A Truck & Digger Limited
Earthworks Terms and Conditions of Trade
- GENERAL
1.1 In these Terms and Conditions:
(a) “Agreement” means our Quote, and these Terms and
Conditions.
(b) “Contractor”, “We” or “Us” means A Truck & Digger Limited
and its successors and assigns.
(c) “Client” or “You” means the person, firm, company or entity
buying Services from us.
(d) “Materials” means the materials to be supplied as described our Quote or as otherwise agreed in accordance with this
Agreement.
(e) “Price” means the contract price stated in our Quote or as otherwise fixed in accordance with this Agreement.
(f) “Quote” means our quotation or estimate document.
(g) “Services” means all earthworks, excavation and other
Services we will supply to you as described in our Quote, or as otherwise agreed in accordance with this Agreement. - PRICE
2.1 Calculation: At our sole discretion the Price will be either:
(a) Our quote Price (subject to clause 2.3); or
(b) Our estimated Price (subject to clause 3), which will not be
deemed binding upon us as the actual Price can only be
determined upon completion of the Services. We undertake to
keep you informed should the actual Price look likely to
exceed the original estimate; or
(c) As indicated on our invoices in respect of the Services and
Materials.
2.2 Price plus tax: You will pay the Price together with the amount of
any Goods and Services Tax or any other tax which may be
payable in respect of the supply of Services and Materials or otherwise under these Terms and Conditions.
2.3 Quotation: Any quotation we have made for the supply of Services
constitutes an invitation to treat and not a binding offer. All
quotations lapse after 30 days but we reserve the right to change
or withdraw any quotation without notice at any time. - VARIATIONS
3.1 We reserve the right to change the Price:
(a) if you request a change to the Materials;
(b) if you request a variation to the Services (including any
applicable designs, plans and/or specifications);
(c) where there is a delay in delivery of materials, or items are not
in stock and extra sourcing is required;
(d) specialist materials or parts/tools are required;
(e) where additional Services are required due to the discovery of
unexpected, hidden or unidentifiable difficulties (including, but
not limited to, timber structural issues, poor weather
conditions, limitations to accessing the site, obscured site
defects which require remedial work, health hazards and
safety considerations (such as the discovery of asbestos),
prerequisite work by any third party not being completed, hard
rock barriers below the surface, iron reinforcing rods in
concrete, or hidden pipes and wiring in walls, etc.) which are only discovered on commencement of the Services;
(f) in the event of increases to us in the cost of labour or Materials, or fluctuations in currency exchange rates, which
are beyond our control;
(g) in the event that we are required to provide the Services
urgently, and as a result may require our employees to work
outside normal business hours (including but not limited to
working, through lunch breaks, weekends and/or Public
Holidays) with the consequential additional labour costs
(penalty rates may apply).
3.2 Variations do not need to be in writing. - CANCELLATION
4.1 For breach: Without prejudice to any other remedies we may
have, if at any time you are in breach of any obligation (including
those relating to payment) under these terms and conditions we may suspend or terminate the provision of Services to you. We will
not be liable to you for any loss or damage you suffer because we have exercised our rights under this clause.
4.2 Before commencement: We may cancel any contract to which
these terms and conditions apply or cancel provision of Services at
any time before we have commenced the Services, by giving
written notice to you. On giving such notice we will repay to you
any sums paid in respect of the Price, less any amounts you owe to us for Materials already procured. We will not be liable for any loss
or damage whatsoever arising from such cancellation.
4.3 Cancellation by Client: In the event that you cancel this
Agreement, or the provision of any Services, you will be liable for:
(a) a cancellation fee if you give us less then 24 hours’ notice;
(b) our fees for work done to date on an hourly rate basis; and
(c) the cost of mileage incurred (if any);
(d) the cost of any Materials already procured;
(e) any and all loss incurred (whether direct or indirect) by us as a direct result of the cancellation (including, but not limited to, any loss of profits). - PAYMENT
5.1 Deposit: In order to confirm a booking for Services you may be required to pay a deposit.
5.2 Payment of balance: You will pay the balance of your account (time being of the essence) according to any combination of the following as agreed:
(a) on completion of the Services;
(b) by way of instalments/progress payments in accordance with our specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, on receipt of our invoice.
5.3 No deductions: All payments by you will be full, free and clear of any deduction, withholding, set-off, counterclaim or other claim.
