Terms And Conditions Of Trade

Following are the Terms and Conditions of Trade (“Trading Terms”) for Big Ditch Dam Company PTY LTD and Big Ditch Digging Company PTY LTD (ABN 16153289 993) and each related body corporate, any subsidiary or associated entity and as trustee of any trust from time to time (individually and together called “Big Ditch”). This includes all quotes and invoices related to Big Ditch, Big Ditch Digging Company Pty Ltd, Big Ditch Dam Company, Bucket-Man Dam Construction, Angus Bucketman, Dirtshaper and xBuckets and all other entities

Deposits:

By paying any deposit, you acknowledge that you agree with the terms below. As we plan our projects well in advance, and we guarantee a project start if a deposit is paid to confirm a project go-ahead – please note that should you pay a deposit and not proceed with a booking for any reason, a cancellation fee of 50% of the deposit shall be deducted from the refund – and this cancellation fee will be applied to re-couping the expenses of Big Ditch with regard to site visits, bid preparation, artist renderings, project planning, project design, project pre-preparation and lost machine time.

Warranties:

Please note that any work done by other contractors on any dam completed by Big Ditch voids all warranties and guarantees proffered by Big Ditch

Payment:

The Customer must pay for all work prior to egress from project site as per the attached payment schedule. Amounts payable by the Customer under these Credit Terms must be paid in full without deduction, retention or set-off of any kind and for any reason.


Interest and Administration fee:

Big Ditch is entitled to charge the Customer:

  • interest on amounts not paid within the credit period specified by Big Ditch at a rate equivalent to 3% p.a. above the annual business overdraft interest rate of its principal banker, as determined and calculated by Big Ditch, in its discretion; and
  • if any account remains unpaid at the end of the project, that sum shall become immediately due and payable. The Customer acknowledges that if this sum remains unpaid, the customer shall incur all costs with regard to the collection of this unpaid amount. These costs shall include court filing fees, solicitor fees with regard to the preparation of any form 3b statement of claim, solicitor fees with regard to drafting of final demands and all fees with regards to the service of the statement of claim on the debtor. The customer acknowledges that this is reasonable given the costs and expenses which shall be incurred by reason of the Customer’s default in payment and the recovery thereof.

GST:

Each amount payable by the Customer under these Trading Terms in respect of a Taxable Supply by Big Ditch is a GST exclusive amount and on receipt of a tax invoice the Customer must, in addition to that amount and at the same time, pay the GST payable in respect of that supply. “Taxable Supply” and “GST” have the meanings set out in the A New Tax System (Goods and Services) Act 1999.

Withdrawal or Variation of Credit:

Big Ditch may at any time, without the need to provide a reason, vary or withdraw any credit granted to the Customer. Where the Customer completes a further Application for a Commercial Trading Account, that Application will not be in derogation of but in addition to any previous general Trading Terms existing except as notified by Big Ditch (or any of its related entities, subsidiaries and assigns and as Trustee of any Trust) in writing.

Charge over Customer’s Property:

As security for payment to Big Ditch of all moneys payable by the Customer and for the Customer’s obligations generally under these Trading Terms, the Customer charges in favour of Big Ditch the whole of the Customer’s undertaking, property and assets (including without limitation all of the Customer’s interests, both legal and beneficial, in freehold and leasehold land) both current and later acquired. The Customer irrevocably appoints each Officer as the Customer’s attorney to do all things necessary to create and register each such charge. Upon demand by Big Ditch, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to Big Ditch to further secure payment of the money payable by the Customer. If the Customer fails within a reasonable time of such demand to execute such mortgage or other instrument, then the Customer acknowledges that Big Ditch may execute such mortgage or other instrument as the Customer’s solicitor pursuant to the appointment of Big Ditch as the Customer’s solicitor set out in these Trading Terms.

Suspension or Ceasing of Supply:

Big Ditch may in Big Ditch’s complete discretion and without incurring any liability to the Customer, cease or suspend supply of Products and Services to the Customer or amend these Trading Terms without limiting clause 6(a), if an Event of Default occurs, Big Ditch may, without prejudice to Big Ditch’s other rights, call up moneys owed to Big Ditch by the Customer, retain all moneys paid on account, or cease further deliveries and recover from the Customer all loss of profits and other costs arising from the Event of Default and/or take immediate possession of any Products and Services for which payment remains outstanding.

Liability of Big Ditch:

Big Ditch will not be liable for any loss or damage whatsoever suffered by the Customer as a result of any act, omission or statement made by Big Ditch, its employees, contractors or agents.

