Wet-seal - Australia

These are the terms and conditions upon which Wet-seal Australia ABN 65 002 756 087 sells and quotes for the sale of goods.

1 DEFINITIONS
1.1 "Customer" means the individual or organisation that buys or agrees to buy Goods and Services from the Seller and Installer.

1.2 "Contract" means the contract between the Seller, the Installer and the Customer for the sale and purchase of Goods and Services incorporating these Terms and Conditions.

1.3 “Goods” means a range of water proofing membranes and such other goods as determined by the Seller from time to time, combined with a system of installation for those Goods.

1.4 "Services" means the system of installation of water proofing and such other goods that have been developed by the Seller and are installed by the Installer.

1.5 "Seller" means Wet-seal, a franchisor operating in Australia and New Zealand.

1.6 “Site Inspection” means a pre-arranged time agreed to by the Customer and the Installer at which the Installer will meet the Customer at the site at which it is proposed that the Goods and Services are to be installed for the purpose of determining an estimate of price for the provision of the Goods and Services.

1.7 “Site Inspection Fee” means the fee payable to the Installer by the Customer to compensate the Installer for the time spent travelling to the site at which it is proposed that the Goods and Services will be installed, and the time actually spent by the Installer determining the estimate.

1.8 “Installer” means the person who carries out the Services as an independent operator acting as a Franchisee of the Seller.

1.9 "Terms and Conditions" means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller.

1.10 “Warranty” means the period for which the Seller guarantees the Goods, and the Installer guarantees the Services.

2 CONDITIONS

2.1 These Terms and Conditions shall apply to all Contracts for the sale of Goods by the Seller and the provision of Services by the Installer to the Customer, and shall prevail over any other documentation or communication from the Customer.

2.2 Acceptance of delivery of the Goods and Services shall be deemed conclusive evidence of the Customer's acceptance of these Terms and Conditions.

2.3 Any variation to these Terms and Conditions (including any special terms and conditions agreed between the Customer and the Installer) shall be inapplicable unless agreed to in writing by the Seller.

3 ORDERING, PRICE AND PAYMENT

3.1 The Services are only available for purchases of Goods supplied by the Seller.

3.2 All orders for Goods and Services shall be deemed to be an offer by the Customer to purchase the Goods and Services pursuant to these Terms and Conditions and are subject to acceptance by the Seller. The Seller may choose not to accept an order for any reason.

3.3 An estimate of a price for the supply of the Goods and Services may be provided by the Installer. Due to the complexity of the Services the Installers price estimate is not always inclusive of all pricing variables.

3.4 Terms: Full payment is due and payable to the Seller on completion of the Services unless the Installer gives prior approval of terms, in which case full payment is required by the 14 th day of the month following invoice.

3.5 A surcharge will apply for Services carried out on a Sunday or Public Holiday.

3.6 The Customer must pay all amounts due to the Seller under these Terms and Conditions in full and without any set-off or deduction.

3.7 If the Customer elects to pay the amount due by credit card a surcharge of 1.5% of the amount due will apply.

3.8 Any amounts unpaid after the 14 th day of the month following invoice shall bear interest at the rate of 10% per annum.

3.8 If the Customer fails to pay any amount due under these Terms and Conditions within a period of sixty days from the date of invoice, the Seller may report the payment default to a credit-reporting/collection agency and add the collection costs to the amount owed by the Customer.

4 RIGHTS OF THE SELLER

4.1 The Seller and Installer reserve the right to adjust the price and specifications of any Goods or Services available at its discretion.

4.2 The Seller reserves the right to withdraw any Services from the Installer at any time.

4.3 The Seller shall not be liable to anyone for withdrawing any Services or for refusing to process an order.

6 DELIVERY AND INSTALLATION

6.1 Where a specific date and/or time has been agreed for a Site Inspection or the provision of the Goods and Services, and where this date and/or time cannot be met by the Installer, the Customer will be notified by the Installer and given an opportunity to agree to a new date and time.