5.4 Acceleration: Notwithstanding any credit period, full payment for all unpaid Materials and Services will become due immediately upon:
(a) you or any guarantor becoming insolvent or bankrupt;
(b) the commencement of any act or proceeding in which your or any guarantor’s insolvency is involved; or
(c) you or any guarantor resolving to wind up or being ordered to be wound up or having a receiver, liquidator of official manager appointed in respect of all or any of your assets; or(d) you or any guarantor ceasing to trade. - PENALTY FOR LATE PAYMENT
6.1 Debt collection: Any invoice unpaid more than 30 days after the due date will be referred to debt collection. We are also entitled to charge an administration fee of $20 per payment reminder.
6.2 Default interest: Failure by you to make payment in full of any amount payable pursuant to this Agreement on the due date constitutes a default and, without prejudice to any other rights or remedies available to us, simple interest at 5% per month calculated daily will be payable upon demand and from the due date until payment.
6.3 Legal costs: You will indemnify us against all loss, costs and expenses, including legal costs on a solicitor/client basis, which we may suffer or incur as a result of any failure by you to make due and punctual payment. - PERFORMANCE OF THE SERVICES
7.1 Time: We undertake to use reasonable endeavours to deliver the Services within the time specified by us but dates we give for performance will be indicative only. No date specified by you will be binding on us without our written agreement. In the event that we are unable to provide the Services as agreed solely due to any action or inaction by you then we will be entitled to charge a reasonable fee for re-providing the Services at a later time and date. We are also entitled to delay or reschedules Services where they are affected by poor weather.
7.2 Delays: The Services start date will be put back and/or the completion date extended by whatever time is reasonable in the event that we claim an extension of time (by giving you written notice) where completion is delayed by an event beyond our control, including but not limited to any failure by you to:
(a) have the site ready for the Services; or
(b) notify us that the site is ready.
7.3 Services to be supplied: You acknowledge and agree that the Services are limited to those set out in the invoice, order form or other similar document issued by us.
7.4 Supply or Substitution of Materials: If we are not able to obtain the exact Materials specified, we can use substitute materials at our discretion. If you provide materials and they are not fit for purpose you will be liable for any costs arising from this as a variation under clause 3.1. - YOUR OBLIGATIONS
8.1 Access: You will ensure that we have clear and free access to the site at all times to enable us to perform the Services and you agree to give us access within 10 working days from payment of your deposit to start and complete the Services. You also need to ensure water and electricity supply onsite if we request it.
8.2 Information: You will provide us with any relevant information required to enable us to perform the Services. This includes advising us of the precise location of all underground services on the site. We will be entitled to rely on the accuracy of any plans, specifications and other information provided by you. Where information you provide is incorrect and we are required to undertake additional work we reserve the right to charge for such additional work.
8.3 Consents/Approvals: You will obtain, at your cost, all licenses,
approvals, application and permits that may be required for the
Services.
8.4 Insurance: You will obtain and keep on foot contracts work cover
in relation to the Services if necessary.
8.5 Laws: you will comply with the provisions of all statutes,
regulations and bylaws of government, local and other public
authorities that may be applicable to the Services, including any
Worksafe guidelines regarding health and safety laws relating to
building/construction sites and any other relevant safety standards
or legislation.
8.6 Health and Safety: It is your responsibility to ensure that all safety measures have been taken at the site where the Services are to be
performed so as to comply with all applicable health and safety
laws. We have not and will not at any time assume any obligations as your agent or otherwise which may be imposed on you from
time to time pursuant to the Health & Safety at Work Act 2015,
including any subsequent regulations (the “HSW Act”) arising from
the engagement of Services under this Agreement. Unless
otherwise agreed, the parties agree that for the purposes of the
HSW Act, we will not be the person who controls the place of work.
Prior to our personnel attending the relevant site to perform the
Services you will:
(a) Inform us of all applicable health and safety rules and
regulations that may apply at the site;
(b) Notify us promptly of any risk, safety issues or incidents that
may arise or may have arisen at the site that are relevant to
our provision of the Services.
8.7 Right to delay or cancel: If we are concerned about the presence
of any hazards or risks at the site we may, in our absolute
discretion, delay the performance of some or all of the Services or cancel any order by notice in writing to you. - OUR OBLIGATIONS AND WARRANTIES
9.1 We warrant that:
(a) We have the right to enter into this Agreement;
(b) We will perform the Services to a reasonable standard of care and skill;
(c) We will perform the Services in accordance with relevant
laws.
9.2 We will take reasonable steps to ensure that while on site our personnel comply with any health and safety requirements and
other reasonable security requirements you make known to us.
9.3 If this Agreement relates to a residential building project then the
implied warranties in the Building Act are excluded as far as possible. - INFORMATION ABOUT CUSTOMER
10.1 The Customer must notify the Seller of any change in
circumstances that may affect the accuracy of the information
provided by the Customer to the Seller.
