Terms & Conditions

1 Definitions

1.1 In this agreement, the following terms have the meanings outlined below:

1.2 “Agreement” means the agreement between Victorian Rockscapes & Excavation Pty Ltd and the Customer to perform the Works and comprises of:

a) the written quote annexed to these terms and conditions;

b) the schedule annexed to these terms and conditions; and

c) these terms and conditions.

“Business Day” means a day other than a Saturday, Sunday or public holiday and on which banks are open for general banking business in the state of Victoria.

“Commencement Date” means the date described in the Schedule as the Commencement Date for Works or such further date agreed between Victorian Rockscapes & Excavation Pty Ltd and the Customer in writing for the commencement of the Works.

“Victorian Rockscapes & Excavation Pty Ltd (ABN 27 666 457 843) “means it’s successors and assigns or any person acting on behalf of and with the authority of Victorian Rockscapes & Excavation.

“Customer” means any person acting on behalf of and with the authority of the customer requesting Victorian Rockscapes & Excavation Pty Ltd 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) includes the customers executors, administrators, successors and permitted assigns.

“GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999”,

“Materials” means any goods or substances which are used in the course of performing the Works including but not limited to the building materials required to construct the Works.

“Price” means the price payable (plus GST where applicable) for the Works as agreed between Victorian Rockscapes & Excavation Pty Ltd and the Customer in accordance with clause 6 below and as may varied pursuant to these terms and conditions.

“Quote” means the quote attached to these Terms and Conditions.

“Schedule” means the schedule attached to these Terms and Conditions.

“Terms and Conditions” means this document which is described as the ‘terms and conditions’.

“Works” means the building services (including consultation, manufacturing and/or installation services) supplied by Victorian Rockscapes & Excavation Pty Ltd specified in the quote and as varied from time to time in accordance with these terms and conditions.

2 Interpretation

2.1 If the day on or by which a person must do something under this Agreement is not a Business Day, the person must do it on or by the next Business Day.

2.2 Save as required by context, a term used with an initial capital letter indicates that the term is defined in these terms and conditions and is to be interpreted accordingly.

3 Acceptance

3.1 The Customer is taken to have accepted the Agreement and is immediately bound, jointly and severally, by the Quote, Schedule and the Terms and Conditions if the Customer:

a) returns the statement of acceptance; or

b) places an order for any part of the Works; or

c) accepts delivery of any part of the Works.

3.2 Except as otherwise provided in these Terms and Conditions, any amendment to the Agreement between Victorian Rockscapes & Excavation Pty Ltd and the Customer must be made in writing.

3.3 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with section 9 of the Electronic Transactions (Victoria) Act 2000 (Vic) or any other applicable provisions of that Act or any Regulations referred to in that Act.

3.4 Any advice, recommendation, information, or assistance provided by Victorian Rockscapes & Excavation Pty Ltd in relation to Materials or Works is supplied in good faith, and based on Victorian Rockscapes & Excavation Pty Ltd own knowledge and experience and shall be accepted without liability on the part of Victorian Rockscapes & Excavation Pty Ltd and it shall be the responsibility of the customer to confirm the accuracy, suitability and reliability of the use to which the customer makes or intends to make of the Materials and/or Works.

3.5 Where the any aspect of any Work or Material is not described in the Quote (such as the brand of any of the Materials), the choice of Material or scope of Works shall be made at the sole discretion of Victorian Rockscapes & Excavation Pty Ltd (provided that such a choice is consistent with any description that is set out in the Quote).

3.6 The Agreement constitutes the entire agreement between the parties relating to the Works and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties.

4 Change In Control

4.1 The Customer shall give Victorian Rockscapes & Excavation Pty Ltd not less than 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 Customers name, address, contact phone or fax number/s, change of trustees or business practice). The Customer shall be liable for any loss incurred by Victorian Rockscapes & Excavation Pty Ltd as a result of the Customer’s failure to comply with this clause.

