Terms and Conditions

Terms and conditions of trade

1. Definitions
1.1 “Supplier” means “Coast 2 Coast Earthmoving Pty Ltd” Trading as “Coast 2 Coast Earthmoving” (ABN 26 684 350 221).
1.2 “Customer” means the person buying or hiring equipment, goods and / or services specified in any invoice, document, or order, and if there is more than one Customer then each such Customer jointly and severally.
1.3 “Equipment” means all goods, services, works or plant and equipment supplied or undertaken (as the case may be) by the Supplier to the Customer by way of Wet Hire (where the context so permits the terms Equipment, Goods, Services, Works, and Wet Hire shall be interchangeable for each other).
1.4 “Goods” and / or “Services” means any goods and services supplied by the Supplier and includes the provision of earthworks and / or the supply of materials in connection with the alteration, improvement, construction, repair, demolition, removal, or relocation of a building or other structure or thing upon land.
1.5 “Minimum Hire Fee” means the amount specified in and / or calculated in accordance with the Price List.
1.6 “Price” means the price payable for the Goods and / or Services.
1.7 “Price List” means the most recent and effective list of prices prepared by the Supplier which specifies, among other things, hourly hire charges for Equipment supplied by the Supplier and which is used by the Supplier to calculate its claim for costs, fees, and charges for Equipment and other Goods and / or Services supplied by the Supplier to a Customer in a particular geographical location or area.
1.8 “Site” means the lands and other places made available to Supplier for the provision of Goods and/or Services or upon or to which the Customer directs the Supplier to provide Goods and/or Services.
1.9 “Storm” means a storm, cyclone or severe atmospheric disturbance accompanied by strong winds, rain, lightning, hail, snow, or dust.
1.10 “Wet Hire” means the hiring of the Equipment and the provision of persons to operate the Equipment and includes the provision of any Services in respect thereto.

2. Acceptance
2.1 The Customer is taken to have accepted and is immediately bound, jointly and severally, by these terms and conditions when the Customer places an order for and/or accepts delivery of the Goods and/or Services.
2.2 These terms and conditions may only be amended with Supplier consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and Supplier.

3. Change in Control
3.1 The Customer shall give Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to changes in the Customer’s name, address, contact phone or fax number/s or business practices). The Customer shall be liable for any loss incurred by the Supplier because of the Customer’s failure to comply with this clause.

4. Price and Payment
4.1 The Price shall be the Price as at the date of delivery of the Goods according to Supplier current price list or if the Supplier has quoted a price and the quote is accepted by the Customer within 30 days of the date the quote was issued, the price as quoted.
4.2 Supplier reserves the right to change the Price if a variation to Supplier quotation is requested. Payment for all variations must be made in full at their time of completion.
4.3 At Supplier sole discretion a non-refundable deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Supplier, which may be: (a) on delivery of the Goods; (b) before delivery of the Goods; (c) the date specified on any invoice or other form as being the date for payment; or (d) failing any notice to the contrary, the date which is 14 days following the date of any invoice given by Supplier to Customer.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, Mastercard credit card, Visa credit card or by any other method as agreed to between the Customer and Supplier. If the Customer elects to pay by Mastercard credit card or Visa Credit Card, then the Customer agrees to pay to the Supplier a surcharge equal to the cost the Supplier incurs using this payment method.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay for any supply by Supplier under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off, 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.
4.7 Within 21 days of receiving a claim (including a claim by way of an invoice) from the Supplier for payment of monies owing under these terms and conditions, the Customer must give the Supplier notice in writing of any claim it has or may claim to have disputing the amount claimed by the Supplier or asserting a cross claim and /or a right to set-off any amount against the Supplier’s claims. If the Customer does not give any such notice in time (and time is the essence in this respect) then the Customer is liable to pay the amount claimed by the Supplier when due without any deduction or set-off whatever and abandons any right to claim a set-off.