Certification:

A statement signed by an Officer certifying the amount of any moneys payable by the Customer, or identifying any Products and Services, as being “unpaid for” is, in the absence of manifest error, conclusive and binding on the Customer.

Notification of Change of Details:

The Customer will provide written notice to Big Ditch of any change in the Customer’s structure or management, including any change of director, shareholder, partnership, trusteeship or address within 7 days of the change.

Continuing Guarantee:

All guarantees under or related to these Trading Terms will be continuing guarantees and will terminate only with Big Ditch’s written agreement.

Set-Off:

Big Ditch may at any time set-off amounts owed by Big Ditch to the Customer against amounts owed by the Customer to Big Ditch.

Property:

Where Products are to be supplied by way of sale, property in the Products shall not pass until the Customer has paid all money owing to Big Ditch in full. Risk in the Products passes to the Customer at the time of delivery. The Customer holds the Products as fiduciary bailee and agent for Big Ditch and must keep the Product’s physically separate from all other goods of the Customer, and clearly identified as owned by Big Ditch until payment of all moneys owed by the Customer to Big Ditch. If an Event of Default occurs, then without prejudice to Big Ditch’s other rights, Big Ditch may, without notice to the Customer enter any premises occupied by the Customer or any other place where the Products may be and recover possession of the Products. If the Customer sells any of the Products supplied while money is owed to Big Ditch, the Customer must keep the proceeds of the sale in a separate account and not mix them with any other funds. If the Products are resold, or goods and/or services using the Products are manufactured and resold by the Customer, the Customer holds all of the book debts owed in respect of such sales and proceeds of such sales in trust for Big Ditch. Such part of the book debts and proceeds will be deemed to equal in dollar terms the amount owed by the Customer to Big Ditch at the time of the receipt of such book debts. The Customer must not assign or grant a security interest in respect of such book debts without Big Ditch’s prior written consent. If the Customer uses the Products in some process of its own or of some third party, then the Customer shall hold such part of the proceeds of such process as relates to such Products in trust for Big Ditch. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to Big Ditch and at the time of payment of such proceeds the Customer’s obligation to pay the amount owed for such Products will be discharged.

Promotional & Design Collateral:

All designs, sketches, concepts and presentations remain the exclusive property of Big Ditch, and ownership does not pass at any point to any person or entity. All photographs, videos or any digital representations taken on-site at any time, whether it be during a quoting phase, site inspection or during construction remain the copyright property of Big Ditch, and ownership does not pass at any stage or point to any other person or entity. Such design collateral shall be used by Big Ditch at Big Ditch’s sole discretion for promotional activity, whether that be for the purposes of advertising, promotional activities, award presentation or representation, and may be published on any or all social media networks or video hosting platform at Big Ditch’s sole discretion for the purposes of the promotion of the Big Ditch business and remain the exclusive property of Big Ditch at all times without reservation in perpetuity

Personal Property Securities Act (Cth) 2009 (“PPSA”):

The Customer grants to Big Ditch (under clause 6.1) a “Financing statement”, “financing change statement”, “security interest”, “purchase money security interest”, “attached”, “attachment”, “perfected”, “
accession
”, “commingled” and all related terms have the meaning given to them by the PPSA. (a) In consideration of Big Ditch supplying the Services to the Customer at the request of the Customer, the Customer by signing these Trading Terms:

  • grants to Big Ditch a “Purchase Money Security Interest” (“PMSI”)
  • in all Products supplied by Big Ditch to the Customer from time to time as security for payment of the purchase price of the Products;
  • grants to Big Ditch a “Security Interest” (“SI”)
  • in all of its present and after-acquired property and in all of its present and future rights in relation to any personal property (as defined in the PPSA) from time to time as security for payment of any amount owed by the Customer to Big Ditch and as security for the performance by the Customer of the obligations set out in these Credit Terms;
  • agrees that any Products or proceeds of sale of the Products coming into existence after the date of these Trading Terms will come into existence subject to the PMSI and SI granted herein and these Trading Terms without the need for any further action or agreement by any party;
  • acknowledges that the Customer has received valuable consideration from Big Ditch and agrees that it is sufficient;
  • agrees that the PMSI and SI has attached to all Products supplied now or in the future by Big Ditch to the Customer and that the attachment of the PMSI has in no way been deferred or postponed.

