Terms and Conditions
CQ Landworks Pty Ltd A.B.N 95 355 193 012
1. Definitions
1.1 “Contractor” means CQ Landworks Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of CQ Landworks Pty Ltd.
1.2 “Client” means the person/s or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
1.3 “Works” means all Works or Materials provided by the Contractor to the Client at the Client’s request
1.4 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between the Contractor and the Client.
1.5 “GST” means Goods and Services Tax (GST)
2. Acceptance
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, provision of any Works.
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 contract between the Client and the Contractor.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 2 of the Electronic Transactions (QLD) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that the Contractor shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s): (a) resulting from an inadvertent mistake made by the Contractor in the formation and/or administration of this contract; and/or contained in/omitted from any literature (hard copy and/or electronic) supplied by the Contractor in respect of the Works.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of the Contractor; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Payment and Price
4.1 At the Contractor’s sole discretion, the Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Client in respect of Works provided; or
(b) the Price as at the date of provision of the Works according to the Contractor’s current price list; or
(c) the Contractor’s quoted Price which shall be binding upon the Contractor provided that the Client shall accept the Contractor’s quotation in writing within three 30 days.
4.2 The Contractor reserves the right to change the Price: (a) if a variation to the Materials which are to be provided is requested; or
(b) if a variation to the Works originally scheduled (including any applicable designs, plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties which are only discovered on commencement of the Works; or
(d) in the event of increases to the Contractor in the cost of labour or Materials, which are beyond the Contractor’s control.
4.3 Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within five (5) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
4.4 At the Contractor’s sole discretion, a deposit will be require to cover material costs.
4.5 Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:
(a) on completion of the Works; or
(b) by way of instalments/progress payments in accordance with the Contractor’s payment schedule;
(a) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Contractor.
4.6 Payment may be made by cash, electronic/on-line banking or by any other method as agreed to between the Client and the Contractor.
4.7 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 the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
4.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any provision of Works by the Contractor under this contract, or any other agreement. 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. 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.
5. Provision of the Works
5.1 It is the Contractor’s responsibility to ensure that the Works start as soon as it is reasonably possible.
5.2 The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to, materials being unavailable, wet weather.
5.3 The Contractor may provide the Works by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
6. Risk
6.1 The Contractor shall maintain a contract works insurance policy, and public liability insurance of $10m, until the Works are completed. It is the Clients responsibility to ensure that they are similarly insured; and upon completion of the Works all risk for the Works shall immediately pass to the Client.
6.2 The Client acknowledges and agrees that, where the Contractor gives any advice, recommendation, information, assistance or service in relation to Works it is given in good faith, based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the Contractor. It shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Works; and
(b) The Contractor shall not be liable in any way whatsoever for any damages or losses
that occur after any subsequent commencement of the Works.
6.3 The Contractor shall not be held responsible for any damage to the Works, or delays to provision thereof, caused by outside agents. Where the Client requests the Contractor to repair such damage then the Contractor reserves the right to charge the Client for any costs incurred in rectifying such damage.
6.4 The Contractor shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. In the event that any of this information provided by the Client, and/or marking out of the proposed area by the Client, is inaccurate, then the Contractor accepts no responsibility for any loss, damages, or costs however resulting from these inaccuracies.
6.5 The Contractor is not insured to remove furniture or fittings and will not do so, nor is the Contractor licensed to move gas or electrical appliances.
6.6 The contractor shall not be liable for any upgrading or relocating of existing services.
6.7 The contractor will accept no responsibility of any direct loss or damage arising from any sub-contractor hired to perform any work or other supplies not employed by CQ Landworks.
6.8 The contractor will accept no responsibility for any colour variation, uniformity of surface depth, sides or surface texture.
6.9 Where the quotation includes excavations of a site by either hand or machine, it is assumed that the excavated materials shall be of a soft, loose nature. No allowance has been made for the excavation of rock. When rock is required to be excavated, the additional costs of this work will be charged to the customer.
7. Client’s Responsibilities
7.1 The Client shall ensure that the Contractor has clear and free access to the site at all times to enable them to undertake the Works. The Contractor shall not be liable for any loss or damage to the site.
7.2 It is the Client’s responsibility to:
(a) make the premises available on the agreed date and time, and have all areas clean and clear, to enable Works to be completed in accordance with the agreed work schedule. If the Works are interrupted by the failure of the Client to adhere to the agreed work schedule, any additional costs will be invoiced to the Client as an extra; and
(b) ensure that the site is clear of all equipment, motor vehicles, trampolines, Cubby houses or any encumbrances before the commencement of the Works. The Client further agrees that the failure to comply with this clause will result in the Contractor ceasing work without a refund.
