|Please read prior to any dealings with Axles Earthmoving & Civil Works Pty Ltd.Axles Earthmoving & Civil Works Pty Ltd accepts that all customers have read and agree with our terms of trading as outlined below.|
1.1 “Client” means the person/entity specified as the Client on the Work Approval Form.1.2 “Contractor” means Axles Earthmoving & Civil Works Pty Ltd.
1.3 “Delivery Site” means the site named as the delivery site on the Work Approval Form.
1.4 “Guarantor” means the person/entity named as the Guarantor on the Work Approval Form.
1.5 “Goods” shall mean goods supplied by the Contractor to the Client and are as described on the Work Approval Form.
1.6 “GST” has the meaning given to that term by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.7 “Price” shall mean the price stated on the Work Approval Form and as may be varied in accordance with clause 2 of this agreement.
1.8 “Services” means the services supplied by the Contractor to the Client and are as described on the attached Work Approval Form.
1.9 “Work Approval Form” means the form titled “Work Approval Form” attached to this agreement.
2.1 The Client must pay the Price to the Contractor.
2.2 The Contractor reserves the right to change the Price in the event of a variation to the Work Approval From. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties beyond the reasonable control of the Contractor such as hard rock barriers below the surface or iron reinforcing rods in concrete) will be charged for on the basis of the Contractors then current rates and will be shown as variations on the invoice.
2.3 At the Contractors sole discretion, payment must be made at either:
2.4 The Client must not set off any amount owing by the Contractor to the Client against the Price.
2.5 Payment must be made by cash, cheque, bank cheque, direct credit, credit card or any other
method agreed between the Client and the Contractor. Payment by credit card will incur a 3% surcharge above the Price.
2.6 The Price excludes any GST or other applicable taxes or duties. Any applicable GST, other tax or duty will be payable in addition to the Price.
2.7 If the Client fails to pay the Price in accordance with this agreement, without limiting any other remedies available to the Contractor, the Contractor may suspend or terminate the supply of Goods and/or Services to the Client and any of its other obligations under the terms and conditions. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
2.8 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of 8% per annum calculated daily.
2.9 If any account remains overdue after 30 days then an amount of the greater of $50.00 or 20.00% of the amount overdue (up to a maximum of $500.00) shall be levied for administration fees which sum shall become immediately due and payable.
3.1 Delivery of the Goods and/or Services shall take place when the Goods and/or Services are delivered to the Delivery Site.
3.2 The Contractor may deliver the Goods and/or Services by separate instalments.
3.3 The Client shall take delivery of the Goods and/or Services tendered notwithstanding that the quantity delivered shall be either greater or lesser than the quantity ordered. The Contractor will adjust the Price pro rata to the discrepancy.
3.4 The failure of the Contractor to deliver shall not entitle either party to treat this agreement as repudiated.
3.5 The Contractor shall not be liable for any loss or damage whatever due to failure by the Contractor to deliver the Goods and/or Services (or any part of them) promptly or at all, where due to circumstances beyond the control of the Contractor.
3.6 Title to an item of Goods passes from the Contractor to the Client when all amount payable by the Client to the Contractor under this agreement or in connection with the Goods and/or Services have been paid in full and any other obligations of the Client in respect of all contracts between the Contractor and the Client have been met.
3.7 The Client bears the risk relating to the Goods and/or Services from the delivery of the Goods and/or Services to the Delivery Site.
3.8 It is further agreed that:
4.1 Subject to clauses 4.2, 4.3 and 4.4, the Contractor is not liable for any loss or damage, including consequential loss, however caused (including by the negligence of the Contractor) suffered by the Client in connection with the Goods and/or Services. Axles Earthmoving & Civil Works Pty Ltd Terms & Conditions of Trade
4.2 The Client shall inspect the Goods and/or Services immediately on completion and/or delivery (time being of the essence) notify the Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Contractor an opportunity to inspect the Goods and/or Services within a reasonable time following delivery if the Client believes the Goods and/or Services are defective in any way. If the Client shall fail to comply with these provisions the Goods and/or Services shall be presumed to be free from any defect or damage.
4.3 Any claim made by the Client must against the Contractor for loss or damage however caused (including by the negligence of the Contractor) suffered by the Client in connection with the Goods and/or Services must be made in accordance with clause 4.2 or in a reasonable time of the Client becoming entitled to make the claim and any claim not made in accordance with clause 4.2 and this clause 4.3 is absolutely barred. 4.4 If the Trade Practices Act 1974 (Cth) or any other legislation implies a condition or warranty into this agreement in respect of goods or services supplied, and the Contractors liability for breach of that condition or warranty can not be excluded but may be limited, clause 4.1 does not apply to that liability and instead the Contractors liability for such breach is limited to, in the case of a supply of goods, the Contractor replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, the Contractor supplying the services again or paying for the cost of having the services supplied again.
5.1 The Client is liable for, and indemnifies the Contractor from and against, all loss or damage (including legal costs on a solicitor and client basis) incurred or suffered by the Contractor however caused in connection with:
6.1 The Client must:
6.2 The Client acknowledges and agrees that if the Client does not comply with clause 6.1 then the Contractor is only obliged to endeavour to supply the Goods and/or Services to the Client.
7.1 The Guarantor unconditionally and irrevocably guarantees to the Contractor:
7.2 If the Client defaults in:
7.3 As a separate and additional liability, the Guarantor indemnifies the Contractor in respect of:
7.4 This clause contains a continuing guarantee and indemnity despite any settlement of account, intervening payment or anything else until all money payable under this agreement has been paid in full and all the Client’s other obligations under this agreement have been performed and observed.
8.1 Without prejudice to the Contractor’s other remedies at law the Contractor shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Contractor shall, whether or not due for payment, become immediately payable in the event that:
8.2 The Contractor may terminate this agreement at any time by notice to the Client in which case this agreement will terminate on the date specified in that notice, or if no date is specified, immediately.
8.3 The Client expressly waives any rights it may have to terminate this agreement.
8.4 The Client acknowledges that the Contractor may terminate this agreement under this clause 8 without considering the impact on the Client.
8.5 After termination of this agreement, accrued rights or remedies of a party are not affected.
9.1 Despite anything to the contrary contained herein or any other rights which the Contractor may have howsoever:
10.1 The Contractor shall maintain public liability insurance of at least $5m. The Client must maintain insurances that a prudent person in the circumstances would maintain.
11.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
12.1 The Client shall comply with the provisions of all statutes, regulations and by-laws of government, local and other public authorities that may be applicable to the works.
12.2 The Client shall obtain (at its own expense) all licences and approvals that may be required for the works.
12.3 The Client must ensure that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
13.1 The Client and/or the Guarantor/s agree for the Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Contractor.
13.2 The Client and/or the Guarantor/s agree that the Contractor may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
13.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988 (Cth)).
13.4 The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes and for other purposes as shall be agreed between the Client and Contractor or required by law from time to time:
13.5 The Contractor may give information about the Client to a credit reporting agency for the following purposes:
14.1 At the Contractor’s sole discretion, if there are any disputes or claims for unpaid Goods/Services and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 (Qld) may apply.
15.1 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.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and the parties submit to the jurisdiction of the courts of that Queensland.
15.3 The Contractor may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
15.4 The Client agrees that the Contractor 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 the Contractor notifies the Client of such change.
15.5 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
15.6 The failure by the Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.
15.7 This agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
15.8 If a party to this agreement consists of more than one person then an obligation of those persons under this agreement is joint and several.
15.9 Any instructions received by the Contractor from the Client for the supply of Goods and/or Services or the Client’s acceptance of Goods and/or Services supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.
15.10 In this document, unless the context requires otherwise: