2.1 – SUPPLY OF SERVICES
- (a) In consideration for the payment of the fees set out in a Quote (Fees), Black Iron Plumbing Melbourne will provide the Customer with the products and/or services set out in a Quote (Services), or as otherwise agreed with the Customer, at the premises set out in a Quote (Premises) or as otherwise agreed with the Customer.
- (b) Unless otherwise agreed, Black Iron Plumbing Melbourne may, in its discretion:
- (i) not commence work on any Products or Services until the Customer has paid any Fees or deposit payable in respect of such Products or Services; and
- (ii) withhold delivery of Services and/or Products until the Customer has paid an invoice in respect of such Services and/or Products.
2.2 – CHANGES AND VARIATIONS TO SCOPE
- (a) The scope of the Products and/or Services is as specified in a Quote.
- (b) The Customer must pay a ‘change in scope fee’, in an amount reasonably determined by Black Iron Plumbing Melbourne (Change Fee), for changes to Services requested by the Customer which alter the scope set out in the relevant Quote and require Black Iron Plumbing Melbourne to perform additional work or incur additional costs (Changes).
- (c) Unless otherwise agreed in writing, Black Iron Plumbing Melbourne may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
- (d) Black Iron Plumbing Melbourne will only be required to perform Changes, if:
- (i) Black Iron Plumbing Melbourne agrees in writing to perform the Changes;
- (ii) the Customer confirms in writing that they wish for Black Iron Plumbing Melbourne to proceed with the Changes and the relevant Change Fee; and
- (iii) the Customer pays the Change Fee, in accordance with clause 5 as if it was a Fee.
2.3 – PROJECT PERIOD
- (a) The Project Period set out in a Quote in relation to the Services are indicative only and are included as a guide for when the Services are expected to be performed.
- (b) Black Iron Plumbing Melbourne may, due to various reasons beyond its control, need to make reasonable adjustments to the Project Period. Black Iron Plumbing Melbourne will endeavour to notify the Customer if a reasonable adjustment to the Project Period is required.
2.4 – DELIVERY OF PRODUCTS
- (a) The Customer must pay all costs of delivery of the Products at the time nominated by Black Iron Plumbing Melbourne (if delivery fees are payable) and must take receipt of the Products when they are tendered for delivery by Black Iron Plumbing Melbourne.
- (b) In the event that the Products are left by Black Iron Plumbing Melbourne on the site where the Services are to be provided (such as the Customer’s premises) and the Products are stolen, the Customer acknowledges and agrees that they must still pay Black Iron Plumbing Melbourne for the Products in accordance with this Agreement (and such Products will be deemed to have been supplied to the Customer) and any replacement Products that Black Iron Plumbing Melbourne is required to purchase
2.5 – INSTALLATION SERVICES
In providing the Services to the Customer, Black Iron Plumbing Melbourne will take every reasonable precaution however, will not be liable in respect of:
- (a) the structural integrity of the Customer’s premises;
- (b) the premises’ ability to carry the weight of any installed products;
- (c) any effect installation of the products has on the Premises; or
- (d) any damage to the premises including damage to walls, internal or external flooring, ceiling, appliances or any items on the premises which is not directly due to Black Iron Plumbing Melbourne’ negligence or breach of this Agreement.
2.6 – EXCLUDED SERVICES
- (a) The Services do not include any activities that are not expressly stated as a Service in a Quote (Excluded Services). This extends to the following activities, which are Excluded Services:
- (i) dewatering services, being the removal or redirection of water from the work area or job site, including but not limited to pumping, draining, or diversion of water due to existing excavations below the water table, or due to wet weather;
- (ii) the removal, excavation, hammering or blasting of rock;
- (iii) the removal of any structures (such as retaining walls, fences or premises amenities), building materials, spoil, concrete overpour, septic tanks (and/or emptying of waste from septic tanks), vegetation, rubbish or any asbestos from the Premises;
- (iv) weather proofing, temporary propping, hoarding, silt control, and/or scaffolding;
- (v) any plumbing building and construction related services, including:
- (A) any works regulated by the National Construction Code of Australia; or
- (B) any works that require any relevant development consent or complying development certificate,
- (vi)any other activities or services communicated to the Customer by Black Iron Plumbing Melbourne.
