In these conditions:-
(a) “Company” means Xtreme Seal Pty Ltd ACN 168 422 375 its successors and assigns and any person acting onbehalf of and with the authority of Xtreme Seal Pty Ltd.
(b) “Client” means those requiring performance of the Works and includes their representative/s, agent/s or employee/s.
(c) “Works” means those services and materials to be supplied and carried out by the Company.
(d) “Contract” means agreement between the Company and the Client including but not limited to the terms and conditions herein and the quote submitted to the Client by the Company prior to commencement of the works.
(e) “Variations” means any agreed change or alteration to the scope of the Works or the conditions in this Contract whether express or implied.
2. CUSTOMER AUTHORISATION AND ACCEPTANCE
(a) The Client warrants that they are duly authorised to engage the Company to undertake the Works.
(b) Any signatory for a proprietary limited company is personally liable for the Client’s obligations as if the signatory is the proprietary limited company.
(c) The Client accepts the Contract by:
(i) signing and returning a true copy of the quotation (a signed facsimile or scanned copy of the quotation will be binding for the purposes of these terms and conditions); or
(ii) instructing the Company to proceed with the works in writing; or
(iii) by orally instructing the Company to proceed with the works; or
(iv) by paying the deposit regardless of whether any of the steps in 2(c) (i) – (iii) herein have or have not been taken.
(d) The date of acceptance is the date the Client takes any or all of the steps in 2(c) (i) – (iv) herein.
(e) The Company need not commence work until the quote has been accepted by the Client this includes payment of the deposit as required by the Company.
(f) Quotations are valid for thirty (30) days only, unless an extension has been authorised by the Company.
(g) In acceptance of the quotation, the Customer warrants that it has not relied on any representation by the Company other than the written quotation.
3. CANCELLATION BY THE CLIENT
(a) The Client agrees to reimburse the Company for any costs, expenses and losses incurred by the Company if the Client cancels the Contract. These costs, expenses and losses may include, but are not limited to, administrative fees (limited to $330 inclusive of GST), cost of any materials purchased on behalf of the Client for the purposes of completing the Works, third party contractor fees to prepare, commence or complete Works, travel expenses incurred and any other reasonable costs incurred by the Company in the course of performing or preparing to perform Works as requested by the Client
(b) The Company is entitled to retain any part or the whole of the Client’s deposit as reimbursement of the Company’s costs, expenses and losses.
(c) If the Company’s costs, expenses and losses exceed the quantum of the deposit the Company is entitled to recover the excess from the Client and the Company will serve notice on the Client specifying the amount payable and the Client shall reimburse the Company within seven (7) days of the date of the notice.
(e) If the Client fails to pay the amount specified in the notice within the timeframe allowed in condition 3(c) the Company will be entitled to commence legal proceedings to recover the amount despite condition 15 herein.
4. CONTRACT PRICE
(a) All prices are calculated on the basis of existing costs of labour, fixtures and materials at the date of pricing and are subject to adjustment by the amount of any increase or decrease in such costs pursuant to any award or industry agreement regarding wage rates or conditions of employment and/or as a result of any increase or decrease in the market price of materials and supplies.
(b) If there are changes to any market price and/or law which have the effect of increasing the price of materials or labour, then the Company will be able to claim such price increase from the Client.
(c) Where prime cost items and/or provisional sums have been included in the Contract Price and a greater amount is spent than the allowance, the Client shall pay the difference to the Company within seven (7) days of the date of the invoice.
(d) If the Company encounters conditions concealed in, behind, above or below any existing buildings, structures, finishes etc. and these conditions do not form part of the Contract Price upon which the quotation was issued then the Company shall notify the Client and obtain instructions prior to proceeding with the effected Works and costs for such Works will constitute a Variation to the Contract.
(e) The Client acknowledges that in the case the Company encounters conditions concealed in, behind, above or below any existing buildings, structures, finishes etc. as stated in condition 4(d), and the Client decides to cancel the Contract or not proceed with the additional works, then the Company reserves the right to withhold all deposits and payments made by the Client to cover all outstanding costs etc. as stated in condition 3 of this Contract.
