Primo Pumping :: Terms & Conditions

The Primo Pumping Pty Ltd Terms of Trade

1.Definitions and interpretation
1. 1.1Definitions

In these Terms of Trade:

Additional Charge means:

(a)fees or charges for additional work performed at the Client's request or reasonably required as a result of the Client's conduct, calculated in accordance with Primo's then current prices, as published on the website from time to time.
(b)expenses incurred by Primo, at the Client's request or reasonably required as a result of the Client's conduct.

Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.

Client means the person identified as the Client in the Job Order Form and includes the Client's agents and permitted assigns.

Goods means any goods supplied by Primo including those supplied in the course of providing Services.

Site means the location specified in Job Order Form, at which the Job is to be carried out.

Loss includes, but is not limited to, costs (including, but not limited to, solicitor and own client costs and Primo's legal costs), expenses, lost profits, award of damages, personal injury and property damage.

Order and/or Job means an order for provision of Services placed by the Client in with Primo.

Price List: means the then current price list of Primo Pumping, as published on the Website, or otherwise provided to the Client, as at the date of the Job.

Primo means Primo Pumping Pty Ltd ACN 635 417 131 and includes its agents and permitted assigns.

PPS Law means the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time).

Services means the services to be provided by Primo to the Client.

Scope of Work means the scope of work as described in the Job Order Form, or as otherwise communicated to Primo.

Website means the website of Primo Pumping Pty Ltd which can be found at: http://primopumping.com.au/

1.2 Interpretation

In these Terms of Trade, unless the context otherwise requires:

(a)a reference to writing includes email and other communication established through Primo's website (if any);
(b)the singular includes the plural and vice versa;
(c)a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms of Trade;
(d)a reference to a party to these Terms of Trade or any other document or arrangement includes that party's executors, administrators, successors and permitted assigns;
(e)where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f)headings are for ease of reference only and do not affect the meaning or interpretation of these Terms of Trade; and
(g)if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:

(i)if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii)in all other cases, must be done on the next Business Day.

2.Acceptance

(a)The Client will be deemed to have accepted these Terms of Trade by:

(i) signing a Job Order Form;

(ii) placing a Job Order via the Website;

(iii) placing a Job Order with Primo by telephone after receiving these Terms of Trade; or

(iii) contacting Primo and advising of acceptance.

(b)Placement of an Order by the Client signifies acceptance by the Client of these Terms of Trade at the rates shown in a quote, or if no quote is provided, at the then current rates shown in the Price List.
(c)These Terms of Trade apply to all transactions between the Client and Primo after the date of acceptance pursuant to clause 2.
(d)These Terms of Trade take precedence over any Terms of Trade contained in any document of the Client or elsewhere.

3.Quotes

(a)Primo may provide the Client with a quote. Any quote issued by Primo is valid for 28 days from the date of issue.
(b)Quotes are based on the availability of Goods and/or Services as at the time of preparation of the quote and assume the timely supply by the Client of necessary materials and instructions to Primo.

4.Orders

(a)Every Order by the Client for the provision of Services (except for any Additional Services or as otherwise required in writing) will be pursuant to the Scope of Work described by in the Job Order Form, or as otherwise communicated to Primo by the Client.
(b)Any costs incurred by Primo as a result of additional works beyond the scope of Work in reliance on incorrect or inadequate information may result in the imposition of an Additional Charge.
(c)Orders must be signed by the Client or an authorised representative of the Client and if the person or organisation signing the Authority to proceed is later proven to not have authority to act on the Client’s behalf then the person or organisation signing shall be liable for payment to Primo.
(d)Primo may in its absolute discretion refuse to provide Goods or Services (or to cease doing so) where:

(i)the Services cannot be carried out for any reason whatsoever; or
(ii)Primo considers, in its absolute discretion, that there is a real risk or likelihood that Primo will not be paid in full; or
(iii)if Primo will be unable to complete the works.

5.Client Responsibilities

(a)The Client shall, at the Client’s expense, provide

(i) within or adjacent to the Site, provide a suitable washout area for cleaning of the concrete pump and other items of equipment used by Primo at the Site, and which satisfies all relevant Council and EPA guidelines;

(ii) provide clear, stable vehicle access to the Site;

(iii) removal of all excess concrete leftover at the Site, after the concrete pumping has been completed.

(b)In the event that the concrete pump, or another vehicle used by Primo becomes bogged on or adjacent to the Site or whilst accessing the Site, the Client indemnifies Primo against, and shall pay all costs of and incidental to any towing or recovery costs.
(c)The Client is responsible for any permits, plans, traffic management or electrical spotters required at Law.
(d)The Client indemnifies Primo against any Costs, Expenses, Damages incurred by Primo as a result of any fines or infringements incurred by Primo or arising from a breach of this clause 5.

6.Cancellations

(a) An Order may be cancelled no later than two (2) hours prior to the time concrete is due for delivery to the Site.

