Terms and Conditions

Please read the following important terms and conditions (“Terms”) before you buy anything on our website and check that they contain everything which you want and nothing that you are not willing to agree to. By making a purchase on our Website, you agree to be bound by these Terms. These Terms set out our legal rights and responsibilities; your legal rights and responsibilities; and certain key information required by law. Nothing in these Terms limits, excludes or restricts any right, remedy or guarantee available to you under the Australian Consumer Law which cannot lawfully be limited, excluded or restricted.

(1) DEFINITIONS

In these Terms, the following definitions apply: “ACL” means the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth). “Business Day” means a day which is not a Saturday, Sunday, public holiday or bank holiday in Western Australia. “Buyer”, “you” or “your” means you, the person or organisation that is purchasing the Products through our Website. “Confirmation” means an email which we send you to confirm that we have accepted your order, in accordance with the “Ordering From Us” clause of these Terms. “Consumer Guarantees” means the guarantees that apply to the supply of goods and services under Part 3-2, Division 1 of the ACL, which cannot be excluded, restricted or modified. “Delivery Date” means any estimated date for delivery of your Products, as stated on our Website or otherwise communicated to you at the time of your purchase. “Goods and Services Tax” or “GST” means the tax imposed on a supply of goods or services in Australia, pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth) or any other applicable law. “Party” means either the Buyer or the Seller. “Parties” means the Buyer and the Seller collectively. “Price” means the total, GST-inclusive price of our Products as published on our Website at the time that you make your purchase. “Products” means the products that you are choosing to purchase through our Website which may include but is not limited to goods. “Seller”, “we”, “us” or “our” means us, Elite Pool Covers (ACN 664 663 834). “Terms” means these terms and conditions as updated from time to time. “Website” means our website located at www.poolcovers.com.au together with any affiliated websites or pages.

(2) INTERPRETATION

In these Terms, unless the context otherwise requires, the following rules of interpretation shall apply: (2.1) Words referring to one gender include every other gender. (2.2) Words referring to a singular number include the plural, and words referring to a plural include the singular. (2.3) If a word or phrase is defined in these Terms then any grammatical variations of that word or phrase have a corresponding meaning. (2.4) Words referring to a person or persons include firms, corporations, associations, partnerships, joint ventures, authorities, government bodies, organisations and other legal entities, and vice versa. (2.5) Any reference to time is a reference to time in Western Australia. (2.6) In the event that something must be done under these Terms on or before a particular date, if that date falls on a day which is not a Business Day, then that thing must be done on or before the next Business Day. (2.7) Any obligation on a Party not to do something includes an obligation not to allow that thing to be done. (2.8) Headings and titles are included in these Terms for convenience only and shall not affect the interpretation of these Terms. (2.9) Each Party must, at its own expense, take all reasonable steps and do all that is reasonably necessary to give full effect to these Terms and the events contemplated by it. (2.10) A reference to legislation or any part or provision of that legislation includes any subordinate legislation, any amended legislation, and any substituted legislation issued under that legislation. (2.11) A reference to an agreement or document is a reference to that agreement or document as amended, replaced, supplemented or novated from time to time. (2.12) A reference to a Party also includes that Party’s successors, assigns, legal personal representatives and/or any person that is substituted by way of novation. (2.13) Any reference to money or currency, unless otherwise specified, is a reference to Australian dollars. (2.14) If there is any inconsistency between these Terms and the ACL, the ACL prevails to the extent of the inconsistency.

(3) SALE

By making a purchase through our Website, you are buying the Products subject to these Terms and you agree to be legally bound by these Terms.

