1.1. Parties: These Terms are between ELEMENTAL RESOURCES PTY LTD trading as Gold Coast Plumbing Company ABN: 29 608 858 368 its successors and assignees (referred to as “we” and “us”) and you, the person, organisation or entity described in the Statement of Work (referred to as “you”). These Terms apply to all services provided by us to you.
1.2. Acceptance: You have requested the Work set out in the Statement of Work. You accept these Terms by:
(a) signing and returning the Statement of Work;
(b) confirming by email that you accept the Statement of Work;
(c) accepting the Statement of Work online;
(d) instructing us to proceed with the Work; or
(e) making part or full payment for the Work.
1.3. You agree that these Terms form the agreement under which we will supply services to you. Please read these Terms carefully. Please contact us if you have any questions. Purchasing services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms.
Our Contact details:
ELEMENTAL RESOURCES PTY LTD trading as Gold Coast Plumbing Company ABN: 29 608 858 368
PO Box 426 Nerang QLD 4211-
Ph: 1300 699 160 – www.goldcoastplumbingcompany.com.au
1.4. If the Statement of Work indicates that we require a Deposit, we will not commence performing the Work until you have paid the Deposit or the first instalment of our Fee.
2.1. You must provide us with at least 5 working days’ notice in writing of any cancellation. Failure to do so will result in any Deposit being forfeited or, if no deposit has been paid, you must pay to us 20% of the original quoted / invoice amount, payable by you within 7 days of receipt of an invoice for that amount.
3.1. We agree to perform the Work with due care and skill.
3.2. We reserve the right to refuse any request that we deem inappropriate, unreasonable or illegal.
3.3. We may provide the Work to you using our employees, contractors and third party providers, and they are included in these Terms.
3.4. Third parties who are not our employees or our direct contractors will be your responsibility. We are not responsible for the products or services provided by those third parties.
3.5. The Fee and Work can be varied by written agreement between us, including by email. If you request a variation to the Work, we have discretion as to whether we make the variation. If we can perform the variation, we will inform you of the Fee, and if you agree, we will invoice you. If we are unable to accommodate the Variation, we may request that we be paid for Work performed to date and terminate these Terms.
3.6. Where any manuals or drawings are required in order for you to enjoy or use the Work or as a legal requirement we will provide these to you as hard copy and or electronic form in or discretion and for no additional fee. Where you require additional copies or replacement copies we may charge additional fees for the provision of such additional or replacement manuals or drawings.
4. PRICE, INVOICING AND PAYMENT
4.1. You agree to pay us the amounts set out in our Statement of Work, including any Deposit required. Unless otherwise stated in the Statement of Work, all amounts are stated in Australian dollars. All amounts exclude Australian GST (where applicable). Payment may be made by way of credit card, PayPal or other payment methods as set out in our Statement of Work. Note that there is a surcharge payable when paying by credit card.
4.2. You agree to pay our Invoices by the payment date set out on the Invoice. If you do not pay by the payment date, we may cease to provide the Work to you until we receive payment.
4.3. We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.
4.4. If invoices are unpaid after the payment date, we have the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to us.
4.5. We reserve the right to report bad debts to independent credit data agencies.
4.6. If the Statement of Work states that the Fees and Expenses are an estimate only, you acknowledge that the final Fees and Expenses may be more or less than the estimated amounts. We will endeavour to inform you of any material variation as it becomes apparent.
4.7. You agree to pay the Service Fee. The Service Fee may be waived by us in our discretion if you engage us to perform the Work.
5. YOUR OBLIGATIONS AND WARRANTIES
5.1. You warrant that:
(a) there are no legal restrictions preventing you from agreeing to these Terms;
(b) you will cooperate with us, and provide us with information that is reasonably necessary to enable us to perform the Work as requested from time to time, in a timely manner;
(c) the information you provide to us is true, correct and complete;
(d) you will not infringe any third party rights in working with us and receiving the Work;
(e) you will inform us if you have reasonable concerns relating to our provision of Work under these Terms, with the aim that the Parties will use all reasonable efforts to resolve your concerns;
(f) you are responsible for obtaining any consents, licences and permissions from other parties necessary for the Work to be provided, at your cost, and for providing us with the necessary consents, licences and permissions;
(g) You will ensure that, if the Work are to be performed on your property, you are authorised to occupy those premises and obtain the service;
(h) You will ensure that if the Work are to be performed on your property, that at all times the property is safe and that all facilities provided by you for the purposes of enabling the Work to be performed are also safe;
(i) You will ensure that we have free and unimpeded access to the place in which the Work are to take place and that you will do all things to ensure that we are not delayed by matters within your control;
(j) You accept that we have the right to impose stand down charges and recover additional costs incurred where work is delayed by reason not in our control and where are unable to reasonably reschedule services;
(k) if applicable, you hold a valid ABN which has been advised to us;
(l) if applicable, you are registered for GST purposes; and
(m) you will not employ, canvass, solicit, entice, induce or attempt to employ our employees or contractors.