(b) Where an Order is cancelled within two (2) hours of the time concrete is due for delivery to the Site, the Client agrees to pay the additional fees to Primo, which together form a genuine pre-estimation of the costs and expenses which would be incurred by Primo in the following circumstances:

(i) a fee of 2 hours rental plus travel expenses if an Order is Cancelled within two (2) hours prior to the time Concrete is due to be delivered to the Site;

(ii) a fee of 4 hours rental plus travel expenses if an Order is Cancelled after the pump arrives on Site.

(c) The Client indemnifies Primo against any Loss incurred by Primo as a result of the cancellation, including, but not limited to loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled, where an Order is cancelled within two (2) hours of the time concrete is due for delivery to the Site.

7.Variations

(a)The Client may request that its Order be varied by providing a request in writing to Primo. A request for a variation must be agreed to in writing by Primo in order to have effect.
(b)If the Client wishes to vary its requirements after a quote has been issued by Primo or after placement of an Order, Primo reserves the right to vary it to include an Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation.
(c)Any addition requirements received from client after the placement of an Order, or additional time spent on-site by Primo which is due to a request, or action or omission by the client shall be deemed to a Variation of the Job Order for the purposes of this clause.
(d)For the purposes of clause 7(c), a delay or failure by the client to facilitate concrete to be delivered to the site at the time nominated by the client in the Job Order Form shall constitute a Variation to the Order and the client agrees to pau to Primo Additional Charges in accordance with Primo’s then current prices.

8.Invoicing and payment

(a)Primo may in its absolute discretion, issue a tax invoice to the Client in any one or more of the following ways:

(i)prior to commencing the provision of the Services, for a deposit where Primo has not previously carried out work for the Client or where Primo chooses to require a deposit; or
(ii)upon completion of the provision of the Goods or Services or any time thereafter, for an amount equal to the balance amount invoiced by Primo for the work performed in completing the Order and for any Additional Charges, less any deposit.

(b)The Client must pay a tax invoice issued by Primo to Primo within 14 days of a valid tax invoice being issued to the Client (Credit Period).
(c)Primo may in its complete discretion apply any payment received from the Client to any amount owing by the Client to Primo.
(d)The Client is not entitled to retain any money owing to Primo notwithstanding any default or alleged default by Primo of these Terms of Trade, including (but not limited to) the supply of allegedly faulty or defective Services or an inadequate standard or a delay in the provision of Services. Nothing in this paragraph affects the Client's rights for any alleged failure of a guarantee under the Australian Consumer Law.
(e)The Client is to pay Primo on demand interest at the rate of 15% per annum on all overdue amounts owed by the Client to Primo, calculated daily.
(f)All costs and expenses associated with collecting overdue invoices issued to the client, including (but not limited to) legal fees (on a solicitor and own client basis) and internal costs and expenses of Primo, are to be paid by the Client as a debt due and payable under the Terms of Trade.
(g)The Client and Primo agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
(h)All figures shown in the Job Order Form and any price list are expressed as exclusive of GST, unless stated otherwise.

9.Title and risk

(a)Risk in Goods passes to the Client immediately upon delivery.
(b)Property in any Goods or Services provided by Primo supplied to the Client pursuant to these Terms of Trade does not pass to the Client until all money (including money owing in respect of other transactions between Primo and the Client) due and payable to Primo by the Client have been fully paid.
(c)Where Goods or Services are supplied by Primo to the Client without payment in full of all moneys payable in respect of the Goods and any Services provided by Primo in respect of those Goods, the Client acknowledges that Primo has a right to register and perfect a personal property security interest over the assets of the Client as security for payment of the Goods and/or Services.
(d)Primo may give notice to the Client requiring the Client to do anything (including amending these Terms of Trade or execute any new Terms and Conditions) that in Primo's opinion is necessary, to the maximum possible extent, to or improve the security position as contemplated in clause 9(c). The Client agrees to with the requirements of that notice within the time specified in the notice.

10.Default by Client

(a)Each of the following occurrences constitutes an event of default:

(i)the Client 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);
(ii)the Client, being a natural person, commits an act of bankruptcy;
(iii)the Client, being a corporation, is subject to:

(A)a petition being presented, an order being made or a meeting being called to consider a resolution for the Client to be wound up, deregistered or dissolved;
(B)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 Client's property and undertaking;
(C)the entering of a scheme of arrangement (other than for the purpose of restructuring);
(D)any assignment for the benefit of creditors;

(iv)the Client purports to assign its rights under these Terms of Trade without Primo's prior written consent;
(v)the Client ceases or threatens to cease conduct of its business in the normal manner.

(b)Where an event of default occurs, except where payment in full has been received by Primo, Primo may:

(i)terminate these Terms of Trade;
(ii)terminate any or all Orders and credit arrangements (if any) with the Client;
(iii)refuse to deliver Goods or provide further Services;
(iv)repossess and re-sell any Goods delivered to the Client, the payment for which has not been received; or
(v)retain (where applicable) all money paid on account of Goods or Services or otherwise.