(f) Where additional work is required for special treatment and/or replacement of damaged tiles or the like, the additional costs of treatment or replacement work will constitute a Variation to the Contract.
(g) This Contract makes no provision for the removal of any fixtures or fittings. All costs related to removal, cartage and disposal of fixtures and fittings from site will constitute a Variation to the Contract.
(h) The Contract Price for the Works is based upon the assumption that all existing work complies with any applicable laws and regulations. Any work required to bring existing installations into compliance with the current law shall constitute a Variation.
(i) The Contract Price for the Works is based upon the assumption that the Company will have clear access to the site during normal working hours. If the Company’s access to the site is impeded in anyway, costs related to impaired site access shall constitute a Variation.
(a) All Variations must be agreed to by the parties save and except for the conditions of 5(c) herein.
(b) All Variations from the Works described in the quotation or emerging from condition 4 herein will form part of this Contract.
(c) In circumstances in which the Client verbally varies the Contract, herein after described as a “Do and Charge Variation”, and the Company encounters concealed conditions which were not considered in the Do and Charge Variation cost, all costs related to attending to these additional works will constitute a Variation and will not require the Client’s consent. Do and Charge Variations are not fixed price agreements.
(a) Upon accepting this Contract the Client must immediately pay the Company a deposit of fifty per cent (50%) of the quotation via Cash, Credit card over the phone, Electronic Funds Transfer into the Company’s nominated bank account, bank cheque deposited into the Company’s nominated bank account or by delivering a bank cheque to the Company.
(b) The Client shall pay a further deposit for any Variation of the Contract costing $1,000.00 or more on the same conditions as 6(a) herein.
(c) If the Client fails to pay any deposit the Company reserves the right to refuse to commence the Works or to halt any further work until such time as the outstanding payment is paid in full.
(d) The Client must pay the residual of the Contract Price to the Company upon completion of the Works or on the date of the final invoice, whichever is first. The payment of the due balance is expected upon completion of the Works, before the technicians leave the property. In the event that the due balance does not get paid on the date of completion, the Company reserves the right to remove all of their materials and installed fittings, tiles and grout installed by the Company.
(e) If the Client fails to make any payment the Company, the Company may charge the Client five per cent (5%) interest
plus the rate prescribed by the Penalty Interest Rates Act 1983(Vic) on the money owing from the date of default until the
date of full payment. The Client must also allow access to the property so that the Company may safely withdraw and
remove all the fittings, tiles and grout installed by the Company.
(f) If the Client fails to pay the residual of the Contract Price to the Company, the Company may commence legal proceedings to recover the amount without the necessity of proceeding to arbitration.
(g) Notwithstanding condition 6(f) the Company may elect to proceed to arbitration and if that election is made arbitration will proceed in accordance to condition 15.
(h) The Client must pay to the Company any costs, expenses or losses incurred by the Company as a result of the Client’s failure to pay the Company all sums owed by the Client to the Company including debt collection/legal costs on a solicitor/client basis.
(i) Progress payments must be made by the Client for contracts exceeding $3,000.00 or for contracts which may take more than three (3) days to complete. Progress payment due dates may be specified separately by the Company.
7. SUPPLY OF MATERIALS
(a) Title of the goods sold and delivered pursuant to this Contract shall remain with the Company until full payment is made by the Client to the Company together with all charges for extra materials and/or Works.
(b) Where any fixtures, fitting, fittings materials and/or equipment are supplied by the Client they will be stored, handled and installed at the risk of the Client and the Company will not be liable for, the unsuitability of, or any damage caused to these items.
(c) All materials removed from the Client’s site/premises shall be deemed the property of the Company unless the Company is otherwise notified by the Client.
(a) The Company will take out any insurance that is required by any Act of Parliament (‘statutory insurance’) that imposes an obligation on the Company to take insurance cover.
(b) Insurance to cover any risk in respect of all existing buildings, structures, services and other features on the Land, whether or not these are being modified, altered, renovated, extended or added to under the Contract will be maintained by the Client unless otherwise agreed to in writing between both Company and the Client.