Big Ditch reserves the right to register a financing statement in the Personal Properties Securities Register to perfect the PMSI and/or SI created under these Trading Terms. The costs of registering a financing statement or a financing change statement can be charged to the Customer by Big Ditch at Big Ditch’s complete discretion, and may, where applicable, be charged to the customer’s credit account with Big Ditch. The Customer must promptly, on request by Big Ditch, execute all documents and do anything else reasonably required by Big Ditch to ensure that the PMSI and SI created under these Trading Terms constitutes a perfected security interest. The Customer must not agree to allow any person to register a financing statement over any of the Products in which Big Ditch has any PMSI and/or SI without the prior written consent of Big Ditch and will immediately notify Big Ditch if the Customer becomes aware of any person or entity taking steps to register a financing statement in relation to any such Products. The Customer must not allow the Products to become accessions or commingled with other goods unless Big Ditch has first perfected any PMSI or SI that Big Ditch has in relation to the Products. If Big Ditch perfects any PMSI and/or SI that Big Ditch has in relation to the Products, the Customer must not do anything that results in Big Ditch having less than the security or priority granted by the PPSA that Big Ditch assumed at the time of perfection, subject only to the rights of a mortgagee pursuant to a registered mortgage. The Customer irrevocably grants to Big Ditch the right to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, if Big Ditch has cause to exercise any of Big Ditch’s rights under Chapter 4 of the PPSA, and the Customer will indemnify Big Ditch for any claims made by any third party as a result of such exercise.
The Customer acknowledges and agrees that:
Nothing in sections 125, 132(3)(d), 142 and 143 of the PPSA will apply to these Trading Terms; The Security Agreement created by these Terms of Sale may only be reinstated on the terms considered appropriate by Big Ditch at its complete discretion. The Customer acknowledges and agrees that to the full extent permitted by law and mentioned below, the following provisions of the PPSA will not apply to the enforcement of any PMSI and SI created under these Trading Terms, and the Customer waives it’s right to:

  • not have goods damaged or be inconvenienced any more than necessarily incidental if Big Ditch removes an accession under s.92 PPSA;
  • to receive notice of any intention to remove an accession under s.95(1)(a);
  • to apply to the Court for an order postponing the removal of the “accession” or to determine the amount payable to Big Ditch for the retention of the accession under s.97 PPSA
  • to receive notice of a decision to enforce the security interest in personal property in the same way as an interest in land which secures the same obligation under s.118(1)(b)(i) PPSA;
  • to receive notice of the enforcement of liquid assets under s.121(4) PPSA
  • to receive notice of any proposal to dispose of collateral under s.130(1)(a) PPSA;
  • to receive a Statement of Account if no disposal under s.132(4) PPSA;
  • to receive notice of any proposal to retain collateral under s.135(1)(a) PPSA; and
  • to receive notice of a verification statement in relation to any registration event (including registration of a financing statement or a financing change statement) relating to the PMSI and SI created under these Trading Terms under s.157 PPSA.

Effect of Other Terms:

These Trading Terms are supplemented by the Trading Terms on Big Ditch’s website at www.Big Ditch.com.au and are in no way affected or amended by any other express or implied terms. No terms of the Customer apply to any agreement between the Customer and Big Ditch.

Expenses:

The Customer must pay to Big Ditch any costs, charges and expenses (including all stamp duty and legal fees and costs and debt recovery expenses on a full indemnity basis as a liquidated debt) incurred by Big Ditch in connection with the entry into these Trading Terms, the exercise or attempted exercise of any power, right or remedy under these Trading Terms and/or the failure of the Customer to comply with these Trading Terms.

Service of Notices and Documents:

All notices or documents required to be given to Big Ditch for the purposes of the PPSA must be given in accordance with the PPSA. Any notices or documents required to be given by Big Ditch to the Customer for the purposes of the PPSA or for any other purposes will be effectively ‘given’, ‘served’ and ‘delivered’ if sent by Big Ditch to the Customer by pre-paid ordinary post to any one of the following addresses:

  • the last address for the Customer known to Big Ditch;
  • if the Customer is a Company, the registered office or principal place of business; or
  • if the Customer trades under a registered business name, any address contained on a current business extract for that business name.

Approvals:

The responsibility for negotiating and applying for any government or council approvals required with regard to any design, work or construction remain with the customer, and Big Ditch takes no responsibility for such approvals, and can not be held responsible in any way for any liability or remediation incurred by the customer caused by not applying for, or receiving any required approvals or authorities required by any government institution. Big Ditch does not attempt to be knowledgeable about the bylaws or approvals required for each and every council or authority in every region in Australia. The person most familiar with each individual council or authorities requirements for earthworks is the person who lives within the council locality. It is the customers responsibility to be aware of their harvestable rainfall rights allocations as they apply to their own property, and Big Ditch takes no responsibility for understand or researching such rights, and expects that whatever work that the customer orders is within those limits as they apply to their own property 

Transactions:

The Customer will be liable for all transactions and expenses involving the Customer’s credit account including any fraudulent use of the account by the Customer or any person authorised by the Customer to use the account or the Customer’s employees, agents or contractors. The Customer will also be liable for any fraudulent use of the Customer’s credit account which is directly or indirectly caused or contributed to by the Customer’s negligence.

