These Terms & Conditions (“Terms”) govern the supply by Keaton Mills Modular, a sole trader (ABN 12 482 409 883) (“KMM”, “we”, “us”, “our”), of modular buildings — Class 1a homes, expandable dwellings, site offices, lunchrooms, ablution units, tool stores and acoustic booths — and related goods and services, to the customer named in a Contract of Sale (“you”, “your”).
These Terms apply to every quote, proposal, Contract of Sale and order unless varied in writing and signed by an authorised KMM representative. By accepting a quote or signing a Contract of Sale, you agree to be bound by these Terms.
1Definitions and interpretation
In these Terms:
| Term | Meaning |
|---|---|
| ACL | The Australian Consumer Law, set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth). |
| Contract of Sale | The signed agreement between you and KMM for the supply of one or more Buildings, into which these Terms are incorporated. |
| Building | The modular building and factory-fitted inclusions described in the Contract of Sale. |
| Engineering Pack | The site-specific design package, including drawings, Form 15 engineering, NatHERS report and BAL assessment where applicable. |
| Force Majeure Event | An event beyond the reasonable control of a party, including fire, flood, cyclone, pandemic, strike, government act, port closure and freight disruption. |
| Handover | The point at which KMM completes on-site setup and provides you with the keys and handover documents. |
| Quote | The written, itemised proposal we issue to you, valid for the period stated on it. |
| Site | The land at which the Building will be installed, as identified in the Contract of Sale. |
| Variation | A change to the specification, fitout, location or scope agreed under the Contract of Sale. |
In these Terms, the singular includes the plural; references to a statute include any subordinate or successor legislation; and headings are for convenience only and do not affect interpretation.
2Quotes
A Quote is an invitation to enter into a Contract of Sale on its terms and is not a binding offer until accepted in writing by us. Quotes are valid for thirty (30) days from the date of issue unless otherwise stated on the face of the Quote.
Quotes are based on the information you provide and on the assumptions stated in the Quote. We may revise a Quote (before acceptance) if site conditions or other material assumptions change. Common examples include unsealed access, soil class above P, restricted crane positioning, remote bushfire-attack-level sites and non-standard site setbacks.
Where the Quote is described as “turnkey”, it includes the unit, freight, crane, site setup, utility connection (as described), engineering certification, council lodgement and certifier fees, unless an exclusion is specifically noted on the Quote.
3Contract formation
A binding Contract of Sale is formed when:
- you sign the Contract of Sale document; and
- we acknowledge the signed Contract in writing; and
- you pay the deposit in accordance with section 4.
Until all three steps are complete, neither party is bound. Once formed, the Contract consists of the signed Contract of Sale, the accepted Quote, these Terms, the Engineering Pack (when issued) and any agreed Variations.
4Payment
Unless otherwise agreed in writing, the payment structure is set out in the sub-sections below.
4.1Schedule
| Stage | % | Triggers |
|---|---|---|
| Deposit | 50% | Commences engineering, drafting, manufacturing and council lodgement. |
| Progress | 35% | Payable on factory completion and prior to dispatch. |
| Final | 15% | Payable on delivery to site and prior to crane lift / unfold. |
Payment is to be made by electronic funds transfer to the bank account nominated on our tax invoice. We do not accept payment by cash. Card payments may incur a surcharge equal to our cost of acceptance.
4.2Deposits and refunds
Deposits become non-refundable once engineering, drafting, council lodgement or manufacturing has commenced. If you cancel before any of these activities begin, we will refund the deposit less any administrative costs already incurred (which we will substantiate to you on request).
4.3Late payment
If a payment is not made by its due date, we may:
- charge interest at the Reserve Bank of Australia's cash rate plus two per cent, accruing daily on the overdue amount;
- suspend manufacturing, dispatch or installation until the overdue amount is paid;
- retain title in the goods until payment is received in full (see section 7);
- recover from you any reasonable costs of collection, including legal fees on an indemnity basis.
5Lead times and manufacturing
Indicative lead times are stated on the Quote and the Contract of Sale. They are estimates only and may be affected by council approval timing, weather, freight availability, customs and biosecurity processing, materials supply and any Force Majeure Event.
We will provide regular progress updates and will not be liable for delays caused by matters outside our reasonable control. Where a delay is likely to be material, we will notify you and discuss a revised programme.
6Site access, approvals and compliance
The sub-sections below address the responsibilities of each party at the Site.
6.1Access and preparation
You are responsible for ensuring lawful, safe and unobstructed vehicle and crane access to the Site on the agreed delivery date. You warrant that you are entitled to install the Building on the Site, that the Site complies with relevant council requirements, and that the Site is suitable for residential or commercial occupation as relevant.
We may charge for additional crane hire, traffic management, pilot vehicles, or delivery rescheduling caused by inadequate or misrepresented Site access. Where a Site survey is required, we will quote the survey separately.
6.2Council approvals
Where the Contract of Sale includes council lodgement, KMM will manage lodgement and act as your agent in dealings with the local government and the private certifier. Final approval timeframes are determined by the council and are not within our control.
You are responsible for any approvals or consents that are not within the scope of our lodgement — for example, consents from a body corporate, easement holders, native-title parties, neighbours or co-owners.
6.3Utility services
Unless explicitly included in the Quote, you are responsible for bringing water, sewer, electrical and telecommunications services to within five metres of the Building footprint. Final connection within the Building is performed by KMM or a licensed sub-contractor we engage.
Where services need to be extended or upgraded (for example, a new transformer pole), we will quote the works separately on a time-and-materials basis or arrange them through a licensed third party.
