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TERMS OF TRADE

TERMS OF TRADE

These terms and conditions are between ALLSEALEDWA PTY LTD (ACN 623 541 828), ( we , us  or our ) and you, the person or entity stated in the Quote ( you  or your ), together the Parties  and each a Party . Together, these terms and conditions and the Quote form the entire agreement under which we will provide the Services to you ( Terms ).

Our Disclosures: Please read these Terms carefully and contact us if you have any questions. By accepting these Terms, you agree that:

  • we will handle your personal information in accordance with our privacy policy, available at [ https://allsealedwa.com.au/privacy-policy/ ];
  • subject to your Consumer Law Rights, we will not refund any amounts paid by you (see clause 13.4(b));
  • subject to your Consumer Law Rights, we exclude our liability for any loss or damage which is the inevitable and unavoidable part of performing the Services; and
  • subject to your Consumer Law Rights, our liability for the provision of the Services will be limited to, at our discretion us reperforming the relevant Services or, to repaying you the amount of the Price paid by you to us in respect of the provision of the relevant Services , to which the Liability relates.
  1. Acceptance
  1. You have requested the Services set out in the Quote, and you are taken to accept these Terms by the earlier of:
  1. signing and returning the Quote to us;
  2. accepting the Quote online or sending an email to us accepting the Quote (expressly or impliedly);
  3. instructing us to proceed with the Services, either verbally or in writing; and
  4. making part of full payment of the Price (including any deposit).
  1. Site Inspection
  1. Prior to the commencement of the Services, we will undertake a Site Inspection to assess and determine the Services required, including the use of any Product in order to provide you a Quote, unless otherwise agreed between the Parties. You agree to notify us of any matters that may affect our ability to provide the Services, including any previous repair services to the Site or any report provided by a third party in relation to the Site.
  2. Where you have requested for us to provide a Quote without conducting a Site Inspection and both Parties have agreed to this, you agree to provide us a photograph of the Site for our reference. You agree that the information you provide to us is true, accurate and complete for us to provide a Quote and our Services to you.
  3. Where we reasonably determine that additional works are required as a result of anything arising from or in connection with clause 2.2, you agree that these additional works will constitute a Latent Condition under clause 14.
  1. Services
  1. We agree to provide the Services to you in accordance with these Terms (including any Specifications), the conditions of any building permit and all applicable laws (including the National Construction Code if applicable) whether ourselves or through our Personnel.
  2. While we agree to provide the Services with due care, skill and diligence, you agree and acknowledge that:
  1. the appearance of the Site or any components forming part of the Site may change due to:
  1. mould growth due to your failure to ventilate or clean the Site;
  2. discolouration of an applicable Product due to your incorrect use of cleaning products and reasonable wear and tear of the applicable Product over time; or
  3. hidden hairline cracks, nibbling, chipping, scuffing of the tile as a result of the existing nature of the tile or existence of foreign particles which conflicts with the grout repair;

