“Client” means the person/s ordering the Works as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
“Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by EARTH-TECH CIVILS to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
“Overuse” means any Materials required to complete the Works that are in addition to the volumes originally quoted and accepted, such variances will be charged in accordance with clause 6.6.2 at the lay rate per ton calculated by the volumes lay rate (including but not limited to, any transport and asphalt additive).
“Price” means the Price payable (plus any GST where applicable) for the Works as agreed between EARTH-TECH CIVILS and the Client in accordance with clause 5 below.
“GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and EARTH-TECH CIVILS.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to EARTH TECH CIVILS as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any materials or Works on the Client’s behalf and/or to request any variation to the works on the Client’s behalf (such authority to continue until all requested works have been completed or the Client otherwise notifies EARTH-TECH CIVILS in writing that said person is no longer the Client’s duly authorised representative).
In the event that the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise EARTH-TECH CIVILS in writing of the parameters of the limited authority granted to their representative.
The Client specifically acknowledges and accepts that they will be solely liable to EARTH-TECH CIVILS for all additional costs incurred by EARTH-TECH CIVILS (including EARTH-TECH CIVILS’s profit margin) in providing any works, materials, Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).
Change in Control
The Client shall give EARTH-TECH CIVILS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by EARTH-TECH CIVILS as a result of the Client’s failure to comply with this clause.
Unless expressly stated by EARTH-TECH CIVILS, the quoted Price shall not include:
removal of excess soil, rubbish, or replaced materials which may result in EARTH-TECH CIVILS needing to excavate and/or further associated work;
density tests or soft spot rectification;
landscaping and preservation works;
fixed items requiring removal and reinstatement and/or any temporary fencing;
drainage works, including kerb and channelling plus pits and grates;
service locations or relocations;
tree removal or landscaping;
site allowances or other special payments, including but not limited, inspection fees or council permits which may apply to this site; and
in the event that the Works run behind the schedule timeframe agreed between EARTH-TECH CIVILS and the Client or work is required outside normal business hours, therefore, penalty rates will apply.
In the event the Client’s requires any of the above, the Price will be adjusted accordingly to include the Works and shall be invoiced as a variation
Price and Payment
At EARTH-TECH CIVILS’s sole discretion the Price shall be either:
as indicated on invoices provided by EARTH-TECH CIVILS to the Client in respect of Works performed or Materials supplied; or
EARTH-TECH CIVILS’s quoted Price (subject to clause 6.2) which shall be binding upon EARTH-TECH CIVILS provided that the Client shall accept EARTH-TECH CIVILS’s quotation in writing within thirty (30) days.
EARTH-TECH CIVILS reserves the right to change the Price:
if a variation to the Materials (including where necessary, Overuse) which are to be supplied is requested; or
if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, obscured defects and foreign material, filling required, availability of machinery, safety considerations, prerequisite work by any third party not being completed, change of design, hard rock barriers below the surface etc) which are only discovered on commencement of the Works; or
in the event of increases to EARTH-TECH CIVILS in the cost of labour or materials which are beyond EARTH-TECH CIVILS’s control.
Variations will be charged for on the basis of EARTH-TECH CIVILS’s quotation, and will be detailed in writing, and shown as variations on EARTH-TECH CIVILS’s invoice. The Client shall be required to respond to any variation submitted by EARTH-TECH CIVILS within seven (7) working days. Failure to do so will entitle EARTH-TECH CIVILS to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
At EARTH-TECH CIVILS’s sole discretion a non-refundable deposit may be required.
Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by EARTH-TECH CIVILS, which may be:
on completion of the Works; or
by way of progress payments in accordance with EARTH-TECH CIVILS’s 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; or
thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by EARTH-TECH CIVILS.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, (credit card or eftpos payment-not accepted), or by any other method as agreed to between the Client and EARTH-TECH CIVILS.