6. SPECIAL CONDITIONS
6.1. DIAL BEFORE YOU DIG: When we are engaged to undertake underground plumbing work, we may request that you obtain plans of underground pipes and cables on the property at least two working days before the proposed work on the property. Should you fail to provide us with the appropriate plans for the property when requested you will indemnify us from any claim for costs, expenses or losses from a third party for any damage to third party property, including the asset owner.
6.2. SKIP BINS: You agree and acknowledge that you are responsible for the costs of any skip bin we hire on your behalf including for any items not placed in the skip bin by us.
6.3. HARD GROUND: You agree and acknowledge that you are responsible for the costs incurred by us as a result of us striking ground that is harder to dig than normal in our absolute discretion.
6.4. GAS FITTING: You agree and acknowledge that, to the extent permitted by law, we are responsible for any accidents, injuries or damage caused as a result of any gas fitting works we are engaged to perform including but not limited to any explosions or gas poisoning, save where the accident, injury or damage was caused by our negligent act or default.
6.5. QBCC Clauses:
6.6 To the extent that the QBCC Act applies to the Work being provided to you:
(a) QUEENSLAND HOME WARRANTY SCHEME: Under the QBCC Act, we are required to collect the premium from you and pay it to the QBCC within 10 business days after the date the agreement was entered into or before the Work commence (whichever is earlier).
(b) COOLING OFF: If you are entitled under the QBCC Act to withdraw under the cooling-off provisions you must, before the expiry of the cooling-off period, give us a written and signed withdrawal notice stating that you are withdrawing from these Terms under the cooling-off provisions in section 35 of Schedule 1B of the QBCC Act.
(c) LEGAL ADVICE: You confirm that you have, BEFORE SIGNING, discussed any questions/concerns about this agreement with a practising solicitor.
(d) WARRANTIES UNDER SCHEDULE 1B OF QBCC ACT: To the extent required by Schedule 1B of the QBCC Act, we warrant that:
- the Work will be carried out in an appropriate and skilful way and with reasonable care and skill and reasonable diligence;
- all materials supplied will be of good quality and suitable for the purpose for which they are used;
- the Work will be carried out in accordance with all relevant laws and legal requirements; and
- the Work will be carried out in accordance with any plans and specifications which form part of the agreement.
7. OUR INTELLECTUAL PROPERTY
7.1. We own the Intellectual Property rights in:
(a) our pre-existing Intellectual Property, including but not limited to copyright which subsists in all creative and literary works incorporated into our pre-existing Intellectual Property; and
(b) Intellectual Property that we create during the course of the Work, including but not limited to copyright which subsists in all creative and literary works in all Intellectual Property that we create during the course of the Work; unless we assign or transfer this to you. This Intellectual Property is protected by Australian and international laws.
7.2. Nothing in these Terms constitutes an assignment or transfer of our Intellectual Property rights, or a right to use our Intellectual Property, whether registered or unregistered, except as stated in these Terms or with our written permission.
7.3. You must not breach our Intellectual Property rights by, including but not limited to:
(a) altering or modifying our Intellectual Property;
(b) creating derivative works from the Intellectual Property; or
(c) using our Intellectual Property for commercial purposes such as on-sale to third parties.
7.4. This clause will survive the termination of these Terms.
8. YOUR INTELLECTUAL PROPERTY AND MORAL RIGHTS
8.1. You agree to provide information including any Intellectual Property to us to enable us to provide the Work. You:
(a) warrant that you have all necessary rights to provide the Intellectual Property to us;
(b) grant us a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and transferable licence to use the Intellectual Property in any way we require to provide the Work to you; and
(c) consent to any act or omission which would otherwise constitute an infringement of your Moral Rights.
8.2. If you (or any employee or agent) have Moral Rights in any Intellectual Property that you provide to us, you:
(a) irrevocably consent to any amendment of the Intellectual Property for the purposes of us providing services to you and to our using or applying the Intellectual Property for the purposes of providing services to you without any attribution of authorship;
(b) agree that your consent extends to acts and omissions of any of our licensees and successors in title; and
(c) agree that your consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statements.
8.3. This clause will survive the termination of these Terms.
9. CONFIDENTIAL INFORMATION
9.1. We, including our employees and contractors, agree not to disclose your Confidential Information to any third party (other than where necessary, to third party suppliers, or as required by law); to use all reasonable endeavours to protect your Confidential Information from any unauthorised disclosure; and only to use your Confidential Information for the purpose for which it was disclosed by you, and not for any other purpose.
9.2. You, including your employees and contractors, agree not to disclose our Confidential Information to any third party; to use all reasonable endeavours to protect our Confidential Information from any unauthorised disclosure; and only to use our Confidential Information for the purpose for which it was disclosed or provided by us to you, to provide better quality services to you and not for any other purpose.
9.3. These obligations do not apply to Confidential Information that:
(a) is authorised to be disclosed;
(b) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms;
(c) is received from a third party, except where there has been a breach of confidence; or
(d) must be disclosed by law or by a regulatory authority including under subpoena.
9.4. This clause will survive the termination of these Terms.
10. FEEDBACK AND DISPUTE RESOLUTION
10.1. Your feedback is important to us. We seek to resolve your concerns quickly and effectively. If you have any feedback or questions about the Work, please contact us.
10.2. If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
(b) If the Parties cannot agree how to resolve the dispute at that initial meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Queensland to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
10.3. Any attempts made by the Parties to resolve a dispute pursuant to this clause are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
11. RETENTION OF TITLE
11.1. Title in any goods we supply to you does not pass to you until they have been paid for in full, even if we have installed them.
11.2. To the extent allowed by law, if you fail to make a due payment, we may enter the site or your premises and take reasonable action to remove the goods without us being liable to you for damage to the site, premises of the goods caused by such removal.
12. TERM AND TERMINATION
12.1. Either Party may terminate these Terms without cause by providing the other Party with 30 days notice, in writing.
12.2. Either Party may terminate these Terms if there has been a material breach of these Terms, subject to following the dispute resolution procedure.
12.3. We may terminate these Terms immediately, at our sole discretion, if:
(a) you commit a non-remediable breach of these Terms;
(b) you commit a remediable breach of these Terms and do not remedy the breach within a reasonable time after receiving written notice of the breach;
(c) we consider that a request for the Work is inappropriate, improper or unlawful;
(d) you fail to provide us with clear or timely instructions to enable us to provide the Work;
(e) we consider that our working relationship has broken down including a loss of confidence and trust;
(f) for any other reason outside our control which has the effect of compromising our ability to perform the Work within the required timeframe; or
(g) you fail to pay an invoice by the due date.
12.4. On termination of these Terms you agree that any Deposit or payments made are not refundable to you, and you are to pay for all Work provided prior to termination, including Work which has been performed and have not yet been invoiced to you.
12.5. On termination of these Terms, you agree to promptly return (where possible), or delete or destroy (where not possible to return), our Confidential Information and Intellectual Property, and/or documents containing or relating to our Confidential Information and/or Intellectual Property.
12.6. On termination of these Terms, we agree to promptly return (where possible), or delete or destroy (where not possible to return), your Confidential Information and Intellectual Property, and/or documents containing or relating to your Confidential Information and/or Intellectual Property.
12.7. On completion of the Work, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
12.8. The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
13. CONSUMER LAW, LIMITATION OF LIABILITY AND DISCLAIMERS
13.1. Service Standard: We will provide the Work with due care and skill, the Work will be fit for the purpose that we advertise, and we will supply the Work within a reasonable time.
13.2. ACL: Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to the provision of services by us to you which cannot be excluded, restricted or modified (Statutory Rights).
13.3. Statutory Rights: Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL. You agree that our liability for the Work is governed solely by the ACL and these Terms.
(a) Except for your Statutory Rights, we exclude all express and implied warranties representations and guarantees and all material and work is provided to you without warranties, representations and guarantees of any kind.
(b) Any warranties we do provide to you are limited in time to the products and services being certified as compliant as at the date of installation.
(c) Any warranties we have provided to you are nullified to the extent that you do something to cause the damage including but not limited to you tampering with, modifying or changing something or blocking ventilation points.