- (b) If any Excluded Services are required by the Customer, Black Iron Plumbing Melbourne may, in its sole discretion and in whole or in part, agree to such additional work and charge the Customer an additional fee for these services. This will constitute a change to the Services in accordance with clause 2.4.
2.7 – THIRD PARTY GOODS AND SERVICES
- (a) If Black Iron Plumbing Melbourne is required to acquire goods or services supplied by a third party, the Customer may be subject to the terms and conditions of that third party (‘Third Party Terms’).
- (b) Provided that Black Iron Plumbing Melbourne has notified the Customer of such Third Party Terms and provided the Customer with a copy of those terms, the Customer agrees to any Third Party Terms applicable to any goods or services supplied by a third party that the Customer or Black Iron Plumbing Melbourne acquires as part of providing the goods or services and Black Iron Plumbing Melbourne will not be liable for any loss or damage suffered by the Customer in connection with such Third Party Terms.
- (c) The Customer has the right to reject any Third Party Terms. If the Customer rejects the Third Party Terms, Black Iron Plumbing Melbourne may not be able to provide the Services to the Customer, this may result in further delay to the provision of the Services and/or clause 17 will apply.
3 – DISCLAIMER
The Customer acknowledges and agrees that:
- (a) any information provided to the Customer as part of or in connection with the Services is general in nature and may not be suitable for the Customer’s circumstances;
- (b) the Services do not include any plumbing construction related services outlined in clause 2.6(a)(iv);
- (c) while Black Iron Plumbing Melbourne will perform the Services to the best of its ability and in accordance with industry standards, and safety procedures, due to the nature of the Services there can be unforeseen and inherent risks and challenges posed by the performance of the Services, some of which are beyond the control of Black Iron Plumbing Melbourne;
- (d) Black Iron Plumbing Melbourne is not responsible for any neighbourly issues and conflicts and accepts no liability caused or contributed to by the performance of the Services;
- (e) drain blockages may indicate affected, inefficient or otherwise faulty pipe work due to venting issues, prior improper installation, improperly plumbed drains, breakages, cracks, negative fall, the presence of plant or tree root growth, sanitary hygiene products, or the lodgement of foreign objects (Faulty Drain). Where Black Iron Plumbing Melbourne is requested to merely clear such blockages, Black Iron Plumbing Melbourne can offer no guarantee and does not warrant that merely clearing such blockages will repair the Faulty Drain, nor can Black Iron Plumbing Melbourne guarantee against further reoccurrence or further damage of the Faulty Drain. If Black Iron Plumbing Melbourne’s Equipment (see clause 22 for Definition) becomes lodged or otherwise stuck in servicing the Faulty Drain, then it shall be removed at the Customer’s expense;
- (f) in addition to prior improper installation issues mentioned in clause 3(e), where Black Iron Plumbing Melbourne is engaged to clear a blockage involving an overflow relief gully, Black Iron Plumbing Melbourne is not liable for any pre-existing non-compliant works on the property. This includes but is not limited to, instances where a laundry basement has been improperly installed below the overflow relief gully;
- (g) where Black Iron Plumbing Melbourne is engaged for a leak detection service, it will use its best endeavours to identify the source of the leak and prevent further damage, which may include using dyes in water and thermal imaging technology to identify the relevant leak location. However, the Customer acknowledges and accepts that due to the inherent complexities of leak detection and pre-existing plumbing issues, such as the need to pouring additional water on suspected leak locations to identify the source of the leak, Black Iron Plumbing Melbourne cannot guarantee that a water-containing body or vessel (such as a pipe, bath tub, shower or roof) will not crack, sustain further damage or not result in flooding. The Customer further acknowledges and agrees that if further damage arises out of such a service, Black Iron Plumbing will not be liable for such damage;
- (h) connections to existing plumbing are sometimes difficult due to the state of deterioration of existing pipes and/or the existing pipe’s location, and Black Iron Plumbing Melbourne is not responsible for any loss or damage arising out of or relating to the state of existing pipes and/or the existing pipe’s location;
- (i) drains, aged and deteriorated plumbing fixtures, piping, and appurtenances may no longer be serviceable, and Black Iron Plumbing Melbourne is not responsible for any loss or damage arising out of relating to aged or deteriorating plumbing or otherwise resulting from conventional repair efforts; and
- (j) they have read, acknowledged and agreed to the disclaimers in this clause (Disclaimers) and will not hold Black Iron Plumbing Melbourne liable for any loss or damage arising out of or relating to any of the aforementioned issues in these Disclaimers.
