Leaking Showers Sealed – Terms and Conditions
Last updated: April 2021
These Terms and Conditions (which incorporate the Quotation Form) comprise the entire Agreement between Jagle Holdings Pty Limited (ACN 145 421 138) trading as Leaking Showers Sealed (“Leaking Showers Sealed”) (hereafter referred to as (Leaking Showers Sealed or we, or us or our) and the person, company or other entity identified as the client in the Quotation Form (‘you” or “your”) for the performance of the Services by us
Leaking Showers Sealed provides Services which consists in re-grouting showers (the “Services”). Your rights to be provided with our Services are set out in these Terms and Conditions (“Terms and Conditions”).
In these Terms and Conditions
We or us or our refers to Jagle Holdings Pty Limited (ACN 145 421 138) trading as Leaking Showers Sealed and/or our subsidiaries and successors and assigns or any person acting on behalf of and with the authority of Leaking Showers Sealed.
You or your is a reference to the person to whom we are providing our Services and whois required to pay for the Services we provide; the person/s ordering the Services as specified in any invoice, document or order, and if there is more than one person is a reference to each person jointly and severally.
Materials means any materials, goods, parts or items we need to buy in order to perform the Services;
Parties is a reference to both us and you;
Premises means the place where we will provide the Services; and
Services means the assistance we will provide in connection with re-grouting showers. The precise Services we will be providing to you will be stated in the Quotation Form and as we agree from time to time.
Price means the Price payable for the Services as agreed between us and you in accordance with this Agreement.
Our Terms and Conditions are collectively referred to as the Agreement (“Agreement”).
0. Amendments to Terms and Conditions
We will have the right to amend the Terms and Conditions of this Agreement and the information set out in the Quotation Form (such as scope of works) where:
(a) we need to do so in order to comply with changes in the law or for regulatory reasons; or
(b) we are changing the rates we charge for the provision of Services; or
(c) we need to correct any errors or omissions (and this right includes the right to change any of the documentation which forms part of the Agreement), as long as such correction is minor and does not materially affect the Agreement.
Where we are making any amendment, we will give you 30 days’ prior notice (unless the Agreement is terminated before that period).
Any variation or amendment to these Terms and Conditions or the information set out in the Quotation Form (such as scope of works) is only valid if it is in writing and signed by you and one of our authorised officers before the variation or amendment takes effect.
We cannot agree to variations or amendments to perform work outside the scope of our BSA licence.
Unless specifically identified in the Quotation Form as forming part of the Services, the following will be deemed to be variations:
- where performance of the Services requires access to property which adjoins the Site and you have been unable to secure access rights or access rights are reduced or withdrawn resulting in additional scaffolding or alternative access expenses;
- where the access methods on which the quote was based (such as scaffolding or EWPs (cherry pickers, booms, scissor lifts etc) are restricted due to engineering issues or Site conditions (such as utility poles or wires or minimum clearances);
- any information relevant to Site access, scope of Services or estimated time to complete the Services which you knew (or after reasonable consideration and making reasonable enquiries prior to engaging us should have known) may affect the performance of the Services in any way but did not make available to us prior to accepting our quote;
- a variation to the Materials which are to be supplied is requested;
- a variation to the Services originally scheduled (including any applicable plans or specifications) is requested;
- if the project is to be completed in separate instalments (in such case, each separate instalment shall be invoiced and paid in accordance with the provisions in these Terms and Conditions;
- where additional Services are required due to the discovery of hidden or unidentifiable difficulties;
- in the event of increases to us in the cost of labour or materials which are beyond our control.
0. Ability to Accept Terms and Conditions
The Quotation is a “fixed price” quote and will not vary. Any items completed on request in addition to those quoted, will be at additional cost, these costs will be added to the invoice on completion. The Quotation contained in the Quotation Form is to be accepted within thirty (30) days of issue. The Quotation will become invalid if not accepted within thirty (30) days and acceptance after this date is at our discretion.
In consideration for you paying to us the Price in the manner and at the times set out in the Quotation Form, we will perform the Services in accordance with these Terms and Conditions.
An Agreement between you and us will come into being in one (1) of two (2) ways:
(i) When you sign the Quotation Form we and you will enter into a legally binding Agreement on the date you sign.
(ii) Where you and we agree orally that we should provide the Services then there will be a legally binding Agreement on the date of our oral agreement.
