These Custom Project Terms & Conditions apply to custom water slides, water features, BYOS projects, commercial installations, resort projects, large residential projects, design, engineering, fabrication, project management and installation works arranged by Aqua Action Slides Pty Ltd.
They do not apply to standard catalogue pool slide sales unless specifically stated in writing.
Aqua Action may engage independent contractors, suppliers, engineers, fabricators, installers and other specialists to perform all or part of the project works.
The customer acknowledges that Aqua Action may act as supplier, reseller, project coordinator, project manager or contracting party depending on the nature of the project.
The following Terms & Conditions form part of all applicable quotations, proposals and project agreements unless otherwise agreed in writing.
FULL PROJECT TERMS & CONDITIONS
DEFINITIONS
“Aqua Action” means Aqua Action Slides Pty Ltd ABN 23 009 653 454.
“Customer” means the person, company or entity named in the quotation.
“Project Works” means the design, engineering, manufacture, fabrication, supply, delivery, installation, project management, coordination and related services described in the quotation.
“Quotation” means the written proposal issued by Aqua Action.
“Contract Sum” means the total amount payable under the quotation.
ENTIRE AGREEMENT
These Terms & Conditions, together with the Quotation and any approved Variations, constitute the entire agreement between Aqua Action and the Customer.
No terms supplied by the Customer shall apply unless expressly accepted by Aqua Action in writing.
THIRD-PARTY CONTRACTORS
The Customer acknowledges that Aqua Action may engage independent contractors, subcontractors, suppliers, engineers, fabricators, installers and specialist consultants to perform all or part of the Project Works.
Aqua Action may act as supplier, reseller, project coordinator, project manager or principal contractor depending upon the nature of the project.
The Customer agrees that portions of the Project Works may be performed by third parties engaged by Aqua Action.
PROJECT MANAGEMENT AND COORDINATION
The Customer acknowledges that a portion of the Contract Sum may relate to project management, coordination, administration, supplier management, procurement, scheduling, consulting, design review, communication and other services provided by Aqua Action.
These services form part of the Project Works and are payable regardless of whether physical construction, fabrication or installation work is performed directly by Aqua Action.
The Customer acknowledges that Aqua Action is entitled to charge a margin, management fee or coordination fee as part of the Contract Sum.
QUOTATIONS
All quotations remain valid for thirty (30) days unless otherwise stated.
Aqua Action reserves the right to revise pricing prior to acceptance where supplier pricing, freight costs, exchange rates, material costs or regulatory requirements change.
CUSTOMER INFORMATION
The Customer warrants that all measurements, plans, drawings, photographs, specifications and information supplied are accurate and complete.
Any additional costs arising from inaccurate, incomplete or misleading information shall constitute a Variation and be payable by the Customer.
PAYMENT
Payment shall be made strictly in accordance with the payment schedule contained in the Quotation.
Unless otherwise stated, invoices are payable immediately upon issue.
Aqua Action may suspend design work, engineering, procurement, manufacturing, delivery or installation until overdue amounts are paid.
Interest may be charged on overdue amounts at a rate of 2% above the applicable penalty interest rate.
The Customer shall be responsible for all reasonable debt recovery, collection and legal costs incurred in recovering overdue amounts.
DEPOSITS
Deposits are payable to secure project scheduling, supplier commitments, engineering services, fabrication capacity, materials and procurement.
Once design, engineering, procurement, manufacturing or fabrication has commenced, deposits may be non-refundable to the extent of costs incurred.
DESIGNS AND INTELLECTUAL PROPERTY
All drawings, concepts, renderings, plans, engineering documents, specifications and related intellectual property prepared by or for Aqua Action remain the property of Aqua Action unless otherwise agreed in writing.
The Customer must not reproduce, distribute, provide to another supplier or use such material for construction without Aqua Action’s written consent.
VARIATIONS
Any change requested by the Customer after acceptance of the Quotation shall constitute a Variation.
Variations may include changes to dimensions, design, materials, finishes, engineering requirements, site requirements, installation requirements, project scope or project timing.
Variation costs shall be payable in addition to the Contract Sum.
SITE ACCESS
The Customer shall provide safe and reasonable access to the site for all parties engaged in the Project Works.
Delays or additional costs arising from restricted access shall constitute a Variation.
SITE CONDITIONS
The Customer acknowledges that unforeseen site conditions may be encountered during the Project Works.
These may include structural issues, hidden services, access limitations, engineering requirements, regulatory requirements, ground conditions or other matters not reasonably identifiable at the time of quotation.
Any resulting costs shall constitute a Variation.
ESTIMATED TIMEFRAMES
All manufacturing, fabrication, delivery, installation and completion dates are estimates only.
Timeframes may be affected by weather, supplier delays, freight delays, shipping delays, customs clearance, engineering requirements, labour shortages, regulatory approvals and other circumstances beyond Aqua Action’s reasonable control.
Aqua Action shall not be liable for delays outside its reasonable control.
WARRANTIES
Manufacturer warranties, supplier warranties and contractor warranties shall apply in accordance with their respective terms.
To the maximum extent permitted by law, Aqua Action’s liability is limited to the repair, replacement or rectification of defective goods or services.
Nothing in these Terms excludes any rights available under the Australian Consumer Law.
INSURANCE
The Customer shall maintain appropriate insurance for the site and any existing structures.
Contractors engaged by Aqua Action shall maintain their own insurances as required by law.
INDEPENDENT CONTRACTORS
The Customer acknowledges that Aqua Action may engage independent contractors, subcontractors, consultants, engineers, fabricators, installers and specialist service providers to perform all or part of the Project Works.
Each contractor engaged by Aqua Action shall remain responsible for the workmanship, services, licences, qualifications, certifications and insurances relating to the work they perform.
To the extent permitted by law, Aqua Action shall not be liable for defects, delays, omissions or failures arising solely from the acts or omissions of independent contractors where Aqua Action has exercised reasonable care in selecting and engaging those contractors.
Nothing in this clause excludes any rights or remedies available to the Customer under the Australian Consumer Law.
The Customer agrees that Aqua Action may rely upon information, warranties, specifications, certifications and completion advice provided by independent contractors engaged in connection with the Project Works.
LIMITATION OF LIABILITY
To the maximum extent permitted by law, Aqua Action shall not be liable for indirect, consequential or economic loss including loss of profit, loss of opportunity, business interruption or loss of use.
FORCE MAJEURE
Aqua Action shall not be liable for any failure or delay caused by events beyond its reasonable control including natural disasters, floods, storms, fire, industrial disputes, government restrictions, supplier failures, transport disruptions, material shortages or similar events.
TERMINATION
If the Customer cancels the project after acceptance of the Quotation, Aqua Action shall be entitled to recover all costs incurred up to the date of cancellation, including design, engineering, procurement, fabrication, project management, administration and coordination costs.
DISPUTE RESOLUTION
The parties shall first attempt to resolve disputes through good faith discussions.
If unresolved, the parties agree to participate in mediation before commencing court proceedings.
GOVERNING LAW
These Terms & Conditions shall be governed by the laws of New South Wales.
The parties submit to the exclusive jurisdiction of the courts of New South Wales.
ACCEPTANCE
Acceptance of a Quotation, payment of a deposit, execution of a contract or commencement of Project Works shall constitute acceptance of these Terms & Conditions.
