1. DEFINITIONS
Customer means a person who:
- purchases goods or services from Wet Water;
- contracts with Wet Water for the supply of goods or services, including the supply of such goods or services to another person;
- rents, leases or borrows goods from Wet Water, or
seeks to do any of these either.
If more than one person is the Customer, each of those persons is jointly and severally responsible for all charges and other obligations in respect of the goods or services supplied.
Goods means any product or piece of equipment sold, leased, rented, loaned or otherwise supplied to the Customer by Wet Water pursuant to any agreement (and where the context so permits shall include any supply of Services as hereinafter defined).
GST means the tax imposed or to be imposed by the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
Order means any order placed by a Customer with respect to the supply by Wet Water of any goods or services pursuant to any agreement.
Services means any services provided to the Customer by Wet Water (or its contractors) pursuant to any agreement.
Website means the internet based website owned and operated by Wet Water.
Wet Water means Wet Water Group Pty Ltd (trading as Wet Water Pool and Spa Services) ABN 23 770 390 216 of Doncaster East, Victoria, 3109.
2. GENERAL
2.1 These terms and conditions will apply to any order by the Customer unless Wet Water expressly agrees in writing to any changes or other special conditions.
2.2 Wet Water may in its absolute discretion amend these terms and conditions from time to time by notice to the Customer.
2.3 If there is any conflict or ambiguity in or between any these terms and conditions and any special conditions, then these terms of settlement shall apply to the extent of the inconsistency.
2.4 The Customer shall include the purchase order number (if applicable) when placing an order with Wet Water.
2.5 Wet Water reserves the right to refuse at its absolute discretion –
- any order within seven (7) days after the order is received; and
- to at any time accept or proceed with any order if the creditworthiness of the Customer is unsatisfactory in its opinion.
2.6 The Customer shall inform Wet Water of any facts or matters which might reasonably affect any decision by Wet Water as to whether to accept the order, supply goods or services and or to extend credit to the Customer.
3. GOODS AND SERVICES
3.1 All goods and services to be supplied by Wet Water are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by Wet Water to the Customer.
3.2 Any variation from the plan of scheduled works or specifications must be authorised or accepted in writing by Wet Water.
3.3 The Customer agrees to strictly comply with the instructions, guidelines and or prerequisites of Wet Water with respect to the provision of all services.
4. CANCELLATION
4.1 Wet Water may cancel delivery of any goods or services at any time before delivery by giving written notice of such cancellation to the Customer. Wet Water shall not be liable to the Customer for any loss or damage arising from such cancellation.
4.2 Unless Wet Water agrees in writing, no cancellation of an order by the Customer will be accepted by Wet Water after delivery of the goods or services or after seven (7) days from the date shown on the Customer’s order.
4.3 In the event that the Customer cancels delivery of an order, the Customer shall be liable for any costs incurred by Wet Water up to the time of cancellation.
5. PRICE
5.1 Prices for the goods or services are as stated by Wet Water in its invoice or its current price list and may be altered from time to time without notice to the Customer. All prices quoted by Wet Water shall unless stated otherwise be exclusive of any GST and the Customer shall pay the price plus any GST when payment for the goods or services is due.
5.2 The Customer agrees to comply with Wet Water’s minimum invoice policy failing which Wet Water shall have no obligation to supply the Customer.
5.3 Variations will be charged on the basis of Wet Water’s quoted cost for such variations and will be separately itemised on Wet Water’s invoice.
6. PAYMENT TERMS
6.1 Payment of any amount invoiced by Wet Water to the Customer is to be made upon delivery of the goods or services or as otherwise specified in Wet Water’s invoice, quotation and or order forms. Payment must be made by cash, cheque, bank cheque, EFTPOS, credit card or direct credit to a bank account nominated by Wet Water or another method agreed by Wet Water in writing.
6.2 Payment for any variations must be made in full at the time of delivery of any additional goods or on completion of any additional services.
6.3 Wet Water may, in its absolute discretion, require payment of a deposit. The deposit amount or percentage of the price will be stipulated at the time of the order of the goods or services and is immediately due and payable.
6.4 Wet Water may in its absolute discretion vary its payment terms in writing or allow credit terms for certain approved customers.
6.5 The Customer agrees to pay to Wet Water any charges incurred by Wet Water in relation to any payment made by the Customer by credit card.
6.6 The Customer acknowledges that Wet Water may in its absolute discretion apply any payment received against any outstanding amount payable by the Customer.
