1300 65 66 90
Metro Civil Vic Pty Ltd ABN 29 632 149 832 trading as Metro Civil Vic
Standard Terms and Conditions
1. DEFINITIONS
In these Terms: “Agreement” means any agreement or arrangement between the Contractor and the Customer for delivery of the Works which is made up of these Terms and the Quote; "Building Act" means the Building Act 1993 (Vic); “Contractor” means Metro Civil Vic Pty Ltd ABN 29 632 149 832 trading as Metro Civil Vic, its successors and assigns and any person acting on behalf of and with the due authority of Metro Civil Vic; “Customer” means the person or entity who has entered into a contract, transaction or arrangement to obtain Services or Goods from the Contractor or its agents; “Goods” means all goods supplied or to be supplied by the Contractor to the Customer; “Inspection Component” means any final inspection, testing or supervision required pursuant to section 221ZH of the Building Act, as part of the plumbing work performed, as defined under the Building Act , at no additional cost to the Customer; “PPSA” means the Personal Property Securities Act 2009 (Cth); “Price” means the amount payable to the Contractor for the Works; "Quote" means the Contractor's quotation for the Works; “Services” means all services supplied or to be supplied by the Contractor to the Customer and includes, without limitation, the Inspection Component; “Site” means the place or places where the Goods and Services will be supplied; “Terms” means these terms and conditions; “Works” means the Goods and Services or any combination of them, supplied or to be supplied by the Contractor to the Customer or at their request, as the case may require.
2. APPLICATION OF THESE TERMS
Unless otherwise agreed by the Contractor in writing, the Agreement is governed by these Terms to the exclusion of any other written or oral agreements or understandings (if any) entered into between the Contractor and the Customer in connection with the performance of the Works.
3. QUOTES
3.1 Quotes are valid for 30 days only.
3.2 The Customer will be deemed to have accepted the Quote if the Customer notifies the Contractor in writing of its acceptance or if the Customer instructs or allows the Contractor to commence the Works.
3.3 Purchase orders/Contracts issued to the Contractor by the Customer will be deemed to be confirmation of the acceptance of the Quote and these Terms.
4. PAYMENT
4.1 The Customer agrees to pay the Contractor a 50% deposit prior to works commencing on amounts over $10,000 Plus GST. The Customer agrees to pay the Contractor a 30% deposit prior to works commencing on amounts over $250,00 Plus GST.
4.2 The Customer will pay to the Contractor the remaining balance on completion of the Works or within 14 days of an invoice being issued by the Contractor to the Customer as determined by the Contractor in its sole discretion.
4.3 If the Customer does not pay an invoiced amount in full within 14 days, then the Customer will pay the Contractor interest on all amounts outstanding at the rate of 5 per cent above the current penalty interest rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) (compounded daily).
5. SECURITY BONDS
The Customer agrees to pay any security bonds issued by council and/or VicRoads and any road occupation charges issued by VicRoads
6. SITE PLANS & INFORMATION
6.1 The Customer must provide to the Contractor all waterboard plans, architectural/civil drawings & any other information specific to the Works.
6.2 If the Customer does not provide the correct plans, drawings & information to the Contractor, then the Customer indemnifies the Contractor against any liability, loss, claim or proceedings of any kind arising from the Works.
7. PERMITS & PERMISSION
Unless the Quote provides otherwise, the Customer will obtain all necessary permits, permissions and authorisations for the Works before the Works commence.
8. SITE ACCESS
8.1 The Customer warrants that it is entitled to authorise Works on the Site and will ensure that the Site is cut and cleaned, that the Contractor has clear and uninterrupted access to the Site until the Works have been completed and that the Contractor is paid in full.
8.2 The Customer indemnifies the Contractor from all costs, losses, damages, penalties, or expense resulting from lack of access to the Site or restrictions on the Contractor from performing the Works, as the Contractor determines for any reason.
8.3 A maximum of 30 minutes is allowed for site induction. Any time for site induction beyond 30 minutes will be charged at the operational standby rate set out in the quote.
9. SOUND LEVELS
9.1 The Contractor will attempt to keep sound levels within reasonable levels, adhering to EPA guidelines, but it cannot be held responsible for the sound level of any equipment used in the course of the Works.
9.2 The customer agrees to manage any concerns raised by residents, the council, or other authority, in relation to machinery or equipment noises.
9.3 The customer must manage requests for, and is liable for any claims by residents for, alternative accommodation during the course of works.
10. RISK
The risk in the Goods shall pass to the Customer upon delivery and installation of the Goods to the Customer or Site.
11. RETENTION OF TITLE
Notwithstanding the delivery or installation of the Goods, title in the Goods shall remain with the Contractor until the Customer has paid all amounts owing pursuant to any invoice issued by the Contractor for the Works, including all applicable GST and other taxes, levies and duties. Where the Goods have been on sold by the Customer, the Customer will be taken to hold the proceeds of sale of such Goods upon trust for the Contractor and to account to the Contractor for these proceeds.
