SUPPLY TERMS & CONDITIONS
1. GENERAL
1.1. This agreement sets out the terms by which you can engage Queensborough Project Management Pty. Ltd, (ACN 116 400 241) trading as POOL-PASS.
1.2. These Services are provided to you in relation to the inspection of Swimming Pool & Spa Safety Barriers conducted in accordance with the Building Act 1993, Part 9A - Div. 2 of the Building Regulations 2018, National Construction Code, and Australian Standard 1926.1.
1.3. By engaging POOL-PASS Services for your Pool & Spa Barrier Inspection, you agree to the following Terms & Conditions.
2. DEFINITIONS AND INTERPRETATION
In these Terms and Conditions:
“Client” means the person(s), or entities, (notably The Owner of the land on which a swimming Pool or Spa is located) receiving the Services, based these Terms. Also
“Fees” means the fixed price charged, in Australian Dollars, for the specific Services as detailed within this document.
“Inspector” means a POOL-PASS representative duly trained, qualified and registered with the Victorian Building Authority (VBA) under the category of Building Inspector - Pool Safety.
“Receiving Services” means the process of engaging Us to provide Services, receiving Services from Us, or relying upon Services provided by Us, however the circumstances of engagement, receipt or reliance may arise. The phrase “Receives Services” has a corresponding meaning.
“Services” means any report, document, certificate, information, product, good or the like provided by Us to a Client in exchange for consideration.
“Subject Property” includes all buildings, structures, improvements, fixtures, objects, and spaces within the scope of the Services.
“Terms” means these Supply Terms and Conditions, upon which We agree to supply Services to the Client.
“We” and “Us” means Queensborough Project Management Pty. Ltd, (ACN 116 400 241) of 100 Douglas Parade, Williamstown, Victoria, 3016 trading as POOL-PASS. The word “Our” has a corresponding, possessive meaning.
3. PARTIES
3.1. If a party consists of more than one (1) person, these Terms bind each of them severally and any two (2) or more of them jointly.
3.2. An obligation, representation, or warranty in favour of more than one (1) person is for the benefit of them severally and jointly.
3.3. A party which is a Trustee is bound both personally and in its capacity as a Trustee.
4. OWNER’S OBLIGATIONS
4.1. The Owner of the land on which a swimming Pool or Spa is located:
4.1.1. must demonstrate that the Pool and Spa Safety Barrier complies with the Regulations and applicable Standards.
4.1.2. must take all reasonable steps to ensure that a Barrier restricting access to the swimming Pool or Spa is properly maintained.
4.1.3. must apply to the relevant Council/Authority for registration of the swimming Pool or Spa.
4.1.4. must provide Us with a copy of the Notice of Registration relating to the swimming Pool or Spa, which they receive from their Council.
4.1.5. warrants the accuracy of the information given to Us, including but not limited to the Owner’s name, address, phone number, and email address.
4.1.6. agrees to provide the POOL-PASS Inspector with unfettered access to the Pool and associated safety Barrier area during the inspection and will not obstruct the Inspector in carrying out their functions.
4.1.7. agrees to indemnify the POOL-PASS Inspector and agrees that the Inspector acts with the Owner’s authority when carrying out his survey, inspection, functions.
4.1.8. acknowledges that the Owner must lodge the Pool and Spa Barrier Compliance Certificate with a relevant Council no later than 30 days after the date of issue, of the certificate, by the Inspector.
4.1.9. acknowledges that the inspection will be terminated, without refund, if a risk to the POOL-PASS Inspector becomes manifest.
4.2. Where a non-compliance is identified within Our Inspection Report, and subsequent rectification work has been undertaken, it is the obligation of the Client/Owner to contact Us to confirm that The Works are complete and the previously agreed date for re-inspection is still valid.
4.3. If the Client decides to reschedule the inspection time, they must inform the POOL-PASS Inspector a minimum of 48 hours before the inspection, or they will be liable to pay the full Inspection Fee.
4.4. The Owner agrees to pay the advertised $297.00(+GST) for the first inspection, and an additional $143.00(+GST) if a re-inspection is required, or a subsequent site attendance fee of $143.00(+GST), to achieve confirmation of compliance; leading to the issuance of a Certificate of Pool and Spa Barrier Compliance.
4.5. The Owner agrees to pay the Inspection Fee at the time of booking.
4.6. The Owner agrees to indemnify and keep indemnified POOL-PASS from and against all suits, actions, claims or demands by any person for any loss, damages, expense, or costs incurred in connection with our Services.