5. Delivery of Goods / Wet
5.1 Delivery of the Goods is taken to occur at the time that the Customer or the Customer’s nominated carrier takes possession of the Goods from the Supplier, or Supplier (or Supplier nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.2 The Supplier may claim for the cost of delivery of goods in addition to the Price.
5.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivered to the Customer for the purposes of this agreement.
5.4 The Customer must take delivery by receipt or collection of the Goods whenever either is tendered for delivery. If the Customer is unable to take delivery of the Goods as arranged, then Supplier shall be entitled to charge a reasonable fee for redelivery of the Goods and / or the storage of the Goods.

5.5 The Supplier may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 Any time or date given by Supplier to the Customer is an estimate only. The Customer must still accept delivery of the Goods and / or Services even if it is late and the Supplier will not be liable for any loss or damage incurred by the Customer because of the delivery being late.

6. Risk
6.1 The risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of Supplier rights to receive the insurance proceeds without the need for any person dealing with Supplier to make further enquiries.
6.3 Damage that occurs on site, to either goods or property, must be reported in writing within 7 business days. Failure to report damages within this timeframe may result in the claim being denied. Please include photographic evidence and a description of the damage when submitting your claim.

7. Access and infrastructure assets
7.1 The Customer shall ensure that the Supplier always has clear and free access to the site to enable Supplier to undertake the works. The supplier shall not be liable for any loss or damage to the site or within the vicinity of the site including, without limitation, loss or damage to any structure thereon including, for example, walls, pathways, driveways, concrete or paved or grassed areas (“Structures”), or infrastructure including, for example, poles, wires, cables including fibre-optic cables, conduits, towers, transformers, pipes, pipelines or any other works, structures or appliances placed over, on or under land, latent or patent, including infrastructure owned by local, state, or federal government authorities and infrastructure assets owned by telecommunications companies (“Infrastructure”).
7.2 The Customer is responsible for carrying out all usual and necessary enquiries to locate all Structures and Infrastructure on site and within the vicinity of the site. The Customer must disclose to the Supplier the type and location of all such Structures and Infrastructure before the Supplier provides any Goods and/or Services, including before the Supplier or any of the Supplier’s agents starts work at the site or withing the vicinity of the site. Such disclosure is completed if the Customer marks the site and / or the vicinity of the site (as the case may be) with the location and type of all such Structures and Infrastructure and gives the Supplier or the Supplier’s agent a copy of all relevant plans identifying the type and location of all such Structures and Infrastructure.
7.3 If any of the Structures and / or Infrastructure are damaged because of the Customer’s failure to comply with clause 7.2 above, and the owner of the Structure and / or Infrastructure makes a claim against the Supplier or the Supplier’s agent for costs of repairs and /or for damages, then the Customer accepts liability for all amounts so claimed and indemnifies the Supplier and the Supplier’s agents from and against all such claims and liability to the owner of the Structures and Infrastructure.

8. Dimensions, Plans and Specifications
8.1 All customary industry tolerances shall apply to the dimensions and measurements of the Goods unless the Supplier and the Customer agree otherwise in writing. Supplier shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer.
8.2 If the giving of an estimate or quotation for the supply of Goods involves Supplier estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of Supplier estimated measurements and quantities before the Customer places an order based on such estimate or accepts such quotation.
8.3 Should the Customer require any changes to Supplier estimated measurements and quantities, the Customer shall request such changes in writing. In the case of an estimate before placing an order and in the case of a quotation before acceptance.

