Terms and Conditions
These terms and conditions are between You and Drain Divers, together the Parties and each a Party. These terms and conditions form the entire agreement under which we will provide the Goods and Services to you (together, the Agreement).
1. ACCEPTANCE
1.1 You have requested the Goods and Services of Drain Divers, and accept this agreement by:
(a) signing an invoice or quotation;
(b) communicating acceptance of an invoice or quotation, verbally or written;
(c) instructing us to proceed with the discussed services, verbally or written; or
(d) making any payment of the total price (including any deposit).
1.2 Please read this Agreement carefully and contact us if you have nay questions.
2.1 We agree to provide you the Goods and Services in accordance with this Agreement and all relevant laws.
2.2 You acknowledge and agree that any dates for delivery or for completion notified by us are estimates only, and we will have no Liability to you for failing to meet ant delivery or milestone date.
2.3 We may provide the Goods and Services to you using our Personnel, and they are included in this Agreement.
2.4 All Goods will remain the property of Drain Divers until such time as full payment has been received.
3. WORK, PRICING AND PAYMENT
3.1 Pricing
(a) You agree to pay us the Price and all other reasonable expenses or disbursements properly incurred by us in the provision of the Goods and Services, in accordance with the Payment Terms. All amounts are stated in Australian dollars and are inclusive of GST (unless otherwise stated).
(b) Unless otherwise agreed between the Parties, any agreed deposit must be paid before we commence the provision of the Goods and Services.
(c) Drain Divers will supply goods, parts and supplies at their recommended retail price, plus GST. Where goods, parts and supplies do not have a recommended retail price, the final price will be at Drain Divers discretions.
(d) Additional Fees and Charges will apply outside of normal business hours of Monday to Friday, 7:30am to 4:00pm.
(e) Drain Divers fees are subject to change without notification.
3.2 Quotes
(a) All quotations are subject to variations and are at the discretion of Drain Divers. all variations will incur further fees and charges in addition to the original quoted amount.
(b) All quotes are valid for 30 days.
3.3 Work
(a) We may use employees, contractors and sub-contractors to complete the work as we deem appropriate.
(b) You agree not to directly engage Drain Divers employees, contractors or sub-contractors to do the work for you, or any other work they may identify, without first consulting with Drain Divers Management.
(c) Contractors and Sub-Contractors services, including goods, parts and supplies will be priced at a rate of net plus 15%.
(d) Drain Divers agree to carry out the work in accordance with Australian Standards, Installation Codes, Manufacturer’s Requirements and PH&S Requirements.
3.4 Payments
(a) If any amounts are unpaid 7 days after the invoice due date, a non-negotiable late fee of 10% with interest accruing monthly at 15% per annum until payment is made in full.
(b) If relevant, you agree to make progress payments as documented on the approved quotation. Failure to meet these requirements, may result in the work being suspended until payment has been received.
(c) All credit card payments will incur a 1% fee.
(d) All invoices are due and payable on the completion of work, unless where otherwise agreed.
You represent, warrant, acknowledge and agree that:
(a) there are no legal restrictions preventing you from engaging us, or agreeing to this Agreement;
(b) you will cooperate with us, and provide us with all documentation, information, instructions and access necessary to enable us to provide the Goods and Services, as requested by us, from time to time, and 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 Goods and Services;
(e) you will provide us and our Personnel with sufficient access, free from harm or risk to health or safety, to any relevant premises (including any facilities at the premises), to enable us to provide the Goods and Services, including at the dates and times that we may reasonably request; and
(f) you are responsible for obtaining, and providing to us if necessary, any access, consents, licences, approvals and permissions from other parties necessary for the Goods and Services to be provided, at your cost.
5.1 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 Goods and Services which cannot be excluded, restricted or modified (Statutory Rights). Nothing in this Agreement excludes your Statutory Rights as a consumer under the ACL.
5.2 You agree that our Liability for the Goods and Services is governed solely by the ACL and this Agreement.
6.1 If this Agreement states that we are responsible for delivering the Goods to you, we will use reasonable endeavours to deliver the Goods to the premises by the delivery time, as notified by us to you
6.2 Title in the Goods will remain with us until all amounts due and payable to us under this Agreement are paid in full. Risk in the Goods will pass to you on delivery of the Goods to you.