9. COMPANYS OBLIGATIONS
(a) The Commencement Date is the date agreed by the Company and the Client for the Works to commence.
(b) The Completion Date is the date agreed by the Company and the Client for completion of the Works.
(c) The Works will commence on the Commencement Date and will be completed by the Completion Date.
(d) The Company will not be liable for any reasonable delay in commencing and/or completing the Works and the Client will not gain any chose in action whatsoever from any reasonable delay in commencing and/or completing the Works.
(e) The Company will perform all work in a workmanlike manner.
(f) The Company will perform all work in accordance with Occupational Health and Safety Requirements.
(g) The Company will handle any fixtures, fittings, materials and/or equipment provided by the Client with reasonable care.
(h) The Client will not have any right of action against the Company in contract, tort or any other law for any reasonable breach by the Company of condition 9 herein.
(i) The Company will take reasonable care when de-grouting any tiled surface. The Company will not be liable for any reasonable incidental damage that occurs due to the use of powerful de-grouting tools and the Client acknowledges that powerful de-grouting tools may be used in the de-grouting process; chips, scratches and nibs on tiles are sometimes unavoidable.
10. RIGHT TO SUBCONTRACT
The Company may at all times subcontract any part or parts of the Works. This does not relieve the Company of any obligation under the Contract or at law.This provision takes precedence over any other agreement relating to subcontracting entered into by the Company with the Client.
(a) The Company warrants that its Works are supplied and carried out free from defects and in a workmanlike manner for a period of two (2) years, save and except for the epoxy which the Company warrants for twenty-five (25) years and the Caulking/Silicone for one (1) year. Subject to conditions 11 (b) – (g), if the Company’s services and/or products are defective, the Company will repair the defect free of charge.
(b) The Client acknowledges that the leak is the product of pre-existing defect and/or lack of maintenance and that the sealant aims to significantly reduce/minimise further damage to the affected area but the process will not remedy any underlying cause of the defect including but not limited to inadequate fall, failure to install water proofing, inadequately or improperly installed water catchment equipment. The Company is not liable to repair pre-existing defects that are not remedied by its services and product.
(c) The Company only fixes leaking tiles and is not responsible for any leaks from any other source whatsoever.
(d) The warranty is void if the Client uses the sealed or surrounding areas within twenty-four (24) hours of completion of the Works, cleans the sealed or surrounding areas with a solvent or any other toxic chemical, and/or in any way misuses, abuses or neglects the sealed or surrounding areas within the warranty period.
(e) The Company does not provide warranty for goods supplied by the Client to be used in the work by the Company.
(f) The Client acknowledges that all caulking/silicone applied will gradually grow mould and deteriorate if reasonable and necessary care is not taken by the Client. The Company will not be liable in the event of caulking/silicone failing caused by negligence and lack of maintenance and cleaning by the Client.
(g) The Client acknowledges that all warranties or guarantees may be voided by Force Majeure Event.
(a) The parties acknowledge that, under the Australian Consumer Law, certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Client in relation to the provision of the goods and services which cannot be excluded, restricted or modified by the Agreement (“Non-excludable Rights”).
(b) “Disclaimer of Liability”. The Company disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Client, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of the Company for a breach of a Non-excludable Right is limited, at the Company’s option, to the supplying of the goods and/or any services again or payment of the cost of having the goods and/or services supplied again.
(c) “Indirect Losses”. Notwithstanding any other provision of these Terms and Conditions, the Company is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Client for:
(i) any increased costs or expenses;
(ii) any loss of profit, revenue, business, contracts or anticipated savings;
(iii) any loss or expense resulting from a claim by a third party; or
(iv) any special, indirect or consequential loss or damage of any nature whatsoever caused by the Company’s failure to complete or delay in delivering the Goods or completed the work.
13. FORCE MAJEURE
Force Majeure Event means: any act of God, any outbreak or escalation of hostilities (whether or not war has been declared), any other unlawful act against public order or authority, any industrial dispute, any government restraint or any other event which is not within the reasonable control of the parties.
