1.1 “Shower Sealers” shall mean Shower Sealers, its successors and assigns or any person acting on behalf of and with the authority of Shower Sealers
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Shower Sealers to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by Shower Sealers to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Shower Sealers to the Client.
1.5 “Services” shall mean all Services supplied by Shower Sealers to the Client and includes all work carried out while on site which will be outlined in the final quote. It will also include any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Shower Sealers and the Client in accordance with clause 4 of this contract.
2. The Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Client buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3.1 Any instructions received by Shower Sealers from the Client for the supply of Goods/Services the Client’s acceptance of Goods/Services supplied by Shower Sealers shall constitute acceptance of the terms and conditions contained herein.
3.2 The Client expressly acknowledges and agrees that it has not relied upon any verbal communication by Shower Sealers representative, of work being completed that is not in the written quote.
3.3 Any additional work requested by the Client at the time of the Service that is not included in the written quotation will be charged for on the basis of Shower Sealers quotation.
3.4 Shower Sealers reserves the right to refuse to carry out any work that is not included in the written quotation.
3.5 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.6 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Shower Sealers.
3.7 The Client shall give Shower Sealers not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Shower Sealers as a result of the Client’s failure to comply with this clause.
3.8 Goods/Services are supplied by Shower Sealers only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1 At Shower Sealers sole discretion the Price shall be either:
(a) as indicated on invoices provided by Shower Sealers to the Client in respect of Goods/Services supplied; or
(b) Shower Sealers quoted Price (subject to clause 4.2) which shall be binding upon Shower Sealers provided that the Client shall accept Shower Sealers quotation in writing within thirty (30) days.
4.2 Any variation from the plan of scheduled works/written quotation will be charged for on the basis of Shower Sealers 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 Shower Sealers may submit detailed deposit/progress payment claims in accordance with Shower Sealers specified payment schedule.
4.4 At Shower Sealers sole discretion a non-refundable deposit may be required.
4.5 The Client authorises Shower Sealers to deduct all expenses incurred from any funds held by Shower Sealers in relation to work done up to the date of completion/termination.
4.6 If there are any delays due to the failure of the Client or their agent(s) to provide access to the site or the correct information to enable Shower Sealers to carry out the Services then the Client shall be charged for the delays at Shower Sealers quoted rate. The Client shall also be responsible for all other expenses and costs incurred by Shower Sealers due to delays caused by the Client or their agent(s).
4.7 Time for payment for the Goods shall be of the essence and will be stated on the quotation, invoice, correspondence or any other order forms. If no time is stated then payment shall be due on delivery of the Goods/completion of the Services.
4.8 At Shower Sealers sole discretion, for certain approved Clients, payment will be due either seven (7) or thirty (30) days following the date of the invoice.
4.9 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to one and a half percent (1.5%) may be applicable), or by direct credit, or by any other method as agreed to between the Client and Shower Sealers.
4.10 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 The failure of Shower Sealers to deliver shall not entitle either party to treat this contract as repudiated.
5.2 Shower Sealers shall not be liable for any loss or damage whatsoever due to failure by Shower Sealers to deliver the Goods (in part or at all) promptly or at all, where due to circumstances beyond the control of Shower Sealers.
6.1 If Shower Sealers retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Shower Sealers is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Shower Sealers is sufficient evidence of Shower Sealers rights to receive the insurance proceeds without the need for any person dealing with Shower Sealers to make further enquiries.
6.3 Tiles are not guaranteed against crazing, cracking, chipping or scratching.
6.4 Tiling heights will be as close as possible to the original tiles unless specifically requested otherwise.
6.5 Shower Sealers will not be obligated to repair any existing parts of the room that are not structurally sound or have been affected in any way by termites, wet or dry rot, water damage or the general deterioration of age unless this has been agreed to in writing by both parties.
6.6 The Client acknowledges and agrees that the Price does not include rectifying any existing drainage and if required shall be charged separately.
6.7 Shower Sealers shall not be held liable if a moulded shower base or moulded bath moves away from the wall or walls.
6.8 The Client agrees Shower Sealers shall not be held responsible for any faults and or deterioration that are existing on the Client’s premises but not visible to Shower Sealers at the time of the quote.
