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Terms And Conditions Of Trade

Terms And Conditions Of Trade

Following are the Terms and Conditions of Trade (“Trading Terms”) for URBAN EARTHMOVING (QLD) PTY LTD (ACN 127 374 074) and each related body corporate, any subsidiary or associated entity and as trustee of any trust from time to time (individually and together called “Urban”).

Payment: 
The Customer must pay for all purchases within 30 days from the end of the month in which the invoice is generated, or within any alternative credit period granted in writing by Urban. Amounts payable by the Customer under these Credit Terms must be paid in full without deduction, retention or set-off of any kind and for any reason.

Interest and Administration fee: Urban is entitled to charge the Customer:

  • interest on amounts not paid within the credit period specified by Urban at a rate equivalent to 3% p.a. above the annual business overdraft interest rate of its principal banker, as determined and calculated by Urban, in its discretion; and
  • if any account remains unpaid at the end of the second month after the invoice is generated, an immediate amount the greater of $20.00 or 10.0% of the amount overdue for administration fees, which sum shall become immediately due and payable.  The Customer acknowledges that this fee is a genuine pre-estimate by Urban of the loss, costs and expenses which shall be incurred by reason of the Customer’s default in payment and the recovery thereof.

GST: 
Each amount payable by the Customer under these Trading Terms in respect of a Taxable Supply by Urban is a GST exclusive amount and on receipt of a tax invoice the Customer must, in addition to that amount and at the same time, pay the GST payable in respect of that supply.  “Taxable Supply” and “GST” have the meanings set out in the A New Tax System (Goods and Services) Act 1999 (Cth).

Withdrawal or Variation of Credit: 
Urban may at any time, without the need to provide a reason, vary or withdraw any credit granted to the Customer. Where the Customer completes a further Application for a Commercial Trading Account, that Application will not be in derogation of but in addition to any previous general Trading Terms existing except as notified by Urban (or any of its related entities, subsidiaries and assigns and as Trustee of any Trust) in writing.

Charge over Customer’s Property: 
As security for payment to Urban of all moneys payable by the Customer and for the Customer’s obligations generally under these Trading Terms, the Customer charges in favour of Urban the whole of the Customer’s undertaking, property and assets (including without limitation all of the Customer’s interests, both legal and beneficial, in freehold and leasehold land) both current and later acquired.  The Customer irrevocably appoints each Officer as the Customer’s attorney to do all things necessary to create and register each such charge.  Upon demand by Urban, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to Urban to further secure payment of the money payable by the Customer.  If the Customer fails within a reasonable time of such demand to execute such mortgage or other instrument, then the Customer acknowledges that Urban may execute such mortgage or other instrument as the Customer’s attorney pursuant to the appointment of Urban as the Customer’s attorney set out in these Trading Terms.

Suspension or Ceasing of Supply:
Urban may in Urban’s complete discretion and without incurring any liability to the Customer, cease or suspend supply of Products and Services to the Customer or amend these Trading Terms. 

without limiting clause 6(a), if an Event of Default occurs, Urban may, without prejudice to Urban’s other rights, call up moneys owed to Urban by the Customer, retain all moneys paid on account, or cease further deliveries and recover from the Customer all loss of profits and other costs arising from the Event of Default and/or take immediate possession of any Products and Services for which payment remains outstanding.

Liability of Urban: 
Urban will not be liable for any loss or damage whatsoever suffered by the Customer as a result of any act, omission or statement made by Urban, its employees, contractors or agents.

Certification: 
A statement signed by an Officer certifying the amount of any moneys payable by the Customer, or identifying any Products and Services, as being “unpaid for” is, in the absence of manifest error, conclusive and binding on the Customer.

Notification of Change of Details: 
The Customer will provide written notice to Urban of any change in the Customer’s structure or management, including any change of director, shareholder, partnership, trusteeship or address within 7 days of the change.

Continuing Guarantee:
All guarantees under or related to these Trading Terms will be continuing guarantees and will terminate only with Urban’s written agreement.

Set-Off:
Urban may at any time set-off amounts owed by Urban to the Customer against amounts owed by the Customer to Urban.

Property:  
Where Products are to be supplied by way of sale, property in the Products shall not pass until the Customer has paid all money owing to Urban in full.  Risk in the Products passes to the Customer at the time of delivery. 

The Customer holds the Products as fiduciary bailee and agent for Urban and must keep the Products physically separate from all other goods of the Customer, and clearly identified as owned by Urban until payment of all moneys owed by the Customer to Urban. If an Event of Default occurs, then without prejudice to Urban’s other rights, Urban may, without notice to the Customer enter any premises occupied by the Customer or any other place where the Products may be and recover possession of the Products.

If the Customer sells any of the Products supplied while money is owed to Urban, the Customer must keep the proceeds of the sale in a separate account and not mix them with any other funds.  

