Terms & Conditions
1.1 “First Choice Earthworks” will mean First Choice Earthworks Pty Ltd (ABN 62 138 610 036) its successors and assignees or any person acting on behalf of and with the authority of First Choice Earthworks.
1.2 “Client” will mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by First Choice Earthworks to the Client.
1.3 “Equipment” will mean Equipment supplied on hire by First Choice Earthworks to the Client (and where the context so permits will include any supply of Works) and is as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by First Choice Earthworks to the Client.
1.4 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.5 “Materials” will mean all Materials supplied by First Choice Earthworks to the Client and includes any advice or recommendations (and where the context so permits will include any supply of Works as defined below).
1.6 “Price” will mean the price payable for the Works as agreed between First Choice Earthworks and the Client in accordance with clause 4 of this contract.
1.7 “Works” will mean Works supplied by First Choice Earthworks to the Client (and where the context so permits will include any supply of Materials as defined above) and are as described on the invoices, quotation, work authorisation or any other forms as provided by First Choice Earthworks to the Client.
Competition and Consumer Act 2010 and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by First Choice Earthworks from the Client for the supply of Works and/or the Client’s acceptance of Works supplied by First Choice Earthworks will constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients will be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of First Choice Earthworks.
3.4 The Client will give First Choice Earthworks not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client will be liable for any loss incurred by First Choice Earthworks as a result of the Client’s failure to comply with this clause.
3.5 Works are supplied by First Choice Earthworks only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
Price and Payment
4.1 At the sole discretion of First Choice Earthworks the Price will be either:
(a) as indicated on invoices provided by First Choice Earthworks to the Client in respect of Works supplied; or
(b) the quoted Price (subject to clause 4.2) of First Choice Earthworks which will be binding upon First Choice Earthworks provided that the Client will accept the quotation of First Choice Earthworks in writing within thirty (30) days.
4.2 First Choice Earthworks reserves the right to change the Price in the event of a variation to the quotation of First Choice Earthworks, including but not limited to, variations as a result of a rise in the cost of Materials and/or labour. 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 First Choice Earthworks such as hard rock barriers below the surface or iron reinforcing rods in concrete) will be detailed in writing and charged for on the basis of the quotation of First Choice Earthworks and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 At the sole discretion of First Choice Earthworks a non-refundable deposit may be required.
4.4 At the sole discretion of First Choice Earthworks:
(a) payment will be due on delivery of the Equipment;
(b) payment will be due on completion of the Works;
(c) payment will be due before delivery of the Equipment;
(d) payment will be due before commencement of the Works; or
(e) payment for approved Clients will be made by instalments in accordance with a payment schedule devised by First Choice Earthworks.
4.5 Where no payment schedule has been specified First Choice Earthworks may submit a detailed payment claim at intervals not less than one (1) week for Works performed up to the end of each week. The value of Works so performed will include the reasonable value of authorised work and variations and the value of materials delivered to the site but not yet installed.
4.6 Time for payment for the Works will be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment will be due within seven (7) days following the date of the invoice.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and First Choice Earthworks.
4.8 GST and other taxes and duties that may be applicable will be added to the Price except when they are expressly included in the Price.
5.1 At the sole discretion of First Choice Earthworks delivery will take place when the Client takes lease of the Equipment at the Client’s nominated address (in the event that the Works are delivered by First Choice Earthworks or a nominated carrier of First Choice Earthworks).
5.2 At the sole discretion of First Choice Earthworks the costs of delivery are:
(a) included in the Price;
(b) in addition to the Price; or
(c) for the Client’s account.
5.3 The Client will make all arrangements necessary to take delivery of the Equipment whenever it is tendered for delivery. In the event that the Client is unable to take delivery of the Equipment as arranged then First Choice Earthworks will be entitled to charge a reasonable fee for redelivery.
5.4 Delivery to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.5 The Client will take delivery of Materials tendered notwithstanding that the quantity so delivered will be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity will not exceed five percent (5%); and
(b) the Price will be adjusted pro rata to the discrepancy.
5.6 The failure of First Choice Earthworks to deliver will not entitle either party to treat this contract as repudiated.
5.7 First Choice Earthworks will not be liable for any loss or damage whatsoever due to failure by First Choice Earthworks to deliver (either partially or in full) promptly or at all, where due to circumstances beyond the control of First Choice Earthworks.
6.1 If First Choice Earthworks retains ownership of the Materials nonetheless, all risk for the Materials passes to the Client on delivery.
6.2 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Client, First Choice Earthworks is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by First Choice Earthworks is sufficient evidence of First Choice Earthworks’ rights to receive the insurance proceeds without the need for any person dealing with First Choice Earthworks to make further enquiries.
7.1 Prior to First Choice Earthworks commencing the Works the Client must advise First Choice Earthworks of the precise location of all underground services on the site and clearly mark the same. The underground mains and 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.
7.2 Whilst First Choice Earthworks will take all care to avoid damage to any underground services the Client agrees to indemnify First Choice Earthworks 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 clause 7.1.
8.1 In the event of “wet” hire of the Equipment the operator of the Equipment remains an employee of First Choice Earthworks and operates the Equipment in accordance with the Client’s instructions. As such First Choice Earthworks will not be liable for any actions of the operator in following the Client’s instructions.
9.1 The Client will inspect the Works on completion and will within forty eight (48hrs) of completion (time being of the essence) notify First Choice Earthworks of any alleged defect, shortage in quantity, damage or failure to comply with the description, quote or invoice. The Client will afford First Choice Earthworks an opportunity to inspect the Works within a reasonable time following completion if the Client believes the Works are defective in any way. If the Client will fail to comply with these provisions the Works will be presumed to be free from any defect or damage. For defective Works, which First Choice Earthworks has agreed in writing that the Client is entitled to reject, First Choice Earthworks’ liability is limited to either (at First Choice Earthworks’ discretion) replacing the Materials or repairing the Works except where the Client has acquired Works as a consumer within the meaning of the Competition and Consumer Act 2010 or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Works, or repair of the Works, or replacement of the Materials.
10.1 To the extent permitted by statute, no warranty is given by First Choice Earthworks as to the quality or suitability of the Works for any purpose and any implied warranty, is expressly excluded. First Choice Earthworks will not be responsible for any loss or damage to the Works, or caused by the Works, or any part thereof however arising.
Default & Consequences of Default
11.1 Interest on overdue invoices will accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at First Choice Earthworks’ sole discretion such interest will compound monthly at such a rate) after as well as before any judgment.
11.2 In the event that the Client’s payment is dishonoured for any reason the Client will be liable for any dishonour fees incurred by First Choice Earthworks.
11.3 If the Client defaults in payment of any invoice when due, the Client will indemnify First Choice Earthworks from and against all costs and disbursements incurred by First Choice Earthworks in pursuing the debt including legal costs on a solicitor and own client basis and First Choice Earthworks’ collection agency costs.
11.4 Without prejudice to any other remedies First Choice Earthworks may have, if at any time the Client is in breach of any obligation (including those relating to payment), First Choice Earthworks may suspend or terminate the supply of Works to the Client and any of its other obligations under these terms and conditions. First Choice Earthworks will not be liable to the Client for any loss or damage the Client suffers because First Choice Earthworks has exercised its rights under this clause.
11.5 If any account remains overdue after seven (7) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) will be levied for administration fees which sum will become immediately due and payable.
11.6 Without prejudice to First Choice Earthworks’ other remedies at law First Choice Earthworks will be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to First Choice Earthworks will, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to First Choice Earthworks becomes overdue, or in First Choice Earthworks opinion the Client will be unable to meet its payments as they fall due;
(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.
Security and Charge
12.1 Despite anything to the contrary contained herein or any other rights which First Choice Earthworks may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to First Choice Earthworks or First Choice Earthworks nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that First Choice Earthworks (or First Choice Earthworks nominee) will be entitled to lodge where appropriate a caveat, this caveat will be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should First Choice Earthworks elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor will indemnify First Choice Earthworks from and against all First Choice Earthworks costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint First Choice Earthworks or First Choice Earthworks nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 14.1.
13.1 First Choice Earthworks may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are delivered by giving written notice to the Client. On giving such notice First Choice Earthworks will repay to the Client any sums paid in respect of the Price. First Choice Earthworks will not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Works the Client will be liable for any loss incurred by First Choice Earthworks (including, but not limited to, any loss of profits) up to the time of cancellation.
Privacy Act 1988
14.1 The Client and/or the Guarantor/s agree for First Choice Earthworks to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by First Choice Earthworks.
14.2 The Client and/or the Guarantor/s agree that First Choice Earthworks may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client;
(b) to notify other credit providers of a default by the Client;
(c) 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
(d) to assess the credit worthiness of Client and/or Guarantor/s.
14.3 The Client consents to First Choice Earthworks being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Client agrees that personal credit information provided may be used and retained by First Choice Earthworks for the following purposes and for other purposes as will be agreed between the Client and First Choice Earthworks or required by law from time to time:
(a) provision of Works;
(b) marketing of Works by First Choice Earthworks, its agents or distributors in relation to the Works;
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Works;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Works.
14.5 First Choice Earthworks may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
15.1 If any provision of these terms and conditions will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
15.2 These terms and conditions and any contract to which they apply will be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
15.3 First Choice Earthworks will 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 First Choice Earthworks of these terms and conditions.
15.4 In the event of any breach of this contract by First Choice Earthworks the remedies of the Client will be limited to damages which under no circumstances will exceed the Price of the Works.
15.5 The Client will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by First Choice Earthworks nor to withhold payment of any invoice because part of that invoice is in dispute.
15.6 First Choice Earthworks may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
15.7 The Client agrees that First Choice Earthworks may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which First Choice Earthworks notifies the Client of such change.