"Client" means the person or entity requesting OCCS to provide the Services as specified in a Quotation, invoice, document or order.
"Confidential Information" means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party's intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, "Personal Information" such as: name, address, D.O.B, occupation, driver's license details, electronic contact details, insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
"Cookies" means small files stored on a user's computer and designed to hold small amounts of data (including Personal Information) specific to a particular client.
"GST" means Goods and Services Tax as defined within the "A New Tax System (Goods and Services Tax) Act 1999" (Cth).
"Materials" means any goods, documents, designs, drawings or materials supplied, consumed, created or deposited incidentally by OCCS in the course of it conducting, or supplying to Client, any Services.
"Price" means the price payable (plus any GST) for the Services as agreed between OCCS and Client in accordance with clause 3.
"Quotation" means a written document issued by OCCS to Client setting out the estimates of the Services requested by Client and costs and which is valid for acceptance by Client for a period of 30 days.
"OCCS" means Online Concrete Cutting Services Pty Ltd A.C.N 117 132 117 of 6 Prince William Drive, Seven Hills, NSW, 2147.
"Services" means all concrete cutting and related services to be supplied by OCCS at Client's request from time to time.
Client is taken to have accepted these Terms when Client places an order for, or accepts a Quotation provided by OCCS.
In the event of any inconsistency between these Terms and any other prior agreement between the parties, these Terms shall prevail.
Any amendment to the Terms may only be amended in writing signed by both parties.
OCCS' employees, agents or representatives are not authorised to make any representations, statements, conditions or agreements unless such are made in writing by a director of OCCS.
Where OCCS gives advice, recommendations, information, assistance or service to Client regarding the Services, then it is given in good faith and OCCS shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from Client relying on the same.
The parties agree to use electronic signatures in compliance with Section 9 of the Electronic Transactions Act NSW 2000.
Price, Variations and Payment
The Price shall be either the higher of:
(a) as indicated on any invoice provided by OCCS to Client; or
(b) the Price as at the date of delivery of the Services according to OCCS' current price list which are subject to change without notice, errors and omissions accepted; or
(c) OCCS' quoted price which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
For Services, the Price is based on the cutting of normal brickwork or concrete with normal bluestone aggregate, as determined by OCCS. Unless otherwise arranged, the sawing/drilling rates allow for 1x12mm re bar per area/hole; should a higher concentration of reinforcement be present, Client shall be charged at the then current rates applicable.
OCCS reserves the right to vary the Price:
(a) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(b) where additional Services are required due to the conditions at the site (including, but not limited to weather conditions, delays and limitations to accessing the site, site defects, safety considerations, or prerequisite work not being completed, incorrect information, specifications or measurements supplied by Client, etc.) which are only discovered on commencement or during the provision of the Services; or
(c) in the event of increases to OCCS in the cost of labour or materials;
(d) other circumstances which are beyond OCCS' control.
Variations will be detailed in writing and shown as variations on OCCS' invoice. Unless Client objects to any variation submitted by OCCS within ten (10) working days, it shall be deemed to have accepted the same.
At OCCS' discretion a non-refundable deposit may be required.
Time for payment for the Services, including variation, is of the essence and is as follows:
(a) If no credit terms agreed, on or before provision of the Services;
(b) by way of instalments/progress payments in accordance with OCCS' payment schedule;
(c) thirty (30) days following the end of the month in which a statement is posted to Client's address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to Client by OCCS.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between Client and OCCS.
Client shall not set off against, or deduct from the Price, any sums owed or claimed to be owed to Client by OCCS nor to withhold payment of any invoice because part of that invoice is in dispute.
Unless otherwise stated the Price does not include GST. 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.
Receipt by OCCS of any form of payment other than cash shall not be deemed to be payment until it has cleared.
Where credit terms are provided by OCCS to Client, OCCS is not required to inform Client of the amount of credit provided to Client. OCCS may change the credit amount at time without prior notice to Client.