4 – CUSTOMER OBLIGATIONS
4.1 – PROVIDE INFORMATION AND LIAISON
- (a) The Customer must provide Black Iron Plumbing Melbourne with all documentation, information and assistance reasonably required for Black Iron Plumbing Melbourne to perform the Services.
- (b) The Customer agrees to liaise with Black Iron Plumbing Melbourne as it reasonably requests for the purpose of enabling Black Iron Plumbing Melbourne to provide the Services.
4.2 – PROVIDE ACCESS AND AUTHORITY
- (a) The Customer must allow Black Iron Plumbing Melbourne safe, unrestricted and reasonable access to the Premises, or required areas of the Premises, during the Project Period or set out in a Quote or as otherwise agreed with the Customer, to allow Black Iron Plumbing Melbourne to provide the Services.
- (b) The Customer must obtain any authority or approval that may be necessary (including from the council, landlord, any neighbours involved, strata or building management approval) so that Black Iron Plumbing Melbourne can carry out the Services. The Customer is responsible for informing neighbours of the Services and for any issues or disputes that arise.
- (c) The Customer must conduct or facilitate any inductions, training or supervision or other requirements of the Premises including anything referred to in Special Conditions of a Quote, so that Black Iron Plumbing Melbourne has safe and reasonable access to carry out the Services.
- (d) Where Black Iron Plumbing Melbourne is unable to gain safe, unrestricted and reasonable access to the Premises due to the Customer’s non-compliance with this clause, omission, fault or otherwise, Black Iron Plumbing Melbourne reserves the right to charge the Call Out Fee set out in a Quote for Black Iron Plumbing Melbourne’s reasonable travel expenses and/or lost income. Black Iron Plumbing Melbourne may suspend the provision of the Services until the relevant issue has been resolved to its reasonable satisfaction.
4.3 – SAFETY AND COMPLIANCE WITH WORKPLACE LAWS
- (a) The Customer warrants that the Premises are safe for Black Iron Plumbing Melbourne to enter and perform the Services including, where applicable, complying with any relevant occupational health and safety legislation and requirements.
- (b) If applicable, the Customer must:
- (i) ensure that the Premises is managed in accordance with, and complies with, all applicable workplace relations, workplace health and safety laws and regulations;
- (ii) control and supervise all aspects of the Services, and ensure that such work isIf applicable, the Customer must: only undertaken without risks to the safety, health and welfare of any persons and in compliance with any relevant work health and safety laws and regulations and any policy or procedure established by the Customer or issued by Black Iron Plumbing Melbourne;
- (iii) immediately advise Black Iron Plumbing Melbourne of any hazard or safety incident arising out of, or affecting the performance of the Services and provide Black Iron Plumbing Melbourne with any assistance, as requested, in relation to the incident including any rectification plan or schedule or information; and
- (iv)have adequate insurance coverage to cover Black Iron Plumbing Melbourne and any breach of this agreement, including safety provisions.
5 – PAYMENT
5.1 – FEES
The Customer must pay to Black Iron Plumbing Melbourne fees in the amounts, methods and at the times set out in a Quote or as otherwise agreed in writing.
