Terms and Conditions
Trinity INTL Pty Ltd and
Silent Bull Pty Ltd T/A Pool Doctor Triclean-
Terms & Conditions of Trade
1.1. "Pool Doctor" shall mean Trinity INTL Pty Ltd and Silent
Bull Pty Ltd (as a trustee for Triclean Family Trust) T/A Pool
Doctor Triclean, its successors and assigns or any person acting on
behalf of and with the authority of Trinity INTL Pty Ltd and Silent
Bull Pty Ltd (as a trustee for Triclean Family Trust) T/A Pool
1.2. "Customer" shall mean the Customer (or any person acting on
behalf of and with the authority of the Customer) as described on
any quotation, work authorisation or other form as provided by Pool
Doctor to the Customer.
1.3. "Guarantor" means that person (or persons) who agrees to be
liable for the debts of the Customer on a principal debtor
1.4. "Goods" shall mean all Goods supplied by Pool Doctor to the
Customer (and where the context so permits shall include any supply
of Services as hereinafter defined) and are as described on the
invoices, quotation, work authorisation or any other forms as
provided by Pool Doctor to the Customer.
1.5. "Services" shall mean all Services supplied by Pool Doctor
to the Customer and includes any advice or recommendations (and
where the context so permits shall include any supply of Goods as
1.6. "Price" shall mean the Price payable for the Goods as
agreed between Pool Doctor and the Customer in accordance with
clause 4 of this contract.
2. The Competition and Consumer Act
2010 ("CCA") and Fair Trading Acts ("FTA")
2.1. Nothing in this agreement is intended to have the effect of
contracting out of any applicable provisions of the CCA or the FTA
in each of the States and Territories of Australia (including any
substitute to those Acts or re-enactment thereof), except to the
extent permitted by those Acts where applicable.
2.2. Where the Customer buys Goods as a consumer these terms and
conditions shall be subject to any laws or legislation governing
the rights of consumers and shall not affect the consumer's
3.1. Any instructions received by Pool Doctor from the Customer
for the supply of Goods and/or the Customer's acceptance of Goods
supplied by Pool Doctor shall constitute acceptance of the terms
and conditions contained herein.
3.2. Where more than one Customer has entered into this
agreement, the Customers shall be jointly and severally liable for
all payments of the Price.
3.3. Upon acceptance of these terms and conditions by the
Customer the terms and conditions are binding and can only be
amended with the written consent of Pool Doctor.
3.4. The Customer shall give Pool Doctor not less than fourteen
(14) days prior written notice of any proposed change of ownership
of the Customer or any change in the Customer's name and/or any
other change in the Customer's details (including but not limited
to, changes in the Customer's address, facsimile number, email, or
business practice). The Customer shall be liable for any loss
incurred by Pool Doctor as a result of the Customer's failure to
comply with this clause.
3.5. Goods are supplied by Pool Doctor only on the terms and
conditions of trade herein to the exclusion of anything to the
contrary in the terms of the Customer's order notwithstanding that
any such order is placed on terms that purport to override these
terms and conditions of trade.
3.6. Where the Customer requesting or organising Pool Doctor to
supply Goods is acting on behalf of any third party, and that third
party is intended to be responsible for the payment of the Price,
then in the event that the third party does not pay for the Goods
when due, the Customer acknowledges that they shall be liable for
the payment of the Price as if they had contracted with Pool Doctor
on their own behalf.
4. Price and Payment
4.1. At Pool Doctor's sole discretion the Price shall be
(a) as indicated on invoices provided by Pool Doctor to the
Customer in respect of Goods supplied; or
(b) Pool Doctor's quoted Price (subject to clause 4.2) which
shall be binding upon Pool Doctor provided that the Customer shall
accept Pool Doctor's quotation in writing within thirty (30)
4.2. Pool Doctor reserves the right to change the Price in the
event of a variation to Pool Doctor's quotation.
4.3. Pool Doctor may submit detailed progress payment claims in
accordance with Pool Doctor's specified payment schedule. Such
payment claims may include the reasonable value of authorised
variations and the value of any materials delivered to the site but
not yet installed.
4.4. At Pool Doctor's sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Customers shall be due seven (7) days
following the end of the month in which a statement is posted to
the Customer's address or address for notices.
