TERMS & CONDITIONS
1.1 “Vendor” means Underwater Pool Repairs
1.2 “Goods” means any goods or services supplied by the Vendor to the Customer that are the subject of this agreement.
1.3 “Customer” means the person purchasing the Goods as set out in this agreement or any invoice or order form. A reference to Customer in this agreement includes each and every Customer jointly and severally where there is more than one Customer to this agreement.
1.4 “Price” means the price agreed to be paid by the Customer to the Vendor for the supply of the Goods.
1.5 Where reference is made in this agreement to a “person” the expression is interpreted to include an individual, corporation, government or governmental agency, estate, trust, partnership, association or other legal or commercial entity or undertaking.
1.6 The words “includes” and “including” or words of similar effect are not words of limitation.
2 The Agreement
2.1 The sale of Goods by the Vendor to the Customer is governed by this Agreement and its terms.
2.2 This Agreement is the entire agreement between the parties and supersedes all and any communications, negotiations, arrangements and agreements, whether oral or written, between the parties in respect of the matters that are the subject of this Agreement.
3 Estimates
3.1 Any estimated price provided by the Vendor to the Purchaser will remain valid for a period of 30 days from the date of the estimate, unless otherwise agreed and stated on the estimate.
3.2 The Vendor reserves the right to vary or alter the price without notice after the period set out in clause 3.1 of this Agreement.
3.3 The Vendor reserves the right to change the Price in accordance with any variation to the estimate requested by the Customer.
3.4 Estimates provided are an estimate of time to complete the work and are subject to change prior to commencement of work, if upon physical inspection, the job will require more or less materials and/or labor other than determined from the description and/or pictures of work provided by the Customer.
4 Acceptance
4.1 The Customer agrees to accept and immediately be bound by this Agreement and its terms when the Customer accepts a written estimate from the Vendor referring to these terms and conditions.
5 Variation to Agreement
5.1 The parties agree that the terms and conditions of this Agreement may only be amended with the written consent of the Vendor.
6 Price
6.1 The price for the Goods shall be:
a. Subject to clause 3, the Vendor’s estimated price; and Underwater Pool Repairs Terms and Conditions.
b. Any additional charges arising under this Agreement including but not limited to any additional charges for unsuccessful delivery.
6.2 The Price of the Goods is in Australian Dollars and inclusive of GST. No deduction or offset of the GST by any other amount is permitted.
6.3 The Customer is liable for any freight charges, duties or taxes that may apply to this Agreement in addition to the Price unless such amounts are expressly included in writing in this Agreement.
6.4 The Vendor charges by the hour, if work continues into the next hour by at least 10 minutes, the charge will be for the next hour, unless otherwise agreed and stated on the estimate. Some jobs will have a 4-hour minimum charge per day, where a day rate of 8 hours will apply after 4 hours, this will be stated on the estimate if applicable.
6.5 An after-hours rate of 150% of the ordinary rate will apply for any work carried out on Saturdays and between 5pm and 7am weekdays. An after-hours rate of 200% of the ordinary rate will apply for any work carried out on Sundays and public holidays. These rates are subject to change at the discretion of The Vendor.
7 Payment
7.1 The Price will be payable by the Customer on the day the service is provided, unless otherwise agreed and stated on the estimate. Payment may be required upfront if payment on the day is not possible. This Agreement is entered into by accepting the estimate and is an essential term of the Agreement.
7.2 The Vendor is under no obligation to deliver the Goods, or any instalment of the Goods until the Price is paid by the Customer in full.
7.3 The Vendor reserves the right to require a deposit from the Customer.
7.4 Late payment is subject to additional collection fees and interest charges at the Vendors sole discretion, payable by the Customer to the Vendor.
7.5 Payment may be made by Cash, Cheque, Electronic Transfer, Credit Card or any other method agreed to between the Customer and the Vendor and set out in writing in this Agreement.
8 Goods
8.1 The Customer acknowledges that natural variations in colour, texture and finish are an inherent quality of the Goods and that the Goods may naturally fade or change in colour, texture or quality over time.
8.2 While the Vendor shall make all reasonable attempts to match the colour, texture and finish of the Goods as requested by the Customer, the Vendor will not be liable for any claim in relation to variations of texture, colour or shade of the Goods.
8.3 The Customer must ensure that Underwater Pool Repairs have full access to the pool/spa and that it is full, clean and clear. If we are unable to gain access, the pool/spa is not full, clean and clear, the scope of the work is not as described or there are obstructions that do not allow the Vendor to conduct the work, a call out fee (plus travel charges if applicable) will be charged at the Vendors sole discretion. The Vendor is under no obligation to re-attend the Customers site until the call out fee has been settled.
8.4 The Vendor will make every effort to locate leaks as efficiently and effectively as possible, leak detection as a service is complex due to most leaks being hidden and therefore, the Vendor cannot guarantee the leak will be found or the precise location of a leak. The Vendor is under no obligation to provide a refund in this case. The Vendor is not liable for any damages or costs associated to inaccurate leak location. Nor is the Vendor liable for consequential losses.
8.5 Leaks may not always be visible and may appear intermittently depending on various factors such as ground condition and hydrostatic pressure. Leak detection reports are based only on findings visible at the time of testing and any additional visits are chargeable to the Customer. The Vendor is not responsible or liable for any costs associated with different results being found at a different time by either the Vendor or a third-party.
8.6 If no leak is detected within the pool, the underwater leak detection fee (plus travel charges if applicable) is still payable. If no leak is found or there is still water loss after repair, it is advisable to have the pipe-lines pressure tested, the Customer would need to organise a third-party to conduct this. The Vendor is under no obligation to re-test the pool until this has been done. Any additional visits required are chargeable at the Vendors sole discretion.
8.7 If for any reason leak detection takes more than 2 hours to complete, payment is to be made for the additional time (standard hourly rate) we are on site and conduct testing regardless of the outcome.
8.8 On an estimate, ‘Standard Leak Service’ refers to the application of temporary epoxy to a minor crack and/or replacement of the hydrostatic valve. We will advise prior to repairing if the leak is outside the scope of standard repair and additional fee’s apply. Determination of the scope of a ‘Standard Leak Service’ is at the discretion of the vendor and there is no guarantee that a repair can be carried out. If for any reason we cannot carry out a repair due to the area or type of leak found (if any), The Customer would need to organise repair with a third-party.
8.9 Should the Customer have any queries about the work undertaken, they must notify the Vendor within five business days of the visit, no misunderstandings will be considered after this time.
8.10 Epoxy applications and vinyl patches are classed as temporary repairs and may react with pool water temperature and chemicals over time, therefore the length of time that these repairs will last cannot be guaranteed. Depending on the location of the repair, ground movement and pool cleaning machines may disrupt the repair. The Vendor is not liable for damage to these repairs for any of the above reasons.
8.11 The Vendor is not liable for any damages or costs associated with the deterioration of materials and repairs over time or due to variations in temperature or chemicals, or due to ground movement, nor is the Vendor liable for consequential losses. The Vendor is not liable for any damages or costs associated with any adverse effects from any repairs carried out or materials used, nor is the Vendor liable for consequential losses. The Vendor is not liable for any damages or costs associated to replacement of a hydrostatic valve, nor is the Vendor liable for consequential losses. The Vendor is not liable for breakages caused in the removal of any fixtures or fittings required to carry out any work or leak detection, including pool lighting. It is at the Vendors sole discretion to determine whether a light fitting or fixture is unable to be removed or is at risk of breakage, in this case the light fitting or fixture may not be removed and it is the Customers responsibility to arrange removal by a third party at a later date if they so wish, any return visit to then leak test behind the removed light fitting or fixture is chargeable.
8.12 The Vendor is not responsible for the removal or disposal of any debris or materials such as pebblecrete, expansion joint or tiles from the Customers site. The Vendor will clean underwater debris as best possible, however some debris will take time to settle and may remain on the pool floor, including small amounts of material which may set such as grout or adhesive, it is the Customers responsibility to have any remaining debris or material cleaned after the advised setting period. The Vendor is not liable for any damages or costs associated with any material used that may attach to any persons body or clothing, should they enter the repaired area within the advised setting period.
8.13 The Vendor is not liable for any damages or costs associated with changes in the chemical balance of the pool water or function of the filtration and/or pump system from use of any materials required to carry out the work.
8.14 The Customer is responsible for supplying the matching tiles or any other materials as agreed. A call out fee will be charged at the Vendors sole discretion if work cannot be conducted due to lack of suitable tiles or materials.
8.15 The Vendor will advise the Customer of set and cure times for materials used. The Vendor is not liable for any damages or costs associated with this guidance not being followed.
8.16 The Customer must ensure that all pumps/jets and pool cleaning systems are switched off for leak detection and for any other works that have a set/cure time, they must be left off for the advised set/cure period unless otherwise advised and stated on the estimate and/or invoice, this includes systems on a timer. The Vendor is not liable for any costs, damages or charges associated with these systems being turned off by either The Customer or The Vendor, or if these systems turn on during the set/cure period. Any requirement of The Vendor to return to the Customer site due to disruption from pool systems turning on, will be chargeable to the Customer.
8.17 In some cases, repair or replacement of pool tiles along a step edge can be disrupted by pool cleaners and cause the tiles in this area to continue being pulled off. Therefore, the Vendor cannot guarantee the permanent adhesion of tiles along step edges or similar areas. Any return visits required to re-tile these areas are chargeable and it may be advisable to seek another solution, the Vendor is not liable for providing or implementing alternative solutions in this case.
8.18 For tiles or mosaics requiring repair that are located on an overflow or directly on the waterline, the Customer is responsible for ensuring the water is dropped to a level where there is no flow or wash of water over the area for repair and duration of setting period. If the Vendor is unable to conduct the work due to the water level not being dropped as requested, a call out fee (plus travel charges if applicable) will be charged at the Vendors sole discretion.
8.19 While the Vendor will conduct a visual scan of the pool for any further missing tiles, ultimately it is the Customers responsibility to advise the Vendor of how many tiles require replacement and to show the Vendor where these areas are located and confirm once the work is complete. The vendor is not liable for any further missing tiles once they have left the Customer site and any return visits required are chargeable at the Vendors sole discretion.
8.20 In some cases it may not be possible to lay replacement tiles completely flush as chipping too close to neighbouring tiles can cause further tiles to come loose. Similarly, The Vendor cannot guarantee successful placement of tiles vertically on a pool wall underwater due to gravity and depending on the configuration of missing tiles as they may not remain in place long enough to set. This is the nature of patch repairing pool tiles. The Vendor is not liable for any discrepancies regarding tile placement in these cases.
8.21 In some cases, old original tiles surrounding newly replaced tiles lift off and leave the newly replaced tiles exposed along an edge, these newly replaced tiles will also be susceptible to lifting either on their own, from foot traffic or pool cleaners. This is the nature of replacing tiles amongst older tiles with weak, deteriorating grout and adhesive and is not something The Vendor can control or prevent in this circumstance. Therefore, the Vendor cannot guarantee the permanent adhesion of tiles in this case. Any return visits required to re-tile these areas are chargeable and it may be advisable to seek another solution, the Vendor is not liable for providing or implementing alternative solutions in this case.
8.22 If tiles requiring replacement are found to have been installed on top of previous/older tiles, The Vendor cannot guarantee adhesion of new tiles over existing tiles. This is due to the underlying tile surface being smooth and glossy, compared to applying new tiles onto a rough surface such as render or concrete. The Vendor is not liable for removing these underlying tiles for new tile replacement as this would place the work significantly out of scope as a full re-tile of the pool would generally be required in this case.