(a) The Company is not liable for its inability to perform, or delay in performing, any of its obligations under this Contract if that inability or delay is caused by a Force Majeure Event.
(b) The time for performance of any of the Company’s obligations under this Contract is extended by a period to the period of any Force Majeure Event which causes the Company’s inability to perform, or delay performing, the obligation.
14. SECURITY OF PAYMENT LEGISLATION
Despite any provision in this Contract the Company is entitled if they elect to make and pursue payment claims under and in accordance with the provisions of the Building and Construction Industry Security of Payment Act 2002.
(a) Save and except for the Company’s right to commence legal proceeding pursuant to condition 3 herein, any dispute at any time between the parties in relation to any matter arising from or in connection with this Contract is hereby submitted to arbitration.
(b) Either party may give to the other party Notice of Dispute (which must be in writing) describing the dispute. Should any Notice of Dispute be given by a party after the first given Notice of Dispute and during the currency of the arbitration of the dispute referred to in the first-given Notice of Dispute, the arbitration is hereby extended so as to include the disputes referred to in that further Notice. If the parties fail to agree on the identity of the arbitrator within three (3) working days of the giving of the first given Notice of Dispute then either party may write to the President for the time being of the Master Builders Association of Victoria (“MBAV”), advising that a dispute exists and requesting the nomination of an arbitrator.A copy of the Contract, a copy of any Notice/s of Dispute and a payment for security of costs (which is to include the relevant non-refundable fees, in the amount set from time to time by MBAV by way of its own administrative costs) must be included with the request.
(c) Where in the first-given Notice of Dispute the amount claimed does not exceed $50,000.00 or the claim is not expressed in a quantified monetary sum the parties must appear in person before the arbitrator and not be represented, whether legally or otherwise, unless one of the parties is:
i) legally qualified, then the parties may be represented; and or
ii) a body of persons, whether incorporated or unincorporated that party may be represented
by an officer or an employee.
(d) The arbitrator must hear and decide any matter by reference to consideration of general justice and fairness, and is not bound to apply the rules of evidence and procedure.
(e) In any arbitration proceedings either party may raise by way of further claim, set-off, defence or cross-claim, any other dispute whatever arising from or in connection with this Contract whether or not a Notice of Dispute in respect of the other dispute has been given.
(f) The arbitrator’s decision is binding and the parties must make further payments as directed by the arbitrator.
(h) If a party fails to comply with the arbitrator’s decision, legal proceedings may be commenced to enforce the decision. The decision will be conclusive of the debtor party’s liability to pay and have the same standing as a judgment debt.
If any condition or any part of any condition is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the condition (or where possible, the offending part) is to be severed from this Contract without affecting the enforceability, validity or legality for the remaining conditions (or parts of those conditions) which will continue in full force and effect.
17. GOODS AND SERVICES TAX (GST)
Any references in the Contract to the Goods and Services Tax (GST) bear the same meanings as the meanings given in the A New Tax System (Goods and Services Tax) Act 1999.
18. GOVERNING LAWS
In all respects the Contract is governed and interpreted in accordance with the laws that apply in the State of Victoria.
Any notices, request or demand to be given pursuant to this Contract shall be given in writing and shall be sent to the party by way of post, fax or email. Notice by fax or email shall be deemed to be given on the day the fax or email is sent and notice by post shall be deemed to have been given on the day following that on which it was posted.
This Contract can be terminated by the Company if the Client fails to comply with any of its obligations under this Contract.
21. NO WAIVER
(a) No right under this Contract is waived or deemed to be waived except by notice in writing signed by the party waiving the right.
(b) A waiver by one party under 21(a) herein does not prejudice its rights in respect of any subsequent breach of this Contract by the other party.
(c) A party does not waive its rights under this Contract because it grants an extension or forbearance to the other party.
Executed by Xtreme Seal Pty Ltd ACN 168 422 375)
in accordance with the Corporations Act 2001)
and/or the Company’s Constitution)
Note: To view the latest and updated copy of the Terms & Conditions electronically please see our website: http://www.xtremeseal.com.au/terms_and_conditions.html