Application of Moneys Received:

If Big Ditch receives or recovers money in respect of a debt of the Customer, Big Ditch may use the money to pay off whichever debt or part of a debt Big Ditch chooses and is not compelled to apply the money as directed by the Customer or any other person.

Indemnity:

The Customer will indemnify Big Ditch in relation to any direct or indirect loss, liability or damage suffered by Big Ditch or any other person as a result of the Customer’s negligence or breach of these Trading Terms.


Trusts:
These Trading Terms bind the Customer both personally and as trustee of any trusts of which the Customer is trustee.


Joint and Several:
If the Customer consists of more than one person, the obligations of each person are joint and several.

Severance:
Each clause, sub-clause and part of these Trading Terms is separate and independent. If any clause or sub-clause or part is found to be invalid or ineffective, the other clauses or sub-clauses or parts will not be adversely affected.

Waiver:
Any waiver by Big Ditch must be in writing signed by Big Ditch. In the event that Big Ditch elects not to exercise any of Big Ditch’s rights arising in connection with these Trading Terms, Big Ditch’s election will not constitute a waiver of any rights relating to any other breach of these Trading Terms.

Amendments:
These Trading Terms may only be amended with Big Ditch’s express written agreement.

Assignment:
The Customer may not assign any agreement under these Trading Terms without Big Ditch’s prior written consent.

Engagement:

Any instructions received by Big Ditch from the Customer for the Works and/or the Customer’s acceptance of Equipment supplied on hire by Big Ditch and/or Products or Services supplied by Big Ditch shall constitute acceptance of these Trading Terms (“Engagement”). Where more than one Customer has entered into this agreement, they shall be jointly and severally liable under these Trading Terms. Upon Engagement, these Trading Terms are irrevocable and can only be amended with the written consent of Big Ditch.

Supply of Equipment:

Equipment is supplied by Big Ditch based only on these Trading Terms to the exclusion of anything to the contrary in the terms of the Customer’s order, notwithstanding that any such order is placed on terms that purport to override these Trading Terms. Subject to these Trading Terms, Big Ditch shall supply all consumables necessary for the operation of the Equipment, the Equipment itself. Big Ditch is responsible for the repair and maintenance of the Equipment, and the Customer is not authorised to order or carry out any repair on the Equipment without the prior written consent of Big Ditch.

Special Conditions:

Big Ditch’s Special Conditions as annexed to any Quotation from Big Ditch from time to time, shall form part of and are intended to be read in conjunction with these Trading Terms.

Price:

Unless otherwise confirmed in writing, the Price shall be in accordance with Big Ditch’s current pricing model, as amended from time to time. In the alternative to 29(a) above, at Big Ditch’s sole discretion, the Price shall be either:

  • As indicated on invoices provided by Big Ditch to the Customer in respect of services supplied or
  • As indicated on the Job Docket(s) provided by Big Ditch to the Customer from time to time; or
  • Big Ditch’s quoted price (subject to these Trading Terms) which shall be binding on Big Ditch provided that the Customer accepts the said quote in writing within thirty (30) days of issue;
  • Big Ditch reserves the right to change the Price in the event of any variation to Big Ditch’s quotation;
  • With regard to hourly engagement of services, charges will be tracked using the Big Ditch Earthmoving Docket Book which is to be filled out by Big Ditch’s operator;
  • At Big Ditch’s sole discretion, a bond may be required which shall be refunded upon project completion
  • At Big Ditch’s sole discretion, a deposit may be required, which amount will be non-refundable.