We suggest that before you sign the Quotation Form or orally agree to us providing Services that you read through these Terms and Conditions. If you have any questions concerning them please ask us.
You should keep a copy of these Terms and Conditions for your records.
0 Our Service
(a) Once the Parties have entered into a legally binding Agreement we will normally start providing the Services to you straight away or on a date agreed between us without further discussion with you. Occasionally the Services will be provided at some other date or time or be dependent on a number of factors.
(b) Our aim is to always provide you with the Services:
(i) using reasonable care and skill;
(ii) in compliance with commonly accepted practices and standards in the Code of Practice; and
(iii) in compliance with New South Wales laws and regulations in force at the time we are carrying out the Services.
1. You acknowledge that the Price is based on the Site being free from latent defects or conditions which may affect the Services and being in the same condition as the date of issue of the quote. If we, acting reasonably, consider that latent defects or conditions or changed site conditions affect the performance of the Services, this will deemed to be a variation and clause 2 shall apply.
2. Unless specifically included in the description of Services in the Quotation Form, no allowance has been made for Site induction or training. Any time we spend attending Site inductions or training required in order for us to gain access to the Site will incur additional costs based on a reasonable hourly rate per person (nominated by us) and will be payable by you (in addition to the Price).
3. You will provide suitable Site amenities (including power, water and toilet facilities) and, if requested by us, Site storage facilities, at no cost to us.
In the event you ask for part or all of the job specification to be changed, despite our recommendation otherwise, you warrant that we cannot be held liable for the outcomes as a result of the changes.
In the event that you choose products or make decisions in relation to the Services which go against our recommendation, you warrant that we cannot be held liable for the outcome of the Services.
We offer services that address an existing waterproofing issue which is due to grout deterioration. Any waterproofing issue which is not due to grout deterioration will be deemed as being outside the scope of our services.
Note that if we discover underlying/unforseen plumbing issues that prevent us from continuing the work, the quote will be adjusted and will be discussed onsite before continuing with the work. If the work cannot continue due to underlying issues, there will still be a fee for attendance and an amount commensurate with the work already completed before needing to cease work.
0. Your Responsibilities
It is agreed by you that should we agree to move any furniture, furnishings or appliances from the vicinity of the works into the middle of the room then we shall not be liable for any damage, breakage or loss caused to those items in the process.
It is your responsibility to remove all fragile items such as glassware, crockery, pot plants and ornaments. Breakages and damages are your responsibility. All care taken but no responsibility accepted by us in this regard.
We are happy to disconnect, remove and reposition electrical appliances during provision of the Services due to their size and weight.
We are not liable for any waterproofing issues below the tiles. This includes behind walls and all plumbing issues.
We are not liable for tiles chipped in the process of re-grouting. All care taken but no responsibility accepted by us in this regard.
We are not liable for any pre-existing damage within bathrooms.
0. Accuracy of your Plans and Measurements
We shall be entitled to rely on the accuracy of any plans, specifications and other information provided by you. You acknowledge and agree that in the event that any of this information provided by you is inaccurate, we accept no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
In the event you give information relating to measurements and quantities of the Materials required completing the Services, it is your responsibility to verify the accuracy of the measurements and quantities, before you or we place an order based on these measurements and quantities.
We accept no responsibility for any loss, damages, or costs however resulting from your failure to comply with this clause.
0 Warranty and Guarantees
1.Subject to Clauses 7.2 and 7.3, we warrant against defective workmanship: in respect of the Services for a period specified in each quote (if no warranty period is specified on the quote, then no warranty is provided), from the completion of those Services and on the basis that our liability for defective workmanship under this clause is limited to the rectification by repair or re-performance (at our election) at our cost of workmanship only.
To obtain service under this warranty:
(i) the property must receive an annual clean by a professional cleaner with the clean to be documented and signed in a logbook; and
(ii) no caustic cleaning agents are to be used during cleaning.
(iii) no steamer is to be used during cleaning
2 You may only claim against the warranty if:
- you have paid the Price in full;.
- you have given us written notice of your intention to claim against the warranty within 14 days of the alleged defect first coming to your attention;
- the alleged defect or defects are not excluded under the terms of any warranty provided by the manufacturer of the products used in the performance of the Services; and
- us concluding, to our satisfaction acting reasonably, that the alleged defect does not arise out of, in connection with or in the vicinity of any latent Site conditions or Site risks (such as structural, building design, environmental conditions or Site risks identified in the Quotation Form), in areas of the Site noted in the Quotation Form as inaccessible during the Site inspection or any of your acts or omissions (including your failure to maintain the surface in a reasonable condition or excessive wear and tear).
