TERMS AND CONDITIONS FOR ACQUIRING OUR MATERIALS AND/OR SERVICES

Last Updated: 06/02/2024

In these terms, we also refer to Prestige Shower Repairs Pty Ltd ABN 78 663 836 075 as “our”, “we, or “us”. And you are you!

What are these terms about?

We are a shower repair company that provides quick and cost-effective solutions for shower and balcony leaks by applying new sealant or re-grouting, as further described on our website at https://prestigeshowerrepairs.com.au/leaking-shower-repairs-sydney/ (or any other site operated by us in connection with the Services) (Website).

These terms and conditions (Terms), together with any project details and quote for costs provided by email or in any other format that we may use from time to time (Quote), sets out the agreement (Agreement) under which we will perform the activities (Services) and provide the materials and products (Materials) set out in the Quote for you.

We’ll refer collectively to the Services and Materials as your “Project”, meaning the entire scope of work set out in the Quote.

Capitalised words and phrases used in these terms have the meaning given by the words immediately preceding any bolded and bracketed word(s) or phrase(s) or are otherwise defined in clause 17.

By ticking a box, paying for or otherwise accepting the benefit of any part of the Services or Materials, you acknowledge and agree that you have read and agree to be bound by these Terms which forms a binding contractual agreement with us.

Please don’t proceed with agreeing to your Project before reviewing the Agreement in full and confirming the scope of work is suitable for your purposes and desired outcomes.

Please note that we may change any part of these Terms at any time by updating this page of this Website, so you may find that different terms apply next time you use this Website or request and receive Services. You can check the date at the top of this page to see when we last updated these Terms.

1. QUOTES, THESE TERMS

   1. These Terms will apply to all your dealings with us, including being incorporated in all Quotes, together with any additional terms included in a Quote.

   2. You will be taken to have accepted these Terms if you accept a Quote, or if you orders, accepts or pays for any products and/or services provided by us after receiving or becoming aware of these Terms.

   3. In the event of aninconsistency between these Terms and any Quote, the clauses of these Terms will prevail to the extent of the inconsistency.

2. REQUESTING A QUOTE

   1. To request a quote for Services from us, you can:‌

      1. submit the contact form on our Website (Contact Form); or

      2. email or call us using the contact information available on our Website.

   2. If you submit the Contact Form or otherwise make a request under clause 2(a), you may be required to provide personal information and details, such as your email address, first and last name, physical address, mobile phone number and other information as determined by Prestige Shower Repairs from time to time.

   3. Once we have received your request under clause 2(a), we will then send Quote, and we will ask you to confirm by email your acceptance of our Quote before we perform the Services.‌

   
   

3. ACCEPTANCE OF OUR TERMS

   1. By confirming your acceptance of a Quote under clause 2(c), you represent and warrant that:

      1. you intend to place a binding order to obtain the Services (Order);

      2. you acknowledge and agree that these terms apply to your Order;

      3. you have the legal capacity and are of sufficient age to enter into a binding contract with us; and

      4. you are authorised to use the debit or credit card you provide under or in connection with your Order.

   2. Submitting an Order constitutes your intention and offer to enter into these terms where we will provide you with the Services you have ordered in exchange for your payment of the fees as set out in our invoice to you.

   
   

4. PERFORMANCE OF PROJECT

   1. ACCEPTANCE OF GOODS AND SERVICES‌

      Except where notice has been given in accordance with clause Error! Reference source not found., acceptance of the Services or Materials is deemed for all purposes to have taken place on the date the first of the following events occur:

      1. when you make it known to us that you have accepted the Services or Materials;

      2. in relation to Materials, when you, after provision of Materials, do any act in relation to them which is inconsistent with our ownership of the Materials; or

      3. upon the expiry of [7] days from the date of performance.

   2. TIMEFRAMES

      1. Any timeframes or schedules for delivery of Services (Timeframes) in the Quote are indicative only and are included as a guide for when the Services are expected to be performed.

      2. We may, due to various reasons beyond our control, need to make reasonable adjustments to Timeframes, including where weather does not provide suitable circumstance to perform the Services. Clause 5 will apply to any such delays.