Any variation from the Works in the Quotation including (but not limited to) any variation as a result of additional works required due to hidden, unidentifiable and/or unforseen difficulties (such as concealed asbestos materials, hard rock barriers, iron reinforcing rods in concrete, sub-surface flooding or bogging dangers or events, or asbestos under slabs) will be charged for on the basis of Big Ditch’s extra costs, and added to the invoice. Payment for all variations must be made in accordance with the ordinary terms of payment set out in these Trading Terms. Big Ditch may submit invoices for Works from time to time at Big Ditch’s absolute discretion. The value of the Works shall include the reasonable value of variations and the value of materials delivered to the site; Big Ditch reserves the right to charge the Customer a 50% surcharge on any costs incurred by Big Ditch including, but not limited to consumables, equipment hire, dumping fees or other costs associated with the supply of Works and/or Equipment without set off or deduction for any reason. Big Ditch may, at its absolute discretion, terminate the Works an/or provide an amended Price for the works to the Customer prior to Works commencing or continuing. Time for payment for the Products and/or Services shall be of the essence and will be stated on the invoice, or any other order forms supplied by Big Ditch. If no time is stated then payment shall be on delivery of the Products and/or Services or, at Big Ditch’s sole discretion:

  • for approved clients, payment. within thirty (30) days of the end of the month in which the invoice is generated; or

Otherwise, 2 days prior to completion of earthworks;

  • payment will be made by cash on delivery, or by credit card (subject to these Trading Terms), or by direct credit, or by any other method as agreed to between the Customer and Big Ditch.
  • the Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by Big Ditch.
  • If required due to unsuitable sub-stratum conditions – the costs of bentonite, freight of bentonite, water cartage and hire of extra machines is at the customers expense, and is not covered in any quote or invoice – unless specifically noted


Project Period:

The project period shall be either on a daily or hourly rate (as determined by Big Ditch) for the entire period unless otherwise agreed in writing in Big Ditch’s Special Conditions attached to the Quotation. Hourly charges shall commence from the time the Equipment is floated/dropped to the customer’s nominated site, and will continue until the removal of the Equipment from the customers premises, and/or until the expiry of the Minimum Project Period, whichever last occurs.

Title:

The Equipment is and will at all times remain the absolute property of Big Ditch. Nothing in the Engagement entitles the Customer to retain or hold Equipment, or creates any proprietary interest in Equipment in favour of the Customer. The Customer irrevocably grants to Big Ditch and/or any Agent or Subcontractor the right to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, to retrieve or recover possession of the Equipment at any time. The Customer is not authorised to create a lien over the Equipment for any reason whatsoever.

Access:

If requested by Big Ditch, prior to the Works, the Customer: shall permit Big Ditch (or its agent) to attend at the Premises to determine the condition and suitability of the Premises for the requested works; must obtain the necessary permits and/or plans for the completion of the requested works and pay any fee(s) payable to any local government or other authority required for the performance of the requested works; must clearly mark the location of and identify all services above and below ground at the Premises including, but not limited to any drains, pipes, sewers, mains, telephone and/or data cables.

Delivery of Equipment and/or Services:

At Big Ditch’s sole discretion, delivery of services shall take place when the Customer pays the required deposit – which shall be 50% of total estimate A minimum of twenty-four (24) hour’s notice must be given for standby. In the event of any standby, Big Ditch may, at its absolute discretion, charge fees in respect of the standby in an amount to be determined by Big Ditch which is not more than the equivalent to the hire charges which Big Ditch could have received but for the standby. Big Ditch reserves the right to amend the delivery date and the completion date due to circumstances beyond its control (including, but not limited to) breakdowns, inclement weather, staffing issues or any other like matters The Customer shall make all arrangements necessary to take delivery of the Equipment whenever the Equipment is tendered for delivery. In the event that the Customer is not able to take delivery of the Equipment as arranged, Big Ditch will be entitled to charge a reasonable fee for re-delivery; Delivery of the Equipment to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of these Trading Terms; The Customer shall be responsible for free access by Big Ditch to the site on which the Equipment is located and/or Products and/or Services are to be provided. If there are any delays due to free access not being available, then the Customer shall be responsible and shall reimburse Big Ditch for all lost hire fees associated with the worksite not being available. The Customer shall also be responsible for all other expenses and costs incurred by Big Ditch due to delays in access to the worksite and/or provision of the Products and/or Services.  Any failure or delay in delivering the Equipment shall not entitle either party to treat the Engagement as repudiated. Big Ditch shall not be liable for any loss or damage whatsoever resulting from or related to a failure or delay by Big Ditch to deliver the Equipment and/or Products and/or Services (or any of them) promptly, or at all, where due to circumstances beyond the control of Big Ditch.

