Trading Terms and Conditions
for Sale of Goods
These Trading Terms & Conditions (“Terms”) apply (unless otherwise previously agreed in writing) to the supply of Goods by the MySpa to a Customer
from time to time. Any supply of Goods by the MySpa to the Customer made after the date of acceptance of these Terms is a supply pursuant to
the supply agreement constituted by these Terms and the relevant order accepted by the MySpa (‘Agreement’) and any such supply does not give
rise to a new or separate agreement.
In these terms unless the contrary intention appears:
“Consequential Loss” means
“Additional Charges” includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest,
legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable
by the Customer to MySpa arising out of the sale of the Goods.
“Authority Approvals” means approvals from regulatory, government or building authorities including but not limited
to the council approvals and approvals for development applications and construction certificates.
- loss of revenue;
- loss of profit or anticipated profit;
- loss of business;
- loss of business reputation;
- loss of opportunities;
- loss of anticipated savings;
- loss of goodwill; and
Any other loss suffered by a party as a result of a breach of this Agreement that cannot reasonably be considered to arise directly
and naturally from that breach
“Construction Work” means landscape carpentry, installation of spas, excavation, decking, paving and other services provided
to the Customer. “Customer” means the person to or for whom the Goods are to be supplied by MySpa. “Delivery”
means in relation to Goods, that point in time when the Goods are collected by or delivered to the Customer by MySpa and in relation
to Services, when those Services have been carried out by or on behalf of MySpa. “Deposit” means 10% of the Purchase
Price. “Dial-Before-You-Dig” means the free national referral service (https://www.1100.com.au/)
designed to assist in preventing damage and disruption to Australia’s infrastructure networks.
“Energy Australia” means Energy Australia ACN 086 014 968, a private company that provides electricity and gas throughout Australia.
“Force Majeure Event” means any event outside the reasonable control of MySpa including acts of God, war, riots, strikes, lock outs, trade disputes, break downs, mechanical failures, interruptions of transport, government action or any other cause whatsoever, whether or not of a like nature to those specified above.
“Goods” means the goods sold to the Customer by MySpa and includes any services provided by MySpa to Customer.
“Hazardous Substances” means any substance, in whatever form, that is hazardous, dangerous or may cause harm including to persons and the environment.
“Insurance Policies” means XXXX Insurance.
"Intellectual Property Right" means any patent, registered design, patent, trademark, copy-right, trade secret or any other proprietary right of a third party or parties, registered or unregistered, in any country.
"MySpa" means MySpa Sydney, ACN 610 671 648.
“MySpa Personnel” means the officers, employees, independent contractor, and agents of MySpa.
"PPSA" means the Personal Property Securities Act 2009 (Cth).
“Progress Payment” means billing by stage where payment is to be received from Customer for part of the work that has been completed in accordance with the Quotation up to the point of invoicing.
“MySpa Purchase Promise Form” means the form to be signed by the Customer for purchase of spas and request for installation of spas. If the Customer requires installation or any kind of Construction Work, a separate Quotation will be provided.
“Purchase Price” means the list price for the Goods as charged by MySpa at the date of delivery or such other price as may be agreed by MySpa and the Customer prior to delivery of the Goods.
“Quotation” means a quotation given to the Customer in connection with the Construction Work, whether in writing or otherwise.
“Services” means any services provided by MySpa for or on behalf of the Customer including Construction Work.
“Site” means the site where Goods are delivered by MySpa to the Customer.
“Variation” means a change or changes made or requested by the Customer.
“Variation Quotation” means extra work not quoted on original Quotation that will be charged on separate quote with separate invoice.
“WHS Policy” means the Work Health and Safety Policy of MySpa.
- Order for Goods
- An order given to MySpa is binding on MySpa and the Customer, if:
- a written acceptance is signed for or on behalf of MySpa; or
- the Goods are supplied by MySpa in accordance with the order.
- An acceptance of the order by MySpa is then to be an acceptance of these Terms by MySpa and the Customer and these Terms will override any conditions contained in the Customer’s order. MySpa reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No order is binding on MySpa until accepted by it.