5 Authorised Representative

5.1 The Customer acknowledges that Victorian Rockscapes & Excavation Pty Ltd shall for the duration of the Works liaise directly with a single authorised representative as specified in the Schedule, and that once introduced as such to Victorian Rockscapes & Excavation Pty Ltd that person shall have the full authority of the customer to order any Works, Materials and/or to request any variation on the Customer’s behalf.

5.2 The Customer accepts that they will be liable to Victorian Rockscapes & Excavation Pty Ltd for all additional costs incurred by Victorian Rockscapes & Excavation Pty Ltd (including any profit margin) in providing any Works, Materials and/or variations requested by the Customer’s duly authorised representative.

6 Price and Variations

6.1 Provided that the quote is accepted by signing the schedule within 10 Business Days or placing an order for or accepting delivery of any part of the Works, the Price shall be the price specified in the quotation.

6.2 If the quote is not accepted within 10 Business Days, Victorian Rockscapes & Excavation Pty Ltd may, at its sole discretion:

a) decline the acceptance of the quotation, terminate the Agreement and in these circumstances Victorian Rockscapes & Excavation Pty Ltd will not be obliged to perform the Works; or

b) confirm the acceptance of the quotation and in doing so the Agreement (including all the documents comprising the Agreement) becomes binding on the parties,

6.3 Notwithstanding the acceptance of the Quote by Victorian Rockscapes & Excavation Pty Ltd and the Customer, Victorian Rockscapes & Excavation Pty Ltd may amend the Quote (the Amended Quote) no later than 15 Business Days prior to the Commencement Date to take into account any rise or fall in the cost of performing the Works or supplying the Materials and in the event of such an amendment, Victorian Rockscapes & Excavation Pty Ltd shall notify the Customer of such amendment as soon as practicable thereafter.

6.4 Upon the Victorian Rockscapes & Excavation Pty Ltd giving the Customer notification of such amendment, the Amended Quote shall be deemed to be the quote for the purposes of the Agreement unless the Customer provides notice to Victorian Rockscapes & Excavation Pty Ltd rejecting the revised quote within 5 business days of receipt of notification of the amendment.

6.5 If the Customer provides notice rejecting the Amended Quote to Victorian Rockscapes & Excavation Pty Ltd within 5 Business Days, Victorian Rockscapes & Excavation Pty Ltd may either continue performing the Agreement in accordance with the original quote or provide notice within 5 Business Days to the Customer terminating the Agreement immediately.

6.6 The Customer agrees that any of the following matters constitutes a Variation:

a) any change or alteration in Materials described in the Quote at the request of the Customer or due to any act or omission by the Customer (including, without limiting any other rights available to Victorian Rockscapes & Excavation Pty Ltd, any failure by the Customer to comply with these Terms and Conditions);

b) any change or alteration to the scope or nature of Works described in the Quote at the request of the Customer or due to any act or omission by the Customer (including, without limiting any other rights available to Victorian Rockscapes & Excavation Pty Ltd, any failure by the Customer to comply with these Terms and Conditions);

c) any additional Works required or Materials required to be supplied due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, hitting rock while drilling footings for any Works, rock excavation or removal being necessary, 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 or being completed deficiently (including any site cut being incorrectly completed), any damage to services in the site, hard rock barriers below the surface or hidden pipes, wiring, cabling or other obstacles which are only discovered after the commencement of the Works.

6.7 The Customer shall indemnify Victorian Rockscapes & Excavation Pty Ltd from any additional costs incurred by Victorian Rockscapes & Excavation Pty Ltd as a result of any Variations arising.

6.8 Victorian Rockscapes & Excavation Pty Ltd shall notify the Customer as soon as reasonably practicable possible of the costs of any Variations and will be entitled to add the cost of the Variation to the Price. Payment for any Variations must be made prior to commencing or supplying any Variations by Victorian Rockscapes & Excavation Pty Ltd.