6.9 Shower Sealers shall not be held liable for any loss or damage caused to the property or caused by or contributed to by structural movement or as a result of normal settling, seepage, shrinkage or expansion in building or foundations, walls, by acts of God, or structural improvements.
7. Client’s Responsibility
7.1 The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the works and agrees that Shower Sealers shall not be liable for any damage caused to those items through the Clients failure to comply with this clause.
7.2 The Client undertakes to provide Shower Sealers with any relevant information and reasonable knowledge of all matters directly or indirectly affecting the works.
7.3 The Client agrees to advise Shower Sealers immediately of any further leakage after the service date.
8.1 The Client shall ensure that Shower Sealers has clear and free access to the work site at all times to enable them to undertake the works.
8.2 Shower Sealers reserves the right to refuse to enter the site to undertake the Services in the event that the Company believes the site to be unsafe. In this event, the Customer agrees that it is their responsibility to ensure the site is made safe before the Company will enter the site, the Company shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe site.
9.1 Shower Sealers and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Shower Sealers all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Shower Sealers in respect of all contracts between Shower Sealers and the Client.
9.2 Receipt by Shower Sealers 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 and until then Shower Sealers ownership or rights in respect of the Goods shall continue.
9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Shower Sealers shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Shower Sealers to the Client Shower Sealers may give notice in writing to the Client to return the Goods or any of them to Shower Sealers. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Shower Sealers shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Shower Sealers then Shower Sealerse or Shower Sealers agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Shower Sealers has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Shower Sealers for the Goods, on trust for Shower Sealers; and
(f) the Client shall not deal with the money of Shower Sealers in any way which may be adverse to Shower Sealers; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Shower Sealers; and
(h) Shower Sealers can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Shower Sealers will be the owner of the end products.
10.1 The warranty conditions set out below are void unless all monies due and payable to Shower Sealers have been paid under the conditions set out in clause 4.7 and all cheques paid have been honoured on presentation.
10.2 Shower Sealers will guarantee it’s;
(a) ‘Leaking Shower Epoxy Sealant’ workmanship and products against leakage for a period up to twelve (12) years or at technicians discretion from the date of completion of the original service.
(b) ‘Epoxy Floor Grout’ workmanship and products against leakage for a period up to five (5) years or at technicians discretion from the date of completion of the original service.
(c) ‘Sealflex’ workmanship and products for a period up to Two (2) years or at technician’s discretion from the date of completion of the original service.
(d) any other services provided by Shower Sealers, not limited to but including, any existing loose tiles, grouting, plumbing, shower screen problems, structural damages and /or any damages that may occur after treatment or service shall not be the responsibility of Shower Sealers.
10.3 Subject to the conditions of warranty set out in clause 12.4 Shower Sealers warrants that if any product defect becomes apparent and is reported to Shower Sealers within time period specified on the date of the original service (time being of the essence),
Shower Sealers will either (at Shower Sealers sole discretion) replace or remedy the workmanship.
10.4 The conditions applicable to the warranty given by clause 10.3 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Shower Sealers including the use of Shower Sealers recommended products; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent person; or
(v) fair wear and tear, any accident or act of God.
(b) The warranty shall cease and Shower Sealers shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is tampered with, repaired or altered without Shower Sealers consent.
(d) In respect of all claims Shower Sealers shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship/Product or in properly assessing the Client’s claim. Any claims investigated by Shower Sealers and found not to be covered by the warranty in clause 10.3 then the Client may be charged at a rate of $70.00 per hour. The Client shall also be responsible for all other expenses and costs incurred by Shower Sealers due to access delays caused by the Client or agent(s) in investigating such allegation, faults or warranty claims which shall be charged at a rate of $60.00 + GST per hour on-site waiting time.
10.5 The warranty does not apply if:
(a) the shower is affected by any structural movement however caused;
(b) the shower is affected by any substrate movement however caused;
(c) any damage is caused to the area treated or surrounding area that may affect the Service;
(d) there are latent defects within the premises in reasonable proximity to the treated area at the time of, or which become apparent subsequent to the Service.
