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Terms and Conditions

 

1. INTERPRETATION

Business Day” means any weekday on which banks are generally open for business in Brisbane, Queensland.

Buyer” means the person, entity or organisation that Orders Goods from the Seller or to which Goods are delivered by the Seller and includes the Buyer’s agents.

Conditions” means these Terms and Conditions of Sale between the Buyer and the Seller as set out in this document.

Consumer Law” means the Competition and Consumer Act 2010 (Cth) as amended from time to time.

Contract” means these Conditions, and any conditions contained on invoices or warranty documents issued by the Seller to the Buyer.

Corporations Act” means the Corporations Act 2001 (Cth) as amended from time to time.

Delivery Fees” means the delivery fees charged by the Seller or the Seller’s contractor from time to time.

Goods” means the goods supplied by the Seller to the Buyer from time to time.

GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time.

“Intellectual Property Rights” includes rights in relation to present and future copyright, confidential information, patents, inventions, registered and unregistered trademarks and registered or unregistered designs and includes any right to licence and sub-licence any of the above.

Order” means an order placed by the Buyer (including by phone or in writing) requesting the Seller to supply the Goods.

Price” means the moneys payable by the Buyer to the Seller in relation to the supply of Goods.

Quotation” means a document provided by the Seller to the Buyer setting out the Goods and the Price.

Security Interest” includes any security interest under the PPSA.

Seller” means LLTSMM Pty Ltd ACN 664 943 024 trading as King Spa Pools or any Related Body Corporate as defined by the Corporations Act.

Services” means any services provided by the Seller to the Buyer from time to time, including but not limited to the repair of the Goods provided by the Seller to the Buyer.

 

 2.GENERAL

a)  Any Orders for Goods placed by the Buyer are subject to these Conditions. The Contract constitutes the whole agreement between the Seller and the Buyer. No term or condition (other than the Warranty Terms) contained in any document or Order will add to, amend or delete these Conditions unless expressly pre-agreed in writing by a duly authorised officer of the Seller.

b) The Buyer agrees that in placing any Order with the Seller and by accepting delivery in whole or in part of any Goods after being provided with a copy of these Conditions, the Buyer has agreed to these Conditions whether or not the Buyer has signed a copy of these Conditions and that these Conditions shall apply and form part of any contract for the supply of the Goods between the Buyer and Seller hereinafter.

c) The Buyer acknowledges and agrees that the Seller has made the Specifications available to the Buyer before the Buyer has placed its Order. The Buyer acknowledges and agrees that it is the Buyer’s responsibility when Ordering the Goods to satisfy itself (by carefully considering the Specifications) that the Goods ordered conform to the Buyer’s requirements.

d) In the event that the Consumer Law is not applicable, the Seller reserves the right to not accept the return of, or give credit for, any Goods it supplies to the Buyer.

e) The Seller’s receipt of an Order does not constitute acceptance of the Order by the Seller. The Order is deemed accepted on the earlier of delivery of the Goods or the date the Seller notifies the Buyer that it has accepted the Order.

f) The Buyer must provide all information necessary to enable the completion of each Order. The Buyer acknowledges and agrees that it must pay any costs arising directly or indirectly from any error or omission in that information or any delay in providing that information.

   

3.SUPPLY OF GOODS AND SERVICES

 Subject to these Conditions:

a) the Seller agrees to supply the Goods or Services to the Buyer;

b) the Buyer agrees to pay for the Goods or Services in accordance with these Conditions.

       

4.QUOTATIONS AND ORDERS

a) At the request of the Buyer, the Seller may provide the Buyer with a Quotation for the Goods or Services. Any Quotation provided by the Seller to the Buyer is only inclusive of the Goods expressly detailed in the Quotation.

b) The provision of a Quotation by the Seller is not intended to be, and should not be treated as, the making of an offer by the Seller and no contract will be formed unless and until an Order is placed by the Buyer and accepted by the Seller.

c) The Seller reserves the right to amend any Quotation at any time prior to the Seller’s acceptance of an Order by notice in writing to the Buyer.