9. Electronic Transactions Act
9.1 Electronic signatures shall be deemed to be accepted by the Customer and Supplier.

10. Retention of Title
10.1 The Supplier retains legal and equitable title in any Goods supplied to the Customer until payment in full for or in connection with the supply of the relevant Goods has been received by the Supplier. Until payment in full has been received, the following terms apply.
10.2 Notwithstanding that title in the Goods remains with the Supplier until payment has been received in full, the Customer may sell such goods or use the Goods in a manufacturing or construction process in the ordinary course of the Customer’s business. As between the Customer and the purchaser of any item of the Goods, the Customer sells as principal and not as agent of the Supplier. The proceeds of sale of each item of Goods must be held by the Customer in a separate fund on trust for the Supplier and the Customer is under a duty to account to the Supplier for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Customer to pay an amount to the Supplier for Goods supplied.
10.3 Until Goods are sold or used in a manufacturing or construction process, the Customer must keep the Goods safe and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of the Supplier, store them in such a way they are clearly identified as the property of the Supplier and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by the Supplier.
10.4 The Supplier is irrevocably entitled at any time and from time to time before sale of any item of Goods by the Customer to inspect or to recover and retake possession of such Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid Seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. To exercise such entitlement, the Supplier and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or vehicles or those of any third party. The Customer agrees to obtain the consent of any such third party to such entry by the Supplier and to indemnify the Supplier and its agents for any liability arising from any entry upon such third parties’ premises or vehicles. The Supplier and its agents agree to take all reasonable care in removing the Goods from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods.
10.5 This reservation of title and ownership is effective whether the Goods have been altered from their supplied form or commingled with other goods.

11. Security interest
11.1 The retention of title arrangement described in clause 10 constitutes the grant of a purchase money security interest by the Customer in favour of the Supplier in respect of all present and after-acquired Goods supplied to the Customer by the Supplier.
11.2 The Customer must immediately, if requested by the Supplier, sign any documents, provide all necessary information, and do anything else required by the Supplier to ensure that the Supplier’s purchase money security interest is a perfected security interest.
11.3 The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until the Supplier has perfected its purchase money security interest.
11.4 For any Goods supplied that are not goods that are used predominately for personal, domestic, or household purposes, the parties agree to contract out of the application of ss 95, 118, 121(4), 130, 132(4),135, 142 or 143 of the PPSA in relation to the Goods.
11.5 The Customer hereby waives any rights the Customer may otherwise have to: (a) receive any notices the Customer would otherwise be entitled to receive under ss 95, 118, 121, 130, 132 or 135; (b) apply to a Court for an order concerning the removal of an accession under section 97; (c) object to a proposal of the Customer to purchase or retain any collateral under ss 130 and 135; or (d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest the Supplier may have in Goods supplied to the Customer from time to time.
11.6 For the purposes of this clause “PPSA” means the Personal Property Securities Act 2009. The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA. References to sections are to sections of the PPSA.

12. Exclusion of implied terms
12.1 The Customer may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, to the maximum extent permitted by law, all terms, conditions, or warranties that would be implied into Supplier terms and conditions of trade or in connection with the supply of any Goods or Services by the Supplier under law or statute or custom or international convention are excluded.

13. Limitation of liability
13.1 To the maximum extent permitted by law and subject to clauses 12 and 14, the Supplier’s total liability arising out of or in connection with its performance of its obligations pursuant to these terms and conditions, or arising out of or in connection with the supply of specific Goods or Services (including pursuant to or for breach of these Conditions, Supplier terms and conditions of trade or repudiation thereof, under statute, in equity or for tort, including negligent acts or omissions) is limited as follows: (a) the Supplier shall have no liability to the Customer for any consequential loss; and (b) the Supplier’s total aggregate liability for loss, however arising, shall not exceed the GST exclusive aggregate price paid by the Customer to the Supplier for the specific Goods or Services that gave rise to the loss in question. The limitations and exclusions in this sub-clause 13.1(b) do not apply to the extent that any loss is directly attributable to the personal injury or death caused by the Supplier’s default, breach of these terms and conditions, negligence, or fraud by the Supplier. Furthermore, each party must take reasonable steps to mitigate any loss it suffers or incurs.

