Terms and Conditions of Trade
1. Definitions
1.1. “Company” shall mean Waterproofing Works Epoxy grout specialist and its successor and assigns.
1.2. “Customer” shall mean the Customer or any person acting on behalf of the Customer.
1.3. “Guarantor” means the person (or persons), or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
1.4. “Goods” shall mean Goods supplied by the Company to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined).
1.5. “Services” shall mean all services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
1.6. “Price” shall mean the cost of the Services as agreed between the Company and the Customer subject to clause 4 of this contract.
2. Acceptance
2.1. Any instructions received by the Company from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
2.2. Where more than one Customer has entered into this agreement, the Customer’s shall be jointly and severally liable for all payments of the Price.
2.3. Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Company.
2.4. The customer undertakes to give the Company not less than 14 days prior written notice of any proposed in the customer’s name and/or any other change in the customers details (including but not limited, changes in the customer’s, or business practice).
3. Goods
3.1. Goods are described on the invoices, quotation, work authorization or any other work commencement forms as provided by the Company to the Customer.
4. Price
4.1. At the Company’s sole discretion
4.1.1. The Price shall be as indicated on invoices provided by the Company to the Customer in respect of Goods supplied.
4.1.2. The Price of the Goods shall be (subject to clause 4.2) the Company’s estimated price which shall be binding upon the Company provided that the customer shall accept in writing the Company’s estimation within 30 days; or
4.1.3. Whilst all prices quoted are accurate at the time of delivery of a quotation the most recent valid for the good or services shall prevail. Any subsequent change in price will be notified by the Company to the Customer as soon as is reasonably practicable and in any event the price shall be the Company’s price at the date of dispatch.
4.2. Any variation of the plan of scheduled works or specifications will be charged on the basis of the Company’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3. The price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent those taxes are expressly included in any quotation given by the Company.
4.4. The Company may (in its discretion) accept the Goods for credit but this may incur a handling fee of 25% of the value of the return Goods plus any freight costs associated with the return of the Goods.
4.5. Unless otherwise stated the price does not include GST. In addition to the price the customer must pay to the Company any other agreement for the sale of the Goods and services. The customer must pay GST, without deduction or a set off of any other amount, at the same time and on the same basis as the Customer pays the price. In addition the customer must pay any other taxes or duties that may be applicable to the price except where they are expressly included in the price.
5. Payment
5.1. At the Company’s sole discretion a deposit may be required. The deposit amount or percentage of the price stipulated at the time of the order of the Goods and shall become immediately due and payable.
5.2. Time for payment for the Services and Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated payment shall be on completion of services and delivery of the Goods.
5.3. The Company may withhold delivery of the Goods until the customer has payed for them, in which event payment shall be made before the delivery date.
5.4. Payment will be made by cash on delivery, or by check, or by bank check, or by credit card, or by direct credit or by any other method as agreed to between the customer and the Company.
6. Delivery/Risk
6.1. If the Company retains property in the Goods nonetheless, all the risk for the Goods passes to the customer on delivery.
6.2. Delivery shall be made at the customer’s address.
6.3. Risk of damage to or loss of the Goods shall pass to the customer at the time of delivery, or if the customer wrongfully fails to take delivery, the time when the Company has tendered delivery of the Goods.
6.4. In the event that the customer fails to take delivery of the Goods when tendered, the customer is liable for any cost incurred after the date of delivery (including, but not limited to storage costs, additional transportation costs that exceed those costs contemplated by the agreement by the parties, increased costs of freight and insurance rates not contemplated in the quotation).
6.5. The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
6.6. The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the Goods (or any of them) promptly or at all.
6.7. It is the responsibility of the customer to ensure that a secure area is provided for all materials during installation. The customer will be solely responsible for any loss incurred by theft, fire, flood or other risk howsoever occurring.
6.8. If any of the Goods are damaged or destroyed prior to property in them passing to the customer, the Company is entitled, without prejudice to any of its other rights or remedies under these terms and conditions of Trade (including the right to receive payment of the balance of the price for the Goods), to receive all insurance proceeds payable for the Goods this applies whether or not the price has become payable under the contract. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
6.9. The Company may deliver the Services by separate instalments. Each separate instalment shall be invoiced and payed in accordance with the previsions of these terms and conditions.
