1. THE PARTIES
The Supplier: Pfeiffer Investments (Australia) Pty Ltd (ACN 096 155 681) trading as Gawler Pool And Spa Services of 4 Main Road North, Gawler in the State of South Australia
The Customer: ______________________________________________________________
The Premises: ______________________________________________________________
2.1. The Customer includes any person engaging the Supplier on behalf of and with the authority of the Customer that the Order is provided for.
2.2. The Order shall be defined as any request for the provision of Services by the Customer to the Supplier which has been accepted by the Supplier.
2.3. The Services are the swimming pool and spa repairs, maintenance, installation of equipment and associated works to be carried out at the Premises, including any advice or recommendations given.
2.4. The Goods are the equipment parts, components and materials provided by the Supplier and used up by the Supplier in performing the Services.
2.5. The Premises are the land or land and buildings where the Services are to be carried out, or which are the subject of the Services to be performed.
2.6. Reference to loss and damage includes Indirect, Special or Consequential loss and/or damage including i) any loss of income profit or business; ii) any loss of good will or reputation; iii) any loss of value of intellectual property.
2.7. Major failure is as defined under the Competition and Consumer Act 2010 (Cth).
2.8. GST refers to Goods and Services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST Act”) and terms used herein have the meanings contained within the GST Act.
3.1. These terms and conditions together with the Supplier’s quotation, credit application form and purchase or work order document (if any) constitute the agreement between the Supplier and the Customer (“the agreement”).
3.2. Any Order requested by the Customer is deemed to incorporate these terms and conditions; which may not be varied unless expressly agreed to by the parties in writing. In the event that an inconsistency exists and/or arises between these terms and the Order it is acknowledged between the parties that these terms and conditions will prevail.
3.3. The terms and conditions are binding on the Customer, and the Customer’s heirs, assignees, executors, trustees and where applicable, any liquidator, receiver or administrator.
3.4. In these terms and conditions, the singular shall include the plural, the neuter gender shall include the masculine and feminine and words importing persons shall apply to corporations and vice versa.
3.5. Where more than one Customer completes this agreement each shall be liable jointly and severally.
3.6. 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 and the offending provision shall be deemed as severed from these terms and conditions.
3.7. The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent but the Supplier acknowledges that it remains at all times liable to the Customer in accordance with the terms herein.
3.8. The failure by a party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.
3.9. The Customer acknowledges that the Supplier may detail these terms and conditions on its website. In this event, the terms and conditions on the Supplier’s website shall apply to any future dealings as between the parties and the Customer is deemed to have notice of any such terms and conditions and/or amendments.
4. QUOTATIONS AND PLACEMENT OF ORDERS
4.1. Any quotation given by the Supplier will expire after thirty (30) days.
4.2. A written quotation from the Supplier will include a scope of works detailing the specific Services to be performed by the Supplier.
4.3. The Supplier does not represent that it will provide any Services unless it is included in the quotation.
4.4. A request for Services placed by the Customer with the Supplier will be considered valid when made verbally or in writing however the Customer may be required to provide the Supplier with a purchase order or work order document prior to any Services being provided.
4.5. The Supplier may agree to provide, on request from the Customer, additional Services not included or specifically excluded in the quotation given or in the Customer’s Order. In this event, the Supplier shall be entitled to make an additional charge. Additional Services include, but is not limited to additions alterations or amendments to the quote or scope of works (“a variation”).
4.6. All prices are based on taxes and statutory charges current at the time of the quotation. Should these vary during the period from the date of the quotation to the date of the invoice, the difference will become the responsibility of the Customer and the Customer will be invoiced for the extra charge by the Supplier.
5.1. GST will be charged on the Services provided by the Supplier that attract GST at the applicable rate.
5.2. The Supplier reserves the right to change the Price in the event of a variation.
5.3. At the Supplier’s sole discretion the Price shall be either:
5.3.1. The Supplier’s quoted Price for the Order; or
5.3.2. In the event of a variation, as detailed on invoices provided by the Supplier to the Customer in respect of Services supplied.