14. Limitation of liability under Australian Consumer Law Guarantee
14.1 To the extent that Goods supplied by the Supplier are not goods of a kind ordinarily acquired for personal, domestic or household use and the Customer is deemed to be a consumer for the purposes of section 64A of the Australian Consumer Law, the Customer agrees that the Supplier’s liability for a failure to comply with a consumer guarantee that the Customer may have a benefit under the Australian Consumer Law (other than a guarantee under ss 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities), is limited to, at the option of the Supplier, one or more of: (a) replacement of the goods or the supply of equivalent goods; (b) the repair of the goods; (c) the payment of the cost of replacing the goods or of acquiring equivalent goods; (d) equivalent goods; or (e) the payment of the cost of having the goods repaired.
14.2 To the extent that Services supplied by the Supplier are services other than services of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability for failure to comply with a consumer guarantee that the Customer may have the benefit of is limited to, at the option of the Supplier: (a) the supply of the Services again; or (b) the payment of the cost of having the Services supplied again.

15. Intellectual Property
15.1 Where the Supplier has designed, drawn, or developed Goods for the Customer, then the copyright in any designs and drawing and documents shall remain the property of the Supplier.
15.2 The Customer warrants that all designs, specifications, or instructions given to the Supplier will not cause the Supplier to infringe any patent, registered design, or trademark in the execution of the Customer’s order and the Customer agrees to the indemnify the Supplier against any action taken by a third party against the Supplier in respect of any such infringement.

16. Default and Security
16.1 The Supplier is entitled to charge interest on any amounts overdue from the due date at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily based on a 365-day year.
16.2 The Customer agrees to pay all costs and expenses paid or incurred by the Supplier in connection with the recovery of overdue amounts and enforcing any of its rights and / or remedies under or in connection with these terms and conditions.
16.3 As security for any amounts due and / or payable to the Supplier from time to time, the Customer charges in favour of the Supplier the whole of the Customer’s property and assets, both present and future, legal and equitable, real, and personal, of whatsoever nature and wheresoever situate with the payment of all such amounts.
16.4 Without limiting the ambit and operation of the previous subclause, and to better secure the Customer’s obligations, the Customer: (a) agrees, upon request by the Supplier, to execute in favour of the Supplier a mortgage (“Mortgage”) over any such real property and to deliver same to the Supplier; (b) consents unconditionally to the Supplier lodging a caveat or caveats noting its interest in any real property charged or mortgaged by the Customer in favour of the Supplier; and (c) indemnifies the Supplier against any costs and expenses reasonably incurred by the Supplier in connection with the exercising any of its rights or powers under these terms and conditions, without limitation, those incurred in connection with the preparation and / or registration of any power of attorney, security interest, charge, mortgage, or caveat.
16.5 If the Customer fails to comply with a request made under clause 16.4 above, the Supplier and each of the Supplier’s officers, as the Customer’s attorney, may execute the Mortgage on behalf of the Customer and lodge the same for registration on the relevant land title and, for that purpose, the Customer irrevocably, and by way of security, appoints the Supplier and each of the Supplier’s officers jointly and severally as the Customer’s lawful attorney to act under this clause.

17. Cancellation
17.1 The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are due to be delivered by giving written notice to the Customer. On giving such notice the Supplier shall repay to the Customer any money paid by the Customer for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2 If the Customer cancels delivery of the Goods, the Customer shall be liable for all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to any loss of profits).

18. Privacy disclosure and consent
18.1 The Customer authorises Supplier to: (a) obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in this document and from any other credit provider or credit reporting agency for the purpose of assessing this application for credit, or in connection with any guarantee given by the Customer; (b) use, disclose, or exchange with other credit providers and Supplier Group entities information about the Customer’s credit arrangements to assess this application for credit, monitor credit worthiness and collect overdue accounts; and (c) disclose the contents of any credit report on the Customer to the Supplier and other Related Bodies Corporate of Supplier, and any of their solicitors and mercantile agents.
18.2 If the Customer does not provide the information requested in this document, the Supplier may be unable to process the application. The Supplier complies with the privacy principles imposed by law in relation to the collection and disclosure of information regarding individuals.

19. Compliance with Laws
19.1 The Customer and the Supplier 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.
19.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the works.
19.3 The Customer agrees that the site will comply with any occupational health and safety laws relating to building/ construction sites and any other relevant safety standards or legislation.