7. Customers Disclaimer
7.1. The customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Company and the customer acknowledges that he buys the Goods and Services relying solely upon his on skill and judgement and that the Company shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the manufacturer which warranty shall be personal to the customer and shall not be transferable to any subsequent customer.
7.2. Where the Company provides to the customer relating to testing, process development, Goods selection, design, detail, contract supervision and contract management, the Company will exercise its best skill, competence and experience to undertake such services but except otherwise provided by State and Federal law makes no warranty with respect to such services.
8. Defects/Returns
8.1. The customer shall inspect the Goods on delivery and shall within twenty eight (28) days of delivery notify the Company of any alleged defect, damage or failure to comply with the description or quote. The customer shall afford the Company and opportunity to inspect the Goods within a reasonable time following delivery if the customer believes the Goods are defective in anyway if the customer shall fail to comply with these previsions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.2. For Goods which the Company has agreed in writing that the customer is entitled to reject, the Company’s liability is limited to either ( at the Company’s discretion) replacing the Goods or repairing the Goods provided that :
8.2.1. The customer has complied with the previsions of clause 8.1;
8.2.2. The Goods are returned at the customer cost within twenty eight (28) days of the delivery date;
8.2.3. The Company will not be liable for Goods which have not been stored or used in a proper manner;
8.2.4. The Goods are returned in the condition in which they were delivered and with all packaging material in as new conditions as is in reasonably possible in the circumstances.
9. Warranty
9.1. The Company gives no warranty either than that contained herein, in connection with the sale or use of its Goods or Services. The Company’s liability on its warranty shall in no event exceed the contract order value in correcting defects in the Goods and/or the Services supplied.
9.2. No warranty is expressed or implied as to fitness or purpose, or operating performance of the Goods where such performance is conditional on imperial factors or on the whole installation or on the individual or overall operation or on the skills of the operator. When suitability, performance, size, number or capacity of a product ( and if applicable, ancillary attachments whether supplied by the Company or not) is recommended, quoted or selected by the Company to perform a duty either specified by the customer or estimated by the Company, such recommendation, quotation or selection shall be based on the Company’s best experience, but liability for failure to perform the specified or estimated duty will not be accepted by the Company
9.3. Subject to the conditions of warranty set up in clause 9.4 the Company warrants that if any defect in any workmanship performed by the Company becomes apparent and is reported to the Company in writing within the sooner of either twelve months from commencement of service (time being of essence), or in the case of repaired Goods, within the sooner of either three (3) months from commencement of Services (time being of essence), than the Company will either (at the Company’s sole discretion) repair or replace the defect.
9.4. The conditions applicable to the warranty given by clause 9.3 are:
9.4.1. The warranty shall not cover any defect or damage which maybe caused or partly caused by or arise through:
9.4.1.1. The continued use of any Goods after any defect becomes apparent or would have become apparent top a reasonably prudent operator or user; or
9.4.1.2. Ingress of damp or extraneous material; or
9.4.1.3. Fair wear and tear, any accident or act of God.
9.4.2. The warranty shall cease and the Company shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or over howled without the Company’s approval in writing.
9.4.3. The customer shall afford the Company and opportunity to inspect the Goods within a reasonable time following delivery if the customer believes the Goods are defective in any way.
9.4.4. In respect of claims the Company shall not be liable to compensate the customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the customers claim.
9.4.5. Where the Company elects to replace faulty parts, this warranty covers the supply of the replacement parts only and does not cover the change over costs of replacement parts.
9.5. For Goods not manufactured by the Company the warranty shall be the current warranty provided by the manufacturer of the Goods or the provision of this clause whichever is lesser. The Company shall be under no liability whatsoever; except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
9.6. The Company will exercise its best endeavours to blend its work with the balance of the shower/bathroom. The customer acknowledges and accepts that it will not always be a complete match.
10. Australian consumer law
10.1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Australian Consumer Law, except to the extent permitted by that Act where applicable.
11. Plans and work
11.1. The plan and specifications for work to be done under this contract, including any variations is taken to form part of this contract.
11.2. Before the Company starts the work the customer must notify the Company of any matters that may affect the ability of the Company to undertake the work such as previous repair work to the site or any report being done from a third party to the site or the work.
11.3. The Company will re-grout or resurface or use a sealer where required as part of the work, which is included in the Price.