6.7 Wet Water reserves the right to vary the terms of payment and to require payment in cash in full prior to delivery if at any time the creditworthiness of the Customer is unsatisfactory in its opinion.
6.8 If the Customer has not paid any amount due to Wet Water in full by the due date, Wet Water may at its option terminate the contract, seek to recover any goods and resell or dispose of the goods without prejudice to any claims for damages it may have against the Customer. Wet Water reserves the right to cancel orders or to suspend deliveries of other goods on any overdue account.
6.9 The Customer agrees that Wet Water’s records are conclusive evidence of the Customer’s order for goods and or services and the charges payable to Wet Water.
6.10 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs incurred by Wet Water for enforcement of obligations of the Customer under these terms.
7. INTEREST ON OVERDUE AMOUNTS
7.1 If any amount payable to Wet Water has not been paid by the Customer within fourteen (14 ) days of the due date for payment, Wet Water may:
- charge interest on the amount outstanding (at the prevailing rate of penalty interest prescribed by the Penalty Interest Rate Act 1983 (Vic) or if this is greater than permitted by law then the highest rate permitted by law) from the due date for payment until such time as full payment of the outstanding amount is made by the Customer; and or
- invoice the Customer an administration fee equal to 5% of the amount outstanding that shall represent a reasonable estimate of Wet Water’s administrative expenses and labour that result from any such failure to make payment to Wet Water in accordance with these terms.
8. DESCRIPTION AND CONDITION
The Customer acknowledges that –
a. it is entirely responsible for the provision to Wet Water of –
(i) all relevant specifications;
(ii) all relevant information and or specifications in relation to the goods and or services to be provided by Wet Water.
b. Wet Water shall not be obligated to provide any goods or services to the Customer unless and until it receives from the Customer –
(i) the information referred to in clause 8(a) hereof; or
(ii) a written acknowledgment from the Customer that the information has not been provided and an authorisation that the goods and or services are to be supplied at the full risk of the Customer after payment is received.
c. there has been no reliance by it on Wet Water’s skill or judgment or on any written or oral representations made by Wet Water or any employee, agent, dealer or other person or company, including any catalogues or publicity material, in deciding whether the goods and or services are fit for a particular purpose or meet particular criteria.
d. all photographs, weights, illustrations, dimensions and any other particulars given in or accompanying a quotation or contained in descriptive literature are approximate only and deviations there from shall not violate the contract or be made the basis of any claim made against Wet Water.
e. clerical errors are subject to corrections including without limitation, computer or system errors which result in incorrect product codes, description or pricing printed on delivery documentation and invoices.
9. CUSTOMER’S RESPONSIBILITIES
9.1 It is the Customer’s responsibility to –
a. arrange the following :
(i) diversion of any storm water, sewer or water supply pipe, electricity cable, telephone cable or gas pipes;
(ii) the removal of any trees or stumps; and or
(iii) the excavation of any rock.
b. prepare any lawns, shrubs, plants and trees which are required for re-planting;
c. supply water for the filling of any swimming pool or spa;
d. arrange installation of any new storm water, sewerage or water supply pipes, gas pipes and or any electricity or telephone cables;
e. any fencing or any other item required by any government or other authority as a requirement or condition to any building or council regulations;
e. supply the earth wire connection and electricity to all electrical pool and or spa equipment which Wet Water is commissioned to install;
g. ensure that no pathways or structures are constructed over any filtration lines prior to completion of any works by Wet Water;
h. ensure that any pool fencing meets all relevant government and safety regulations and that any pool gate self closing mechanisms and latches
are at all times in good working order;
i. ensure that all waste plumbing from any pool or spa equipment, all gas plumbing to any pool or spa, any gas heater(s) and that any mains water
plumbing to the automatic water levellers, if installed, have been installed by a licensed plumber and meet all government regulations;
j. ensure that all electrical supply to any pool or spa equipment, including underwater pool or spa lights, has been installed safely by a licensed
electrical contractor and complies with all relevant safety and government regulations; and
k. ensure at all times that any exposed electrical cable or wire is kept intact and is not damaged.
9.2 It is the Customer’s responsibility to ensure that access to the property is suitable to accept the weight of laden trucks, front end loaders or other
earth moving equipment or material handling equipment (such as cranes and forklifts) as may be deemed necessary by Wet Water or any third party
engaged by Wet Water. The Customer shall be liable for the cost of the replacement or repair of any paths, driveways or access routes to the
property damaged through the use of such equipment.