Duration of Works:

During the period in which the Works are to be completed, the Customer shall:

  • immediately notify Big Ditch should any competent authority require the suspension or cessation of the work;
  • immediately notify Big Ditch should it become aware of any fact, matter or thing that might reasonably endanger the performance of the work;
  • allow Big Ditch and/or any Agent or Subcontractor to store the Equipment at the Premises;
  • take all reasonable precautions to keep all persons, including the Customer, its employees, agents and invitees, away from the Equipment while the Equipment is stored, and at a safe distance from the Equipment while it is in operation. Without limitation to this, the Customer shall take all reasonable precautions to prevent bodily injury or damage to property and to comply with all statutory obligations and by-laws and regulations imposed by any public authority for the safety of persons and property in relation to the Works;
  • comply with all reasonable safety requests of Big Ditch, and shall not at any time (and will ensure that no person having access to the Premises does not), operate, occupy or attempt to operate or occupy the Equipment.


Risk:

All risk for the Equipment passes to the Customer on Delivery of Equipment to worksite. The Customer accepts full responsibility for the safekeeping of the Equipment and indemnifies Big Ditch for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing, whether or not such loss, theft or damage is attributable to any negligence, failure or omission of the client. If the Equipment is lost, stolen damaged or destroyed whilst on the customers jobsite, (including, for the avoidance of doubt its servants, agents, employees or invitees), including through failure to comply with these Trading Terms, the Customer shall make good that loss or damage at its expense immediately upon demand by Big Ditch; The Customer accepts full responsibility for and shall keep Big Ditch indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Equipment at the customers direction during the project period. The Customer agrees and acknowledges that it shall be solely responsible to remove from the site of the Works any materials, equipment or other items that it wishes to retain for its own purposes, or that it wishes to ensure are not damaged during the course of the Works.

Suspension by Big Ditch and/or Agent or Subcontractor:

Big Ditch and/or Big Ditch’s Agent or Subcontractor in its discretion may suspend performance of the Works at any time if in its reasonable opinion the conditions at the Premises are such that it would be unsafe to any person or detrimental to the Equipment for the operation of the Equipment. In the event of Suspension Big Ditch may, at its absolute discretion, and without incurring any liability to the Customer, cease or suspend supply of Works, Products and Services to the Customer or amend these Trading Terms and/or the Quotation setting out the Works.

Termination of Engagement:

Big Ditch may, in its absolute discretion, terminate the Engagement at any time with immediate effect if the performance or completion of the Works would breach any law, regulation or directive of any competent authority by which Big Ditch and/or its Agent or Subcontractor is bound, or if the Customer:

  • hinders or impedes the performance of the Works;
  • fails to comply with an essential Term of these Trading Terms;
  • commits an Event of Default

If the Engagement is terminated for any reason: the Customer must immediately pay any outstanding Price for Works completed. In the event that the Customer terminates the agreement, the date upon which the Customer advises of the termination shall in all cases be treated as a full days work.

Warranties:

Other than as set out in these Trading Terms (with the exception of the consumer guarantees provided by the ACL) all conditions, warranties and obligations, whether implied or imposed by statute or otherwise, in respect of the provision of any services provided by the Contractor are excluded. No warranty is provided by Big Ditch in respect of the condition of the Equipment or its fitness for any particular purpose. The Customer shall indemnify and hold harmless Big Ditch in respect of all claims arising out of the use of the Equipment at the customers direction on the customers worksite.

Liability for Works:

Subject to any liability under the ACL which cannot be excluded, Big Ditch does not accept Liability for any personal injury, death, direct loss, indirect loss, Consequential Loss or damage, however caused which the Customer may directly or indirectly suffer in connection with the engagement of Big Ditch undertaking the agreed work For the avoidance of doubt, under no circumstances shall Big Ditch’s liability exceed the Price. If liability under the ACL cannot be excluded but can be limited in the case of services supplied by the Subcontractor that are NOT acquired for personal, domestic or household use or consumption, any personal injury, death, direct loss, indirect loss, Consequential Loss or other damage, however caused which the Customer may incur or suffer in connection with the services is limited to (at the election of Big Ditch) one or more of the following:

  • provision of the services again; or
  • payment of the cost of having the services provided again


Force Majeure:

Big Ditch shall not be obliged to complete or continue the performance of the Works where and to the extent that such performance is prevented or interrupted or delayed by reason of any requirement of any governmental authority or any war, public disorder, civil commotion or disturbance, acts of enemies, strike, lockout, fire, act of terror, act of God, accident or any other cause beyond the control of Big Ditch (“Force Majeure Event”). Where Big Ditch fails or is delayed in the performance of the Works by a Force Majeure Event, other than any cause of action that cannot be excluded under the ACL or otherwise at law the Customer shall have no cause of action against Big Ditch for a breach of any Term or otherwise. If Big Ditch is unable to complete the Works as a consequence of a Force Majeure Event, Big Ditch may, subject to its obligations under the ACL (if any) and otherwise at law, terminate the Engagement.

