1. GENERAL
(a) These Terms and Conditions (Agreement) apply to products (Products), and to services (Services), that Swan City Scrubbers ABN 37 596 860 113 (Us, Our and We) supply to the purchaser (You and Your).
(b) Nothing in this Agreement (including clauses 6 and 7) affects any non-excludable statutory rights or remedies that You may have.
2. PRICE AND TAXES
(a) The prices in relation to the Products and/or Services do not include taxes. You must pay all taxes arising from, or relating to, this Agreement. Taxes mean all taxes of any kind (including stamp duties) other than taxes on Our income.
(b) Without limiting clause (a), You must pay to Us an amount equal to any goods or services tax that applies to a supply. We will provide You with a tax invoice.
3. DELIVERY AND CHANGES
(a) We will provide the Products and Services by the dates agreed in writing with You.
(b) You must inspect Products on delivery and notify Us of any short delivery or transport damage within 5 days after receiving the delivery. Notification does not make Us liable for short delivery or damage or oblige Us to provide additional or replacement Products.
(c) We will be entitled to an extension of time to the delivery/completion date of the Products and Services for delays due to:
(i) any act or omission of You, Your employees, agents, other contractors or any third party;
(ii) any event of force majeure as set out in clause 9;
(iii) any variation;
(iv) any direction to suspend delivery of the Products or the performance of the Services by You; or
(v) any other reason beyond Our reasonable control.
(d) You cannot cancel or change an order for a Product or a Service (including, to avoid doubt, a delivery date or any specifications or requirements) without Our prior written consent.
4. PAYMENT TERMS
(a) Customers may have an account with Us (Account Customers) or may purchase Products and Services individually (Non- Account Customers).
(b) Unless otherwise agreed payment is due before delivery of the Product or 7 days after completion of the Services.
(c) Without limiting any other right or remedy, We may charge You daily interest, at 1.5% per month, compounding monthly, on overdue amounts. If We charge interest, then You must pay it within 7 days after We request payment.
(d) We may set-off and deduct from any amount payable to You the amount of any claim that We may have against You or any sum which We assert is or may become payable by You, whether under this Agreement or otherwise.
5. TITLE AND RISK, INSURANCE & REPOSSESSION
(a) Title to a Product only passes to You when We have been paid in full. Prior to that, You are a bailee only and You do not obtain any form of interest in the Product (whether legal, equitable or otherwise). Risk in a Product passes to You when We provide it to a carrier, deliver it to a place You nominate or receive payment in full (whichever occurs first). We do not have to give any form of notice that risk or title has passed.
(b) We are not required to have any insurance for Products or Services (including transit, theft, liability or damage insurance).
(c) If You have a Product and title has not passed to You, then:
(i) You must store the Product separately and ensure that it is clearly marked as Our property; and
(ii) You irrevocably authorise Us to enter any premises and take possession of and remove the Products if You are (or are about to become) insolvent or subject to any form of administration or insolvency process of any kind (whether voluntary or involuntary). To avoid doubt, doing any of these things does not affect Your liability under this Agreement (including Your liability if a Product is lost, damaged or stolen or seized).
(d) To avoid doubt, doing any of the things under clause 5(c)(i) or 5(c)(ii) does not affect Your liability under this Agreement (including Your liability if a Product is lost, damaged, stolen or seized).
6. REFUNDS
Unless otherwise agreed in writing, We do not provide refunds. (However, We do take any dissatisfaction with Our Services seriously and always seek a fair and reasonable solution for both parties)
7. LIABILITY
To the maximum extent permitted by law:
(a) We exclude all implied terms (statutory or otherwise - including implied warranties) of any kind;
(b) We exclude all liability for indirect and consequential loss or damage howsoever arising out of, related to or in connection with this Agreement. Such exclusion will apply in contract, tort and otherwise at law irrespective of cause and notwithstanding the negligence or breach of duty of Us or any other party. Consequential loss or damage means loss of revenue, loss of profit, loss of product or production, business interruption, loss of business opportunity, loss of savings, failure to realise expected profits, loss of goodwill, downtime and other like risks in each case whether direct or indirect and whether or not foreseeable at the date of execution of this Agreement or at any time;
(c) notwithstanding any other provision to the contrary in this Agreement, Our maximum liability for loss or damage howsoever arising out of, related to or in connection with the performance or non-performance of this Agreement, whether in contract, tort or otherwise at law irrespective of cause and notwithstanding the negligence or breach of duty by Us or any other party, shall be limited in aggregate for any and all claims:
(i) arising from or relating to a Product: to the price of the Product; and
(ii) arising from or relating to a Service: to the price of the Service.