10. DELIVERY OF GOODS AND SERVICES
10.1 Delivery of goods and services shall be made to the Customer’s nominated delivery address or made available for pick up at Wet Water’s premises
at the discretion of Wet Water unless otherwise agreed to in writing.
10.2 Wet Water will have sole and absolute discretion as to the choice of carrier and method of carriage of any goods. Should the Customer nominate
its own carrier then all costs of delivery including insurance will be payable by the Customer.
10.3 Wet Water shall in its absolute discretion have the right to charge the Customer for delivery of the goods.
10.4 The Customer shall take delivery of any goods or services tendered notwithstanding that the quantity so delivered is more or less than the quantity
ordered by the Customer provided that;
a. such discrepancy in quantity shall not exceed 5%, and
b. the price shall be adjusted pro rata to the discrepancy.
10.5 Any time quoted for delivery is an estimate only. Wet Water shall not be liable to the Customer for any delay, failure or inability to deliver any
goods or services or make any goods available for collection. The Customer is not relieved of any obligation to accept or pay for goods or services
due to any delay in delivery.
10.6 Goods shall be deemed to be available for collection and or delivered at the time when Wet Water notifies the Customer that such goods are
available for delivery or collection. Risk in the goods shall pass to the Customer upon notification that the goods are available for delivery or
collection.
10.7 Wet Water shall not under any circumstances be liable for any damage, loss, cost or expense incurred or suffered by the Customer as a result of
any failure to deliver or for any delay in delivery irrespective of the cause or reason for such failure or delay.
10.8 Wet Water may invoice the Customer an administration fee equal to 5% of the value of any frustrated delivery which fee shall represent a reasonable estimate of Wet Water’s administrative expenses and labour.
10.9 Wet Water may cancel an order if it determines that it is or may be unable to deliver within a reasonable time or at all. If an order is cancelled, the customer will have no claim against Wet Water for any damage, loss, cost or expense.
10.10 Wet Water shall not be liable for any loss or damage incurred by the Customer by reason of the failure by Wet Water to deliver any goods or services promptly or at all irrespective of the cause for such delay or failure.
11. INSTALMENTS
Wet Water reserves the right to deliver by instalments and each instalment will be taken to be sold under a separate contract. A failure by Wet Water to deliver any instalment will not entitle the Customer to cancel the balance of the order.
Defects and Returns & Insurance
12. DEFECTS AND RETURNS
12.1 The Customer shall inspect any goods or services on delivery and shall within 7 days of delivery notify Wet Water in writing of any alleged defect,
shortage in quantity, damage or failure to comply with the description or quote. Time is of the essence and the Customer will be taken to have
absolutely waived any claim not notified to Wet Water within the specified time.
12.2 The Customer shall afford Wet Water an opportunity to inspect any goods or services within a reasonable time following delivery.
12.3 It is a condition of the sale of any goods that Wet Water is not obligated to accept in any case the return of goods for credit. All claims must be
submitted in writing within 14 days of receipt of invoice. The following conditions relating to the return of goods for credit apply to all goods returned
for this purpose with the approval of Wet Water.
- goods cannot be returned for credit except with the prior written agreement of Wet Water.
- in every case the original invoice number and date must be quoted.
- all returned goods must be in their original saleable packaging and include all accessories, manuals and instructions. Returned goods will all be subject to a count and inspection before credit is passed.
- return freight and transport charges are the responsibility of the Customer unless Wet Water otherwise agrees in writing.
- reserves the right to apply a restocking fee of 20% of the sale price of the return goods.
13. INSURANCE
Wet Water shall take out insurance cover at the Customer’s cost if requested in writing by the Customer to do so. Wet Water shall not otherwise be obligated to insure the Customer’s goods or any services provided.
14. WARRANTIES
14.1 The Customer warrants that it is solvent and able to pay its debts as and when they fall due.
14.2 Wet Water warrants to repair or replace, at its option, –
1. all goods and their components manufactured or enhanced by it; and or
2. all services provided by it,
which Wet Water, in its absolute discretion, determines are defective in materials and or workmanship under normal use and service up to the
expiration of any relevant warranty period (“the warranty”).
