EARTH WORX T&Cs

1. Definitions

1.1 “AREA1 Group” means AREA1 Group T/A AREA1 Earth Worx its successors or any person acting on behalf of and with the authority of AREA1 Group T/A AREA1 Earth Worx.
1.2 “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting AREA1 Group to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
(c) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3 “Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by AREA1 Group to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Works as agreed between AREA1 Group and the Customer in accordance with clause 6 below.
1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.

2. Acceptance

2.1 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 delivery of any Works.
2.2 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 AREA1 Group.
2.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.4 If AREA1 Group has been requested by the Customer to diagnose a fault that requires investigation, disassembly and/or testing, all costs involved will be charged to the Customer irrespective of whether or not the repair goes ahead.
2.5 The Customer acknowledges and agrees that where AREA1 Group has performed temporary repairs that:
(a) AREA1 Group offers no guarantee against the reoccurrence of the initial fault, or any further damage caused; and
(b) AREA1 Group will immediately advise the Customer of the fault and shall provide the Customer with an estimate for the full repair required.
2.6 Any advice, recommendation, information, assistance or service provided by AREA1 Group in relation to Materials or Works supplied is given in good faith, is based on AREA1 Group’s own knowledge and experience and shall be accepted without liability on the part of AREA1 Group and it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Materials or Works.
2.7 The Customer acknowledges and accepts that the supply of Materials for accepted orders may be subject to availability and if, for any reason, Materials are not or cease to be available, AREA1 Group reserves the right to substitute comparable Materials (or components of the Materials) and vary the Price in accordance with clause 6.2, subject to prior confirmation and agreement of both parties. In all such cases AREA1 Group will notify the Customer in advance of any such substitution, and also reserves the right to halt all Works until such time as AREA1 Group and the Customer agree to such changes. AREA1 Group shall not be liable to the Customer for any loss or damage the Customer suffers due to AREA1 Group exercising its rights under this clause.

3. Authorised Representatives

3.1 The Customer acknowledges that AREA1 Group shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to AREA1 Group, that person shall have the full authority of the Customer to order any Works, Materials and/or to request any variation thereto on the Customer’s behalf. The Customer accepts that they will be solely liable to AREA1 Group for all additional costs incurred by AREA1 Group (including AREA1 Group’ profit margin) in providing any Works, Materials or variation/s requested thereto by the Customer’s duly authorised representative.

4. Errors and Omissions

4.1 The Customer acknowledges and accepts that AREA1 Group shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by AREA1 Group in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by AREA1 Group in respect of the Works.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of AREA1 Group; the Customer shall not be entitled to treat this contract as repudiated nor render it invalid.

5. Change in Control

5.1 The Customer shall give AREA1 Group 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, change of trustees, or business practice). The Customer shall be liable for any loss incurred by AREA1 Group as a result of the Customer’s failure to comply with this clause.

6. Price and Payment

6.1 At AREA1 Group’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by AREA1 Group to the Customer in respect of Works performed or Materials supplied; or
(b) the Price as at the date of delivery of the Works according to AREA1 Group’ current price list; or
(c) AREA1 Group’ quoted Price (subject to clause 6.2) which shall be binding upon AREA1 Group provided that the Customer shall accept AREA1 Group’ quotation in writing within fourteen (14) days.
6.2 AREA1 Group reserves the right to change the Price:
(a) if a variation to the Materials which are to be supplied is requested; or 1. Definitions 1.1 “AREA1 Group” means AREA1 Group T/A AREA1 Earth Worx, its successors and assigns or any person acting on behalf of and with the authority of AREA1 Group T/A AREA1 Earth Worx. 1.2 “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer requesting AREA1 Group to provide the
(b) if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c) where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, obscured site/building defects which require remedial work, health hazards and safety considerations (such as the discovery of asbestos or other toxic materials), prerequisite work by any third party not being completed, hard rock barriers below the surface, or hidden pipes and/or wiring/cabling, etc.) which are only discovered on commencement of the Works; or
(d) if during the course of the Works, the Materials are not or cease to be available from AREA1 Groups’ third party suppliers, then AREA1 Group reserves the right to provide suitable comparable Materials; or
(e) in the event of increases to AREA1 Group in the cost of labour or materials which are beyond AREA1 Groups’ control.
6.3 Variations will be charged for on the basis of AREA1 Group’ quotation, and will be detailed in writing, and shown as variations on AREA1 Groups’ invoice. The Customer shall be required to respond to any variation submitted by AREA1 Group within ten (10) working days. Failure to do so will entitle AREA1 Group to add the :
6.4 At AREA1 Groups’ sole discretion a non-refundable deposit may be required.
6.5 Time for payment for the Works being of the essence, the Price will be payable by the Customer on the date/s determined by AREA1 Group, which may be:
(a) on completion of the Works; or
(b) by way of progress payments in accordance with AREA1 Groups’ specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or
(c) seven (7) days following the end of the month in which a statement is posted to the Customer’s address or address for notices;
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 the Customer by AREA1 Group.
6.6 Payment may be made by cash, bank cheque/transfer, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and AREA1 Group.
6.7 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 AREA1 Group nor to withhold payment of any invoice because part of that invoice is in dispute.
6.8 No allowance has been included within the quotation for Works to be carried out outside of AREA1 Groups’ normal working hours.