4.5. Time for payment for the Goods shall be of the essence and
will be stated on the invoice or any other forms. If no time is
stated then payment shall be due seven (7) days following the date
of the invoice.
4.6. Payment will be made by cash, or by cheque, or by bank
cheque, or by credit card (plus a surcharge of up to three percent
(3%) of the Price), or by direct credit, or by any other method as
agreed to between the Customer and Pool Doctor.
4.7. GST and other taxes and duties that may be applicable shall
be added to the Price except when they are expressly included in
5. Delivery of Goods
5.1. At Pool Doctor's sole discretion delivery of the Goods
shall take place when:
(a) the Customer takes possession of the Goods at Pool Doctor's
(b) the Customer takes possession of the Goods at the Customer's
nominated address (in the event that the Goods are delivered by
Pool Doctor or Pool Doctor's nominated carrier).
5.2. The Customer shall make all arrangements necessary to take
delivery of the Goods whenever they are tendered for delivery. In
the event that the Customer is unable to take delivery of the Goods
as arranged then Pool Doctor shall be entitled to charge a
reasonable fee for redelivery.
5.3. Delivery of the Goods to a third party nominated by the
Customer is deemed to be delivery to the Customer for the purposes
of this agreement.
5.4. Pool Doctor may deliver the Goods by separate instalments.
Each separate instalment shall be invoiced and paid in accordance
with the provisions in these terms and conditions.
5.5. The failure of Pool Doctor to deliver shall not entitle
either party to treat this contract as repudiated.
5.6. Pool Doctor shall not be liable for any loss or damage
whatsoever due to failure by Pool Doctor to deliver the Goods (or
any of them) promptly or at all, where due to circumstances beyond
the control of Pool Doctor.
6.1. If Pool Doctor retains ownership of the Goods nonetheless,
all risk for the Goods passes to the Customer on delivery.
6.2. If any of the Goods are damaged or destroyed following
delivery but prior to ownership passing to the Customer, Pool
Doctor is entitled to receive all insurance proceeds payable for
the Goods. The production of these terms and conditions by Pool
Doctor is sufficient evidence of Pool Doctor's rights to receive
the insurance proceeds without the need for any person dealing with
Pool Doctor to make further enquiries.
6.3. Where the Customer expressly requests Pool Doctor to leave
Goods outside Pool Doctor's premises for collection or to deliver
the Goods to an unattended location then such Goods shall be left
at the Customer's sole risk and it shall be the Customer's
responsibility to ensure the Goods are insured adequately or at
6.4. Where Pool Doctor is required to install the Goods the
Customer warrants that the structure of the premises or equipment
in or upon which these Goods are to be installed or erected is
sound and will sustain the installation and work incidental thereto
and Pool Doctor shall not be liable for any claims, demands,
losses, damages, costs and expenses howsoever caused or arising
should the premises or equipment be unable to accommodate the
7.1. The Customer shall ensure that Pool Doctor has clear and
free access to the work site at all times to enable them to
undertake the works. Pool Doctor shall not be liable for any loss
or damage to the site unless due to the negligence of Pool
7.2. If the pool site is locked, a key must be provided to Pool
Doctor to gain access. In the event that Pool Doctor is unable to
access the site then Pool Doctor will leave a note to advise the
Customer that they have attempted to undertake the Services and may
charge the Customer a fee to revisit the site.
7.3. It is the Customer's responsibility to restrain any
dangerous animals that may pose a threat to Pool Doctor. Pool
Doctor reserves the right to refuse entrance to the site where, in
Pool Doctor's opinion, entering the property may pose a threat to
Pool Doctor's safety.
8.1. Pool Doctor and the Customer agree that ownership of the
Goods shall not pass until:
(a) the Customer has paid Pool Doctor all amounts owing for the
particular Goods; and
(b) the Customer has met all other obligations due by the
Customer to Pool Doctor in respect of all contracts between Pool
Doctor and the Customer.
8.2. Receipt by Pool Doctor of any form of payment other than
cash shall not be deemed to be payment until that form of payment
has been honoured, cleared or recognised and until then Pool
Doctor's ownership or rights in respect of the Goods shall
8.3. It is further agreed that:
(a) where practicable the Goods shall be kept separate and
identifiable until Pool Doctor shall have received payment and all
other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from
Pool Doctor to the Customer Pool Doctor may give notice in writing
to the Customer to return the Goods or any of them to Pool Doctor.