       

5.PRICING AND PAYMENT

a) The Price for the Goods or Services will be either:

    1. the price contained in the Quotation or the tax invoice provided by the Seller to the Buyer at the request of the Buyer; or
    2. any other price communicated by the Seller to the Buyer prior to the Seller’s acceptance of the Order.

b) Any Price quoted is subject to the terms contained in the Quotation and the Contract. If there is any inconsistency between the terms of the Quotation and the Contract, the Contract will prevail to the extent of the inconsistency.

c) Unless otherwise indicated, prices quoted are exclusive of GST. The Buyer is required to pay all GST in respect of the Goods or Services or any part of the Goods or Services at the same time that payment is required.

d) The Buyer acknowledges and agrees to pay the Seller on demand all costs and losses incurred by the Seller if the Buyer, for any reason, is unable or unwilling to accept the Goods after the date the Order is accepted by the Seller.

     

6.TERMS OF PAYMENT

a) The Buyer agrees to pay the Seller:

    1. the Price for all Goods or Services provided by the Seller to the Buyer;
    2. the Delivery Fees, if applicable; and
    3. any applicable GST or other charges, duties and taxes set out in the Quotation or otherwise invoiced by the Seller from time to time.

b) The Buyer acknowledges that the Delivery Fees will vary depending on the location of the Buyer, the circumstances of delivery and the nature of the Goods or Services provided. The Seller may, in its discretion, vary the Delivery Fees from time to time by giving the Buyer notice in writing.

c) The Seller will issue an invoice to the Buyer for the Price plus any other amount payable by the Buyer to the Seller. The invoice will provide how payment will by made by the Buyer for the Seller providing the Goods or Services but, for the avoidance of any doubt all amounts invoiced are due and payable at the time of purchase of the Goods or Services or prior to the delivery of the Goods, as directed by the Seller.

d) The Seller may require a non-refundable deposit on an Order. If the Seller requires the Buyer to pay a deposit, it will be deducted from the Invoice.

e) In the event that payment is not received according to the Contract this will constitute a default under the Contract, and:

    1. all money owed by the Buyer to the Seller will become immediately due and payable from the Buyer to the Seller;
    2. the Seller may charge the Buyer interest on overdue amounts. Interest will be calculated on daily balances of overdue invoices from the day following the date upon which payment should have been made at the rate of 18% per annum; and
    3. the Buyer agrees that interest on any overdue invoice shall automatically accrue on all overdue amounts and continue to accrue until payment is made in full to the Seller.

(f) In the event of a default by the Buyer under the Contract, the Buyer agrees to indemnify the Seller for all costs that the Seller may incur arising from, relating to or in connection with, the default, including:

                  4. all legal costs (on an indemnity basis) incurred by the Seller obtaining advice in respect of its rights under the Contract and enforcing its rights under the Contract against the Buyer;

                  5.all legal costs (on an indemnity basis) incurred by the Seller in attempting to recover moneys owed by the Buyer to the Seller under the Contract; and

                  6.any other disbursements that the Seller may reasonably become liable for.

g) The Buyer agrees that until all money owed (or claim to be owed) by the Buyer to the Seller is paid in full to the Seller, the Buyer may not raise any defence available to it or exercise any right of set-off or make a counterclaim or cross-demand against the Seller in reduction of the Buyer’s liability under the Contract.   The right of the Buyer to raise any defence, set off, cross demand or counterclaim is wholly suspended until such time as the monies owed (or claim to be owed by the Buyer to the Seller) is paid in full to the Seller.

h) The Buyer agrees that any time that it makes a payment to the Seller, irrespective of whether the payment is made under or in connection with the Contract, that the Seller may apply that payment in any manner that the Seller sees fit, including by applying any payment firstly to interest and legal costs.

       

7.DELIVERY AND RELOCATION OF GOODS

a) Unless otherwise agreed in writing, the Goods shall be delivered or relocated to the Buyer at a location notified by the Buyer to the Seller.

b) Risk of, loss of or damage to the Goods passes to the Buyer when the Goods leave the Seller’s warehouse.

c) If the Seller agrees to deliver the Goods to the location of the Buyer and if the Seller contracts with a courier to do so, delivery of the Goods to the third party delivery contractor in all circumstances constitutes delivery to the Buyer.

d) If the Seller agrees to deliver the Goods to the location of the Buyer by way of a third party delivery contractor:

    1. these Conditions do not constitute a delivery contract between the Seller and the Buyer notwithstanding any payment that is made by the Buyer to the Seller with respect to the delivery of the Goods;
    2. the delivery contract is made between the Buyer and the delivery contractor;
    3. the Buyer is responsible to make sure that the appropriate insurances are in place before the Goods are collected from the Seller by the courier for delivery to the Buyer’s premises;
    4. the Buyer is responsible for providing the delivery contractor with full and clear access to the address for delivery for the purpose of delivering the Goods and acknowledges that the Seller will not be held liable if the Goods cannot be placed in the final location chosen by the Seller; and
    5. the Seller will not be held responsible for any loss or damages to the Buyer, the Buyer’s property, the delivery location or the Goods caused by the delivery contractor and, by accepting these Conditions, the Buyer irrevocably releases the Seller from any loss or damage caused by the delivery contractor.

       

8.ACCEPTANCE OF GOODS

a) Within 24 hours of delivery, the Buyer must notify the Seller if the Goods do not conform to the Order. The notice must be written and must contain the Order number, the delivery date and reasonable detail and evidence of the non-conformity. Failure to give such notice shall constitute an irrevocable acceptance of the Goods by the Buyer and that the Goods meet the Specifications in all respects.

b) Non-conformity of any part of the ordered Goods will not entitle the Buyer to reject all of the ordered Goods.

c) If the Buyer provides notification pursuant to clause 8(a) herein, and the Seller is satisfied that the Goods do not conform to the Order, then the Seller may, at the sole discretion of the Seller, choose to:

  1. accept a return of the Goods and refund the Price to the Buyer; and/or
  2. replace the Goods.

d) Nothing in this clause 8 is intended to effect or limit the rights of the parties under the Australian Consumer Law.

       

9. INSURANCE

The Buyer is responsible for obtaining its own insurance in respect of the Goods (including insurance which covers the Goods while in transit), at the Buyer’s cost.

     

10.PROVISION OF SERVICES

a) At the Buyer’s request, the Seller may provide its Services to the Buyer at a location notified by the Buyer to the Seller. The Buyer must ensure that the Buyer’s property is safe for the Seller or its employees or contractors to enter, including restraining any animals. 

b) If the Seller provides Services to the Buyer, the Buyer:

    1. irrevocably authorises the Seller and its employees or contractors to enter the Buyer’s property to provide Services; and
    2. holds the Seller harmless from any loss or damage to the Buyer’s property or the location in which Services are being provided.

11.DEFAULT

a) In the event of:

    1. the Buyer failing to make any payment to the Seller on the due date; or
    2. the Buyer not complying with an obligation under the Contract,

the Seller may, without prejudice to any other remedy, have the right to:

                        3. decline to deliver the Goods or any balance of the Goods the subject of an Order;

                        4. stop any Goods in transit;

                        5. otherwise cease to perform any of its obligations to the Buyer;

                        6. terminate the Contract with the Buyer without incurring any liability at law or in equity and without prejudice to the Seller’s right to recover amounts owing to it by the Buyer; and/or

                        7. sell the Buyer’s ordered Goods elsewhere and recover from the Buyer any difference between the quoted price and the re-sale price.

b) Termination does not affect the accrued rights and obligations of the parties under the Contract, including with respect to any payments due to the Seller or any indemnities given by the Buyer under the Contract.

 

12.WARRANTY AND LIABILITY OF SELLER

a) The Seller will not be liable to the Buyer for:

    1. losses arising from the delay in supply of the Goods or Services;
    2. unless otherwise agreed in writing, loss or damage arising from recommendations and suggestions provided to the Buyer;
    3. loss or damage to the Goods arising out of any act, omission or negligence of the Buyer or its agent or representative; or
    4. loss or damage due to the Buyer’s misuse of the Goods.

b) To the extent permitted by law all warranties, conditions, liabilities or representations in relation to the quality of Goods (other than any being or giving rise to non-excludable rights under any laws of Australia or its State or Territories) which might otherwise be implied herein by law or otherwise are expressly negatived and excluded.

c) The Buyer acknowledges and agrees that it is liable for all losses and liabilities resulting from the use of the Goods (either alone or in conjunction with other Goods or materials) even if the Seller had, or should have had, prior knowledge of the use to which the Goods would be put.

d) A Consumer Law may give the Buyer certain guarantees. Where liability for breach of any such guarantees can be limited, the Seller’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of the Goods, to the replacement or repair of the Goods or the cost of resupply or replacement of the Goods.

e) The Buyer agrees that to the extent permitted by law:

    1. the Seller will not be liable for and the Buyer releases the Seller from all liability for any loss of profits or life, direct, indirect or consequential loss or damage which is or may be sustained by the Buyer or any of its employees, officers, agents, contractors or other users of the Goods and Services arising out of or in connection with the Contract and the supply of Goods and Services; and
    2. the Seller’s overall liability to the Buyer or any of its officers, employees, agents, contractors or other users of the Goods and Services arising out of or in connection with the Contract and the supply of Goods and Services is limited to the value of the Goods or Services provided.

       

13.MISCELLANEOUS

a) These Conditions shall be governed and construed in accordance with the laws of Queensland and the parties submit to the exclusive jurisdiction of the Courts of Queensland.

b) Any statement, invoice, notice or other document including any court process (“Notice”) may be given or delivered to or served upon the Buyer by the Seller by email to the Buyer’s email address or by prepaid post addressed to the Buyer at the last address of the Buyer known to the Seller.

c) The Seller’s acquiescence, conduct or failure to require performance does not constitute a waiver of the Seller’s rights unless otherwise expressly notified to the Buyer in writing.

d) The singular shall include the plural and vice versa, words importing any gender shall include every other gender and where there is more than one Buyer the Buyers shall be bound jointly and severally.

e) If anything in the Contract is unenforceable, illegal or void then it is severed and the rest of the Contract remains in force, unless the severance would change the underlying principal commercial purpose or effect of the Contract.

f) If two or more provisions of the Contract are inconsistent or contradictory the numerical position of those provisions must not be a determinative factor in any decision, order or ruling that results in the severance of any conflicting provision.

g) The Conditions may be varied from time to time by the Seller by giving the Buyer notice of the amendment. Publication of the amended Conditions on the website of the Seller located at www.kingspapools.com.au will be deemed to be notice of that amendment.  The amended Conditions will apply to any Order or part of an Order from the date on which the Company publishes the new Conditions on its website.    

     

 14.PRIVACY

The Seller will, in respect of personal information held in connection with the Contract:

a) comply with the Privacy Act 1998 (Cth) and other legislation regarding privacy in force from time to time that is applicable to the Buyer or the Seller;

b) use the personal information only for or in connection with the purposes of the Contract; and

c) not disclose personal information without the written authority of the Buyer except for the purposes set out in the Contract and for the purposes of fulfilling its obligations under the Contract or as required by law.

       

15.ACCEPTANCE BY BUYER

The Buyer will be deemed to have accepted and entered into the Contract with the Seller upon:

a) the Seller accepting the Order for the Goods or Services;

b) the Buyer making Payment to the Seller for the Goods and/or Services;

c) the Seller delivering the Goods to the Buyer; and/or

d) the Seller providing the Services to the Buyer.

 

 

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