6.9 If the Customer seeks to request any Variations from Victorian Rockscapes & Excavation Pty Ltd, Victorian Rockscapes & Excavation Pty Ltd may provide a quote for any Variations which the Customer indicates he may request and if the Customer accepts the quote for the Variations, the Customer must pay the cost of any such Variations upon commencement of said Works.

6.10 If during the course of the Works, any Materials cease to be available from Victorian Rockscapes & Excavation Pty Ltd third-party suppliers, then Victorian Rockscapes & Excavation Pty Ltd may instead provide suitable comparable Materials.

7 Payment

7.1 Accept as otherwise agreed in writing, the Customer must pay the Price to Victorian Rockscapes & Excavation Pty Ltd as follows:

a) upon acceptance of the Quote, a non-refundable deposit of 10% must be paid to Victorian Rockscapes & Excavation Pty Ltd;

b) 5 Business Days prior to the Commencement date or any Works or supply of Materials commencing (whichever is earlier), 40% of the balance of the Price; and

c) upon Victorian Rockscapes & Excavation Pty Ltd notifying the Customer of the completion of the Works, the outstanding balance of 50% must be paid within 7 business days of the Works being completed.

7.2 Victorian Rockscapes & Excavation Pty Ltd will provide a tax invoice to the Customer for the payments required under clause 7.1.

7.3 The Customer must pay any invoice within 7 Business Days of the invoice being given to the Customer by Victorian Rockscapes & Excavation Pty Ltd (including any invoice for payments relating to any Variations).

7.4 Payment may be made by cash, bank cheque, bank transfer, or any other method agreed between the Customer and Victorian Rockscapes & Excavation Pty Ltd.

7.5 The customer shall not be entitled to set off against or deduct from any money payable to Victorian Rockscapes & Excavation Pty Ltd any sums owed or claimed to be owed to the Customer by Victorian Rockscapes & Excavation Pty Ltd nor withhold payment of any invoice because part of that invoice is in dispute.

7.6 No allowance has been included for Victorian Rockscapes & Excavation Pty Ltd Works being carried out outside Victorian Rockscapes & Excavation Pty Ltd ‘ normal working hours.

7.7 Unless otherwise stated, any costs payable by the Customer do not include GST. The Customer must pay to Victorian Rockscapes & Excavation Pty Ltd an amount equal to any GST Victorian Rockscapes & Excavation Pty Ltd must pay for any supply by Victorian Rockscapes & Excavation Pty Ltd under this or any other Agreement. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer is obliged to may payment.

7.8 The Customer must pay any additional taxes and duties that may be applicable to this Agreement.

8 Plumbing/Gas Fitting Risk

8.1 The Customer acknowledges that the presence of plant or tree root growth and/or other blockages may indicate damaged pipe work and therefore where Victorian Rockscapes & Excavation Pty Ltd is requested to merely clear such blockages, Victorian Rockscapes & Excavation Pty Ltd can offer no guarantee against reoccurrence or further damage.

8.2 The Customer warrants that any existing plumbing, gas fitting and or associated services in or upon the worksite that is subject to the Materials and/or Works is in compliance with any applicable laws or regulations. Victorian Rockscapes & Excavation Pty Ltd reserves the right to halt all works in their opinion the worksite is unsafe and/or the current positioning of any such services does not meet any legal requirements.

9 Underground/Hidden Services

9.1 Prior to Victorian Rockscapes & Excavation Pty Ltd commencing the Works the Customer must notify Victorian Rockscapes & Excavation Pty Ltd of the precise size and location of all underground/hidden services on the site in writing.
The services the Customer must identify include, but are not limited to;

and any other services that may be on the site, within the vicinity of the Works or otherwise potentially affect the performance of the Works.