(c)In addition to any action permitted to be taken by Primo under paragraph (b), on the occurrence of an event of default all tax invoices will become immediately due and payable.

11.Exclusions and limitation of liability

(a)All information, specifications and samples provided by Primo in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Client's use of the Goods or Services will not entitle the Client to reject the Goods upon delivery, or to make any claim in respect of them.
(b)Primo gives no warranty in relation to the Services provided. Under no circumstances is Primo or any of its Primo’s liable or responsible in any way to the Client or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Services including in their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:

(i)any Services supplied to the Client;
(ii)any delay in supply of the Services; or
(iii)any failure to supply the Services.

(c)Any advice, recommendation, information, assistance or service given by Primo in relation to Services is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. Primo does not accept any liability or responsibility for any Loss suffered as a result of the Client's reliance on such advice, recommendation, information, assistance or service.
(d)To the fullest extent permissible at law, Primo is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide the Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on Terms of Trade, negligence, strict liability or otherwise, even if Primo has been advised of the possibility of damages.
(e)The Australian Consumer Law may give to the Client certain guarantees. Where liability for breach of any such guarantee can be limited, Primo’s liability (if any) arising from any breach of those guarantees is limited.
(f)The Client warrants that the Site satisfies all relevant Occupational Health and Safety laws, regulations and requirements and that all permits required by any regulatory body for the provision of the Services have been obtained and are held by the property owner, as at the date on which the Services are to be provided.

12.Indemnity

(a)The Client indemnifies and keeps indemnified Primo, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Client) against Primo or, for which Primo is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these Terms of Trade including, but not limited to any legal costs incurred by Primo in relation to meeting any claim or demand or any party/party legal casts for which Primo is liable in connection with any such claim or demand.
(b)This provision remains in force after the termination of these Terms of Trade.
(c)The client indemnifies Primo in respect of any expense or cost incurred by Primo as a result of any breach of these Terms of Trade by the Client.

13.Termination

(a)In addition to the express rights of termination provided in these Terms of Trade, either party may terminate these Terms of Trade by giving 14 days notice in writing to the other party.

14.Agency and Assignment

(a)The Client agrees that Primo may at any time appoint or engage an agent to perform an obligation or Service of Primo arising out of or pursuant to these Terms of Trade.
(b)Primo may assign, subcontract or transfer to any person all of its 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 Primo owed to the Customer under these terms.

15.Force majeure

(a)If circumstances beyond Primo's control prevent or hinder its provision of the Goods or Services, Primo is free from any obligation to provide the Goods or Services while those circumstances continue. Primo may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
(b)Circumstances beyond Primo's control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

16.Privacy Policy

(a)‘Personal information’ (as defined by the Privacy Act 1988 (Cth)) of a Client will only be used by Primo’s direct debit provider to provide the services contemplated by these Terms.
(b)Primo will only disclose such information to third parties with the Client’s prior written permission or to the extent specifically required by law.
(c)Primo may use Personal Information of a Client to:
1. 1. (i)respond to enquiries from the Client and fulfil Client requests;
  2. (ii)send administrative information to the Client, for example to process payments, communicate regarding Orders and provide Clients with related customer service;
  3. (iii)to send details of schedule changes and notifications, price updates, changes to terms and conditions;
  4. (iv)to send marketing information that Primo believe may be of interest to Clients, such as newsletters, new products, specials and promotions;
(d)Primo will retain personal information for as long as needed to provide the applicable Services, unless a longer retention period is required or permitted by law.
(e)Primo will not receive or retain credit card details or banking information. Such information is to be provided by the Client directly to the nominated direct debit provider.

17.Credit Card and Direct Debit Arrangements

(a)Credit card payments and direct debit arrangements are managed and debited a third party billing company acting for Primo as direct debit provider (“direct debit provider”).
(b)Primo may elect to nominate a replacement direct debit provider, which will only be done after first giving you reasonable notice in writing.

18.Other matters

(a)These Terms of Trade are governed by the laws of Victoria and each party irrevocably submits to the non-exclusive jurisdiction of the courts of such state.
(b)These Terms of Trade and any Quotes and written variations agreed to in writing by Primo represent the whole agreement between the parties relating to the subject matter of these terms.
(c)These Terms of Trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
(d)In entering into these Terms of Trade, the Client has not relied on any warranty, representation or statement, whether oral or written, made by Primo or any of its employees or agents relating to or in connection with the subject matter of these Terms of Trade.
(e)If any provision of these Terms of Trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
(f)A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
(g)A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on the Job Order Form (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified; sent by facsimile transmission to the facsimile number of the addressee specified, with acknowledgment of receipt from the facsimile machine of the addressee or sent by e-mail to the e-mail address of the addressee specified with acknowledgement of delivery.
(h)A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by facsimile or e-mail before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
(i)A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.
(j)The variation or waiver of a provision of these terms or a party's consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.