Unless otherwise agreed by OCCS, no allowance has been made in the Price for the deduction of retentions.
Provision of Services
OCCS' will commence the Services as soon as it is reasonably possible.
OCCS may claim an extension of time, by giving Client notice, where completion is delayed by an event beyond OCCS' control, including but not limited to any failure by Client to make a selection; or have the site ready for the Service; or notify OCCS that the site is ready.
Unless otherwise agreed, all Services shall be carried out during normal working hours (Monday to Friday, 7:00am to 3:30pm excluding public holidays). Any overtime shall be treated as an addition to the Price, and Client shall be charged accordingly.
OCCS may deliver the Services by separate instalments. Each instalment shall be invoiced and paid for in accordance with the provisions in these Terms.
Where the site is in an unsafe condition which makes it necessary for OCCS to attend to the cleaning before or during the provision of the Services, Client shall be charged in addition to the Price as per OCCS' current rates prevalent at the time the Services are provided.
Any time specified by OCCS for delivery of the Services is an estimate only and OCCS will not be liable for any loss or damage incurred by Client as a result of delivery being late. 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 OCCS is unable to supply the Services as agreed solely due to any action or inaction of Client then OCCS shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
Client acknowledges that concrete sawing and drilling operations generate concrete slurry which can stain, discolour, and contaminate existing work areas. Client agrees that it is their responsibility, unless otherwise agreed, to make provisions for cleaning and removal of all concrete slurry generated from the Services.
Whilst OCCS shall endeavour to take all care and responsibility to meet Client's requirements, such as the cutting of straight lines, Client acknowledges that for long distance cutting the coverage could be subject to slight variances that are beyond OCCS' control, including due to surface difficulties that provide an unstable surface. Such variances are not considered defects.
OCCS shall not be held responsible for any damage to the Services caused by third parties. Where Client requests OCCS to repair such damage then OCCS reserves the right to charge Client for any costs incurred in rectifying such damage.
Client shall at its cost arrange all other licenced tradesmen required (including Plumbers, Gas Fitters) unless otherwise agreed between OCCS and Client in the Quotation.
Client is responsible to:
(a) ensure that the site is safe to work at and cleared of all debris, material, tools and tackle and any other such obstacles that may hinder the proper performance of the Services; and
(b) unless otherwise agreed, clearly mark out in waterproof crayon or spray paint the line of cut and/or the position of holes (and/or other Services) prior to the provision of the Services by OCCS;
(c) supply mains water and electricity within fifty (50) metres and thirty (30) metres respectively. Where OCCS is required to supply electricity or water, Client shall be charged in addition to the Price at the current rates agreed before provision of the Services.
For sites over three (3) levels above ground, Client must, at its cost, arrange appropriate access to elevators and/or crane, or to provide labour to carry equipment to the required floor / level.
If asbestos or any other toxic substances are discovered at the site, Client shall ensure the safe removal of the same. Under no circumstances will OCCS work with or handle removal of asbestos product.
OCCS is not responsible for removal of rubbish from or clean-up of site/s and this remains the responsibility of Client.
Client must investigate and advise OCCS of the precise location of all underground services within the site and clearly mark the same by waterproof crayon or paint prior to OCCS commencing the Services. Client should consult “Before you Dig” www.byda.com.au previously “Dial Before You Dig” or similar and if required, do investigative location checks. The underground mains & services Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site near the proposed area OCCS is requested to provide Services.
OCCS will take reasonable care to avoid damage to any underground services and Client indemnifies OCCS in respect of all and any liability claims, loss, damage, costs and fines as a result of damage to services not precisely located (both in location and depth).
Client may request OCCS to undertake service locating in addition to the Price.
Client shall ensure that OCCS has clear and free access to the site at all times to enable them to undertake the Services.
OCCS will take reasonable care but shall not be liable for any loss or damage to the site (including, without limitation, pre-existing or new damage to pathways, driveways and concreted or paved or grassed areas).