- An order which has been accepted in whole or in part by MySpa cannot be cancelled by the Customer without obtaining the prior written approval of MySpa, which it may refuse in its absolute discretion.
- MySpa will complete the scope of work outlined within the Quotation. The Customer will pay for additional costs for Variations.
- Any changes made by or additional work proposed by the Customer during the course of performance of work outlined in the Quotation by MySpa constitute a Variation or Variations. The Customer will be notified in writing by MySpa or any additional costs (or savings) and of any delays caused by the Variation and the Customer is responsible for approving or rejecting a Variation.
- Variation Quotation will need to be signed by the Customer before commencement of work. The Customer accepts that any prior work schedule will become void upon request of Variation and MySpa will make every effort to carry out Variations as timely as possible.
- MySpa is not liable for any delays caused by an Variation request and reserves the right to charge the Customer for any costs arising from any such delays.
- Any Variations that in the foreseeable future will be completed beyond the scope of the work may be treated as a new project at the discretion of MySpa.
- Limitation of Liability
- MySpa liability is limited to, to the extent permissible by law and at MySpa’s option;
- in relation to the Goods:
- the replacement of the products or the supply of equivalent products;
- the repair of the products;
- the payment of the cost of replacing the products or of acquiring equivalent products; or
- The payment of the cost of having the products repaired.
- Where the Goods are services:
- the supply of service again; or
- the payment of the cost of having the services supplied again.
- Any products provided by MySpa to the Customerthat are prone to decay and deterioration, including but not limited to natural products, are not covered under the warranty.
- Goods that are supplied as seconds or floor stocks will not be covered by warranty after the Customer has paid the Deposit.
- Any claims to be made against MySpa for short delivery of Goods must be lodged with MySpa directly in email within 7 days of the delivery date. MySpa must be given the first opportunity to rectify the problem and failing to do so will void your warranty with MySpa.
- To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these Terms are excluded and MySpa is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate Customer for:
- any increased costs or expenses;
- any loss of profit, revenue, business, contracts or anticipated savings;
- any loss or expense resulting from a claim by a third party; or
- any special, indirect or consequential loss or damage of any nature whatsoever caused by MySpa’s failure to complete or delay in completing the order to deliver the Goods.
- The times quoted for delivery are estimates only and MySpa accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of MySpa.
- Risk in accepting the Goods passes on delivery to the Customer.
- All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods.
- Return of Goods will not be accepted by MySpa except by prior agreement in writing with MySpa. Any Goods returned will be subject to a restocking charge of 10% of the Purchase Price of those Goods.
- If the Customer cannot accept delivery of Goods, the Customer will pay for a storage fee of $85 per week from the date of spa landing in MySpa Sydney’s warehouse.
- Price and Payment
- For purchase of Goods, the Customer must pay the Deposit, the remainder of the Purchase Price and the Additional Charges to MySpa.
- MySpa will commence manufacturing Goods as soon as the Customer has paid the Deposit to MySpa.
- The Deposit is non-refundable after 3 days of signing the Purchase Form.
- MySpa reserves the right to alter the Purchase Price if Deposit is not paid in full.
- The Customer must pay the remaining payment upon completion of manufacturing and no later than 1 day prior to the Delivery of Goods. MySpa has the sole discretion to determine the time of payment.
- The Customer must pay all fees, charges and any redelivery charges.
- If Construction Work is required by the Customer,
- the Customer must pay the Deposit for Construction Work prior to commencement of works, unless otherwise agreed in writing;
- the Customer must pay the Progress Payment to MySpa for stages of job that have been completed within 7 days of completion. MySpa has the sole discretion to determine the timing of Progress payment.
- If Progress Payment is not received within 7 calendar days,
- MySpa will not be liable or responsible in any way for damages caused by equipment, materials on Site, or any other objects placed at the Site by MySpa.
- Any materials or equipment that go bad or deteriorate over the waiting for payment time will be replaced.
- The Customer will be liable for all costs incurred.
- If Progress Payment is not received within 30 calendar days, MySpa has the right to cancel or stop any further work that is included in the Quotation or Variation Quotations.