4.7. The Owner agrees that Our liability shall be limited to the direct cost of Pool & Spa Barrier inspection and not include any legal or other fees.
5. OUR OBLIGATIONS
5.1. POOL-PASS endeavours to ensure that all Services provided are done so with reasonable skill, care and attention, conducted to the standards, as reasonably expected, of a Registered Building Inspector in the category of Pool Safety, operating under the auspices of the Victorian Building Authority (VBA).
5.2. Where a Pool/Spa Safety Barrier meets the relevant standard requirements, a Certificate of Barrier Compliance (Form 23) will be issued by the POOL-PASS Inspector.
5.3. If a Barrier does not meet the applicable Barrier Standard, the POOL-PASS Inspector will give the Owner of the land on which the swimming Pool or Spa is located, a notice in writing in accordance with item (5.4) of these terms.
5.4. In the event that items surveyed are non-compliant with the applicable version of Australian Standard (AS1926.1), the POOL-PASS Inspector is obliged to advise the Owner of the details relating to the non-compliance and to provide the Owner with the following information:
5.4.1. State that the Barrier must be brought into compliance with the applicable Barrier standard; and
5.4.2. Specify the matters in respect of which the Barrier does not comply with the applicable Standard; and
5.4.3. Specify the date (being not more than 60 days after the Owner receives the Notice) by which the matters specified (in the resultant Inspection Report) must be brought into compliance with the applicable Barrier Standard; and
5.4.4. Agree with the Owner as to the specific date and time that the POOL-PASS Inspector proposes to re-inspect the Barrier, to check for compliance with the applicable Barrier Standard.
5.5. Following the required re-inspection of the Barrier, if the POOL-PASS Inspector is satisfied that the Barrier complies with the applicable Barrier standard, the Inspector will issue a Certificate of Pool and Spa Barrier Compliance (Form 23) and provide the Owner with the relevant Certificate as soon as practicable.
5.6. The Certificate of Compliance (Form 23) is deemed to have been given and served if sent to the email address provided by the Owner, within the booking request.
5.7. If, however, following the required re-inspection of the Barrier, the POOL-PASS Inspector is not satisfied that the Barrier complies with the applicable Barrier standard, but that reasonable progress/effort has been made in bringing the Barrier into compliance, the Inspector may give another notice in writing, which allows for an additional 7 days. A further re-inspection must be undertaken, within that 7-day extension period.
5.8. If, after the expiration of the additional 7-day period, the Inspector is still not satisfied that the barrier complies with the applicable Barrier standard, the Inspector must lodge a Certificate of Pool and Spa Barrier non-compliance (CBNC - Form24) with the relevant Council and also provide a copy to the Owner.
6. SCOPE OF SERVICES & SPECIFIC LIMITATIONS ON POOL SAFETY BARRIER INSPECTIONS
6.1. POOL-PASS offers a Swimming Pool & Spa Safety Barrier Inspection conducted in accordance with the Building Act 1993, Part 9A - Div. 2 of the Building Regulations 2018, National Construction Code, and Australian Standard 1926.1.
6.2. POOL-PASS will inspect only those items required to be inspected under the relevant Australian Standards (and associated instruments) pertaining to Swimming Pool & Spa Barrier Inspections.
6.3. POOL-PASS Services comprise a non-intrusive, visual and functionality inspection only. These inspections are a ‘point-in-time’ inspection. The findings contained within the associated Inspection Report will be based on the prevailing conditions at the time of inspection.
6.4. POOL-PASS will not conduct quantitative strength testing of the Pool Barrier as a part of the Service.
6.5. POOL-PASS will not perform repairs as part of the Service.
6.6. POOL-PASS Service does not include, or constitute, any type of design, or design-solution.
6.7. POOL-PASS will only inspect areas (within the scope of the Services) to which safe, reasonable, appropriate, and unobstructed access is available (‘accessible areas’).
6.8. The extent of accessible areas will be determined by Us, based on the conditions encountered at the time of inspection. We will not be able to report on the condition of, nor take into account, the impact of circumstances existing in areas other than accessible areas and the Client accepts that all Services are subject to that limitation.
6.9. Where entry to an area is denied to Us, including any area which is locked and for which keys are not provided, and including areas of private property to which access is not expressly permitted, that area will not be an accessible area.
6.10. The Services provided do not include Services which require specialised trade or other qualifications, or those which are the subject of specific maintenance contractor arrangements.
6.11. In providing the Services, and forming the conclusions as stated in any report or other documentation which is produced as an outcome of the Services, We may rely upon information provided by the Client and by third parties without independently verifying that information. Therefore, conclusions formed, on the basis of such information, are qualified and may only be relied upon on the basis that they are formed in reliance upon the completeness and accuracy of information provided to Us.
6.12. POOL-PASS will not attempt to predict the effect of any future conditions which may ultimately prevail on the inspected Assets or site installation.
6.13. Once the Client has requested a subsequent Pool Safety Barrier Re-Inspection, POOL-PASS will conduct that subsequent Pool Safety Barrier Re-Inspection within 60 days; as prescribed by the Regulations.
6.14. POOL-PASS will not conduct re-inspections where the initial inspection has been conducted by another Company, Inspector, Entity.
6.15. Without limiting the generality of the Release and Indemnity (below) POOL-PASS is expressly not liable for any consequential loss suffered by the Client, or any Third Party, as a result of a Certificate of Pool and Spa Barrier Compliance not being issued by a particular date.
7. ENGAGEMENT OF SERVICES
7.1. POOL-PASS requires from you, the following, when you order a Pool Safety Inspection:
7.1.1. A completed Instruction-to-Proceed, as per the ‘Bookings’ function available via the POOL-PASS website links.
8. PAYMENT OF FEES
8.1. Payment for Our fees for Pool & Spa Barrier Inspections must be made at the time of booking the inspection, to the following bank account:
Account name: Queensborough Project Management Pty Ltd
BSB: 063 - 247
Account No.: 10120614
Reference: Address & street name of Property to be inspected
8.2. All Fees are as listed on our website https://www.pool-pass.com.au/ or otherwise by mutual agreement.
8.3. Payment by Credit Card may be made online, via our website, as per the ‘Bookings’ function.
9. CANCELLATIONS
9.1. Where the Client notifies POOL-PASS that it wishes to cancel its order for the Service, and We have not attended the subject property for the purpose of completing the Service, a 100% refund may apply, at Our discretion.
9.2. Where the Client notifies Us that it wishes to cancel its order for the Service, and We have attended the subject property for the purpose of completing the Service, but have not prepared the report, document, certificate, information, product, good or the like constituting the Service, a part refund may apply, at Our discretion.
9.3. Where the Client notifies Us that it wishes to cancel its order for the Service, and We have prepared the report, document, certificate, information, product, good or the like constituting the Service, whether or not it has been delivered to the Client, no refund shall apply.
10. BINDING TERMS AND CONDITIONS
10.1. These Terms are binding upon the Client.
10.2. For the avoidance of doubt, if the acceptance of the Services is made by a Body Corporate Manager, or other equivalent Agent, they agree that they are duly authorized, as the Client’s Agent, to alter the Client’s legal relations. They thereby agree, as Agent of the Principal, to bind the Client to these Terms.
10.3. The only warranties, guarantees, conditions and/or obligations which are binding upon Us are:
10.3.1.1. those set out in these Terms;
10.3.1.2. those otherwise agreed to in writing by Us; and
10.3.1.3. those, if any, which are implied at Law and which cannot be excluded.
10.4. In the event that a provision of the Terms proves to be illegal or unenforceable pursuant to any applicable statute or rule of law, or for any other reason, such provision is deemed severed to the fullest extent possible without affecting the legality of the remaining provisions.
11. GENERAL AND APPLICABLE LAW
In the case of Services provided to Clients, the Terms shall be governed and interpreted according to the laws of the State of Victoria, and each Client consents to submit to the jurisdiction of the Courts of the State of Victoria and the Commonwealth of Australia.
12. ENTIRE AGREEMENT AND UNDERSTANDING
12.1. These Terms, any quotation or work order form, set out the whole of the agreement and understanding between the Client and POOL-PASS with respect to the provision of Services by Us to the Client and supersede any and all earlier understandings and agreements, whether oral or written, between the Client and POOL-PASS.
12.2. No supplementation, amendment or modification of these Terms shall be binding unless it is in writing and signed for, or by, both the Client and POOL-PASS.