9.2 Whilst Victorian Rockscapes & Excavation Pty Ltd will take care to avoid damage to any services the customer agrees to indemnify Victorian Rockscapes & Excavation Pty Ltd in respect of all and any liability claims, loss, damage, cost and fines as a result of damage to services not being precisely specified and notified as required by clause 9.1

9.3 If the Customer wishes to retain a service locator to assist with facilitating the performance of the Works, the Customer bears full responsibility for the retention and payment of any such service locator, irrespective of whether the service locator is recommended to the Customer by Victorian Rockscapes & Excavation Pty Ltd.

10 Compliance with Laws

10.1 The Customer and Victorian Rockscapes & Excavation Pty Ltd shall comply with all statues, regulations and bylaws of government, local and other public authorities that may be applicable to the Works, including any occupational health and safety laws regulating to building/construction sites and any other relevant safety standards or legislation.

10.2 The Customer shall obtain (at the expense of the Customer) all licenses and approvals that may be required for the Works.

11 Intellectual Property

11.1 Where Victorian Rockscapes & Excavation Pty Ltd has designed, drawn, written plans or a schedule of Works, or created any products for the Customer, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain vested in Victorian Rockscapes & Excavation Pty Ltd and shall only be used by the Customer with the express consent of Victorian Rockscapes & Excavation Pty Ltd.

11.2 The Customer agrees that Victorian Rockscapes & Excavation Pty Ltd may (at no cost) use for the purposes of marketing, any documents, video\\s, pictures, designs, drawings, plans or products which Victorian Rockscapes & Excavation Pty Ltd has created/taken for the Customer and for advertising materials.

12 Default and Consequences of Default

12.1 Each of the following occurrences constitutes an event of default:

a) the Customer breaches or is alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fails to remedy that breach within 14 days of being given notice by Victorian Rockscapes & Excavation Pty Ltd to do so;

b) the Customer, being a natural person, commits an act of bankruptcy;

c) the Customer, being a corporation, is subject to:

d) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;

e) a receiver, receiver and manager or an administrator under part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;

f) the entering of a scheme of arrangement (other than for the purpose of restructuring); and any assignment for the benefit of creditors.

12.2 Where an event of default occurs, except where payment in full has been received by the Victorian Rockscapes & Excavation Pty Ltd, the Victorian Rockscapes & Excavation Pty Ltd may:

a) terminate the Agreement;

b) refuse to provide any Materials or perform the Works;

c) repossess and re-sell any Materials delivered to the Customer, the payment for which has not been received; or

d) retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.

12.3 In addition to any action permitted to be taken by the Victorian Rockscapes & Excavation Pty Ltd under clause 12.1, on the occurrence of an event of default all invoices and the Price will become immediately due and payable.

12.4 Interest on overdue invoices shall accrue daily from the date when payment becomes due at a rate of 8% per annum.

12.5 If the Customer fails to make any payment to Victorian Rockscapes & Excavation Pty Ltd when it falls due, the Customer shall indemnify Victorian Rockscapes & Excavation Pty Ltd from and against all costs and disbursements incurred by Victorian Rockscapes & Excavation Pty Ltd in recovering debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Victorian Rockscapes & Excavation Pty Ltd contract default fee and bank dishonour fees).

13 Security and Charge

13.1 In consideration of Victorian Rockscapes & Excavation Pty Ltd agreeing to perform the Works and supply any Materials, the Customer charges all property, both equitable and legal, present or future of the Customer in respect of any monies that may be owing by the Customer to Victorian Rockscapes & Excavation Pty Ltd under the Agreement or otherwise and hereby authorises the Victorian Rockscapes & Excavation Pty Ltd or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Customer at any time or to register this charge over assets of the Customer with the Personal Property Securities Register.

14 Provision of the Works

14.1 Subject to clause 14.2 it is Victorian Rockscapes & Excavation Pty Ltd must use its best endeavours to commence the Works as soon as it is reasonably practicable.