6.2 The Installer shall use reasonable endeavours to meet any date or time agreed for Site Inspection or the provision of the Goods and Services. In any event, time of Site Inspection or the provision of the Goods and Services shall not be of the essence and the Installer and Seller shall not be liable for any losses, costs, damages or expenses incurred by the Customer or any third party arising directly or indirectly out of any failure to meet any arranged date and/or time for a Site Inspection or the provision of the Goods and Services.

6.3 Goods and Services shall be provided at the Customer's address specified in the order and the Customer shall make all arrangements necessary to be available, or have an authorised representative available when the Site Inspection or the provision of the Goods and Services is due to take place.

6.4 The Customer is to remove all rubbish and debris from the area in which the Goods and Services are to be located prior to the scheduled commencement of the Services.

6.5 The Customer must ensure toilet facilities are made available to Installers on site.

6.6 The Customer must ensure good access and parking is made available on all sites. Bad access and difficult parking may incur a surcharge.

6.7 Any unforeseen circumstances which arise during installation will be notified to the Customer and charged for accordingly.

7 CANCELLATION, REFUNDS, AND DISPUTES

7.1 The Customer may cancel orders for Goods and Services at any time prior to the Services being carried out, subject to the specific limitations on refunds detailed below. No refunds are provided for Services that are cancelled by the Customer during the installation process or after the Services have been delivered.

7.2 If the Customer fails to attend a pre-arranged Site Inspection appointment or an appointment for the installation of the Goods and Services, the full Site Inspection Fee is payable.

7.3 The Site Inspection Fee is payable at the time of the Site Inspection and may be deducted from the final installation cost, at the discretion of the Installer.

7.4 Any dispute raised by the Customer in relation to the Goods and Services must be made by telephoning the Seller on (Australia) 1800 025 081 or (New Zealand) 0800 436 000. The Seller operates between 9:00AM and 5:00PM AEST Monday to Friday.

8 GOODS AND SERVICE WARRANTY

8.1 The Goods and Services are covered by a Warranty (7 years in Australia, 15 years in New Zealand) commencing on the date of completion of the Services.

8.2 The Warranty that applies to the Goods is the responsibility of the Seller. The Warranty that applies to the Services is the responsibility of the Installer.

8.3 The Seller shall be required to rectify free of charge any failure of the Goods, and subsequent damage caused as a result of the failure, during the warranty period.

8.4 The Installer shall be required to rectify free of charge any failure of the Services, and subsequent damage caused as a result of the failure, during the warranty period.

8.5 Because of the nature of the Goods and Services it is often the case that additional materials (tiles etc.) have been fixed over the top of the Goods. The Customer acknowledges that in most cases it will be necessary for the Installer to remove some or all of such covering materials in order to determine the specific cause of the failure of the Goods or Services.

8.6 The Customer also acknowledges that upon removal of the covering materials it may be determined that the cause of the Goods and Services failing to perform their intended purpose may be as a result of some damage to the integrity of the Goods and Services caused subsequent to the installation of the Goods and Services by a third party.

8.7 In the event that the Seller or Installer, while determining the cause of the failure of the Goods or Services, determines that the cause of the failure was due to something or someone other than any problem with the quality and effectiveness of the Goods or the proper provision of the Services, neither the Seller or Installer will be liable for any repairs under the guarantee.

8.8 In the circumstances described in 8.7 the Customer will pay the Seller and/or the Installer the cost of providing such services as were required to determine the actual cause of the failure, and the Seller and/or Installer will not be responsible for the replacement of any covering materials.

8.9 In the event that it is determined that the circumstances described in Clause 8.7 apply, the Seller and/or Installer will provide the Customer with a estimate of the cost of repair of the Goods and Services, and in the event that the Customer requests the Seller or Installer to undertake the repairs, then the Customer accepts full responsibility for the payment to the Seller for the cost of such repairs.

9 LIMITATION OF LIABILITY

9.1 All terms, conditions or warranties that may be implied into these Terms and Conditions; statutory or otherwise, relating to the supply of the Goods and Service are excluded to the fullest extent permitted by law.

9.2 The liability of the Seller or Installer for breach of any term, condition or warranty or under any remedy implied by law (which cannot be excluded) will be:

9.2.1 limited (if permitted by law) at the option of the Seller to the repair or re-supply of the Service or the payment of the cost of having the Service re-supplied; and

9.2.2 reduced to the extent that such liability is caused by negligent acts or omissions by the Customer, or a breach by the Customer of these Terms and Conditions.

9.3 The Seller and/or Installer do not have any liability to the Customer or to any other person for:

9.3.1 the acts or omissions of any other entity, including any third party;

9.3.2 faults or defects in the Goods or Services which are caused by the conduct of the Customer or any third party;

9.3.3 any loss of revenue, profits or anticipated savings, loss of data, loss of bargain, other economic loss of any kind, damage to reputation or for any form of indirect or consequential loss, or special or penalty damages, whether in respect of negligence or other tort, breach of contract, equity or otherwise, arising out of or in connection with the provision of the service or these Terms and Conditions;

10 WAIVER

10.1 No waiver by the Seller or Installer (whether express or implied) in enforcing any of its rights under this contract shall prejudice its rights to do so in the future.

11 FORCE MAJEURE

11.1 The Seller and/or Installer shall not be liable for any delay or failure to perform any of their obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, national or local emergency, acts of government, acts of war or civil disorder, military operation, industrial disputes, weather damage, subsidence or earthquake, or other events which are beyond the reasonable control of the Seller and/or Installer and the Seller and/or Installer shall be entitled to a reasonable extension of its obligations.

12 SEVERANCE

12.1 If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid illegal or unenforceable provision eliminated.

13 CHANGES TO TERMS AND CONDITIONS

13.1 The Seller and/or Installer shall be entitled to alter these Terms and Conditions at any time, but this right shall not affect the existing Terms and Conditions accepted by the Customer upon making a purchase.

14 GOVERNING LAW AND JURISDICTION

14.1 These Terms and Conditions shall be governed by and construed in accordance with the law of the State/Country in which the installation of the Goods and Services takes place. Any dispute under these terms shall be subject to the exclusive jurisdiction of the courts of the State/Country in which the installation of the Goods and Services takes place.

15 STANDARDS

15.1 All work undertaken by the Installer must comply with AS3740-2004, with Branz (Appraisal Certificate Nos. 372 & 486), with AS/NZS4858-2004, and the BCA as amended.

SPECIAL CONDITIONS

Any increase in costs attributable to strikes, lockouts and/or shortage of materials, any difference in award rates and/or any difference in price of materials during the currency of this Contract shall be added to or deducted from the Contract Price, as the case may require.
An aluminium angle, or a plastic strip bead, will be fitted across doorways leading from wet areas.
On multi-storey dwellings the full, upstairs, wet area flooring shall be sealed.
Wherever Particle Board, Marine Ply or Fibre Cement Sheeting has been used the full wet area floor shall be sealed.
If drainage flanges have not been fitted all wastes will be cut off level with the floor. The waterproofing membrane will be dressed down into the waste. For suspended floors a drainage flange MUST BE installed in showers. NOTE: In South Australia all showers must have drainage flanges.
If a hob is required it must be constructed from brick, concrete, concrete masonry or any other materials compatible to the waterproofing membrane excluding timber.
All shower verticals will be sealed to a minimum height of 1.8M.
Bond breakers will be fitted in all showers.
Regardless of substrate used all showers will have the full base sealed.
If the membrane is damaged, by other than the Franchisee, the Guarantee shall be voided.

N.B. Shower screens MUST be installed on the inside edge of the hob.