TERMS AND CONDITIONS
1.1 Parties: These Terms are between M and G Eames Trust t/a Optical Repairs (ABN 32364518480), its successors and assignees (referred to as “we” and “us”) and you, the person, organisation or entity described in the Online Repair Form and/or Quote (referred to as “you”), each a “Party” and collectively the “Parties”. These Terms apply to all Services provided by us to you. ****
1.2 Acceptance: You have requested the Services set out in the Online Repair Form and/or Quote. You accept these Terms by:****
(a) confirming by email that you accept the Quote;
(b) instructing us to proceed with the Services; or
(c) making part or full payment for the Services.
1.3 You agree that these Terms, the Quote and the Repair Form, together, form the entire agreement under which we will supply the Services to you. Please read these Terms carefully. Please contact us if you have any questions. Purchasing the Services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed.
2.1 You may send us an order to perform the Services by notifying us in writing (either by email or by completing the Online Repair Form), or by contacting us over the phone, using the contact details on our website.
2.2 If required by you, or where we consider that it is more practicable, we may perform the Services at premises nominated by you, and we may charge you an additional amount to do so, at the rates notified by us to you, from time to time.
2.3 On placement of an order with us, you must deliver the Goods to our Delivery Address (and we will notify you of our receipt of the Goods), unless we otherwise agree, or the Online Repair Form indicates, that the Services will be performed at your nominated premises.
2.4 We will conduct an initial inspection of the Goods to determine the Services required, and to provide a quote for our Fee for performing the Services (“Quote”).
2.5 Unless otherwise agreed between the Parties, we will not commence performing the Services until you have:
(a) completed an Online Repair Form;
(b) delivered the Goods to the Delivery Address or we have otherwise conducted an initial inspection of the Goods at your premises; and
(c) confirmed your acceptance of our Quote for the Services in writing.
2.6 We will notify you of when we have completed the Services, and on receipt of our notice of the completion of the Services, you will be required to pay the Fee in full, in accordance with clause 3.
2.7 Where the Services are performed at our premises, on payment of the Fee in full in accordance with clause 3, we will either deliver the Goods to your Return Address or make the Goods available for retrieval by you, at your sole cost and risk.
2.8 All costs associated with our travel to your nominated premises, or the delivery or retrieval of the Goods (including, without limitation, any costs of insurance and any import or customs duties, taxes or levies) to and/or from the Delivery Address or the Return Address, will be your responsibility, and will be a debt due and payable to us by you.
2.9 The Fee and Services can be varied by written agreement between the Parties, including by email. If you request a variation to the Services, we have discretion as to whether we accept the variation. If we can perform the variation, we will inform you of any increase to the Fee.
3. PRICE, INVOICING AND PAYMENT
3.1 You agree to pay us the Fee in accordance with the Quote, at the times and using the payment method stipulated in our invoice. All amounts are stated in Australian dollars.
3.2 Fees are payable immediately on the date that we notify you that the Services have been completed in accordance with clause 2.
3.3 You acknowledge and agree that we are under no obligation to dispatch the Goods to you, or to allow you to retrieve the Goods from us, until you have paid all amounts due and payable to us under these Terms.
3.4 We may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.
3.5 If invoices are unpaid after the payment date, we have the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to us.
3.6 We reserve the right to report bad debts to independent credit data agencies.
3.7 If the Quote states that the Fees are an estimate only, you acknowledge that the final Fees may be more or less than the estimated amounts. We will endeavour to inform you of any material variation as it becomes apparent.
4. LATENT CONDITION
4.1 Upon us becoming aware of a Latent Condition, we will give you written notice of the general nature of the Latent Condition and our assessment of the additional work, resources, time and cost which we estimate will be necessary to deal with the Latent Condition.
4.2 As soon as possible on receipt of our written notice, you will direct us as to how to deal with the Latent Condition, and the Parties will agree to a variation to the Fee to deal with the Latent Condition.
4.3 You acknowledge and agree that we will be under no obligation to supply any additional work or services to deal with or overcome a Latent Condition until we have received your written direction under clause 4.2, and the Parties have agreed to the adjustment to the Fee in writing.
