Terms and Conditions
In these Terms and Conditions “we, our, us, Dance4me Pty Ltd ” refers to “Dance4me Pty Ltd”, “x-pole.com.au, dance4me.com.au, www.dance4me.com.au, the Website” refers to “www.xpole.com.au”.
1.1 “Dance4me” shall mean Dance4me Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Dance4me Pty Ltd.
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 Dance4me to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by Dance4me 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 Dance4me to the Customer.
1.5 “Services” shall mean all Services supplied by Dance4me to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Dance4me and the Customer in accordance with clause 5 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) 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 TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by Dance4me from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Dance4me shall constitute acceptance of the terms and conditions contained herein.
3.2 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on the Service Provider’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
3.3 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.4 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 Dance4me.
3.5 The Customer shall give Dance4me 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, or business practice). The Customer shall be liable for any loss incurred by Dance4me as a result of the Customer’s failure to comply with this clause.
3.6 Goods are supplied by Dance4me 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.
4. Electronic Transactions Act 2000
4.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
5. Price and Payment
5.1 At Dance4me’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Dance4me to the Customer in respect of Goods supplied; or
(b) Dance4me’s quoted Price (subject to clause 5.2) which shall be binding upon Dance4me provided that the Customer shall accept Dance4me’s quotation in writing within thirty (30) days.
5.2 Dance4me reserves the right to change the Price in the event of a variation to Dance4me’s quotation.
5.3 Payment shall be due before delivery of the Goods.
5.4 For approved wholesale accounts, payment shall be due thirty (30) days following the date of the invoice.
5.5 Dance4me will not accept part payments or instalments on any invoice due.
5.6 Payment may be made by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and Dance4me.
5.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
6. Delivery of Goods
6.1 The Customer acknowledges and agrees that Dance4me will not deliver any Goods to a PO Box address.
6.2 Delivery of the Goods shall take place when the Goods have been delivered by Dance4me or Dance4me’s nominated carrier to the nominated delivery address in accordance with clause 6.4 below.
6.3 At Dance4me’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Customer’s account.
6.4 Where it is arranged that Dance4me’s nominated carrier is to deliver the Goods then the Customer shall need to choose one of two following delivery options. Either:
(a) the Customer shall pay for a premium delivery service whereby delivery of the Goods shall only be deemed to have taken place when Dance4me’s carrier delivers the Goods to the nominated delivery address and the Customer (or their nominated agent) has physically signed for the delivery; or
(b) it shall be the Customer’s express responsibility to make all necessary arrangements to ensure that they (or a third party acting their behalf) is able to take delivery of the Goods whenever they are tendered for delivery by Dance4me’s carrier. Where this option (b) is chosen as the preferred delivery method then the Customer expressly acknowledges and agrees that if no person is there to receive the Goods when they are tendered for delivery that Dance4me’s carrier may (at the Customers sole risk) leave the Goods at the delivery address nominated, and that the Customer shall not be entitled to make any claim against either the carrier or Dance4me for any subsequent loss of, or damage to, those Goods.
6.5 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.
6.6 Dance4me 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.
6.7 Any Goods on back-order may be delivered at a later date.
6.8 If delivery is delayed as a consequence of the Customer’s instructions, or lack thereof, then Dance4me may at is sole discretion, store the Goods for the Customer and the Customer shall be liable for all storage costs charged or incurred by Dance4me and in the event that the Goods are stored elsewhere all cartage charges incurred by Dance4me.
6.9 The failure of Dance4me to deliver shall not entitle either party to treat this contract as repudiated.
6.10 Dance4me shall not be liable for any loss or damage whatsoever due to failure by Dance4me to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Dance4me.
6.11 General delivery of Goods takes between seven (7) to ten (10) working days. If the Goods have not been received by the Customer after this time frame, then the Customer should contact Dance4me immediately.
7.1 If Dance4me retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery (refer clause 6.4).
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Dance4me is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Dance4me is sufficient evidence of Dance4me’s rights to receive the insurance proceeds without the need for any person dealing with Dance4me to make further enquiries.
7.3 Where Dance4me gives advice, recommendations, information, assistance or service to the Customer or the Customers agent, regarding the Goods or Services then it is given in good faith and Dance4me shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on the same.
7.4 The Customer acknowledges and agrees it is their responsibility to accurately measure the ceiling length so that the correct sized Goods are ordered and delivered to the Customer. In the event the Customer requires an extension on the Goods, this will be charged as a variation to the Price as per clause 5.2.
7.5 In the event the Customer wants to purchase Goods for use in a commercial manner, the Customer must first obtain written approval or consent from Dance4me. Approval may be granted or withheld by Dance4me for any reason and may be subject to further Terms and Conditions. In the event the product is to be used for commercial purposes, the Customer warrants to Dance4me that:
(a) only trained, professional pole dancers will use the Goods; and
(b) the Goods will at all times be adequately supervised and regulated; and
(c) the Customer or any other person using the Goods hereby indemnifies Dance4me against any injury, loss or damage. This waiver should be construed as a risk warning and is given as a risk warning in accordance with the provision of the Civil Liability Amendment (Personal Responsibility) Act 2002. Pole Dancing is a recreational activity that involves an obvious risk of physical harm.
7.6 The Customer acknowledges and agrees that as with any removable portable pole that relies on pressure between the floor and ceiling to keep it stable, damage can occur to the floor or ceiling. Dance4me shall not be held responsible for any damage caused to floors or ceilings in relation to installing or using the Goods.
7.7 Dance4me shall not be held responsible for any damage to property or injury to persons or third party during the installation or use of the Goods.
7.8 In the event of floor to ceiling poles that require pressure to stay in place, then the Customer acknowledges and agrees that the Goods cannot be installed using false, suspended or non rigid ceilings. The Customer further agrees that most ceilings, whether plasterboard or lather and plaster will flex with pressure, and therefore the retaining nails, pins and screws can be pushed out of the plasterboard when pressure is applied by the pole adjuster and Dance4me shall not be held liable for any damage caused as a result of this.
7.9 The Customer warrants to Dance4me that every person that uses the Goods or intends to use the Goods:
(a) has the required level of physical fitness to use the Goods; and
(b) will not use the Goods while they are under the influence of any drug which impairs capacity including alcohol, pharmaceutical preparations or any other substance; and
(c) have read the Product Instructions prior to assembly; and
(d) will comply with the Product Instructions and the safety precautions contained therein; and
(e) will lift, carry, install and use the Goods at their own risk; and
(f) will not use the multi-piece removable pole above the maximum recommended height of one hundred and thirty-two inches (132”), eleven foot (11’) or three thousand three hundred and fifty millimetres (3350mm); and
(g) is capable of making the above statements and
(h) waives and releases any and all claims whatsoever to the fullest extent to the law whether for personal injury, damage, losses and/or death which may result from the use of the Goods.
7.10 The Customer acknowledges and agrees that Dance4me’s website may contain hyperlinks to websites operated by other parties. Dance4me may provide third parties with products to sell or promotional materials to promote their Goods. Dance4me do not control such websites or third party promotions/activities and shall take no responsibility for, and will not incur any liability in respect of their activities. Dance4me’s inclusion of such hyperlinks to any websites or third party contacts does not imply any endorsement of views, statements or information contained in such websites/promotions.
8.1 Dance4me and the Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Dance4me all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to Dance4me in respect of all contracts between Dance4me and the Customer.
8.2 Receipt by Dance4me 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 Dance4me’s ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Dance4me 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 Dance4me to the Customer Dance4me may give notice in writing to the Customer to return the Goods or any of them to Dance4me. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) Dance4me 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 Dance4me then Dance4me or Dance4me’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, 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 Dance4me 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 Dance4me for the Goods, on trust for Dance4me; and
(f) the Customer shall not deal with the money of Dance4me in any way which may be adverse to Dance4me; 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 Dance4me; and
(h) Dance4me 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 Dance4me will be the owner of the end products.
9.1 The Customer shall inspect the Goods on delivery and shall within two (2) days of delivery (time being of the essence) notify Dance4me of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Dance4me 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 Dance4me has agreed in writing that the Customer is entitled to reject, Dance4me’s liability is limited to either (at Dance4me’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (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.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.
10.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 9.1; and
(b) Dance4me has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within fourteen (14) days of the delivery date; and
(d) the Goods are returned unopened in the original packaging; and
(e) Dance4me will not be liable for Goods which have not been stored or used in a proper manner; and
(f) the Goods 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.
10.2 Non-stocklist items or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
10.3 Dance4me will not accept the return of any DVD’s unless they are defective and comply with the provisions of clause 9.1.
11.1 Subject to the conditions of warranty set out in clause 11.2 Dance4me warrants that if any defect in any workmanship of Dance4me becomes apparent and is reported to Dance4me within six (6) months of the date of delivery (time being of the essence) then Dance4me will either (at Dance4me’s sole discretion) replace or remedy the workmanship.
11.2 The conditions applicable to the warranty given by clause 11.1 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 Customer to properly maintain any Goods; or
(ii) failure on the part of the Customer to follow any instructions or guidelines provided by Dance4me; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Dance4me shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Dance4me’s consent.
(c) in respect of all claims Dance4me shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
12. Intellectual Property
12.1 Where Dance4me has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in Dance4me, and shall only be used by the Customer at Dance4me’s discretion.
12.2 The Customer hereby authorises Dance4me to utilise images of the Goods designed or drawn by Dance4me in advertising, marketing, or competition material by Dance4me.
12.3 In the event Dance4me gives approval in writing for the Customer to use any imagery derived from products, materials, websites, CDRoms, DVDs, movies, books and any other materials then Dance4me logo must be clearly visible.
12.4 In the event the Customer uses any pictures of dancers then the Customer acknowledges and agrees that the dancer’s names must be credited. The Customer agrees they shall contact Dance4me in this instance to obtain the pictures or the details.
13. Default and Consequences of Default
13.1 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 Dance4me’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Dance4me.
13.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Dance4me from and against all costs and disbursements incurred by Dance4me in pursuing the debt including legal costs on a solicitor and own client basis and Dance4me’s collection agency costs.
13.4 Without prejudice to any other remedies Dance4me may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Dance4me may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Dance4me will not be liable to the Customer for any loss or damage the Customer suffers because Dance4me has exercised its rights under this clause.
13.5 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.
13.6 Without prejudice to Dance4me’s other remedies at law Dance4me shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Dance4me shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Dance4me becomes overdue, or in Dance4me’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.
14. Security and Charge
14.1 Despite anything to the contrary contained herein or any other rights which Dance4me 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 Dance4me or Dance4me’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 Dance4me (or Dance4me’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 Dance4me elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Dance4me from and against all Dance4me’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 Dance4me or Dance4me’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 14.1.
15.1 Dance4me 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 notice to the Customer. On giving such notice Dance4me shall repay to the Customer any sums paid in respect of the Price. Dance4me shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Dance4me (including, but not limited to, any loss of profits) up to the time of cancellation.
16. Privacy Act 1988
16.1 The Customer and/or the Guarantor/s agree for Dance4me to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by Dance4me.
16.2 The Customer and/or the Guarantor/s agree that Dance4me may exchange information about the Customer and the Guarantor/s 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 purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(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 credit worthiness of Customer and/or Guarantor/s.
16.3 The Customer consents to Dance4me 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 Dance4me for the following purposes and for other purposes as shall be agreed between the Customer and Dance4me or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Dance4me, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(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 Dance4me 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; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
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 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 New South Wales.
17.3 Dance4me 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 Dance4me of these terms and conditions.
17.4 In the event of any breach of this contract by Dance4me the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 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 Dance4me nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 Dance4me may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
17.7 The Customer agrees that Dance4me 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 Dance4me notifies the Customer of such change.
17.8 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 either party.
17.9 The failure by Dance4me to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Dance4me’s right to subsequently enforce that provision.