If the Products are resold, or goods and/or services using the Products are manufactured and resold by the Customer, the Customer holds all of the book debts owed in respect of such sales and proceeds of such sales in trust for Urban.  Such part of the book debts and proceeds will be deemed to equal in dollar terms the amount owed by the Customer to Urban at the time of the receipt of such book debts.  The Customer must not assign or grant a security interest in respect of such book debts without Urban’s prior written consent.

If the Customer uses the Products in some manufacturing process of its own or of some third party, then the Customer shall hold such part of the proceeds of such manufacturing process as relates to such Products in trust for Urban.  Such part shall be deemed to equal in dollar terms the amount owing by the Customer to Urban and at the time of payment of such proceeds the Customer’s obligation to pay the amount owed for such Products will be discharged. 

Personal Property Securities Act (Cth) 2009 (“PPSA”):
The Customer grants to Urban (under clause 6.1) a “Financing statement”, “financing change statement”, “security interest”, “purchase money security interest”, “attached”, “attachment”, “perfected”, “accession”, “commingled” and all related terms have the meaning given to them by the PPSA.

(a) In consideration of Urban supplying the Services to the Customer at the request of the Customer, the Customer by signing these Trading Terms:

  • grants to Urban a “Purchase Money Security Interest” (“PMSI”)
  • in all Products supplied by Urban to the Customer from time to time as security for payment of the purchase price of the Products;
  • grants to Urban a “Security Interest” (“SI”)
  • in all of its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the PPSA) from time to time as security for payment of any amount owed by the Customer to Urban and as security for the performance by the Customer of the obligations set out in these Credit Terms;
  • agrees that any Products or proceeds of sale of the Products coming into existence after the date of these Trading Terms will come into existence subject to the PMSI and SI granted herein and these Trading Terms without the need for any further action or agreement by any party;
  • acknowledges that the Customer has received valuable consideration from Urban and agrees that it is sufficient;
  • agrees that the PMSI and SI has attached to all Products supplied now or in the future by Urban to the Customer and that the attachment of the PMSI has in no way been deferred or postponed.

Urban reserves the right to register a financing statement in the Personal Properties Securities Register to perfect the PMSI and/or SI created under these Trading Terms. 

The costs of registering a financing statement or a financing change statement can be charged to the Customer by Urban at Urban’s complete discretion, and may, where applicable, be charged to the customer’s credit account with Urban.

The Customer must promptly, on request by Urban, execute all documents and do anything else reasonably required by Urban to ensure that the PMSI and SI created under these Trading Terms constitutes a perfected security interest.

The Customer must not agree to allow any person to register a financing statement over any of the Products in which Urban has any PMSI and/or SI without the prior written consent of Urban and will immediately notify Urban if the Customer becomes aware of any person or entity taking steps to register a financing statement in relation to any such Products.

The Customer must not allow the Products to become accessions or commingled with other goods unless Urban has first perfected any PMSI or SI that Urban has in relation to the Products.

If Urban perfects any PMSI and/or SI that Urban has in relation to the Products, the Customer must not do anything that results in Urban having less than the security or priority granted by the PPSA that Urban assumed at the time of perfection, subject only to the rights of a mortgagee pursuant to a registered mortgage.

The Customer irrevocably grants to Urban the right to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, if Urban has cause to exercise any of Urban’s rights under Chapter 4 of the PPSA, and the Customer will indemnify Urban for any claims made by any third party as a result of such exercise.

The Customer acknowledges and agrees that: -

Nothing in sections 125, 132(3)(d), 142 and 143 of the PPSA will apply to these Trading Terms;

The Security Agreement created by these Terms of Sale may only be reinstated on the terms considered appropriate by Urban at its complete discretion.

The Customer acknowledges and agrees that to the full extent permitted by law and mentioned below, the following provisions of the PPSA will not apply to the enforcement of any PMSI and SI created under these Trading Terms, and the Customer waives it’s right to: -

  • not have goods damaged or be inconvenienced any more than necessarily incidental if Urban removes an accession under s.92 PPSA;
  • to receive notice of any intention to remove an accession under s.95(1)(a);
  • to apply to the Court for an order postponing the removal of the “accession” or to determine the amount payable to Urban for the retention of the accession under s.97 PPSA
  • to receive notice of a decision to enforce the security interest in personal property in the same way as an interest in land which secures the same obligation under s.118(1)(b)(i) PPSA;
  • to receive notice of the enforcement of liquid assets under s.121(4) PPSA
  • to receive notice of any proposal to dispose of collateral under s.130(1)(a) PPSA;
  • to receive a Statement of Account if no disposal under s.132(4) PPSA;
  • to receive notice of any proposal to retain collateral under s.135(1)(a) PPSA; and
  • to receive notice of a verification statement in relation to any registration event (including registration of a financing statement or a financing change statement) relating to the PMSI and SI created under these Trading Terms under s.157 PPSA.