5.2 – TIME FOR PAYMENT
Unless otherwise agreed, the Customer must pay:
- (a) the Deposit (if any) prior to Black Iron Plumbing Melbourne commencing the provision of the Services and/or ordering any Products upon accepting a Quote or prior to the start date for the Services; and
- (b) the remaining balance of the Fees on completion of the Services within 14 days of Black Iron Plumbing Melbourne issuing an invoice to the Customer.
5.3 – ADDITIONAL FEES
Black Iron Plumbing Melbourne may charge the Customer additional fees for carrying out the Services under certain circumstances (Additional Fees), including where:
- (a) the Services are required to be performed outside the ordinary business hours of Black Iron Plumbing Melbourne (After Hours), then Black Iron Plumbing Melbourne will charge an “After Hours Rate” as set out in a Quote or otherwise communicated to the Customer in writing;
- (b) there is any change to the nature of the Services to be undertaken, including if Black Iron Plumbing Melbourne is required to provide an Excluded Service in accordance with clause 2.4);
- (c) Black Iron Plumbing Melbourne’s equipment becomes lodged or otherwise stuck in a Faulty Drain in accordance with clause 3(e);
- (d) Black Iron Plumbing Melbourne is required to attend to a premises for an emergency call out (Call Out Fee);
- (e) the Customer has failed to provide sufficient or accurate documentation, information or specifications to Black Iron Plumbing Melbourne in accordance with clause 4.1;
- (f) the Customer has failed to provide safe, unrestricted and reasonable access to the Premises in accordance with clause 4.2 and 4.3
- (g) products are damaged or destroyed through no fault of Black Iron Plumbing Melbourne; or
- (h) there are interruptions or delays in the provision of the Services caused or contributed to by:
- (i) other tradespeople or third parties working or operating at the Premises impeding or preventing the provision of Services; or
- (ii) the Premises being deemed unsafe to carry out the Services (in Black Iron Plumbing Melbourne’ reasonable opinion).
5.4 – NO REFUNDS
To the maximum extent permitted under the Competition and Consumer Act 2010 (Cth) any Fees paid in accordance with this Agreement, including any Deposit, are non-refundable.
5.5 – INVOICES
Unless otherwise agreed in a Quote:
- (a) if Black Iron Plumbing Melbourne issues an invoice to the Customer, payment must be made by the time(s) specified in such invoice; and
- (b) in all other circumstances, the Customer must pay for all products and services within 30 days of receiving an invoice for amounts payable.
5.6 – PAYMENT METHOD
The Customer must pay Fees using the fee payment method specified in a Quote.
5.7 – EXPENSES
Unless otherwise agreed in writing Black Iron Plumbing Melbourne will bear all travel, accommodation, and other third party costs reasonably incurred by Black Iron Plumbing Melbourne in connection with the Services.
5.8 – GST
Unless otherwise indicated, amounts stated in a Quote do not include GST. In relation to any GST payable for a taxable supply by Black Iron Plumbing Melbourne, the Customer must pay the GST subject to Black Iron Plumbing Melbourne providing a tax invoice.
5.9 – CARD SURCHARGES
Black Iron Plumbing Melbourne reserves the right to charge credit card surcharges in the event payments are made using a credit, debit or charge card (including Visa, MasterCard or American Express).
5.10 – ORDERING OF MATERIALS
Where Black Iron Plumbing Melbourne Plumbing orders materials on behalf of the Customer, the Customer will be liable to reimburse Black Iron Plumbing Melbourne Plumbing the costs of such materials (even where the Customer instructs Black Iron Plumbing Melbourne Plumbing to order incorrect materials). Refunds will not be provided unless otherwise agreed by Black Iron Plumbing Melbourne Plumbing in writing. If Black Iron Plumbing Melbourne Plumbing determines that additional materials are required for the provision of the Services then the Customer will be liable for the payment of any additional materials (except where caused by the negligent act or omission of Black Iron Plumbing Melbourne Plumbing).