(e) an alteration or replacement of any fixture or fittings is undertaken after the original Service which in any way detrimentally affects the treated area;
(f) any plumbing, works or moisture have subsequently detrimentally affected the treated area;
(g) any flooring, sheeting, substrate, materials or tile bonding arises which in any way detrimentally affects the treated area;
(h) any pre-existing or subsequent tiling problem, relating either to the adherence of the tiles or the inherent quality of the tiles, arises which detrimentally affects the treated area;
(i) a moulded shower or bath moves away from the walls;
(j) a moulded shower or bath is affected by any twisting or deflection however caused;
(k) the shower has been used within twenty-four (24) hours after the Service or as stated on the after service notification;
10.6 The warranty does not cover;
(a) existing tiling work, growth of mould, mildew and bacteria, periodic cleaning or maintaining grout integrity;
(b) calcification formation or secondary formation;
(c) any accidental chipping, scratching or cracking of existing tiles in the re grouting process. (All due care will be taken to avoid this occurring);
(d) the appearance of the shower including product and grout colour matching;
(e) staining, discolouration or degrading over time directly or indirectly as a result of using non-approved cleaning products or personal care products, or secondary mould growth.
10.7 For Goods not manufactured by Shower Sealers, the warranty shall be the current warranty provided by the manufacturer of the Goods. Shower Sealers shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods. This includes but is not limited to shower screens, vanities etc.
10.8 With all warranty claims the onus will be on the Client to provide proof of purchase.
11. Existing, Unseen or Resulting Damage
11.1 Any area that has been affected in any way by termites, wet or dry rot, water damage, seepage or the general deterioration of age, Shower Sealers will not be liable for any repair work or any repair work will be paid at the Client’s expense. This includes any damages that may occur after the Service and shall not be the responsibility of Shower Sealers.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Shower Sealers sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Shower Sealers.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Shower Sealers from and against all costs and disbursements incurred by Shower Sealers in pursuing the debt including legal costs on a solicitor and own client basis and Shower Sealers collection agency costs.
12.4 Without prejudice to any other remedies Shower Sealers may have, if at any time the Client is in breach of any obligation (including those relating to payment) Shower Sealers may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Shower Sealers will not be liable to the Client for any loss or damage the Client suffers because Shower Sealers has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to Shower Sealers other remedies at law Shower Sealers shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Shower Sealers shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Shower Sealers becomes overdue, or in Shower Sealers opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13.1 Shower Sealers may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Shower Sealers shall repay to the Client any sums paid in respect of the Price. Shower Sealers shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Shower Sealers (including, but not limited to, any loss of profits) up to the time of cancellation.
13.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced. In particular, but not limited to, shower screens and vanities.
15. Privacy Act 1988
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Shower Sealers to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Shower Sealers
15.2 The Client agrees that Shower Sealers may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
15.3 The Client consents to Shower Sealers being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Shower Sealers for the following purposes (and for other purposes as shall be agreed between the Client and Shower Sealers or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Shower Sealers, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
15.5 Shower Sealers may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Shower Sealers is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Shower Sealers, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Shower Sealers has been paid or otherwise discharged.
16. Building and Construction Industry (Security of Payment) Act 2009 ACT
16.1 At Shower Sealers sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry (Security of Payment) Act 2009 ACT may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry (Security of Payment) Act 2009 ACT, except to the extent permitted by the Act where applicable.
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
17.3 These terms and conditions and any contract to which they apply shall be governed by the laws of Australian Capital Territory (ACT) and are subject to the jurisdiction of the courts of ACT.
17.4 Shower Sealers shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Shower Sealers of these terms and conditions.
17.5 In the event of any breach of this contract by Shower Sealers the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Shower Sealers nor to withhold payment of any invoice because part of that invoice is in dispute.
17.7 Shower Sealers may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.8 The Client agrees that Shower Sealers may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Shower Sealers notifies the Client of such change. The Client shall be under no obligation to accept such changes except where Shower Sealers supplies further Goods to the Client and the Client accepts such Goods.
17.9 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
17.10 The failure by Shower Sealers to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Shower Sealers right to subsequently enforce that provision.