(c) remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by the Contractor in this regard.
8. Terms and Conditions of Trade
8.1 Prior to the Contractor commencing the Works, the Client must advise the Contractor 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, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on the site. Whilst the Contractor will take all care to avoid damage to any underground services the Client agrees to indemnify the Contractor 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.
8.2 The Client acknowledges that, in the event asbestos or any other toxic substances are discovered at the site, it is the Client’s responsibility to ensure the safe removal of the same. The Client further agrees to indemnify the Contractor against any costs incurred by the Contractor as a consequence of such discovery. Under no circumstances will the Contractor handle removal of asbestos product.
8.3 Where the Client has supplied goods for the Contractor to complete the Works, the Client acknowledges that it accepts responsibility for the suitability of purpose, quality and any faults inherent in those goods. The Contractor shall not be responsible for any defects in the Works, or any loss or damage to the goods (or any part thereof), howsoever arising from the use of goods supplied by the Client.
9. Compliance with Laws
9.1 The Client and the Contractor shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation.
9.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Works.
10. Title
10.1 The Contractor and the Client agree that the Client’s obligations to the Contractor for the provision the Works shall not cease (and ownership of the Materials shall not pass) until:
(a) the Client has paid the Contractor all amounts owing to the Contractor; and
(b) the Client has met all other obligations due by the Client to the Contractor in respect of all contracts between the Contractor and the Client.
10.2 Receipt by the Contractor 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 the Contractor’s ownership or rights in respect of the Materials, and this contract, shall continue.
11. Security and Charge
11.1 In consideration of the Contractor agreeing to provide Works, 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).
11.2 The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.
11.3 The Client irrevocably appoints the Contractor and each director of the Contractor 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.
12. Default and Consequences of Default
12.1 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 week (and at the Contractor’s sole discretion such interest shall compound weekly at such a rate) after as well as before any judgment.
12.2 If the Client owes the Contractor any money the Client shall indemnify the Contractor from and against all costs and disbursements incurred by the Contractor in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Contractor’s contract default fee, and bank dishonour fees).
12.3 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the provision of Works to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
13. Cancellation
13.1 Without prejudice to any other remedies the Contractor may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Contractor may suspend or terminate the supply of Works to the Client. The Contractor will not be liable to the Client for any loss or damage the Client suffers because the Contractor has exercised its rights under this clause.
13.2 The Contractor may cancel any contract to which these terms and conditions apply, or cancel provision of Works at any time before the Works have commenced, by giving written notice to the Client. On giving such notice, the Contractor shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to the Contractor for Materials already procured. The Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.3 In the event that the Client cancels this contract, or provision of the Works, the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Contractor as a direct result of the cancellation (including, but not limited to, any loss of profits).
13.4 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.
14. Privacy Act
14.1 The Client agrees for the Contractor to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Contractor.
14.2 The Client agrees that the Contractor may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(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 to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
14.3 The Client consents to the Contractor being given a consumer credit report to collect overdue payment on commercial credit.
14.4 The Client agrees that personal credit information provided may be used and retained by the Contractor for the following purposes (and for other agreed purposes or required by):
(a) the provision of Works; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Works.
14.5 The Contractor may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
14.6 The information given to the CRB may include:
(a) personal information
(b) name of the credit provider and that the Contractor is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) information that, in the opinion of the Contractor, the Client has committed a serious credit infringement;
(e) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
14.7 The Client shall have the right to request (by e-mail) from the Contractor: (a) a copy of the information about the Client retained by the Contractor and the right to request that the Contractor correct any incorrect information; and
(b) that the Contractor does not disclose any personal information about the Client for the purpose of direct marketing.
14.8 The Contractor will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.
14.9 The Client can make a privacy complaint by contacting the Contractor via e-mail. The Contractor will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
15. General
15.1 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.
15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which the Contractor has its principal place of business, and are subject to the jurisdiction of the Courts in Queensland.
15.3 Subject to clause 13 the Contractor 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 the Contractor of these terms and conditions (alternatively the Contractor’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
15.4 The Contractor may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
15.5 The Client cannot licence or assign without the written approval of the Contractor.
15.6 The Contractor may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Contractor’s sub–contractors without the authority of the Contractor.
15.7 The Client agrees that the Contractor 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 the Contractor to provide Works to the Client.
15.8 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.
15.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.