- All payments or payments associated with cancelled job due to non-payment must be paid to MySpa within 7 calender days from completion or cancelation of works. If payment is not received within 7 calendar days of quoted works being completed, MySpa will commence legal proceedings and the Customer will bear all legal costs incurred.
- If the Customer is in default, MySpa may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights.
- All payments are due within 7 days of the date of invoice. Interest is charged at the rate of 5% compounded weekly from the expiry of that period until the date payment is received by MySpa.
- All amounts payable by the Customer under these Terms must be paid without set-off or counter claim of any kind.
- Credit Checks
- MySpa has the right to check all references for credit checks.
- Intellectual Property
- All branding and artwork provided by the Customer is the intellectual property of the Customer. Artwork and branding supplied will only be used for the purposes of satisfying these Terms.
- Customer warrant that the use by MySpa of any intellectual property provided by Customer to MySpa so that MySpa may provide the Goods and/or services under these Terms does not infringe any Intellectual Property Rights.
- Customer must indemnify and keep indemnified MySpa against any and all liabilities, expenses, losses and/or damages including attorney’s fees whether direct, indirect or consequential, arising from a third party, alleging that the Goods infringe the Intellectual Property Right of the third part due to MySpa’s use in the production of the Goods of any branding, artwork or other intellectual property provided to MySpa by Customer.
- No Liability
- MySpa will not be responsible for:
- the dates of spa manufacturing completion;
- operating, clearing airlocks, maintaining the Goods to the manufacturer’s instruction (in accordance with the owner’s manual provided at the time of handover).
- loss, injury, or death of Customer’s pets;
- pet droppings at the Site. It is the Customer’s responsibility to to clean the Site prior to commencement of work in accordance with the WHS Policy;
- rubbish disposed at the Site by public or the Customer. The Customer may give MySpa the permission to remove the rubbish and the cost of removal will be added to the final invoice to the Customer;
- where the Customer does not or chooses not to apply for a building certificate or any other certificates from local or state governing councils. It will be the responsibility of the Customer to check all council or state legislation before commencement of works. MySpa will not be responsible of any approvals and any hold-up because of such, the Customer will be charged, hold-up fees of $1,100 compounded weekly at an interest rate of 5% unless there is other work to carry on to;
- all documentation including but not limited to those related to council approvals, Dial-Before-You-Dig, and Energy Australia.
- things that are not visible, including but not limited to stumps, old concrete, rock, sandstone, or any other objects at, behind or underneath the Site. All costs associated with such items will be charged to the final invoice.
- damages to existing surrounds (including but not limited to fencing, paving, retaining walls) that may be caused outside of the Construction Work period under an hourly rate contract.
- damages to existing water pipes, power lines, gas or phone if the pipes, lines or anything was incorrectly installed by other contractors;
- any defects after 7 days of completion of work;
- time spent on waiting for delivery or pick-up of materials. The Customer will be charged at our hourly rate for time spent on picking up materials on the way or from the Site;
- any issues in relation to existing structural and non-structural property (e.g. retaining walls, fences, paving etc) installed by the Customer himself/herself or people other than MySpa Personnel;
- inaccurate measuring of the work such as M2, M3 or L/MM2 if the work is based on an undrafted plans provided by the Customer or a free-of-charge construction plans provided by MySpa.
- Consulting fees
- The Customer will pay a consulting fee at an hourly rate of $99 for any consulting services provided to the Customer on or off the Site.
- Access to Site
- The Customer will give or procure for MySpa access to the Customer’s or any site at which the Goods and/or Services are to beDelivered and the Site will be presented to MySpa in a clean and safe state.
- The Customer will pay for training on the Site at an hourly rate of $99, unless otherwise agreed.
- Supply of Power
- The Customer must arrange for a licensed electrician preferably with experience in outdoor spa installation to be in charge of supply of power.
- If the supply of power is not connected when spa handover (Training) is done, the Customer must pay an additional $120 as call-out fee if the Customer requires more training.
- Time sheets
- Upon signing of the Quotation, the Customer gives MySpa’s Site supervisor permission to sign all time sheets on behalf of the Customer only if the Customer is not home or cannot be found.