Upon such notice the rights of the Customer to obtain ownership or
any other interest in the Goods shall cease; and
(c) Pool Doctor shall have the right of stopping the Goods in
transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to Pool Doctor
then Pool Doctor or Pool Doctor's agent may (as the invitee of the
Customer) enter upon and into land and premises owned, occupied or
used by the Customer, or any premises where the Goods are situated
and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such
time as Pool Doctor has received payment in full for the Goods then
the Customer shall hold any proceeds from the sale or disposal of
the Goods, up to and including the amount the Customer owes to Pool
Doctor for the Goods, on trust for Pool Doctor; and
(f) the Customer shall not deal with the money of Pool Doctor in
any way which may be adverse to Pool Doctor; and
(g) the Customer shall not charge the Goods in any way nor grant
nor otherwise give any interest in the Goods while they remain the
property of Pool Doctor; and
(h) Pool Doctor can issue proceedings to recover the Price of
the Goods sold notwithstanding that ownership of the Goods may not
have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the
Customer, if the Goods are converted into other products, the
parties agree that Pool Doctor will be the owner of the end
9. Personal Property Securities Act
9.1. In this clause:
(a) financing statement has the meaning given to it by the
(b) financing change statement has the meaning given to it by
(c) security agreement means the security agreement under the
PPSA created between the Customer and Pool Doctor by these terms
and conditions; and
(d) security interest has the meaning given to it by the
9.2. Upon assenting to these terms and conditions in writing the
Customer acknowledges and agrees that these terms and
(a) constitute a security agreement for the purposes of the
(b) create a security interest in:
(i) all Goods previously supplied by Pool Doctor to the Customer
(ii) all Goods that will be supplied in the future by Pool
Doctor to the Customer.
9.3. The Customer undertakes to:
(a) promptly sign any further documents and/or provide any
further information (such information to be complete, accurate and
up-to-date in all respects) which Pool Doctor may reasonably
(i) register a financing statement or financing change statement
in relation to a security interest on the Personal Property
(ii) register any other document required to be registered by
the PPSA; or
(iii) correct a defect in a statement referred to in clause
9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, Pool Doctor for all
expenses incurred in registering a financing statement or financing
change statement on the Personal Property Securities Register
established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a
security interest without the prior written consent of Pool
(d) not register, or permit to be registered, a financing
statement or a financing change statement in relation to the Goods
in favour of a third party without the prior written consent of
Pool Doctor; and
(e) immediately advise Pool Doctor of any material change in its
business practices of selling the Goods which would result in a
change in the nature of proceeds derived from such sales.
9.4. Pool Doctor and the Customer agree that sections 96, 115
and 125 of the PPSA do not apply to the security agreement created
by these terms and conditions.
9.5. The Customer hereby waives its rights to receive notices
under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the
9.6. The Customer waives its rights as a grantor and/or a debtor
under sections 142 and 143 of the PPSA.
9.7. Unless otherwise agreed to in writing by Pool Doctor, the
Customer waives its right to receive a verification statement in
accordance with section 157 of the PPSA.
9.8. The Customer shall unconditionally ratify any actions taken
by Pool Doctor under clauses 9.3 to 9.5.
10. Security and Charge
10.1. Despite anything to the contrary contained herein or any
other rights which Pool Doctor may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the
owner of land, realty or any other asset capable of being charged,
both the Customer and/or the Guarantor agree to mortgage and/or
charge all of their joint and/or several interest in the said land,
realty or any other asset to Pool Doctor or Pool Doctor's nominee
to secure all amounts and other monetary obligations payable under
these terms and conditions. The Customer and/or the Guarantor
acknowledge and agree that Pool Doctor (or Pool Doctor's nominee)
shall be entitled to lodge where appropriate a caveat, which caveat
shall be withdrawn once all payments and other monetary obligations
payable hereunder have been met.
(b) should Pool Doctor elect to proceed in any manner in
accordance with this clause and/or its sub-clauses, the Customer
and/or Guarantor shall indemnify Pool Doctor from and against all
Pool Doctor's costs and disbursements including legal costs on a
solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to
irrevocably nominate constitute and appoint Pool Doctor or Pool
Doctor's nominee as the Customer's and/or Guarantor's true and
lawful attorney to perform all necessary acts to give effect to the
provisions of this clause 10.1.
