STANDARD TERMS & CONDITIONS FOR ZIP HYDROCARE AGREEMENTS
In these Conditions, unless the context otherwise requires: “Acceptance Letter” means the letter from Zip to the Customer accepting the Customer’s Order; “Anniversary Date” means each anniversary of the Commencement Date;
“Commencement Date” means the later of the date specified as the commencement date in the Proposal and the date for commencement (if any) set out in Zip’s Acceptance Letter; “Customer” means the party described in the Proposal to whom the Goods and Services are to be provided;
“Customer’s Order” means the order provided by the Customer to Zip notifying Zip as to which of the options set out in the Proposal it wishes to proceed with; “Fees” means the fees quoted in the Proposal;
“Force Majeure” means strikes, fires, acts of God, war, riots or any acts of any body politic; “Goods” means the spare parts to be supplied to the Customer, described in the Proposal or otherwise as required for Zip to perform the Services for the Customer;
“GST” means the goods and services tax imposed in Australia by the GST Law; “GST Law” means A New Tax System (Goods & Services Tax) Act 1999;
“Initial Term” means the period of twelve (12) months from the Commencement Date; “Products” means the products described in the Proposal;
“Proposal” means the written proposal provided by Zip to the Customer; “Renewal Date” means during the Initial Term, the first anniversary of the Commencement Date and thereafter, each Anniversary Date;
“Services” means the services to be provided by Zip to the Customer as described in the Proposal and confirmed by Zip in its Acceptance Letter; “Special Conditions” means the special conditions attached to the Proposal;
“Term” means, subject to early termination in accordance with these Conditions, the Initial Term and any extension of that period pursuant to these Conditions; and “Zip” means Zip Heaters (Aust) Pty Limited ACN 000 578 727.
2. PROPOSAL 2.1 Unless previously withdrawn, a Proposal is valid for thirty (30) days from the date of issue or such other period as is stated in it and is subject to withdrawal or change at any time. Any Proposal is a mere invitation to treat and does not constitute a contractual offer.
2.2 The Customer’s Order shall be taken to be an offer incorporating all these Conditions. Zip reserves the right to accept the Customer’s Order in whole or in part. A contract for the supply of Goods and Services will not come into existence until Zip has signed its Acceptance Letter. 2.3 Once Zip has signed its Acceptance Letter, the Customer may not alter or modify the Customer’s Order unless the written consent of an authorised employee of Zip is obtained.
2.4 Zip reserves the right to decline to enter into a maintenance agreement program for any appliance which is broken or not operational at the time of inspection, is over 8 years old, or is otherwise in need of replacement. In such cases, Zip will recommend installation of new appliances that are covered by standard warranty.
3. GOODS AND SERVICES
3.1 Zip agrees to provide the Goods and Services for the Products at the frequency described in the Proposal on Business Days between the hours of 7.30am to 5.00pm during the Term in consideration of payment of the Fees by the Customer to Zip and subject to these Conditions. 3.2 Notwithstanding any other provision of these Conditions, Zip is under no obligation to provide the Goods and Services in cases where, in Zip’s opinion: work has been carried out on any of the Products by unauthorised persons; there has been negligent abuse or misuse of any of the Products; work was performed upon any of the Products contrary to the manufacturer’s or Zip’s specifications; Force Majeure has occurred; damage has been caused to any of the Products by the Customer or its servants, agents, consultants, or contractors; any of the Products have been removed or reinstalled by unauthorised persons; there have been fluctuations in electrical power, water supplies, water purity, ventilation and temperature; or use of any of the Products under environmental, power or operating conditions has been beyond the limits or constraints specified by Zip. If Zip chooses to undertake the Services or provide the Goods in the above circumstances, such goods or services, will be invoiced to the Customer separately.
3.3 Zip reserves the right to quote for replacement of product if the unit is deemed uneconomical to repair based on age (after 8 years) and condition. In this case a pro rata credit for the balance of the contract value on that unit will be refunded or credited toward the new product. 3.4 Zip reserves the right to deem a piece of equipment beyond economical repair from 8 years of the manufacture date.
