Megasealed Terms & Conditions
1 DEFINITIONS
1.1 “Act” means the Home Building Act 1989 (NSW);
“Authorised person” means the person or contractor directed by Megasealed Bathrooms to perform the work;
“Completion Date” means the date when Megasealed Bathrooms finishes the Work in accordance with this Contract;
“Contract” means the Quotation, Plan and the Terms and Conditions as set out below;
“Megasealed Bathrooms” means Megasealed Bathrooms Aust. Pty Ltd and includes its successors and permitted assigns;
“Owner” means the person or entity entering into this Contract with Megasealed Bathrooms including the Owner’s executors, administrators, successors and permitted assigns;
“parties” means Megasealed Bathrooms and the Owner;
“Plan” means the diagram (if any) included with the Quotation in relation to the Work;
“Price” means the price for the Work as set out in this Contract;
“Product” means a product used by Megasealed Bathrooms in relation to the Work;
“Product Warranty” means any product warranty expressly provided by Megasealed Bathrooms as set out in this Contract including in the Quotation or at the top of any page of this Contract;
“Quotation” means the Quote that accompanies these Terms and Conditions;
“Representative” means any person authorised by Megasealed Bathrooms in connection with this Contract;
“Site” means the location where the Work will be carried out as set out in the Quotation;
“Statutory Warranties” means the warranties provided by Megasealed Bathrooms in accordance with clause 9;
“Variation” means Variation to the Work in accordance with clause 8;
“Work” means the Work to be carried out by Megasealed Bathrooms in accordance with this Contract.
1.2 In this Contract a reference to a clause means a clause of this Contract unless otherwise stated.
2 QUALITY OF CONSTRUCTION
2.1 All Work done under this Contract will comply with:
2.1.1 the Building Code of Australia to the extent required under the Environmental Planning and Assessment Act 1979 (including any instrument made under that Act); and
2.1.2 All other relevant codes, standards and specifications that the Work is required to comply with under any law; and
2.1.3 The conditions of any relevant development consent or complying development certificate and any construction certificate.
2.2 Despite clause 2.1 the liability of Megasealed Bathrooms for failure to comply with the above work compliance clause is limited if the failure relates solely to a design or specification prepared by the Owner or on the Owner’s behalf or a design or specification required by the Owner if Megasealed Bathrooms has advised the Owner in writing that it contravenes clause 2.1.
3 PLANS AND WORK
3.1 The Plan and specifications for work to be done under this Contract, including any variations are taken to form part of this Contract.
3.2 Before Megasealed Bathrooms starts the Work the Owner must notify Megasealed Bathrooms of any matters that may affect the ability of Megasealed Bathrooms to undertake the Work such as previous repair Work to the Site or any report being done from a third party in relation to the Site or the Work.
3.3 Megasealed Bathrooms will re-grout or resurface or use a sealer where required as part of the Work, which is included in the Price.
3.4 Prior to application of a Product the surface of the Work area needs to be prepared with a chemical tile and stone etchant which will change the appearance of the tiles in some instances.
3.5 The Owner acknowledges:
3.5.1 the possible change in tile appearance with the use of a Product; and
3.5.2 such change in appearance will not be regarded as a defect under this Contract or a breach of any warranty whether statutory or otherwise.
3.6 All areas where the Work will be performed must be kept dry 24 hours prior to and 24 hours after the Work is carried out.
3.7 If the Work relates to a shower, it must not be used for one day prior to commencement of the Work.
4 PLUMBING AND PAINTING
4.1 The Price does not include the cost of plumbing whether to drainage or otherwise and the Owner must contact a plumber for any plumbing issues that may be associated with the Work.
4.2 Megasealed Bathrooms will not carry out any painting or decorating whatsoever in relation to the Work.
5 UNKNOWN DEFECTS, MOVEMENT AND HEALTH AND SAFETY
5.1 Subject to the Statutory Warranties Megasealed Bathrooms shall not be liable for any damage to framework, structure or tiles, faults, defects, deterioration or wear and tear in relation to the Work (“Unknown Defects”) that were not visible or apparent at the initial inspection on Site by Megasealed Bathrooms but have appeared and/or deteriorated since the date of the inspection.