3 The warranty in Clause 7.1 does not cover, and we will in no way be liable for any claim arising out of or in connection with:
- substrates with existing corrosion or moisture ingress;
- surfaces affected by building movement or structural issues;
- settling, movement, cracking, lifting, peeling, flaking, deterioration or other failure of the substrate or a previous surface coating;
- concrete surfaces affected by concrete cancer or with a carbon contaminated concrete substrate;
- ferric metals with existing rust conditions or non ferric metals with existing oxidizing issues;
- any galvanised metals whatsoever;
- any floor coating or natural timber coating performed in the course of the Services;
- any part of the Services where we have notified you that a surface is unsuitable for a particular coating and you direct us to apply that coating;
- peeling, flaking, or blistering resulting from faulty manufacture or formulation of the coating system by the manufacturer – Please refer to the specific manufacturer for details about any warranty that may apply to the materials used on your project;
- faulty design or construction of the building;
- any painted surface exposed to extreme conditions such as storm damage or excessive heat; and
- without limitation, any other cause outside our reasonable control.
- We also note that there may be instances where the removal of the existing floor grout cannot be totally removed due to the close proximity of the tiles. After our epoxy application this may result in a slight discolouration line on the outer edge of the grout line, where the old grout has adhered to the inside of the tiles. This does not affect the overall result of the resealing, and we do not guarantee that all old grout will be removed although we take care to remove as much as possible without damaging tiles to ensure the best reseal result.
- We also note that where wall grout and floor grout colours are different, there may be a slight colour transition in the corners where the floor tiles meet the wall tiles. This will not affect the overall result of the resealing, and we do not guarantee that there will be no colour transition.
4 In addition to the limited warranty under Clause 7.1, you will also be entitled to any warranty provided by the manufacturer of products used in the performance of the Works. Under applicable New South Wales 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). We acknowledge that nothing in these Terms and Conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in the quotation, these Terms and Conditions or in respect of the Non-Excluded Guarantees, we makes no warranties or other representations under these Terms and Conditions including but not limited to the quality or suitability of the Materials/ Services. Our liability in respect of these warranties is limited to the fullest extent permitted by law.
If you are a consumer within the meaning of the CAA, our liability is limited to the extent permitted by section 64A of Schedule 2.
By using the Service, you expressly acknowledge and agree that we will not be liable to you or anyone else for any loss or damage, however caused (and whether direct, indirect, consequential or economic) which may be directly or indirectly suffered in connection with the provision of our Services to you.
This general disclaimer is not restricted or modified by any of the specific warnings and disclaimers.
1 This clause shall prevail over any inconsistency with any other provision of these Terms and Conditions.
2 To the extent permitted by law, all conditions, warranties, guarantees, rights, remedies, liabilities and other terms implied or conferred by statute, custom or the general law that impose any liability or obligation on us are excluded. If the performance of the Services is a supply of goods or services to a consumer within the meaning of the Australian Consumer Law, nothing contained in these terms or conditions excludes, restricts or modifies the application of any provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law. To the extent that the Australian Consumer Law permits us to limit our liability, or is not applicable, then our liability in respect of any claim arising out of or in connection with the agreement between us and you relating to the Services or our performance or non-performance of the Services (whether arising under any Agreement, indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity) is limited (in each case, at our option) as follows:
(a) in the case of defective services, supplying those services again or payment of the cost of having those services supplied again, and does not extend to services the subject of the Services which are not defective; and
(b) in the case of defective goods, replacing those goods, supplying equivalent goods or having those goods repaired, or payment of the cost of replacing those goods, of acquiring equivalent goods or of having those goods repaired, and does not extend to goods the subject of the Services which are not defective; and
(c) we will not be liable to you for any claim in the nature of economic loss, loss of profits, revenue or anticipated savings, opportunity cost or any direct or indirect consequential loss whatsoever.
3 You must act reasonably to mitigate any loss you claim to suffer arising out of or in connection with the agreement between us and you relating to the Services or our performance or non-performance of the Services (whether arising under any Agreement, indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity). Our liability may be reduced or extinguished to the extent your losses would have been reduced had you acted reasonably to the extent and in the manner required under the law to mitigate any such loss, including by notifying us immediately after becoming aware of any property damage that you allege we caused or contributed to in the course of performing the Services.
Subject to the CCA, we shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) you failing to properly maintain or store any Materials;
(b) you using the Materials for any purpose other than that for which they were designed;
(c) you continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Services by you or any third party without our prior approval;
(e) you failing to follow any instructions or guidelines provided by us;
(f) fair wear and tear, any accident, or act of God.
If you are not a consumer within the meaning of the CCA, our liability for any defect or damage in the Materials is:
(a) limited to the value of any express warranty or warranty card provided to you by us at our sole discretion;
(b) limited to any warranty to which we are entitled, if we did not manufacture the Materials;
(c) otherwise negated absolutely.
You agree to defend, indemnify and keep indemnified Leaking Showers Sealed, and its respective officers, sub- contractors, employees, agents, representatives, contractors and licensees against any and all expenses, claims, demands, obligations, losses, liabilities, costs (including legal fees) or damages incurred and suffered from the provision of our Services to you, including (without limitation) as a result of any:
(a) breach of this Agreement;
(b) violation of any Intellectual Property or other rights of a third party;
(c) your access or use of the Services;
(d) any of your acts or omissions, except to the extent that such damage, expense, loss or liability or third party claim is caused by, or is contributed to by, our act or omission.
This Indemnity clause will survive termination this Agreement and your use of the Service.
0 Specific warnings and disclaimers
(a) We do not exclude or limit liability for our negligence or negligent omission which causes you personal injury or death.
(b) We shall only be liable for any loss or damage suffered by you which is a reasonably foreseeable consequence of a breach by us of this Agreement. In the event that any loss or damage suffered by you relates to your business activities then we exclude all liability for any business loss and in particular we exclude all liability for loss of profits or other economic loss arising out of a breach of this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of New South Wales.
Nothing in this Agreement shall be construed as excluding or overriding any mandatory terms imposed under any legislation applicable to this Agreement or its performance. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or removed to the minimum extent necessary so that this Agreement shall otherwise remain in full effect.
A 20% deposit is required upon making a booking. The balance of payment is COD. Invoices must be paid on completion immediately while we are onsite. Our preferred payment is EFT, however you can pay by credit card (this will incur a 2% merchant fee). If you pay by EFT, please show a screenshot of the completed payment to the technician before they leave the premises. If you do not pay an invoice by such date, you acknowledge and agree that you may be liable for late payment fees or charges, which may include all reasonable costs incurred by us in seeking to recover payment (such as legal fees and engaging a debt recovery agency).
All invoices must be paid without any deduction or set off.
The existence of any dispute or claim in relation to the Services is not a valid reason for withholding or delaying the payment of any invoice.
(a) Our charges based on time spent
We normally charge for our Services on a time basis. We charge for each hour we spend in providing our Services. Our rates, excluding GST, for performing the Services are set out in your personalised quote.
(b) Our charges based on an estimate
Any time or date given by us to you is an estimate only. We shall not be liable for any loss or damage whatsoever due to failure by us to deliver the Services (or any part of them) promptly or at all, where due to circumstances beyond our reasonable control.
(a)If we provide an estimate then we will charge you the amount stated in the estimate rather than a charge based on the time taken in performing the Services. Note: we only provide estimates and not quotations or binding indications of how much we will charge. Estimates are normally valid for a period of 28 days from the date they are given.
(b) As we provide an estimate we may need to charge you a higher amount than stated in the estimate. This can occur for a number of reasons, in particular where:
(i) what you require us to do changes, or the amount of work or Services you require us to provide increases or is different to what we and you agreed before we started performing the Services; or
(ii) when we start performing the Services it becomes apparent that the amount of Services we will need to perform or the type of work that is involved is different to what we agreed before we started performing the Services and we could not reasonably foresee this before we started performing the Services.
(c) Where the amount of work involved is greater than that stated in an estimate (as set out in paragraph (b)) then following will happen:
(i) if the amount of extra time we need to spend to finish performing the Services will mean that the extra amount payable by you will not exceed 10% of the amount stated in the estimate, then we will carry on providing and completing the Services without contacting you and obtaining your agreement;
(ii) otherwise we will not continue performing the Services and we will seek your approval to the extra amount that you will need to pay, unless:
(A)it is not possible to contact you within a reasonable time; or
(B) it is not safe not to carry out and finish performing the Services (for example, your goods or premises may be left in a dangerous condition or unprotected from theft if the Services are not completed).
(a) When payment is required
Payment for our Services and the Materials is normally made in two ways, either:
(a) at the time we finish performing the Services; or
(b) in a number of staged payments
Which option we will use will be indicated on the quote.
All amounts stated (whether orally or in writing) are exclusive of GST.
d. If you do not pay when required to
If you fail to make payment by the date or time we and you agree, we may:
(a) charge you interest (at an interest rate of 5% per calendar month which shall accrue daily from the date when payment becomes due until the date of payment) on any outstanding amounts if those outstanding amounts remain unpaid for more than 10 days from the date of our invoice or when we asked you first to pay them; and/or
(b) if the amounts not paid represent more than 50% of the total value of the Services we are to perform for you, and there remain some Services which we have not yet performed, then we may suspend performing the remaining Services until you make payment. If you owe us any money you shall indemnify us from and against all costs and disbursements incurred by us in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, our Agreement default fee, and bank dishonour fees).
Without prejudice to any other remedies we may have, if at any time you are in breach of any obligation (including those relating to payment) under these Terms and Conditions we may suspend or terminate the supply of Services to you. We will not be liable to you for any loss or damage you may suffer because we have exercised our rights under this clause.
Without prejudice to our other remedies at law we shall be entitled to cancel all or any part of your order which remains unfulfilled and all amounts owing to us shall, whether or not due for payment, become immediately payable if:
(a) any money payable to us becomes overdue, or in our opinion you will be unable to make a payment when it falls due;
(b) you become insolvent or bankrupt, convene a meeting with your creditors or propose or enter into an arrangement with creditors, or make an assignment for the benefit of your creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any of your assets.
e Where you seek to not pay amounts due to us
You will not refuse to pay any amount owing to us where there is only a minor or inconsequential defect or error in the performance of the Services.
f Security and Charges
In consideration of us agreeing to supply the Materials, you charge all of your rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by you either now or in the future, to secure performance of your obligations under these Terms and Conditions (including, but not limited to, the payment of any money).
You indemnify us from and against all our costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising our rights under this clause.
You irrevocably appoint us and each director of you as your true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on your behalf.
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
Upon assenting to these Terms and Conditions in writing you acknowledge and agree that these Terms and Conditions constitute a security agreement for the purposes of the PPSA and create a security interest in all Materials that have previously been supplied and that will be supplied in the future by us to you.
You undertake to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which we may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause (a)(i) or (a)(ii);
(b) indemnify, and upon demand reimburse, us for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
(c) not register a financing change statement in respect of a security interest without our prior written consent;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without our prior written consent; and
(e) immediately advise us of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
We and you agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms and Conditions.
You hereby waive your rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
You waive your rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by us, you waive your right to receive a verification statement in accordance with section 157 of the PPSA.
You shall unconditionally ratify any actions taken by us under this clause
Subject to any express provisions to the contrary nothing in these Terms and Conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
If we are required to replace any Materials under this clause or the CCA, but are unable to do so, we may refund any money you have paid for the Materials.
If we are required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but are unable to do so, then we may refund any money you have paid for the Services but only to the extent that such refund shall take into account the value of Services and Materials which have been provided to you which were not defective.
Returns will only be accepted provided that:
(a) We have agreed that the Materials are defective; and
(b) the Materials are returned within a reasonable time at your own cost; and
(c) the Materials are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding anything contained in this clause if we are required by a law to accept a return then we will only accept a return on the conditions imposed by that law.
j Days and times when we normally provide the Services and performance of Services away from the Premises
1. We will perform the Services during our normal working hours of 7.30 am to 4.30pm. A normal working day for us means Mondays to Fridays, excluding any bank or other national holidays.
If you require us to perform the Services outside of our normal working hours, or access to the Site is restricted in a way which means we cannot perform the Services during our normal working hours, this will deemed to be a variation and clause 2 shall apply.
2. The Customer Representative you have nominated must be able to:
(i) provide us, and our equipment, with clear and free access to the Site at all times to carry out the Services, including gaining access to any locked or restricted access areas at the Site; and
(ii) co-ordinate, to our reasonable requirements, the performance of any other works at the Site or occupation of the Site by others to enable us to carry out the Services.
We shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to our negligence. The performance of some of the Services may take place away from the Premises.
At the time we perform the Services we may not have all the Materials we need to perform the Services. This may be for a number of reasons such as:
(a) we have not provided an estimate and cannot reasonably establish what Materials are necessary until we start performing the Services; or
(b) where we have provided an estimate, it may not have been reasonably possible to establish the need for particular Materials at the time we provided the estimate. The need for the particular Materials may only be revealed when we start performing the Services; or
(c) whether or not we have provided an estimate, the condition of an item or the area which is the subject of the Services may only become apparent when we start performing the Services and it was not reasonably possible to establish it until that point.
In such cases we may need to purchase Materials. If the Materials are available from a local supplier then we normally wish to travel to the supplier and purchase the Materials and return to continue performing the Services. We normally charge for the travel time at our normal charging rate. If the Materials are not available from a local supplier we normally order the Materials and return on another occasion to continue to perform the Services. We will not charge you for any time spent in obtaining Materials if we have brought or ordered the wrong Materials. In such circumstances we will normally charge for the time spent in making telephone calls to suppliers or our office to locate the required Materials.
You must inspect all Materials on delivery (or the Services on completion) and must within three (3) days of delivery notify us in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. If we are not notified within seven (7) days, the works are deemed completed. You must notify any other alleged defect in the Materials/Services as soon as reasonably possible after any such defect becomes evident. Upon such notification you must allow us to inspect the Materials or to review the Services provided.
We and you agree that ownership of the Materials shall not pass until:
(a) you have paid us all amounts owing to us; and
(b) you have met all of your other obligations to us
Receipt by us 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.
It is further agreed that:
(a) until ownership of the Materials passes to you in accordance with this clause that you are only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to us on request.
(b) you hold the benefit of your insurance of the Materials on trust for us and must pay to us the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c) the production of these Terms and Conditions by us shall be sufficient evidence of our rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with us to make further enquiries.
(d)you must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If you sell, dispose or part with possession of the Materials then you must hold the proceeds of any such act on trust for us and must pay or deliver the proceeds to us on demand.
(e) you should not convert or process the Materials or intermix them with other goods but if you do so then you hold the resulting product on trust for our benefit and must sell, dispose of or return the resulting product to us as we so direct.
(f) unless the Materials have become fixtures you irrevocably authorise us to enter any premises where we believe the Materials are kept and recover possession of the Materials.
(g) we may recover possession of any Materials in transit whether or not delivery has occurred.
(h) you shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain our property.
(i) we may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to you.
If we retain ownership of the Materials then:
(a) where we are supplying Materials only, all risk for the Materials shall immediately pass to you on delivery and you must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that either;
(i) you or your nominated carrier takes possession of the Materials at our address; or
(ii) the Materials are delivered by us or our nominated carrier to your nominated delivery address (even if you are not present at the address).
(b) where we are to both supply and install Materials then we shall maintain a Agreement works insurance policy until the Services are completed. Upon completion of the Services all risk for the Services shall immediately pass to you.
If you specifically request us to leave Materials outside our premises for collection or to deliver the Materials to an unattended location then such materials shall always be left at your sole risk and it shall be your responsibility to ensure the Materials are insured adequately or at all. In the event that such Materials are lost, damaged or destroyed then replacement of the Materials shall be at your expense.
You acknowledge that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. We will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
We shall not be liable whatsoever for any loss or damage to the Services that is caused by any other tradesmen.
Where you have supplied materials for us to complete the Services, you acknowledge that you accept responsibility for the suitability of purpose, quality and any faults inherent in the materials. We shall not be responsible for any defects in the Services, any loss or damage to the Materials (or any part thereof), howsoever arising from the use of materials supplied by you.
Any advice, recommendation, information, assistance or service provided by us in relation to Materials or Services supplied is given in good faith is based on our own knowledge and experience and shall be accepted without liability on our part and it shall be your responsibility to confirm the accuracy and reliability of the same in light of the use to which you make or intend to make of the Materials or Services
The Price is based on the understanding that the Services will be carried out as one continuous project, without delay, with the provision of equipment and services by third parties and access to the Site as and when needed.
Any delays due to reasons outside our reasonable control which result in additional costs or labour (including but not limited to inclement weather, industrial action, Site inaccessibility or delays caused by your act or omission including but not limited to a failure by you to make a colour selection; or failure by you to have the site ready for the Services; or failure by you to notify us that the site is ready) will be assessed by us and charged to you at applicable hourly rates (in addition to the Price).
If for any reason the Services are not completed by the estimated time for completion, we will provide you with a revised estimate for timing of completion of the Services.
Our responsibility to perform the Services by particular dates
We aim to carry out the Services by the dates and times we either agree with you or notify to you. But we cannot guarantee or provide a firm commitment that:
(a) we will start performing the Services by a specified date or time; or
(b) we will complete the performance of all the Services by any specified date or time; or
(c) the performance of any individual part of the Services will be completed by a specified date or time.
What can happen if we cannot start performing the Services or complete performing the Services
(a) If we do not start or complete performing the Services within a reasonable period from the date(s) we have agreed or notified then you may either:
(i) choose to continue to wait until we can start performing the Services or complete performing them; or
(ii) terminate the Agreement.
(b) Where we have started performing the Services and you decide you wish to terminate the Agreement you will only have to pay for any Services we have performed up to the date of termination and for any Materials which we have legal obligation to pay for. If you have made payment(s) to us in excess of the amount of Services we have performed or Materials we have purchased, we will return the difference to you within 28 days of the termination.
(c) What is a reasonable period of time depends on the type of Services we will be performing and the length of time they will take to perform. For example, if you and we believe that the Services will take only a few hours to perform, then if we fail to start performing the Services within eg half a day then you may have the right to terminate the Agreement. But if the Services are due to take several weeks to perform, then if we fail to start to perform the Services after a couple of weeks when we are due to or we do not perform the Services during a couple of weeks when we were due to, then in such circumstances you may be entitled to terminate the Agreement.
Situations or events outside our reasonable control
(a) In addition, there are certain situations or events which occur which are not within our reasonable control (some examples are given in paragraph (b), directly below). Where one of these occurs we will normally attempt to recommence performing the Services as soon as the situation which has stopped us performing the Services has been resolved. In such circumstances there may be a delay (sometimes a substantial delay) before we can start or continue performing the Services.
(b) The following are examples of events or situations which are not within our reasonable control (the following list of examples, is by no means exhaustive):
(i) if the Materials are not delivered on the date or at the time agreed with the supplier of the Materials (and it is not possible to obtain a replacement from an alternative supplier at all or within a reasonable amount of time, or the price charged by the alternative supplier is excessively higher than by the original supplier if ordered at short notice);
(ii) where you make a change in the Services you wish us to perform (and this results in, for example, us having to do further work or wait for new or different Materials);
(iii) where we have to wait for other providers of services (who have been engaged by you) to complete their work before we are able to perform the Services (or the relevant part of the Services dependent on the other provider if ordered at short notice);
(iv) where we are unable to gain access to the Premises to carry out the Services at the times and dates we have agreed with you;
(v) where the areas in the Premises have not be readied by you as we and you have agreed in order for us to perform the Services;
(vi) for other some unforeseen or unavoidable event or situation which is beyond our control.
(c) The following are examples of events or situations which are not within our reasonable control:
(i) continuing to wait until we are able to recommence performing the Services. If you are required to make any payments during this period (for example if we and you have agreed that you will pay us in staged amounts) then we will not require you to make any of the payments required until we are able to recommence performing the Services; or
(ii) allowing you to terminate the Agreement. If you choose this option then you will only have to pay for any Services we have performed up to the date of termination and for any Materials for which we have a legal obligation to pay. If you have made payment(s) to us in excess of the amount of Services we have performed or Materials we have purchased, we will return the difference to you within 28 days of cancellation.
(a) Once the Parties enter into a binding Agreement you will normally not be able to terminate the Agreement, except where we agree or as otherwise provided for in this Agreement.
(b) If we agree to terminate the Agreement then you will be responsible for the cost of:
(i) any of our time in performing the Services up to the date we stop providing the Services; and
(ii) any Materials we are committed to buying up to the date of termination (whether or not we need to pay for them before or after the date the Agreement between us and you is terminated). Any Materials we have purchased (but not used in performing the Services) will be delivered to you.
(c) In the circumstances stated in paragraph (b) we will first deduct the amounts for which you are responsible from any deposit you have paid. Any remaining deposit will be returned to you. If the amount owing is greater than the deposit we will invoice you for the amount in excess of the deposit.