Measurement of Services
When notified that the Services have been completed, Client shall attend and inspect and measure the Services. If Client is not able to attend or delays attendance within 15 minutes, OCCS shall carry out the necessary measurements and forward to Client. If Client does not object to the calculations within seven (7) days of receipt of the same, then such calculations shall be deemed acceptance of the same and the Services completed.
All customary building industry tolerances shall apply to the dimensions/measurements of the Services unless OCCS and Client agree otherwise in writing.
OCCS shall be entitled to rely on the accuracy of any plans, specifications and other information provided by Client.
If the provision of a Quotation involves OCCS estimating measurements / quantities, it shall be Client's responsibility to verify the accuracy of OCCS's estimated measurements / quantities, before Client places an order or works proceeds.
Personal Property Securities Act 2009 ("PPSA")
In this clause, “financing statement”, “financing change statement”, “security agreement”, and “security interest” have the same meaning as in the PPSA.
Client acknowledges and agrees that these Terms constitute a security agreement for the purposes of the PPSA and creates a security interest in all collateral (account) – being a monetary obligation of Client to OCCS for Services previously been provided and to be provided in the future by OCCS to Client.
Client agrees to:
(a) promptly sign any further documents and/or provide any further information which OCCS may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the PPSA Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a document referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) not register a financing change statement in respect of a security interest without the prior written consent of OCCS;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the collateral (account) in favour of a third party without the prior written consent of OCCS.
OCCS and Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms.
Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA, waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA and unless otherwise agreed to in writing by OCCS, Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
Defects, Warranties and Limit of Liability
Client must inspect OCCS' Services on completion of the Services and must within seven (7) days notify OCCS in writing of any evident defect in the Services provided (including the Materials and/or OCCS' workmanship) or of any other failure by OCCS to comply with the description of, or quote for, the Services which OCCS supplied. Client must allow OCCS to review and inspect the alleged defects in Services that were provided.
Certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the state and Commonwealth Consumer Laws) may be implied by law (Non-Excluded Guarantees). OCCS acknowledges that nothing in these Terms is intended to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these Terms of trade, OCCS makes no warranties or other representations including, but not limited to, the quality or suitability of the Services.
OCCS' liability is limited to rectify, re-supply, or pay the cost of re-supplying the Services, and if unable to do so, then OCCS may refund any money Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Materials which have been provided to Client which were not defective.
OCCS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) Client failing to properly prepare or maintain Services;
(b) Client using the Services for any purpose other than that for which they were designed;
(c) Client continuing to use any Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Services by Client or any third party without OCCS' prior approval;
(e) Client failing to follow any instructions or guidelines provided by OCCS;
(f) fair wear and tear, any accident, or act of God.
OCCS shall not be liable howsoever to Client for any indirect and/or consequential loss and/or expense (including loss of profit or loss of revenue) suffered by Client arising out of a breach by OCCS of these Terms. OCCS's entire liability shall be limited to the fee paid by Client for the Services.
If OCCS has designed, drawn or developed Materials for Client, then copyright in any Materials shall remain the property of OCCS. Client is granted a limited licence to use the same but only for the purposes of the Services to be provided by OCCS. Under no circumstances may such designs, drawings and documents be used or provided to a third party without the express written approval of OCCS.
Client warrants that all designs, specifications or instructions given to OCCS will not cause OCCS to infringe any confidential information, copyright, patent, registered design or trademark in the execution of Client's order and Client agrees to indemnify OCCS against any action taken by a third party against OCCS in respect of any such infringement.
Default and Consequences of Default
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 shall compound monthly at such a rate) after as well as before any judgment.
Client shall be liable for all costs and disbursements incurred by OCCS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, OCCS' contract default fee, and bank dishonour fees).
If Client has made payment to OCCS, and the transaction is subsequently reversed or held to be void at law, Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by OCCS.