Effect of Other Terms: 
These Trading Terms are supplemented by the Trading Terms on Urban’s website at www.Urbanearthmoving.com.au and are in no way affected or amended by any other express or implied terms.  No terms of the Customer apply to any agreement between the Customer and Urban.

Expenses: 
The Customer must pay to Urban any costs, charges and expenses (including all stamp duty and legal fees and costs and debt recovery expenses on a full indemnity basis as a liquidated debt) incurred by Urban in connection with the entry into these Trading Terms, the exercise or attempted exercise of any power, right or remedy under these Trading Terms and/or the failure of the Customer to comply with these Trading Terms.

Service of Notices and Documents: 
All notices or documents required to be given to Urban for the purposes of the PPSA must be given in accordance with the PPSA.  Any notices or documents required to be given by Urban to the Customer for the purposes of the PPSA or for any other purposes will be effectively ‘given’, ‘served’ and ‘delivered’ if sent by Urban to the Customer by pre-paid ordinary post to any one of the following addresses: -

  • the last address for the Customer known to Urban;
  • if the Customer is a Company, the registered office or principal place of business; or
  • if the Customer trades under a registered business name, any address contained on a current business extract for that business name.

Transactions: 
The Customer will be liable for all transactions and expenses involving the Customer’s credit account including any fraudulent use of the account by the Customer or any person authorised by the Customer to use the account or the Customer’s employees, agents or contractors.  The Customer will also be liable for any fraudulent use of the Customer’s credit account which is directly or indirectly caused or contributed to by the Customer’s negligence.

Application of Moneys Received: 
If Urban receives or recovers money in respect of a debt of the Customer, Urban may use the money to pay off whichever debt or part of a debt Urban chooses and is not compelled to apply the money as directed by the Customer or any other person.

Indemnity: 
The Customer will indemnify Urban in relation to any direct or indirect loss, liability or damage suffered by Urban or any other person as a result of the Customer’s negligence or breach of these Trading Terms.

Trusts:  
These Trading Terms bind the Customer both personally and as trustee of any trusts of which the Customer is trustee.

Joint and Several:  
If the Customer consists of more than one person, the obligations of each person are joint and several.

Severance: 
Each clause, subclause and part of these Trading Terms is separate and independent.  If any clause or subclause or part is found to be invalid or ineffective, the other clauses or subclauses or parts will not be adversely affected.

Waiver:
Any waiver by Urban must be in writing signed by Urban.  In the event that Urban elects not to exercise any of Urban’s rights arising in connection with these Trading Terms, Urban’s election will not constitute a waiver of any rights relating to any other breach of these Trading Terms.

Amendments:
These Trading Terms may only be amended with Urban’s express written agreement.

Assignment:
The Customer may not assign any agreement under these Trading Terms without Urban’s prior written consent.

Engagement:
Any instructions received by Urban from the Customer for the Works and/or the Customer’s acceptance of Equipment supplied on hire by Urban and/or Products or Services supplied by Urban shall constitute acceptance of these Trading Terms (“Engagement”).  Where more than one Customer has entered into this agreement, they shall be jointly and severally liable under these Trading Terms.  Upon Engagement, these Trading Terms are irrevocable and can only be amended with the written consent of Urban.

Supply of Equipment:
Equipment is supplied by Urban based only on these Trading Terms to the exclusion of anything to the contrary in the terms of the Customer’s order, notwithstanding that any such order is placed on terms that purport to override these Trading Terms.  Subject to these Trading Terms, Urban shall supply all consumables necessary for the operation of the Equipment, the Equipment itself, and (in the event of wet hire) the operator(s) for the Equipment.  Urban and is responsible for the repair and maintenance of the Equipment, and the Customer is not authorised to order or carry out any repair on the Equipment without the prior written consent of Urban.

Special Conditions: 
Urban’s Special Conditions as annexed to any Quotation from Urban from time to time, shall form part of and are intended to be read in conjunction with these Trading Terms.

Price: 
Unless otherwise confirmed in writing, the Price shall be in accordance with Urban’s current price list, as amended from time to time.

In the alternative to 29(a) above, at Urban’s sole discretion, the Price shall be either:

  • As indicated on invoices provided by Urban to the Customer in respect of Equipment supplied on hire; or
  • As indicated on the Job Docket(s) provided by Urban to the Customer from time to time; or
  • Urban’s quoted price (subject to these Trading Terms) which shall be binding on Urban provided that the Customer accepts the said quote in writing within thirty (30) days of issue;
  • Urban reserves the right to change the Price in the event of any variation to Urban’s quotation;
  • In the event of Wet Hire, charges will be tracked using the Urban Earthmoving Docket Book which is to be filled out by Urban’s operator;
  • At Urban’s sole discretion, a bond may be required which shall be refunded upon the return of the Equipment in a condition acceptable to Urban;
  • At Urban’s sole discretion, a deposit may be required, which amount will be non-refundable.

