In these terms and conditions:
“contractor” means Timothy Peter Becker trading as Becker Earthmoving (and previously registered as Becker Earthmoving & Slashing).
“client” means the legal person named in the tax invoice next to the words “Bill To:”.
1. Agreed price and payment
1.1 The client must pay the agreed price to the contractor.
1.2 The contractor reserves the right to change the agreed price in the event of a variation to the estimation or quotation. 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.
1.3 Payment must be made in accordance with the instructions set out in the tax invoice.
1.4 The client must not set off any amount owing by the contractor to the client against the agreed price.
1.5 The agreed price excludes any GST or other applicable taxes or duties, unless otherwise stated. Any applicable GST, other tax or duty will be payable in addition to the agreed price.
1.6 If the client fails to pay the agreed 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.
1.7 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, in the instance where the client has neglected to settle the account even after Becker Earthmoving staff have made 3 reasonable efforts to notify the client that payment has become overdue.
2. Delivery, title and risk
2.1 Delivery of the goods and/or services shall take place when the goods and/or services are delivered to the delivery site.
2.2 The contractor may deliver the goods and/or services by separate instalments.
2.3 Time is not of the essence, and failure of the contractor to deliver shall not entitle either party to treat this agreement as repudiated.
2.4 The contractor shall not be liable for any loss or damage whatsoever due to failure by the contractor to deliver the goods and/or services (or any part thereof) on time or at all.
2.5 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.
2.6 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. Limitation of liability
3.1 The contractor is not liable for any loss or damage, including consequential loss (being any indirect, special loss or loss of profit), however caused (including by the negligence of the contractor) suffered by the client or any other party whatsoever in connection with the goods and/or services, including the choice of goods and/or services the client makes, or dissatisfaction or concerns by any party connected to the client’s choices. If for any reason any party whatsoever is not happy, this remains the responsibility of the client.
3.2 The client must inspect the goods and/or services immediately on completion, and notify the contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. In the event the contractor is notified, the client will give the contractor a reasonable opportunity to rectify and make-good any default. By failing to inspect and notify the contractor of a default under this term, the client accepts the goods/services and confirms the goods/services are free from any defect.
3.3 If Australian consumer laws imply 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 3.2 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.
4.1 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:
(a) this agreement;
(b) any breach of this agreement by the client;
(c) pursuing payment of any outstanding amounts owed to the contractor by the client;
(d) any claim or threatened claim by a third party in connection with goods and/or services;
(e) any unlawful or negligent act or omission of the client or any person acting or purporting to act on behalf of the client.
5. Client requirements
5.1 The client must:
(a) provide the contractor with access to the delivery site to enable the contractor deliver the goods and/or provide the services;
(b) follow the directions of the contractor in connection with the provision of the goods and/or services; and
(c) provide the contractor with such information and assistance necessary to enable the contractor to deliver the goods and/or provide the Services, including prior to the contractor commencing any work the client must advise the contractor of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, Telstra cables, fibre optic cables, oil pumping mains, and any other services that may be on site. Whilst the contractor will take all care to avoid damage to any underground services the client agrees to indemnify the contractor 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.
6.1 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:
(a) any money payable to the contractor becomes overdue, or in the contractor’s opinion the client will be unable to meet its payments as they fall due; or
(b) the client 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 client or any asset of the client.
6.2 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.
6.3 The client expressly waives any rights it may have to terminate this agreement.
6.4 The client acknowledges that the contractor may terminate this agreement under this clause 6 without considering the impact on the client.
6.5 After termination of this agreement, accrued rights or remedies of a party are not affected.
7.1 The client agrees to not impair the contractor’s ability to meet its obligations under any insurance policy or law.
7.2 The contractor agrees to have all policies readily available for review by the client.
7.3 The client must maintain insurances that a prudent person in the circumstances would maintain.
8. Compliance with Laws
8.1 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.
8.2 The client shall obtain (at its own expense) all licences and approvals and safety checks that may be required for the works.
8.3 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.
9. Building and Construction Industry Security of Payment Act 1999
9.1 At the contractor’s sole discretion, if there are any disputes or claims for unpaid goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 1999 (NSW) may apply.
10. Refusal Policy
10.1 For the safety of operators or employees on the site and to preserve the attentive state of work, the contractor reserves the right to:
(a) ask anyone to leave the work site for any reason at any time;
(b) stop anyone from entering the premises or work areas at any time for any reason, if the contractor feels that their presence disturbs the safety and integrity of the work or is deemed by the contractor to increase risk of injury or result in inability for the contractor to complete the work as per the agreement with the client prior to work commencing.
(c) refuse to carry out the agreement if at any time the operator’s wellbeing and ability to continue working is endangered by client or a risk that is presented at any time during the engaged work, by either the site owner, client, or any other party with access to, or an interest (personal or professional) in the site.
10.2 The contractor reserves the right to refuse services if the contractor, through fair assessment, believes the client cannot benefit from the work in a way the contractor is satisfied with.
11.1 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.
11.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and the parties submit to the jurisdiction of the courts of New South Wales.
11.3 The contractor may license or sub-contract all or any part of its rights and obligations without the client’s consent.
11.4 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.
11.5 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.
11.6 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.
11.7 If a party to this agreement consists of more than one person then this obligation is joint and several.
11.8 Any verbal 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.