12.3. By Receiving Services, the Client accepts these Terms without reservation.
13. MODIFICATION OF TERMS
13.1. We reserve the right to change these Terms from time to time.
13.2. We will take reasonable steps to inform the Client of changes to the Terms.
13.3. The Client confirms that notification of amended Terms on Our website, or reference to the Terms in any material provided to the Client, will be reasonable steps by Us to inform the Client.
14. FORCE MAJEURE
If a party is prevented or delayed in complying with an obligation (other than to pay money) by an event beyond its reasonable control, performance by it, of that obligation, is suspended during that time, but only to the extent that compliance is prevented or delayed.
15. WAIVER
15.1. Our delay in exercising a power or right shall not operate as a waiver of that power or right.
15.2. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
15.3. A waiver is not effective unless in writing.
15.4. Waiver of a power or right is effective only in respect of the specific instance to which that waiver relates and for the specific purpose for which that waiver is given.
16. ACCEPTANCE
16.1. The Client must inspect and review the Services immediately upon them being delivered, provided, or made available, and must within ten (10) Business Days after the date of the Services being delivered, provided, or made available give written notice to POOL-PASS of any claim that the Services are not in accordance with the Terms, or otherwise unsatisfactory.
16.2. If the Client fails to give the notice in Clause 16.1 above, then to the extent permitted by law, the Services must be treated as being accepted by the Client.
17. RELEASE AND INDEMNITY
17.1. The Client hereby acknowledges that POOL-PASS will not be responsible for any consequences, damage or injury arising from any matters outside the general Scope of Services listed herein, or from any matters subject to a specific limitation within these Terms.
17.2. The Client shall indemnify and hold harmless POOL-PASS from any and all claims, liabilities and costs arising out of any negligence, or of any act or omission, on the part of the POOL-PASS employees, sub-contractors, assignees, or agents or in producing, delivering the Services ordered hereunder.
17.3. In the case of mistakes brought to Our attention within 12 months of the Client Receiving Services, We will amend the report once at no cost. This may include multiple amendments to a single report, where these are processed concurrently. Further amendments, or amendments beyond the 12-month time frame will be charged at a rate of $150.00(+GST) per hour, and if a re-inspection is required POOL-PASS will charge an additional fee of $143.00(+GST).
17.4. We exclude any warranties, conditions, or undertakings, express or implied, that are legally able to be excluded.
17.5. In the case of breach of those warranties, conditions, or undertakings, express or implied, that cannot be excluded by law, the Client agrees that We have a maximum liability, in relation to loss, damage or injury of any nature howsoever arising, limited to, at Our option:
17.5.1. in relation to Services:
17.5.2. the supply of the Services again;
17.5.3. the payment of the cost of having the Services supplied again.
18. RESTRICTIONS ON ACCESSING AND USING THE SERVICES
18.1. The Client agrees that all Services are provided only for the purpose of assisting bona fide POOL-PASS paying Clients, and agrees:
18.1.1. Only to use the Services for the Client’s own bona fide purposes in their capacity as Our Client;
18.1.2. Not to use the Services in any way for the purpose of gaining a competitive advantage over Us;
18.1.3. Not to communicate, broadcast, reproduce, disseminate, disclose, supply or otherwise provide all or any part of the Services to any third party without Our prior written consent;
18.1.4. When using the Services in any way, to only use the whole of the information, or Report, so that the contextual integrity of the information, or Report, is preserved;
18.1.5. Only to apply, use, or rely upon the Services for the purpose and within the scope and limitations provided for in these Terms and in any Report and/or subject matter comprising the Services;
18.1.6. That the Client does not hold copyright or any other intellectual property rights in the Services, other than the minimum rights necessary to use the Services for the purposes for which they are provided;
18.1.7. Not to do any act which constitutes an infringement of copyright or any other intellectual property right without Our express permission in writing.
18.2. No rights in relation to the Services, including but not limited to the rights to use or rely upon the Services, pass to the Client until the money owing for those Services has been paid in full.
19. CLIENT’S INFORMATION AND PRIVACY
19.1. The Victorian Building authority (VBA) recommends for Swimming Pool Inspectors to keep all inspection records, including reports, photographs and test results relied upon, for at least 10 years.
19.2. The Client thereby authorises POOL-PASS to retain, organize and use such related information about the Client, provided to Us in the context of the Services, for any purpose connected with Our business, wherein legal requirements may necessitate such retention.
We will make relevant information in our records, about the Client, available to the Client upon written request, to the full extent required by applicable privacy legislation.