(d) Our liability is reduced to the extent that it was caused or contributed to by an act or omission by You or by any of Your personnel, employees, or agents (including subcontractors);
(e) clauses (a) – (d) apply to loss or damage of any kind (direct, indirect or otherwise), however caused, whether in contract, tort (including negligence), under any statute or otherwise, arising from or related in any way to this Agreement (including arising from or related in any way to the Products or the Services); and
(f) if a statute implies a term into this Agreement, and it cannot be excluded, then Our liability for breaching it will be limited (at Our sole and unfettered option) to:
(i) for Products: repair, replacement with equivalents or paying the cost of such repair or replacement; and
(ii) for Services: resupply or paying the cost of resupply. We may choose not to limit Our liability in any of these ways.
8. FORCE MAJEURE
We will not be in breach of this Agreement if the breach is caused by an event beyond Our reasonable control. Without limitation, the following are taken to be events beyond Our reasonable control: any form of industrial action, health pandemics, riots, acts of war or terrorism, fires, floods, storms, breakdowns, natural disasters, Acts of God, scarcity, unavailability or delay in obtaining transportation or materials (including deliveries from subcontractors), power restrictions, changes to laws, and all circumstances beyond Our reasonable control, whether any of these things affect Us or Our suppliers) and whether they occur within or outside Australia. Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
9. CUSTOMER TERMS
None of Your terms will apply to or affect this Agreement in any way. This applies even if We accept the terms or they are deemed to have been accepted by Us if We do a particular thing (eg provide goods or services, accept an order, accept payment and so on) and We do it.
10. DISPUTE RESOLUTION
(a) In the event of any difference or dispute (Dispute)between the parties concerning or arising out of this Agreement, the party initiating the dispute must give the other party notice setting out the nature of the dispute and available dates to meet to resolve the dispute.
(b) Notwithstanding the existence of a Dispute, each party will continue to perform its obligations under this Agreement.
(c) Senior representatives of the parties must meet to attempt to resolve the Dispute in good faith prior to the commencement of any proceedings.
(d) Either party may commence legal proceedings in relation to the Dispute, or refer the Dispute to arbitration if:
(i) the parties fail to resolve the Dispute within 30 days of the first meeting of the senior representatives of the parties;
(ii) the parties fail to agree on a meeting within 14 days after receiving notice of the Dispute; or
(iii) a party fails to attend a scheduled meeting.
(e) In the event of a dispute of a payment claim, You are obliged to pay the undisputed amounts in accordance with the payment terms of this Agreement, and You are only not obliged to pay amounts which are the subject of a genuine dispute.
(f) Nothing in this clause 10 prevents a party from commencing proceedings to seek injunctive or urgent declaratory relief for a dispute or any other matter arising under this Agreement.
11. COMPLETE AGREEMENT & THIRD PARTY RIGHTS
(a) This is the entire agreement between the parties in relation to its subject matter and supersedes all prior agreements, arrangements, correspondence and discussions of any kind relating to its subject matter. This Agreement may only be varied by written agreement.
(b) This Agreement does not confer any rights or benefits upon any third parties and any such rights or benefits are excluded. To avoid doubt, this exclusion applies to rights or benefits of any kind, however arising, including under any form of third party beneficiary law.
12. TRADE COMPLIANCE
(a) You represent and covenant (on an on-going basis) that neither You, nor any of Your subsidiaries (nor, to Your knowledge, any director, officer of You or any of Your subsidiaries) is an entity that is, or is owned or controlled by a person or entity that is, expressly targeted by any economic or financial sanctions or trade embargoes implemented, administered or enforced by the United Nations Security Council, the European Union, any Member State of the European Union, the United Kingdom or the United States of America (collectively, “Sanctions”), or is located, organized or resident in a country or territory that is, or whose government is, targeted by country-wide or territory-wide Sanctions (being, currently at the time of this Agreement, Cuba, Iran, North Korea, Syria and Crimea).