14.2 The Customer acknowledges that the commencement and completion Of the Works may be put delayed in the event that the Customer fails to:

a) make any selection or choice reasonably required to perform the Works; or

b) ensure that the site is ready for the Works;

c) notify Victorian Rockscapes & Excavation Pty Ltd that the site is ready; or

d) comply with any other obligation under these Terms and Conditions;
and Victorian Rockscapes & Excavation Pty Ltd may, without limiting any of its other rights under these Terms and Conditions, delay the commencement of any Works as it reasonably requires as a consequence of the matters aforesaid (including requiring further delay due to other obligations consequently commencing due to any delay by the Customer).

14.3 The Customer must ensure that Victorian Rockscapes & Excavation Pty Ltd has clear and free access to the site at all times to enable them to undertake the Works. Victorian Rockscapes & Excavation Pty Ltd shall not be liable for any loss or damage (including, without limitation, damage to the sites such as pathways, fences, driveways and concreted or paved or grassed areas) unless such damage is due to the negligence of Victorian Rockscapes & Excavation Pty Ltd.

14.4 In addition to and regardless of any other obligation under this Agreement, the Customer must:

a) co-operate in good faith with Victorian Rockscapes & Excavation Pty Ltd to facilitate the provision of the Works by Victorian Rockscapes & Excavation Pty Ltd;

b) as soon as practicable, consult with Victorian Rockscapes & Excavation Pty Ltd on any matter it may become aware of which may materially affect the provision of the Works by Victorian Rockscapes & Excavation Pty Ltd.

14.5 Any time specified by Victorian Rockscapes & Excavation Pty Ltd for delivery of the Works (The Estimated time for completion of Works in the Schedule) is an estimate only and Victorian Rockscapes & Excavation Pty Ltd does not warrant that the Works will be completed by that date and will not be liable for any loss or damage incurred by the Customer as a result of the Works not being completed by that date. Victorian Rockscapes & Excavation Pty Ltd will use its best endeavours to complete the Works by the Estimated time for completion of Works.

15 General

15.1 Where Victorian Rockscapes & Excavation Pty Ltd shall maintain any insurance policy required by any law or regulation.

15.2 The Customer warrants that any structure to which any Materials or product of the Works is to be affixed is 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 or unsafe wiring, latent or unfavourable soil conditions such as liquefaction residue or risk) that Victorian Rockscapes & Excavation Pty Ltd or Victorian Rockscapes & Excavation Pty Ltd employees, reasonably form the opinion that the Customers premises is not safe for the Works to proceed then Victorian Rockscapes & Excavation Pty Ltd shall be entitled to delay the Works until Victorian Rockscapes & Excavation Pty Ltd is satisfied that it is safe for the Works to be completed.

15.3 In the event that toxic substances are discovered at the site, that it is the Customers responsibility to ensure the safe removal of the same and Victorian Rockscapes & Excavation Pty Ltd is not obliged to perform any Works until the safe removal of such toxic substances. The Customers further agrees to indemnify Victorian Rockscapes & Excavation Pty Ltd against any cost incurred by Victorian Rockscapes & Excavation Pty Ltd as a consequence of such discovery.

15.4 Victorian Rockscapes & Excavation Pty Ltd shall be entitled to rely on the accuracy of any plans, diagrams, drawings or other documents provided to it by the Customer or the Customer’s personnel. Victorian Rockscapes & Excavation Pty Ltd accepts no responsibility for any loss, damages, or costs however resulting from any inaccuracy of any documents supplied to it by the Customer or the Customer’s personnel.

15.5 Where Victorian Rockscapes & Excavation Pty Ltd requires that Materials or equipment be stored on site, the Customer shall supply a safe area of storage for Victorian Rockscapes & Excavation Pty Ltd and take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are damaged, destroyed, or stolen the Customer shall be responsible for the cost of repair or replacement.