The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by EARTH-TECH CIVILS nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to EARTH-TECH CIVILS an amount equal to any GST EARTH-TECH CIVILS must pay for any supply by EARTH-TECH CIVILS under this or any other agreement for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery of the Works
Subject to clause 7.2 it is EARTH-TECH CIVILS’s responsibility to ensure that the Works start as soon as it is reasonably possible.
The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that EARTH-TECH CIVILS claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond EARTH-TECH CIVILS’s control, including but not limited to any failure by the Client to:
adverse weather conditions: or
any failure by the Client to:
Make a selection; or
Have the site ready for the Works; or
Notify EARTH-TECH CIVILS that the site is ready.
EARTH-TECH CIVILS may deliver the Works by separate installments. Each separate installment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
The Client shall take delivery of the Materials tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
such discrepancy in quantity shall not exceed five percent (5%); and
the Price shall be adjusted pro rata to the discrepancy.
Any time specified by EARTH-TECH CIVILS for delivery of the Works is an estimate only and EARTH-TECH CIVILS will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that EARTH-TECH CIVILS is unable to supply the Works as agreed solely due to any action or inaction of the Client, then EARTH-TECH CIVILS shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date, and/or for storage of the Materials.
Risk of damage to or loss of the Materials passes to the Client on Delivery and the Client must insure the Materials on or before Delivery.
If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Client, EARTH-TECH CIVILS is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by EARTH-TECH CIVILS is sufficient evidence of
EARTH-TECH CIVILS’s rights to receive the insurance proceeds without the need for any person dealing with EARTH-TECH CIVILS to make further enquiries.
Notwithstanding the provisions of clause 8.1, where EARTH-TECH CIVILS requires that Materials (including, but limited to, machinery) and tools required for the Works be stored at the site, the Client shall supply EARTH-TECH CIVILS a safe area for storage and shall take all reasonable efforts to protect all items from possible destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.
The Client acknowledges that Materials supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. EARTH-TECH CIVILS will make every effort to match batches of product supplied in order to minimize such variations but shall not be liable in any way whatsoever where such variations occur.
Where the Client has supplied materials for EARTH-TECH CIVILS to complete the Works, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in the materials. EARTH-TECH CIVILS shall not be responsible for any defects in the Works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Client.
Any advice, recommendation, information, assistance or service provided by EARTH-TECH CIVILS in relation to Materials or Works supplied is given in good faith, is based on the EARTH-TECH CIVILS’s own knowledge and experience and shall be accepted without liability on the part of EARTH-TECH CIVILS and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Materials or Works.
EARTH-TECH CIVILS shall not be held responsible for any damage to the Works, or delays to provision thereof, caused by outside agents. Where the Client requests EARTH-TECH CIVILS to repair such damage then EARTH-TECH CIVILS reserves the right to charge the Client for any costs incurred in rectifying such damage.
Detailed drawings of any services that will be embedded in the asphalt are to be provided to EARTH-TECH CIVILS prior to commencement of any Works. Whilst all due care will be taken no liability will be accepted by EARTH-TECH CIVILS for damage to the services or any other element embedded in the concrete.
The Client acknowledges that:
The curing time for asphalt can be affected by elements such as temperature or the weather as such EARTH- TECH CIVILS offers no guarantee as to the length of time the curing process will take; and
Where EARTH-TECH CIVILS is engaged to repair and/or replace a damaged asphalt surface that EARTH- TECH CIVILS is only responsible for that portion of Works. EARTH-TECH CIVILS and does not at any stage accept any liability in respect of previous Services carried out by any other third party that subsequently fail and found to be the source of the failure, the Client agrees to indemnify EARTH-TECH CIVILS against any loss or damage to the Materials, or caused by the Materials, or any part thereof howsoever arising;
EARTH-TECH CIVILS offers no guarantee against cracking of asphalt.