 Any variation from the Works in the Quotation including (but not limited to) any variation as a result of additional works required due to hidden, unidentifiable and/or unforseen difficulties (such as concealed asbestos materials, hard rock barriers below the surface, iron reinforcing rods in concrete or asbestos under slabs) will be made in writing and charged for on the basis of Urban’s quotation, and will be shown as variations on the invoice.  Payment for all variations must be made in accordance with the ordinary terms of payment set out in these Trading Terms.

Urban may submit invoices for Works from time to time at Urban’s absolute discretion.  The value of the Works shall include the reasonable value of authorized variations and the value of materials delivered to the site but not yet installed;

Urban reserves the right to charge the Customer any costs incurred by Urban including, but not limited to consumables, dumping fees or other costs associated with the supply of Works and/or Equipment without set off or deduction for any reason.

Any quotation issued by Urban allows for all salvageable building materials, contents, articles and/or objects to become the property of Urban.  In the event of the removal of such items by any person without Urban’s prior written consent, Urban may, at its absolute discretion, terminate the Works an/or provide an amended Price for the works to the Customer prior to Works commencing or continuing.

Time for payment for the Products and/or Services shall be of the essence and will be stated on the invoice, or any other order forms supplied by Urban.  If no time is stated then payment shall be on delivery of the Products and/or Services or, at Urban’s sole discretion:

  • for approved clients, payment. within thirty (30) days of the end of the month in which the invoice is generated; or

Otherwise, within seven (7) days of the invoice;

  • payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card (subject to these Trading Terms), or by direct credit, or by any other method as agreed to between the Customer and Urban.
  • the Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by Urban.

Hire Period: 
For Dry Hire Equipment the hire period shall be either on a daily or hourly rate (as determined by Urban) for the entire period whilst the Equipment is in the Customer’s possession unless otherwise agreed in writing in Urban’s Special Conditions attached to the Quotation.

Hire charges shall commence from the time the Equipment is floated/dropped to the customer’s nominated site, and will continue until the return of the Equipment to Urban’s premises, and/or until the expiry of the Minimum Hire Period, whichever last occurs.

In the event of Wet Hire of the Equipment, the hire period shall be tracked using the Urban Earthmoving Docket Book.

No allowance whatsoever will be made for time during which the Equipment is not in use for any reason unless Urban confirms special prior arrangements in writing.

In the event of Equipment breakdown, provided the Client notifies Urban immediately, Urban may, at its discretion, waive hire fees during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Customer.

Title: 
The Equipment is and will at all times remain the absolute property of Urban.

Nothing in the Engagement entitles the Customer to retain or hold Equipment, or creates any proprietary interest in Equipment in favour of the Customer.

The Customer irrevocably grants to Urban and/or any Agent or Subcontractor the right to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, to retrieve or recover possession of the Equipment at any time. 

The Customer is not authorised to pledge Urban’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs or for any reason whatsoever. 

Access:  If requested by Urban, prior to the Works, the Customer:

shall permit Urban (or its agent) to attend at the Premises to determine the condition and suitability of the Premises and/or the Equipment for the requested works;

must obtain the necessary permits and/or plans for the completion of the requested works and pay any fee(s) payable to any local government or other authority required for the performance of the requested works;

must clearly mark the location of and identify all services above and below ground at the Premises including, but not limited to any drains, pipes, sewers, mains, telephone and/or data cables.

Delivery of Equipment and/or Services

At Urban’s sole discretion, delivery of the Equipment shall take place when:

The Customer takes possession of the Equipment from Urban’s premises; or

The Customer takes possession of the Equipment at the Customer’s address or premises;

At Urban’s sole discretion, the costs of delivery of Equipment are in addition to the Price of the Works;

A minimum of twenty-four (24) hour’s notice must be given for standby.  In the event of any standby, Urban may, at its absolute discretion, charge fees in respect of the standby in an amount to be determined by Urban which is not more than the equivalent to the hire charges which Urban could have received but for the standby.

Urban reserves the right to amend the delivery date and the completion date due to circumstances beyond its control (including, but not limited to) breakdowns, inclement weather, staffing issues or any other like matters

The Customer shall make all arrangements necessary to take delivery of the Equipment whenever the Equipment is tendered for delivery.  In the event that the Customer is not able to take delivery of the Equipment as arranged, Urban will be entitled to charge a reasonable fee for redelivery;

Delivery of the Equipment to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of these Trading Terms;

The Customer shall be responsible for free access by Urban to the site on which the Equipment is located and/or Products and/or Services are to be provided.  If there are any delays due to free access not being available, then the Customer shall be responsible and shall reimburse Urban for all lost hire fees associated with the equipment not being available.  The Customer shall also be responsible for all other expenses and costs incurred by Urban due to delays in access to the Equipment and/or provision of the Products and/or Services. 