14.3 The liability of Wet Water under the warranty is limited to the repair or replacement of the defective goods and or components and or services. All other costs, including cartage and installation, must be paid by the Customer. While the goods are in custody of Wet Water for investigation or repair they will be at the risk of the Customer and Wet Water or its employees or agents will not be liable for any damage to the goods.
14.4 To obtain the benefit of the warranty, the Customer must notify Wet Water in writing immediately on it becoming aware of the alleged defect and before the expiration of the relevant warranty period.
14.5 The warranty does not cover any defect or damage which may wholly or in part be caused by or arise through:
1. a failure on the part of the Customer to properly maintain the goods;
2. a failure on the part of the Customer to follow any instructions or guidelines provided by Wet Water;
3. the use of the goods otherwise than as intended or for any application other than as specified on a quote or order form;
4. the continued use of the goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user;
5. and or fair wear and tear, any accident or an act of God.
14.6 The warranty shall be void in the event that the Customer, or a third party, carries out any repairs, alterations and or maintenance to the goods without the prior written consent of Wet Water.
14.7 Wet Water shall not be liable to compensate the Customer for any delay in either replacing or repairing the goods or in properly assessing the Buyer’s claim.
14.8 For goods not manufactured by Wet Water, the warranty shall be limited to the current warranty provided by the manufacturer of the goods and Wet Water shall not be liable to the Customer save for any express conditions stipulated in the manufacturer’s warranty.
14.9 Parts and labour for any repairs or replacement under the warranty shall be provided by Wet Water during normal working hours at a place of business of Wet Water and Wet Water shall have no liability for the cost of transportation of the goods to such place of business.
14.10 All rejected parts or defective parts shall be the property of Wet Water to dispose of as it sees fit.
15. IMPLIED TERMS
All conditions and warranties expressed or implied by statute, the common law equity, trade, custom or usage or otherwise are expressly excluded to the maximum extent permitted by law.
16. LIABILITY
16.1 To the extent that the law permits, the liability of Wet Water for a breach of a condition or warranty that cannot be excluded is limited, at the option
of Wet Water, to:
- the replacement or repair of the goods or services;
- the supply of equivalent goods or services; or
- the cost of replacing or repairing the goods or of acquiring equivalent goods.
16.2 The Customer acknowledges and agrees that, to the extent that the law permits, Wet Water shall not be liable for any loss or damage suffered by the Customer caused by or arising from:
- any fence or gate to the Customer’s premises (including around any pool or spa) being:
a. faulty or not properly operational; or
b. left open by any employee or agent of Wet Water;the disposal of water from a pool or spa when drained; - any backwash to a storm water or waste drain on the Customer’s property;
- any faulty or incorrectly installed hydrostatic valves to the Customer’s pool or spa;
- the use of frail or aged equipment to complete any necessary services.
16.3 The Customer agrees to release, hold harmless and indemnify Wet Water to the maximum extent permitted by law from and against any liability whatsoever and howsoever arising (including, without limitation, from negligence or wilful misconduct on the part of Wet Water or others) in connection with the sale of goods or the provision of services by Wet Water.
17. INDIRECT LOSS
To the extent that the law permits, Wet Water is not liable in any way for any indirect or consequential loss or loss of profit including, without limitation, any loss by reason of delay, non-delivery, defective or faulty materials or workmanship, negligence or any act or matter or thing done, permitted or omitted by Wet Water.
18. RECOVERY COSTS
In the event of a default by the Customer under these terms and conditions, the Customer shall indemnify and hold Wet Water harmless from all costs and expenses incurred by Wet Water and or its servants and agents in relation to the rectification of such default and or the enforcement of Wet Water’s rights under these terms and conditions.
19. WEBSITE
19.1 The Customer acknowledges that copyright in the site and its content is owned by Wet Water.
19.2 The Customer acknowledges and agrees that the Customer will not modify, copy, reproduce, republish, upload, post, transmit, distribute, alter, publicly perform, or publicly display in any way any material from the site except as expressly agreed to by Wet Water in writing. The Customer may however download material from this site for the Customer’s own personal and non commercial use only subject to all copyright and other proprietary notices being kept intact.
19.3 Any use by the Customer of the site (or materials or content downloaded from the site) for any commercial purpose, or to obtain direct financial gain, is strictly prohibited and shall constitute a material breach of these terms.
20. CUSTOMER RESTRUCTURE
The Customer shall notify Wet Water in writing of any change in its structure and or management including but not limited to any change of directors, shareholders and or managers or any change in partnership or trusteeship within 7 days of the date of any such change.