(4) ORDERING FROM US

(4.1) Here we set out how a legally binding contract between you and us is made. (4.2) You place an order on our site by doing the following: identifying the Product(s) you require, accepting the Price, providing your customer details, selecting a payment method, and submitting your order. (4.3) Please read and check your order carefully before submitting it. If you need to correct any errors, you can do so before submitting it to us. (4.4) When you place your order at the end of the online checkout process (e.g. when you confirm payment), we will acknowledge it by email. This acknowledgement does not, however, mean that your order has been accepted. (4.5) We may contact you to say that we do not accept your order. This is typically for the following reasons: (4.5.1) the Product(s) are unavailable; (4.5.2) we cannot authorise your payment; (4.5.3) you are not allowed to buy the Product(s) from us; (4.5.4) we are not allowed to sell the Product(s) to you; (4.5.5) the number of Product(s) you have ordered is too large; or (4.5.6) there has been a mistake on the pricing or description of the Product(s). (4.6) We will only accept your order when we send you an email to confirm this (“Confirmation”). At this point: (4.6.1) a legally binding contract will be in place between you and us; and (4.6.2) your order will be fulfilled. (4.7) You must be at least 18 years old to buy Products from our Website.

(5) PAYMENT

(5.1) We accept the following means of payment: Visa, Mastercard, PayPal. (5.2) We will do all that we reasonably can to ensure that all of the information you give us when paying for the Products is secure by using an encrypted and secure payment mechanism. However, in the absence of negligence on our part, we will not be legally responsible to you for any loss that you may suffer if a third party gains unauthorised access to any information that you give us. (5.3) Your credit card or debit card will only be charged when you confirm your order. (5.4) All payments by credit card or debit card need to be authorised by the relevant card issuer. From time to time we may also use extra security steps via Verified by Visa, Mastercard® SecureCode™ or equivalent services. (5.5) If we agree to deliver Products to you before receiving payment in full, and payment is not received by us by the agreed date, we may take any action reasonably available to us to recover the amount owing, including requiring payment within 7 days of a written request, charging interest at a reasonable commercial rate on overdue amounts, or requiring the return of the Products at our cost. Nothing in this clause affects your rights under the ACL. (5.6) The Price of the Products: (5.6.1) is in Australian dollars ($AUD); (5.6.2) includes GST at the applicable rate; and (5.6.3) does not include the cost of delivering the Products (delivery options and costs will be provided before you place your order).

(6) PRICES

(6.1) The Prices for our Products may be updated from time to time. (6.2) Up to date Prices for our Products are published on our Website. (6.3) By making a purchase on our Website, you agree to the up to date Price(s) for your selected Products, as published on our Website at the time of your purchase.

(7) TAXES, DUTIES AND OTHER CHARGES

(7.1) Our published Prices include GST. Unless otherwise stated, our Prices do not include insurance, shipping and/or delivery costs, and any import charges (such as customs duties or levies) that may apply if the Products are delivered outside Australia. (7.2) By making a purchase on our Website, you acknowledge that you are responsible for any insurance, shipping costs and import charges (such as customs duties or levies) that are not included in the Price, as disclosed to you before you complete your purchase.

(8) SHIPPING AND DELIVERY COSTS

(8.1) Unless otherwise stated, you agree to pay any applicable shipping and/or delivery costs related to your Products. (8.2) Shipping and/or delivery costs vary depending on your chosen delivery method and delivery location. (8.3) Applicable shipping and/or delivery costs are published on our Website at the time of your purchase. (8.4) By making your purchase, you agree to the applicable shipping and/or delivery costs as published on our Website or communicated to you at the time of your purchase.

(9) INSPECTION

(9.1) On receiving the Products, we recommend that you inspect them as soon as reasonably possible. (9.2) If you consider that the Products were damaged prior to delivery, we ask that you notify us within 48 hours of receiving the Products (“the Inspection Time”) so that we can investigate promptly, for example with the carrier. This is a practical timeframe to help us assist you quickly — it does not reduce or limit any right you have under the ACL. (9.3) If the Products were damaged prior to delivery and you notify us within the Inspection Time (with reasonable evidence of the damage), we will, in accordance with our obligations under the ACL, repair or replace the Products or provide a refund, at our cost, as required by law. (9.4) If you notify us of damage after the Inspection Time, we may still be able to assist you, and your rights under the ACL and any other applicable law are not affected or reduced by a late notification. The Inspection Time is a guide to help us respond quickly, not a cut-off on your legal rights.

