Terms and Conditions of Trading
Perpetual Dynamics Pty Ltd (ABN 69 629 549 113) (Perpetual Dynamics)
These terms and conditions (Terms) will apply to any works (Works) (including the supply of materials) described in Perpetual Dynamics’s quotation (Quotation) and undertaken by Perpetual Dynamics at the Customer’s request. Expressions used in the Quotation have the same meaning in these Terms.
1 PRICE AND PAYMENT
1.1 Subject to these Terms, Perpetual Dynamics will complete the Works for the Quoted Price.
1.2 Unless the Customer has entered into written terms of credit with Perpetual Dynamics, the Price must be paid in full by the Customer to Perpetual Dynamics within 30 days that the invoice was rendered.
1.3 Perpetual Dynamics may by notice to the Customer adjust the Price if:
• during the period between the date of the Quotation and the commencement of the Works, the cost of labour or materials has changed.
• the Works described in the Quotation are different from the work actually performed by Perpetual Dynamics pursuant to the Quotation or as required by the Customer; or
• due to matters outside of Perpetual Dynamics’s reasonable control (for example, inclement weather, unsafe workplace, site restrictions, inadequate / inappropriate site preparation or delays by others), the Works take longer than reasonably anticipated by Perpetual Dynamics.
2 SITE ACCESS
2.1 The Customer must:
• provide Perpetual Dynamics with sufficient and safe access to and egress from the Site at all reasonable times, such that Perpetual Dynamics can undertake the Works in a safe and uninterrupted manner.
• procure all consents, approvals, licenses, permissions, and permits required for Works, except those specified in the Quotation or entirely within the control of Perpetual Dynamics.
• provide Perpetual Dynamics with all information relevant to the Works including the location of utilities.
• mark the position of all services including pipes, drains, manholes, wiring and any obstacles in, under or about the Site; and
• inform Perpetual Dynamics of any conditions affecting the Site or the Works which may impact upon the Works.
2.2 The Customer must ensure that the Site is:
• prepared and maintained as specified in the Quotation and in a manner that is in all respects fit for the purpose and suitable for Perpetual Dynamics’s performance of the Works; and
• a safe workplace, such that Perpetual Dynamics can undertake the Works without risk of injury.
2.3 Should Perpetual Dynamics discover any:
• material inconsistency between the existing position of the services, Site conditions and obstacles; and the information provided or marked by the Customer; or
• any services, conditions and obstacles affecting the Site or the Works so as to render it reasonably impracticable for Perpetual Dynamics to continue with the Works, Perpetual Dynamics may suspend the Works and immediately notify the Customer of such suspension. If, after 14 days of the suspension, the parties have not agreed in writing to recommence the Works, Perpetual Dynamics may terminate this contract, in which case Perpetual Dynamics will have no liability to the Customer for any loss or damage of any nature in no way connected with the Works, the contract or as a result of the suspension or termination. The Customer will be liable to Perpetual Dynamics for payment for the Works carried out prior to suspension or termination and for costs, losses and damages associated with the suspension and termination, including indirect and consequential losses.
2.4 Where Perpetual Dynamics’s equipment or labour stands idle because Site conditions do not permit the use of equipment or labour, Perpetual Dynamics may charge the Customer at the applicable standby rate for that equipment or labour.
3 DELIVERY, PROPERTY AND RISK
3.1 Property in any materials supplied by Perpetual Dynamics to the Customer does not pass, and the Customer is prohibited from registering any security interest in any materials delivered by Perpetual Dynamics, until the Customer has made full payment for the Works. Risk in materials passes to the Customer at the time they are tendered to the Site for delivery.
3.2 At the time of delivery, the Customer or its agent will sign Perpetual Dynamics’s delivery docket to acknowledge receipt of the materials delivered. If the Customer does not make itself or its agent available to sign Perpetual Dynamics’s delivery docket, the Customer appoints Perpetual Dynamics as the Customer’s agent with authority to sign the delivery docket.
3.3 Unless specified in the Quotation, the Customer is responsible for any incidental damage caused to existing pavements, footpath crossings and other structures, surfaces and utilities associated with the Works. Perpetual Dynamics will not be responsible for maintenance and repair costs related to damage or contamination to applied surface treatments caused by others.
3.4 Unless specified in the Quotation, the Customer will be responsible for the:
• establishment of appropriate traffic control signage prior to the commencement of the Works.
• erection of aftercare signage at the completion of the Works.
• provision of suitable facilities, including toilet and messing facilities.
• removal of surplus and loose aggregate.
4 MATERIALS
4.1 Where the Works require Perpetual Dynamics to supply materials, the Customer is to provide at its cost a clean, hard stockpile site, which is suitable for mechanical loading and within 3 kilometres of the Site. If the stockpile site is more than 3 kilometres from the Site, the Customer is to pay any excess haulage costs incurred by Perpetual Dynamics at Perpetual Dynamics’s applicable rate.