3.5 Within Platinum, Gold & Silver HydroCare Agreements all units are covered prior to the 8th anniversary of manufacture date.
4.1 In consideration of Zip supplying the Goods and Services to the Customer, the Customer will pay the Fees, time being of the essence. Payment must be made by the end of the month following the month of the date of invoice. 4.2 The Customer acknowledges and agrees that the Fees are non-refundable notwithstanding early termination by either party under these Conditions.
4.3 Zip may vary the Fees on giving written notice to the Customer thirty (30) days before any Renewal Date. In the case of late payment of any amounts due and payable by the Customer to Zip under these Conditions, Zip may, after having notified the Customer suspend its performance of its obligations under these Conditions until payment of the outstanding amount is made to Zip.
5.1 The Customer must notify Zip in writing at least thirty (30) days before any Renewal Date that it does not wish the Services to be performed or Goods supplied after the Renewal Date. Any failure by the Customer to give such notice will result in the automatic extension of these Conditions for a period of twelve (12) months commencing on the day after the Renewal Date on the same terms and conditions as in these Conditions.
6. WARRANTY AND LIABILITY OF COMPANY
6.1 To the extent permitted by law, liability of Company breach of this contract by the Company or negligence of the Company or for breach of any conditions or warranty implied by the Competition and Consumer Act, 2010 and / or the Sales of Goods Act 1896 (as amended) shall be limited to one of the following at the Company’s option: In the case of supply of goods
(i) the replacement of the Goods or the supply of equivalent Goods; (ii) the repair of the Goods; or
(iii) the payment of the costs of replacing the Goods or of acquiring equivalent Goods; Or
(iv) the payment of the cost of having the Goods repaired. In the case of the supply of Services
(b) To the full extent permitted by law all other warranties or liabilities imposed or implied whether by law or by statute are expressly negatived. (c) Customer shall assume all risk and liability resulting from the use of the Goods either alone or in conjunction with other Goods or materials even if Company had or should have had prior knowledge of use to which the Goods would be put.
(d) To the extent permitted by law, the Company is not liable to the Customer for any In direct or consequential losses, loss of profits or use, any rectification costs or third party claims in connection with providing Goods.
7.1 The Customer may terminate any agreement for the supply of the Goods or Services provided the written approval of an authorised employee of Zip has been obtained and the Customer agrees to pay any loss as determined and specified by Zip. Any period of the term remaining will be payable in full. 7.2 Zip may immediately terminate its obligations under these Conditions, without incurring any liability to the Customer if:
(a) The Customer fails to pay the Fees by the due date; (b) the Customer fails to observe any of these Conditions and fails to rectify such non-observance to the reasonable satisfaction of Zip within fourteen (14) days of receipt of a notice of breach from Zip, specifying the nature of the breach; or
(c) the Customer is insolvent in the opinion of Zip or has an administrator appointed or a receiver appointed in respect of any or all of its assets, or an order is made or a resolution is passed for winding up or liquidation of the Customer. (d) The equipment under agreement is deemed beyond economical repair.
If any provision of these Conditions is void or unenforceable, that provision will be severed without invalidating the remaining provisions.
9. ENTIRE AGREEMENT
9.1 These Conditions, the Special Conditions, the Proposal, the Customer’s Order and the Acceptance Letter constitute the entire agreement of the parties about its subject matter and any previous agreements, understandings and negotiations on that subject matter cease to have any effect. 9.2 If there is any inconsistency between these Conditions, the Special Conditions, the Proposal, the Customer’s Order and the Acceptance Letter, the order of precedence of these documents is as follows: (a) The Acceptance Letter; (b) The Special Conditions;
(c) These Conditions; (d) The Proposal; and
(e) The Customer’s Offer.
10. GOVERNING LAW These Conditions are governed by the law in force in New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of that State.