which are outside of our reasonable control; and

  1. the Site should not be used for a period of 24 hours.
  1. To the maximum extent permitted by law, anything referred to in clause 3.2(a) or breach of clause 3.2(b) by you  will not constitute a defect by us under these Terms or entitle you to claim under any product warranty we provide to you in accordance with these Terms.
  2. It is your responsibility to adhere to the after-care instructions or any other guidelines ( Instructions ) we reasonably provide to you upon completion of the Services. Otherwise, you acknowledge and agree that additional costs may be incurred to rectify any errors as a result of your failure to comply with the Instructions. We do not carry out any decorating or painting work as part of the Services we provide to you.
  3. On completion of the Services, we will use due care, skill and diligence to clean up the Site, including removing rubbish from the Site and remove any of our tools and equipment used to provide the Services unless otherwise stated ( Cleaning Services ). You acknowledge and agree that further cleaning to the Site might be required in addition to the Cleaning Services we provide and any additional cleaning is your sole responsibility.
  1. Time
  1. We will use our commercial best endeavours to provide the Services by the dates set out in the Quote, or where no date is specified, then within a reasonable period of time. We will have no liability (including a failure to meet any date referred to in clause 4.1, for delays caused by one or more of the following events or circumstances:
  1. a variation or deemed variation;
  2. an act, omission or breach by you or any of your Personnel;
  3. inclement weather;
  4. delays in obtaining approvals for the Services from relevant Authorities; and
  5. any other event or circumstance beyond our reasonable control (including Force Majeure Events, illness or a car accident).
  1. If we are delayed as a result of your acts or omissions (other than acts or omissions expressly authorised or permitted by these Terms), you will be liable to pay to us reasonable delay damages for each day (or partial day) that we are delayed.
  2. You acknowledge and agree that a call out fee of $110 (excl. GST) ( Call Out Fee ) will be payable where we have arranged an appointment with you and:
  1. you fail to reschedule the appointment; or
  2. you refuse to let us into the Site to perform the Services.
  1. Australian Consumer Law
  1. Certain legislation, the Australian Consumer Law and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Services which cannot be excluded, restricted or modified ( Consumer Law Rights ). To the extent that you maintain Consumer Law Rights a law, nothing in these Terms excludes those Consumer Law Rights.
  2. Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, you are entitled:
  1. to cancel these Terms with us; and
  2. to a refund for the unused portion, or to compensation for its reduced value.
  1. You are also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, you are entitled to have problems with the services rectified in a reasonable time and, if this is not done, to cancel these Terms and obtain a refund for the unused portion of these Terms.
  2. Subject to your Consumer Law Rights, we exclude all warranties, and all material, work and services (including the Services) are provided to you without warranties, representations and guarantees of any kind, except where expressly provided in these Terms.
  3. This clause 5 will survive the termination or expiry of these Terms.
  1. Product Warranties
  1. We may, in our discretion, offer you warranties with respect to the Services and any applicable Products used in the supply of the Services. Any warranties will be available on our website or as provided to you separately unless otherwise agreed by us. Any warranty in this clause will be governed by the terms of the relevant warranty and these Terms. You agree that any failure to adhere to clause 3.2 may void any warranty referred to in this clause.
  1. Variations
  1. All variations to the Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instruction or direction from you constitutes a variation to the scope of our obligations under these Terms, then we will not be obliged to comply with such instruction or direction unless agreed in accordance with this clause. Once a Variation has been accepted, the Price may be subject to change to accommodate for the Variation.
  1. Work, Health and Safety
  1. If, at any time during the Site Inspection or the Term, we reasonably determine that our or our Personnel ’s safety is at risk on the Site, you agree that:
  1. we may suspend the Services until such time that you have rectified the risk before the Services can be carried out or continued. You agree that any costs associated with rectification of the risk will be your responsibility;
  2. where we have arrived to commence the Services and are unable to perform the Services, we may charge you the Call Out Fee.
  1. Asbestos
  1. If, at any time during the Site Inspection or the Term, any suspected asbestos material or other potentially toxic material is found at the Site and the material requires disturbing in order to start or complete the provision of the Services, you agree that we may suspend the Services until such time that you have engaged the services of a licensed professional and we are satisfied that the material is not hazardous or they have removed all hazardous material from the Site. You agree that any costs associated with assessment, removal and disposal of asbestos or any other toxic materials will be your responsibility.
  1. Your Personnel, Your Items and Personal Belongings
  1. You are responsible for the acts or omissions, and any goods or services provided by your Personnel (if applicable). You agree to ensure your Personnel cooperate with us and do not interfere with the supply of the Services. You agree that any information, documentation, specifications, goods or services provided, or directions provided, by you or your Personnel in relation to the Services ( Your Items ) will be:
  1. provided solely at your own risk, and you agree that we will assume no responsibility or Liability for Your Items;
  2. fit for purpose, of merchantable quality and compliant with all applicable laws; and
  3. sufficient to enable us to comply with our obligations under these Terms and all applicable laws,

and we will have no liability to you for any Liability, and you waive and release us from any such Liability, arising from Your Items.

  1. You acknowledge and agree to remove any personal belongings, items, materials or products ( Personal Belongings ) at the Site prior to the commencement of the Services. Where you have not removed the Personal Belongings, we may remove the Personal Belongings on your behalf. We will have no Liability for any damage or loss to the Personal Belongings.
  1. Price and Payment
  1. In consideration for us providing the Services, you agree to pay us the Price, including the deposit and any other amounts in accordance with these Terms.
  2. When applicable, GST is payable on the Price and will be clearly showing on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.
  3. Unless otherwise agreed between the Parties, any deposit in our Quote must be paid prior to the commencement of the Services, and the remainder of the Price:
  1. where you are a residential customer, from the date we complete the Services (as reasonably determined by us); or
  2. where you are a commercial customer, within 30 days from the date we complete the Services (as reasonably determined by us);

using the payment method set out in our invoice, or as otherwise agreed between the Parties.