   3. THIRD PARTY TERMS AND CONDITIONS

      1. You acknowledge and agree that the terms & conditions of third party suppliers of goods or services (Third Party Terms) may apply to any part of the Services.

      2. We will endeavour to notify you of Third Party Terms that apply to the Services, in which case:

         1. you must immediately notify us if you do not agree to the Third Party Terms; and‌

         2. if we do not receive a notice in accordance with clause 4.3(b)(i), you will be taken to have accepted those Third Party Terms, and we will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.

      3. You acknowledge and agree that if you do not agree to any Third Party Terms, this may affect our ability to meet Timeframes.

   4. DELIVERY, TITLE AND RISK‌

      1. Until Fees are paid in full, title in Materials is retained by us.

      2. Risk in Materials will pass on delivery to you. Delivery may not be refused by you.

      3. If you do not pay for any Materials on the due date for payment, you authorise us (and our Personnel) to enter any premises occupied by you or any other place where the Materials are located and use reasonable force to retake possession of the Materials without liability for trespass or damage.

      4. We may at our option keep or resell Materials retaken from you under this clause 4.4.

   5. DISCLAIMER

      You acknowledge and agree that:

      1. where we advise you of a risk and you accept that risk by allowing us to proceed with the relevant Services, we will not be responsible for any adverse effects caused by that risk (however we may provide a quote to perform rectification services if requested by you);

      2. we rely on information provided to us regarding work already performed by a third party, and we are not responsible for any issues arising from the work of any third party, including where our Services or Materials are adversely impacted by the work of any third party;

      3. you are responsible for obtaining all necessary permits, planning approvals, safety compliance checks and other elements needed in relation to the Project; and

      4. any information provided to you as part of or in connection with the Services is general in nature and may not be suitable for your circumstances.

5. PROJECT CHANGES‌

   1. DELAYS

      You release us from, and indemnify us in relation to, any liability arising in connection with loss or damage we may incur in relation to any delay to a Service which is caused or contributed to by your act or omission.

   2. CHANGES IN SCOPE

      1. You must pay a ‘change in scope fee’, in an amount reasonably determined by us (Change Fee), for changes to a Project which alter the scope set out in the Quote and require us to perform additional work or incur additional costs (Changes).

      2. Unless otherwise agreed in writing, we may at our discretion extend or modify any delivery schedule or deadlines for the Project as may be reasonably required by such Changes.

      3. We will only be required to perform Changes, if:

         1. we agree in writing to perform the Changes;

         2. you confirm in writing that you wish for us to proceed with the Changes and the relevant Change Fee; and

         3. you pay us the Change Fee, in accordance with clause 6 as if it was a Fee.

            
            

6. FEES AND PAYMENT‌

   1. GENERAL

      1. (Fees) You must pay the Fees to us in the amounts and at the times set out in our invoice to you, or as otherwise agreed in writing (Fees).

      2. (Invoices) Unless otherwise agreed:

         1. we will issue you an invoice for payment of the Fees upon your acceptance of the Services or Materials under clause 4.1 (Invoice); and

         2. payment must be made by the time(s) and in the manner specified in such Invoice.

      3. (Prices) Our prices are:

         1. determined by reference to the size and condition of your shower or balcony and the size and type of tiles used in your shower or balcony;

         2. in Australian Dollars; and

         3. subject to change prior to you completing an Order without notice.

      4. (Late payment) If you do not pay us the amounts due and payable under an Invoice on or before its due date, without limiting any of our other rights under these Terms, you must pay us interest at the rate of 10% per annum on each amount outstanding, from the due date for payment to the date on which the payment is received by us.

      5. (GST) Unless otherwise indicated, prices stated by us are inclusive of GST.

      6. (Payment Providers) We may use third-party payment providers (Payment Providers) to collect payments for Products. The processing of payments by the Payment Provider will be, in addition to these terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.

7. MAINTEANCE AND WEAR AND TEAR‌

   1. Once the Project has been completed, you acknowledge and agree that it is your responsibility to maintain the Materials and subjects of the Services in accordance with any maintenance guide or instructions provided by us.

   2. If you do not follow the maintenance guide or instructions provided by us, you acknowledge and agree that the Materials and any subjects of the Services may be subject to excessive wear and tear and will not be considered defective in accordance with clause 8 below.

