Terms of Trade

Top Dog Mini Excavations – Terms & Conditions of Trade

PREAMBLE

1. Preamble

1.1 All Incidental Items and/or Services of Scott Jason Stirling T/A Top Dog Mini Excavations/Top Dog Dingo And Excavator Hire, whether gratuitous or not, are supplied subject to these Conditions and:

(a) The provisions of Part I shall apply to the provision of all and any Incidental Items and/or Services.
(b) The provisions of Part II shall only apply to the provision of Equipment Hire.
(c) The provisions of Part III shall only apply to the provision of Excavation Services.

PART I – GENERAL CLAUSES

2. Definitions

2.1 “TDDH” means Scott Jason Stirling T/A Top Dog Mini Excavations/Top Dog Dingo And Excavator Hire, its successors and assigns or any person acting on behalf of and with the authority of Scott Jason Stirling T/A Top Dog Mini ExcavationsTop Dog Dingo And Excavator Hire.

2.2 “Customer” means the person/s requesting TDDH to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.

2.3 “Incidental Items” means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by TDDH in the course of it conducting, or supplying to the Customer, any Services.

2.4 “Services” mean all Services supplied by TDDH to the Customer at the Customer’s request from time to time.

2.5 “Equipment” shall mean all Equipment (including any accessories) supplied on hire by TDDH to the Customer (and where the context so permits shall include any incidental supply of services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation forms as provided by TDDH to the Customer.

2.6 “Price” means the Price payable (plus any GST where applicable) for the Services as agreed between TDDH and the Customer in accordance with clause 4 of this contract.

3. Acceptance

3.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for, or accepts Services provided by TDDH.

3.2 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 Customer and TDDH.

3.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.

4. Price and Payment

4.1 The Price shall be as indicated on invoices provided by TDDH to the Customer in respect of the Services supplied.

4.2 Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated, then payment will be due seven (7) days following the date of the invoice.

4.3 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by TDDH nor to withhold payment of any invoice because part of that invoice is in dispute.

4.4 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to TDDH an amount equal to any GST TDDH must pay for any supply by TDDH under this or any other agreement for providing TDDH’s Services. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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 Services

5.1 At TDDH’s sole discretion delivery of the Services shall take place when:

(a) the Services are supplied to the Customer at TDDH’s address; or
(b) the Services are supplied to the Customer at the Customer’s nominated address.

5.2 Delivery of the Services to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

5.3 TDDH 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.

5.4 Any time specified by TDDH for delivery of the Services is an estimate only and TDDH will not be liable for any loss or damage incurred by the Customer 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 TDDH is unable to supply the Services as agreed solely due to any action or inaction of the Customer then TDDH shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.

6. Risk

6.1 Irrespective of whether TDDH retains ownership of any Incidental Items all risk for such items shall pass to the Customer as soon as such items are delivered to the Customer and shall remain with the Customer until such time as TDDH may repossess the Incidental Items in accordance with clause 7.3(f). The Customer must insure all Incidental Items on or before delivery.

6.2 TDDH reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Customer’s failure to insure in accordance with clause 6.1.

7. Title

7.1 TDDH and the Customer agree that where it is intended that the ownership of Incidental Items is to pass to the Customer that such ownership shall not pass until:

(a) the Customer has paid TDDH all amounts owing for the Services; and
(b) the Customer has met all other obligations due by the Customer to TDDH in respect of all contracts between TDDH and the Customer.

7.2 Receipt by TDDH 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 TDDH’s ownership or rights in respect of the Incidental Items shall continue.

7.3 It is further agreed that:

(a) the Customer is only a bailee of the Incidental Items and must return the Incidental Items to TDDH immediately upon request by TDDH;
(b) the Customer holds the benefit of the Customer’s insurance of the Incidental Items on trust for TDDH and must pay to TDDH the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Customer sells, disposes or parts with possession of the Incidental Items then the Customer must hold the proceeds of sale of the Incidental Items on trust for TDDH and must pay or deliver the proceeds to TDDH on demand.
(d) the Customer should not convert or process the Incidental Items or intermix them with other goods, but if the Customer does so then the Customer holds the resulting product on trust for the benefit of TDDH and must dispose of or return the resulting product to TDDH as TDDH so directs.
(e) the Customer shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of TDDH;
(f) the Customer irrevocably authorises TDDH to enter any premises where TDDH believes the Incidental Items are kept and recover possession of the Incidental Items.

8. Personal Property Securities Act 2009 (“PPSA”)

8.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

8.2 Upon assenting to these terms and conditions in writing the Customer 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 Incidental Items and/or collateral (account) – being a monetary obligation of the Customer to TDDH for Services – that have previously been supplied and that will be supplied in the future by TDDH to the Customer.

8.3 The Customer 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 TDDH 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 8.3(a)(i) or 8.3(a)(ii);
(b) indemnify, and upon demand reimburse, TDDH 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 Incidental Items charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of TDDH;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or collateral (account) in favour of a third party without the prior written consent of TDDH.

8.4 TDDH and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

8.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

8.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

8.7 Unless otherwise agreed to in writing by TDDH, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.

8.8 The Customer must unconditionally ratify any actions taken by TDDH under clauses 8.3 to 8.5.

8.9 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.