  1. If you fail to make payment of the Price or any amount payable under these Terms, we may:
  1. after a period of 5 business days, cease providing the Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including all recovery costs); and
  2. charge interest at a rate equal to the Reserve Bank of Australia ’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date, in accordance with the Payment Terms.
  1. Warranties and Representations
  1. You represent, warrant and agree that:
  1. you will comply with these Terms and all applicable Laws;
  2. you have effected and will maintain appropriate insurance policies for the Site for the duration of our provision of the Services under these Terms;
  3. you (and to the extent applicable, your Personnel) will cooperate with us, and promptly provide us with all documentation, information, instructions, facilities and access (including access to the Site) as may be reasonably necessary to enable us to provide the Services in accordance with these Terms;
  4. all the information and documentation that you provide to us in connection with these Terms is true, correct and complete;
  5. you will not infringe any third party rights in working with us and receiving the Services;
  6. you agree to provide access for us or our Personnel to carry out the Site Inspection at the Site and provide the Services, and any other premises as is reasonably necessary for us to provide the Site Inspection and Services, free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties.
  7. you will ensure that the Site is safe and free of harmful materials or substances;
  8. you are responsible for obtaining, and providing to us, if necessary, any access and Approvals from third parties necessary for the Services to be provided, at your cost;
  9. you must not use, and you must ensure that no person uses, any part of the Services:
  1. to break any Law or infringe any person ’s rights (including Intellectual Property Rights); or
  2. in any way that damages, interferes with or interrupts the supply of the Services; and
  1. if you enter these Terms as a trustee of a trust, then:
  1. you are the sole trustee of the trust and no action has been taken to remove or replace it;
  2. you have full and valid power, authority, consents and approvals under the relevant trust to execute these Terms and carry out the transactions contemplated by these Terms; and
  3. you have the right to be indemnified out of the assets of the relevant trust for all liabilities incurred by you under these Terms.
  1. if, at any time during the Site Inspection or during the provision of the Services, we reasonably determine that the Site is unsafe or our or our Personnel ’s safety is at risk:
  1. we may suspend the Services until such time that you have rectified the risk;
  2. you agree to notify us promptly once the risk has been rectified by you and any costs associated with the rectification of the risk will be your responsibility; and
  3. we may charge you the Call Out Fee to return to the Site once the suspension under clause 12.1(k)(1) is lifted.
  1. Term and Termination
  1. These Terms will commence on the Commencement Date, and will continue until the earlier of the date:
  1. the Services are supplied to you in accordance with these Terms; and
  2. these Terms are terminated in accordance with this clause 13,

( Term ).

  1. Either Party may terminate these Terms at any time by giving 5 days ’notice in writing to the other Party.
  2. These Terms will terminate immediately upon written notice by a Party ( Non-Defaulting Party ), if the other Party ( Defaulting Party ) breaches a material term of these Terms and that breach has not been remedied within 10 business days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.
  3. Upon expiry or termination of these Terms:
  1. we will immediately cease providing the Services;
  2. without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
  3. you are to pay for all Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms; and
  4. by us pursuant to clause 13.3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
  1. Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
  2. This clause 13 will survive the termination or expiry of these Terms.
  1. Latent Conditions
  1. If we encounter any condition, event, circumstance, matter or thing in, on or around the Site or otherwise that could not have reasonably been foreseen or anticipated by us as at the date of the Site Inspection, and that would or would likely result in us, you or any third party suffering or incurring additional cost or delay, or would require a change to the Quote, Services, Price, and/or these Terms ( Latent Condition ), during the provision of the Services, we will notify you as soon as reasonably practicable after becoming aware of the Latent Condition. Any additional works, materials, costs or delays that we suffer or incur as a result of any Latent Condition or any instructions or directions given by you that are in addition to the Works, will constitute a deemed variation. Any deemed variation for a Latent Condition, including in relation to the Price, will be handled in accordance with clause 7.1.
  1. Liability

Despite anything to the contrary, but subject to you Consumer Law Rights, to the maximum extent permitted by law:

  1. neither Party will be liable for any Consequential Loss;
  2. a Party ’s liability for any Liability under, arising from, or in connection with, these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
  3. (in respect of any failure by us to comply with relevant Consumer Law Rights) our Liability is limited (at our discretion) to supplying the Services again or paying the cost of having the Services supplied again.
  4. subject to clause 15(a) our maximum aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Price paid by you to us in respect of the supply of the relevant Services;   and
  5. we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by any loss or damage which is the inevitable and unavoidable part of performing the Services.
  1. General
  1. Amendment:  Subject to clause 6, these Terms may only be amended by written instrument executed by the Parties.
  2. Assignment:  Subject to clauses 16.3, and 1.1, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
  3. Assignment of Debt:  You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
  4. Confidentiality : Each Party must (and must ensure that its Personnel where applicable do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other party.
  5. Disputes:  A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) ( Dispute ) without first complying with this clause 16.4. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute ( Dispute Notice ). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute. If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Australian Disputes Centre in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. This clause will survive termination or expiry of this Agreement.
  6. Force Majeure:  Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a party ’s obligation to pay any amount that is due and payable to the other Party under these Terms.
  7. Governing law: These Terms are governed by the laws of Western Australia.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Western Australia and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
  8. Intellectual Property : Nothing in this Agreement constitutes a transfer or assignment of any of our intellectual property rights unless expressly stated. As between the Parties, all intellectual property rights in any intellectual property developed, adapted, modified or created by or on behalf of us in connection with this Agreement or the provision of the Services (including any resources or guides we provide to you) ( Materials ), will at all times vest in us. We give you a non-exclusive, revocable, non-sublicensable and non-transferable right and licence to use, for your personal use, the Materials we provide to you solely for your use and enjoyment of the Services. In the use of the Materials, you agree not to commit an intellectual property breach.
  9. Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
  10. Publicity:  Despite clause 1, you agree that we may advertise or publicise the broad nature of our provision of the Services to you, including on our website or in our promotional material.
  11. Privacy:  Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988  (Cth) and any other applicable legislation or privacy guidelines.
  12. Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties. Where you constitute two or more individuals or entities, you will each be jointly and severally liable under these Terms.
  13. Survival:  Each clause, which by its nature survives termination, will survive the termination or expiry of these Terms.
  14. Subcontracting : We may subcontract the provision of any part of the Services without your prior written consent.  We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor.
  1. Definitions
  1. In these Terms, unless the context otherwise requires:

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Approval means any approval, consent, licence, permit, permission, application, registration or equivalent required to be obtained in connection with the Services by any Authority or any law.

Authority means any national, State, Territory or local government departments, bodies, instrumentalities or other public authorities the approval of which is applicable to or necessary for the provision of the Services.

Commencement Date  means the date these Terms are accepted in accordance clause 1.1.

Consequential Loss  means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise:

  1. any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probable results of the relevant breach, act or omission; and/or
  2. without limiting subclause (a), any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data.

However, the Parties agree that your obligation to pay us the Price under these Terms will not constitute “Consequential Loss ”.

Consumer Law Rights has the meaning given in clause 5.1.

Force Majeure Event means any event or circumstance which is beyond a Party ’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with these Terms or the supply of Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party to these Terms or otherwise.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Price means the price set out in the Quote for the provision of the Services, as adjusted in accordance with these Terms, and includes any deposit set out in the Quote.

Product  or Products means a product used by us in relation to the Services provided and as set out on our website available at https://allsealedwa.com.au/products/.

Quote means the quote (including any online quote) to which these Terms are attached or incorporated by reference.

Security of Payment Legislation  means the applicable legislation governing security of payment in the State or Territory where the Site is located.

Services  means the services to be provided by us to you under these Terms, as expressly set out in the Quote, as adjusted in accordance with these Terms.

Site  means the site as set out in the Quote, and includes any other property or sites adjoined to, surrounding or neighbouring the Site that may be necessary to access or use for the provision of the Services.

Site Inspection means the pre-inspection we will carry out at the Site to assess the scope of the Services we will provide and to provide you in accordance with the Quote.

Specifications  means any specifications for the Services, and, if applicable, as further particularised in an attachment to these Terms or the Quote.

Term  has the meaning given in clause 13.1.

Your Items  has the meaning given in clause 10.1