- Work Health and Safety (WHS)
- MySpa strictly adheres to the guideline of its comprehensive WHS Policy. Restriction and denial of access to any MySpa site shall be at the sole discretion of MySpa.
- MySpa accepts no responsibility for any injury or death of any person or persons outside of the control of MySpa where MySpa procedures have not been strictly followed and/or unauthorised access to Site has been made. MySpa takes no responsibility for any loss and/or damage to property caused by the neglect of persons not under the direct control of MySpa.
- MySpa reserves the right to deny access to any Site under the direct control of MySpa to any contractor provided by the Customer, building owner, manager, or any other individual or entity (often as a nominated or preferred contractor) if the contractor is unable to provide appropriate WHS documentation, unwilling to work within the guideline of MySpa’s WHS Policy or has in the past acted in a manner which is unacceptable to MySpa. Any costs associated with this breach will be borne by the Customer including any extra over costs associated with the engaging of a new contractor to fulfil those duties.
- Except for MySpa Personnel, the Customer or any other parties must not enter the Site during Construction Work.
- Hazardous Substances
- Unless the Customer specifies otherwise, the Customer warrants that any Site on or in which MySpa is required to provide the Goods shall be free of Hazardous Substances. If in breach of this warranty, Hazardous Substances are detected by MySpa prior to or after access to the Site, MySpa accepts no liability for any costs or claims arising from or related to those Hazardous Substances including for costs of delay or detection and removal of such substances.
- Documentation, CAD Files, Drawings and Files
- All documentation, CAD files, drawings and files ("Files”) including any Intellectual Property within those Files remain the property of MySpa and are to be read with in conjunction with the scope of works contained in the Quotation or as agreed between the parties.
- The customer must not distribute the Files to any parties without prior written consent of MySpa.
- The Customer indemnifies MySpa from any liability, loss, damage or legal costs resulting from unauthorised distribution or misuse of any Files.
- To the extent permissible at law, MySpa gives no warranties and/or guarantees (expressed or implied) for the Files when used for any purpose other than that for which they were intended (as determined by MySpa in its sole discretion) or for the use by any other party other than MySpa.
- Authority Approvals
- Unless agreed otherwise, the obtaining of Authority Approvals remain the sole responsibility of the Customer and MySpa accepts no liability or responsibility for claims, loss or damage arising from or in any way related to a failure of Authority Approvals being sought, obtained or granted.
- Intellectual Property
- All branding and artwork provided by the Customer is the intellectual property of the Customer. Artwork and branding supplied will only be used for the purposes of satisfying these Terms.
- The Customer warrants that the use by the Company of any intellectual property provided by Customer to MySpa so that MySpa may provide the Goods and/or Services under these Terms does not infringe any Intellectual Property Rights.
- The Customer must indemnify and keep indemnified MySpa against any and all liabilities, expenses, losses and/or damages including attorney’s fees whether direct, indirect or consequential, arising from a third party, alleging that the Goods infringe the Intellectual Property Right of the third party due to MySpa’s use in the production of the Goods of any branding, artwork or other intellectual property provided to MySpa by the Customer.
- Retention of Title
- All materials and Goods supplied by MySpa belong to MySpa until payments in full for the materials and Goods have been made by the Customer.
- Ownership, title and property in the Goods and in the proceeds of sale of those Goods remains with MySpa until payment in full for the Goods and all sums due and owing by the Customer to MySpa on any account has been made. Until the date of payment:
- the Customer has the right to sell the Goods in the ordinary course of business;
- the Goods are always at the risk of the Customer.
- The Customer is deemed to be in default immediately upon the happening of any of the following events:
- if any payment to MySpa is not made promptly before the due date for payment;
- if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to MySpa is dishonoured;
- In the event of a default by the Customer, then without prejudice to any other rights which MySpa may have at law or under this Agreement:
- MySpa or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods.
- MySpa may recover and resell the Goods;
- if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, MySpa may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of MySpa and the Customer may be ascertained. MySpa must promptly return to the Customer any goods the property of the Customer and MySpa is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.