5. YOUR OBLIGATIONS AND WARRANTIES
5.1 You warrant that:
(a) there are no legal restrictions preventing you from agreeing to these Terms;
(b) you will cooperate with us, and provide us with information that is reasonably necessary to enable us to perform the Services as requested from time to time, 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 Services;
(e) you will inform us if you have reasonable concerns relating to our provision of Services under these Terms, with the aim that we will use all reasonable efforts to resolve your concerns;
(f) you will provide us (and our employees, agents and contractors) with such rights of access to your nominated premises (or any other premises), sufficient to enable us to perform the Services;
(g) you will ensure that your nominated premises are safe, free of harmful materials, infections or diseases, and otherwise complies with all relevant workplace health and safety laws;
(h) you are responsible for obtaining any access, consents, licences and permissions from other parties necessary for the Services to be provided, at your cost, and for providing us (and our employees, agents and contractors) with the necessary consents, licences and permissions;
(i) if applicable, you hold a valid ABN which has been advised to us; and
(j) if applicable, you are registered for GST purposes.
6. FEEDBACK AND DISPUTE RESOLUTION
6.1 If there is a dispute between the Parties in relation to these Terms, the Parties agree to the following dispute resolution procedure:
(a) The complainant must tell the respondent in writing, the nature of the dispute, what outcome the complainant wants and what action the complainant thinks will settle the dispute. The Parties agree to meet in good faith to seek to resolve the dispute by agreement between them at an initial meeting.
(b) If the Parties cannot agree to how to resolve the dispute at that initial meeting, any Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, the complainant will ask the Law Society of Queensland to appoint a mediator. The mediator will decide the time and place for mediation. The Parties must attend the mediation in good faith, to seek to resolve the dispute.
6.2 Any attempts made by the Parties to resolve a dispute pursuant to this clause 6 are without prejudice to other rights or entitlements of the Parties under these Terms, by law or in equity.
7. TERM AND TERMINATION.
7.1 We may terminate these Terms without cause, effective immediately, by providing you with written notice.
7.2 On termination of these Terms you agree that any payments made by you to us are not refundable to you, and you are to pay for all Services provided prior to termination, including Services which have been performed and have not yet been invoiced to you.
7.3 On completion of the Services, we will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to these Terms constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on termination of these Terms.
7.4 The accrued rights, obligations and remedies of the Parties are not affected by the termination of these Terms.
8. LIMITATION OF LIABILITY AND DISCLAIMERS
8.1 Warranties: To the maximum extent permitted by law, we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all
work and services is provided to you without warranties, representations and guarantees of any kind.
8.2 Availability: To the maximum extent permitted by law, we exclude any Liability or Claim, and we will not be liable for any Liability or Claim (whether under statute, contract, negligence or other tort, indemnity, or otherwise) caused or contributed to by:
(a) any Latent Conditions;
(b) acts or omissions of you (or any of your employees, agents, contractors, tenants, occupants, patrons or students) or any other third party;
(c) any advice, work, services or other things provided by third parties (whether or not they were referred to by us);
(d) implied or express guarantees, warranties, representations or conditions of any kind, which are not expressly stated in this Agreement;
(e) the Services being unavailable (for any reason), and any Liability or Claim arising from the Services being unavailable;
(f) any event or circumstance outside of our reasonable control; and
(g) any Claims or Liability for consequential loss, including for loss of profits, revenue, production, opportunity, access to markets, goodwill, reputation or any loss or damage relating to business interruption or otherwise, suffered by you or made against you, arising out of or in connection with this Agreement, even if we were expressly advised of the likelihood of such loss or damage.
8.3 Limitation: To the maximum extent permitted by law, our total liability arising out of or in connection with the Services, however arising, including under contract, tort including negligence, in equity, under statute or otherwise, is limited to us re-supplying the Services to you, or, at our option, us refunding to you the amount you have paid us for the Services to which your claim relates.
8.4 This clause 8 will survive the termination of these Terms.
9.1 You are liable for and agree to indemnify, defend and hold us harmless for and against any and all Claims and Liabilities arising directly or indirectly from, or connected to:
(a) Latent Conditions;
(b) any information provided by you that is not accurate, up to date or complete or is misleading or a misrepresentation;
(c) acts or omissions of you (or any of your employees, agents, contractors, tenants, occupants, patrons or students) or any other third party;
(d) any of our acts or omission (or that of our employees, agents or contractors), where that act or omission is consistent with a direction that has been given by you (or any of your employees, agents or contractors);
(e) your breach of these Terms; and
(f) your breach of any law or third party rights.
