AND LIMITATION OF LIABILITY
Everton™ DIY Glass Pool Fencing, Balustrade and Mirrors, and Highgrove Shower Screens and Splashbacks (the Products) are manufactured for Gale Pacific Limited ACN 082 263 778 (Gale).
Disclaimer: While all care is taken in the production of DIY (do-it-yourself) guides all Everton and Highgrove DIY guides are provided as an indicative installation guide only. Gale is not liable or responsible for the outcome of any Products installed using these guides.
Building code compliance, permits, set back requirements, and property line issues are the property owner’s responsibility to handle as necessary. Gale is held harmless from any disputes, litigation, disagreements, payments, or any problems that may arise, regarding faulty installation, property line disagreements, permits, set back requirements, swimming pool accidents or injuries, railing accidents or injuries, or any other problems regarding installation of the Products. These terms and conditions shall be governed by and construed under the laws of the State of Victoria Australia.
The Purchaser has the sole responsibility to determine whether the Products comply with applicable codes and are appropriate for the intended use.
The Purchaser shall inspect the Products on delivery and shall within fourteen (14) days of delivery notify Gale of any alleged defect, damage or failure to comply with the description or quote. The Purchaser shall afford Gale an opportunity to inspect the Products within a reasonable time following delivery if the Purchaser believes the Products are defective in any way. If the Purchaser shall fail to comply with these provisions, the Products shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
Defective Products: For defective Products, which Gale has agreed in writing that the Purchaser is entitled to reject, Gale’s liability is limited to either (at Gale’s discretion) replacing the Products or repairing the Products provided that:
(a) the Purchaser has complied with the provisions of these terms and conditions;
(b) the Products are returned at the Purchaser’s cost within fourteen (14) days of the delivery date;
(c) Gale will not be liable for Products which have not been stored or used in a proper manner;
(d) the Products are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
Subject to the conditions of warranty set out in these terms and conditions Gale warrants that the Product is free from manufacturing defects. If a Product with a manufacturing defect becomes apparent and is reported to Gale within the period stated below from the date of delivery (time being of the essence) then Gale will either (at Gale’s sole discretion) repair the defect or replace the Product. The following Warranty periods apply;
i) Everton Pool Fence and Balustrade – 20 (twenty) Years
ii) Everton Mirrors – 10 (ten) Years
iii) Highgrove Splashbacks – 2 (two) Years
iv) Highgrove Showers – 1 (one) Year
The conditions applicable to the warranty given by this clause are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
i) Failure on the part of the Purchaser to properly maintain any Products; or
ii) Failure on the part of the Purchaser to follow any instructions or guidelines provided by Gale; or
iii) The continued use of the Product after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
iv) Fair wear and tear, any accident or act of God; or
v) Scratching, abrasion, chipping or any other damage or deterioration caused by impact, accident, or misuse; or
vi) Normal weathering, including loss of gloss and colour of painted and powder coated surfaces; or
vii) If the defect is contributed to or caused by any improper use of the Product or usage of the Product for purposes other than that for which the Product was designed or intended.
viii) If the defect occurs wholly or partly as a result of any act or omission of any person other than Gale.
ix) If the Product has been subjected to misuse, neglect, accident or abuse.
x) If the Product is altered or modified in any way unless such modification has been approved in writing by Gale Pacific.
xi) If the Product is erected, installed, or used in violation of, or in a manner that is inconsistent with, instructions or warnings furnished by Gale.
(b) This warranty does not cover:
i) Any damage to the Product caused or contributed to by exposing the Product to chemicals (including chlorine, halogens and organic solvents), highly acidic substances (with a pH less than 4), placing the Product near an open flame, exposing the Product to mechanical friction..
ii) Any damage to the Product caused or contributed to by the Purchaser’s use of components other than genuine Everton/Highgrove parts.
iii) This warranty does not cover any variations or defects in appearance, colour or shade or defects which are of a purely aesthetic or cosmetic nature.
(c) The liability under the warranty does not include or extend to:
i) Labour costs associated with the removal or repair of the defective Product, or installation of the replacement Product; or
ii) Injury to persons, damage to property, loss of income, profit or business, or any other indirect loss arising from or caused in any way by the defective Product.
iii) The warranty shall cease and Gale shall thereafter in no circumstances be liable under the terms of the warranty if the Product is repaired, altered or overhauled without Gale’s consent.
iv) In respect of all claims Gale shall not be liable to compensate the Purchaser for any delay in either replacing or repairing the workmanship or the Product or in properly assessing the Purchaser’s claim.
v) This Warranty does not cover against aesthetic surface corrosion including tea staining, oxidization and red rust on aluminium, steel or stainless steel products.
For Products not manufactured by Gale, the warranty shall be the current warranty provided by the manufacturer of the Products. Gale shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
Australian Consumer Law
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
This warranty is not transferable, and applies only to the initial purchaser of the installed Product.
In addition to the above warranty, Australian Consumer law and other state and territory legislation may imply warranties or conditions or impose liability on Gale in relation to the Product or its supply which cannot, or can only to a limited extent, be excluded, restricted or modified. Except for those implied warranties or conditions and such liability, and for the warranty described above:
i) all warranties and conditions (whether express or implied, statutory or otherwise) relating to the Product or its supply are expressly excluded; and
ii) Gale will not be liable for any loss or damage suffered by any person (including the purchaser of the Product) in any way relating to or arising from the Product or its use (including loss or damage arising from the negligence of, or contributed to by, Gale).
If liability for breach by Gale of a warranty or condition or any other liability imposed on Gale by legislation which cannot be excluded may be limited, Gale’s liability is limited to the extent permitted by law, and if liability may be limited in any one of a number of ways, Gale’s liability is limited in any one of the permitted ways chosen by Gale in its absolute discretion.
The Purchaser acknowledges that the Purchaser does not rely on the skill or judgment of Gale as to whether or not the Products are fit for any particular purpose.
The Purchaser indemnifies Gale from every liability, loss, damage, cost or expense directly or indirectly incurred or suffered by Gale caused by or contributed to by the Purchaser’s failure to:
i) adequately provide or display safety markings or safety information on or with the Products;
ii) comply with any law about the Products or their use;
iii) take any reasonable precaution to bring to the attention of any potential users of the Products any dangers associated with Products;
iv) any negligence or breach of duty by the Purchaser or any breach by the Purchaser of these terms.