6. PROVISION OF THE SERVICES
6.1. The Supplier reserves its right to:
6.1.1. Decline requests for any Services requested by the Customer.
6.1.2. Cancel or postpone appointments at its discretion.
6.2. Unless specified by the Supplier to the contrary in the Order or quotation, the Supplier does not warrant that it will be capable of providing the Services at specific times requested by the Customer during the term of the agreement.
6.3. Subject to otherwise complying with its obligations under the agreement, the Supplier shall exercise its independent discretion as to its most appropriate and effective manner of providing the Services and of satisfying the Customer’s expectations of those Services.
6.4. The Customer grants full access to the Supplier and its servants and agents to the Premises and shall ensure a supply of water and/or electricity (at no cost) to enable the Supplier to carry out the Services.
6.5. The Customer warrants that it is either the owner of the Premises or is acting with the express authority of the owner of the Premises and the Customer indemnifies and will continue to indemnify the Supplier in respect of this warranty; including any claims for loss and damage by the owner of the Premises against the Supplier.
7. PAYMENT AND CREDIT POLICY
7.1. Non-Account Customers must make full payment to the Supplier on completion of the Services unless otherwise specified or agreed between the parties in writing.
7.2. Credit will only be granted at the sole discretion of the Supplier and upon submission of a completed credit application form.
7.3. On the acceptance by the Supplier of a completed credit application form, Account Customers must make full payment to the Supplier within thirty (30) days from the date of issue of the Supplier’s invoice for the Services, unless otherwise specified in the credit application form or agreed between the parties in writing.
7.4. Any credit, or credit limit granted by the Supplier may be revised by the Supplier at any time and at its discretion.
7.5. The Supplier reserves the right to withdraw any credit facility upon any breach by the Customer of these terms and conditions or upon the Customer ceasing to trade and/or being subject to any legal proceedings and/or the Customer committing an act of insolvency.
7.6. The Customer agrees that upon such withdrawal, any and all monies owing on the account shall become immediately due and payable.
Account Customer’s Privacy
7.7. The Customer agrees:
7.7.1. For the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Supplier.
7.7.2. That the Supplier may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency.
7.7.3. The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
8.1. The Customer will be liable for a dishonoured cheque fee of $40.00 for each cheque issued by the Customer and rejected by the Supplier’s bank.
8.2. For the purposes of this clause the “default date” is the day after the date by which payment of the Price in full was due to be made by the Customer to the Supplier in accordance with the agreement and the “outstanding balance” is the Price, less any payments made by the Customer prior to the default date.
8.3. If the Supplier does not receive the outstanding balance on or before the default date the Customer acknowledges and agrees that:
8.3.1. The Customer will be liable for interest on the outstanding balance from the default date at the rate of twelve per centum (12%) per annum calculated on a daily basis;
8.3.2. The Customer will be liable for an account keeping fee of $15.00 to be charged at the end of each calendar month after the default date until the outstanding balance has been paid;
8.3.3. In the event the Supplier refers the Customer to a debt collection agency and/or law firm for collection of the outstanding balance, the Customer shall be liable for the recovery costs incurred, and if the agency charges commission on a contingency basis the Customer shall be liable to pay as a liquidated debt, the commission payable by the Supplier to the agency, fixed at the rate charged by the agency from time to time as if the agency has achieved one hundred per cent recovery and the following formula shall apply:
Total Debt including Commission and GST = Original Debt x 100
100 - Commission % charged by the agency (including GST)
8.3.4. In the event where the agency is Prushka Fast Debt Recovery the applicable commission rate for the amount unpaid is as detailed on www.prushka.com.au;
8.3.5. In the event where the Supplier or the Supplier’s agency refers the outstanding balance to a lawyer the Customer shall pay as a liquidated debt the charges reasonably made or claimed by the lawyer on the indemnity basis.
9. RISK AND LIABILITY
9.1. The Customer will ensure when placing Orders that there is sufficient information and specifications to enable the Supplier to execute the Order.
9.2. The Supplier takes no responsibility if the specifications provided by the Customer are wrong or inaccurate and the Customer will be liable in that event for the expenses incurred by the Supplier for any work required to rectify the Order.