10.2 Any personal or credit information provided by the Customer or obtained by the Seller will be held by the Seller and may be used
by it for any of the following purposes: determining eligibility and
terms for the provision of credit to the Customer, supplying the
Customer with the Goods, enforcing debts and other legal
obligations owing to the Seller and disclosure to third parties
associated with any of those purposes (including a credit reporting
agency).
10.3 The Customer authorises all persons, companies, credit reporting
agencies and other entities to provide the Seller with such
information as it may at any time request about the Customer
(including where applicable, its principals and directors) in relation
to any of the purposes listed in clause 10.2 of these Terms. - TITLE
11.1 The parties agree that the Client’s obligations to the Contractor for
the provision of the Services will not cease (and ownership of the
Materials will not pass) until:
(a) the Client has paid the Contractor all amounts owing to the
Contractor; and
(b) the Client has met all other obligations due by the Client to the
Contractor in respect of all contracts between the Contractor
and the Client
11.2 The parties further agree that, until ownership of the Materials
passes to the Client in accordance with clause 11.1:
(a) the Client is only a bailee of the Materials and unless the
Materials have become fixtures must return the Materials to
the Contractor on request;
(b) the Client holds the benefit of the Client’s insurance of the
Materials on trust for the Contractor and must pay to the
Contractor the proceeds of any insurance in the event of the
Materials being lost, damaged or destroyed. The production of
these terms and conditions by the Contractor will be sufficient
evidence of the Contractor’s rights to receive the insurance
proceeds direct from the insurer without the need for any
person dealing with the Contractor to make further enquiries;
(c) unless the Materials have become fixtures the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Materials are kept and recover possession of the Materials;
(d) the Client will not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of the Contractor;
(e) the Contractor may commence proceedings to recover the Price notwithstanding that ownership of the Materials has not passed to the Client. - PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”) AND PROTECTION OF THE CONTRACTOR’S RIGHTS 12.1 The Client acknowledges that on signing or assenting to the Agreement the Client grants the Contractor a security interest in favour of the Contractor in respect of the Materials and their proceeds and secures payment by the Client to the Contractor of all amounts from time to time owing by the Client to the Contractor under this Agreement or any other agreement between them. When Materials supplied by the Contractor have become an accession or have been manufactured, processed, co-mingled or affixed with other property, the Client will ensure that Materials supplied by the Contractor and their proceeds will remain identifiable. The Client acknowledges that the Client’s security interest continues in the accession or the processed or co-mingled Materials and their proceeds.
12.2 The Client will promptly do all things, sign any further documents and/or provide any further information which the Contractor may reasonably require to enable the Contractor to perfect and maintain the perfection of its security interest.
12.3 The Client will notify the Contractor of any change in name and/or any other change in the Client’s details (including, but not limited to, changes in the Client’s address, email address, trading name or business practice) not less than 14 days before the change takes effect.
12.4 The Contractor and the Client agree that to the fullest extent permitted by law, nothing in sections 114(1)(a) and 133 of the PPSA will apply in respect of the Client and the Contractor. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
12.5 The Client waives the right to receive a copy of the verification statement or a financing change statement in respect of the Client’s security interest.
12.6 In the event that:
(a) the Client fails to perform any obligation contained or implied in this Agreement; and/or
(b) it is necessary for the Contractor to take any steps or incur any expense to protect its interests under this Agreement, including the registration and maintenance of the Contractor’s security interests or repossession of the Materials,
then the Contractor may perform such obligation, pay such money, or incur such expense, and the Client will indemnify and reimburse the Contractor for all monies paid or expenses incurred (including all legal and associated costs) by the Contractor (inclusive of any tax).
12.7 The Client must not create, or allow or permit the creation of, a security interest (as defined in the PPSA) or lien in any Materials.
12.8 If the Client has not paid an account in full by the due date for payment, the Contractor or its agent(s) may (in addition to its other rights), and is authorised to, enter the Client’s premises without giving prior notice and recover its Materials, and may resell any of them, without incurring any liability to the Client or any person claiming through the Client. The Client may not revoke the permission granted in this clause. - LIABILITY
13.1 Consumer Guarantees Act: If you are a consumer, you have certain rights under the Consumer Guarantees Act 1993, the Building Act and the Fair Trading Act 1986. Those rights apply alongside these Terms and Conditions and are not affected by anything in this clause.
13.2 Limitation of liability:
(a) Claims: We will have no liability for unsatisfactory Materials or Services unless you notify us in writing of your claim within 20 working days after performance of the Services. You will give us the opportunity to inspect the Materials and the work done and must (at your cost) store the Materials separately (if appropriate) and in the state and condition in which they were supplied until our inspection;
(b) We will not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless it is due to our negligence;
(c) We will have the option, exercisable at our discretion, to replace or give credit for any Services in respect of which any claim is made or proven, thereby fully discharging all our legal
liability. Materials will not be accepted for return other than in
accordance with this clause;
(d) We are not liable for any loss caused by you, or any loss that
results from your failure to take reasonable steps to avoid or minimise your loss;
(e) Notwithstanding any other provision of this agreement, neither
party will be liable for indirect, special, consequential or similar
damages or losses, including but not limited to loss of profit or revenues or other financial or economic losses of any kind
and whether or not the other party has been advised of the
potential for such damages.
13.3 Materials Warranties: A warranty for Materials will be the current
warranty provided by the manufacturer of the Materials. We will 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 Materials. We will not be responsible for
materials supplied by the Client.
13.4 Indemnity: Whilst we will take all care to avoid damage to any
underground services you agree to indemnify us in respect of all
and any liability claims, loss, damage, costs and fines as a result of
damage to services not precisely located and notified as per clause
8.2.
13.5 Business purposes: If you hold yourself out as acquiring the
Services for business purposes, you acknowledge that the
provisions of the Consumer Guarantees Act 1993 will not apply and
are expressly excluded. - CONSTRUCTION CONTRACTS ACT 2002
14.1 The Client hereby expressly acknowledges that:
(a) the Contractor has the right to suspend work within five (5)
working days of written notice of its intent to do so if a payment claim is served on the Client, and:
(i) the payment is not paid in full by the due date for payment
and no payment schedule has been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued
by the Client in relation to the payment claim is not paid in full
by the due date for its payment; or
(iii) the Client has not complied with an adjudicator’s notice
that the Client must pay an amount to the Contractor by a particular date; and
(iv) the Contractor has given written notice to the Client of its
intention to suspend the carrying out of construction work
under the construction contract.
(b) if the Contractor suspends work, it:
(i) is not in breach of contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming
through the Client; and
(iii) is entitled to an extension of time to complete the contract; and
(iv) keeps its rights under the contract including the right to
terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s
determination has not been complied with.
(c) if the Contractor exercises the right to suspend work, the
exercise of that right does not:
(i) affect any rights that would otherwise have been available to the
Contractor under the Contract and Commercial Law Act 2017; or
(ii) enable the Client to exercise any rights that may otherwise have
been available to the Client under that Act as a direct consequence
of the Contractor suspending work under this provision. - GENERAL
15.1 Marketing and Advertising Consent: You consent to us making
photographs and videos of your site before, during and after
completion of the Services, and using those images for marketing,
advertising and other promotional purposes. This includes, but is
not limited to, use on our website, social media platforms, print
materials, and other digital or physical media. In doing so we will ensure we maintain your privacy and confidentiality and we will not
disclose any of your personal information (other than the street and
suburb name). You also consent to us placing our signage on your
site while we are working on it.
15.2 Dispute Resolution: Any dispute concerning this Agreement will
be settled by full and frank discussion between the parties. In the
absence of any agreement within 30 days of any notification of any
dispute, the matter will be referred to the Building Disputes Tribunal
for a resolution in accordance with the Tribunal’s processes.
15.3 Service of Notices: Any written notice given under this Agreement
will be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this
Agreement;
(c) if sent by email to the other party’s last known email address.
Any notice that is posted will be deemed to have been served,
unless the contrary is shown, at the time when by the ordinary
course of post, the notice would have been delivered.
15.4 Events outside our control: If any cause beyond our reasonable control including but not limited to order of a government or other authority, strike, lockout, labour dispute, delays in transit, difficulty in procuring components or equipment, embargo, accident, emergency, natural event interfere with our performance of any of our obligations under these Terms and Conditions then we may at our sole discretion suspend our performance of any such obligation or cancel any Agreement and we will not be liable to you in any respect.
15.5 Waiver: These Terms and Conditions remain in force notwithstanding any neglect, forbearance or delay in enforcement. We will not be deemed to have waived any condition unless such waiver will be in writing and such waiver will only apply to the particular transaction to which it refers.
15.6 Severability: If any clause or provision of these Terms and Conditions will be held illegal or unenforceable by any judgment of any Court or Tribunal having competent jurisdiction, such clause will not apply to this Agreement. The remaining provisions of this Agreement will remain in full force and effect as if the clause or provision held to be illegal or unenforceable had not been included.15.7 Privacy Policy: Any personal information collected by us in connection with this Agreement will only be used or disclosed for the purposes of ensuring performance of this Agreement (including collection of debts) and any future like arrangement or arrangements. This may include disclosure within our organisation and to other parties involved in performing the Services. We agree to comply with relevant privacy laws in respect of any personal information collected in connection with the provision of the Services and any future like arrangement or arrangements.
15.8 Electronic Communications: You consent to receive commercial electronic messages from us. If you wish to opt out of receiving these messages, please use the “unsubscribe” function to be removed from the mailing list.
15.9 Confidentiality: Each party must keep confidential during the term and after termination of this Agreement the existence and terms of this Agreement and all information of a confidential or sensitive nature supplied by the other party to this Agreement except to the extent that disclosure is required by law or where such information is or becomes available in the public domain without breach by a party of its confidentiality obligations under this Agreement. A party may disclose such information to its legal and other advisers, bankers and other persons who are subject to an obligation of confidentiality.
A Truck & Digger Limited
Cartage Terms and Conditions of Trade
- GENERAL
1.1 In these Terms and Conditions:
(a) “Agreement” means our Quote, and these Terms and
Conditions.
(b) “Contractor”, “We” or “Us” means A Truck & Digger Limited
and its successors and assigns.
(c) “Client” or “You” means the person, firm, company or entity
buying Goods and Services from us.
(d) “Goods” means the material, equipment or waste to be
transported as described in our Quote.
(e) “Price” means the contract price stated in our Quote or as otherwise fixed in accordance with this Agreement.
(f) “Quote” means our quotation or estimate document.
(g) “Services” means all cartage Services we will supply to you as described in our Quote, or as otherwise agreed in accordance
with this Agreement. - PRICE
2.1 Calculation: At our sole discretion the Price will be either:
(a) Our quote Price (subject to clause 2.3); or
(b) Our estimated Price (subject to clause 3), which will not be
deemed binding upon us as the actual Price can only be
determined upon completion of the Services. We undertake to
keep you informed should the actual Price look likely to
exceed the original estimate; or
(c) As indicated on our invoices in respect of the Services.
2.2 Price plus tax: You will pay the Price together with the amount of
any Goods and Services Tax or any other tax which may be
payable in respect of the supply of Services or otherwise under
these Terms and Conditions.
2.3 Quotation: Any quotation we have made for the supply of Services
constitutes an invitation to treat and not a binding offer. All
quotations lapse after 30 days but we reserve the right to change
or withdraw any quotation without notice at any time. - VARIATIONS
3.1 We reserve the right to change the Price:
(a) if you request a change to the Goods;
(b) if you request a variation to the Services;
(c) where there is a delay in the Goods being made available, or
items are not in stock and extra sourcing is required;
(d) specialist materials or parts/tools are required;
(e) in the event of increases to us in the cost of labour or Goods, or fluctuations in currency exchange rates, which are beyond
our control;
(f) in the event that we are required to provide the Services
urgently, and as a result may require our employees to work
outside normal business hours (including but not limited to
working, through lunch breaks, weekends and/or Public
Holidays) with the consequential additional labour costs
(penalty rates may apply).
3.2 Variations do not need to be in writing. - CANCELLATION
4.1 For breach: Without prejudice to any other remedies we may
have, if at any time you are in breach of any obligation (including
those relating to payment) under these terms and conditions we may suspend or terminate the provision of Services to you. We will
not be liable to you for any loss or damage you suffer because we have exercised our rights under this clause.
4.2 Before commencement: We may cancel any contract to which
these terms and conditions apply or cancel provision of Services at
any time before we have commenced the Services, by giving
written notice to you. On giving such notice, we will repay to you
any sums paid in respect of the Price. We will not be liable for any
loss or damage whatsoever arising from such cancellation.
4.3 Cancellation by Client: In the event that you cancel this
Agreement, or the provision of any Services, you will be liable for:
(a) a cancellation fee if you give us less than 24 hours’ notice;
(b) our fees for work done to date on an hourly rate basis;
(c) the cost of mileage incurred (if any);
(d) the cost of any Goods already procured on your behalf; and
(e) any and all loss incurred (whether direct or indirect) by us as a direct result of the cancellation (including, but not limited to,
any loss of profits). - PAYMENT
5.1 Deposit: In order to confirm a booking for Services you may be
required to pay a deposit.
5.2 Payment of balance: You will pay the balance of your account
(time being of the essence) according to any combination of the
following as agreed:
(a) on completion of the Services;
(b) the date specified on any invoice or other form as being the
date for payment; or
(c) failing any notice to the contrary, on receipt of our invoice.
5.3 No deductions: All payments by you will be full, free and clear of
any deduction, withholding, set-off, counterclaim or other claim.
5.4 Acceleration: Notwithstanding any credit period, full payment for all unpaid Services will become due immediately upon:
(a) You or any guarantor becoming insolvent or bankrupt;
(b) The commencement of any act or proceeding in which your or any guarantor’s insolvency is involved; or
(c) You or any guarantor resolving to wind up or being ordered to be wound up or having a receiver, liquidator of official manager appointed in respect of all or any of your assets; or(d) You or any guarantor ceasing to trade. - PENALTY FOR LATE PAYMENT
6.1 Debt collection: Any invoice unpaid more than 30 days after the due date will be referred to debt collection.
6.2 Default interest: Failure by you to make payment in full of any amount payable pursuant to this Agreement on the due date constitutes a default and, without prejudice to any other rights or remedies available to us, simple interest at 5% per month calculated daily will be payable upon demand and from the due date until payment.
6.3 Legal costs: You will indemnify us against all loss, costs and expenses, including legal costs on a solicitor/client basis, which we may suffer or incur as a result of any failure by you to make due and punctual payment. - PERFORMANCE OF THE SERVICES
7.1 Time: We undertake to use reasonable endeavours to deliver the Services within the time specified by us but dates we give for performance will be indicative only. No date specified by you will be binding on us without our written agreement. In the event that we are unable to provide the Services as agreed solely due to any action or inaction by you then we will be entitled to charge a reasonable fee for re-providing the Services at a later time and date. We are also entitled to delay or reschedule Services where they are affected by poor weather and will communicate with you about this.
7.2 Delays: The Services start date will be put back and/or the completion date extended by whatever time is reasonable in the event that we claim an extension of time (by giving you written notice) where completion is delayed by an event beyond our control, including but not limited to any failure by you to:
(a) have the site ready for the Services; or
(b) notify us that the site is ready.
7.3 Services to be supplied: You acknowledge and agree that the Services are limited to those set out in the invoice, order form or other similar document issued by us.
7.4 Supply or Substitution of Goods: If we are not able to obtain the exact Goods specified, we can use substitute alternate goods at our discretion. - YOUR OBLIGATIONS
8.1 Access: You will ensure that we have clear and free access to the site at all times to enable us to perform the Services and that the Goods are ready for pick-up.
8.2 Information: You will provide us with any relevant information required to enable us to perform the Services. This includes advising us of the precise location of all underground services on the site. We will be entitled to rely on the accuracy of any plans, specifications and other information provided by you. Where information you provide is incorrect and we are required to undertake additional work we reserve the right to charge for such additional work.
8.3 Consents/Approvals: You will obtain, at your cost, all licenses, approvals, application and permits that may be required for the Services.
8.4 Insurance: You will obtain and keep on foot contracts work cover in relation to the Services if necessary.
8.5 Laws: you will comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any Worksafe guidelines regarding health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
8.6 Health and Safety: It is your responsibility to ensure that all safety measures have been taken at the site where the Services are to be performed so as to comply with all applicable health and safety laws. We have not and will not at any time assume any obligations as your agent or otherwise which may be imposed on you from time to time pursuant to the Health & Safety at Work Act 2015, including any subsequent regulations (the “HSW Act”) arising from the engagement of Services under this Agreement. Unless otherwise agreed, the parties agree that for the purposes of the HSW Act, we will not be the person who controls the place of work. Prior to our personnel attending the relevant site to perform the Services you will:
(a) Inform us of all applicable health and safety rules and regulations that may apply at the site;
(b) Notify us promptly of any risk, safety issues or incidents that
may arise or may have arisen at the site that are relevant to
our provision of the Services.
8.7 Right to delay or cancel: If we are concerned about the presence
of any hazards or risks at the site we may, in our absolute
discretion, delay the performance of some or all of the Services or cancel any order by notice in writing to you. - OUR OBLIGATIONS AND WARRANTIES
9.1 We warrant that:
(a) We have the right to enter into this Agreement;
(b) We will perform the Services to a reasonable standard of care and skill;
(c) We will perform the Services in accordance with relevant
laws.
9.2 We will take reasonable steps to ensure that while on site our personnel comply with any health and safety requirements and
other reasonable security requirements you make known to us.
9.3 If this Agreement relates to a residential building project then the
implied warranties in the Building Act are excluded as far as possible. - LIABILITY
10.1 Consumer Guarantees Act: If you are a consumer, you have
certain rights under the Consumer Guarantees Act 1993 and the
Fair Trading Act 1986. Those rights apply alongside these Terms
and Conditions and are not affected by anything in this clause.
10.2 Limitation of liability:
(a) Claims: We will have no liability for unsatisfactory Goods or Services unless you notify us in writing of your claim within 10
working days after performance of the Services. You will give us the opportunity to inspect the Goods and work done and
must (at your cost) store the Goods separately (if appropriate)
and in the state and condition in which they were supplied
until our inspection.
(b) We will not be liable for any loss or damage to the site
(including, without limitation, damage to pathways, driveways
and concreted or paved or grassed areas) unless it is due to
our negligence.
(c) We will have the option, exercisable at our discretion, to
replace or give credit for any Services in respect of which any
claim is made or proven, thereby fully discharging all our legal
liability. Goods will not be accepted for return other than in
accordance with this clause.
(d) We are not liable for any loss caused by you, or any loss that
results from your failure to take reasonable steps to avoid or minimise your loss.
(e) Notwithstanding any other provision of this agreement, neither
party will be liable for indirect, special, consequential or similar
damages or losses, including but not limited to loss of profit or revenues or other financial or economic losses of any kind
and whether or not the other party has been advised of the
potential for such damages.
10.3 Goods Warranties: A warranty for Goods will be the current
warranty provided by the manufacturer of the Goods. We will 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.
10.4 Indemnity: Whilst we will take all care to avoid damage to any
underground services you agree to indemnify us in respect of all
and any liability claims, loss, damage, costs and fines as a result of
damage to services not precisely located and notified as per clause
8.2.
10.5 Business purposes: If you hold yourself out as acquiring the
Services for business purposes, you acknowledge that the
provisions of the Consumer Guarantees Act 1993 will not apply and
are expressly excluded. - TITLE
11.1 The parties agree that the Client’s obligations to the Contractor for
the provision of the Services will not cease (and ownership of the
Materials will not pass) until:
(a) the Client has paid the Contractor all amounts owing to the
Contractor; and
(b) the Client has met all other obligations due by the Client to the
Contractor in respect of all contracts between the Contractor
and the Client
11.2 The parties further agree that, until ownership of the Goods passes
to the Client in accordance with clause 11.1:
(a) the Client is only a bailee of the Goods and unless the Goods
have become fixtures must return the Goods to the Contractor
on request;
(b) the Client holds the benefit of the Client’s insurance of the
Goods on trust for the Contractor and must pay to the
Contractor the proceeds of any insurance in the event of the
Goods being lost, damaged or destroyed. The production of
these terms and conditions by the Contractor will be sufficient
evidence of the Contractor’s rights to receive the insurance
proceeds direct from the insurer without the need for any person dealing with the Contractor to make further enquiries;
(c) unless the Goods have become fixtures the Client irrevocably authorises the Contractor to enter any premises where the Contractor believes the Goods are kept and recover possession of the Materials;
(d) the Client will not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Contractor;
(e) the Contractor may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client. - PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”) AND PROTECTION OF THE CONTRACTOR’S RIGHTS 12.1 The Client acknowledges that on signing or assenting to the Agreement the Client grants the Contractor a security interest in favour of the Contractor in respect of the Goods and their proceeds and secures payment by the Client to the Contractor of all amounts from time to time owing by the Client to the Contractor under this Agreement or any other agreement between them. When Goods supplied by the Contractor have become an accession or have been manufactured, processed, co-mingled or affixed with other property, the Client will ensure that Goods supplied by the Contractor and their proceeds will remain identifiable. The Client acknowledges that the Client’s security interest continues in the accession or the processed or co-mingled Materials and their proceeds.
12.2 The Client will promptly do all things, sign any further documents and/or provide any further information which the Contractor may reasonably require to enable the Contractor to perfect and maintain the perfection of its security interest.
12.3 The Client will notify the Contractor of any change in name and/or any other change in the Client’s details (including, but not limited to, changes in the Client’s address, email address, trading name or business practice) not less than 14 days before the change takes effect.
12.4 The Contractor and the Client agree that to the fullest extent permitted by law, nothing in sections 114(1)(a) and 133 of the PPSA will apply in respect of the Client and the Contractor. The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
12.5 The Client waives the right to receive a copy of the verification statement or a financing change statement in respect of the Client’s security interest.
12.6 In the event that:
(a) the Client fails to perform any obligation contained or implied in this Agreement; and/or
(b) it is necessary for the Contractor to take any steps or incur any expense to protect its interests under this Agreement, including the registration and maintenance of the Contractor’s security interests or repossession of the Materials,
then the Contractor may perform such obligation, pay such money, or incur such expense, and the Client will indemnify and reimburse the Contractor for all monies paid or expenses incurred (including all legal and associated costs) by the Contractor (inclusive of any tax).
12.7 The Client must not create, or allow or permit the creation of, a security interest (as defined in the PPSA) or lien in any Materials.
12.8 If the Client has not paid an account in full by the due date for payment, the Contractor or its agent(s) may (in addition to its other rights), and is authorised to, enter the Client’s premises without giving prior notice and recover its Goods, and may resell any of them, without incurring any liability to the Client or any person claiming through the Client. The Client may not revoke the permission granted in this clause. - CONSTRUCTION CONTRACTS ACT 2002
13.1 The Client hereby expressly acknowledges that:
(a) the Contractor has the right to suspend work within five (5) working days of written notice of its intent to do so if a payment claim is served on the Client, and:
(i) the payment is not paid in full by the due date for payment and no payment schedule has been given by the Client; or
(ii) a scheduled amount stated in a payment schedule issued by the Client in relation to the payment claim is not paid in full by the due date for its payment; or
(iii) the Client has not complied with an adjudicator’s notice that the Client must pay an amount to the Contractor by a particular date; and
(iv) the Contractor has given written notice to the Client of its intention to suspend the carrying out of construction work under the construction contract.
(b) if the Contractor suspends work, it:
(i) is not in breach of contract; and
(ii) is not liable for any loss or damage whatsoever suffered, or alleged to be suffered, by the Client or by any person claiming
through the Client; and
(iii) is entitled to an extension of time to complete the contract; and
(iv) keeps its rights under the contract including the right to
terminate the contract; and may at any time lift the suspension, even if the amount has not been paid or an adjudicator’s
determination has not been complied with.
(c) if the Contractor exercises the right to suspend work, the
exercise of that right does not:
(i) affect any rights that would otherwise have been available to the
Contractor under the Contract and Commercial Law Act 2017; or
(ii) enable the Client to exercise any rights that may otherwise have
been available to the Client under that Act as a direct consequence
of the Contractor suspending work under this provision. - GENERAL
14.1 Marketing and Advertising Consent: You consent to us making
photographs and videos of your site before, during and after
completion of the Services, and using those images for marketing,
advertising and other promotional purposes. This includes, but is
not limited to, use on our website, social media platforms, print
materials, and other digital or physical media. In doing so we will ensure we maintain your privacy and confidentiality and we will not
disclose any of your personal information (other than the street and
suburb name). You also consent to us placing our signage on your
site while we are working on it.
14.2 Dispute Resolution: Any dispute concerning this Agreement will
be settled by full and frank discussion between the parties. In the
absence of any agreement within 30 days of any notification of any
dispute, the matter will be referred to the Disputes Tribunal for a resolution in accordance with the Tribunal’s processes.
14.3 Service of Notices: Any written notice given under this Agreement
will be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this
Agreement;
(c) if sent by email to the other party’s last known email address.
Any notice that is posted will be deemed to have been served,
unless the contrary is shown, at the time when by the ordinary
course of post, the notice would have been delivered.
14.4 Events outside our control: If any cause beyond our reasonable
control including but not limited to order of a government or other
authority, strike, lockout, labour dispute, delays in transit, difficulty
in procuring components or equipment, embargo, accident,
emergency, natural event interfere with our performance of any of our obligations under these Terms and Conditions then we may at our sole discretion suspend our performance of any such obligation or cancel any Agreement and we will not be liable to you in any
respect.
14.5 Waiver: These Terms and Conditions remain in force
notwithstanding any neglect, forbearance or delay in enforcement.
We will not be deemed to have waived any condition unless such
waiver will be in writing and such waiver will only apply to the
particular transaction to which it refers.
14.6 Severability: If any clause or provision of these Terms and
Conditions will be held illegal or unenforceable by any judgment of
any Court or Tribunal having competent jurisdiction, such clause
will not apply to this Agreement. The remaining provisions of this
Agreement will remain in full force and effect as if the clause or provision held to be illegal or unenforceable had not been included.
14.7 Privacy Policy: Any personal information collected by us in
connection with this Agreement will only be used or disclosed for
the purposes of ensuring performance of this Agreement (including
collection of debts) and any future like arrangement or arrangements. This may include disclosure within our organisation
and to other parties involved in performing the Services. We agree
to comply with relevant privacy laws in respect of any personal
information collected in connection with the provision of the
Services and any future like arrangement or arrangements.
14.8 Electronic Communications: You consent to receive commercial
electronic messages from us. If you wish to opt out of receiving
these messages, please use the “unsubscribe” function to be
removed from the mailing list.
14.9 Confidentiality: Each party must keep confidential during the term
and after termination of this Agreement the existence and terms of
this Agreement and all information of a confidential or sensitive
nature supplied by the other party to this Agreement except to the
extent that disclosure is required by law or where such information
is or becomes available in the public domain without breach by a party of its confidentiality obligations under this Agreement. A party
may disclose such information to its legal and other advisers,
bankers and other persons who are subject to an obligation of
confidentiality.