15.6 Victorian Rockscapes & Excavation Pty Ltd shall ensure that all Materials are to be installed in a manner that is fully compliant with industry standards. If the Customer for any reason requires Materials to be installed or Work to be performed against Victorian Rockscapes & Excavation Pty Ltd recommendation and industry standards, a request detailing that requirement must be made in writing and the Customer waives any claim against Victorian Rockscapes & Excavation Pty Ltd as a result of such a request. Victorian Rockscapes & Excavation Pty Ltd offers no warranty in regards to the aforementioned.

15.7 Victorian Rockscapes & Excavation Pty Ltd 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 Victorian Rockscapes & Excavation Pty Ltd or the manufacturers recommendations.

15.8 The Customer acknowledges that all descriptive specifications, data dimensions and weights stated in Victorian Rockscapes & Excavation Pty Ltd fact sheets, price lists or advertising material are indicative only and that they have not relied on such information.

15.9 The Customer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials for materials the Customer has supplied. Victorian Rockscapes & Excavation Pty Ltd shall not be responsible for any damages or defects arising due to materials supplied by the Customer.

15.10 The Customer acknowledges that Victorian Rockscapes & Excavation Pty Ltd is only responsible for Materials that are supplied by Victorian Rockscapes & Excavation Pty Ltd and in the event that other parts, materials or goods, subsequently fail or are deficient, the Customer agrees to indemnify Victorian Rockscapes & Excavation Pty Ltd against any loss or damage arising from any such failure or deficiencies.

15.11 The Customer warrants that no other tradesman interferes with any Works and or Materials supplied under this contract. Victorian Rockscapes & Excavation Pty Ltd shall not be liable for any costs, damages or loss however arising from the Customer’s failure to comply with this clause.

15.12 Victorian Rockscapes & Excavation Pty Ltd accepts no responsibility for:

a) painting, re-decorating, re-sealing, carpentry or any other work required for the restoration or making good of nay surface/area where any Works have been carried out;

b) any damage or defects in any Materials caused by movement and/or interference with the Materials.

15.13 The Customer acknowledges that they must:

a) perform any building work, excavation, core drilling, or any other non-standard surface penetrations that need to be carried out to enable Victorian Rockscapes & Excavation Pty Ltd to carry out the Works;

b) remove any furniture or personal items from the vicinity of the Works, and indemnify

c) Victorian Rockscapes & Excavation Pty Ltd against any damage caused to those items through the

d) Customers failure to comply with this clause;

e) ensure that all Materials and equipment stored on site are properly secured and protected from damage or theft;

f) ensure that any animals or persons do not interfere with any persons working on the site;

g) remove any rubbish (including any soil) and ensure that the site is at all times in a clean state;

h) supply any electricity, lighting, water, toilet and first aid facilities as required.

16 Title

16.1 Victorian Rockscapes & Excavation Pty Ltd and the Customer agree that ownership of the Materials shall not pass until the customer has paid Victorian Rockscapes & Excavation Pty Ltd all amounts owing to Victorian Rockscapes & Excavation Pty Ltd and the Customer has met all of its other obligations to Victorian Rockscapes & Excavation Pty Ltd

17 Severance

17.1 If any provision of the Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision must, to the extent required, be severed from the Agreement and rendered ineffective as far as possible without modifying the remaining provisions.

18 Defects Warranties and Returns

18.1 The Customer must inspect all Materials on delivery (or the works on completion) and must notify Victorian Rockscapes & Excavation Pty Ltd within 48 hours in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the customer must allow Victorian Rockscapes & Excavation Pty Ltd to inspect the Materials or to review the Works provided. If the Customer shall fail to comply with these provisions the Works/Material’s shall be presumed to be in accordance with the terms and conditions and free from any defects or damage.

18.2 The parties acknowledge that, under applicable State and Commonwealth law, certain conditions and warranties may be implied in these terms and conditions and there are rights and remedies conferred on the Customer in relation to the provision of the Materials and Works, which cannot be excluded, restricted or modified by the Agreement (Non-excludable Rights).