- In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for MySpa. Such part will be an amount equal in dollar terms to the amount owing by the Customer to the MySpa at the time of the receipt of such proceeds. The Customer will pay MySpa such funds held in trust upon the demand of MySpa.
- Separately, Customer hereby charges all its right, title and interest to and in the proceeds of sale of the Collateral (as defined in the PPSA) as original collateral, or any of it, in favour of the MySpa.
- Defined terms in this clause have the same meaning as given to them in the PPSA.
- MySpa and the Customer acknowledge that these Terms constitute a Security Agreement and entitle the MySpa to claim:
- a Purchase Money Security Interest (“PMSI”) in favour of MySpa over the Collateral supplied or to be supplied to the Customer as Grantor pursuant to these Terms; and
- a security interest over the proceeds of sale of the Collateral referred to in (a) as original collateral.
- The goods supplied or to be supplied under these Terms fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms.
- The Proceeds of sale of the Collateral referred to in clause 19.2.1 falls within the PPSA classification of “Account”.
- MySpa and the Customer acknowledge that MySpa, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to Customer pursuant to these Terms and in the relevant Proceeds.
- To the extent permissible at law, the Customer:
- waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to MySpa.
- agrees to indemnify MySpa on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
- registration or amendment or discharge of any Financing Statement registered by or on behalf of MySpa; and
- enforcement or attempted enforcement of any Security Interest granted to MySpa by the Customer;
- agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;.
- agrees to waive its right to do any of the following under the PPSA:
- receive notice of removal of an Accession under section 95;
- receive notice of an intention to seize Collateral under section 123;
- object to the purchase of the Collateral by the Secured Party under section 129;
- receive notice of disposal of Collateral under section 130
- receive a Statement of Account if there is no disposal under section 132(4);
- receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
- receive notice of retention of Collateral under section 135;
- redeem the Collateral under section 142; and
- reinstate the Security Agreement under section 143.
- All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
- The Customer acknowledges that MySpa may have a common law or statutory lien over the Goods. In the event that there is no such lien, the Customer agrees that MySpa has a general lien over all Goods including the right to sell the same where the Customer is in default under these Terms.
- The Customer agrees that upon the on-sale of any Goods to third parties, it will:
- inform any third party involved of these Terms;
- inform any third party of MySpa’s product warranties if any; and
- not make any misrepresentations to third parties about the Goods.
- Trustee Capacity
- If Customer is the trustee of a trust (whether disclosed to MySpa or not), Customer warrants to MySpa that:
- Customer enters into this Agreement in both its capacity as trustee and in its personal capacity;
- Customer has the right to be indemnified out of trust assets;
- Customer has the power under the trust deed to enter into this Agreement; and
- Customer will not retire as trustee of the trust or appoint any new or additional trustee without first advising the MySpa.\
- To the full extent permitted by law, Customer will indemnify MySpa and keep MySpa indemnified from and against any liability and any loss or damage MySpa may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by Customer or its representatives.
- Force Majeure
- MySpa will not be liable for the consequences of any failure or delay in performing any of its obligations under these Terms to the extent that such failure or delay is due directly or indirectly to any Force Majeure Event.
- If a Force Majeure Event arises, MySpa will notify the Customer in writing of the Force Majeure Event and the likely impact it will have on MySpa’s performance under these Terms. If the Force Majeure Event affects the capacity of MySpa to complete its material obligations under these terms in a timely manner, MySpa may by notice to the Customer terminate this Agreement without any liability whatsoever on its part arising from that termination.
- These Terms are to be construed in accordance with the laws from time to time in the State of New South Wales and the Commonwealth of Australia. The parties submit to the non-exclusive jurisdiction of the Courts of New South Wales, Australia and any courts which may hear appeals from those courts in respect to any proceedings in connection with these Terms.
- These Terms contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
- Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.
- No waiver of any of these Terms or failure to exercise a right or remedy by MySpa will be considered to imply or constitute a further waiver by MySpa of the same or any other term, condition, right or remedy.
- Unless otherwise provided, all dollars amounts referred to in this Terms are in Australian Dollars.