11.4. Prior to application of a product the surface of the work area needs to be prepared with a chemical tile or stone etchant which may change the appearance of the tiles in some instances.
11.5. The owner acknowledges:
11.5.1. The possible change in tile appearance with the use of a product; and
11.5.2. Such change in appearance will not be regarded as a defect under this contract or a breach of any warranty wether statutory or otherwise.
11.6. All areas where the work will be performed must be kept dry 24 hours prior to and 24 hours the work is carried out.
11.7. If the work relates to a shower, it must not be used for 24 hours prior to and 24 hours after the work is carried out.
12. Default and consequences of default
12.1. Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 10% per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2. If the customer defaults in payment of any invoice when due, the customer shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on an indemnity basis and in addition all of the Company’s nominees costs of collection.
12.3. Without prejudice to other remedies the Company may have, if at any time the customer is in breach of any obligation (including those relating to payment); the Company may suspend or terminate the supply of Goods to the customer and any of its other obligations under the term and conditions. The Company will not be liable to the customer for any loss or damage the customer suffers because the Company exercised its rights under this clause.
12.4. If any account remains unpaid at the end of the second month after supply of the Goods or Services, the following all apply: an immediate amount of the greater of $20.00 or 10% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
12.5. In the event that:
12.5.1. Any money payable to the becomes overdue, or in the Company’s opinion the customer will be unable to meets its payments as they fall due; or
12.5.2. The customer 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
12.5.3. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the customer or any asset of the customer; then without prejudice to the Company’s other remedies at law:
12.5.3.1. The Company shall be entitled to cancel all or any part of any order of the customer which remains unperformed in addition to and without prejudice to any other remedies; and
12.5.3.2. All amounts owing to the Company shall, whether or not due for payment, immediately become payable
13. Title
13.1. It is the intention of the Company and agreed by the customer that property in the Goods shall not pass until:
13.1.1. The customer has payed all amounts owing for the particular Goods; and
13.1.2. The customer has met all other obligations due by the customer to the Company in respect of all contracts between the Company and the Customer, and the Goods shall be kept separate until the Company shall have received payment and all other obligations of the customer are met.
13.2. It is further agreed that:
13.2.1. Until such time as ownership of the Goods shall pass from the Company to the customer the Company may give notice in writing to the customer to return the Goods or any of them to the Company. Upon such notice the rights of the customer to obtain ownership or another interest in the Goods shall cease.
13.2.2. If the customer fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the customer, or any premises at the invitee of the customer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
13.2.3. The customer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Company.
13.2.4. Receipt by the Company 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 recognized and until then the Company’s owner ship of rights in respect of the Goods shall continue.
13.2.5. The customer shall not charge the Goods in anyway nor grant nor otherwise give any interest in the Goods while they remain the property of the Company.
13.2.6. The Company may require payment of the Price or the balance of the Price due together with any other amounts due from the customer to the Company arising out of these terms and conditions, and the Company may take any lawful steps to require payment of the amounts due and the Price.
13.2.7. The Company can issue proceedings to recover the Price of Goods sold not withstanding that ownership of the Goods, may not have passed to the customer.
13.2.8. Until such time the customer has the Company’s authority to convert the Goods into other products and if the Goods are so converted the parties agree that the Company will be the owner of the end products.
14. Plumbing and painting
14.1. The Price does not include the cost of plumbing whether to drainage or otherwise and the customer must contact a plumber for any plumbing issues that maybe associated with the work.
14.2. The Company will not carry out any painting or decorating whatsoever in relation to the work related to waterproofing and sealing, separate arrangement can be made.
15. Cancellation
15.1. The Company may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by given written notice. The Company shall not be liable for any loss or damage whatever arising from such cancellation.
15.2. At the Company’s sole discretion may cancel delivery of the Goods and/or Services. In the event that the customer cancels any Goods and/or Services the customer shall be liable for any costs incurred by the Company up to the time of cancellation.
16. Latent, defects, movement and health and safety
16.1. Subject to statutory warranties, the Company shall not be liable for any damage of framework, structure or tiles, faults, defects, deterioration or wear and tear in relation to the work that were not visible or apparent at the initial inspection on site by the Company (“ Latent Defects”) but have appeared and/or deteriorated since the date of the inspection.
16.2. If the Company needs to carry out additional work arising from the latent defects the Company may increase the Price to take account of the additional work.
16.3. The Company will not be liable for any claim arising from the movement of the structure on which the work is carried out.
16.4. The Company may, at its discretion, refuse to carry out the work if the health and safety of any employee or agent of the Company is exposed on site and will request to rectify the problem at the customers cost before the work can be carried out or continued.
17. Cleaning up
17.1. On completion of the work, the Company must remove from the site all of its tools and equipment and dispose of all rubbish, excavated material, vegetation, demolished or dismantled structures and surplus material relating to the work.
17.2. All demolished, dismantled and surplus material will be the property of the Company unless otherwise specified in the quotation.
17.3. The customer acknowledges that there will be some residue dust on site and the customer will be responsible for cleaning.
18. Authority
18.1. The customer’s agent, employee or contractor who signs this contract on behalf of the customer (“Customers Signatory”) warrants that it, he or she has authority to enter into this contract on behalf of the customer.
18.2. The customer’s signatory will indemnify the Company against all loss or damages the Company may suffer arising from a breach of warranty set out in clause 18.1.
18.3. Any representative who signs this contract on behalf of the Company (“the Company’s Signatory”) warrants that he or she has authority to enter into this contract on behalf of the Company.
18.4. The Company’s signatory will indemnify the Company against all loss or damages the customer may suffer arising from a breach of warranty set out in clause 18.3.
19. Lien and stoppage in transit
19.1. Where the Company has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Company shall have:
19.1.1. A lien on the Goods;
19.1.2. The right to retain them for the Price while the Company is in possession of them;
19.1.3. A right of stooping the Goods in transit wether or on delivery has been made or ownership has passed; and
19.1.4. A right of resale,
19.1.5. The forgoing right of disposal provided that lien of the Company shall continue despite the commencement of proceedings or judgment for the Price having been obtained.
20. Limitation of liability
20.1. The Company shall be under no liability whatever to the customer for any indirect loss and/or expense (including loss of profit) suffered by the customer arising out of a breach by the Company of these terms and conditions.
20.2. In the event of any breach in this contract by the Company the remedies of the customer shall be limited to damages. Under no circumstances shall the liability of the Company exceed the Price of the Goods and/or Services.
20.3. Under no circumstances shall the Company have any liability whatsoever for:
20.3.1. Losses, costs, expenses, liabilities and damages (including loss of profits, all liabilities of the customer to third persons and all other consequential damages) , whether direct or indirect, and whether or not resulting from, or contributed to by the default or negligence of the Company, its agents, employees and subcontractors, which might be claimed as the result of the use or failure of the Goods sold, or the Services supplied; or
20.3.2. Sight erection or re-installation costs as a result of rectifications to Goods under a supply only sale; or
20.3.3. Any description, illustrations, specifications, figures as to performance, drawings, and particulars of weights and dimensions submitted by the Company, or contained in the Company’s catalogues Price lists or elsewhere since merely intended to represent a general idea of the Goods, and not from part of the contract or be treated as representations; or
20.3.4. Any technical information, recommendations, statements or advice furnished by the Company, its servants or agents to given in writing in response to a specific written request from the customer before the contract is made.
20.4. The Company design methods criteria, specifications and constraints shall be referenced from various sources by the Company. Alternative design methods, criteria and specifications shall not be recognised from the customer once Goods design has been completed by the c Company.
20.5. In the absence of specific detailed design criteria and specifications supplied in writing from the customer, the Company will design in accordance with the relevant Australian standards and codes.
21. General
21.1. If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2. All goods supplied by the Company are subject to the laws of Western Australia and Company has no responsibility for changes in the law which affect the Goods supplied.
21.3. The customer shall not set off against the Price amounts due from the Company.
21.4. The Company may license or subcontract all or any part of its rights and obligations without the customers consent.
21.5. The Company reserves the right these terms and conditions at any time and time to time. If, following any such review, there is to be any change such terms and conditions, that change will take effect from the date on which the Company notifies the customer of such change.
21.6. Neither party shall be liable for any default due to any act of god, war, terrorism, strike, lockout, industrial action, fire, flood, drought, storm or other events beyond the reasonable control of either party.
21.7. Any notice to be given under the contract shall be in writing and sent by email transmission or forwarded by post to the receiving party at its business address as last notified in writing t the other party and shall be deemed to have been given on the date of the email transmission or on the day following that on which the notice was posted.