7. Provision of the Works

7.1 Subject to clause 7.2 it is AREA1 Groups’ responsibility to ensure that the Works start as soon as it is reasonably possible.
7.2 Subject to clause 7.2 it is AREA1 Groups’ responsibility to ensure that the Works start as soon as it is reasonably possible.. The Works’ commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that AREA1 Group claims an extension of time (by giving the Customer written notice) where completion is delayed by an event beyond AREA1 Groups’ control, including but not limited to any failure by the Customer to:
(a) make a selection; or
(b) have the site ready for the Works; or
(c) notify AREA1 Group that the site is ready.
7.3 At AREA1 Groups’ sole discretion, the cost of delivery is included in the Price.
7.4 The Customer shall ensure that AREA1 Group has clear and free access to the site at all times to enable them to undertake the Works. AREA1 Group 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 AREA1 Group.
7.5 Any time specified by AREA1 Group for delivery of the Works is an estimate only and AREA1 Group 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 Works to be supplied at the time and place as was arranged between both parties.

8. General Risk

8.1 If AREA1 Group retains ownership of the Materials under clause 11 then:
(a) where AREA1 Group is supplying Materials only, all risk for the Materials shall immediately pass to the Customer on delivery and the Customer must insure the Materials on or before delivery. Delivery of the Materials shall be deemed to have taken place immediately at the time that the Materials are delivered by AREA1 Group or AREA1 Groups’ nominated carrier to the Customer’s nominated delivery address (even if the Customer is not present at the address).
(b) where AREA1 Group is to both supply and install Materials then AREA1 Group shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Customer.
8.2 The Customer warrants that any structures to which the Materials are to be affixed are able to withstand the installation thereof and that any plumbing connections and/or electrical connections (including, but not limited to, pipes, couplings, valves, meter boxes, main switches, circuit breakers, and electrical cable) are of suitable capacity to handle the Materials once installed. If for any reason (including the discovery of asbestos, defective or unsafe plumbing unsafe wiring, dangerous access to roofing or latent or unfavourable soil conditions such as liquefaction residue or risk) that AREA1 Group, or AREA1 Groups’ employees, reasonably form the opinion that the Customer’s premises is not safe for the Works to proceed then AREA1 Group shall be entitled to delay the provision of the Works (in accordance with clause 7.2) until AREA1 Group is satisfied that it is safe for the installation to proceed.
8.3 In the event asbestos or any other toxic substances are discovered at the site, that it is the Customer’s responsibility to ensure the safe removal of the same. The Customer further agrees to indemnify AREA1 Group against any costs incurred by AREA1 Group as a consequence of such discovery. Under no circumstances will AREA1 Group handle removal of asbestos product.
8.4 AREA1 Group shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, AREA1 Group accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
8.5 Where AREA1 Group requires that Materials, tools etc. required for the Works be stored at the site, the Customer shall supply AREA1 Group a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Customer’s responsibility.
8.6 AREA1 Group shall upon installation ensure that all Materials are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Customer specifically requires the Materials to be installed in any way which goes against AREA1 Groups’ recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to AREA1 Group. Accordingly, AREA1 Group offers no warranty in regards to the aforementioned.
8.7 AREA1 Group accepts no responsibility for any damage or performance related problems with any Materials where they have not been used and/or maintained in accordance with AREA1 Groups’ and/or the manufacturers’ recommendations.
8.8 The Customer acknowledges that all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in AREA1 Groups’ fact sheets, price lists or advertising material are indicative only and that they have not relied on such information.
8.9 Where the Customer has supplied materials for AREA1 Group to complete the Works, the Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. AREA1 Group shall not be responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
8.10 The Customer acknowledges that AREA1 Group is only responsible for Materials that are replaced by AREA1 Group, and in the event that other parts/goods, subsequently fail, the Customer agrees to indemnify AREA1 Group against any loss or damage to the Works, or caused by the goods, or any part thereof howsoever arising.
8.11 The Customer warrants that no other tradesmen interfere with any Works and/or Materials supplied under this contract. AREA1 Group shall not be liable for any costs, damages or loss however arising from the Customer’s failure to comply with this clause.
8.12 AREA1 Group accepts no responsibility for:
(a) any damage or defects in any Materials caused by movement and/or interference of the said Materials;
(b) painting, re-decorating, re-sealing, carpentry or any other Works required for the restoration or making good of any surface/area where any Works have been carried out.
8.13 The Customer acknowledges that they shall:
(a) not be entitled to withhold any payment due under this contract because of any delay in the connection of, or the supply of electricity to the Materials by an electrical distributor or any other third party;
(b) be responsible for any building work, excavation work, core drilling or any other non-standard surface penetrations that need to be carried out to enable AREA1 Group to carry out the Works;
(c) provide and have erected scaffolding to enable the Works to be undertaken (where in AREA1 Groups’ opinion it is deemed necessary). Any scaffolding must comply with industry safety standards and any person erecting the scaffolding shall be suitably qualified to ensure its safe and proper erection, and where necessary, shall hold a current certificate of competency and/or be fully licensed;
(d) remove any furniture or personal items from the vicinity of the Works, and agrees that AREA1 Group shall not be liable for any damage caused to those items through the Customers failure to comply with this clause;
(e) be wholly responsible for animals and/or children on the worksite;
(f) be wholly responsible for the removal of rubbish (including but not limited to contaminated soil stockpiling of excess spoil) from or clean-up of the worksite;
(g) supply electricity, temporary lighting, water, eating and first aid facilities if so required.