5.11 – LATE PAYMENT AND DEBT RECOVERY
If the Customer does not pay an amount due under this Agreement on or before the date that it is due:
- (a) Black Iron Plumbing Melbourne may suspend all or part of the Services indefinitely until payment of the outstanding Fees are made in full;
- (b) Black Iron Plumbing Melbourne may seek to recover the amount due by referring the matter to debt collectors;
- (c) the Customer must reimburse Black Iron Plumbing Melbourne for any costs it incurs, including any legal costs, in recovering the amount due or enforcing any of its rights under these terms;
- (d) the Customer authorises Black Iron Plumbing Melbourne, its employees and agents to enter any premises occupied by the Customer or any other place where Products are located and use reasonable force to retake possession of the Products without liability for trespass or any reasonable damage; and
- (e) Black Iron Plumbing Melbourne retains the right, without limiting any other rights under this Agreement, to charge the Customer interest at a rate of 5% per month on the outstanding amount. However, before applying this interest, Black Iron Plumbing Melbourne will provide the Customer with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by Black Iron Plumbing Melbourne.
6 – ACCREDITATIONS
Unless otherwise agreed in writing, Black Iron Plumbing Melbourne retains the right to describe the Services and reproduce, publish and display the Services in Black Iron Plumbing Melbourne’ 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.
7 – SUBCONTRACTING
Black Iron Plumbing Melbourne may subcontract any aspect of providing the Services and the Customer hereby consents to such subcontracting.
8 – CONFIDENTIALITY AND PRIVACY
8.1 – PRIVACY
The parties must comply with, if applicable, their respective obligations under the Privacy Act 1988 (Cth).
8.2 – CONFIDENTIAL INFORMATION
- (a) Except as contemplated by this Agreement, each party must not, and must not permit any of its officers, employees, agents, contractors or related companies to, use or disclose to any person any Confidential Information disclosed to it by the other party without its prior written consent.
- (b) This clause 8.2 does not apply to:
- (i) information which is generally available to the public (other than as a result of a breach of this Agreement or another obligation of confidence);
- (ii) information required to be disclosed by any law; or
- (iii) information disclosed by Black Iron Plumbing Melbourne to its subcontractors, employees or agents for the purposes of performing the Services or its obligations under this Agreement.
9 – INTELLECTUAL PROPERTY
9.1 – DEFINITIONS
In this clause and a Quote, the following terms have the following meanings in relation to Intellectual Property Rights:
- (a) Existing Material means Material of either party, other than New Material;
- (b) New Material means Material that is created, written, developed or otherwise brought into existence during the Term for the purposes of this agreement; and
- (c) Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
9.2 – EXISTING MATERIAL
- (a) Except to the extent otherwise stated in a Quote or in this clause 7:
- (i) each party retains ownership of the Intellectual Property Rights in its Existing Material; and
- (ii)nothing in this agreement transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.
- (b) The Customer grants to Black Iron Plumbing Melbourne (and its Personnel) a nonexclusive, royalty free, non-transferable, worldwide and irrevocable licence to use its Existing Material to the extent reasonably required to perform any Services.
- (c) The Customer warrants that Black Iron Plumbing Melbourne’ use of the Customer’s Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify Black Iron Plumbing Melbourne from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
- (d) Black Iron Plumbing Melbourne grants to the Customer a non-exclusive, royalty free, nontransferable and revocable licence to use its Existing Material, to the extent:
- (i) such Existing Material is incorporated into the New Material; and
- (ii) such use is reasonably required for the Customer to enjoy the benefit of the Services.
10 – NEW MATERIAL
- (a) Unless otherwise stated in a Quote, Intellectual Property Rights in New Material are immediately assigned to and vest in Black Iron Plumbing Melbourne as those rights are created.
- (b) Black Iron Plumbing Melbourne grants to the Customer a non-exclusive, royalty free, nontransferable and revocable licence to use the New Material to the extent such use is reasonably required for the Customer to enjoy the benefit of the Services.
11 – THIRD PARTY INTELLECTUAL PROPERTY
Black Iron Plumbing Melbourne warrants that:
- (a) the provision of the Services to the Customer; and
- (b) the Customer’s receipt and use of the Services for their intended purpose, will not infringe the Intellectual Property Rights of any third party.
12 – TITLE AND RISK
- (a) Until the price of Products is paid in full, title in those Products is retained by Black Iron Plumbing Melbourne.
- (b) Risk in the Products will pass to the Customer on delivery or on completion of purchase.
- (c) If the Customer fails to take the Products after the Customer has completed the purchase, Black Iron Plumbing Melbourne may, at its option, keep or resell the Products provided that Black Iron Plumbing Melbourne provides the Customer with a full refund (excluding any credit card surcharges or other transaction fees).
- (d) If the Customer does not pay for any Products on the due date for payment, the Customer authorises Black Iron Plumbing Melbourne, its employees and agents to enter any premises occupied by the Customer or any other place where the Products are located and use reasonable force to retake possession of the Products without liability for trespass or damage.
- (e) Black Iron Plumbing Melbourne may at its option keep or resell Products retaken from the Customer.
- (f) If the Customer sells Products or sells items into which Products are incorporated before payment in full to Black Iron Plumbing Melbourne, the Customer acknowledges that such sale is made by the Customer as bailee for and on behalf of Black Iron Plumbing Melbourne, to hold the proceeds of sale on trust for Black Iron Plumbing Melbourne, in an account in the name of Black Iron Plumbing Melbourne, and must pay that amount to Black Iron Plumbing Melbourne on demand.
13 – DAMAGES
In the event the provision of the products and/or Services (being the works provided) are damaged or destroyed through no fault of Black Iron Plumbing Melbourne, then any additional cost and expenses incurred as a result of such damage or destruction shall be chargeable to the Customer and the Customer is solely liable to pay such amounts.
14 – DEFECTIVE PRODUCTS AND/OR SERVICES
14.1 – GENERAL
- (a) Subject to the following terms, Black Iron Plumbing Melbourne agrees to provide the following remedies for Products and/or Services deemed defective in accordance with this clause.
- (b) The Customer must notify Black Iron Plumbing Melbourne in writing of any evident defect in the Products and/or Services immediately on supply/installation/provision of the Products and/or Services.
14.2 – DEFECTIVE PRODUCTS
- (a) For Products, the Customer must allow Black Iron Plumbing Melbourne unimpeded access to inspect such Products. Black Iron Plumbing Melbourne may also require the Customer to send photographic and/or videographic proof of any defect in the Products.
- (a) Returns will only be accepted by Black Iron Plumbing Melbourne provided that:
- (i) the Customer has complied with its obligations under this Agreement and has not attempted to repair the Products itself or through any third party;
- (ii) Black Iron Plumbing Melbourne has agreed (in its reasonable opinion) that the Products are defective;
- (iii) the Products are returned to Black Iron Plumbing Melbourne as soon asReturns will only be accepted by Black Iron Plumbing Melbourne provided that: possible and within a timeframe that in the Black Iron Plumbing Melbourne’s opinion is reasonable for the specific type of Products after installation, at the Customer’s cost, or as otherwise agreed between the parties; and
- (iv)the Products are accompanied by all original documentation provided by Black Iron Plumbing Melbourne.
- (c) Except as required by law, for each Product that is deemed defective and returned in accordance with this clause, Black Iron Plumbing Melbourne will only be liable to provide a replacement Product, a refund or a repair.
- (d) For the avoidance of doubt, this clause only applies to Products supplied by Black Iron Plumbing Melbourne.
14.3 – DEFECTIVE SERVICES
- (a)The Customer must provide written notice of any defective services as soon as possible upon becoming aware of them and within a timeframe that in the Black Iron Plumbing Melbourne’ opinion is reasonable for the specific type of Service. Black Iron Plumbing Melbourne may also require the Customer to provide evidence of any defect in any Services supplied.