18.3 Victorian Rockscapes & Excavation Pty Ltd disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights. To the extent permitted by law, the liability of Victorian Rockscapes & Excavation Pty Ltd for a breach of a Non-Excludable Right is limited, at Victorian Rockscapes & Excavation Pty Ltd option, to the supplying of the goods or services again or payment of the cost of having the goods or services supplied again.

18.4 Notwithstanding any other provision of these terms and conditions, Victorian Rockscapes & Excavation Pty Ltd is in no circumstances (whatever the cause) liable in contract, tort including without limitation, negligence or breach of statutory duty or otherwise to compensate the Customer for:

a) any increased costs or expenses;

b) any loss of profit, revenue, business, contracts or anticipated savings; any loss or expense resulting from a claim by a third party; or

c) any special, indirect or consequential loss or damage of any nature whatsoever caused by Victorian Rockscapes & Excavation Pty Ltd ‘failure to complete or delay in completing the Works or to deliver any Materials.

19 Force Majeure

19.1 For the purposes of this clause, Force Majeure Event means any of the following:

a) earthquakes, fires or other physical natural disaster;

b) acts of war, acts of terrorism, riots, civil or military disturbances, national or state-wide industrial disputes (excluding actions by, between or originated among employees of a party);

c) requisition or compulsory acquisition by any government or public authority; and

d) general shortage of labour or materials; which.

e) is beyond the control of and has occurred without the fault or negligence of Victorian Rockscapes & Excavation Pty Ltd;

f) was not reasonably foreseeable by Victorian Rockscapes & Excavation Pty Ltd at the date of providing the quote; and

g) Victorian Rockscapes & Excavation Pty Ltd is unable to prevent or overcome by the exercise of reasonable diligence.

19.2 If Victorian Rockscapes & Excavation Pty Ltd is affected, or likely to be affected, by a Force Majeure Event:

a) Victorian Rockscapes & Excavation Pty Ltd may give the Customer notice of the Force Majeure Event including:

b) full particulars of the Force Majeure Event; an estimate of its likely duration; and iii. the obligations affected by it; and

c) the obligations under this Agreement are suspended to the extent to which they are affected by the relevant Force Majeure Event, and, subject to any other provision contained within this clause, such suspension will be effective for as long as the Force Majeure Event continues.

19.3 If Victorian Rockscapes & Excavation Pty Ltd claims that its ability to perform its obligations is prevented or impeded by a Force Majeure Event, it must use its best endeavours to remove, overcome or minimise the effects of that Force Majeure Event.

19.4 If a suspension of obligations pursuant to a notice of a Force Majeure Event continues for more than 30 Business Days:

a) the Customer may issue a notice providing no less than 10 Business Days’ notice to terminate this Agreement to Victorian Rockscapes & Excavation Pty Ltd unless the suspension of the obligations under the Agreement is lifted by Victorian Rockscapes & Excavation Pty Ltd; and

b) Victorian Rockscapes & Excavation Pty Ltd may issue a notice terminating the Agreement by giving no less than 10 Business Days’ notice to the Customer.

19.5 In the event of termination under clause 19.4:

a) Victorian Rockscapes & Excavation Pty Ltd must refund moneys previously paid by the Customer pursuant to this Agreement for goods or services not provided by Victorian Rockscapes & Excavation Pty Ltd to the Customer, and

b) neither party is otherwise liable to the other except to the extent of rights or obligations which accrued before the termination.

20 Agency and assignment

20.1 The Customer agrees that the Victorian Rockscapes & Excavation Pty Ltd may at any time appoint or engage an agent to perform an obligation of the Victorian Rockscapes & Excavation Pty Ltd arising out of or pursuant to the Agreement.

20.2 Victorian Rockscapes & Excavation Pty Ltd has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of Victorian Rockscapes & Excavation Pty Ltd owed to the Customer under the Agreement.

20.3 The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of Victorian Rockscapes & Excavation Pty Ltd.