Ongoing indemnity:

Each indemnity of the Customer given herein is a liability of the Customer separate and independent of any other liability the Customer under these Terms, and survives and continues after performance of the Works and in the event of termination of the Engagement, that termination.

Defects:

The Customer shall inspect the Products and/or Services on delivery and shall within twenty four (24) hours notify Big Ditch of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Big Ditch an opportunity to inspect the project within a reasonable time following delivery if the Customer believes the Products and or Services are defective in any way. If the Customer fails to comply with the Trading Terms, the Products and/or Services are deemed to be free from any defect or damage. For defective Products and/or Services, which Big Ditch has agreed in writing that the Customer is entitled to reject, Big Ditch’s liability is limited to either repairing or replacing the Product and/or Services, except where the Customer is a consumer within the meaning of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion, either a refund of the price of the Products and/or Services, the repair or the replacement of the products and/or services. 

Access:

Prior to the commencement of the Works, the Customer:

  • shall permit Big Ditch and/or any agent or subcontractor to attend at the site to determine the condition and suitability of the site and/or the Equipment for the performance of the Works;
  • must obtain the necessary permits and/or plans for the completion of the Works and pay any fee(s) payable to any local government or other authority required for the performance of the Works;
  • must clearly mark the location of and identify all services above and below ground at the site including, but not limited to any electrical services, gas services, drains, pipes, sewers, mains, pumps, irrigation, telephone and/or data cables and/or any other services which may be on site.

Whilst Big Ditch will take all care to avoid damage to any services on the site, the Customer agrees to indemnify Big Ditch 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 in accordance with these Trading Terms.

Customer’s Responsibilities:

Unless otherwise agreed in Big Ditch’s Special Conditions attached to the Quotation, the Customer shall:

  • The Customer is not absolved from the requirements to safeguard the Equipment when located at the jobsite;
  • Comply with all occupational health and safety laws relating to the equipment and its operation;
  • Not use or carry any illegal, prohibited or dangerous substances in or on the Equipment;
  • Ensure the required Equipment servicing is completed in accordance with Big Ditch’s instructions, The daily servicing shall be at the Customer’s expense and shall include:
  • Greasing, oiling and lubrication, including all adjustments of bolts, nuts, hoses etc; and
  • Replacement of filters, hoses etc as required
  • Daily and weekly service as specified in Big Ditch’s Maintenance Schedule; and
  • Cleaning of equipment on completion of the hire.
  • These tasks shall all be done at the customers cost, and these tasks will be detailed on the jobsheet


Customer’s Obligations:

Unless stated otherwise in Big Ditch’s Special Conditions attached to the Quotation, immediately on request by Big Ditch, the Customer must pay:

  • All costs incurred in cleaning the Equipment;
  • All costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to 10% of the new list price of the Equipment;
  • The cost of repairing any damage to the Equipment caused by vandalism, or (in Big Ditch’s reasonable opinion) in any way whatsoever
  • The Customer shall be responsible for the provision of transportation, storage and safe keeping of all fuels, oils and greases provided for use in the Equipment;
  • The cost of repairing or replacement of any GET required during or at the end of the project period (GET includes items such as cutting edges, bucket teeth, wear plates, ripper boots/shin guards, hammer moils/chisels, hammer bushes, scraper flights, header teeth/picks, compactor feet and labour to fit);

 
Loss of Equipment:

If the Equipment is lost, damaged or destroyed due to any fault of the Customer, its servants, agents, employees or invitees, including through failure to comply with these Trading Terms, the Customer shall make good that loss or damage at its expense immediately upon demand by Big Ditch.

Cancellation:

Big Ditch may cancel these Trading Terms or cancel delivery of the project at any time. Big Ditch shall not be liable for any loss or damage whatsoever arising from or in connection with such cancellation. Hire costs during transportation on or after the day of termination will not be paid by the Customer. In the event that the Customer cancels delivery of the project without providing adequate notice or before delivery of the project, the Customer shall be liable for any loss incurred by Big Ditch (including but not limited to any loss of profits) as a result of the cancellation.

Replacement of Subcontractor:

Big Ditch may replace any Subcontractor at any time where Big Ditch reasonably believes the Subcontractor is unable for any reason to complete the Work. If Big Ditch replaces the Subcontractor, the Customer will sign all paperwork as reasonably required by Big Ditch with respect to completion of the Work by that replacement.