5.2 If Megasealed Bathrooms needs to carry out any additional work arising from the Unknown Defects Megasealed Bathrooms may increase the Quotation to take account of the additional work.
5.3 If the Work includes a balcony repair, subject to the Statutory Warranties, Megasealed Bathrooms will not be liable for any claim arising from the movement of the structure on which the Work is carried out.
5.4 Megasealed Bathrooms may, at its discretion, refuse to carry out the Work if the health and safety of any Representative is exposed on Site and will request the Owner to rectify the problem at the Owner’s cost before the Work can be carried out or continued.
6 PAYMENT BY THE OWNER
6.1 The Owner must pay the Price due to Megasealed Bathrooms on the Completion Date unless stated otherwise in the Quotation.
6.2 The Work will be regarded as complete when it is finished in accordance with this Contract, free of apparent defects and all rubbish and surplus material removed from the Site.
6.3 The Owner authorises Megasealed Bathrooms to deduct all monies due under this Contract from any funds held by Megasealed Bathrooms or from the Owner’s credit card if applicable after the Work has been completed or any money is owing to Megasealed Bathrooms in accordance with this Contract.
6.4 If Megasealed Bathrooms agrees with the Owner in the Quotation to accept payment after the Completion Date the Owner shall pay Megasealed Bathrooms all monies due under this Contract within 30 days of the Completion Date (“Payment Period”).
6.5 If the Owner does not pay Megasealed Bathrooms all outstanding monies owing under this Contract within the Payment Period unless otherwise stated in the Quotation the Owner shall also pay Megasealed Bathrooms by way of liquidated damages a sum equal to ten per centum (10%) per annum of all monies owing to Megasealed Bathrooms from the end of the Payment Period until the date of actual payment.
7 TIME FOR COMPLETION
7.1 Subject to clause 7.2 Megasealed Bathrooms will complete the Work within a reasonable time.
7.2 Megasealed Bathrooms will be entitled to a reasonable extension of time in the event of delays to the work where the cause of the delay is beyond Megasealed Bathroom’s control including but not limited to:
7.2.1 inclement weather (if external work) that prevents Megasealed Bathrooms from proceeding with the Work;
7.2.2 the unavailability of materials for the Work;
7.2.3 industrial disputes;
7.2.4 Variations; or
7.2.5 Any other matter beyond the control of Megasealed Bathrooms.
7.3 Any rectification work carried out by Megasealed Bathrooms after the Completion Date shall not extend any warranty period set out in this Contract.
8 VARIATION
8.1 The Work may be varied by agreement between the Owner and Megasealed Bathrooms.
8.2 Subject to clause 8.3 below Megasealed Bathrooms any Variation required by either party must be made in writing to the other party (“Variation Request”). The Variation Request must include a full description of the proposed Variation.
8.3 If the Variation as set out in the Variation Request is agreed the Variation must:
8.3.1 be in writing;
8.3.2 set out the cost of the additional or omitted Work;
8.3.3 set out any change to the Completion Date;
8.3.4 be signed by the parties and dated.
8.4 The price of any extra Work will be added to the Price and the cost of any omitted Work will be deducted from the Price.
8.5 The Work, Products or materials required under this Contract may be varied due to such other matters as could not reasonably be foreseen by an experienced contractor for the completion of the Work at the date of this Contract.
9 STATUTORY WARRANTIES
9.1 If the Work is residential work under the Act Megasealed Bathrooms warrants that:
9.1.1. the Work will be performed in a proper and workmanlike manner and in accordance with the plan and specifications set out in this Contract;
9.1.2 all materials supplied by Megasealed Bathrooms will be good and suitable for the purpose for which they are used and, unless otherwise stated in this Contract , those materials will be new;
9.1.3. the Work will be done in accordance with, and will comply with, the Act or any other law;
9.1.4 the Work will be done with due diligence and within the time stipulated in this Contract , or if no time
is stipulated, within a reasonable time;
9.1.5 If the Work consists of the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the Work will result, to the extent of the
Work conducted, in a dwelling that is reasonably fit for occupation as a dwelling;
9.1.6 the Work and any materials used in doing the Work will be reasonably fit for the specified purpose
or result, if the Owner expressly makes known to Megasealed Bathrooms or any other person with express or apparent authority to enter into or vary contractual arrangements on behalf of Megasealed Bathrooms, the particular purpose for which the Work is required or the result that the Owner desires the Work to achieve, so as to show that the Owner relies on Megasealed Bathroom’s skill and judgment.
10 ACCESS
10.1 The Owner must provide access for any Representative to carry out the Work as required during Work hours allowed by relevant statutory authorities.
10.2 The Owner must remove any personal property likely to impede the Work.
10.3 Unless a minimum of 24 hours’ notice is given to Megasealed Bathrooms if a Representative cannot access the Site or is unable to proceed with the Work for any reason an additional $55.00 (including GST) call out charge will be payable by the Owner to Megasealed Bathrooms.
11 CLEANING UP
11.1 On completion of the Work, Megasealed Bathrooms must remove from the Site all of its tools and equipment and dispose of all rubbish, excavated material, vegetation, demolished or dismantled structures and surplus material relating to the Work.
11.2 All demolished, dismantled and surplus material will be the property of Megasealed Bathrooms unless otherwise specified in the Quotation.
12 INSURANCE FOR WORK AND PERSONAL INJURY
12.1 Before Megasealed Bathrooms commences any Work under this Contract or is given access to the Site, Megasealed Bathrooms must have current insurance cover for:
12.1.1 Public liability insurance to cover liabilities to third parties for death or personal injury or damage to property for an amount not less than $5 million;
12.1.2 Employer’s liability for worker’s compensation insurance to cover any employees, and if requested Megasealed Bathrooms must provide the Owner with proof that all such insurances have been taken out and are current;
12.1.3 Property damage insurance for the Work, including Work in progress and materials, for the full reinstatement and replacement cost; and
12.1.4 Home warranty insurance to cover defective and incomplete Work if required under the Act.
12.2 A certificate of home warranty insurance must be provided before Work starts or before any payment is made under this Contract if required under the Act.
13 INDEMNITY IN FAVOUR OF OWNER
13.1 Subject to clause 13.2 Megasealed Bathrooms will indemnify the Owner against any loss or liability for death, personal injury or property damage arising out of the Work, except to the extent that the Owner or an employee, agent or subcontractor of the Owner contributed to the loss or liability.
13.2 Megasealed Bathrooms will not be liable under clause 13.1 if the death, personal injury, property damage was caused or contributed by a design or specification prepared by or on behalf of the Owner.
14 DAMAGE TO PROPERTY
14.1 The Owner must remove any furniture or personal goods from the Site and immediate vicinity to minimise the risk of damage.
14.2 Although Megasealed Bathrooms takes all care when removing grout on floor and wall joints, on occasions this process may cause tiles to chip or break for which Megasealed Bathrooms will not be held liable (“grout removal”).
14.3 Subject to the Owner complying with the Owner’s obligations under this Contract, Megasealed Bathrooms must make good any loss or damage to the property of the Owner caused by Megasealed Bathrooms or its employees, agents or subcontractors except in relation to the grout removal.
15 MISREPRESENTATION
15.1 If the Owner or its employees, agents or contractors makes any misrepresentation to Megasealed Bathrooms that causes additional work, such additional Work will be regarded as a Variation and added to the Price or Megasealed Bathrooms may, at its discretion, refuse to carry out such additional Work.
16 PRODUCT WARRANTY
16.1 Subject to the Statutory Warranties Megasealed Bathrooms shall not be liable for a claim by the Owner under a Product Warranty if any of the following clauses apply:
16.1.1 If Megasealed Bathrooms has not been paid all monies payable by the Owner in accordance with this Contract;
16.1.2 If any damage or defect is caused to the Product the subject of the claim (“Defective Product”) by the Owner or any third party;
16.1.3 If there has been any tampering or interference with the Defective Product by anyone other than a Representative;
16.1.4 If any damage to the Defective Product is caused by any plumbing that was not known when Megasealed Bathrooms inspected the Site to quote for the Work;
16.1.5 If the Work includes a balcony repair, and any damage or defect to the Defective Product is caused by the movement of the structure on which the Work is carried out;
16.1.6 If there are Unknown Defects as set out in clause 5.1 that causes or contributes to the Product becoming damaged or defective.
17 MONEY BACK GUARANTEE
17.1 If Megasealed Bathrooms is required to stop a leak as part of the Work, Megasealed Bathrooms shall within 12 months from the Completion Date give the Owner a full refund of any money paid by the Owner for the Work, if Megasealed Bathrooms is unable to stop the leak (“Refund”) subject to the following provisions:
17.1.1 The leak must have existed before Megasealed Bathrooms commenced the Work and continued after the Completion Date;
17.1.2 If the Owner intends to claim a Refund the Owner must serve a Notice of Claim as provided in clause 18.1 and allow Megasealed Bathrooms a Site Inspection as provided in clause 18.2;
17.1.3 Megasealed Bathrooms must be given the opportunity to rectify the leak within 28 days of the Site Inspection (“Rectification Period”);
17.1.4 If Megasealed Bathrooms is unable to rectify the leak within the Rectification Period Megasealed Bathrooms will give the Owner the Refund within 14 days after the end of the Rectification Period;
17.1.5 The 12 month period will commence on the Completion Date;
17.1.6 The Refund will not be payable by Megasealed Bathrooms if any of the circumstances in clauses 16.1.2-16.1.6 caused or contributed to the leak. For the avoidance of doubt, as an example, if the leak is not stopped due to a plumbing issue that was not known to Megasealed Bathrooms when it attended the Site to quote for the Work, Megasealed Bathrooms will not be required to give the Refund to the Owner.
18 NOTICE OF CLAIM
18.1 The Owner must notify Megasealed Bathrooms in writing within 10 business days of finding out of any matter or circumstance that may give rise to a claim under this Contract and set out details of the claim (“Notice of Claim”).
18.2 If the Owner serves a Notice of Claim Megasealed Bathrooms must within 14 days of receipt of the Notice of Claim serve notice on the Owner requesting a date and time to inspect the Work on Site (“Site Inspection”).
18.3 The Owner must allow Megasealed Bathrooms to rectify any defective Work that is capable of rectification that Megasealed Bathrooms is required to rectify under this Contract (“Rectification Work”);
18.4 If Megasealed Bathrooms is required to carry out the Rectification Work Megasealed Bathrooms shall serve a further notice on the Owner within 14 days after the Site Inspection to nominate a mutually convenient date and time within 21 days of the Site Inspection for Megasealed Bathrooms to carry out the Rectification Work;
18.5 If Megasealed Products undertakes a Site Inspection and is not liable to rectify the alleged defective work set out in the Notice of Claim Megasealed Bathrooms shall be entitled to charge the Owner a call out fee for the Site Inspection at the prevailing rate at the time of the Site Inspection.
19 TERMINATION OF CONTRACT
19.1 If Megasealed Bathrooms:
19.1.1 goes into liquidation, administration or is otherwise without full capacity;
19.1.2 fails to complete the Work within a reasonable time;
19.1.3 fails to remedy defective Work or replace faulty or unsuitable materials or Products as provided in this Contract; or
19.1.4 otherwise breaches a term of this Contract
The Owner may, where such default can be remedied, issue a written notice requiring Megasealed Bathrooms to remedy the default within 10 business days or within such other reasonable period as may be agreed.
19.2 If the default is not remedied within 10 business days or such other reasonable period as may be agreed, or is not capable of being remedied, the Owner may terminate this Contract by written notice to Megasealed Bathrooms.
19.3 If the Owner:
19.3.1 fails to make any payment due under this Contract; or
19.3.2 denies access to the Site to Megasealed Bathrooms to prevent the Work from proceeding; or
19.3.3 otherwise breaches a term of this Contract
Megasealed Bathrooms may issue a written notice requiring the Owner to remedy the default within 10 business days of receipt of the notice by the Owner.
19.4 If the default is not remedied within 10 business days Megasealed Bathrooms may terminate this Contract by written notice to the Owner.
20 AUTHORITY
20.1 The Owner’s agent, employee or contractor who signs this Contract on behalf of the Owner (“Owner’s Signatory”) warrants that it, he or she has authority to enter into this Contract on behalf of the Owner.
20.2 The Owner’s Signatory will indemnify Megasealed Bathrooms against all loss or damages Megasealed Bathrooms may suffer arising from a breach of warranty set out in clause 20.1.
20.3 Any representative who signs this Contract on behalf of Megasealed Bathrooms’ (“Megasealed’s Signatory”) warrants that he or she has authority to enter into this Contract on behalf of Megasealed Bathrooms.
20.4 The Megasealed Signatory will indemnify the Owner against all loss or damages the Owner may suffer arising from a breach of warranty set out in clause 20.3.
21 DISPUTES
21.1 If a party considers a dispute has arisen in relation to any matter covered by this Contract, that party must promptly give the other party written notice of the items of dispute.
21.2 The parties may confer with a mutually agreed third party to assist to resolve the dispute by mediation.
21.3 If the dispute cannot be resolved, a party may notify the Commissioner for Fair Trading that a building dispute exists and seek assistance from the Office of Fair Trading to resolve the dispute.
21.4 If applicable, the private home warranty insurer should be notified of any dispute, which may be a prospective claim on the insurer.
22 NOTICES
22.1 Any written notice required to be given under this Contract or under the cooling off provision under the Act (if applicable) may be served by:
22.1.1 giving it to the party personally;
22.1.2 leaving it at the party’s address shown in this Contract; or
22.1.3 sending it by registered post to the party’s address shown in this Contract.
23 SEVERABILITY
23.1 Any condition of this Contract which is illegal, void or rendered unenforceable shall be severed from this Contract so that the legality, validity or enforceability of the remaining provisions of this Contract shall not be affected.
24 GOVERNING LAW AND JURISDICTION
24.1 This Contract is governed by the laws of the State in which the Work is carried out by Megasealed Bathrooms.
24.2 Each party irrevocably submits to the non-exclusive jurisdiction of the courts of that State.
25 AUSTRALIAN CONSUMER LAW
25.1 Despite anything to the contrary in this Contract:
25.1.1 this Contract is subject to the provisions of the Australian Consumer Law and the Australian Consumer Law prevails to the extent of any inconsistency;
25.1.2 the products come with guarantees that cannot be excluded under the Australian Consumer Law;
25.1.3 the Owner is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Owner is also entitled to have the goods repaired or replaced if the products fail to be of acceptable quality and the failure does not amount to a major failure;
25.1.4 If the Owner wishes to claim under any warranty in this Contract the Owner must serve a notice of claim on Megasealed Bathrooms as provided in clause 18;
25.1.5 Any warranty under this Contract is provided by Megasealed Bathrooms of Unit 5/133 Beauchamp Road, Matraville NSW 2036. Telephone 1300 658 007.email
nsw@megasealed.com.au.
25.1.6 Subject to the provisions of this Contract the period of the Product warranty is as stated in the Quotation;
and the period of the services warranty is such period as applies under the Act and/or the Australian Consumer Law;
25.2 Any warranties provided by Megasealed Bathrooms under this Contract are in addition to other rights and remedies of the Owner under a law in relation to the goods or services to which the warranty relates.