8. DEFECTIVE GOODS OR SERVICES‌

   1. CONSUMER GUARANTEES‌

      1. Our Materials and Services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Service, you are entitled:

         1. to cancel your Service contract with us; and

         2. to a refund for the unused portion, or to compensation for its reduced value.

      2. You are also entitled to choose a refund or replacement for major failures with Materials.

      3. If a failure with our Materials or Services does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the Materials and to cancel this Agreement for the Service and obtain a refund of any unused portion.

      4. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the Materials or Services.

   2. MATERIALS WARRANTY

      1. We offer a voluntary goods warranty on the terms set out clauses 8.3 to 8.10 (Materials Warranty).

      2. The Materials Warranty we offer is in addition to:

         1. any warranty provided by the manufacturer of the Materials; and

         2. any rights and remedies that are available to you under the Australian Consumer Law (including the consumer guarantees described in clause 8.1).

   3. MATERIALS WARRANTY PERIOD‌

      In this clause 8, “Materials Warranty Period” means:

      1. [2] years from the date the Materials were provided, where the Materials:

         1. were an [‘epoxy-polysulfide’ sealant] and were installed in or on a balcony; or

         2. were a [‘silicon’ sealant] and were installed in or on a bathtub; or

      2. [7] years from the date the Materials were provided, where Materials were an [‘epoxy-polysulfide’ sealant] and were installed in a shower.

   4. DEFECTIVE MATERIALS

      Where you consider that any Materials provided by us are defective, you must, within the Materials Warranty Period, inform us of that fact in writing.

   5. CUSTOMER’S OBLIGATIONS‌

      Where Materials are the subject of a notice under clause 8.5:

      1. you must, at our option:‌

         1. leave the Materials in the state and condition in which they were provided until such time as we or our duly authorised agent has inspected them; or

         2. send us photographs, descriptions or other material evidencing the defects to our email address set out in the relevant Quote;

      2. we will inspect the Materials, or the evidence you provide, within a reasonable time after receiving notification from you; and‌

      3. if clause 8.5(a) is not complied with, you will be taken to have accepted the Materials and we will be entitled to the relevant Fees set out in the relevant Invoice.

   6. CALL-OUT FEE

      We reserve the right to charge you a call out fee if, upon inspection of the Materials in accordance with clause 8.5(b), we determine that the Materials are not defective in accordance with clause 8.8.

   7. REPAIRS TO DEFECTIVE GOODS OR SERVICES

      1. If, upon inspection, in our reasonable opinion, the Materials:

         1. are defective;

         2. were not damaged by you and/or you did not fail to take reasonable steps to prevent the Materials from becoming damaged; and

         3. are not otherwise in conformity with the Quote, then we will, at our discretion:

         4. replace the Materials; or

         5. repair the Materials.

   8. GOODS CONSIDERED NOT TO BE DEFECTIVE‌

      If, upon inspection, in our reasonable opinion, the Materials:

      1. are not defective; or

      2. are defective due to your act or omission, misuse, failure to use in accordance with the manufacturer’s instructions, or failure to take reasonable care; and

      3. the Materials are otherwise in conformity with the Quote,

         we will refuse your claim, and you will be taken to have accepted the Materials, and we will be entitled to the Fees for the Materials set out in any Quote.

   9. WEAR AND TEAR

      Materials that have:

      1. been subject to regular wear and tear; or

      2. not been maintained in accordance with clause 7, will not be considered to be defective.‌

   10. EXCLUSIONS‌

       1. (Change of mind) We do not provide refunds for change of mind, or where you do not like the appearance of the Materials after we perform the Services (including, for example, the colour of the Materials, or texture or application of Materials due to the preexisting condition of the subjects of the Services).

       2. (Error in the Quote) We do not accept responsibility for any error or miscommunication in any specifications set out in the Quote. You acknowledge and agree that it is your responsibility to confirm that the specifications are correct in every Quote before signing.