4.2 If Perpetual Dynamics is unable to supply sufficient materials both to complete the Works and fulfil its obligations to other customers, Perpetual Dynamics may, in its absolute discretion, apportion the available materials between customers (including the Customer) and in doing so Perpetual Dynamics will not incur any liability, including for any loss or damage (consequential or otherwise) to the Customer as a result of being unable to obtain sufficient materials.
4.3 If, at the Customer’s direction or request excess materials have been delivered to Site and must be removed, the Customer will be liable (and may be required to pay in advance) for the costs of Perpetual Dynamics transporting the excess materials from the Site, at Perpetual Dynamics’s applicable rate.
5 SPECIFICATIONS AND TESTS
5.1 All Works performed by Perpetual Dynamics will comply with the Customer’s specifications, as notified to and accepted by Perpetual Dynamics. If no Customer specifications are supplied, Perpetual Dynamics will perform the Works in accordance with Perpetual Dynamics’s current specification applicable to the type of Works, the relevant Australian Standard or general industry practice, as determined by Perpetual Dynamics.
5.2 Perpetual Dynamics will not undertake any tests unless specified and priced in the Quotation.
6 FORCE MAJEURE
6.1 Perpetual Dynamics is not liable to the Customer for any loss or damage, consequential or otherwise, arising from any delay or failure by Perpetual Dynamics in fulfilling its obligations under this contract where the cause of such delay or failure is beyond Perpetual Dynamics’s reasonable control including acts of God, events of war, riots, civil commotions, fires, natural disasters, extreme weather conditions, road or rail closures or the acts or omissions of any sub-contractor or supplier engaged by Perpetual Dynamics.
7 INDEMNITY
7.1 The Customer indemnifies Perpetual Dynamics, its related entities, sub-contractors and suppliers and each of their officers, employees, contractors and agents from and against all loss, cost, expense, demand, damage, claim or liability (collectively loss or claim) whatever and howsoever arising (whether in contract, tort, breach of statutory duty or otherwise) under or in connection with these Terms, the Works or the supply of materials, and including a breach of these Terms or the negligent act or omission of any person in connection with these Terms.
7.2 Without limiting the application of any of the foregoing, this indemnity includes an indemnity for any loss or claim by any person including the general public, the Customer or its personnel, any person located on the Site or other third parties for injury, death, property damage or otherwise.
8 LIABILITY
8.1 To the fullest extent permitted by law and notwithstanding any other clause of this contract, the liability of Perpetual Dynamics is limited, at Perpetual Dynamics’s option, to the replacement of defective materials or the repair of the Works or to providing the Works again or to the payment of the costs of having the Works provided again, provided that defects in the materials or the Works occur within 3 months of completion of the Works and is notified to Perpetual Dynamics within 10 days of the occurrence of the defect.
8.2 Perpetual Dynamics not be responsible for any loss of profit, penalties, expenditure, damages or losses (including, without limitation, any consequential, special, incidental or indirect loss or damages) incurred by the Customer arising out of any delay in delivery of the materials or performance of the Works, caused by or arising out of any use or dealing with the materials whether arising from any defect in the materials, unsuitability for the Customer’s purposes, negligence by Perpetual Dynamics or its employees, representatives, officers, agents, contractors or suppliers or in any other way or caused by any act, omission, failure, fault or negligence by them in performing the Works.
9 GENERAL
9.1 The Quotation and these Terms constitute the entire basis upon which Perpetual Dynamics will undertake the Works and any representations, warranties, explanations or commitments or other terms or conditions, express or implied, affecting the subject matter are superseded by this document and have no effect. If there is an inconsistency between these the Quotation and these Terms, the Quotation shall prevail.
9.2 The parties submit to the non-exclusive jurisdiction of the courts of the State or Territory in which the Works are to be performed and the laws applying in that State or Territory is the proper law governing these Terms.
9.3 If any part of these Terms is unenforceable such part shall be severed and any unenforceability shall not effect any other part.
9.4 Where a dispute arises between the Customer and Perpetual Dynamics as to the performance by either the Customer or Perpetual Dynamics, as a result of which the Customer threatens or fails to make any payment claimed by Perpetual Dynamics, Perpetual Dynamics may immediately cease performance of the Works without incurring any liability of any nature whatsoever to the Customer pending settlement of the dispute.
9.5 After the Quotation is provided to the Customer, any order for Works or materials placed by the Customer is deemed to be an order incorporating these Terms notwithstanding inconsistencies which may be introduced in the Customer’s order or acceptance unless expressly agreed to by Perpetual Dynamics in writing. At all times, these Terms are to take precedence over any terms and conditions of the Customer.
9.6 The Quotation and these Terms may only be varied by agreement in writing signed by both Perpetual Dynamics and the Customer
PO016 | Updated: 01/09/2020