11.1. The Customer shall inspect the Goods on delivery and shall
within seven (7) days of delivery (time being of the essence)
notify Pool Doctor of any alleged defect, shortage in quantity,
damage or failure to comply with the description or quote. The
Customer shall afford Pool Doctor an opportunity to inspect the
Goods within a reasonable time following delivery if the Customer
believes the Goods are defective in any way. If the Customer shall
fail to comply with these provisions the Goods shall be presumed to
be free from any defect or damage. For defective Goods, which Pool
Doctor has agreed in writing that the Customer is entitled to
reject, Pool Doctor's liability is limited to either (at Pool
Doctor's discretion) replacing the Goods or repairing the Goods
except where the Customer has acquired Goods as a consumer within
the meaning of the Competition and Consumer Act 2010 (CWlth) or the
Fair Trading Acts of the relevant state or territories of
Australia, and is therefore also entitled to, at the consumer's
discretion either a refund of the purchase price of the Goods, or
repair of the Goods, or replacement of the Goods.
11.2. Goods will not be accepted for return other than in
accordance with 11.1 above.
12.1. For Goods not manufactured by Pool Doctor, the warranty
shall be the current warranty provided by the manufacturer of the
Goods. Pool Doctor shall not be bound by nor be responsible for any
term, condition, representation or warranty other than that which
is given by the manufacturer of the Goods.
12.2. To the extent permitted by statute, no warranty is given
by Pool Doctor as to the quality or suitability of the Goods for
any purpose and any implied warranty, is expressly excluded. Pool
Doctor shall not be responsible for any loss or damage to the
Goods, or caused by the Goods, or any part thereof however
13. Maintenance Services
13.1. Maintenance Services performed by Pool Doctor shall
continue until terminated by way of the Customer providing Pool
Doctor with sufficient written notification. The Customer shall be
liable for any loss incurred by Pool Doctor as a result of the
Customer's failure to comply with this clause.
14. Default and Consequences of
14.1. Interest on overdue invoices shall accrue daily from the
date when payment becomes due, until the date of payment, at a rate
of two and a half percent (2.5%) per calendar month (and at Pool
Doctor's sole discretion such interest shall compound monthly at
such a rate) after as well as before any judgment.
14.2. In the event that the Customer's payment is dishonoured
for any reason the Customer shall be liable for any dishonour fees
incurred by Pool Doctor.
14.3. If the Customer defaults in payment of any invoice when
due, the Customer shall indemnify Pool Doctor from and against all
costs and disbursements incurred by Pool Doctor in pursuing the
debt including legal costs on a solicitor and own client basis and
Pool Doctor's collection agency costs.
14.4. Without prejudice to any other remedies Pool Doctor may
have, if at any time the Customer is in breach of any obligation
(including those relating to payment) Pool Doctor may suspend or
terminate the supply of Goods to the Customer and any of its other
obligations under the terms and conditions. Pool Doctor will not be
liable to the Customer for any loss or damage the Customer suffers
because Pool Doctor has exercised its rights under this clause.
14.5. If any account remains overdue after thirty (30) days then
an amount of the greater of twenty dollars ($20.00) or ten percent
(10%) of the amount overdue (up to a maximum of two hundred dollars
($200.00)) shall be levied for administration fees which sum shall
become immediately due and payable.
14.6. Without prejudice to Pool Doctor's other remedies at law
Pool Doctor shall be entitled to cancel all or any part of any
order of the Customer which remains unfulfilled and all amounts
owing to Pool Doctor shall, whether or not due for payment, become
immediately payable in the event that:
(a) any money payable to Pool Doctor becomes overdue, or in Pool
Doctor's opinion the Customer will be unable to meet its payments
as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its
creditors or proposes or enters into an arrangement with creditors,
or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise)
or similar person is appointed in respect of the Customer or any
asset of the Customer.
15.1. Pool Doctor may cancel any contract to which these terms
and conditions apply or cancel delivery of Goods at any time before
the Goods are delivered by giving written or verbal notice to the
Customer. On giving such notice Pool Doctor shall repay to the
Customer any sums paid in respect of the Price. Pool Doctor shall
not be liable for any loss or damage whatsoever arising from such
15.2. In the event that the Customer cancels delivery of Goods
the Customer shall be liable for any loss incurred by Pool Doctor
(including, but not limited to, any loss of profits) up to the time
of cancellation (which shall be required in writing).