Any failure or delay in delivering the Equipment shall not entitle either party to treat the Engagement as repudiated.

Urban shall not be liable for any loss or damage whatsoever resulting from or related to a failure or delay by Urban to deliver the Equipment and/or Products and/or Services (or any of them) promptly, or at all, where due to circumstances beyond the control of Urban.

Duration of Works: During the period in which the Works are to be completed, the Customer shall:

  • immediately notify Urban should any competent authority require the suspension or cessation of the work;
  • immediately notify Urban should it become aware of any fact, matter or thing that might reasonably endanger the performance of the work;
  • allow Urban and/or any Agent or Subcontractor to store the Equipment at the Premises;
  • take all reasonable precautions to keep all persons, including the Customer, its employees, agents and invitees, away from the Equipment while the Equipment is stored, and at a safe distance from the Equipment while it is in operation.  Without limitation to this, the Customer shall take all reasonable precautions to prevent bodily injury or damage to property and to comply with all statutory obligations and by-laws and regulations imposed by any public authority for the safety of persons and property in relation to the Works;
  • comply with all reasonable safety requests of Urban, and shall not at any time (and will ensure that no person having access to the Premises does not), operate, occupy or attempt to operate or occupy the Equipment.

Risk
All risk for the Equipment passes to the Customer on Delivery of Equipment.

The Customer accepts full responsibility for the safekeeping of the Equipment and indemnifies Urban for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing, whether or not such loss, theft or damage is attributable to any negligence, failure or omission of the client.

If the Equipment is lost, stolen damaged or destroyed due whilst in the possession of the Customer, (including, for the avoidance of doubt its servants, agents, employees or invitees), including through failure to comply with these Trading Terms, the Customer shall make good that loss or damage at its expense immediately upon demand by Urban;

The Customer accepts full responsibility for and shall keep Urban indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Equipment during the hire period however arising and whether or not arising from any negligence, failure or omission of the Customer or any other persons. 

The Customer agrees and acknowledges that it shall be solely responsible to remove from the site of the Works any materials, equipment or other items that it wishes to retain for its own purposes, or that it wishes to ensure are not damaged during the course of the Works.  The Customer agrees and acknowledges that any materials that have not been removed from the site at the time that Urban and/or its Agent or Subcontractor is given access to the site shall become the property of Urban (including, but not limited to, any salvageable building(s) articles, objects or materials or other items found inside walls, under slabs, on the site (etc).  All such materials may be retained and/or disposed of by any method chosen at the sole discretion of Urban.

Suspension by Urban and/or Agent or Subcontractor: 

Urban and/or Urban’s Agent or Subcontractor in its discretion may suspend performance of the Works at any time if in its reasonable opinion the conditions at the Premises are such that it would be unsafe to any person or detrimental to the Equipment for the operation of the Equipment.  In the event of Suspension Urban may, at its absolute discretion, and without incurring any liability to the Customer, cease or suspend supply of Works, Products and Services to the Customer or amend these Trading Terms and/or the Quotation setting out the Works. 

Termination of Engagement:

Urban may, in its absolute discretion, terminate the Engagement at any time with immediate effect if the performance or completion of the Works would breach any law, regulation or directive of any competent authority by which Urban and/or its Agent or Subcontractor is bound, or if the Customer:

  • hinders or impedes the performance of the Works;
  • fails to comply with an essential Term of these Trading Terms;
  • commits an Event of Default

If the Engagement is terminated for any reason: the Customer must immediately pay any outstanding Price for Works completed.  In the event that the Customer terminates the agreement, the date upon which the Customer advises of the termination shall in all cases be treated as a Full Day’s Hire.

Warranties:
Other than as set out in these Trading Terms (with the exception of the consumer guarantees provided by the ACL) all conditions, warranties and obligations, whether implied or imposed by statute or otherwise, in respect of the provision of any services provided by the Contractor are excluded.  No warranty is provided by Urban in respect of the condition of the Equipment or its fitness for any particular purpose.  The Customer shall indemnify and hold harmless Urban in respect of all claims arising out of the use of the Equipment. 

Liability for Works:
Subject to any liability under the ACL which cannot be excluded, Urban does not accept Liability for any personal injury, death, direct loss, indirect loss, Consequential Loss or damage, however caused which the Customer may directly or indirectly suffer in connection with the hire of the Equipment. 

For the avoidance of doubt, under no circumstances shall Urban’s liability exceed the Price.