7Delivery, title and risk
Title in the Building does not pass to you until we have received the final payment in cleared funds. Until that point, the Building remains the legal property of KMM.
Risk in the Building passes to you on delivery to Site. From the delivery date, you are responsible for:
- arranging Site security;
- holding and maintaining building insurance covering the Building for its full replacement value;
- ensuring the Building is not used or occupied (for Class 1a Buildings) before the Certificate of Classification is issued by the certifier.
8Warranty
Our warranty is set out in full on the Warranty page. In summary:
- 10-year structural warranty on the steel frame and primary structure;
- 12-month warranty on internal fixtures, fittings and KMM-supplied appliances.
Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the ACL that cannot lawfully be excluded.
8.1Australian Consumer Law
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service you are entitled to cancel your service contract with us and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time.
9Variations
Variations to specification, fitout, location or scope must be agreed in writing using a Variation Order issued by us. A Variation Order will set out the change, the impact on price, the impact on programme and (if relevant) the impact on warranty.
We cannot accept Variations after dispatch from the factory or after the on-site setup has commenced, unless we expressly confirm we can do so in writing.
10Cancellation and termination
The sub-sections below address cancellation and termination scenarios.
10.1Cancellation by you
You may cancel a Contract of Sale before manufacturing commences. The deposit is refundable less any costs we have incurred — typically engineering and drafting time, council lodgement fees and any deposit paid to the manufacturer.
Once manufacturing has commenced, cancellation is at our discretion and may incur a charge of up to 90% of the contract price, reflecting the materials and labour already committed.
10.2Termination by us
We may terminate a Contract of Sale by written notice if:
- you fail to make a payment by its due date and do not remedy the default within seven business days of written notice;
- you become insolvent, enter into liquidation, voluntary administration, bankruptcy or a similar process;
- you provide materially false or misleading information to us;
- continuing the contract would require us to breach a law or an order of a court or regulator.
On termination, we may retain title in the goods and recover from you all costs incurred up to the date of termination.
11Liability
To the maximum extent permitted by law, and subject to your rights under the ACL and other non-excludable consumer-protection law:
- our total liability arising under or in connection with the supply of any product or service is limited, at our option, to the repair, replacement, or refund of the relevant product or service;
- we are not liable for indirect or consequential loss, including loss of profit, loss of revenue, loss of use, loss of opportunity, loss of contract, loss of reputation, or loss of business interruption insurance excess;
- our aggregate liability under or in connection with any one Contract of Sale is capped at the contract price paid for the Building under that Contract.
Nothing in this section limits any liability we owe to you for personal injury or death caused by our negligence, fraud or any other liability that cannot lawfully be excluded.
12Force majeure
Neither party is liable for any failure or delay in performing its obligations under these Terms caused by a Force Majeure Event, except for an obligation to pay an amount that has become due and payable.
The party affected must:
- notify the other party as soon as practicable;
- take reasonable steps to mitigate the effect of the Force Majeure Event;
- resume performance as soon as the Force Majeure Event ends.
If a Force Majeure Event continues for more than ninety days, either party may terminate the affected Contract of Sale by written notice and we will refund any monies paid by you that we have not incurred or committed.
13Intellectual property
All intellectual property rights in our designs, drawings, engineering, marketing materials, photography and software belong to us (or our licensors). Nothing in these Terms transfers any of those rights to you. You are granted a limited, non-exclusive, non-transferable licence to use the materials supplied to you solely in connection with the Building and the Site.
You must not reproduce, distribute or commercialise our designs or engineering pack — including by providing them to another manufacturer or builder — without our prior written consent.
14Confidentiality
Each party must keep confidential the other party's non-public information disclosed during the contract, including pricing, designs, customer lists and trade secrets. The obligation does not apply to information that is or becomes public other than through a breach of these Terms, or that a party is required by law to disclose.
15Privacy
Our handling of your personal information is described in our Privacy Policy. Our Privacy Policy forms part of these Terms.
16Notices
Any notice under these Terms must be in writing. Notice to us is given by emailing sales@keatonmills.com. Notice to you is given by emailing the email address you have last provided to us. A notice is deemed received on transmission, provided the sender does not receive a bounce or delivery failure within one business day.
17Assignment
You may not assign, transfer or otherwise deal with your rights or obligations under a Contract of Sale without our prior written consent (not to be unreasonably withheld). We may assign or transfer our rights and obligations to a related body corporate or a successor entity (for example, on a sale of the business) on notice to you.
18Dispute resolution
If a dispute arises between you and us:
- the parties must first try to resolve the dispute by good-faith discussion within ten business days of written notice;
- if not resolved, the parties may agree to mediation through the Queensland Law Society's mediation panel (or equivalent in another state);
- if mediation does not resolve the dispute, either party may commence proceedings in a court of competent jurisdiction.
This section does not prevent either party from seeking urgent injunctive or equitable relief from a court at any time.
19Severability and waiver
If any part of these Terms is found to be invalid or unenforceable, that part is severable to the extent of the invalidity or unenforceability and the remainder continues in full force. A failure or delay in exercising any right does not operate as a waiver of that right.
20Governing law and jurisdiction
These Terms are governed by the laws of the State of Queensland, Australia. The parties submit to the exclusive jurisdiction of the courts of Queensland and the courts entitled to hear appeals from them.
21Changes to these Terms
We may update these Terms from time to time. The version applicable to a Contract of Sale is the version current at the date the Contract of Sale is signed. The current version is always available at keatonmills.com/terms with the “last updated” date shown below the title.
22Contact
Questions about these Terms can be sent to:
Keaton Mills Modular
ABN 12 482 409 883
Email: sales@keatonmills.com
Phone: 0410 112 685