These Terms and Conditions apply to all transactions between Us and You including, but not limited to, the provision of Services on credit, whether or not You have submitted an Application and/or been granted an Account.
Definitions
In these Terms, unless the context otherwise requires: “Account” means a credit account established by Us in Your name; “ACL” means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth); “Agreement” means any agreement between Us and You for the provision of Services by Us to You; “Application” means an application by You for commercial credit only, incorporating these Terms; “Consumer” means a person who acquires goods or services as a consumer within the meaning of Section 3 of the ACL; “Due Date” means, unless otherwise agreed or notified to You at time of Order, immediately upon the provision of Services or, if You have an Account with Us, the date which is thirty (30) days after the end of the month in which the invoice is dated; “GST” means Goods and Services Tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth); “Guarantor” means any person who guarantees Your indebtedness to Us; “Order” means any request by You for the provision of Services by Us; “PPSA” means the Personal Property Securities Act 2009 (Cth) and its subordinate legislation; “Price” means the price at which We agree to provide any Services to You; “Services” means any services provided by Us to You for a quoted or agreed Price; “Terms” means these Terms and Conditions; “You/Your” means any person, firm, corporation or in the case of an unincorporated body, each proprietor jointly and severally, that has given us an Application or an Order, and includes Your employees, agents, successors, administrators, and assigns; “We/Us/Our” means Fraser Earthworks Pty Ltd (ABN 67 153 118 837) and any of its related entities as defined by the Corporations Act 2001 (Cth).
Conditions of Approved Credit Accounts
You acknowledge that as part of Your Application, We may check Your credit history, and if You are a company, the credit history of Your directors, to enable Us to evaluate Your creditworthiness.
If You are a company Your directors may be required, as a condition of Us approving Your Application, to give Us a personal guarantee for all debts or liabilities that You owe to Us from time to time.
We may, at any time and without having to provide a reason, refuse to extend further credit to You, vary Your credit limit or terminate Your A
You agree to notify Us of any changes to any of the details set out in Your Application or subsequently notified to Us.
The granting by Us of an Account creates no obligation on Us to provide You with any Services and Our refusal or failure to grant You an Account does not prevent Us from providing You with Services, whether on credit or otherwise.
Provision of Services
All Services will be provided on these Terms as amended from time to time by Us by notice in writing to You at Our discretion. Any alterations to these Terms will apply to all transactions between You and Us occurring after written notification of the altered Terms has been given to You.
In Our absolute discretion We may refuse to provide Services to You, whether or not part of a contract has been performed, where You breach these Terms.
You will have no right, title or interest in any of the tools or equipment used by us to provide the Services.
Your Obligations Concerning the Services
You must inspect all Services immediately after being advised that the Services have been completed, and You must carry out any tests that a prudent purchaser would carry out in relation to such Services. You will have seven (7) days after completion of the Services to notify Us of any alleged defect in the Services or any other reason why You believe the Services do not comply with Your Order. If You do not notify Us of any defect or irregularity in the Services within this time You will be deemed to have accepted the Services free of any defect or irregularity.
You will be responsible for obtaining all necessary site-related licences and permits in connection with any Services that You require Us to provide, but not limited to traffic and environmental permits.
You will bear all responsibility, cost and risk related to site conditions, including:
conducting all necessary site surveys and soil tests and providing Us with relevant survey plans and drawings prior to commencement of any work by Us;
identifying, locating and advising Us of, as well as isolating or disconnecting, all utility services on or near the site that may affect, or may be affected by, the work You require Us to undertake, including conducting a “dial before you dig” search or similar to locate any underground utility services;
liability for any additional costs incurred as a result of unforeseen site conditions;
use of correct fill and any other materials brought onto the site to be incorporated into the work undertaken by Us; and
supplying water from water mains onsite that is suitable and sufficient for all necessary dust control and compaction.
You must provide full and free access for Our personnel and equipment at the site where the Services are to be performed sufficient to enable Us undertake and complete any work required to provide the Services. Any delays due to lack of access will incur extra charges as per Our standard schedule of rates.
You warrant that the Services are not intended and will not be used for Your own personal, household or domestic purposes.
Price and Payment
The Price in relation to Services shall be the price quoted by Us or, if no price is quoted, the relevant price listed or any price calculated by reference to any schedule of rates in any current document published by Us as at the date on which We receive Your Order.
Any quotation given by Us is valid for a period of the shorter of 30 days from its date or the expiry date specified in the quotation, provided that We have not previously withdrawn it.
Any price list or schedule of rate supplied or published by Us shall be a guide only and is subject to change without notice.
All prices are listed or quoted exclusive of GST unless otherwise indicated.
If We have any liability to pay GST on any amounts invoiced, We will add an amount equivalent to our GST liability to the tax invoice for the relevant Services and You must pay that amount, in addition to the Price, when You pay the invoice (unless the consideration for that Service is specifically expressed to be inclusive of or exempt from GST).
You must pay the full amount of any invoice or statement that We issue to You by the Due Date.
Notwithstanding anything else in these Terms, if You commit an act of bankruptcy or do any act that would constitute a ground for the making of a winding up order by a Court, all money due to Us on your Account or otherwise will become immediately due and payable upon the commission of such act.
If You fail to pay any amount owing to Us by the Due Date, We reserve the right to charge You:
An administration fee of $20.00 per month at the end of each calendar month in which any amount remains overdue for payment by You to Us;
Interest on the balance amount outstanding at the rate of 10% per annum from the Due Date, calculated daily; and
All costs (including legal costs on a full indemnity basis), expenses or losses incurred or sustained by Us as a result of any failure by You and/or a Guarantor to comply with these Terms or a guarantee given in Our favour, including any costs incurred by Us as a result of cheque that Your bank fails to honour upon presentation for payment. Such costs and expenses may be recovered by Us from You as a liquidated debt and may be added to Your Account and invoiced to You.
A written statement signed by a Director, Credit Manager or other duly authorised person on Our behalf stating the balance of monies due to Us by You shall be prima facie evidence of the amount of Your indebtedness to Us at the date of that statement.
You are not entitled to make any set-off against or deduction from any amount You owe to Us in respect of any amount that You claim We owe to You. We may at any time set-off amounts that We owe to You against any sums You owe to Us.
You may pay any amount You owe to Us in respect of any Services or on Your Account by electronic funds transfer, cash or cheque (or, if a credit card facility is offered by Us, by credit card). If any of Your cheques are dishonoured upon presentation for payment. We will thereafter not accept any payment from You in the form of a cheque.
As far as the context of any Services allows, this Agreement and any invoices issued under it shall be deemed to be a claim for payment under the Industry Fairness (Security of Payment) Act 2017 (Qld).
Security
We may, at Our discretion, require You to pay a security deposit in addition to the Price prior to or at the commencement of any Services and if You breach any of these Terms We may, without limiting any of Our other rights, resort to and otherwise apply that security deposit wholly or partly towards satisfaction of any costs, loss, damage or liability that We incur as a consequence of your breach.
Subject to clause 7.1, We will return the security deposit to You (to the extent not resorted to) no later than one (1) month the completion of the Services, so long as You are not then in default under this Agreement.
You hereby grant a security interest in all Your present and after-acquired property and in all Your present and future rights in relation to any personal property and You charge all beneficial interests (freehold and leasehold) in land wherever located held now or in the future by You as security for Your indebtedness to Us and for Your obligations under this Agreement.
You will immediately execute a consent to caveat or mortgage in terms determined by Us if required by Us to secure the security interest created by this clause or any security interest You have given or created in Our favour.
You agree that if You fail to execute a consent to caveat or a mortgage within a reasonable time of being so requested by Us, then You irrevocably and by way of security appoint Us and Our agent or solicitor to be Your true and lawful attorney with authority to execute and register such instruments on Your behalf and You consent to the registration of this power of attorney.
Liability and Indemnities
We warrant that Our Services will be provided with due care and skill in a competent and workmanlike manner and in accordance with generally applicable industry standards
Where the ACL applies You may have the benefit of guarantees which cannot be excluded, however, to the extent permitted by law, all express or implied warranties, representations, guarantees, terms and conditions other than those expressly contained in this Agreement are expressly excluded from this Agreement.
If You acquire Services from Us as a Consumer, Our Services come with guarantees that cannot be excluded under the ACL. 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 be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure You are entitled to have problems with the Service rectified in a reasonable time and, if this is not done, to cancel Your contract and obtain a refund for the unused portion of the contract.
If you wish to make a claim under any express warranties given by us, You must contact Us using the contact details shown for Us on the Application or on Our website, within 48 hours after first becoming aware of the alleged defect.
Except as otherwise required by the ACL or any other law, Our liability to You in relation to any Services is limited to the cost paid by You for those Services or alternatively, an obligation to resupply the Services. To the fullest extent permitted by law, We will not be liable in any event whether in tort (including negligence), contract or otherwise for any loss of profits or any consequential, indirect or special damage, loss, injury or death of any kind suffered by You or any other person.
You agree to indemnify Us for and against all claims, liabilities, loss, damage, costs or expenses that We may directly or indirectly suffer or incur as a result of:
Damage to or loss, theft, or destruction of any of Our property (including Our tools and equipment);
Damage to or destruction of any other property (whether belonging to You or a third party) in connection with Our provision of Services;
Injury, illness or harm to any person in connection with the use or presence of any of Our equipment, tools or other of Our property on or at any site at which We are providing Services, except to the extent that such injury, illness or harm arose as a result of any use of Our property that was authorised by Us;
Any action by Us to recover money You owe to Us or to secure, perfect or enforce any of Our rights under this Agreement;
Any new or increased tax, levy, duty or other impost imposed as a result of any new or changed law that applies to this Agreement or its subject matter; or
Your negligence, breach of this Agreement or malicious or illegal act;Except to the extent that such things are caused by Our negligence or Our breach of this Agreement.
PPSA
In this clause, the terms “security agreement” and “security interest” have the same meaning as that given to them by the PPSA.
You agree that You will, if requested by Us, sign any documents, provide any information or do anything else We request, to ensure that any security interest created in Our favour by these Terms is, to the fullest extent possible under the PPSA, perfected in accordance with Part 2.2 of the PPSA.
You agree that, until any security interest created in Our favour by these Terms has been perfected, You will not register or permit to be registered or enter into any security agreement that allows any other party to register a security interest that may adversely affect the priority or enforceability of Our security interest.
In relation to security interests that are not used predominantly for personal, domestic or household purposes, section 115 of the PPSA allows the parties to contract out of certain provisions of the PPSA (“Removable Provisions”). To the extent that those Removable Provisions would have the effect of conferring rights on You or imposing obligations on Us that You or We would not otherwise have had, they are hereby contracted out of and will not apply to any Agreement or transaction between You and Us or to any security interest created in Our favour. You also agree to waive Your right to receive a verification statement under section 157 of the PPSA or any notices under any of the provisions listed in section 144 of the PPSA.
Notwithstanding section 275 of the PPSA, You and We agree to keep confidential all information of the kind referred to in section 275, unless compelled by law to disclose such information.
General
Where You are a partnership or trustee You warrant that You have the right to be fully indemnified out of trust or partnership assets in relation to any liability incurred by You in connection with any Supply provided by Us to You.
This Agreement is governed by the laws of the State of Queensland and You agree to submit to the non-exclusive jurisdiction of the courts in the State of Queensland. You agree that proceedings may be commenced in any court in Richlands or Brisbane and consent to that court having jurisdiction, notwithstanding that it may not otherwise have jurisdiction, but for this clause.
If any provision of this Agreement is illegal, void or unenforceable, it will severed from this Agreement and the remainder of the Agreement will remain valid and enforceable.
No amendment or variation to these Terms or this Agreement will be effective unless it is in writing. We may vary these Terms at any time and any such variation will be incorporated into this Agreement with effect from the date on which We notify You of such variation.
Any provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
We may at any time assign Our rights and interests or novate Our duties and obligations (in whole or in part) under this Agreement and You hereby consent to any such assignment or novation by Us. You may not assign or attempt to any of Your rights or obligations under this Agreement without Our prior written consent in writing, which consent may be given or refused at Our absolute discretion and subject to such terms as We see fit.
Notices in connection with this Agreement may be given in the manner permitted by addressing and delivering or transmitting the notice to the address or contact number listed:
for Us, as set out in this Agreement or otherwise notified by Us to You from time to time; or
for You, as stated in Your Application or otherwise notified by You to Us from time to time.
Notices shall be deemed to have been received at the time they would normally be received in the ordinary course according to the method of delivery used, except where the sender receives information or becomes aware or ought reasonably to be aware of circumstances that would indicate to a reasonable person that the notice had not been received.
Neither party shall be liable for any default or delay 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.
Any failure by Us to enforce any clause of this Agreement, or any forbearance, delay or waiver of Our rights or indulgence granted by Us to You will not be construed as a waiver of Our rights under this Agreement.