21. CREDIT LIMIT
The grant by Wet Water of any credit facility or nomination of any credit limit shall not be binding on Wet Water which may at its sole discretion and at any time vary or cancel any credit facility provided to the Customer or alter the terms under which such credit facility is provided.
Title and Risk
22. TITLE AND RISK
22.1 Until full payment has been made for all goods and services supplied by Wet Water under these terms and any other sums in any way outstanding
from the Customer to Wet Water from time to time –
- all sums outstanding become immediately due and payable by the Customer to Wet Water if the Customer makes default in paying any other sums due to Wet Water, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these terms.
- the property in, and ownership of, the goods (including goods owned by the Customer and to which Wet Water has carried out services) shall not pass from Wet Water to the Customer and the Customer shall hold the goods as bailee for Wet Water (returning the same to Wet Water on request). The goods shall nevertheless be at the risk of the Customer from the time of delivery and shall be stored in a manner which identifies the goods as the property of Wet Water.
- The Customer irrevocably authorises Wet Water to enter any premises where the goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the goods.
22.2 Notwithstanding that Wet Water may retain property in the goods, all risk for the goods and any services passes to the Customer on delivery.
22.3 If any of the goods are damaged or destroyed prior to property in them passing to the Customer, Wet Water is entitled, without prejudice to any of its other rights or remedies (including the right to receive payment of the balance of the price for the goods and any services), to receive all insurance proceeds payable with respect to the repair or replacement of the goods irrespective of whether or not the price is or has become payable.
23. SECURITY & CHARGE
23.1 In order to secure payment to Wet Water of all amounts and other monetary obligations payable by the Customer and any guarantor of the Customer’s obligations, under any agreement between Wet Water, the Customer and any guarantor, the Customer and the guarantor jointly and severally :
- charge all of their beneficial interest in any real and personal property (including all property acquired after the date hereof) in favour of Wet Water whether or not a demand has been made on the Customer or the guarantor; and
- authorise and consent to Wet Water taking all actions necessary to give effect to this security including the lodgment of a caveat upon title to any real property registered in the name of the Customer or the guarantor. The Customer and the guarantor hereby irrevocably nominate constitute and appoint Wet Water (or its nominee) the true and lawful attorney of the Customer and or the guarantor with power to execute, sign, seal and deliver (which delivery may be subject to such terms and conditions as the attorney thinks fit) such documents as may be necessary to give effect to this security.
- Should Wet Water elect to proceed to lodge a caveat upon title to any real property registered in the name of the Customer or the guarantor, the Customer and or guarantor shall indemnify Wet Water with respect to all costs and disbursements incurred by it on a full indemnity basis.
24. WAIVER
Failure by Wet Water to insist on strict performance of any terms, warranty or condition of the contract will not be taken as a waiver of it or of any rights Wet Water may have and no waiver will be taken as a waiver of any subsequent breach of any terms, warranty or condition.
25. ENTIRE AGREEMENT
These terms and conditions shall apply to any agreement between Wet Water and the Customer and no terms or conditions which the Customer may seek to impose shall apply unless agreed to in writing by Wet Water.
26. TERMINATION
Wet Water may terminate any Contract immediately by written notice to the Customer, in which case the Customer must pay for all Goods and Services provided up to the date of termination.
27. VARIATION
These Standard Terms may only be varied in writing and Wet Water may vary these Standard Terms upon notice to the Customer. If so, the Customer may terminate its Contract and must pay for all Goods and Services provided to that date. If the Customer continues to accept the Goods and Services, the varied terms will apply to all Services provided after that time.
28. SEVERANCE
Notwithstanding that any provision of these terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason, that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the terms shall continue in full force and effect.
29. LEGAL CONSTRUCTION
These terms shall be governed and interpreted according to the laws of Victoria and Wet Water and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
30. FORCE MAJEURE
Wet Water shall not be, or be deemed to be, in default or breach of any agreement as a result of a matter beyond its reasonable control (“Force Majeure”) including but not limited to strikes and lockouts.
31. GST
31.1 Expressions used in this clause 31 and in the GST Act have the same meanings as when used in the GST Act.
31.2 Amounts payable and consideration provided under or in respect of any agreement between Wet Water and the Customer are GST exclusive unless stated otherwise in writing.
31.3 A party is not obliged to pay the GST on a taxable supply to it until given a valid tax invoice for the supply.