- (b)Black Iron Plumbing Melbourne will decide in its sole discretion if the Services are defective (acting reasonably).
- (c)Except as required by law, for each Service that is deemed defective in accordance with this clause, Black Iron Plumbing Melbourne’ liability will be limited to the supplying of the Services again or the payment of the cost of having the Services supplied again (to remedy such defect) and such replacement Services will not be carried out until the Customer’s account is paid in full. If any works are required outside of the timeframe that in the Black Iron Plumbing Melbourne’ opinion is reasonable for the specific type of Service, it will be deemed a new scope and a new Quote will be provided to the Customer.
- (d)Where a service or item not supplied by Black Iron Plumbing Melbourne is faulty and the Customer requires Black Iron Plumbing Melbourne to attend to check or repair it, Black Iron Plumbing Melbourne may charge the Customer a call out fee as specified by Black Iron Plumbing Melbourne for attending and inspection the premises. Such call out fee will be payable at the date as specified on the invoice.
14.4 – EXCLUSION OF LIABILITY
Notwithstanding any other clause in this agreement, Black Iron Plumbing Melbourne will only be responsible for defects in the Services, products and components that Black Iron Plumbing Melbourne supplies. To the extent permitted by law Black Iron Plumbing Melbourne will not be liable for or required to provide any remedy for:
- (a) any components or materials supplied by the Customer;
- (b) any services carried out by third parties; or
- (c) any defect or damage where such defect or damage is caused by or arises as a result of, or directly or indirectly in connection with, the Customer (or the Customer fails to take reasonable steps to prevent them from becoming defective), any other person (such as the Customer’s other contractors, staff and agents), fair wear and tear, or any accident or circumstance outside the reasonable control of Black Iron Plumbing Melbourne, including any existing leaks.
15 – WARRANTIES
- (a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
- (b) Nothing in this agreement 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.
16 – LIABILITY
- (a) To the maximum extent permitted by law and subject to clause 16.1(b), the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid by the Customer to Black Iron Plumbing Melbourne under the most recent Quote.
- (b) Clause 16.1(a) does not apply to the Customer’s liability in respect of loss or damage sustained by Black Iron Plumbing Melbourne arising from the Customer’s breach of clause 4.
16.2 – CONSEQUENTIAL LOSS
To the maximum extent permitted by law, neither party will 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 in connection with this agreement or any goods or services provided by Black Iron Plumbing Melbourne, except:
- (a) in relation to a party’s liability for fraud, personal injury, death or loss or damage to tangible property; or
- (b) to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth).
17 – TERMINATION
17.1 – TERMINATION FOR CONVENIENCE
Either party may terminate this agreement for convenience by providing 10 Business Days’ notice to the other party.
17.2 – TERMINATION FOR BREACH
- (a) Either party may terminate this agreement immediately by written notice if there has been a Breach of this agreement.
- (b) A “Breach” of this agreement means:
- (i) a party (Notifying Party) considers the other party is in breach of this agreement and notifies the other party;
- (ii) the other party is given 10 Business Days to rectify the breach; and
- (iii) the breach has not been rectified within 10 Business Days or another period agreed between the parties in writing.
17.3 – EFFECT OF TERMINATION
Upon termination of this agreement:
- (a) each party must return all property and Confidential Information to the other party;
- (b) each party must comply with all obligations that are by their nature intended to survive the end of this agreement;
- (c) the Customer must pay any outstanding Fees for Services already performed or Products purchased up to the date of termination;
- (d) if the Customer terminates this agreement in accordance with clause 17.1, then the Customer must pay Black Iron Plumbing Melbourne’ pre-estimated genuine losses as a result of the Customer ending this agreement, being the cost of Products purchased and any materials ordered and/or used up to the date of termination;
- (e) if the Customer terminates this agreement in accordance with clause 17.2, then Black Iron Plumbing Melbourne will refund any amounts paid by the Customer for Services not provided as at the date of termination; and
- (f) the Customer acknowledges and agrees that Black Iron Plumbing Melbourne can retain the Deposit for partial or whole fulfilment (as the case may be) of the cancellation fees payable under clause 17.3(d).
