YetiFoam Terms of Trade

1. How to read these Terms of Trade

Capitalised words and phrases in these terms and conditions have the meanings given in the Glossary in clause 15.

2. What is the effect of these terms and conditions? 

1. These terms and conditions and the Quote together form a legal agreement between You and YetiFoam.  By signing or otherwise accepting a Quote, You also accept these terms and conditions and:    
   1. 1. agree to pay YetiFoam the fees and charges set out in the Quote (Fees); and
      2. authorise YetiFoam to provide the Services at the Premises.  

3. Quotes
   1. Quotes issued by YetiFoam are valid for the term specified in the quote or, if no term is specified, for 30 days from the date of issue.  
   2. You warrant that:
      1. all information You provided to YetiFoam for the purpose of preparing the Quote was and remains complete and accurate; and
      2. You are the legal owner of the Premises or are authorised by the legal owner of the Premises to permit the Services to be provided at the Premises.
   3. You acknowledge that, despite YetiFoam’s reasonable precautions, services or materials may be listed in the Quote at an incorrect price or with incorrect information due to a typographical error or similar oversight.  In these circumstances:
      1. the typographical error or oversight is to be communicated to the other party as soon as practicable after it is discovered; and
      2. You or YetiFoam may either:
         1. agree to correct the error and proceed on the basis that the Quotation is amended to reflect the correction; or 
         2. terminate the Agreement and YetiFoam will as soon as practicable issue You with a refund of any Deposit You have paid.  
4. Acceptance of Quote and cancellation
   1. Once You accept the Quote by making payment of the Deposit, YetiFoam will contact You to schedule a Service Date.
   2. The Quote will remain fixed unless YetiFoam attends the Premises to provide the Services and reasonably determines that the work You require is different to that described by You when requesting the Quote or has changed since any inspection of the Premises by YetiFoam before giving You the Quote. Where this occurs, YetiFoam may revise the Quote to account for any additional works or materials required. If You choose to proceed with the revised Quote, this will become the Quote for the provision of the Services.  If You choose not to proceed with the revised Quote, You or YetiFoam may terminate the Agreement.  If the Agreement is terminated on this basis, You must pay YetiFoam the Cancellation Fee and YetiFoam will as soon as practicable issue You with a refund of any Deposit You have paid less the Cancellation Fee.  
   3. If You cancel or reschedule the Services on the Service Date and:
      1. YetiFoam has already undertaken preparation work (including, but not limited to, site visits to the Premises) in respect of the Services, You may be required to pay YetiFoam the Cancellation Fee at YetiFoam’s sole discretion; or 
      2. YetiFoam has not yet undertaken any work in respect of the Services, YetiFoam will as soon as practicable issue You with a refund of any Deposit You have paid less the Cancellation Fee. 
   4. If You cancel or reschedule the Services at any time prior to the Service Date and:
      1. YetiFoam has already undertaken preparation work (including, but not limited to, site visits to the Premises) in respect of the Services, You will be charged the Cancellation Fee at the sole discretion of YetiFoam; or
      2. YetiFoam has not yet undertaken any work in respect of the Services,  YetiFoam will as soon as practicable issue You with a refund of any Deposit You have paid. 
   5. If the Services are cancelled in accordance with clause 4.3 or 4.4, either party is permitted to terminate the Agreement in accordance with clause 13.
5. Provision of Services
   1. YetiFoam agrees to provide the Services for the Fees.  YetiFoam will provide the Services with due care and skill and in accordance with the Quote.  
   2. You acknowledge that YetiFoam may need to reschedule the Service Date with You in any of the following circumstances: 
      1. where there is inclement weather that in YetiFoam’s reasonable opinion affects the ability to properly and safely provide the Services;
      2. where conditions at the Premises are such that it is not reasonably possible to properly and safely provide the Services; 
      3. where there is a shortage of availability of any Materials;
      4. if the nature of the Premises or deficiencies in information provided to YetiFoam results in unanticipated factors or additional Materials necessary to provide the Services; and
      5. for any other causes beyond the reasonable control of YetiFoam.

2. YetiFoam will use its best endeavours to give as much notice as reasonably possible of a need to reschedule the Service Date.