7.1 Either Party may terminate this agreement at any time, providing at least 24 hours written notice prior to schedule commencement of work. Drain Divers is not liable for any loss or damages arising from the termination of this agreement.
7.2 Where a deposit has been paid to Drain Divers, and you have provided less than 24 hours’ notice of termination, your deposit will be non-refundable. Should you provide more than 24 hours’ notice, your deposit will be returned in full within 5 business days.
7.3 If Drain Divers are unable to attend, we will provide notice via phone call and email as soon as possible, and refund any paid deposits.
8.1 Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law:
(a) Our liability to you for any defective work is limited to replacing, resupplying or refunding (at our discretion) the defective part of the work;
(b) Our liability to you, whether arising in contract, tort, negligence, breach of statutory duty or otherwise is limited to the amount paid for the work; and
(c) We are not liable to you for any consequential loss.
8.2 You agree that you have insurance to cover damage to property caused by water ingress, sewage ingress, accidental damage to services and property, and such other insurance as a prudent person would have. We are not liable to you to the extent any loss or damage is covered (or capable of being covered) by your insurance. You indemnify Drain Divers to the extent of such loss or damage not covered by your insurance.
8.3 Drain Divers does not accept any responsibility for damage to property during works being carried out or by any subsequent plumbing failure arising from the scope of works conducted by Drain Divers.
8.4 You will indemnify us against all loss and damage suffered by us arising out of a breach of this Agreement.
9.1 Warranty will be valid for 12 months (unless otherwise stated) from the Invoice Date.
9.2 12-month Warranty will only apply once a CCTV Drain Inspection has been carried out, determining that all pipe work is free from damage and has been laid at a gradient as per Australian Standard AS3500:2.
9.3 Warranty is only valid on workmanship in the exact same location as documented on the invoice by Drain Divers and/or their Personnel.
9.4 Any additional site visits required for warranty reviews will incur a fee of $160 inc GST should no fault be found.
10.1 Drain Divers retain the rights to all intellectual property in any plans or designs developed by our personnel. We license the right to use that intellectual property to you for purposes aligned with this Agreement.
10.2 Drain Divers reserve the right to withdraw this license at any time.
11.1 You authorise Drain Divers to make all necessary enquiries to determine your creditworthiness where applicable. This includes using, disclosing, and collecting your personal information for the purpose of credit reference checks.
11.2 Drain Divers will maintain a record of your collected personal information in a secure manner.
12.1 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) without first meeting with a senior representative of Drain Divers to seek (in good faith) a resolve to the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party refer the dispute to The State Administrative Tribunal (SAT) to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
12.2 Governing law: This Agreement is governed by the laws of the State. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in the State and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
12.3 GST: If and when applicable, GST payable on the Price will be set out in our invoice. You agree to pay the GST amount at the same time as you pay the Price.
12.4 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and 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.
12.5 Marketing: You agree to Drain Divers using your personal information for marketing purposes & give Drain Divers permission to send out future advertising materials.
12.6 Survival: Clauses 3, 5, 7.3, 8, 9, 10 and 11 will survive the termination or expiry of this Agreement.
13. INTERPRETATION & DEFINITIONS
13.1 Any reference to “Goods and Services” may mean “Goods and/or Services”, as the case may be.
13.2 In this Agreement, unless the context otherwise requires, capitalised terms have the meanings given to them in the Schedule, within these terms and conditions, and:
You means a person requesting and engaging work with Drain Divers.
Consequential Loss includes any consequential, special or indirect loss, damage or expense including any real or anticipated loss of revenue, loss of profit, loss of use, loss of occupation, loss of benefit, loss of financial opportunity, or economic loss whether arising out of a breach of this Agreement, at law, under any statute, in equity, or in tort (including negligence).
Intellectual Property means any copyright, registered or unregistered design, patent or trade mark rights, domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing.
Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party or otherwise.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents.