9.2 This clause 9 will survive the termination of these Terms.
10. CONTRACTUAL LIEN AND SECURITY INTEREST IN GOODS AND MATERIALS
10.1 If our Fees remain unpaid by you, or if you fail to retrieve the Goods from us, within 6 months of us notifying you that we have completed the Services in accordance with clause 2, we reserve our statutory rights to dispose of the Goods the subject of the Services, and to recover our costs or expenses (including the Fee) from such disposal of the Goods.
10.2 You acknowledge and agree that we hold a general lien over any Goods, materials or stock held in our possession, or otherwise the subject of the Services, under these Terms for the satisfactory performance of your obligations under these Terms.
10.3 You acknowledge and agree that these Terms and your obligations under these Terms create a registrable security interest in favour of us under the Personal Property Securities Act 2009 (Cth), and you consent to the security interest (and any other registrable interest created in connection with these Terms) being registered on the Personal Property Securities Register (and you must do all things to enable us to do so).
10.4 This clause 10 will survive termination of these Terms.
11.1 Privacy: We agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
11.2 Publicity: You consent to us stating that we provided Services to you, including but not limited to mentioning you on our website and in our promotional material.
11.3 Email: You acknowledge that we are able to send electronic mail to you and receive electronic mail from you. You release us from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to your system or any files by a transfer.
11.4 GST: If and when applicable, GST payable on the Fees for the Services will be set out on our invoices. You agree to pay the GST amount at the same time as you pay the Fees.
11.5 Relationship of Parties: These Terms are not intended to create a relationship between the Parties of partnership, joint venture, or employer-employee.
11.6 Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).
11.7 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
11.8 Force Majeure: We will not be liable for any delay or failure to perform our obligations under these Terms if such delay is due to any circumstance beyond our reasonable control.
11.9 Notices: Any notice required or permitted to be given by either Party to the other under these Terms will be in writing addressed to the Delivery Address. Any notice may be sent by standard post or email, and notices 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.
11.10 Jurisdiction & Applicable Law: These terms are governed by the laws of Queensland and the Commonwealth of Australia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland.
11.11 Entire Agreement: These Terms and any document expressly referred to in them represent the entire agreement between the Parties and supersede any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
12.1 Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute, whether indirect, incidental, special, consequential and/or incidental, and whether involving a third party or a Party to the Terms or otherwise.
12.2 Confidential Information includes confidential information about you, your credit card or payment details, and the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, technology, and other information of either Party whether or not such information is reduced to a tangible form or marked in writing as “confidential”.
12.3 Delivery Address means our address for the delivery of the Goods, as set out on our website or otherwise communicated to you.
12.4 Fees are set out in the Quote.
12.5 Goods as set out in the Quote and/or Online Repair Form.
12.6 GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.
12.7 Intellectual Property includes any and all present and future rights to intellectual and industrial property throughout the world, and includes all copyright and analogous rights, all rights in relation to inventions (including patent rights), patents, improvements, registered and unregistered trademarks, designs, any corresponding property rights under the laws of any jurisdiction, discoveries, circuit layouts, trade names, trade secrets, secret processes, know-how, concepts, ideas, information, processes, data or formulae, business names, company names or internet domain names, Moral Rights and any Confidential Information.
12.8 Latent Condition means any physical condition in the Goods that was not immediately obvious to us on our initial inspection of the Goods, and which results in us incurring additional cost or time in repairing the Goods or completing the Services.
12.9 Liability includes any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees and reasonable legal costs).
12.10 Moral Rights means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, as defined in the Copyright Act 1968 (Cth).
12.11 Online Repair Form means the online repair form, which is available on our website.
12.12 Personal Property Security Register means the register established under the Personal Property Securities Act 2009 (Cth).
12.13 Quote as defined in clause 2.3.
12.14 Return Address means your delivery address, as set out in the Online Repair Form.
12.15 Services are set out in the Quote.
12.16 Terms means these terms and conditions.