1. 3. You agree to make sure that:
      1. YetiFoam’s personnel have access to the Premises on the Service Date as reasonably necessary to provide the Services;
      2. all pets, animals or wildlife that may be threatening to YetiFoam’s personnel are restrained or removed from the Premises during the provision of the Services; and 
      3. the Premises are in a reasonably safe condition and conducive to the Services being performed safely.
   4. If YetiFoam’s personnel encounter difficulties in gaining access at the Premises to safely provide the Services, or encounter the presence of hazardous materials such as asbestos at the Premises, and YetiFoam was not made aware of the relevant circumstances before You accepted the Quote, then:
      1. any additional costs reasonably incurred in ensuring the safety of YetiFoam’s personnel may be charged to You; and 
      2. clauses 4.3 and 4.4 will apply.  
   5. If a circumstance mentioned in clause 5.4 applies, and the Services are not cancelled or rescheduled in accordance with clause 4.3, You or YetiFoam are permitted to terminate this Agreement in accordance with clause 13 

6. Materials
   1. Risk of loss or damage to the Materials passes to You once they have been delivered by or on behalf of YetiFoam to the Premises.  
   2. Title in the Materials does not pass to You until payment has been received in full in accordance with clause 6 below (except where the Materials have been paid for in full before they are delivered to the Premises, in which case title to the Materials will pass to You upon delivery).
7. Intellectual Property 

You agree that: 

1. 1. 1. all Intellectual Property Rights embodied in or used in connection with the Materials and/or Services, or which may be developed in connection with the Materials and/or Services (whether registered or unregistered) will be and remain the property of YetiFoam (YetiFoam IP); 
      2. unless otherwise agreed in writing, any YetiFoam IP created or developed following the date of the Agreement will vest in YetiFoam as soon as the Intellectual Property Rights are created or developed and will at all times remain the property of YetiFoam and if necessary to give effect to this clause 7(b), You will assign any right, title and interest in such YetiFoam IP immediately upon creation, free from encumbrances, security interest and third party rights and such assignment will operate as a present assignment of future Intellectual Property Rights; and 
      3. nothing in this Agreement grants to You or any other person a licence or any rights to use YetiFoam IP in any way. 
2. Fees and payment 
   1. You agree to pay the Fees as follows:
      1. a deposit of the amount specified in the Quote at the time of accepting the Quote, being an amount up to 80% of the Fees (Deposit); and  
      2. the balance of the Fees at the times specified in the Quote (or, if no times are specified, no later than 24 hours prior to the Service Date  of the Services by YetiFoam or at such other times as may be agreed), 

and in accordance with the manner of payment specified in the Quote.  

8. 1. You agree to pay any other fees or charges specified in the Agreement which become payable by You at such time and in such manner as reasonably directed by YetiFoam.     
   2. The Fees and other fees or charges specified in the Agreement are exclusive of any taxes and You agree to pay YetiFoam any GST and other duties, taxes or imposts imposed in relation to the Services.
   3. If You do not pay any fees or charges payable under the Agreement by the time they are due, YetiFoam reserves the right to charge interest on the overdue payment at a rate of 2% above the rate charged by YetiFoam’s bank on overdrafts of that amount, calculated on a daily basis.  
   4. If You default in making any payment of fees or charges due under the Agreement, YetiFoam may, in addition to its other remedies at law, immediately terminate the Agreement and (unless title to any Materials has passed to You) take back possession of the Materials. You shall bear any reasonable costs incurred by YetiFoam as a consequence of taking back possession of the Materials, including any costs and expenses associated with collecting overdue amounts, and any part of the Fees paid by You to YetiFoam as at the date of termination of the Agreement will be retained by YetiFoam.   
   5. Until such time that You have paid the Fees in full, You must:
      1. keep the Materials in good condition and repair;
      2. not sell, move, remove or modify the Materials without YetiFoam’s consent; and
      3. notify YetiFoam immediately if any of the Materials is lost, stolen or damaged.
9. Warranty 
   1. YetiFoam warrants that following completion of the Services, the workmanship of those Services will be of a reasonable standard and consistent with good industry practices. If You consider that the workmanship of the Services is defective in any way, You must notify YetiFoam as soon as reasonably possible of Your claim.  As Your sole and exclusive remedy for a breach of the Warranty (but without limiting Your rights under any Non-Excludable Provision as set out in clause 10.3 below), YetiFoam will (at YetiFoam’s option) rectify the defect, resupply the Services or pay You the cost of doing either of those things.
   2. Yeti Foam’s warranty under clause 9.1 survives until you cease to be the legal owner of the Premises or your authorisation from the legal owner of the Premises to permit the Services to be provided at the Premises, is revoked.
   3. YetiFoam will have no liability under the Warranty in relation to any fault, defect or issue caused by:  
      1. fair wear and tear 
      2. You or any third party engaged by You, including (but not limited to) in respect of: 
         1. repairs, modifications or additions to the Materials, or in relation to any part of the Premises that YetiFoam has undertaken the Services (including in respect of the subfloor), not made by YetiFoam; 
         2. the installation, placement or modifications of items in relation to any part of the Premises where the Services have been conducted (including in respect of the subfloor) by a person other than YetiFoam; 
         3. any failure to maintain, or improper maintenance of, the Materials or any part of the Premises where the Services have been conducted (including in respect of the subfloor); or 
      3. any other circumstance beyond the reasonable control of YetiFoam. 
   4. The Warranty is in addition to Your rights under any Non-Excludable Provision as set out in clause 10.3 below. To make a claim under the Warranty, You should contact YetiFoam using the contact details in Your Quote, and provide details of where and when the Services were provided and the reasons why You are making Your claim, including to enclose any evidence to support such claim.
   5. You agree to permit YetiFoam and its personnel to have access to the Premises as reasonably required and on reasonable notice to permit the assessment of any warranty claim by You and, if necessary, perform any work for which YetiFoam is responsible.  
   6. Without limiting Your rights under any Non-Excludable Provision as set out in clause 10.3, You agree that:  
      1. You may be charged a call out fee for any attendances by YetiFoam at the Premises in relation to any faults, defects or other issues which are not found to be covered by the Warranty; and
      2. You will be charged additional fees for any remedial work in relation to any faults, defects or other issues which are not covered by the Warranty.  YetiFoam will provide You with a quote for any such work and it will only be performed with Your prior approval of the applicable fees.
10. YetiFoam’s liability
    1. To the maximum extent permitted by law and except as expressly stated in these terms and conditions, YetiFoam: 
       1. excludes all warranties and guarantees (whether express or implied by or arising under statute, common law, equity, trade custom or usage, or otherwise), and makes no representations, relating to the Services, any Materials or any other goods or services provided to You in connection with the Agreement; and
       2. will not be liable for any loss or damage (including costs, loss of time, inconvenience and commercial losses) however caused, whether direct, indirect, special or consequential, incurred or suffered by You or any third party in connection with the Services, any Materials or any other goods or services provided to You in connection with the Agreement. 
    2. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion.  You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
    3. Nothing in the Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation that cannot lawfully be excluded or limited, including under the Australian Consumer Law (Non-Excludable Provision).  To the maximum extent permitted by law, YetiFoam’s liability for any failure to comply with a Non-Excludable Provision is limited to (at YetiFoam’s option): in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, and in the case of services, the supply of the services again or the payment of the cost of having the services supplied again.
    4. The limitations and exclusions set out in this clause do not apply to any liability of YetiFoam for wilful misconduct, fraud or gross negligence (being negligence involving a deliberate or reckless disregard or a risk which would be apparent to a reasonable person in the same circumstances).
    5. You agree to take reasonable steps to mitigate any loss you may suffer in connection with this Agreement. 
11. You indemnify YetiFoam 
    1. You indemnify YetiFoam and its related bodies corporate, and each of their respective directors, officers and employees, against all actual or threatened loss, damage, actions, claims or demands (including the cost of defending or settling any actions, claims or demands) arising out of: 
       1. a breach of the Agreement (including a breach of any warranty contained in the Agreement) by You; or
       2. any wilful, unlawful or negligent act or omission by You. 
    2. YetiFoam agrees to take reasonable steps to mitigate the losses it suffers in connection with any loss, damage, actions, claims or demands referred to in clause 11.1.
12. Events outside our control
    1. If circumstances beyond YetiFoam’s control prevent or hinder its provision of the Services, YetiFoam is free from any obligation to provide the Services while those circumstances continue and YetiFoam will not be liable for any delay or failure to perform the Agreement. You may elect to:
       1. terminate this Agreement or keep the Agreement on foot until such circumstances have ceased;
       2. suspend or reduce the amount of goods to be delivered;
       3. agree on a revised price for provision of the Materials and Services in circumstances in which there has been a significant price increase in the Materials or Services. 
    2. YetiFoam will not be liable to You for any loss incurred or sustained by You in connection with YetiFoam’s delay or non-performance of its obligations under the Agreement in connection with the occurrence of circumstances beyond YetiFoam’s control. 
    3. Circumstances beyond YetiFoam’s control include, but are not limited to:
       1. unavailability of materials or components caused by circumstances not caused or contributed to by YetiFoam including but not limited to freight, strikes, trade disputes or labour disturbances; lockouts, riots, natural disasters, fire, war, acts of God, Governmental decrees, proclamations; or orders, transport difficulties and failures or malfunctions of computes or other information technology systems; and
       2. price increases of 10% or more in Materials or the provision of Services. 
    4. You will not be liable for any delay or failure to perform the Agreement (other than a delay or failure to perform a payment obligation) if such delay or failure is caused by any act or circumstances beyond Your reasonable control.
13. Termination  
    1. You or YetiFoam may terminate the Agreement by immediate written notice to the other party if: 
       1. the Services have been cancelled in accordance with clauses 4.3, 4.4 or 5.4; 
       2. the other party breaches any provision of the Agreement that is not capable of remedy; 
       3. the other party breaches any provision of the Agreement that is capable of being remedied and fails to remedy that breach within 14 days of receipt of notice of the breach; or 
       4. the other party is the subject of, in the case of a company, any insolvency proceedings or in the case of an individual, any bankruptcy proceedings, are declared insolvent or bankrupt (as applicable) or otherwise become unable to pay their debts as and when due. 
    2. Termination or expiry of the Agreement will not affect the operation of the provisions of the Agreement which by their nature survive termination or expiry of the Agreement (including clauses including clauses 9, 10 and 11 and this clause 13.2) or any rights or remedies already accrued to either party under, or in respect of any breach of, the Agreement.  
14. General 
    1. To the extent permitted by law, this Agreement and the Quote constitutes the entire agreement and understanding between the parties relating in any way to its subject matter, unless agreed otherwise by YetiFoam and You in writing, and will supersede any prior agreement or understanding of the parties (written or otherwise). 
    2. To the extent a provision of the Agreement is or becomes illegal, void or unenforceable, that provision (or the relevant part) will be severed, and the remainder of the Agreement has full force and effect. 
    3. Neither party may assign, novate or otherwise transfer any of its rights or obligations under the Agreement without the prior consent of the other party.
    4. Any delay or failure by a party to enforce any provision of the Agreement will not be deemed a waiver or create a precedent or prejudice that party’s rights in any way. No waiver by a party will be effective unless it is in writing and signed by or on behalf of that party.
    5. YetiFoam may sub-contract the performance of all or any of its obligations under the Agreement to any person, firm or company.
15. Glossary

3. In these terms and conditions the following terms have the following meanings.
4. “Agreement” means the legal agreement between You and YetiFoam constituted by these terms and conditions and the Quote.   
5. “Cancellation Fee” means the cancellation fee specified in the Quote. 
6. “Deposit“ has the meaning given in clause 8.1(a).
7. “Fees” has the meaning given in clause 2(a).
8. “GST“ means any tax imposed by or through the GST Legislation on a supply (without regard to any input tax credit).
9. “GST Legislation“ means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related tax imposition Act (whether imposing tax as a duty of customs excise or otherwise) and includes any legislation which is enacted to validate recapture or recoup the tax imposed by any such Acts.
10. “Intellectual Property Rights” means all intellectual property rights, including copyright and neighbouring rights (including moral rights), all rights in relation to inventions (including patents), registered and unregistered trade marks, business names, domain names, registered and unregistered designs, circuit layouts, confidential information, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. 
11. “Materials” means any materials supplied by YetiFoam as part of the Services.
12. “Premises” means the premises nominated in the Quote as the premises at which the Services are to be provided.
13. “Quote” means a valid quote provided to You by YetiFoam and signed or otherwise accepted by You.
14. “Service Date” means the day on which provision of the Services is scheduled to commence (as may be rescheduled pursuant to clause 5.2).
15. “Services” means the services listed in the Quote.
16. “Warranty” means the warranty given by YetiFoam under clause 9.1. 
17. “YetiFoam ” means YetiFoam Pty Ltd ACN 686 368 187. 
18. “YetiFoam IP” has the meaning given in clause 7(a).
19. “You” means the customer named in the Quote, and “Your” has a corresponding meaning.