(d) If you:
(i) purport to terminate the Agreement; or
(ii) give notice purporting to terminate the Agreement; or
(iii) otherwise do not fulfil your obligations (such as by not paying any sums due to be paid to us) in a way which amounts to you terminating the Agreement,
we do not have to accept your termination of the Agreement except as provided in paragraph (b) or as otherwise provided for in this Agreement. However, we may choose to accept termination of the Agreement, and if we choose to do so you will be required to pay to us a reasonable amount for the losses and costs (including loss of profit) we have suffered. If you have paid a deposit, this will be retained and if our reasonable losses and costs (including loss of profit) are greater than the deposit we have retained we will require you to pay for our losses and costs in excess of the deposit retained.
Clauses 7,8, 9, 13, 23 and 24 and the clause related to Substrate and surface conditions survive any termination of these Terms and Conditions.
We may cancel any Agreement 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 you. On giving such notice we shall repay to you any sums paid in respect of the Price,
less any amounts owing by you to us for Services already performed. We shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that you cancel the delivery of Services you shall be liable for any and all loss incurred (whether direct or indirect) by us as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for products made to your specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
- Dispute Resolution
- If a dispute arises between the Parties in relation to these Terms and Conditions or the performance of the Services, neither party can commence court proceedings (except if seeking urgent injunctive or interlocutory relief) unless it has first complied with this clause.
- The party claiming that a dispute has arisen must notify the other party to the dispute in writing giving reasonable details and particulars of the dispute.
- If the parties are unable to resolve the dispute within 5 business days of receipt of the dispute notice (or such longer time as is reasonable for the parties to meet to discuss the dispute), the dispute must be referred to mediation.
- If mediator to conduct the mediation cannot be agreed, the President of the Institute of Arbitrators and Mediators Australia (or the President’s nominee) will appoint a mediator. The mediation is to be conducted in accordance with the rules set by the mediator, will be held in Sydney within 30 days of notification of the dispute and will be focussed towards working together to resolve the dispute, such that the parties agree to use reasonable endeavours in an effort to resolve the dispute.
5. The cost of mediation is to be borne equally between us and you.
We may assign, novate or otherwise transfer any of our rights or obligations under these Terms and Conditions or the Quotation Form without your consent. We may sub-contract all or any part of the Works without your consent.
Any notice required to be given in writing shall be deemed to be given if delivered by hand, email or sent by post to the person to whom it is necessary or required to given notice to and shall in the case of posting be deemed to be received after the expiry of two full business days from the date of posting.
Nothing in these Terms and Conditions gives rise to a relationship of partnership, servant, agent or employer and employee between us and you.
These Terms and Conditions constitute the entire agreement between us and you as to the subject matter of this document and supersedes any prior agreement, understanding or representation between us and you and any terms provided by you that purport to govern our performance of the Works.
You shall give us not less than fourteen (14) days prior written notice of any proposed change of ownership of you and/or any other change in the your details (including but not limited to, changes in your name, address, contact phone or fax number/ s, or business practice). You shall be liable for any loss incurred by us as a result of your failure to comply with this clause.
The failure by us to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision.
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.
You warrant that you have the power to enter into this agreement and has obtained all necessary authorisations to allow you to do so, you not insolvent and that this agreement creates binding and valid legal obligations on it.
q. Privacy Act 1988
You agree for us 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 you in relation to credit provided by us.
You agree that we may exchange information about you with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by you; and/or
(b) to notify other credit providers of a default by you; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where you are in default with other credit providers; and/or
(d) to assess your creditworthiness including your repayment history in the preceding two years.
You consent to us being given a consumer credit report to collect overdue payment on commercial credit.
You agree that personal credit information provided may be used and retained by the us 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 your 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 you; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
We may give information about you 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 you including credit history.
The information given to the CRB may include:
(a) personal information as outlined above;
(b) name of the credit provider and that we are a current credit provider to you;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning your 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 you no longer have any overdue accounts and we have been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in our opinion, you have committed a serious credit infringement;
(h) advice that the amount of your overdue payment is equal to or more than one hundred and fifty dollars ($150).
You shall have the right to request (by e-mail) from us:
(a) a copy of the information about you retained by us and the right to request that we correct any incorrect information; and
(b) that the we do not disclose any personal information about you for the purpose of direct marketing.
We will destroy personal information upon your request (by e-mail) 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.
You can make a privacy complaint by contacting us via e-mail. We 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 you are not satisfied with the resolution provided, you can make a complaint to the Information Commissioner at www.oaic.gov.au.
r. Contact Us
if you have any questions or comments about this Agreement, including our Terms and Conditions, please write to us at:
Leaking Showers Sealed
Phone: 0402 700 051
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