OCCS shall be entitled to suspend and / or cancel all or any part of any Services which remains unfulfilled and all amounts owing to OCCS shall, whether or not due for payment, become immediately payable if:
(a) Client is in breach of these Terms and fails to rectify the same within 7 days of written notice
(b) any money payable to OCCS becomes overdue, or in OCCS' opinion Client will be unable to make a payment when it falls due;
(c) Client has exceeded any applicable credit limit provided by OCCS;
(d) Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(e) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of Client or any asset of Client.
Compliance with Laws
Client and OCCS shall each comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
Client shall obtain (at the expense of Client) all consents, licenses and approvals that may be required for the Services, including but not limited to any council, landlord or landowner consents and approvals.
If a dispute arises between the parties, then either party must send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute.
Within fourteen (14) days after service of a notice of dispute, senior managers of the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute.
In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and conducted in accordance with their Rules for the Conduct of Commercial Arbitration
OCCS may cancel delivery of Services at any time before the Services are commenced by giving written notice to Client and shall repay to Client any money paid by Client for the Services. OCCS shall not be liable for any loss or damage whatsoever arising from such cancellation.
If Client cancels delivery of the Services either before or during their delivery, Client shall be liable for the value of the Quotation, less any Materials not required to be supplied by OCCS unless such were ordered or made to Client's specifications, or for non-stocklist items and Client will remain liable to pay the costs of these Materials to OCCS.
OCCS will handle, use, disclose and process Personal Information in accordance with the Privacy Act 1988 (“the Act”) as amended,
If OCCS becomes aware of any data breaches and/or disclosure of Personal Information collected and held by OCCS that may result in serious harm to the data subject, OCCS will notify the data subject in accordance with the Act.
Client agrees OCCS may obtain from a credit reporting body a credit report containing personal information.
Client agrees that OCCS may exchange information about Client with credit providers for the following purposes:
(a) to assess a credit application by Client; and/or
(b) to exchange information with other credit providers as to the status of this credit account, including if Client is in default.
Client agrees that personal information provided by Client may be used and retained by OCCS for the following purposes:
(a) the provision of Materials/Services; and/or
(b) analysing, verifying and/or checking Client's credit, payment and/or status in relation to the provision of Materials/Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(d) enabling the collection of amounts outstanding in relation to Materials/Services.
Client may request from OCCS a copy of the Personal Information about Client retained by OCCS, that OCCS correct any incorrect Personal Information; and that OCCS does not disclose any Personal Information about Client for the purpose of direct marketing.
OCCS will destroy Personal Information upon Client's request or if it is no longer required for any business purpose.
Client can make a privacy complaint by contacting OCCS. OCCS 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.
Building and Construction Industry Security of Payments Act 1999
The provisions of the Building and Construction Industry Security of Payments Act 1999 apply to payments due for Services provided.
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales.
Service of Notices
Any written notice given under this contract shall be deemed to have been given and received by handing the notice to the other party, in person; or by leaving it at the address of the other party as stated in this contract; or by sending it by registered post to the address of the other party as stated in this contract; or if sent by email to the other party's last known email address.
Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
The failure by either party to enforce any provision of these Terms 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 shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
The laws of the state of NSW shall apply and the parties consent to the jurisdiction of the courts of NSW.
OCCS may licence and/or assign all or any part of its rights and/or obligations under this contract without Client's consent.
Client may not assign without the written approval of OCCS. Client must give OCCS not less than fourteen (14) days prior written notice of any proposed change of ownership of Client and/or any other change in Client's details (including but not limited to, changes in Client's name, address, contact phone or fax number/s, or business practice).
OCCS may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Client agrees it has no authority to give any instruction to any of OCCS' sub-contractors without the authority of OCCS.
OCCS may amend these Terms at any time and will apply to any future request for OCCS to provide Services and/or Materials to Client.
Neither party shall be liable for any delays 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.
Client agrees that OCCS may use Client as a reference for the purposes of marketing.