15.3. Cancellation of orders for Goods made to the Customer's
specifications or non-stocklist items will definitely not be
accepted, once production has commenced.
16. Privacy Act 1988
16.1. The Customer and/or the Guarantor/s (herein referred to as
the Customer) agree for Pool Doctor to obtain from a credit
reporting agency a credit report containing personal credit
information about the Customer in relation to credit provided by
16.2. The Customer agrees that Pool Doctor may exchange
information about the Customer with those credit providers either
named as trade referees by the Customer or named in a consumer
credit report issued by a credit reporting agency for the following
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the
(c) to exchange information with other credit providers as to
the status of this credit account, where the Customer is in default
with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can
include anything about the Customer's creditworthiness, credit
standing, credit history or credit capacity that credit providers
are allowed to exchange under the Privacy Act 1988.
16.3. The Customer consents to Pool Doctor being given a
consumer credit report to collect overdue payment on commercial
credit (Section 18K(1)(h) Privacy Act 1988).
16.4. The Customer agrees that personal credit information
provided may be used and retained by Pool Doctor for the following
purposes (and for other purposes as shall be agreed between the
Customer and Pool Doctor or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Pool Doctor, its agents or
(c) analysing, verifying and/or checking the Customer's credit,
payment and/or status in relation to the provision of Goods;
(d) processing of any payment instructions, direct debit
facilities and/or credit facilities requested by the Customer;
(e) enabling the daily operation of Customer's account and/or
the collection of amounts outstanding in the Customer's account in
relation to the Goods.
16.5. Pool Doctor may give information about the Customer to a
credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a
credit information file containing information about the
16.6. The information given to the credit reporting agency may
(a) personal particulars (the Customer's name, sex, address,
previous addresses, date of birth, name of employer and driver's
(b) details concerning the Customer's application for credit or
commercial credit and the amount requested;
(c) advice that Pool Doctor is a current credit provider to the
(d) advice of any overdue accounts, loan repayments, and/or any
outstanding monies owing which are overdue by more than sixty (60)
days, and for which debt collection action has been started;
(e) that the Customer's overdue accounts, loan repayments and/or
any outstanding monies are no longer overdue in respect of any
default that has been listed;
(f) information that, in the opinion of Pool Doctor, the
Customer has committed a serious credit infringement (that is,
fraudulently or shown an intention not to comply with the Customers
(g) advice that cheques drawn by the Customer for one hundred
dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by Pool Doctor has been
paid or otherwise discharged.
17.1. If any provision of these terms and conditions shall be
invalid, void, illegal or unenforceable the validity, existence,
legality and enforceability of the remaining provisions shall not
be affected, prejudiced or impaired.
17.2. If any provisions of these terms and conditions are
inconsistent with the PPSA, the PPSA shall prevail to the extent of
17.3. These terms and conditions and any contract to which they
apply shall be governed by the laws of New South Wales and are
subject to the jurisdiction of the courts of North Sydney.
17.4. Pool Doctor shall be under no liability whatsoever to the
Customer for any indirect and/or consequential loss and/or expense
(including loss of profit) suffered by the Customer arising out of
a breach by Pool Doctor of these terms and conditions.
17.5. In the event of any breach of this contract by Pool Doctor
the remedies of the Customer shall be limited to damages which
under no circumstances shall exceed the Price of the Goods.
17.6. The Customer shall not be entitled to set off against, or
deduct from the Price, any sums owed or claimed to be owed to the
Customer by Pool Doctor nor to withhold payment of any invoice
because part of that invoice is in dispute.
17.7. Pool Doctor may license or sub-contract all or any part of
its rights and obligations without the Customer's consent.
17.8. The Customer agrees that Pool Doctor may review these
terms and conditions at any time. If, following any such review,
there is to be any change to these terms and conditions, then that
change will take effect from the date on which Pool Doctor notifies
the Customer of such change. The Customer shall be under no
obligation to accept such changes except where Pool Doctor supplies
further Goods to the Customer and the Customer accepts such
17.9. Neither party shall be liable for any default due to any
act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, storm or other event beyond the reasonable control of
17.10. The failure by Pool Doctor to enforce any provision of
these terms and conditions shall not be treated as a waiver of that
provision, nor shall it affect Pool Doctor's right to subsequently
enforce that provision.