(10) TITLE

Title to the Products will remain with us until we have received the Price in full, together with any applicable taxes, duties, shipping or delivery costs or other fees or charges payable to us by you in relation to your Products.

(11) OUR WARRANTIES

(11.1) We warrant that: (11.1.1) there are no legal restrictions preventing us from providing the Products to you in accordance with these Terms; (11.1.2) we are the sole legal and beneficial owner of the Products (or are otherwise authorised to sell them to you); (11.1.3) we are duly authorised to enter into these Terms; and (11.1.4) the Products are free of any encumbrances or adverse interests whatsoever (whether legal, equitable or otherwise), other than as disclosed to you. (11.2) This clause will survive the termination or expiration of these Terms.

(12) LIMITATION OF LIABILITY

(12.1) Notice to the Buyer: Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. (12.2) You may have certain rights under the ACL, or under other similar or related consumer protection laws, in addition to those set out in these Terms. (12.3) The ACL gives you certain rights, guarantees and remedies regarding the supply of goods or services by us, which cannot be excluded, modified or restricted (“Statutory Rights”). (12.4) Our liability to you is governed by the ACL and by these Terms. To the maximum extent permitted by law, and except as otherwise expressly provided in these Terms, we exclude all conditions and warranties implied by custom, law or statute, other than your Statutory Rights. (12.5) You are responsible for evaluating the Products and for determining whether they are fit for your particular purpose, unless you have told us that particular purpose and we have agreed the Products are suitable for it. (12.6) To the extent permitted by law, and subject always to your Statutory Rights, we are not liable for any indirect or consequential loss or damage arising from your use of the Products, including loss of revenue, profits, interruption of business, or loss of data. (12.7) Where your Statutory Rights apply, our liability in respect of any claim is limited, at our option and to the extent the ACL allows us to so limit it, to: (12.7.1) repair of the Products; (12.7.2) replacement of the Products; or (12.7.3) a refund of the Price paid. (12.8) Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of that right or provision. (12.9) Subject to clause (12.10) below, and always subject to your Statutory Rights, we are not liable (whether in contract, tort or otherwise) for: (12.9.1) loss of profit; (12.9.2) loss or corruption of data; (12.9.3) loss of use; (12.9.4) loss of production; (12.9.5) loss of contract; (12.9.6) loss of opportunity; (12.9.7) loss of savings, discount or rebate (whether actual or anticipated); or (12.9.8) harm to reputation or loss of goodwill. (12.10) Exceptions: (12.10.1) The limitations of liability set out above do not apply in respect of any indemnities given by either party under these Terms. (12.10.2) Nothing in these Terms limits the liability of either Party in respect of: (12.10.2.1) death or personal injury caused by negligence; (12.10.2.2) fraud or fraudulent misrepresentation; (12.10.2.3) your Statutory Rights or any other rights which cannot be excluded or limited by applicable law; or (12.10.2.4) loss caused by wilful misconduct. (12.11) This clause will survive the termination or expiration of these Terms.

(13) BREACH OF WARRANTY

(13.1) This clause deals with a breach of the warranties we give in clause 11 (for example, if we did not actually own or have the right to sell you the Products). It does not affect, limit or replace your Statutory Rights under the ACL, or any separate product warranty (such as a manufacturer’s or pro-rata warranty) that we publish for a specific Product — those are dealt with under the ACL and under that Product’s own warranty terms, and continue to apply regardless of anything in this clause. (13.1.1) If we breach a warranty in clause 11 (“Warranty Breach”), we will remedy the breach in accordance with our warranty policy for the relevant Product, which may include repair, replacement or another appropriate remedy. (13.1.2) To make a claim under this clause, you must tell us what the Warranty Breach is and notify Elite Pool Covers as soon as reasonably practicable after you become aware of it. (13.1.3) You can make a claim by contacting sales(at)poolcovers.com.au or calling 1300 623 731. (13.1.4) We are responsible for our own reasonable expenses associated with a successful Warranty Breach claim. (13.1.5) Any benefit provided to you under this clause is in addition to, and does not limit, any other rights and remedies available to you under the law, including your Statutory Rights. (13.2) We ask that you notify us of a suspected Warranty Breach within a reasonable time, and in any case we recommend within 5 Business Days of becoming aware of it, so that we can look into it promptly. A later notification does not, by itself, remove your rights under the ACL or under any separate product warranty we publish.

(14) CONFIDENTIALITY AND INTELLECTUAL PROPERTY

(14.1) For the purpose of this clause, “Intellectual Property” may include but is not limited to: any and all inventions, patents, utility models, design rights, copyright, know how, trade secrets, trade marks, trade names, confidential information, service marks and goodwill subsisting in, resulting from or relating to the Products, or any documents, drawings, specifications and/or patterns relating to them, either: (14.1.1) supplied by us to you in connection with the Products; or (14.1.2) supplied by us to you or disclosed to or obtained by you pursuant to or as a result of these Terms; or (14.1.3) resulting from the Products, unless otherwise expressly agreed by us in writing. (14.2) You will not, under any circumstances, acquire any right in or to any Intellectual Property referred to in this clause. (14.3) We have the right to apply any trade marks, trade names and/or service marks to the Products. You acknowledge that no rights are granted to you by your use of such trade marks, trade names and/or service marks. You must not deface, remove or obliterate any trade marks, trade names or logos we apply on or in relation to the Products. (14.4) If you acquire any such rights in any Intellectual Property, you must immediately inform us and take such steps as we reasonably require to assign those rights or vest that title in us. (14.5) Unless otherwise expressly agreed between the Parties, the terms of these Terms are confidential. (14.6) You must keep confidential, and not use without our prior written consent, any information supplied by us to you or disclosed to or obtained by you pursuant to or as a result of these Terms, and must not divulge it to any third party, except to the extent that information is or becomes public through no fault of yours, or disclosure is required by law or by a governmental or other regulatory body. (14.7) This clause will survive the termination or expiration of these Terms.

(15) INDEMNITY AND INSURANCE

(15.1) You will indemnify us, and keep us indemnified, against any losses, damages, liability, costs (including reasonable legal fees) and expenses we incur as a result of, or in connection with, your breach of these Terms. (15.2) You must, where reasonable given the nature of your dealings with us, maintain appropriate insurance with a reputable insurer to cover your obligations under these Terms and, on request, provide reasonable evidence of that insurance.

(16) RIGHTS OF THIRD PARTIES

No one other than a Party to these Terms has any right to enforce any of these Terms.

(17) TERMINATION

(17.1) In addition to any other rights set out in these Terms, if either Party defaults in its obligations under these Terms (“Defaulting Party”), the other Party can terminate the contract created between us under these Terms by giving written notice to the Defaulting Party. (17.2) Ending the contract under this clause does not affect our right to receive any money you owe us under these Terms, or any right or remedy either Party already has.

(18) WARRANTIES REGARDING LEGAL ADVICE

(18.1) Each Party (referred to in this clause as the “Warranting Party” as the context requires) warrants that: (18.1.1) it understands the terms of these Terms; (18.1.2) it has had the opportunity to obtain independent legal advice about these Terms and has either taken that advice or chosen not to; and (18.1.3) it has not been induced to enter into these Terms by any representation made by the other Party, except as provided in these Terms. (18.2) This clause will survive the termination or expiration of these Terms.

(19) DISPUTES

(19.1) We will try to resolve any disputes with you quickly and fairly. (19.2) If you are unhappy with the Product(s), our service, or any other matter, please contact us as soon as possible using the details in the “Contact Us” clause below. If we cannot resolve a dispute directly, you may also be able to contact the ACCC, Consumer Protection WA, or another relevant regulator or dispute resolution body for assistance.