12. PPSA
12.1 The Agreement creates, for the purposes of the PPSA, a security interest in the Goods that have or will be supplied by the Contractor to the Customer or at the Customer’s direction.
12.2 The parties agree that sections 96, 120 and 125 of the PPSA do not apply to the security agreement created by the Agreement.
12.3 The Customer waives their right to receive a verification statement or any other notice under the PPSA (including notices in accordance with sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA).
12.4 The Customer waives their rights as a grantor or as a debtor under sections 142 and 143 of the PPSA.
12.5 Nothing in this clause is intended to have the effect of modifying or contracting out of any part of the PPSA which cannot lawfully be modified or contracted out of, and this clause must be read and construed subject to the provisions of the PPSA.
13. CHARGE
13.1 As security for its payment obligations under this Agreement, to the extent permissible by law (including the National Credit Code), the Customer hereby grants a charge over all of its rights title and interest in all of its present and acquired property, including real property owned by the Customer beneficially or otherwise from time to time.
13.2 The Customer consents to a caveat or other registrable interest being lodged with the relevant government department by the Contractor in respect of that charge. For the purpose of the PPSA the Customer states that the charge is in all of the Customer's present and after acquired property (whether owned beneficially or otherwise) from time to time. The caveat shall be withdrawn once all payment obligations have been met.
14. INTELLECTUAL PROPERTY
Except by way of limited license to the extent necessary for the delivery of the Works, all intellectual property belonging to or created by or on behalf of the Contractor is and remains the Contractor’s sole property. As Constructed documentation will be released by the Contractor to the applicable Water Authority upon payment of all amounts owing under this Agreement.
15. ROCK/SHALE BORING AND EXCAVATION VARIATION COSTS
15.1 If the Contractor encounters Rock/Shale on the Site or is required to bore or excavate in rock, the Contractor will notify the Customer via telephone or email and will continue with the Works at the agreed variation cost/rate set out in the Quote.
15.2 All prices quoted by the Contractor are based on a standard hourly rate and a standard working day from Monday to Friday between 7.00am and 6.00pm.
15.3 if mixed or changed ground conditions are encountered by the Contractor, the entire bore will be charged at the higher applicable rate as set out in the Quote.
16. SITE CONDITIONS
16.1 The Customer acknowledges and agrees that the Contractor:
(a) has only undertaken a visual non-destructive inspection of the Site;
(b) has obtained information from Dial before you Dig relevant to the Site; and
(c) is not required to make, and has not made, any other enquires in relation to the conditions of the Site.
16.2 Any additional costs incurred by the Contractor as a result of conditions encountered on, above, or below the Site which differ from the conditions which could have been anticipated by the Contractor having conducted such an inspection and made those enquiries (Unforeseen Site Conditions) will be a Variation.
16.3 If the works clashes are encountered with existing underground services, any new service pipes will need to enter the underground or basement of the site through a capping beam.
17. OTHER VARIATIONS
Any Variations must be agreed in writing by the Site representative or other representative of the Contractor and the Customer. The Customer agrees to promptly authorise or reject the proposed variation. The Customer and the Contractor agree that authorisation by text message or email will be sufficient. The parties agree that the authorisation requirements in this clause 16 do not apply to clause 15. Unless specifically provided for, a Variation may include, but is not limited to the following: An increase, decrease or change in the Works; Crushed rock backfill; Soil removal; Repair of damage to Works (other than damage caused by the Contractor); Reinstatement works to the Site or to a property which neighbours the Site; and Unforeseen Site Conditions.
18. WATER SUPPLY SHUT-OFFS
The Customer acknowledges and agrees that water supply shut-offs may occur. The Customer further acknowledges and agrees that no guarantee is provided by the Contractor that a water supply shut-off will be successfully performed by the relevant water authority on nominated date/s. The Contractor is not liable for any costs incurred by the Customer in relation to water supply shut-off. The Customer is liable for all costs incurred by the Contractor should a proposed connection need to be rescheduled by the relevant water authority, or alternatively, if the connection cannot be successfully completed on the nominated date/s.
19. DISPUTE RESOLUTION
If a dispute arises between the parties under or in connection with this Agreement, senior representatives of the parties must meet at least once in good faith and use reasonable endeavours to resolve the dispute as quickly as possible. Each party must continue to perform its obligations under the Agreement pending resolution of any dispute, provided that the Customer pays the Contractor or provides security in a form acceptable to the Contractor for any amount payable in respect of a matter the subject of a dispute pending the dispute’s resolution.
20. TERMINATION
20.1 Any party may terminate the Agreement by written notice at any time if the other party:
(a) breaches the Agreement in a manner that is not capable of being remedied; or
(b) fails to remedy a breach of the Agreement which can be remedied within 14 days after the date of a written notice to do so: or
(c) is unable to pay its debts as and when they fall due.