       3. Claims under this clause 8 will not be accepted where we believe, in our opinion (acting reasonably), that the Materials are defective due to one or more of the following reasons:

          1. (Ordinary use) the Materials (or the areas to which the Materials have been installed) have been used for a purpose other than their intended purpose;

          2. (Pre-existing issues) any inherent or pre-existing problems with the areas to which the Materials have been installed (including, for example, issues with adherence of tiles to the floor or the inherent quality of tiles, or pre-existing degradation or rotting of the waterproofing material or paint below the tiles);

          3. (Latent Condition) any latent conditions at or in the vicinity of the areas in or on which the Materials have been installed (such as structural, building design, environment conditions or site risks);

          4. (Incorrect diagnosis) a third party incorrectly diagnosed the source of any leak affecting the Materials (prior or after the Services have been performed);

          5. (Cleaning products) cleaning products used by you on the Materials (for example, where such cleaning products have caused, in our reasonable opinion, the Materials to be discoloured or stained over time);

          6. (Instructions not followed) you fail to follow our instructions, including where you use the areas to which the Materials have been installed within [24] hours (or such other period notified to you) of us performing the Services; or

          7. (Third party contractors) you perform, or you have engaged another contractor to perform, work on Materials (including any plumbing or repairs, or alterations to or replacement of any fixture or fittings).

             
             

9. ACCREDITATIONS

   Unless otherwise agreed in writing, we retain the right to describe the Services and reproduce, publish and display the Services in our portfolios and websites for the purposes of recognition or professional advancement, and to be credited with authorship of the Services in connection with such uses.

10. CONFIDENTIALITY

    The parties will not, during or after a Project is completed, disclose Confidential Information of the other party directly or indirectly to any third party except:

    1. with the other party's prior written consent;

    2. as required by Law; or

    3. to their Personnel on a need to know basis for the purposes of performing its obligations under this Agreement (Additional Disclosees).

11. WARRANTIES

    1. Other than as set out in clause 8, to the maximum extent permitted by applicable law, all express or implied representations and warranties (whether relating to fitness for purpose or performance) not expressly stated in these terms are excluded.

    2. Nothing in these terms (including clause 8) is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Customer may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

12. LIABILITY‌

    1. (Limitation of liability) To the maximum extent permitted by applicable law, our maximum aggregate liability to you in respect of loss or damage sustained by you under or in connection with the Project and this Agreement is limited to:

       1. if the liability relates to a particular Service or Material, then to the amount paid for that Service or Material;

       2. if the liability does not relate to a particular Service or Material, then to the total Fees paid by the Client for the Project.

    2. (Indemnity) You agree at all times to indemnify Prestige Shower Repairs and hold harmless Prestige Shower Repairs and our officers, employees and agents ("those indemnified") from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by you or your officers’, employees’ or agents’:

       1. breach of any term of this Agreement; or

       2. negligent, fraudulent or criminal act or omission.

    3. (Consequential loss) We will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this Agreement or any goods or services provided by us, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.

13. TERMINATION

    1. GENERAL

       If this Agreement ends, for whatever reason, the parties will:

       1. return all property and Confidential Information of the other party to them;

       2. comply with all obligations that are intended to survive the end of this; and

       3. stop using any materials that are no longer owned by or licensed to them when this Agreement ends.

          In addition, one of the following clauses will apply.

    2. IF EITHER PARTY DECIDES TO END THIS AGREEMENT

       1. Either party may end this Agreement for its own convenience by sending an email notice to the other party.

       2. This agreement will end 10 Business Days after the day the notice is sent.

       3. Within a further 10 Business Days of the end date, you will pay us:

          1. any unpaid Fees for Services already performed by us on the end date; and

          2. any pre-approved third party costs that we have already incurred on your behalf.

       4. Before the end date, we will hand over any completed and paid for work, and if requested by you, make reasonable efforts to hand over the Services back to you so you can source an alternative provider.

    3. A PARTY THINKS THE OTHER PARTY IS IN BREACH

       1. If a party considers (notifying party) that the other party is in breach of this Agreement (issue), the notifying party may provide a notice by email to the other party, setting out:

          1. the nature and details of the issue (with reference to the relevant clause/s of this Agreement); and

          2. the notifying party’s suggestion for resolving the issue (without being under an obligation to find a workable solution for the other party).

       2. The notice will give the other party 10 Business Days (or longer, in the notifying party’s discretion) to rectify the issue.

       3. If the notifying party later notifies the other party that it has successfully resolved the issue, this Agreement will continue.

       4. Otherwise, after the notice period, the notifying party may provide a further notice by email to the other party stating that they are terminating this Agreement for breach of the other party.

       5. Following a termination for breach notice:

          1. the parties will comply with the disputes process in clause 14; and

          2. the parties will stop all work under this Agreement unless and until the issue and dispute are resolved and the parties agree in writing to a way forward.

       6. The indemnities, warranties and liability caps in clause 12 will apply to any disputes and resulting claims.

          
          

14. IF THE PARTIES HAVE A DISPUTE‌

    1. If an issue between the parties arises under this agreement that cannot be resolved day-to-day, the parties will make genuine efforts in good faith to participate cooperatively in mediation, at equal shared expense of the parties.

    2. The parties will conduct mediation through the Australian Disputes Centre (ADC) and in accordance with the ADC’s Guidelines for Commercial Mediation (as current at the time of the dispute).

    3. The parties will follow the mediator’s recommendations on the extent of mediation required, and when to stop mediation if the issue cannot be resolved.

    4. If mediation does not resolve the issue, the parties must:

       1. if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and

       2. based on that advice, if settlement is not achieved, participate in arbitration (or other dispute resolution mechanism agreed in mediation) through the ADC at equal shared expense.

    5. The parties will follow the binding outcome of arbitration (or other agreed mechanism).

    6. Either party may at any time during this process make an offer for settlement. The parties acknowledge and agree it is in their best interests to properly consider all genuine settlement offers. The parties will use best endeavours to avoid litigation and reach a prompt settlement.

    7. The process in this clause does not apply where a party requires an urgent injunction.

    
    

15. FORCE MAJEURE

    1. A ‘Force Majeure Event’ means any occurrence beyond the control of the Affected Party which prevents the Affected Party from performing an obligation under this agreement (other than an obligation to pay money), including any:

       1. act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;

       2. strike or other industrial action;

       3. war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or

       4. decision of a government authority in relation to COVID-19, or other epidemic or pandemic,

          to the extent the occurrence affects the Affected Party’s ability to perform the obligation.

    2. If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:‌

       1. reasonable details of the Force Majeure Event; and

       2. so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.

    3. Subject to compliance with clause 15(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.

    4. The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.

    
    

16. GENERAL

    1. GOVERNING LAW AND JURISDICTION

       This Agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

    2. WAIVER

       No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

    3. SEVERANCE

       Any term of this Agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this Agreement is not limited or otherwise affected.

    4. JOINT AND SEVERAL LIABILITY

       An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

    5. ASSIGNMENT

       A party cannot assign, novate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party.

    6. COUNTERPARTS

       This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one agreement.

    7. COSTS

       Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.

    8. ENTIRE AGREEMENT

       This Agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this Agreement.

    9. INTERPRETATION

       1. (singular and plural) words in the singular includes the plural (and vice versa);

       2. (gender) words indicating a gender includes the corresponding words of any other gender;

       3. (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

       4. (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;

       5. (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;

       6. (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;

       7. (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;

       8. (legislation) a reference to any legislation includes all delegated legislation made under it and amendments, consolidations, replacements or re-enactments of any of them from time to time;

       9. (time) a time of day is a reference to Sydney time;

       10. (currency) a reference to “$” or “dollar” is to Australian currency;

       11. (headings) headings and words in bold type are for convenience only and do not affect interpretation;

       12. (includes) the word "includes" and similar words in any form is not a word of limitation; and

       13. (adverse interpretation) no provision of this Agreement will be interpreted adversely to a party because that party was responsible for the preparation of this Agreement or that provision.

           
           

17. DEFINITIONS‌

In these terms and conditions, the following words and phrases have the following meaning:

1. Confidential Information means information of, or provided by, a party that is by its nature confidential information, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information which is, or becomes, without a breach of confidentiality, public knowledge; and

2. Personnel means employees, secondees, agents and subcontractors (who are individuals), including employees and contractors (who are individuals) of subcontractors.