9. Default and Consequences of Default

9.1 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 TDDH’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

9.2 If the Customer owes TDDH any money the Customer shall indemnify TDDH from and against all costs and disbursements incurred by TDDH in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TDDH’s contract default fee, and bank dishonour fees).

9.3 Further to any other rights or remedies TDDH may have under this contract, if a Customer has made payment to TDDH by credit card, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by TDDH under this clause 9 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this agreement.

10. Cancellation

10.1 Without prejudice to any other remedies TDDH may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions TDDH may suspend or terminate the supply of Services to the Customer. TDDH will not be liable to the Customer for any loss or damage the Customer suffers because TDDH has exercised its rights under this clause.

10.2 TDDH 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 Customer. On giving such notice TDDH shall repay to the Customer any money paid by the Customer for the Services. TDDH shall not be liable for any loss or damage whatsoever arising from such cancellation.

10.3 In the event that the Customer cancels delivery of the Services the Customer shall be liable for any and all loss incurred (whether direct or indirect) by TDDH as a direct result of the cancellation (including, but not limited to, any loss of profits).

11. Privacy Act 1988

11.1 The Customer agrees for TDDH 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 Customer in relation to credit provided by TDDH.

11.2 The Customer agrees that TDDH may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:

(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two years.

11.3 The Customer consents to TDDH being given a consumer credit report to collect overdue payment on commercial credit.

11.4 The Customer agrees that personal credit information provided may be used and retained by TDDH for the following purposes (and for other agreed purposes or required by):

(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.

11.5 TDDH may give information about the Customer 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 Customer including credit history.

11.6 The information given to the CRB may include:

(a) personal information as outlined in 11.1 above;
(b) name of the credit provider and that TDDH is a current credit provider to the Customer;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and TDDH has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of TDDH, the Customer has committed a serious credit infringement;
(h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

11.7 The Customer shall have the right to request (by e-mail) from TDDH:

(a) a copy of the information about the Customer retained by TDDH and the right to request that TDDH correct any incorrect information; and
(b) that TDDH does not disclose any personal information about the Customer for the purpose of direct marketing.

11.8 TDDH will destroy personal information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.

11.9 The Customer can make a privacy complaint by contacting TDDH via e-mail. TDDH 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.

12. General

12.1 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.

12.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which TDDH has its principal place of business, and are subject to the jurisdiction of the courts in Queensland.

12.3 TDDH shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by TDDH of these terms and conditions (alternatively TDDH’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).

12.4 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.

12.5 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.

PART II: EQUIPMENT HIRE

13. Customer Responsibilities

13.1 The Customer shall;

(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment, pledge TDDH’s credit for repairs to the Equipment, nor be entitled to take a lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any 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.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by TDDH to the Customer.

13.2 The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self-insure, TDDH’s interest in the Equipment and agrees to indemnify TDDH 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 or persons arising out of the use 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.

14. Title

14.1 The Equipment is and will at all times remain the absolute property of TDDH, and the Customer must return the Equipment to TDDH upon request to do so.

14.2 If the Customer fails to return the Equipment to TDDH as is required under this contract or when requested to do so, then TDDH or TDDH’s agent may (as the invitee of the Customer) enter upon and into any land and premises owned, occupied or used by the Customer, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused. Any costs incurred by TDDH as a result of TDDH so repossessing the Equipment shall be charged to the Customer.

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

15. Wet Hire

operator who shall at all times remain an employee of TDDH.

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

PART II: EXCAVATION CLAUSES

16. Risk

16.1 Prior to TDDH commencing any works the Customer must advise TDDH of the precise location of all known Asbestos/Hazardous Materials on the worksite and clearly mark the same. Removal from the worksite and the disposal of Asbestos/Hazardous Materials shall at all times be the Customer’s responsibility unless otherwise agreed in writing.

16.2 In the event that TDDH discovers Asbestos/Hazardous Materials whilst undertaking any works TDDH shall immediately advise the Customer of the same and shall be entitled to suspend the works pending a risk assessment in relation to those materials. The Customer shall be liable for all additional costs incurred by TDDH (howsoever arising) as a result of the discovery of Asbestos/Hazardous Materials and/or any suspension of works in relation thereto.

16.3 Where TDDH agrees to remove any Asbestos/Hazardous Materials on the Customer’s behalf then the Customer shall be liable for all costs incurred by TDDH in the removal and disposal those materials.

16.4 Both the Customer and TDDH agree that they will at all times ensure that they 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 work health and safety laws (WHS) relating to building/construction sites, and any other relevant safety standards or legislation, particularly those in relation to Asbestos/Hazardous Materials and the safe removal and disposal of the same.

17. Access

17.1 The Customer shall ensure that TDDH has clear and free access to the worksite at all times to enable them to undertake the Services. TDDH 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 TDDH.

17.2 It is the responsibility of the Customer to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by TDDH.

18. Underground Locations

18.1 Prior to TDDH commencing any work the Customer must advise TDDH of the precise location of all underground services on the worksite and clearly mark the same. The underground mains & services the Customer 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.

18.2 Whilst TDDH will take all care to avoid damage to any underground services the Customer agrees to indemnify TDDH in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 18.1.

19. Insurance

19.1 TDDH shall have public liability insurance of at least $5m or greater. It is the Customer’s responsibility to ensure that they are similarly insured.