20. Wet Hire
20.1 The provisions of this clause apply in relation to all Wet Hire arrangements entered between the Supplier and the Customer, including after the delivery of the Equipment to the site or sites at which the Equipment will be operated, and to the extent that the provisions of this clause are inconsistent with any other provision of these terms and conditions, the provisions of this clause will prevail.
20.2 The period of Wet Hire will not in any circumstances exceed one calendar month. Any Wet Hire beyond this period must be entered into by way of a new contractual arrangement.
20.3 The Equipment will remain the property of the person operating the Equipment, or in default, the Supplier.
20.4 The Customer has no legal or equitable interest in or right to the Equipment or any part of the Equipment.
20.5 The operator of the Equipment will, always, remain in the possession of the Equipment, or in default, will remain in the possession of the Supplier.
20.6 There is no intention between the Supplier and the Customer to create at any time a relationship of lessor and lessee, licensor and licensee, or bailor and bailee, with respect to the Equipment, and any such relationship is expressly excluded.
20.7 The Customer will not at any time have possession of, or any control over or in respect of, the Equipment.
20.8 The Equipment is deemed to be in the possession of, and under the actual physical control and use of the operator of the Equipment, or in default, the Supplier, and not the Customer.
20.9 Risk in the Equipment is always, the Supplier’s.
20.10 As between the Supplier and the Customer, the Supplier is responsible for the safe keeping, maintenance, and repair of the Equipment.
20.11 Where Equipment is delivered to a site, irrespective of whether the site is under the Customer’s control, the delivery is not to the Customer, but is delivered for and on behalf of the Supplier and / or the operator of the Equipment, and no rights of possession in or to the Equipment in the Customer arise at all, there will be no voluntary assumption of possession by the Customer of the Equipment as bailee or on any basis at all, and there will be no assumption by the Customer to keep the Equipment safe.
20.12 All Wet Hire will be operated at the direction of the Customer provided however the Supplier may stop or refuse to carry out work at the direction of the Customer if the Supplier holds a reasonable concern for: (a) a serious risk to the health and safety of the operator of the Equipment; and / or (b) a risk to the Equipment.
20.13 In respect of Equipment delivered to site, the Customer must take all reasonable steps to ensure that the Equipment is: (a) kept safe; and (b) not operated by any person other than a person nominated or authorised by the Supplier.
20.14 At all material times during the period Equipment is on hire to the Customer, the Customer: (a) must comply with all work, health and safety laws as if the Customer was the principal contractor in control of the site where work is being done utilising Equipment supplied by the Supplier; (b) assumes responsibility for loss and damage to the Equipment if such loss and damage is caused by the conduct (including negligence) of the Customer, or any persons under the Customer’s control or direction; (c) accepts full responsibility for and indemnifies the Supplier and any of the Suppliers contractors or employees against all claims in respect of any injury to persons or loss or damage to property arising out of delivery, servicing, storage, possession or use of the Equipment by the Customer or any persons under the Customer’s control; (d) accepts liability for the costs associated with recovering any Equipment that may become bogged on site (such costs to include, without limitation, the hire cost for the Equipment for such period it remains bogged, and the costs of equipment and labour used to recover the Equipment.
20.15 If there is a breach by the Customer of any of these provisions, then the Customer indemnifies the Supplier against all loss and damage suffered or incurred by the Supplier because of such breach.

21. General
21.1 The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision, nor shall it affect the Supplier’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.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which the Supplier has its principal place of business and are subject to the jurisdiction of the courts in that state.
21.3 Subject to clause 12, 13 and 14, the Supplier 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 Supplier of these terms and conditions (alternatively, the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the price of the Goods).
21.4 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 the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
21.5 The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
21.6 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.
21.7 If the Supplier supplies Equipment, including Wet Hire, at the request of the Customer then the Customer will, despite any provision to the contrary contained in these terms and conditions, pay to the Supplier the Minimum Hire Fee, even if the Equipment supplied is not used on or in connection with work being done on or in the vicinity of the site due to a Storm.
21.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.