8.23 For any tile grouting or underwater patch repairs of pebblecrete, quartz, plaster or other pool surface render, the patching material is white or grey in colour, possibly with a pebble mix and may not be an exact match to the current render or grout, The Vendor will blend as best possible however The Vendor is not liable for any variations in colour or texture compared to the original render. Where possible, The Vendor will remove any ‘lifted’ render from around the edges of the delaminating area until flat, however there is a limit to the size of area that can be patched underwater, therefore if this limit is reached, at the discretion of The Vendor, the area will be patched/filled as is. While the patch material will set hard and may help slow the spread of delamination, The Vendor cannot guarantee that the original render surrounding the patch will not continue to lift and delaminate or that other areas around the pool surface will lift and delaminate. The Vendor is not liable for any damages or costs associated with any further delamination. Any return visits for additional underwater patching are chargeable and it may be advisable to seek another solution, the Vendor is not liable for providing or implementing alternative solutions in this case. The Vendor will advise options upon inspection if the lifted area is too large to be filled underwater, in some cases the edges of the delaminating render can be smoothed and ‘ramped’. If this is not possible and the patching work is unable to be carried out due to the size of the delaminating area, a call out fee may be charged at The Vendors sole discretion and The Customer may need to seek another solution, the Vendor is not liable for providing or implementing an alternative solution.
9 Title
9.1 Ownership of the Goods shall not pass from the Vendor to the Customer until the later of:
a. Full payment of the Price for the Goods and fulfillment by the Customer of any other obligation owed to the Vendor; or
b. Upon delivery of the Goods to the Delivery Address.
10 Risk and Insurance
10.1 The risk of damage or loss to the Goods passes to the Customer on delivery, notwithstanding that ownership of the Goods may be retained by the Vendor in accordance with Clause 10 of the Agreement.
11 Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law Underwater Pool Repairs Terms and Conditions
11.1 To the extent that this Agreement is governed by the Competition and Consumer Act 2010 (Cth) (“The Act”) the Vendor’s liability is limited to the extent set out in section 64A of Schedule 2 of the Act.
11.2 The Vendor acknowledges that nothing in this Agreement purports to modify or exclude the guarantees that may be implied by the Act.
11.3 Subject to clause 12.2 the Vendor gives no other warranties or representations except as set out in the terms of this Agreement and any warranties or representations implied by the operation of the Act including any warranties or guarantees in relation to the quality or suitability of the Goods. The Vendor’s liability in respect of these warranties or guarantees is limited to the fullest extent permitted by law.
11.4 In the event the Vendor is required by the Act to replace the Goods but is unable to do so, the Vendor may refund the Price paid by the Customer for the Goods.
11.5 If the Act does not apply to this Agreement or its terms then the Vendor’s liability for any defect or damage in the Goods is limited only to the lesser of the value of any warranty to which the Seller is entitled or to the Price paid by the Customer for the Goods and is otherwise absolutely negated.
11.6 The Vendor will not be liable for any defect or damage in the Goods resulting either wholly or in part from the Customer’s failure to take reasonable care in the use, storage, maintenance, or disposal of the Goods.
12 Termination and Breach
12.1 The Vendor may terminate the Agreement by giving written notice to the Customer.
12.2 In the event the Vendor terminates the Agreement the Vendor shall repay any monies paid by the Customer to the Vendor for the Goods.
12.3 The Vendor shall not be liable for any claim for loss or damage arising from cancellation pursuant to clause 14.1 of the Agreement.
12.4 In the event the Customer cancels the booking within 24 hours of the appointment, the Vendor reserves the right to charge a reasonable cancellation fee at their sole discretion.
13 Assignment
13.1 Rights and obligations arising out of or under this agreement are not assignable by one party without the prior written consent of the other parties. A purported assignment without written consent will be deemed to be void and convey no rights.
14 Severance
14.1 If any term or provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, that provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement.
15 Waiver
15.1 A failure by the Vendor to enforce any provision of this agreement shall in no way affect its rights to require complete performance by the Customer
15.2 A waiver of any breach of any provision by the Vendor shall not be taken or held to be a waiver of any subsequent breach of any such provision or be a waiver of the provision itself.
15.3 Any waiver given by the Vendor to the Customer will only be effective if such waiver is in writing and signed by or on behalf of the Vendor.
16 Governing Law
16.1 This agreement and its provisions shall be governed and interpreted in accordance with the laws of the State of New South Wales.
16.2 The Vendor and Customer agree to submit to the non-exclusive jurisdiction of the New South Wales Courts in relation to any dispute arising out of this agreement.