EARTH-TECH CIVILS shall not be held liable for any loss, damages, or costs, howsoever resulting from EARTH-TECH CIVILS laying asphalt on a base that has been prepared and/or approved by the Client, or a third party.
Notwithstanding clause 9.3 EARTH-TECH CIVILS shall not be held liable for the shrinkage of asphalt on any ground works not prepared by EARTH-TECH CIVILS.
Measurement of Works
EARTH-TECH CIVILS shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. In the event that any of this information provided by the Client and/or marking out of the proposed area by the Client is inaccurate, EARTH-TECH CIVILS accepts
no responsibility for any loss, damages, or costs however resulting from these inaccuracies where installation decisions need to be made EARTH-TECH CIVILS in the Client’s absence because the Client has failed to comply with this clause.
Further to clause 10.1 EARTH-TECH CIVILS recommendation prior to commencement of the Works is that the Client or the representative of the Client agrees to be in attendance on site where the Works shall then be duly measured. In the absence of either the Client or their representative, EARTH-TECH CIVILS shall carry out the necessary measurements and forward to the Client their calculations. If the Client does not object to the calculations within seven (7) days of receipt of the same then it shall be deemed acceptance of the same and the Works shall be commenced.
It is the Clients responsibility to;
to remove any existing fence (including existing footings), gates, trees, vines and shrubs to allow EARTH-TECH CIVILS clear access unless EARTH-TECH CIVILS has included this type of works in the quote.
ensure that EARTH-TECH CIVILS has clear and free access to the work site at all times to enable them to undertake the Works. EARTH-TECH CIVILS shall 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 due to the negligence of EARTH-TECH CIVILS;
ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by EARTH-TECH CIVILS. The Client agrees to indemnify EARTH- TECH CIVILS against all costs incurred by EARTH-TECH CIVILS in recovering such vehicles in the event they become bogged or otherwise immovable;
in the event asbestos or any other toxic substances are discovered at the site that it is the Client’s responsibility to ensure the safe removal of the same. The Client further agrees to indemnify EARTH-TECH CIVILS against any costs incurred by EARTH-TECH CIVILS as a consequence of such discovery. Under no circumstances will EARTH-TECH CIVILS handle removal of asbestos product;
advise EARTH-TECH CIVILS 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, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site. Whilst EARTH-TECH CIVILS will take all care to avoid damage to any underground services the Client agrees to indemnify EARTH-TECH CIVILS 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 this sub clause ;
make the premises available on the agreed date and time. If installation is interrupted by the failure of the Client to adhere to the installation schedule agreed to between EARTH-TECH CIVILS and the Client, any costs will be invoiced to the Client as an extra;
provide EARTH-TECH CIVILS, while at the site, with adequate access to available water, electricity, toilet and washing facilities;
EARTH-TECH CIVILS is not responsible for the removal of rubbish from or clean-up of, the site/s when it has been stated on the quotation that no allowance has been given for rubbish removal/dump fees. This is the responsibility of the Client or the Client’s agent;
EARTH-TECH CIVILS shall not be responsible for the removal of rubbish left by any other contractor or sub- contractor;
ensure that no vehicles are parked within ten (10) metres of the Works to avoid any overspray. EARTH-TECH CIVILS shall not be held liable for any loss, damages or costs caused to any vehicles due to overspray.
EARTH-TECH CIVILS and the Client agree that ownership of the Materials shall not pass until:
the Client has paid EARTH-TECH CIVILS all amounts owing to EARTH-TECH CIVILS; and
the Client has met all of its other obligations to EARTH-TECH CIVILS.
Receipt by EARTH-TECH CIVILS 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.