(d) Any product liability is direct with the product supplier, you agree to review all product specifications and comply with them at all times. We are not liable as a result of you not complying with any product specifications.
13.5. Delay: Where the provision of services depends on your information or response, we have no liability for a failure to perform the Work, where it is affected by your delay in response or supply of incomplete or incorrect information.
13.6. Referrals: We may provide you with contact details of third party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third party advice or provision of services, and we disclaim all responsibility and liability for the third party advice or provision of services, or their failure to advise or provide services.
13.7. Availability: To the extent permitted by law, we exclude liability for:
(a) the Work being unavailable; and
(b) any Claims for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation or any loss or damage relating to business interruption or otherwise, suffered by you or made against you, arising out of or in connection with your inability to access or use the Work or the late supply of services, even if we were expressly advised of the likelihood of such loss or damage.
13.8. Disclaimers: To the extent permitted by law we disclaim all responsibility and liability for:
(a) products you purchase from a third party; and
(b) any leaks caused by our penetration through the floor, wall or roof not due to an act of omission of ours.
13.9. Limitation: To the extent permitted by law, our total liability arising out of or in connection with the Work, however arising, including under contract, tort including negligence, in equity, under statute or otherwise, is limited to us re-supplying the Work to you, or, at our option, us refunding to you the amount you have paid us for the Work to which your claim relates. Our total liability to you for all damages in connection with the Work will not exceed the price paid by you under these Terms and pursuant to the Statement of Work for the 12 month period prior to the act which gave rise to the liability, or one hundred dollars (AUD$100) if no such payments have been made.
13.10. This clause will survive the termination of these Terms.
14.1. You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from:
(a) any information provided by you that is not accurate, up to date or complete or is misleading or a misrepresentation;
(b) your breach of these Terms;
(c) any misuse of the Work by you, your employees, contractors or agents; and
(d) your breach of any law or third party rights.
14.2. You agree to co-operate with us (at your own expense) in the handling of disputes, complaints, investigations or litigation that arise as a result of your use of the Work including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information you have given us.
14.3. This clause will survive the termination of these Terms.
15.1. Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
15.2. Publicity: You consent to us stating that we provided services to you, including but not limited to mentioning you on our website and in our promotional material.
15.3. Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
15.4. GST: If and when applicable, GST payable on the Fee for the Work will be set out on our invoices. You agree to pay the GST amount at the same time as you pay the Fee.
15.5. Relationship of Parties: These Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.
15.6. Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
15.7. Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
15.8. Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
15.9. Notices: Any notice required or permitted to be given by either Party to the other under these Terms will be in writing addressed to the relevant address in the Statement of Work. Any notice may be sent by standard post or email, and notices will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
15.10. Jurisdiction & Applicable Law: These terms are governed by the laws of Queensland and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland.
15.11. Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between the Parties and supersede any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
15.12. Independent legal advice: you confirm that you understood the need to obtain independent legal advice before entering into this agreement with us.
15.13. Special Conditions: The Special Conditions will prevail to the extent of any inconsistency with these Terms.
16.1. Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Queensland, Australia.
16.2. Service Fee (if any) are set out in the Statement of Work.
16.3. Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute, whether indirect, incidental, special, consequential and/or incidental, and whether involving a third party or a Party to the Terms or otherwise.
16.4. Confidential Information includes confidential information about you, your credit card or payment details, and the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, technology, and other information of either Party whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
16.5. Deposit (if any) set out in the Statement of Work.
16.6. Expenses (if any) are set out in the Statement of Work.
16.7. Fees are set out in the Statement of Work.
16.8. GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
16.9. Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs, any corresponding property rights under the laws of any jurisdiction, discoveries, circuit layouts, trade names, trade secrets, secret processes, know-how, concepts, ideas, information, processes, data or formulae, business names, company names or internet domain names, and any Confidential Information.
16.10. Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
16.11. Party and Parties means a party or parties to these Terms.
16.12. QBCC Act means the Queensland Building and Construction Commission Act 1991
16.13. Special Conditions means the special conditions, if any, detailed in the Statement of Work.
16.14. Statement of Work means the Statement of Work to which these Terms are attached.
16.15. Terms means these terms and conditions.
16.16. Variation means amended or additional services, including but not limited to changes to the Statement of Work, Services, or Fees.
16.17. Work is set out in the Statement of Work.