWD.

19.6 DWD’s warranty will not apply to defects or damage due to unusual abrasive wear situations, neglect, misuse, or failure to properly maintain the coating caused by not following published or provided directions. Circumstances that will void the warranty include (without limitation):

(a) damage to the product caused by external factors including, but not limited to, normal wear and tear, vandalism, improper cleaning or improper use (including high-pressure washing / Gerni or similar pressure cleaners, aggressive scrubbing, abrasive cleaning, or unsuitable cleaning methods), point loads or mechanical causes, fire, explosion, vibration, structural defects and/or movement, lightning, thunderbolt, earthquake and all other unusual occurrences;

(b) water penetration due to capillary rise from the ground level, including water leakage, seeping and continuous dampness of the surface;

(c) defects in the design of the building and slab including structural settlement, movement, expansion or additions or reductions, shifting, distortion, bubbling, deterioration and any other intrinsic defect with the surface/building to which Services are being applied;

(d) exposure of the product to damaging substances such as chemicals, solvents or oils (including chemicals, oils, fuels or solvents left on the surface, and ongoing oil or fluid leaks that are not cleaned off);

(e) colour change, fading, chalking, loss of gloss, tyre staining/hot tyre pickup, or other changes in appearance caused by UV exposure, weathering, environmental conditions, normal wear and tear, or site conditions. UV-stable coatings are intended to assist in reducing UV-related colour change and weathering but cannot eliminate those effects entirely;

(f) puncturing of coating due to sharp objects or movement of heavy articles;

(g) failure to clean or maintain the product in accordance with the manufacturer’s specifications or DWD’s care instructions;

(h) circumstances outside of DWD’s control;

(i) circumstances not disclosed to DWD which could reasonably impede the quality of the Services; and

(j) early use before the applicable cure period in clause 9.7, or damage caused by third parties.

19.7 In no event will DWD or their associated agents be responsible or liable for special, incidental or consequential losses or damages, whether based on tort, contract, or the use of or inability to use the product (without limiting clauses 7.8 and 7.11).

19.8 Before accepting Services from DWD, the Client must determine the suitability for their intended use.

19.9 Post application, the Client is to sign and date an agreement stating that they are satisfied with the Services where requested by DWD.

19.10 Post application, the Client is to adhere to cleaning instructions and the Client assumes all risk and liability whatsoever in connection therewith.

19.11 Unless agreed to by DWD in writing, any warranty given by DWD is not assignable.