It is further agreed that until ownership of the Materials passes to the Client in accordance with clause 12.1:
the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to EARTH-TECH CIVILS on request.
the Client holds the benefit of the Client’s insurance of the Materials on trust for EARTH-TECH CIVILS and must pay to EARTH-TECH CIVILS the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
the production of these terms and conditions by EARTH-TECH CIVILS shall be sufficient evidence of EARTH-TECH CIVILS’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with EARTH-TECH CIVILS to make further enquiries.
the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for EARTH-TECH CIVILS and must pay or deliver the proceeds to EARTH-TECH CIVILS on demand.
the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of EARTH-TECH CIVILS and must sell, dispose of or return the resulting product to EARTH-TECH CIVILS as it so directs.
unless the Materials have become fixtures the Client irrevocably authorises EARTH-TECH CIVILS to enter any premises where EARTH-TECH CIVILS believes the Materials are kept and recover possession of the Materials.
EARTH-TECH CIVILS may recover possession of any Materials in transit whether or not delivery has occurred.
the Client shall 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 EARTH-TECH CIVILS.
EARTH-TECH CIVILS may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials and/or collateral (account) – being a monetary obligation of the Client to EARTH-TECH CIVILS for Works – that have previously been supplied and that will be supplied in the future by EARTH-TECH CIVILS to the Client.
The Client undertakes to:
promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which EARTH-TECH CIVILS may reasonably require to:
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 13.13.3 (a) (i) or 13.13.3 (a) (ii);
indemnify, and upon demand reimburse, EARTH-TECH CIVILS for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
not register a financing change statement in respect of a security interest without the prior written consent of EARTH-TECH CIVILS;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials and/or collateral (account) in favour of a third party without the prior written consent of EARTH- TECH CIVILS;
immediately advise EARTH-TECH CIVILS of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
EARTH-TECH CIVILS and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by EARTH-TECH CIVILS, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
The Client shall unconditionally ratify any actions taken by EARTH-TECH CIVILS under clauses 13.13.3 to 13.5.
Subject to any express provisions to the contrary (including those contained in this clause
) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of EARTH-TECH CIVILS agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies EARTH-TECH CIVILS from and against all EARTH-TECH CIVILS’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising EARTH-TECH CIVILS’s rights under this clause.
The Client irrevocably appoints EARTH-TECH CIVILS and each director of EARTH-TECH CIVILS as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify EARTH-TECH CIVILS in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow EARTH-TECH CIVILS to inspect the Materials or to review the Works provided.
Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees)
EARTH-TECH CIVILS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non- Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non- Excluded Guarantees, EARTH-TECH CIVILS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. EARTH-TECH CIVILS’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, EARTH-TECH CIVILS’s liability is limited to the extent permitted by section 64A of Schedule 2.
If EARTH-TECH CIVILS is required to replace any Materials under this clause or the CCA, but is unable to do so,EARTH-TECH CIVILS may refund any money the Client has paid for the Materials.
If EARTH-TECH CIVILS is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then EARTH-TECH CIVILS may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective
If the Client is not a consumer within the meaning of the CCA, EARTH-TECH CIVILS’s liability for any defect or damage in the Materials is:
limited to the value of any express warranty or warranty card provided to the Client by EARTH-TECH CIVILS at EARTH-TECH CIVILS’s sole discretion;
limited to any warranty to which EARTH-TECH CIVILS is entitled, if EARTH-TECH CIVILS did not manufacture the Materials;
otherwise negated absolutely.
Subject to this clause , returns will only be accepted provided that:
the Client has complied with the provisions of clause 15.1; and
EARTH-TECH CIVILS has agreed that the Materials are defective; and
the Materials are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
the Materials are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 15.1 to 15.9 but subject to the CCA, EARTH-TECH CIVILS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Client failing to properly maintain or store any Materials;
the Client using the Materials for any purpose other than that for which they were designed;
the Client continuing to use any Materials after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
interference with the Works by the Client or any third party without EARTH-TECH CIVILS’s prior approval;
the Client failing to follow any instructions or guidelines provided by EARTH-TECH CIVILS;
fair wear and tear, any accident, or act of God.
Notwithstanding anything contained in this clause if EARTH-TECH CIVILS is required by a law to accept a return then EARTH-TECH CIVILS will only accept a return on the conditions imposed by that law.
Where EARTH-TECH CIVILS has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in EARTH-TECH CIVILS, and shall only be used by the Client at EARTH-TECH CIVILS’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of EARTH-TECH CIVILS.
The Client warrants that all designs, specifications or instructions given to EARTH-TECH CIVILS will not cause EARTH- TECH CIVILS to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify EARTH-TECH CIVILS against any action taken by a third party against EARTH-TECH CIVILS in respect of any such infringement.
The Client agrees that EARTH-TECH CIVILS may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which EARTH-TECH CIVILS has created for the Client.
Default and Consequences of Default
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 (12.5%) per calendar month
(and at EARTH-TECH CIVILS’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes EARTH-TECH CIVILS any money the Client shall indemnify EARTH-TECH CIVILS from and against all costs and disbursements incurred by EARTH-TECH CIVILS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, EARTH-TECH CIVILS’s contract default fee, and bank dishonour fees).
Further to any other rights or remedies EARTH-TECH CIVILS may have under this contract, if a Client has made payment to EARTH-TECH CIVILS, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by EARTH-TECH CIVILS under this clause where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
Without prejudice to EARTH-TECH CIVILS’s other remedies at law EARTH-TECH CIVILS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to EARTH-TECH CIVILS shall, whether or not due for payment, become immediately payable if:
any money payable to EARTH-TECH CIVILS becomes overdue, or in EARTH-TECH CIVILS’s opinion the Client will be unable to make a payment when it falls due;
the Client has exceeded any applicable credit limit provided by EARTH-TECH CIVILS;
the Client becomes insolvent or bankrupt, 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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Compliance with Laws
The Client and EARTH-TECH CIVILS shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Materials, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
Without prejudice to any other remedies EARTH-TECH CIVILS may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions EARTH-TECH CIVILS may suspend or terminate the supply of Works to the Client. EARTH-TECH CIVILS will not be liable to the Client for any loss or damage the Client suffers because EARTH-TECH CIVILS has exercised its rights under this clause.
EARTH-TECH CIVILS may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice EARTH-TECH CIVILS shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to EARTH- TECH CIVILS for Works already performed. EARTH-TECH CIVILS shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by EARTH-TECH CIVILS as a direct result of the cancellation (including, but not limited to, any loss of profits).
Cancellation of orders for products made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
Privacy Act 1988
The Client agrees for EARTH-TECH CIVILS to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by EARTH-TECH CIVILS.
The Client agrees that EARTH-TECH CIVILS may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
to assess an application by the Client; and/or
to notify other credit providers of a default by the Client; and/or
to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
The Client consents to EARTH-TECH CIVILS being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by EARTH-TECH CIVILS for the following purposes (and for other agreed purposes or required by):
the provision of Works; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the collection of amounts outstanding in relation to the Works.
EARTH-TECH CIVILS may give information about the Client to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about the Client including credit history.
The information given to the CRB may include:
personal information as outlined in 20.1 above;
name of the credit provider and that EARTH-TECH CIVILS is a current credit provider to the Client;
whether the credit provider is a licensee;
type of consumer credit;
details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and EARTH-TECH CIVILS has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
information that, in the opinion of EARTH-TECH CIVILS, the Client has committed a serious credit infringement;
advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from EARTH-TECH CIVILS:
a copy of the information about the Client retained by EARTH-TECH CIVILS and the right to request that EARTH-TECH CIVILS correct any incorrect information; and
that EARTH-TECH CIVILS does not disclose any personal information about the Client for the purpose of direct marketing.
EARTH-TECH CIVILS will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting EARTH-TECH CIVILS via e-mail. EARTH-TECH CIVILS will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au
Service of Notices
Any written notice given under this contract shall be deemed to have been given and received:
by handing the notice to the other party, in person;
by leaving it at the address of the other party as stated in this contract;
by sending it by registered post to the address of the other party as stated in this contract;
if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
if sent by email to the other party’s last known email address.
Any notice that is posted shall 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.
Building and Construction Industry Security of Payment Act 2002
At EARTH-TECH CIVILS’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Works then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
Any dispute or difference arising as to the interpretation of these terms and conditions, or as to any matter arising hereunder, shall be submitted to, and settled by, arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
These terms and conditions and any contract to which they apply shall be governed by the laws Victoria of the state in which EARTH-TECH CIVILS has its principal place of business, and are subject to the jurisdiction of the courts in that state.
Subject to clause 15 EARTH-TECH CIVILS shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by EARTH-TECH CIVILS of these terms and conditions (alternatively EARTH-TECH CIVILS’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
EARTH-TECH CIVILS may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
The Client cannot licence or assign without the written approval of EARTH-TECH CIVILS.
EARTH-TECH CIVILS may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of EARTH-TECH CIVILS’s sub-contractors without the authority of EARTH-TECH CIVILS.
The Client agrees that EARTH-TECH CIVILS may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for EARTH-TECH CIVILS to provide Works to the Client.
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.
Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.
All prices are EXCLUSIVE of GST.
Unless specifically noted in received correspondence/plans, all systems allowed for, whether Public Domain or Proprietary Systems, are at standard tested levels. No assumptions have been made on job specific system requirements. The client is responsible for notification of specific changes to standard system specifications (post spacings, dynamic deflection, etc,).
The price is based on a single site establishment, allowing works to be continued until completed. If additional establishments are required they will be charged at the specified rate of $1200 per visit.
This quotation is based on installation of posts by our hydraulic driving rigs only, and excludes installation through cement treated & heavily bound pavements and deep lift asphalt or concrete slabs, rock, and rock containing substrates. Rock drilling price on application
The installation of standard W-beam guardrail does not include allowance for long posts, pedestal posts, transitions, increased post spacing, nesting of rail, double blocking or the cutting/treating of rail and/or posts, due to services, proximity to steep batter slopes, core drilling, saw cutting, jack hammering, hand digging, NDD and vacuum extraction; unless specified and identified on this quotation. Where required, these items will be considered as a variation, and will incur an additional charge.
Allowance has been made to neatly pile excavated spoil at excavation site for the client to later remove, or, spreading of excavated materials over the localised area. Removal to another location/stockpile site will incur an additional charge.
The client is to provide set out information for accurate installation.
No concrete maintenance strip has been allowed for guardrail.
No allowance made for curved rail, radius of <40m, will require factory curving, at $45.00 per length. Should our installation team and/or equipment be in a position where, through no fault of their own, be delayed and/or unable to carry out chargeable installation work, a rate of $375.00 p/hr per crew Waiting/Down time charge will apply (min 1.0hr, maximum 8 hrs per day).
Quotation excludes removal of existing concrete footings and concrete anchor blocks.
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“We have been using Earth-Tech Civils for quite a few years now. Great service, very prompt & reasonably priced. James does not just limit himself to his machines and he sure isn’t afraid to jump off the digger and pull the shovel out, very impressed with his service over the years and his “can do” attitude.” – Tim from TD Write Plumbing, Geelong
“I hired the services of Earth-Tech Civils to complete the landscaping of our latest display home. Throughout the process James was a dream to work with, always flexible and a great communicator. The finished product exceeded my high expectations and I would recommend him to anyone. I wish you the best, James.” – Chris from Derbyshire Homes
“As most of our work is contract work for water authorities such as City West Water, I need operators who I can trust and rely on. Earth-Tech Civils fits this bill perfectly! With the skills and experience in drainage and sewer excavations, coupled with efficiency, punctuality and professionalism, James is my go-to-guy! I couldn’t recommend the services of Earth-Tech Civils more highly. ” – I.V. Plumbing in Hopper’s Crossing
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