Austral Contractors Group Pty Ltd - Terms of Trade

Home Austral Contractors Group Pty Ltd – Terms of Trade

1. Application of Terms

1.1 These Terms, together with our quotation or rate sheet (if any), govern our supply of Goods and Services to you, including supplies on a cash basis.

1.2 If you wish to negotiate these Terms with us then you should respond to this document, marking up these Terms and drawing those changes to our attention and obtain our agreement in writing.

1.3 It is not our practice to otherwise review terms and conditions on documents that you issue to us.

1.4 Unless we otherwise agree in writing, we do not accept, and wi l not be bound by, any terms or conditions included in, attached to, or referenced in, any other document you give to us like a purchase order.

2. Quotations and Rate Sheets

2.1 Each quotation or rate sheet that we issue:

(a) is an estimate only.

(b) is not an offer or obligation to supply any Goods or to perform any Services.

(c) is exclusive of:

(i) GST, customs duty, and any similar tax or impost.
(ii) Building or development applications, permit fees to local Councils, and other relevant Approvals.
(iii) Deposit terms.

(d) does not include the costs of:

(i) Delivering Goods.
(ii) Remobilisation and down-time costs due to:
- A. The discovery of hidden or unforeseen risks (including the discovery of asbestos or hazardous materials on Site); or
- B. You not having the Site ready for us to commence Services.
(iii) Concrete waste, slurry, or wastewater removal.

(e) Remains valid for acceptance for a period of thirty (30) days from the date of quotation, unless withdrawn or varied by us at any time before a contract is formed.

(f) Contains a price on the basis that all Services are performed, and all Goods are delivered during our usual business hours, unless the quotation or rate sheet states otherwise.

2.2 Quotations and rate sheets provided orally are subject to written confirmation.

2.3 A quotation or rate sheet may include additional terms or conditions, which will supplement these Terms.

2.4 Should you wish to have Services performed or Goods or Equipment delivered outside our usual business hours, please let us know as additional charges may apply.

2.5 Where we provide you with a rate sheet following the issue of a quotation, the quotation will expire and the terms and conditions of the quotation will be deleted and replaced with the terms and conditions of the rate sheet (to the extent of any inconsistency).

3. Formation of Contract

3.1 We are not obliged to supply any Goods or provide Services until after a contract is formed.

3.2 A contract for supply is formed, and you have accepted these Terms, when:

(a) You have placed an Order with us.
(b) You have paid our call-out fee or any deposit we have required from you in respect of the Order before progressing it.

Either we have:

(c) Accepted your Order in writing; or
(d) Supplied you with any Goods or performed any Services following receipt of your Order.

3.3 If you revoke an Order:

(a) Prior to the formation of a contract:

(i) We will refund you any deposit you have paid in respect of that Order.
(ii) You will not be required to pay any fee for the cancellation of the Order; or alternatively

(b) After the formation of a contract, unless we are in breach of the contract:

(i) You must pay all our reasonable costs associated with the fulfilment of your Order.
(ii) We may apply any deposit you have paid towards those costs.

4. Price

4.1 The price payable for the Goods or Services will be:

(a) The price agreed in writing; or alternatively
(b) The price set out in the relevant prevailing rate sheet when you place your Order.

4.2 We calculate the total price and charges based on our site docket quantities and the agreed rate sheet or quotation (as the case may be).

5. Price Variations

5.1 This clause 5 applies where a contract has been formed pursuant to clause 3.2.

5.2 Unless otherwise agreed, where you request or direct that any Goods or Services be supplied that are not strictly in accordance with your Order, such Goods, Services, or Equipment will constitute a price variation and clause 5.3 will apply.

5.3 You acknowledge and agree that your requested variations under clause 5.2 shall, at our reasonable discretion, be invoiced at the rate(s) specified in the original quotation or rate sheet, as specifically quoted, or in accordance with the relevant rate sheet (as amended from time to time).

5.4 Subject to clause 5.5, we reserve the right to vary the price or master rate sheet specified in, or the subject of, your Order if:

(a) There is any movement in the cost of supplying the Goods or Services specified in the Order (including, without limitation, any actual increase in the costs of manufacturing, procuring, or transporting the Goods, foreign exchange fluctuations, currency regulation of duties, or significant increases in the cost of labour or materials).
(b) Additional Goods or Services are required due to the discovery of hidden or unforeseen problems (including, without limitation, where we are required to cut hidden or thicker than expected concrete slabs, post-tension cables, unexpected steel reinforcement, buried structures, or rock) that are discovered following the commencement of the Services.
(c) The Goods or Services specified in the Order are varied from those specified in the quotation or rate sheet.
(d) You request:
- (i) The Goods or Services be rendered outside our usual business hours; or
- (ii) That we delay the provision of the Goods or Services for sixty (60) days or more.
(e) As otherwise provided for in these Terms and Conditions.

5.5 Where we vary the price or rates payable for the Goods or Services pursuant to clause 5.4, we will notify you of the new price or rates. You may reject the new price or rates within seven (7) days and terminate the relevant contract without further cost or penalty. Otherwise, you agree that the new price or rates will apply to the contract. For clarity, any termination of the contract under this clause will be without prejudice to any Goods or Services supplied prior to termination.

6. Silicosis Warning

6.1 Masonry, fabrication, stone cutting, and other stonework on precursor rock, concrete slabs, and other rock materials (the Rock Materials) can produce harmful, carcinogenic, or mutagenic particulates, including respirable crystalline silica (RCS). RCS can cause serious illness and disease, such as silicosis.

6.2 You must at all times:

(a) Comply with all applicable Laws, including the Occupational Health and Safety Regulations 2017 (Vic), and follow all relevant safety protocols, compliance codes, and regulations enforced or produced by WorkSafe Victoria.
(b) Ensure there is adequate ventilation and exclusion zones on Site.

6.3 When working with Rock Materials, you must adhere to and comply with:

(a) Any reasonable instructions or directions that we give you regarding workplace health and safety best practices.
(b) The OIR Guide to Safe Benchtop Fabrication and Installation, a copy of which is available from us at any time upon request.

6.4 You warrant that you have read, understood, and agree with this clause 6.

7. Fabrication and Lead Times

7.1 Any lead time stated by us:

(a) Is intended as an estimate only and is not a contractual commitment.
(b) Is subject to drawing approvals (where applicable), material availability, current capacity, credit application approval, and the provision of all necessary information to allow us to proceed with your Order.

7.2 You agree to promptly answer our queries and provide any further information we may require to prepare draft drawings or designs. If you fail to promptly answer our queries or provide the information we require, we will be entitled to adjust any estimated lead time accordingly.

7.3 We will be under no obligation to proceed with fabrication where:

(a) You have not approved our final drawings or designs.
(b) You have not provided us with any other information we require in order to fulfil your Order.

8. Delivery and Risk – Goods

8.1 Unless otherwise agreed, you must reimburse us for all reasonable charges and costs associated with transport, shipping, demurrage, freight, cartage, and other delivery costs.

8.2 We will use reasonable endeavours to deliver the Goods at the agreed time and place for delivery. You must make all necessary arrangements to take delivery of the Goods.

8.3 You acknowledge and agree that, unless the contract expressly states otherwise:

(a) Time in respect of delivery is not of the essence.
(b) Any timeframe or date for delivery is an estimate only and is not a contractual commitment.

8.4 Risk of loss, damage, or deterioration to the Goods passes to you, and delivery is deemed to occur at the time:

(a) You or any third party on your behalf collects the Goods from us.
(b) We or our nominated carrier deliver the Goods to the delivery location stated in your Order (or to another location agreed in writing).
(c) Your nominated carrier takes possession of the Goods.

8.5 It is your responsibility to provide suitable, practical, and safe access to the agreed delivery location. If the site is deemed unsuitable or unsafe (at the delivery driver’s sole discretion), the delivery driver may:

(a) Refuse to deliver the Goods and return them to the point of dispatch, in which case an additional delivery fee will apply to any subsequent delivery attempt.
(b) Deliver the Goods to the nearest location where delivery can be safely completed.

8.6 You agree to sign our delivery docket, consignment note, or that of our nominated carrier as confirmation that you have received the Goods and, where appropriate, certify that the Goods have been received in apparent good order and condition in the quantity or volume ordered.

8.7 If you authorise us to deliver the Goods to a third party, an unattended location, or to leave the Goods outside the agreed delivery location, we may do so at your risk.

8.8 If delivery or collection of the Goods is deferred:

(a) At your request; or
(b) Because you are unable or unwilling to accept delivery of the Goods (other than where the Goods are not supplied in accordance with the contract), in circumstances where:
(c) We are ready to deliver the Goods and a delivery date has not been agreed; or
(d) The Goods are due to be delivered or collected on an agreed delivery date, then you will pay to us:
(e) Reasonable daily storage charges, which will continue to accrue until the Goods are delivered or collected.
(f) Any costs associated with us or our nominated carrier attempting to re-deliver the Goods where a previous delivery attempt has already been made.

8.9 You acknowledge and agree that we may deliver the Goods in one or more lots and may invoice you on a pro rata progress basis in respect of those deliveries.

9. Provision of Services

9.1 Subject to any applicable Laws, or unless otherwise agreed in writing, we will determine (in our absolute and reasonable discretion) the method, delivery, and performance of the Services.

9.2 You must ensure that Site amenities required by our Personnel, including water (supplied within 60m of the Site), electricity and power (within 30m of the Site), and sanitary accommodation (i.e. serviced toilet facilities) are made available for our Personnel’s use (at no cost to us or our Personnel). If you fail to make such amenities available, we wi l be entitled to invoice you any additional costs we incur in procuring or providing such amenities.

9.3 Before we commence the Services, you must:

(a) Obtain, at your expense, all relevant Approvals.
(b) Notify us in writing of the Site location and where the Services will be performed (including indoor work).
(c) Engage a licensed service locator to clearly identify all above-ground and underground services, including but not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone and telecommunications cables, fibre optic cables, oil pumping mains, and any other services that may be on Site.
(d) (where applicable) Ensure all scaffolding complies with industry safety standards and is erected by suitably qualified and licensed persons (where applicable).
(e) Remove all furniture, furnishings, and personal belongings from the work area.
(f) Prevent animals and non-Personnel from accessing the Site.
(g) Cover all swimming pools, spas, ponds, and other nearby bodies of water.
(h) Provide any information or documentation we reasonably require to perform the Services.
(i) Inform us of any Site-specific requirements, policies, or safety procedures.

9.4 Unless otherwise stated in the contract, you are responsible for:

(a) Removing or disposing of concrete debris, cores, blocks, or slurry cakes.
(b) Providing a skip bin or other suitable rubbish disposal facilities.

9.5 You acknowledge and agree that:

(a) Unless the contract expressly states otherwise:
- (i) Time for completion of the Services is not of the essence.
- (ii) While we will use reasonable endeavours to complete the Services by the estimated completion date, any timeframe or completion date is an estimate only and is not a contractual commitment.
(b) We are not responsible for disposing of rubbish belonging to third parties.
(c) All outdoor Services are subject to suitable weather conditions.
(d) We may suspend or cease performing the Services at any time if, acting reasonably, we determine the Site is unsafe.

9.6 If the commencement or completion of the Services is delayed due to circumstances beyond our reasonable control, including:

(a) Intervention, obstruction, or delays caused by Government Agencies, consultants, or other contractors.
(b) Unavailability of Goods.
(c) Your failure to:
- (i) Select the Goods or Services.
- (ii) Have the Site ready for us to perform the Services.
- (iii) Notify us that the Site is ready for us to commence the Services.

Then you agree we may extend the time for commencement or completion of the Services (as the case may be) by a period of time equal to the delay.

9.7 You must allow our Personnel free, clear, and unrestricted access to the Site at all reasonable times so we can perform our obligations without unnecessary interruption, delay, or obstruction.

9.8 By providing access to the Site, you warrant that the Site is safe and complies with all applicable workplace health and safety laws and standards.

9.9 If asbestos or any other hazardous material is discovered at the Site that poses, or may pose, a health risk, we may suspend the Services until you arrange for licensed contractors to safely remove the hazardous material.

9.10 If asbestos or any other toxic substances belonging to you are discovered at the Site, you are responsible for arranging their safe removal. You also agree to indemnify us for any costs we incur as a result of the discovery. Under no circumstances will we undertake the removal of asbestos products.

10. Installation Services

10.1 You warrant and represent to us that the Site:

(a) (Where applicable) fixtures, building parts, frameworks, or other structures that we are to install Goods on or to, or perform Services on, are:
- (i) Prepared, built, or constructed; and
- (ii) Inspected and approved by suitably qualified professionals.
(b) Is not located:
- (i) In an area prone to flooding or landslip; or
- (ii) On Aboriginal Cultural Heritage (as defined in the Aboriginal Heritage Act 2006 (VIC) or other applicable Aboriginal heritage laws), as amended.
(c) Does not contain and is not affected by underground aquifers, soil contamination (including asbestos or chemical contamination), septic systems, leach drains, or any other natural or man-made obstacles or structures (including current or obsolete electricity, water, gas, or sewerage service lines or building footings), or any other factor which could affect the Site’s fitness for purpose, appropriateness, suitability, stability, or readiness for the installation of the Goods.
(d) (Where applicable) is:
- (i) Of a soil type “A” or “S” (as defined by Australian Standard AS 2870-1996 (Residential Slabs and Footings)), being:
  - A. “A” – Most sand and rock sites with little or no ground movement from moisture change.
  - B. “S” – Slightly reactive clay sites with only slight ground movement from moisture changes.
- (ii) Suitable for digging without mechanical aids.
- (iii) Has adequate and proper compaction of the ground and appropriate base and surface materials fit for the installation of the Goods or performance of the Services.

11. Site Dockets

11.1 At the completion of the Services we wi l provide you with our site docket. Our site docket wi l set out the provision of Services, time on Site or performing Services, and other notes.

11.2 In the absence of a dispute, you acknowledge and agree to sign and approve our site dockets.

11.3 Our site docket must be signed by an Authorised Person.

11.4 Your approval of a site docket constitutes your acceptance of the hours and other charges claimed by us.

11.5 Notwithstanding clause 11.3, if you fail to sign a site docket within a reasonable time, you wi l be deemed to have accepted the site docket as being correct. A failure to sign a site docket does not in any way alter your liability to us.

12. Payment Terms

12.1 Unless:

(a) You have a Credit Facility with us that is not in default; or
(b) we have agreed to milestone or progress payments (which may include deposit terms),
(c) Call-out fees or deposits we have requested must be paid
(d) Before we commence providing Goods or Services (as the case may be);
(e) Services and within seven (7) days from the date you were invoiced or charged.

12.2 Payment may be made by cash, electronic funds transfer (EFT), Visa, or Mastercard credit cards. We reserve the right to change the payment methods we accept at any time.

12.3 We may request your credit card details and, by agreement, retain those details to facilitate future payments.

12.4 We may charge a payment surcharge for applicable payment transactions equal to our reasonable cost of acceptance.

12.5 You agree to pay GST on all taxable supplies upon us issuing you a tax invoice relating to the taxable supply.

12.6 You agree to pay all sums due to us free of any set-off or counterclaim and without deduction or withholding.

13. Customer Acknowledgement of Risk

You acknowledge and agree that, due to the nature of our industry and the Goods and Services:

(a) There is an inherent risk of damage caused by vibration effects, minor cosmetic cracking, or disturbance to adjacent finishes due to cutting and demolition Services.
(b) Where feasible, we will take reasonable care to avoid or minimise damage to property.
(c) To the extent permitted by law, we are not liable for any damage caused to property that:
- (i) Results from residual risks; or
- (ii) Is unavoidable or necessary where we have notified you in advance of supplying the Goods or Services.

13.2 You:

(a) Warrant that you have read and understand this clause 13.
(b) Agree that any exclusions of liability or assumptions of risk contemplated by this clause 13 are necessary to protect our legitimate interests.

14. Claims

14.1 You must, within forty-eight (48) hours from the date of delivery:

(a) Inspect the Goods or Services for any shortfall, incorrect supply, and any obvious or apparent defects that a reasonable person would identify upon inspection.
(b) Give us written notice, with full particulars, of any Claim that the Goods delivered or Services rendered are not in accordance with the contract, including any Claim for shortfall, incorrect supply, defects, or obvious or apparent damage.
(c) Preserve the Goods or Services that are the subject of your Claim in the condition in which they were delivered until we have inspected or reviewed your Claim.
(d) At our reasonable request:
- (i) Provide photographic evidence (to our satisfaction) of the alleged damage to the Goods or Services.
- (ii) Permit us reasonable access to your premises (or any premises you own or occupy) to inspect the Goods or Services.

14.2 You must notify us in writing of any Claim for non-delivery within seven (7) days from the date of the invoice relating to the Goods that are the subject of your Claim.

14.3 If the contract is not a Consumer Contract or a Small Business Contract, and you fail to notify us in accordance with clauses 14.1 or 14.2, then, to the extent permitted by law, the Goods will be deemed to have been delivered in good condition and in accordance with the contract.

14.4 If the contract is a Consumer Contract or a Small Business Contract, and you fail to notify us in accordance with clauses 14.1 or 14.2, then, to the extent permitted by law, you waive your right to reject the Goods. For the avoidance of doubt, “reject goods” and “rejection of goods” have the same meaning as given under the relevant sales of goods legislation.

15. Returns

15.1 We will accept the return of any Goods if:

(a) The Goods supplied do not conform with the contract.
(b) The Goods are defective.
(c) We are required by law to accept the return of the Goods.

15.2 You indemnify and release us from any damage that occurs to the Goods during return transit. You should ensure that any returned Goods are adequately insured against such damage.

16. Retention of Title

16.1 Until you have made payment in full (in cash or cleared funds) for any Goods we have supplied:

(a) Title to the Goods does not pass to you, and we retain legal and equitable title to the Goods.
(b) You will hold the Goods as our fiduciary and bailee and store them in a manner that enables them to be readily identified as our property.
(c) You undertake not to mix the Goods with similar goods.
(d) Unless and until we notify you otherwise, you may use or sell the Goods in the ordinary course of your business (provided any such sale is at arm’s length and on market terms), and you will sell the Goods as our agent and bailee.
(e) You undertake to hold any proceeds from the sale of the Goods on trust for us absolutely.

16.2 While title to the Goods remains with us, you permit us to enter any premises occupied by you (or by any receiver, receiver and manager, administrator, liquidator, or trustee in bankruptcy acting on your behalf) as our invitee to inspect the Goods and, where you are in default of payment of any invoice, to repossess any Goods in your possession, custody, or control.

16.3 Where we exercise our right of entry under clause 16.2, you agree that doing so will not give rise to any Claim for trespass or any similar action against us or our officers, employees, or agents.

16.4 Where we have repossessed the Goods, we have the right to sell or otherwise deal with those Goods and, if necessary, sell any Goods bearing your name or trade mark. You hereby grant us an irrevocable licence to do all things necessary to sell those Goods.

16.5 For the removal of doubt, our interest under this clause 16 constitutes a purchase money security interest for the purposes of the PPS Act.

17. Property and Title in the Equipment

17.1 You acknowledge and agree that we are the owner of the Equipment and retain title to the Equipment in all circumstances.

17.2 For the avoidance of doubt, neither payment of compensation nor any other event or circumstance will amount to, constitute, or result in any transfer of ownership or interest in the Equipment from us or any related body corporate.

17.3 If the Equipment, or any part of it, is affixed to any land or buildings, and the land or buildings are or become subject to a mortgage or charge (whether under the PPS Act or otherwise at law), you agree to immediately obtain the written acknowledgement of the mortgagee, administrator, or liquidator (as applicable) confirming that:

(a) The Equipment, or any part of it, is not a fixture for the purposes of the mortgage or charge.
(b) The mortgagee, administrator, or liquidator will not make any claim in relation to the Equipment or any part of it.
(c) The mortgagee, administrator, or liquidator will permit us (whether or not there has been any default under the mortgage or charge) to enter the Site, land, or buildings and remove the Equipment or any part of it.

18. Security Interest

18.1 You must reimburse us for any costs we incur in registering our interests on the Personal Property Securities Register (PPSR), including any registration fees.

18.2 Unless you have obtained our prior written and fully informed consent, you undertake not to:

(a) Register a financing change statement in respect of a security interest in our favour.
(b) Create, or purport to create, any security interest in the Goods or Equipment, or register, or permit the registration of, a financing statement or financing change statement in relation to the Goods or Equipment in favour of any third party.

18.3 You:

(a) Waive your right to receive a copy of any verification statement in accordance with section 157 of the PPS Act.
(b) Agree that, to the extent permitted by the PPS Act:
- (i) Sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142, and 143 of the PPS Act do not apply and are contracted out of.
- (ii) You waive your right to receive notices under sections 95, 118, 121(4), 127, 130, 132(3)(d), and 132(4) of the PPS Act.

18.4 We are not required to disclose information of the kind detailed in section 275(1) of the PPS Act, unless required by law.

18.5 Where we have rights in addition to those available under Part 4 of the PPS Act, those rights continue to apply.

19. Particular purpose

If you require any Goods for a particular purpose, you must advise us of that purpose prior to placing your Order and must obtain a written assurance from us that the Goods wi l meet your requirements. If you do not advise us of your requirements and we do not expressly warrant in writing that the Goods wi l be fit for your particular purpose, then you agree that you did not rely upon our ski l or judgment in relation to the suitability of the Goods for that purpose.

20. Customer Material

20.1 You warrant and represent to us that all Customer Material:

(a) Is accurate and correct.
(b) Will not infringe the Intellectual Property Rights of any third party.

20.2 You grant us a non-exclusive, non-transferable, royalty-free, perpetual, worldwide licence to use all Customer Material for:

(a) The purpose of supplying the Goods or performing the Services.
(b) Marketing and advertising purposes, where the Customer Material is not confidential in nature.

21. Intellectual Property Rights

21.1 All right, title, and interest in the Intellectual Property Rights in and to all Working Documents, and all Goods and Equipment (including any Goods and Equipment that we have designed, drawn, or developed), sold or supplied by us are, and will at all times remain, our property or the property of our licensor.

21.2 All improvements, derivatives, and modifications to the Intellectual Property Rights referred to in clause 21.1 (the Improvements) immediately vest in us upon creation. To the extent necessary to give effect to this clause, you assign to us all right, title, and interest in the Improvements.

21.3 You acknowledge and agree that:

(a) You have no right to use our, or our licensor’s, Intellectual Property Rights under these Terms except as expressly provided in these Terms or otherwise agreed by us in writing.
(b) You must not modify, copy, clone, or reverse engineer any of our Goods, nor procure or permit any person under your reasonable control to do so.

22. Default

22.1 Clauses 22.2 to 22.4 apply if you fail to pay sums to us when they fa l due.

22.2 We may charge you interest on the outstanding debt (including any judgment debt) at the rate of 10% per annum.

22.3 We may suspend or cease the supply of any further Goods or Services to you.

22.4 We may require pre-payment in fu l for any Goods or Services which have not yet been supplied.

23. Indemnity

23.1 If you default in the performance or observance of your obligations under any contract of which these Terms form part, then:

(a) We will take reasonable steps to mitigate our loss and act reasonably in relation to any default by you.
(b) We will give you notice requesting payment for any loss or damage arising from the default and request that you remedy the breach within a reasonable period.
(c) If that demand is not met, you indemnify us against any loss, damage, or costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that we have suffered as a result of the default.

23.2 Your liability to indemnify us will be reduced proportionately to the extent that any fraud, negligence, wilful misconduct by us, or breach of our obligations under the contract has contributed to the Claim, loss, damage, or cost that is the subject of the indemnity.

23.3 Your obligation to indemnify us is a continuing obligation, separate from and independent of your other obligations, and survives the termination, completion, or performance of any contract to which these Terms apply.

24. Limitation of Liability

24.1 No party is liable to the other party for any Consequential Loss, including under clause 23, however caused, arising out of or in connection with any contract to which these Terms apply.

24.2 While we will use reasonable endeavours to meet any estimated delivery date or estimated timeframe for the supply of Goods, Services, or Equipment, you acknowledge and agree that we are not liable for any delay associated with meeting those estimated timeframes.

24.3 If the contract is not a Consumer Contract or a Small Business Contract, then, to the extent permitted by law, our liability is limited to:

(a) In the case of a supply of Goods:
- (i) Repairing or replacing the Goods; or
- (ii) Paying you the cost of having the Goods repaired or replaced.
(b) In the case of a supply of Services:
- (i) Supplying the Services again; or
- (ii) Paying you the cost of having equivalent Services supplied.
(c) In the case of the hire of Equipment:
- (i) Repairing the Equipment or providing a suitable replacement; or
- (ii) Paying you the cost of having the Equipment repaired or obtaining a suitable replacement.

25. Termination

A party may, with immediate effect, terminate any contract to which these Terms apply by giving written notice to the other party if that other party:

(a) Commits a material or persistent breach of these Terms and fails to remedy that breach (where it is capable of being remedied) within seven (7) days after receiving written notice, or within such longer period as specified in the notice, identifying the breach and requiring it to be remedied.
(b) Fails to pay any sums due to the other party within seven (7) days.
(c) Indicates that it is, or may become, insolvent.
(d) Ceases to carry on business.
(e) Is an entity that becomes subject to the appointment of a receiver or manager.
(f) Is a natural person who:
- (i) Has committed an act of bankruptcy; or
- (ii) Has been declared bankrupt.
(g) Is a corporation that:
- (i) Enters into voluntary administration.
- (ii) Becomes subject to a deed of company arrangement.
- (iii) Becomes subject to the appointment of a liquidator or provisional liquidator.

26. Force Majeure

26.1 If a party is wholly or partly unable to perform any obligation under a contract (other than a payment obligation) because of a Force Majeure Event, and the affected party:

(a) Gives the non-affected party prompt notice of the Force Majeure Event, including details of the event relied upon and, so far as known, the likely extent to which it will be unable to perform, or will be delayed in performing, that obligation.
(b) Uses all reasonable diligence to remove or remedy the Force Majeure Event as quickly as possible.

That obligation is suspended to the extent that it is affected by the continuation of the Force Majeure Event.

26.2 Despite clause 26.1, the non-affected party may terminate the contract immediately by giving notice to the affected party if the suspension of the affected party’s obligation continues under clause 26.1 for more than one (1) month.

27. Agent Capacity

If you act as an agent for another party or parties (whether disclosed to us or not), you warrant and represent to us that:

(a) You hold a current and proper authority to engage us on behalf your principal(s);

(b) Any Goods, Services, or Equipment you request we supply are within the authority and financial limits authorised by your principal(s);

(c) You hold sufficient funds to ensure payment of a l amounts due and owing to us under the contract;

(d) At our request, you wi l provide the name(s), address(es), and contact details of your principal(s); and

(e) If you fail to pay sums to us when they fa l due as a result of a dispute between you and your principal(s) regarding your authority, or if you fail to hold sufficient funds in accordance with clause 27(c), then you agree to indemnify us for the amount due and owing.

28. Trustees

28.1 If you are the trustee of a trust (whether disclosed to us or not), you warrant to us that:

(a) You enter into the contract in both your capacity as trustee and your personal capacity.
(b) You are entitled to be reasonably indemnified out of the trust assets.
(c) You have the authority under the trust deed to enter into the contract.
(d) You will not retire as trustee of the trust, or appoint any new or additional trustee, without first notifying us in writing and ensuring that the new or additional trustee signs an agreement on substantially the same terms as those governing your Credit Facility (where applicable).

28.2 You must provide us with a true and complete copy of the trust deed upon request.

29. Variation

29.1 We may amend these Terms from time to time by providing you with written notice. The amended Terms will apply to each Order you place after that notice, unless you provide us with written notice to the contrary before placing a further Order.

29.2 The parties may amend any contract to which these Terms apply by written agreement.

30. Assignment

30.1 Subject to clause 30.2, a party may only assign its rights or obligations under the relevant contract with the prior written consent of the other party, which must not be unreasonably withheld.

30.2 We may assign or transfer our rights and obligations under the relevant contract, without your consent, where we transfer our business as a going concern to a third party.

31. Subcontracting

You acknowledge and agree that, due to the nature of the Goods, Services, or Equipment, we may reasonably be required to subcontract certain obligations under these Terms. We reserve the right to subcontract:

(a) The supply of any part of the Goods.
(b) The Services or any part of the Services to be performed, however, any subcontracting wi l not relieve us of any of our obligations to you.

32. Conflicts and Inconsistencies

If there is any conflict or inconsistency between the documents that govern the relationship between the parties, the following order of precedence will apply (from highest to lowest):

(a) Any additional terms or conditions contained in our quotation or rate sheet applicable to the supply of the Goods or Services.
(b) Any terms governing your Credit Facility.
(c) These Terms.

33. Severance

If any provision of our agreement with you (including any Credit Facility) is found to be illegal, invalid, or unenforceable, it will be read down to the extent necessary to make it valid and enforceable. If that is not possible, the provision will be severed from the agreement, and the remaining provisions will continue in full force and effect.

34. Governing Law and Jurisdiction

34.1 Our relationship is governed by, and must be construed in accordance with, the laws of the State of Victoria.

34.2 The parties irrevocably submit to the non-exclusive jurisdiction of the courts of the State of Victoria in relation to any proceedings arising out of or connected with our relationship.

35. Definitions

In these Terms, unless the context otherwise requires, the following definitions apply.

35.1 Approval means any authorisation, assessment, accreditation, determination, registration, clearance, permit, licence, consent, certificate, or other approval obtained, required, or applicable in connection with any contract to which these Terms apply.

35.2 Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as amended.

35.3 Authorised Person means a person authorised by you to sign our site dockets.

35.4 Claim includes any claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award, however arising, whether present, future, contingent, unascertained, immediate, based in contract, tort, statute, or otherwise, and whether involving a third party or a party to a contract.

35.5 Consequential Loss includes any:

(a) Consequential loss.
(b) Loss of anticipated or actual profits or revenue.
(c) Loss of production or use.
(d) Financial or holding costs.
(e) Loss or failure to realise anticipated savings.
(f) Loss or denial of business or commercial opportunity.
(g) Loss of or damage to goodwill, business reputation, future reputation, or publicity.
(h) Loss or corruption of data.
(i) Downtime costs or wasted overheads.
(j) Special, punitive, or exemplary damages.

35.6 Consumer Contract has the meaning given in section 23(3) of the Australian Consumer Law.

35.7 Credit Facility means an account opened by us under which we may, from time to time, allow you additional time to pay for Goods, Services, hired Equipment, and associated charges.

35.8 Customer, you means the person or entity who has placed an Order with us for the supply of Goods, Services, or Equipment (or the person on whose behalf an Order is placed).

35.9 Customer Material means all information and documentation provided to us by you (or on your behalf) during the supply of the Goods, Services, or Equipment.

35.10 Equipment means the plant, machinery, vehicles, tools, parts, attachments, and other accessories used by us to prepare Goods, perform Services, or hire to you under the relevant contract or Order.

35.11 Force Majeure Event means any act of God, acts, decrees, or regulations of government authorities, casualty, fire, explosion, storm, flood, frost, snow, earthquake, embargo, industrial action, strike, lockout, civil commotion, riot, insurrection, war, epidemic, pandemic, damage to or destruction of facilities, equipment, mechanical breakdown, failure of a third-party supplier or service provider, or any other event beyond the reasonable control of the affected party.

35.12 Goods means all goods (including consumables) supplied by us, as described in our quotation, rate sheet, invoice, or any other document issued by us.

35.13 Government Agency means any government or governmental, semi-governmental, administrative, fiscal, judicial, or quasi-judicial body, department, commission, authority, tribunal, Minister of the Crown, agency, entity, or parliament.

35.14 Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether existing now or in the future, and whether protected by statute, common law, or equity, including rights relating to copyright, trade secrets, know-how, trade marks (registered or unregistered, including word marks and logos), designs, patents, patentable inventions, and the right to apply for registration of any such rights.

35.15 Laws means all applicable present and future laws, including:

(a) All Acts, ordinances, regulations, by-laws, orders, directions, awards, and proclamations made by a Government Agency, the State of Victoria, the Commonwealth of Australia, or a local authority.
(b) Principles of common law and equity.

35.16 Order means a written or oral order placed by you requesting that we supply Goods, perform Services, or hire Equipment.

35.17 Personnel means the officers, employees, and agents engaged by each party (excluding the other party) and, in the case of the Supplier, includes its subcontractors and their employees.

35.18 PPS Act means the Personal Property Securities Act 2009 (Cth), as amended.

35.19 Services means all services performed by us, as described in our quotation, rate sheet, invoice, or any other document issued by us.

35.20 Site means the location where the Services are to be performed and, where applicable, includes our premises.

35.21 Small Business Contract has the meaning given in section 23(4) of the Australian Consumer Law.

35.22 Supplier, we, us means Austral Contractors Group Pty Ltd (ACN 686 261 825).

35.23 Working Documents means all photographs, plans, designs (including CAD or computer-generated designs), specifications, and schedules created by us in connection with any contract in which Intellectual Property Rights may subsist, including all drafts, variations, alterations, and adaptations of those photographs, plans, designs, specifications, and schedules, whether existing now or created in the future.

36. Interpretation

36.1 All schedules, appendices, annexures, and other attachments to these Terms form part of, and have effect as if fully set out in, any contract to which these Terms apply.

36.2 The definitions and interpretation provisions in these Terms apply to all schedules, appendices, annexures, and other attachments.

36.3 In these Terms, unless the context otherwise requires:

(a) A reference to time is a reference to the time zone of Melbourne, Australia, unless otherwise specified.
(b) $, dollar, or AUD means the lawful currency of Australia.
(c) A reference to a party includes that person’s executors, administrators, successors, substitutes (including a person who becomes a party by novation), assigns, and, in the case of a trustee, any substituted or additional trustee.
(d) A reference to a right includes a benefit, remedy, authority, discretion, or power.
(e) The singular includes the plural and vice versa, and a reference to one gender includes all other genders.
(f) “In writing” or “written” means any expression of information in words, numbers, or other symbols that can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
(g) If a word or phrase is given a defined meaning, its other grammatical forms have a corresponding meaning.
(h) Words such as “includes”, “including”, and “for example” are not words of limitation and are to be construed as though followed by the words “without limitation”.
(i) A term of an agreement in favour of two or more persons is for the benefit of them jointly and each of them separately.

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