VISION SEAL Pty Ltd
General Terms & Conditions of Quotation & Contract
All contracts and dealings between Vision Seal Pty Ltd A.C.N. 48 850 587 486 (Vision Seal Pty Ltd) and You (the Customer), relating to any application of products or services performed (collectively, the Services) are subject to these Terms & Conditions of Sale (Terms) unless otherwise expressly agreed in writing.
In these Conditions, the following definitions apply:
Charges: the charges payable by the Customer for the supply of the Services in accordance with clause number 5.
Contract: the Contract between Vision Seal and the Customer for the supply of Services in accordance with these Conditions.
Customer (You): the person who purchases Services from Vision Seal Pty Ltd.
Guarantor: means the person who signs this document on behalf of a Company or Trust.
Order: The Customer’s Order for Services as set out in the Worksheet.
Supplier (Us): Vision Seal Pty Ltd A.C.N. 48 850 587 486.
Terms: these terms and conditions as amended from time to time.
Services: the application of products (subject to manufacturers’ recommendations for specific product details) and performance of services by Vision Seal Pty Ltd to the Customer as set out in the Worksheet.
Worksheet: the Worksheet or quotation setting out the description or specification of the Services to be provided by Vision Seal Pty Ltd to the Customer.
1.2 Interpretation. In these Conditions, the following rules apply:
a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and a reference to a party includes its representatives, successors or permitted assigns;
a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted;
any phrase introduced by the terms including include, in particular, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
a reference to writing or written includes e-mails.
BASIS OF CONTRACT
2.1 Execution of the Worksheet constitutes an offer (Order) by the Customer to engage Vision Seal Pty Ltd to perform the Work in accordance with these Terms. The Order shall only be deemed to be accepted when Vision Seal Pty Ltd countersigns the Worksheet or issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
2.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Vision Seal Pty Ltd which is not set out in the Contract.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 Any quotation given by Vision Seal Pty Ltd shall not constitute an offer and is strictly valid for a period of 30 days from its date of issue. Re-quoting may be required for time frames outside of this period.
2.5 Unless otherwise stated by Vision Seal Pty Ltd, any quotation is based on having clear access, free from trades over one site visit.
SUPPLY OF SERVICES
3.1 Vision Seal Pty Ltd shall supply the Services to the Customer in accordance with the WorkSheet in all material respects.
3.2 The Services will be scheduled in as soon as is practical based on Vision Seal Pty Ltd current workload at the time of receiving the signed Worksheet and, or; a deposit of 30% of the total estimate and depending upon the availability of materials, labour and any other conditions beyond Vision Seal Pty Ltd control.
3.3 Vision Seal Pty Ltd shall use all reasonable endeavours to meet any performance dates specified in the Work Sheet, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.4 Vision Seal Pty Ltd shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Vision Seal Pty Ltd shall notify the Customer in any such event.
3.5 Vision Seal Pty Ltd warrants to the Customer that the Services will be provided using reasonable care and skill.
The Customer shall, before and after the performance of the Services:
Access: to provide free and easy access to the job site for all necessary equipment as required to complete the works. All areas are to be clean and clear, free from other trades before commencement on site. Additional charges apply at $100 + G.S.T. per hour per person or reasonable rates determined by us if cleaning of the surface is required.
Furniture & Similar: Items, including but not limited to stock, equipment, machinery, furniture doors, etc. are to be removed. Plants and grass edges are to be timed back off the site and all pots and tables, etc. are to be removed. Additional charges apply at $100 + G.S.T. per hour per person or reasonable rates determined by us if Items must be removed or cleared.
Utilities: to provide unobstructed, clean and clear access to adequate water and electrical services and adequate lighting as may be required.
Substrate: to ensure that the substrate surface is free of obstructions and in a condition ready to receive the application of the system coating. Additional charges apply at $100 + G.S.T. per hour per person or reasonable rates determined by us if the surface must be cleared or treated.
New concrete: it must be clearly understood that most generic systems and products require a minimum moisture content of 4% before any application being carried out. This is generally achieved after 28 days cure. Should the project require the application of a system or products to accelerate the project program, the application of a moisture barrier may be considered (subject to technical and warranty considerations). This application will be charged as an additional cost.
Accuracy: ensure that the terms of the Order and any information it provides in the Worksheet are complete and accurate;
Site Inspection: You warrant to us that before project commencement Vision Seal Pty Ltd reserves the right to undertake a site inspection. Any alterations or deviations from the agreed Worksheet, specification, scope of works or project documents will be executed only upon further written instruction. They may become an extra charge over and above the amount quoted.
Licences & Permits: obtain and maintain all necessary rights, permissions and consents which may be required before the date on which the Services are to start; and
General: co-operate with Vision Seal Pty Ltd in all matters relating to the Services.
Site Inductions: If a site induction is required, the Customer must inform Vision Seal in writing before accepting the Worksheet. If this is not done, a charge of $100 plus G.S.T. per hour per person will be applied to the final bill.
4.2 If Vision Seal Pty Ltd performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
Vision Seal Pty Ltd shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Vision Seal Pty Ltd performance of any of its obligations;
Vision Seal Pty Ltd shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Vision Seal Pty Ltd failure or delay to perform any of its obligations as set out in clause 4.1 of this clause 4.2; and
the Customer shall reimburse Vision Seal Pty Ltd on written demand for any costs or losses sustained or incurred by Vision Seal Pty Ltd arising directly or indirectly from the Customer Default.
5.1 The Charges for the Services shall be as set out in the Worksheet.
5.2 A deposit of 30% is required before the commencement of the Services. Vision Seal Pty Ltd shall invoice the Customer before the last day of Work and is immediately payable through the method provided by Vision Seal Pty Ltd.
5.3 Failure to paying the outstanding balance prior to the last day of Work, Vision Seal reserves the right to stop the project until payment has been received.
5.4 The Customer shall pay each invoice submitted by Vision Seal Pty Ltd strictly within the agreed trading terms unless otherwise agreed by Vision Seal Pty Ltd.
5.5 Time for payment shall be of the essence of the Contract.
5.6 As per Securities of Payment Act, if the Customer fails to make any payment due to Vision Seal Pty Ltd under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 10% per cent per annum. Such interest shall accrue on a daily basis from the due date of the money owing until the actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
5.7 The Customer agrees to indemnify Vision Seal Pty Ltd against any costs (including without limitation legal costs on a full indemnity basis) that Vision Seal Pty Ltd may incur in connection with recovery or attempted recovery of overdue amounts.
5.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Vision Seal Pty Ltd may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Vision Seal Pty Ltd to the Customer.
6.1 All best trade practices and due care will be taken to ensure adequate preparation, bonding and installation of the applications in accordance with the manufacturers’ technical advice.
6.2 For all Services:
Vision Seal Pty Ltd warrants that the Services will be performed in strict accordance with the manufacturers’ application procedures; and
any application product (if used) is covered for a period of five (5) years against faulty workmanship and defective application,
the substrate on which the products are applied maintains a standard and fitness meeting all statutory requirements and having suffered no deterioration leading to premature coating failure; and
cracks in the concrete after completion are the result of movement in the foundation below and Vision Seal Pty Ltd shall not be liable.
Some systems can yellow and chalk on exposure to U.V. radiation (sunlight). Areas indoors that receive direct sunlight exposure for some intervals during the day, such as those adjacent to doorways and windows may experience some discolouring if you have chosen a system without a U.V. resistant sealer. It is the responsibility of the client to review technical datasheets to ensure the suitability of the product for any given project. Vision Seal can advise and assist in product selection.
the Customer adheres to regular maintenance and cleaning of the surface.
6.3 Vision Seal Pty Ltd shall not be liable under this warranty for any damages/ claims (whole or part thereof) arising from any failure to the resurfacing system caused by hydrostatic pressure, settling, movement, cracking, lifting, excessive or rising moisture, or failure of the foundation, corrosion, excessive wear and tear, tyre marks or oil, plant stains, application or construction of concrete or any other element otherwise outside the control of Vision Seal Pty Ltd.
6.4 The Customer acknowledges that all best trade practices and due care will be taken however there will be some minor imperfections in the finished surface, such as roller marks, reflective cracking, minor undulation or trowel marks. By accepting the Order, the Customer acknowledges that he/she is aware of these facts.
6.5 Many systems require a minimum 24 to 48 hours from completion prior to accepting foot traffic (longer for vehicular traffic in accordance with the manufacturer’s technical datasheet). Vision Seal Pty Ltd will not be liable for any defects caused by the early use of the surface. Many systems can take up to 7 days to achieve full chemical cure where during this period the use of any water, cleaning agents or similar may affect the systems appearance and/or performance. Additionally, any form of traffic and the placement of plant, equipment, furniture etc onto system should be at a minimum.
6.6 Unless specifically listed in the Worksheet, no allowances have been made to reinstate or caulk joints. In the event of cracking or structural defects, Vision Seal Pty Ltd accepts no responsibility for damage to the finished product resulting from structural damage in the surface. Active cracks will be treated in accordance with the manufacturers’ requirements to reduce the degree of visible surface cracking. No guarantee or responsibility can be accepted for these structural defects and any subsequent damage to the finished surface.
6.7 Unless specifically listed in the Worksheet, no allowances can be made for any dewatering or for effects caused by inclement weather or for any environmental conditions that are prohibitive to the adequate bonding and or the curing of the intended system. Furthermore, Vision Seal Pty Ltd shall not be responsible for any subsequent site or weather conditions that cause to “any applied system or product”. It must be clearly understood that where an instruction is given to proceed with specified Work where a delay notice has been issued, any such work carried out will not be covered under any warranty programme nor subject to any defect liability. Furthermore, any cleaning, clearing or environment conditions may result in the issue of a delay notice to the builder if required.
SURFACE CONDITION NOT SUITABLE
7.1 This clause shall apply where the Worksheet indicates that the Surface Condition is not suitable.
7.2 The Customer acknowledges that despite the advice of Vision Seal Pty Ltd to the contrary, the Customer requires the Services to be performed on a surface that is not suitable, advisable or conducive to the application of products or carrying out of services to a standard that will be fit for the purpose intended.
7.3 The Customer hereby waives all warranties in relation to the Services and indemnifies Vision Seal Pty Ltd from any claim, loss, damages, injury to person or property arising from Vision Seal Pty Ltd performing the Services to the fullest extent at law.
7.4 The Customer was given an option by Vision Seal Pty Ltd to have the surface made suitable by Vision Seal Pty Ltd carrying out additional Services at additional cost but declined to have the Services include preparing the surface to make it suitable. Vision Seal Pty Ltd, therefore, cannot provide any warranty or guarantee in relation to the provision of Services.
CANCELLATION OR TERMINATION
8.1 Cancellation or deferring the agreed starting date (could) result in costs charged to the Customer for the procured materials, plant, labour and consequential loss including the loss of any deposit unless approved in writing by Vision Seal Pty Ltd.
8.2 Vision Seal Pty Ltd reserves the right to cancel Work and terminate this Contract at any time and without fault prior to completing the Services. Vision Seal Pty Ltd will refund deposits where possible. Where Vision Seal Pty Ltd has commenced the Services it will refund the Customer pro-rata for the Services completed.
This Agreement may be amended by Vision Seal Pty Ltd from time to time. Notice is deemed given (whether or not actually received) when Vision Seal Pty Ltd displays the amended terms on its website https://www.visionseal.com.au
10. GOVERNING LAW
This Agreement is governed by the laws of Victoria and each party submits to the non-exclusive jurisdiction of the courts of Victoria.
12.1 If there is any default or failure by the Customer in making any payment, or on any breach or non-observance of any of the terms, covenants, conditions and warranties of this agreement, and notwithstanding that this agreement may be terminated or liable to termination at the instance of us, the guarantor will be responsible to Vision Seal Pty Ltd in respect of the Customer’s obligations in the same manner as if the Customer’s guarantor were the Customer under this agreement.
12.2 The guarantor covenants and agrees with Vision Seal Pty Ltd to indemnify Vision Seal Pty Ltd and keep Vision Seal Pty Ltd indemnified from and against all and any loss, damage, cost, charge or expense or other liability, however, incurred, by Vision Seal Pty Ltd in connection with or in consequence of or arising out of any breach or default or attempted breach or default by the Customer of any of the Customer’s obligations. This indemnity is a separate and distinct and principal obligation of the guarantor and will not be construed otherwise.
12.3 The guarantor will pay any money due to Vision Seal Pty Ltd by reason of the indemnity, on-demand. This includes all costs associated with the collection, including legal fees and any late payment charges.
LIMITATION OF LIABILITY:
13.1 Vision Seal Pty Ltd and Customer agree that section 23(3) of Schedule 2 of the Competition and Consumer Act 2010 (Cth) does not apply to this Agreement as the supply of goods or services are not to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.
13.2 Given that this Agreement is not a consumer contract in accordance with section 23(3) of the Consumer Act, provisions relating to ‘unfair terms’ of a consumer contract in Schedule 2 of the Consumer Act shall not apply to this Agreement to the extent permitted by law.
13.3 If it is found by a court of competent jurisdiction that this Agreement is a Consumer Contract under section 23(3) of Schedule 2 of the Consumer Act, then clauses 26.4 – 26.5 apply.
13.4 Vision Seal Pty Ltd liability for a breach of a condition or warranty implied by Schedule 2 Part 3-2 Division 1 of the Consumer Act is hereby limited to:
in the case of goods, any one or more of the following:
the replacement of the goods or the supply of equivalent goods;
the repair of the goods;
the payment of the cost of replacing the goods or of acquiring equivalent goods;
the payment of the cost of having the goods repaired; or
in the case of services:
the supplying of the services again; or
the payment of the cost of having the services supplied again.
13.5 Vision Seal Pty Ltd liability under Schedule 2, Part 3-2 Division 1 s55 of the Consumer Act is expressly limited to a liability to pay to the Customer an amount equal to:
the cost of replacing the goods;
the cost of obtaining equivalent goods; or
the cost of having the goods repaired,
whichever is the lowest amount.
13.6 Nothing in these Conditions shall limit or exclude Vision Seal Pty Ltd liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
fraud or fraudulent misrepresentation.
13.7 Subject to clause 6.1:
Vision Seal Pty Ltd shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
Vision Seal Pty Ltd total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount that Vision Seal Pty Ltd quoted the Customer to perform the Services.
13.8 The Customer shall indemnify Vision Seal Pty Ltd and hold it harmless from any consequential, indirect or special loss or damage, loss of actual or anticipated profits or revenue, loss of business, business interruption, waste costs the Customer has incurred including, without limitation, any loss or damage suffered by the Customer in relying on the result provided by Vision Seal Pty Ltd in connection with the Services where an Amenities Search would identify a cable, water, gas or pipeline that was not otherwise observable in the results supplied by Vision Seal Pty Ltd.
13.9 This clause 6 shall survive termination of the Contract.