If liability under the ACL cannot be excluded but can be limited in the case of services supplied by the Subcontractor that are NOT acquired for personal, domestic or household use or consumption, any personal injury, death, direct loss, indirect loss, Consequential Loss or other damage, however caused which the Customer may incur or suffer in connection with the services is limited to (at the election of Urban) one or more of the following:

  • provision of the services again;  or
  • payment of the cost of having the services provided again

Force Majeure:
The Subcontractor shall not be obliged to complete or continue the performance of the Works where and to the extent that such performance is prevented or interrupted or delayed by reason of any requirement of any governmental authority or any war, public disorder, civil commotion or disturbance, acts of enemies, strike, lockout, fire, act of terror, act of God, accident or any other cause beyond the control of the Subcontractor (“Force Majeure Event”).  Where the Subcontractor fails or is delayed in the performance of the Works by a Force Majeure Event, other than any cause of action that cannot be excluded under the ACL or otherwise at law the Customer shall have no cause of action against the Subcontractor or Urban for a breach of any Term or otherwise.  If the Subcontractor is unable to complete the Works as a consequence of a Force Majeure Event, either Urban or the Subcontractor may, subject to their obligations under the ACL (if any) and otherwise at law, terminate the Engagement.

Ongoing indemnity:
Each indemnity of the Customer given herein is a liability of the Customer separate and independent of any other liability the Customer under these Terms, and survives and continues after performance of the Works and in the event of termination of the Engagement, that termination.

Dry Hire Insurance
The Customer will insure, or self insure, Urban’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment.  Further, the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.  The Customer must provide Urban with copies of insurance covering Third Party Liability, Plant Equipment and Motor Vehicle Liability prior to delivery of the Equipment.

In the event that the Customer is unable to provide insurance cover, then Urban may provide cover for theft, fire and accidental damage only at a cost of eight and a half percent (8.5%) of the Price.  The greater of ten thousand dollars ($10,000) or one point seven percent (1.7%) of the replacement value of the Equipment will be charged as an excess per claim if the Customer is to be covered by Urban’s insurance policy, which amount will be payable by the Customer on demand.  The Customer will also be responsible to pay Urban for lost hire revenue whilst repairs are carried out and until the Equipment is returned to Urban in the same rentable condition as when it was delivered.

Defects:
The Customer shall inspect the Equipment and/or Products and/or Services on delivery and shall within four (4) hours notify Urban of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.  The Customer shall afford Urban an opportunity to inspect the Equipment within a reasonable time following delivery if the Customer believes the Equipment and/or Products and or Services are defective in any way.  If the Customer fails to comply with thee Trading Terms, the Equipment and/or Products and/or Services are deemed to be free from any defect or damage.  For defective Equipment and/or Products and/or Services, which Urban has agreed in writing that the Customer is entitled to reject, Urban’s liability is limited to either repairing or replacing the Equipment and/or Product and/or Services, except where the Customer is a consumer within the meaning of the Competition and Consumer Act 2010 (Cth) 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 hire price of the Equipment and/or Products and/or Services, the repair or the replacement of the Equipment and/or products and/or services. 

Access:  Prior to the commencement of the Works, the Customer:

  • shall permit Urban and/or any agent or subcontractor to attend at the site to determine the condition and suitability of the site and/or the Equipment for the performance of the Works;
  • must obtain the necessary permits and/or plans for the completion of the Works and pay any fee(s) payable to any local government or other authority required for the performance of the Works;
  • must clearly mark the location of and identify all services above and below ground at the site including, but not limited to any electrical services, gas services, drains, pipes, sewers, mains, pumps, irrigation, telephone and/or data cables and/or any other services which may be on site.

Whilst Urban will take all care to avoid damage to any services on the site, the Customer agrees to indemnify Urban 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 in accordance with these Trading Terms.

Customer’s Responsibilities:  Unless otherwise agreed in Urban’s Special Conditions attached to the Quotation, the Customer shall:

  • Notify Urban immediately by telephone of the full circumstances of any mechanical breakdown, failure or accident.  The Customer is not absolved from the requirements to safeguard the Equipment by giving such notification;
  • Satisfy itself at commencement that the Equipment is suitable for its purposes;
  • Operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with the manufacturer’s instructions whether supplied by Urban or posted on the Equipment;
  • Ensure that all persons operating the Equipment are suitably instructed in its safe and proper use and where necessary, that they hold a current Certificate of Competency and/or are fully licensed to operate the Equipment and shall provide evidence of the same to Urban upon request.  Urban shall have the right to reject an operator nominated by the Customer provided the grounds for such rejection are reasonable in the view of the Customer, in which event the Customer will replace the nominated operator;
  • Comply with all occupational health and safety laws relating to the equipment and its operation;
  • On termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to Urban;
  • Keep the Equipment in their own possession and control and shall not assign the benefit of the third contract nor be entitled to any lien over the Equipment;
  • Not alter or make any additions to the Equipment including, without limitation, altering, making additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
  • Employ the Equipment solely for the purposes for which it is hired and shall not permit the Equipment or any part thereof to be used by any other party for any other work;
  • Not exceed the recommended or legal load and/or any rated capacity limits of the Equipment;
  • Not use or carry any illegal, prohibited or dangerous substances in or on the Equipment;
  • Maintain the daily inspection book provided by Urban and present it to Urban on request;
  • Not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
  • Ensure the required Equipment servicing is completed in accordance with Urban’s instructions.  The servicing shall be at the Customer’s expense and shall include:
  • Greasing, oiling and lubrication, including all adjustments of bolts, nuts, hoses etc; and
  • Replacement of filters, hoses etc to be provided by OEM or Urban at cost to the Customer and fitted by the Customer; and
  • Daily and weekly service as specified in Urban’s Maintenance Schedule; and
  • Cleaning of equipment on completion of the hire.

Customer’s Obligations:  Unless stated otherwise in Urban’s Special Conditions attached to the Quotation, immediately on request by Urban, the Customer must pay:

  • The new list price of any Equipment or part thereof that is for whatever reason destroyed, written off or not returned to Urban;
  • All costs incurred in cleaning the Equipment;
  • All costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to 10% of the new list price of the Equipment;
  • The cost of repairing any damage to the Equipment caused by the negligence of the Customer or the Customer’s agent;
  • The cost of repairing any damage to the Equipment caused by vandalism, or (in Urban’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer;
  • The cost of fuels and consumables provided by Urban and used by the Customer.  The Customer shall be responsible for the provision of transportation, storage and safe keeping of all fuels, oils and greases provided for use in the Equipment;
  • Urban for replacement of damaged tyres/tracks or any tyres/tracks with other than normal wear and tear at the end of the hire period; and
  • The cost of repairing or replacement of any GET required during or at the end of the hire period (GET includes items such as cutting edges, bucket teeth, wear plates, ripper boots/shin guards, hammer moils/chisels, hammer bushes, scraper flights, header teeth/picks, compactor feet and labour to fit);

Wet Hire:  
In the event of Wet Hire of the Equipment the operator of the Equipment remains an employee of Urban and operates the Equipment in accordance with the Customer’s instructions.  As such, Urban will not be liable for any actions of the operator in following the Customer’s instructions.

Demolition:  Unless expressly stated otherwise in a quotation issued by Urban:

Urban Earthmoving will only demolish footing to a depth of one metre (1 m).

The Quotation does not include

  • any footings that were in the ground from a prior building, not connected to the building currently being demolished but below the building or any footing on the site/block away from the building being demolished;
  • additional earthworks, levelling and/or compactions in preparation for new building works not expressly specified in the quotation;
  • the removal of any hazardous materials;
  • weather proofing, temporary propping, hoarding, silt control, and/or scaffolding;
  • the removal of septic tanks and/or emptying of waste from septic tanks and
  • the removal of vegetation, retaining walls and/or fences;
  • the provision of air monitoring; and
  • the removal of friable asbestos (including Low Density Board) unless specifically stated as “friable asbestos” removal in the quotation.

Loss of Equipment: If the Equipment is lost, damaged or destroyed due to any fault of the Customer, its servants, agents, employees or invitees, including through failure to comply with these Trading Terms, the Customer shall make good that loss or damage at its expense immediately upon demand by Urban.

Cancellation: 
Urban may cancel these Trading Terms or cancel delivery of Equipment at any time before the Equipment is delivered by giving written notice.  On giving such notice, Urban shall repay to the Customer any sums paid in respect of the Price.  Urban shall not be liable for any loss or damage whatsoever arising from or in connection with such cancellation. 

The Customer may cancel hire of the Equipment by providing not less than forty eight (48) hours’ written notice of their intention to cancel.  Hire costs during transportation on or after the day of termination will not be paid by the Customer.  In the event that the Customer cancels delivery of the Equipment without providing adequate notice or before delivery of the Equipment, the Customer shall be liable for any loss incurred by Urban (including but not limited to any loss of profits) as a result of the cancellation.

Replacement of Subcontractor:
Urban may replace any Subcontractor at any time where Urban reasonably believes the Subcontractor is unable for any reason to complete the Work.  If Urban replaces the Subcontractor, the Customer will sign all paperwork as reasonably required by Urban with respect to completion of the Work by that replacement.

Review of Trading Terms
Urban reserves the right to review these Trading Terms at any time.  If, following any such review, there is to be any change to these Trading Terms, that change will take effect from the date on which Urban notifies the Customer of such Change.  Except where the client supplies further Equipment to the Customer, and the Customer shall be under no obligation to accept such changes.  The Trading Terms as amended from time to time will be posted on Urban’s website at: www.thomaskingsley.com.au

Definitions & interpretation:  In these Trading Terms unless the context requires otherwise:

  • “ACL”

- Means the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth)
as amended from time to time

  • “Consequential Loss”

- Means without limitation: damage to any third party’s property; loss of profits; loss of revenue; lost production; loss of business; loss of the benefit of any contract or other agreement or arrangement; damage to reputation; and legal costs

  • Credit-related information

- Includes “credit information”, “credit reporting information”, “credit eligibility information” and/or “regulated information” (as the context permits) within the meaning of those terms in the Privacy Act

  • “Credit Terms”

- Means the General Credit Terms attached to any Application for Commercial Trading Account

  • “Customer”

- Means the customer whose details appear in the Application for a Commercial Trading Account and the Customer’s subsidiaries, holding companies and other related entities

  • “Dry Hire”

- Means hire of Equipment without an operator supplied by Urban

  • Engagement”

- Any instructions received by Urban from the Customer for the Works and/or the Customer’s acceptance of Equipment supplied on hire by Urban and/or Products or Services supplied by Urban shall constitute acceptance of these Trading Terms

  • “Event of Default” - Means any of the following events:

- The Customer fails to pay for any Products and Services and/or the Customer breaches these Trading Terms;

- The Customer ceases or threatens to cease carrying on business;

- If the Customer is a company: an order is made or a resolution is effectively passed for winding up of the Customer, or the Customer resolves to appoint a receiver or provisional liquidator or an administrator, or a receiver or provisional liquidator or an administrator is appointed, or the Customer goes into liquidation or makes an assignment or an arrangement or composition with the Customer’s creditor, or the Customer stops payment or is deemed unable to pay the Customer’s debts within the meaning of the Corporations Act 2001 (Cth); if the Customer is a natural person: an order is made for the Customer’s bankruptcy, or the Customer dies or becomes mentally or physically incapable of managing his or her affairs, or an order is applied for or made to place the assets and affairs of the Customer under administration

  • “Equipment”

- Means any equipment or other tools, materials, resources or other items necessary to carry out the Works, including but not limited to earthmoving equipment and other heavy equipment, whether supplied by Urban, a Subcontractor or any other person.

  • “Full Day’s Hire”

- Means 8 machine hours or one day’s hire

  • Job Docket”

- Means each and any job docket and/or tax invoice issued by Urban with respect of the Work from time to time

  • Minimum Hire Period”

- Means the minimum hire period described on the invoices, quotation, authority to hire or any other form provided by Urban to the Customer

  • “Officer”

- Means each director, secretary, credit manager and authorised representative of Urban

  • “Premises”

- Means the site or location at which the Work is to be provided, as set out in the Job Docket

  • Privacy Act

- Means the Privacy Act 1988 (Cth) as amended from time to time

  • “Products”

- Includes all Products and Services supplied by Urban to the Customer including, but not limited to the Works, and the value attached to or the proceeds related to the provision of any Services, including, but not limited to products and services supplied by Urban’s Subcontractors and/or agents, and the works described in any Job Docket provided by or on behalf of Urban to the Customer

  • “Services”

- Includes all Services supplied by Urban to the Customer including, but not limited to the Works, Wet Hire, Dry Hire, earthmoving and/or heavy machinery services, or services associated therewith

  • “Subcontractor”

- Means each and any subcontractor engaged by Urban for the completion of the Work at the discretion of Urban from time to time

  • “Trading Terms”

- Means all the provisions of the Application for Commercial Trading Account (including the General Credit Terms) plus Urban’s Terms and Conditions of Trade (as they appear herein) and/or any other conditions or facility agreement or member agreement as may be amended by Urban from time to time

  • “Urban

- Means Urban Earthmoving (Qld) Pty Ltd and any related body corporate, any subsidiary or associated trustee and as trustee of any trust from time to time, and any of its successors and assigns or any person acting on behalf of and with the authority of Urban Earthmoving (Qld) Pty Ltd including any Agent or Subcontractor thereof 

  • Wet Hire”

- Means hire of the Equipment with an operator supplied by Urban

  • “Works”

- Means all earthmoving and heavy machinery services provided by Urban to the Customer (and/or at the request of the Customer) including (but not limited to) the provision of Products and/or Services, the hire of Equipment,  whether wet or dry hire including (but not limited to) the works undertaken in accordance with that hire, services provided in association with the hire and/or any items listed on the quotation and/or invoice and/or Job Docket arising out of or in connection to any supply of any kind by Urban to the Customer and/or at the request of the Customer.

Interpretation:

In these Trading Terms, unless the context requires otherwise, all references to a party include the party’s successors and permitted assigns.

No provision of these Trading Terms will be construed adversely against a party solely because the party was responsible for drafting the provision.

 

 

 

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