Megasealed Stone Restoration Solutions Terms & Conditions
“Act” means the Home Building Act 1989 (NSW);
“Authorised person” means the person or contractor directed by Megasealed to perform the work;
“Completion Date” means the date when Megasealed finishes the Work in accordance with this Contract; “Contract” means the Quotation, Plan and the Terms and Conditions as set out below;
“Megasealed Bathrooms” and “Megasealed” means Megasealed Bathrooms Aust. Pty Ltd and includes its successors and permitted assigns including Megasealed Stone Restoration Solutions ;
“Owner” means the person or entity entering into this Contract with Megasealed including the Owner’s executors, administrators, successors and permitted assigns; “parties” means Megasealed 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;
“Quotation” means the Quote that accompanies these Terms and Conditions; “Representative” means any person authorised by Megasealed 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 in accordance with clause 5 ;
“Variation” means Variation to the Work in accordance with clause 8; “Work” means the Work to be carried out by Megasealed 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 PAYMENT BY THE OWNER
2.1 The Owner must pay the Price due to Megasealed on the Completion Date unless stated otherwise in the Quotation.
2.2 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.
2.3 The Owner authorises Megasealed to deduct all monies due under this Contract from any funds held by Megasealed or from the Owner’s credit card if applicable after the Work has been completed or any money is owing to Megasealed in accordance with this Contract.
2.4 If Megasealed agrees with the Owner in the Quotation to accept payment after the Completion Date the Owner shall pay Megasealed all monies due under this Contract within 7 days of the Completion Date (“Payment Period”).
2.5 If the Owner does not pay Megasealed all outstanding monies owing under this Contract within the Payment Period unless otherwise stated in the Quotation the Owner shall also pay Megasealed by way of liquidated damages a sum equal to ten per centum (10%) per annum of all monies owing to Megasealed from the end of the Payment Period until the date of actual payment.
3 TIME FOR COMPLETION
3.1 Subject to clause
3.2 Megasealed will complete the Work within a reasonable time.
3.2 Megasealed 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’s control including but not limited to:
3.2.1 inclement weather (if external work) that prevents Megasealed from proceeding with the Work ;
3.2.2 the unavailability of materials for the Work;
3.2.3 industrial disputes;
3.2.4 Variations; or
3.2.5 Any other matter beyond the control of Megasealed.
4.1 The Work may be varied by agreement between the Owner and Megasealed.
4.2 Subject to clause
4.3 below 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.
4.3 If the Variation as set out in the Variation Request is agreed the Variation must:
4.3.1 be in writing; 4.3.2 set out the cost of the additional or omitted Work;
4.3.3 set out any change to the Completion Date;
4.3.4 be signed by the parties and dated.
4.4 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.
5 STATUTORY WARRANTIES
5.1 If the Work is residential work under the Act Megasealed warrants that:
5.1.1 the Work will be performed in a proper and workmanlike manner and in accordance with the plan and specifications set out in this Contract;
5.1.2 all materials used or supplied by Megasealed 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;
5.1.3 the Work will be done in accordance with, and will comply with, the Act or any other law;
5.1.4 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;
6.1 The Owner must provide access for any Representative to carry out the Work as required during Work hours allowed by relevant statutory authorities.
6.2 The Owner must remove any personal property likely to impede the Work.
6.3 Unless a minimum of 24 hours’ notice is given to Megasealed 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.
7 CLEANING UP
7.1 On completion of the Work, Megasealed must remove from the Site all of its tools and equipment and dispose of all rubbish.
8 INSURANCE FOR WORK AND PERSONAL INJURY
8.1 Before Megasealed commences any Work under this Contract or is given access to the Site, Megasealed must have current insurance cover for:
8.1.1 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;
8.1.2 Employer’s liability for worker’s compensation insurance to cover any employees, and if requested Megasealed must provide the Owner with proof that all such insurances have been taken out and are current; 8.1.3 Property damage insurance for the Work, including Work in progress and materials, for the full reinstatement and replacement cost; and
8.1.4 Home warranty insurance to cover defective and incomplete Work if required under the Act.
8.2 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.
9. INDEMNITY IN FAVOUR OF THE OWNER
9.1 Subject to clause
9.2 Megasealed will indemnify the Owner against any loss or liability for death, personal injury or property damage arising out of the Work at the time 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.
9.2 Megasealed will not be liable under clause
9.1 if the death, personal injury, property damage was caused or contributed by a design or specification prepared by or on behalf of the Owner.
10 DAMAGE TO PROPERTY
10.1 The Owner must remove any furniture or personal goods from the Site and immediate vicinity to minimise the risk of damage.
10.2 Megasealed may not be held responsible for any accidental damage that may occur as part of the service.
11.1 If the Owner or its employees, agents or contractors makes any misrepresentation to Megasealed that causes additional work, such additional Work will be regarded as a Variation and added to the Price or Megasealed may, at its discretion, refuse to carry out such additional Work.
11.2 The Owner needs to advise Megasealed prior to commencement of our service if the stone product involved is ‘veneer stone’ which cannot be serviced.
12 SPECIAL CHARACTERISTICS RELATING TO STONE
12.1 Stain on natural stone may not always be able to be totally removed due to the depth of the stain. However in most cases Megasealed will be able to reduce the stain impression.
12.2 All stone surfaces either polished or restored by Megasealed will need to be totally maintained after the service by the Owner so as to maintain the finish achieved after the Megasealed service.
12.3 In most cases the restoration service provided by Megasealed will improve the gloss reading that existed prior to the service.
12.4 Megasealed will not be held liable for any etching, scratching or staining to any surface after the restoration service is completed.
12.5 Any sealers applied to any stone surface by Megasealed will not stop acidic products etching the stone , or any other products staining the stone.
12.6 The Megasealed sealer is applied to create a reaction time to any such products that may cause staining or damage to stone.
12.7 Due to the wide range of imported stone into Australia, Megasealed will not be held responsible for any damage caused to any stone surface that is from the KH marble series which is a ‘veneered stone’. In particular we are referring to G684 Black Granite , and G654 Grey. Refer also Clause 11.2 above.
13 TERMINATION OF CONTRACT
13.1 If Megasealed :
13.1.1 goes into liquidation, administration or is otherwise without full capacity;
13.1.2 fails to complete the Work within a reasonable time; or
13.1.3 otherwise breaches a term of this Contract The Owner may, where such default can be remedied, issue a written notice requiring Megasealed to remedy the default within 10 business days or within such other reasonable period as may be agreed.
13.2 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.
13.3 If the Owner:
13.3.1 fails to make any payment due under this Contract; or
13.3.2 denies access to the Site to Megasealed to prevent the Work from proceeding; or
13.3.3 otherwise breaches a term of this Contract Megasealed may issue a written notice requiring the Owner to remedy the default within 10 business days of receipt of the notice by the Owner.
13.4 If the default is not remedied within 10 business days Megasealed may terminate this Contract by written notice to the Owner.
14.1 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.
14.2 The Owner’s Signatory will indemnify Megasealed against all loss or damages Megasealed may suffer arising from a breach of warranty set out in clause 15.1.
14.3 Any representative who signs this Contract on behalf of Megasealed (“Megasealed’s Signatory”) warrants that he or she has authority to enter into this Contract on behalf of Megasealed.
14.4 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.
15.1 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.
15.2 The parties may confer with a mutually agreed third party to assist to resolve the dispute by mediation.
15.3 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.
15.4 If applicable, the private home warranty insurer should be notified of any dispute, which may be a prospective claim on the insurer.
16.1 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:
16.1.1 giving it to the party personally;
16.1.2 leaving it at the party’s address shown in this Contract; or
16.1.3 sending it by registered post to the party’s address shown in this Contract.
17.1 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.
18 GOVERNING LAW AND JURISDTICTION
18.1 This Contract is governed by the laws of the State in which the Work is carried out by Megasealed.
18.2 Each party irrevocably submits to the non-exclusive jurisdiction of the courts of that State.
19. AUSTRALIAN CONSUMER LAW
19.1 Despite anything to the contrary in this Contract, this Contract is subject to the provisions of the Australian Consumer Law and the Australian Consumer Law prevails to the extent of any inconsistency.