9.3. The Customer acknowledges that the Supplier shall not be liable for and the Customer releases the Supplier from any loss and damage incurred as a result of delay or failure to observe any of these conditions due to an event of force majeure, being any cause or circumstance beyond the Supplier’s reasonable control.
9.4. The Customer will ensure the Premises are in a safe condition for the Supplier’s servants and agents to perform the Services, and the Customer indemnifies and agrees to keep the Supplier indemnified against any and all claims for personal injury and loss and damage arising from or in connection with failing to keep the Premises safe to work in, including but not limited to injury caused by any feature or condition of the Premises, whether or not any such feature or condition is reasonably obvious and whether or not the feature or condition is known to the Customer.
9.5. The Supplier is not liable to provide any insurance cover in relation to the provision of the Services. The Customer is responsible to effect whatever insurance cover required at his or her own expense.
9.6. Subject to the Supplier’s warranty for defective services, the Supplier’s liability for any loss and damage associated with, arising from or in connection with the Services may not exceed the Price of the Order, including but not limited to personal injury and damage to property.
10.1. The Supplier warrants that the Customer’s rights and remedies in the agreement arising from a warranty against defects are in addition to other rights and remedies under any applicable law in relation to the goods and services to which the warranty relates.
10.2. The Supplier does not purport to restrict, modify or exclude any liability that cannot be excluded under the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as may be amended from time to time.
Warranty for Services
10.3. Provided that the Customer reports any defect in any Service provided, preferably within fourteen (14) days from the date that the defect became apparent, the Supplier will rectify any defect in the Services within a reasonable period of time.
10.4. In respect of all claims under warranty, the Supplier reserves it right to inspect the Services alleged to be defective.
10.5. To the extent permitted by law the Supplier’s liability in respect of defective services that does not constitute a major failure will be limited to:
10.5.1. The rectification by the Supplier of the defective Service; or
10.5.2. The payment of the reasonable costs of having the Services rectified or supplied again; or
10.5.3. The refund of the Price paid by the Customer in respect of the defective Service.
10.6. The Supplier shall not be liable to compensate the Customer for any reasonable delay in remedying any defective Services or in assessing the Customer’s claim.
10.7. The Customer warrants that it will use its best endeavours to assist the Supplier with identifying the nature of the defective Service claim.
Claims made under Warranty
10.8. Claims for warranty should be made in one of the following ways:
10.8.1. The Customer must send the claim in writing to the Supplier’s address 4 Main North Road. Gawler SA 5118;
10.8.3. The Customer must contact the Supplier on the Supplier’s business number (08) 8522 3811.
11. TERMINATION AND CANCELLATION
Cancellation by Supplier
11.1. The Supplier may cancel any Order to which these terms and conditions apply at any time before payment is made by the Customer by giving written notice to the Customer. The Supplier shall not be liable for any loss and damage whatsoever arising from such cancellation.
11.2. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
11.2.1. Any money payable to the Supplier becomes overdue for payment; or
11.2.2. 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
11.2.3. A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
Cancellation by Customer
11.3. The Customer may cancel any Order by providing no less than twenty-four (24) hours notice to the Supplier before the Services were due to be performed.
11.4. In the event that the Customer cancels the Order, the Customer shall be liable for loss and damage incurred by the Supplier:
11.4.1. For an unlimited sum in the event that the Customer has not provided the requisite notice; or
11.4.2. For a sum limited to cost incurred by the Supplier for any Goods purchased by the Supplier from a third party to meet the Customer’s Order in the event that the Customer cancels the Order by providing notice in accordance with the above clause 11.3.
12. ENTIRE AGREEMENT
12.1. The agreement as defined herein constitutes the whole agreement between the Customer and the Supplier.
12.2. The agreement is deemed to be made in the State of South Australia and all disputes hereunder shall be determined by the appropriate courts of South Australia.
12.3. All prior discussions and negotiations are merged within this document and the Supplier expressly waives all prior representations made by him or on his behalf that are in conflict with any clauses in this document in any way.
12.4. Nothing in these terms and conditions is intended to have the effect of contravening any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia.