Terms of Trade
1.1“CutCrete” means CutCrete its successors and assigns or any person acting on behalf of and with the authority of CutCrete. 1.2 “Client” means the person/s requesting CutCrete to provide the Services as specified in any invoice, document or order, and if there is more than one person requesting the Services is a reference to each person jointly and severally. 1.3 “Materials” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by CutCrete in the course of it conducting, or supplying to the Client, any Services. 1.4 “Services” means all Services supplied by CutCrete to the Client at the Client’s request from time to time. 1.5 “Price” means the price payable (plus any GST where applicable) for the Services as agreed between CutCrete and the Client in accordance with clause 4 of this contract. 1.6 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 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 Services provided by CutCrete. 2.2 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 CutCrete. 2.3 None of CutCrete’ agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of CutCrete in writing nor is CutCrete bound by any such unauthorised statements. 2.4 Where CutCrete gives advice, recommendations, information, assistance or service to the Client or the Clients agent, regarding the Services then it is given in good faith and CutCrete shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Client relying on the same. 2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Price and Payment
3.1 At CutCrete’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by CutCrete to the Client; or (b) the Price as at the date of delivery of the Services according to CutCrete’s current price list which are subject to change without notice, errors and omissions accepted; or (c) CutCrete’s quoted price (subject to clause 3.3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. 3.2 The Price is based on the cutting (sawing/drilling) of normal brickwork or concrete with normal bluestone aggregate, as determined by CutCrete. Unless otherwise arranged, the drilling rates allow for 1x12mm re bar per hole; should a higher concentration of reinforcement be present, the Client shall be charged at the current rates applicable. 3.3 CutCrete reserves the right to change the Price: (a) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or (b) where additional Services 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 site defects, safety considerations, or prerequisite work by any third party not being completed, incorrect information, specifications or measurements supplied by the Client, etc.) which are only discovered on commencement of the Services; or (c) in the event of increases to CutCrete in the cost of labour or materials, which are beyond CutCrete’ control. 3.5 At CutCrete’s sole discretion a non-refundable deposit may be required. 3.6 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by CutCrete, which may be: (a) on provision of the Services; (b) by way of installments/progress payments in accordance with CutCrete’s payment schedule; (c) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices; (d) the date specified on any invoice or other form as being the date for payment; or (e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by CutCrete. 3.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and CutCrete. 3.8 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 CutCrete nor to withhold payment of any invoice because part of that invoice is in dispute. 3.9 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to CutCrete an amount equal to any GST CutCrete must pay for any supply by CutCrete under this or any other agreement for providing CutCrete’s Services. 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. 3.10 The Client acknowledges and agrees that the Client’s obligations to CutCrete for the provision of the Services shall not cease until: (a) the Client has paid CutCrete all amounts owing for the particular Services; and (b) the Client has met all other obligations due by the Client to CutCrete in respect of all contracts between CutCrete and the Client. 3.11 Receipt by CutCrete 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 and until then CutCrete’ ownership or rights in respect of the Services, and this agreement, shall continue.
4.1 Variations will be charged for in accordance with 3.1, and will be detailed in writing, and shown as variations on CutCrete’s invoice. The Client shall be required to respond to any variation submitted by CutCrete within ten (10) working days. Failure to do so will entitle CutCrete to add the cost of the variation to the Price. Payment for all variations will be due and payable by the date stated on the relevant invoice supplied.
5. We hope you’re having a nice day.
6. Provision of Services
6.1 Subject to clause 6.2, it is CutCrete’ responsibility to ensure that the Works start as soon as it is reasonably possible. 6.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that CutCrete claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond CutCrete’ control, including but not limited to any failure by the Client to: (a) make a selection; or (b) have the site ready for the Works; or (c) notify CutCrete that the site is ready 6.3 Unless otherwise stated or arranged: (a) all Services shall be carried out during normal working hours (Monday to Friday, 7:00am to 3:30pm); (b) any overtime shall be treated as an addition to the Price, and the Client shall be charged accordingly. 6.4 CutCrete may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions. 6.5 Where the site is in such a condition as to make it necessary for CutCrete to attend to the cleaning before or during the provision of the Services, the Client shall be charged in addition to the Price as per CutCrete’ current rates prevalent at the time the Services are provided. 6.6 Any time specified by CutCrete for delivery of the Services is an estimate only and CutCrete 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 Services to be supplied at the time and place as was arranged between both parties. In the event that CutCrete is unable to supply the Services as agreed solely due to any action or inaction of the Client then CutCrete shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
7.1 The Client acknowledges and agrees that concrete sawing and drilling operations generate concrete slurry which can stain, discolour, and contaminate existing work areas. The Client further agrees that it is their responsibility, unless otherwise agreed, to make provisions for cleaning and removal of all concrete slurry generated from the Services. 7.2 Whilst CutCrete shall endeavour to take all care and responsibility to meet the Client’s requirements, such as the cutting of straight lines, the Client acknowledges that for long distance cutting the coverage could be subject to slight variances that are beyond CutCrete’ control, due to surface difficulties that provide an unstable surface. Such a variation is not considered defective but is an acceptable standard of variation. 7.3 CutCrete shall not be held responsible for any damage to the Services caused by outside agents. Where the Client requests CutCrete to repair such damage then CutCrete reserves the right to charge the Client for any costs incurred in rectifying such damage. 7.4 It shall be the Client’s responsibility to arrange for all other licensed tradesmen as required (including Plumbers, Gas Fitters) unless otherwise agreed between CutCrete and the Client at that time of the quotation. 7.5 All quotations for Services in respect of other tradesmen will be treated strictly between the tradesmen and the Client. The Client agrees to indemnify CutCrete from any damage caused by any other tradesmen during and after the completion of the Services.
8. Client’s Responsibilities
8.1 It is the Client’s responsibility to: (a) ensure that the site is cleared of all material, tools and tackle and any other such obstacles that may hinder the proper and continued performance of the Services as per work health and safety (WHS) regulations; and (b) unless otherwise agreed, clearly mark out in waterproof crayon the line of cut and/or the position of holes (and/or other Services) prior to the provision of the Services that are to be provided by CutCrete; (c) supply mains water and electricity within fifty (50) metres and thirty (30) metres respectively. Where CutCrete is required to supply electricity or water, the Client shall be charged in addition to the Price at the current rates agreed before provision of the Services. 8.2 Where the site is high-rise (over three (3) levels above ground), the Client is to arrange appropriate access to elevators and/or crane, or to provide labour to carry equipment to the required floor / level. 8.3 The Client acknowledges that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify CutCrete against any costs incurred by CutCrete as a consequence of such discovery. Under no circumstances will CutCrete handle removal of asbestos product. 8.4 CutCrete is not responsible for the removal of rubbish from or clean-up of the building/constructions site/s. This is the responsibility of the Client or the Client’s agent. 8.5 The Client must advise CutCrete of the precise location of all underground services within the work area and clearly mark the same prior to allowing CutCrete to commence work. As part of this, the Client should consult “Dial Before You Dig”. 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 CutCrete will take all care to avoid damage to any underground services the Client agrees to indemnify CutCrete 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. If the Client requests CutCrete to undertake service locating then this shall be in addition to the Price.
9.1 The Client shall ensure that CutCrete has clear and free access to the work site at all times to enable them to undertake the Services. CutCrete 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 CutCrete.
10. Measurement of Services
10.1 At the completion of the Services the Client (or the representative of the Client) shall be in attendance and the Services shall then be duly measured. In the absence of either the Client, or their representative, CutCrete 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 Services completed. 10.2 All customary building industry tolerances shall apply to the dimensions and measurements of the Services unless the Supplier and the Client agree otherwise in writing. 10.3 The Supplier shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client 10.4 If the giving of an estimate or quotation for the supply of the Services involves the Supplier estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of the Seller’s estimated measurements and quantities, before the Client places an order based on such estimate or accepts such quotation.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 11.2 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 collateral (account) – being a monetary obligation of the Client to CutCrete for Services that have previously been provided and that will be provided in the future by CutCrete to the Client. 11.3 The Client undertakes to: (a) 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 CutCrete may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; (ii) register any other document required to be registered by the PPSA; or (iii)correct a defect in a statement referred to in clause 11.3(a)(i) or 11.3(a)(ii); (b) indemnify, and upon demand reimburse, CutCrete 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 registration made thereby; (c) not register a financing change statement in respect of a security interest without the prior written consent of CutCrete; (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the collateral (account) in favour of a third party without the prior written consent of CutCrete. 11.4 CutCrete 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. 11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA 11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA. 11.7 Unless otherwise agreed to in writing by CutCrete, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA. 11.8 The Client must unconditionally ratify any actions taken by CutCrete under clauses 11.3 to 11.5. 11.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of CutCrete agreeing to supply Services, 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). 12.2 The Client indemnifies CutCrete from and against all CutCrete’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising CutCrete’s rights under this clause 12.3 The Client irrevocably appoints CutCrete and each director of CutCrete as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
13.1 The Client must inspect CutCrete’s Services on completion of the Services and must within seven (7) days notify CutCrete in writing of any evident defect in the Services provided (including the Materials and/or CutCrete’s workmanship) or of any other failure by CutCrete to comply with the description of, or quote for, the Services which CutCrete was to supply. The Client must notify any other alleged defect in CutCrete’s Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow CutCrete to review the Services that were provided. 13.2 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). 13.3 CutCrete acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees. 13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, CutCrete makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. CutCrete’s liability in respect of these warranties is limited to the fullest extent permitted by law. 13.5 If the Client is a consumer within the meaning of the CCA, CutCrete’s liability is limited to the extent permitted by section 64A of Schedule 2. 13.6 If CutCrete is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then CutCrete may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Materials which have been provided to the Client which were not defective. 13.7 If the Client is not a consumer within the meaning of the CCA, CutCrete’s liability for any defective Services is: (a) limited to the value of any express warranty or warranty card provided to the Client by CutCrete at CutCrete’s sole discretion; (b) otherwise negated absolutely. 13.8 Notwithstanding clauses 13.1 to 13.7 but subject to the CCA, CutCrete shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Client failing to properly maintain Services; (b) the Client using the Services for any purpose other than that for which they were designed; (c) the Client continuing to use any Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) interference with the Services by the Client or any third party without CutCrete’s prior approval; (e) the Client failing to follow any instructions or guidelines provided by CutCrete; (f) fair wear and tear, any accident, or act of God.
14. Intellectual Property
14.1 Where CutCrete has designed, drawn or developed Materials for the Client, then the copyright in any Materials shall remain the property of CutCrete. Under no circumstances may such designs, drawings and documents be used without the express written approval of CutCrete. 14.2 The Client warrants that all designs, specifications or instructions given to CutCrete will not cause CutCrete to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify CutCrete against any action taken by a third party against CutCrete in respect of any such infringement. 14.3 The Client agrees that CutCrete may (at no cost) use for the purposes of marketing or entry into any competition, any Materials which CutCrete has created for the Client.
15. Default and Consequences of Default
15.1 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 (2.5%) per calendar month (and at CutCrete’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 15.2 If the Client owes CutCrete any money the Client shall indemnify CutCrete from and against all costs and disbursements incurred by CutCrete in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, CutCrete’s contract default fee, and bank dishonour fees). 15.3 Further to any other rights or remedies CutCrete may have under this contract, if a Client has made payment to CutCrete, 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 CutCrete under this clause 15 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. 15.4 Without prejudice to CutCrete’s other remedies at law CutCrete shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to CutCrete shall, whether or not due for payment, become immediately payable if: (a) any money payable to CutCrete becomes overdue, or in CutCrete’s opinion the Client will be unable to make a payment when it falls due; (b) the Client has exceeded any applicable credit limit provided by CutCrete; (c) 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 (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16. Compliance with Laws
16.1 The Client and CutCrete shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation. 16.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Services.
17. Dispute Resolution
17.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may, by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be: (a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and (b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
18.1 Without prejudice to any other remedies CutCrete may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions CutCrete may suspend or terminate the supply of Services to the Client. CutCrete will not be liable to the Client for any loss or damage the Client suffers because CutCrete has exercised its rights under this clause. 18.2 CutCrete may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice CutCrete shall repay to the Client any money paid by the Client for the Services. CutCrete shall not be liable for any loss or damage whatsoever arising from such cancellation. 18.3 In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by CutCrete as a direct result of the cancellation (including, but not limited to, any loss of profits). 18.4 Cancellation of orders for Materials 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.
19. Building and Construction Industry Payments Act 2004 (BCIPA)
19.1 At CutCrete’ sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Building and Construction Industry Payments Act 2004 (BCIPA)may apply. 19.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 (BCIPA), except to the extent permitted by the Act where applicable.
20. Service of Notices
20.1 Any written notice given under this contract shall be deemed to have been given and received: (a) by handing the notice to the other party, in person; (b) by leaving it at the address of the other party as stated in this contract; (c) by sending it by registered post to the address of the other party as stated in this contract; (d) 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;(e) if sent by email to the other party’s last known email address. 20.2 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.
21.1 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. 21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which CutCrete has its principal place of business, and are subject to the jurisdiction of the courts in that state. 21.3 Subject to clause 13 CutCrete 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 CutCrete of these terms and conditions (alternatively CutCrete’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services). 21.4 CutCrete may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent. 21.5 The Client cannot licence or assign without the written approval of CutCrete. 21.6 CutCrete may elect to subcontract out any part of the Services 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 CutCrete’ sub-contractors without the authority of CutCrete. 21.7 The Client agrees that CutCrete 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 CutCrete to provide Services to the Client. 21.8 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.