11. Underground/Hidden Services

11.1 Prior to AREA1 Group commencing the Works the Customer must advise AREA1 Group of the precise location of all underground/hidden services on the site and clearly mark the same. The mains and 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 the site.
11.2 Whilst AREA1 Group will take all care to avoid damage to any services the Customer agrees to indemnify AREA1 Group 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 11.1.

12. Compliance with Laws

12.1 The Customer and AREA1 Group 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, including any work health and safety (WHS) laws relating to building/construction sites and any other relevant safety standards or legislation.
12.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.
and creates a security interest in all Materials and/or collateral (account) – being a monetary obligation of the Customer to AREA1 Group for Works – that have previously been supplied and that will be supplied in the future by AREA1 Group to the Customer.

19. Cancellation

19.1 Without prejudice to any other remedies AREA1 Group may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions AREA1 Group may suspend or terminate the supply of Works to the Customer. AREA1 Group will not be liable to the Customer for any loss or damage the Customer suffers because AREA1 Group has exercised its rights under this clause.
19.2 AREA1 Group may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Customer. On giving such notice AREA1 Group shall repay to the Customer any sums paid in respect of the Price, less any amounts owing by the Customer to AREA1 Group for Works already performed. AREA1 Group shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Customer cancels the delivery of Works the Customer shall be liable for any and all loss incurred (whether direct or indirect) by AREA1 Group as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.4 Cancellation of orders for products made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.

22. Service of Notices

22.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person; (b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
22.2 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.

24. General

24.1 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.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia in which AREA1 Group has its principal place of business, and are subject to the jurisdiction of the Courts in that state.
24.3 Subject to clause 16 AREA1 Group 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 AREA1 Group of these terms and conditions (alternatively AREA1 Groups’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
24.4 AREA1 Group may licence and/or assign all or any part of its rights and/or obligations under this contract without the Customer’s consent.
24.5 The Customer cannot licence or assign without the written approval of AREA1 Group.
24.6 AREA1 Group may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of AREA1 Group’ sub-contractors without the authority of AREA1 Group.
24.7 The Customer agrees that AREA1 Group may amend these terms and conditions by notifying the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for AREA1 Group to provide Works to the Customer.
24.8 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.
24.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.