20.2 If the Agreement is terminated under clause 19.1, the Customer will pay the Contractor for all Works completed to the date of termination as determined by the Contractor.
20.3 If the Customer terminates the Agreement other than in accordance with these Terms, the Contractor may, without prejudice to its rights, invoice the Customer for time spent pursuant to the Agreement, charged at the Contractor’s usual rates (details available on request) and for all expenses the Contractor will incur under the Agreement.
20.4 This clause does not limit any right or remedy available to a party under or in connection with the Agreement.
21. LIABILITY
21.1 Nothing in the Agreement excludes, restricts or modifies any guarantee, condition, warranty, right, obligation or remedy implied or imposed by any statute which cannot lawfully be excluded, restricted or modified. The Agreement must be read and construed subject to any such statutory provisions (including without limitation the Australian Consumer Law and the Building and Construction Industry Security of Payment Act 2002 (Vic)).
21.2 To the extent permitted by law the Contractor’s liability is limited (at the Contractor's option) to:
(a) in the case of Goods:
(i) the replacement of the Goods or the supply of equivalent Goods.
(ii) the repair of such Goods.
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods: or
(iv) the payment of the cost of having the Goods repaired; and
(b) in the case of Services:
(i) the supplying of the Services; or
(ii) the payment of the cost of having the Services supplied again; and
(c) in all other cases, 100% of the Price.
21.3 To the extent permitted by law, the Contractor will not be liable, in contract, tort or statute for pre-contract or other representations (other than fraudulent or grossly negligent misrepresentations) or otherwise, arising out of or in connection with the Agreement or for any economic loss (including without limitation, loss of revenues, data, profits, contracts, business or anticipated savings) or loss of goodwill or reputation or consequential or special or indirect losses suffered or incurred by that party arising out of or in connection with the Works.
21.4 To the extent permitted by law, the Contractor will have no liability to the Customer in relation to any costs, losses, damages, penalties or expense caused by the Contractor's failure to deliver the Works as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, industrial dispute, delay, the failure of the Contractor’s suppliers to supply materials, or any other matter beyond the Contractor's reasonable control. The Contractor will have no liability for any delays in the delivery of the Works provided it has a reasonable explanation for such delay.
22. GUARANTEE
22.1 The director(s) of the Customer unconditionally and irrevocably guarantees to the Contractor due performance by the Customer of all of its obligations and liabilities, including any obligation to pay money, under and in accordance with the Agreement (Guaranteed Obligations).
22.2 If the Customer does not or is unable to comply with any Guaranteed Obligation on time and in accordance with the Agreement, the director(s) of the Customer must comply with those Guaranteed Obligations on demand by the Contractor.
22.3 The Customer's director(s) must pay the Contractor on demand the amount of any losses (including all damages, liabilities, actions, losses, charges, costs or expenses) arising out of or in connection of any fact, matter or circumstance that occurs if:
(a) the Customer does not or is unable to, comply with a Guaranteed Obligation; or
(b) an obligation the Customer or a Customer's director(s) would otherwise have under the Agreement is found to be void, voidable or unenforceable; or
(c) a representation or warranty made by the Customer in the Agreement is found to have been incorrect or misleading when made or taken to be made.
22.4 The obligations of the Customer's director(s) under this clause remains in full force and effect until all of the Guaranteed Obligations and the obligations of the Customer under the Agreement have been performed.
23. QUALITY
Subject to these Terms, the Contractor agrees to carry out the Works in a professional manner and to the relevant Australian Plumbing Standards.
24. GENERAL
24.1 The law of Victoria, Australia, governs the Agreement. The parties’ consent to the jurisdiction of the Courts of the State of Victoria and their Courts of Appeal in relation to the Agreement.
24.2 A failure by the Contractor to enforce any term of the Agreement shall not be construed as a waiver of any of the Contractor's rights hereunder. Any such waiver will only be valid if made in writing.
24.3 The Customer warrants that it has made its own enquiries to verify information, specifications or representations provided to it by the Contractor and to assess the suitability of the Works before the Works commence. The Customer warrants that it has not entered into the Agreement in reliance on any representations except for those written representations contained in the Agreement.
24.4 The Customer may not assign or transfer any of its rights or obligations under the Agreement to any person without the prior written consent of the Contractor.
24.5 Unless specifically described as GST inclusive, any quote or invoice provided by the Contractor to the Customer does not include any amount on account of GST.
24.6 If any part of the Agreement is unenforceable, the unenforceable provisions must be read down so as to be enforceable or, if it cannot be so read down, the provision must be severed from the Agreement without affecting the enforceability of the remaining Agreement.
24.7 The Contractor may vary the Agreement, subject to the approval of both parties, publishing new Terms on the Contractor’s website at www.metrocivil.com.au or by providing a copy of the new Terms to the Customer.
24.8 These Terms, as varied from time to time, supersedes any other.