(b) You undertake:
(i) to comply with all Sanctions and export controls that are applicable to You and Your business;
(ii) not to sell, supply or transfer any goods supplied by Us under this Agreement to any third party recipient, or to engage in any other activity, that would result in a violation of applicable Sanctions or export controls by any person;
(iii) to inform Us without delay in the event that You become aware of any event or matter that would or that might result in a violation of applicable Sanctions or export controls by You or Us; and
(iv) to indemnify and hold Us harmless from and against any loss, liability, claim, proceeding, action, fine, cost and damages of whatever nature that We may incur or sustain by reason of You being in breach of the representations, covenants and undertakings given by You in this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, We have the right to terminate this Agreement with immediate effect and without any liability towards You in the event that We (acting reasonably) consider Your actions or non actions would or might result in a violation of applicable Sanctions or export controls by any person or entity.
13. MODERN SLAVERY
(a) You undertake to Us that as at the date of this Agreement and throughout the Term of this Agreement:
(1) You will ensure that Your officers and employees, related entities, subcontractors, suppliers, contractors or other persons relevant to this Agreement (“Personnel”) comply with the Anti-Slavery Laws;
(2) You will comply, and ensure that Your Personnel comply with all of statutory obligations in relation to Anti-Slavery Laws;
(3) You and Your Personnel:
(i) have not been convicted of any offence involving Modern Slavery; or
(ii) have not been the subject of any formal complaint, investigation, inquiry or enforcement proceedings by any person or regulatory body in connection with Modern Slavery or Anti-Slavery Laws.
(b) You must notify Us as soon as You become aware of any actual or suspected breach of the Anti-Slavery Laws or Modern Slavery by You or any of Your Personnel.
(c) You must give Us all information requested by Us to report on, or comply with, any Anti-Slavery Laws in force from time to time, promptly after a request by Us to do so.
For the purposes of this clause 16 the following definitions will apply:
Anti-Slavery Laws means: Division 270 and 271 of the Criminal Code Act 1995 (Cth); the Modern Slavery Act 2018 (Cth); and all other applicable laws, statutes, regulations, codes or other instruments relating to Modern Slavery in force from time to time relating to this Agreement.
Modern Slaverymeans: any exploitation of a worker, human trafficking, slavery, slavery-like behaviour, servitude, forced labour, child labour, debt bondage or deceptive recruiting for labour or services or similar behaviour, and as referenced in Anti-Slavery Laws.
14. ASSIGNMENT AND GOVERNING LAW
(a) Either party may not deal with (including, to avoid doubt, assign) any of their rights or obligations under this Agreement without other parties prior written consent and any dealing without that prior written consent is void and of no effect.
(b) This Agreement is governed by the laws of Western Australia, Australia. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia, Australia.
15. MISCELLANEOUS
(a) A notice, consent or other communication required or permitted to be given under this Agreement shall be in writing and may be given or served by:
(i) delivering the notice by hand at that other party's address for service;
(ii) sending the notice by certified mail to the other party's address for service;
(iii) sending the notice by email to the email address of the addressee.
(b) Any provision of this Agreement which is invalid in any jurisdiction must, in relation to that jurisdiction:
(i) be read down to the minimum extent necessary to achieve its validity, if applicable; and
(ii) be severed from this Agreement in any other case,
without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
(c) We are an independent contractor in relation to You and no other relationship applies (including, for the avoidance of doubt any employment, trust, partnership, joint venture or agency). Neither party authorises the other to act on its behalf (whether as an agent or otherwise) or to bind it any way. A party must not in any way (whether expressly or impliedly) bind the other party or enter into any agreements or make any commitments or representations on behalf of the other party.
(d) Each party must pay its own legal costs of and incidental to the preparation and completion of this Agreement.
16. Cancellations
Unless otherwise agreed, You need to provide at least 48 hours notice to cancel a scheduled cleaning service to avoid a cancellation fee of $200.
Copyright © 2024 swancityscrubbers.com - All Rights Reserved.
Contact Details: Jordan Mann & David Brewer
Phone: 0429 291 928 & 0478 787 901
Email: swancityscrubbers@gmail.com
ABN: 37 596 860 113
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