17.4 – SURVIVAL
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this Agreement will survive and be enforceable after such termination or expiry.
18 – IF THE PARTIES HAVE A DISPUTE
- (a) 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.
- (b) 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).
- (c) 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.
- (d) If mediation does not resolve the issue, the parties must:
- (i) if they haven’t already done so, engage independent legal representation at their own expense to understand the strength of their arguments; and
- (ii) 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.
- (e) The parties will follow the binding outcome of arbitration (or other agreed mechanism).
- (f) 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.
- (g) The process in this clause does not apply where a party requires an urgent injunction.
19 – NOTICES
- (a) Any notices required to be sent under this agreement must be sent via email using the party’s email addresses set out in a Quote and the email’s subject heading must refer to the name and date of this agreement.
- (b) If no email address is stated in this agreement, the notice may be sent to the email address most commonly used by the parties to correspond in relation to this agreement at the time the notice is sent.
- (c)The notice will be considered to be delivered 24 hours after it was sent, unless the sender has reason to believe the email failed to send or was otherwise not delivered or received.
20 – FORCE MAJEURE
- (a) 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:
- (i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
- (ii) strike or other industrial action;
- (iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic;
- (iv)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.
- (b) 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:
- (i) reasonable details of the Force Majeure Event; and
- (ii) 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.
- (c) Subject to compliance with clause 20(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.
- (d) 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.
21 – GENERAL
21.1 – GOVERNING LAW AND JURISDICTION
This Agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria 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.
21.2 – AMENDMENTS
This Agreement may only be amended in accordance with a written agreement between the parties.
21.3 – 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.
21.4 – 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.
21.5 – 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.
21.6 – 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.
21.7 – 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.
21.8 – 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.
21.9 – 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.
21.10 – INTERPRETATION
- (a) (singular and plural) words in the singular includes the plural (and vice versa);
- (b) (currency) a reference to $; or “dollar” is to Australian currency;
- (c) (gender) words indicating a gender includes the corresponding words of any other gender;
- (d) (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;
- (e) (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;
- (f) (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;
- (g) (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;
- (h) (document) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
- (i) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
- (j) (includes) the word “includes” and similar words in any form is not a word of limitation; and
- (k) (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.
22 – DEFINITIONS
In these terms and conditions, the following words and phrases have the following meaning:
| Term |
Meaning |
| Business Day |
A day (other than a Saturday, Sunday or any other day which is a public holiday) on which banks are open for general business in Victoria, Australia. |
| Confidential Information |
information of or provided by a party to the other party under or in connection with this Agreement that is by its nature confidential information, is designated by the party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge. |
| Equipment |
any equipment used by Black Iron Plumbing Melbourne in providing the Services, including but not limited to: unblocking equipment, CCTV equipment, and relining equipment. |
| Fees |
The fees set out in a Quote. |
| Intellectual Property Rights |
All copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this agreement both in Australia and throughout the world. |
| Laws |
Any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the relevant jurisdiction(s) where the Services are performed or received and includes any industry codes of conduct. |
| Material |
Has the meaning given in clause 9.1. |
| Personnel |
Employees, secondees, agents and subcontractors (who are individuals), including employees and contractors (who are individuals) of subcontractors. |
| Premises |
the Customer’s address set out in a Quote of where the Services are to be performed by Black Iron Plumbing Melbourne. |
| Products |
any plumbing products set out in a Quote that the Customer requires Black Iron Plumbing Melbourne to supply and install as part of the Services |
| Services |
The services to be provided by Black Iron Plumbing Melbourne to the Customer in accordance with a Quote. |
| Quote |
a quote generated by Black Iron Plumbing Melbourne that outlines the scope of services to the Customer and any other details referred to in a Quote, such as the scope of Services, Fees, Products and other key commercial items. |