(20) UPDATES TO THESE TERMS

(20.1) These Terms may be updated from time to time. (20.2) The latest version of these Terms is displayed on our Website and/or at the bottom of these Terms. (20.3) By making a purchase on our Website, you agree to these Terms, including any updates, as published on the Website at the time of your purchase. Updates apply to future purchases and do not affect your rights in relation to a purchase you have already made.

(21) GENERAL PROVISIONS

(22) GOVERNING LAW

These Terms are governed by the laws of Western Australia and any applicable Commonwealth law. Both Parties submit to the non-exclusive jurisdiction of the courts of Western Australia and the Commonwealth of Australia. Choosing this governing law does not remove or reduce any right you have under the ACL if you are in Australia.

(23) LANGUAGE

All communications made or notices given under these Terms must be in the English language.

(24) ASSIGNMENT

These Terms, or the rights granted under them, may not be assigned, sold, leased or otherwise transferred in whole or in part by either Party except with the other Party’s prior written consent.

(25) AMENDMENTS

These Terms may only be amended in writing signed by both Parties, other than an update we make under clause 20.

(26) RIGHTS, REMEDIES AND POWERS

Unless expressly provided in these Terms, any rights, remedies or powers a Party acquires under these Terms are in addition to any rights, remedies or powers that Party may otherwise have. Nothing in these Terms reduces, extinguishes, postpones or otherwise limits any such right, remedy or power, unless expressly provided in these Terms.

(27) SURVIVAL OF OBLIGATIONS

On termination or expiration of these Terms, any provision which by its nature would be expected to survive will remain in full force and effect, including any provision explicitly stated to survive termination and/or expiration.

(28) NO WAIVER

None of the terms of these Terms will be treated as waived by any act or omission of either Party. A waiver of any term is only effective if made in an additional written agreement between the Parties. Waiving one term or provision, or waiving it on one occasion, does not waive any other term or the same term on a future occasion. A Party’s failure to enforce a term does not waive that term or any other term.

(29) SEVERABILITY

If a provision of these Terms is held to be unenforceable, these Terms will be treated as amended to the extent necessary to make that provision, and the rest of these Terms, valid and enforceable. If a court declines to amend these Terms in that way, the invalidity or unenforceability of that provision does not affect the validity or enforceability of the remaining provisions, which will be enforced as if the offending provision had not been included.

(30) ENTIRE AGREEMENT

In relation to their subject matter, these Terms constitute the entire agreement between the Parties and supersede any prior or contemporaneous understanding, whether written or oral.

(31) COUNTERPARTS

These Terms may be executed in counterparts, all of which together constitute a single agreement. If the dates on any executed counterparts differ, these Terms take effect from the date the last Party signs.

(32) FURTHER ACTS

Each Party must, and must ensure its employees, agents and representatives do, all things reasonably required, and sign, execute and deliver all documents reasonably required, to give effect to these Terms and to the rights and obligations the Parties have under them.

(33) FORCE MAJEURE

Neither Party is liable to the other for any failure to perform due to causes beyond its reasonable control, including acts of God, acts of civil or military authorities, riots, embargoes, natural disasters, and other events outside that Party’s reasonable control. We are not liable for delivery delay or non-performance caused by labour or transportation disputes or shortages, material delays, or delays or non-performance by our suppliers. If we are unable to perform for any reason within 30 days after the expected Delivery Date, we may terminate these Terms and provide a full refund of any amount you have paid for the affected order.

(34) CONTACT US

(34.1) If you do not understand any of these Terms and want to talk to us about it, please contact us by: Email: sales(at)poolcovers.com.au Telephone: 1300 623 731. We may record calls for quality and training purposes. Calls are answered Monday to Friday, 8:30am – 4:00pm WST.

(35) LAST UPDATED

These Terms are current and up to date as of: [insert the date you publish this update]