Ownership:

The ownership of any construction remains with Big Ditch and only transfers to the client once all monies owed are transferred and received by Big Ditch. Big Ditch reserves the right to deconstruct any construction it has completed if monies owed are not paid in full, and the customer indemnifies Big Ditch against any legal or criminal liability or action due to the deconstruction of any element of any construction completed by Big Ditch that remains unpaid for in full. If any construction project remains unpaid for, all guarantees and indemnities are revoked on the final demand for payment by Big Ditch

Final trim:

Final trim will be completed to the level allowed by the condition of the material. If the material is wet and will not smooth, than Big Ditch reserves the right to leave the final trim is the best condition it can, without incurring any further costs. Should the client require Big Ditch to return to complete final trim when the material has dried, then this will be done at the appropriate float/transport cost, equipment hire and daily rate. Returning to complete final trim that was not completed due to material not suitable for final trim is not a free service, and the material not being suitable is not the fault of Big Ditch under any circumstances

Discounts or non-charges

Should any invoice remain unpaid upon final demand and prior to Big Ditch leaving the site, any discounts or non-charges shall be reapplied to any outstanding invoice and the full amount shall be deemed to be owing by the customer, and the customer agrees to these additions to any invoice outstanding or remaining unpaid

Review of Trading Terms:

Big Ditch reserves the right to review these Trading Terms at any time. If, following any such review, there is to be any change to these Trading Terms, that change will take effect from the date on which Big Ditch notifies the Customer of such Change. The Trading Terms as amended from time to time will be posted on Big Ditch’s website at: www.bigditch.com.au

Definitions & interpretation:
In these Trading Terms unless the context requires otherwise:

  • “ACL”
    – Means the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth) as amended from time to time
  • “Consequential Loss”
    – Means without limitation: damage to any third party’s property; loss of profits; loss of revenue; lost production; loss of business; loss of the benefit of any contract or other agreement or arrangement; damage to reputation; and legal costs
  • “Credit-related information”
    – Includes “credit information”, “credit reporting information”, “credit eligibility information” and/or “regulated information” (as the context permits) within the meaning of those terms in the Privacy Act
  • “Credit Terms”
    – Means the General Credit Terms attached to any Application for Commercial Trading Account
  • “Customer”
    – Means the customer whose details appear in the Application for a Commercial Trading Account and the Customer’s subsidiaries, holding companies and other related entities
  • “Engagement”
    – Any instructions received by Big Ditch from the Customer for the Works and/or the Customer’s acceptance of Equipment supplied on hire by Big Ditch and/or Products or Services supplied by Big Ditch shall constitute acceptance of these Trading Terms
  • “Event of Default” –Means any of the following events:
    – The Customer fails to pay for any Products and Services and/or the Customer breaches these Trading Terms; – The Customer ceases or threatens to cease carrying on business; – If the Customer is a company: an order is made or a resolution is effectively passed for winding up of the Customer, or the Customer resolves to appoint a receiver or provisional liquidator or an administrator, or a receiver or provisional liquidator or an administrator is appointed, or the Customer goes into liquidation or makes an assignment or an arrangement or composition with the Customer’s creditor, or the Customer stops payment or is deemed unable to pay the Customer’s debts within the meaning of the Corporations Act 2001 (Cth); if the Customer is a natural person: an order is made for the Customer’s bankruptcy, or the Customer dies or becomes mentally or physically incapable of managing his or her affairs, or an order is applied for or made to place the assets and affairs of the Customer under administration
  • “Equipment”
    – Means any equipment or other tools, materials, resources or other items necessary to carry out the Works, including but not limited to earthmoving equipment and other heavy equipment, whether supplied by Big Ditch, a Subcontractor or any other person.
  • “Job Docket”
    – Means each and any job docket and/or tax invoice issued by Big Ditch with respect of the Work from time to time
  • “Minimum Hire Period”
    – Means the minimum hire period described on the invoices, quotation, authority to hire or any other form provided by Big Ditch to the Customer
  • “Officer”
    – Means each director, secretary, credit manager and authorised representative of Big Ditch
  • “Premises”
    – Means the site or location at which the Work is to be provided, as set out in the Job Docket
  • “Privacy Act”
    – Means the Privacy Act 1988 (Cth)as amended from time to time
  • “Products”
    – Includes all Products and Services supplied by Big Ditch to the Customer including, but not limited to the Works, and the value attached to or the proceeds related to the provision of any Services, including, but not limited to products and services supplied by Big Ditch’s Subcontractors and/or agents, and the works described in any Job Docket provided by or on behalf of Big Ditch to the Customer
  • “Services”
    – Includes all Services supplied by Big Ditch to the Customer including, but not limited to the Works, Wet Hire, Dry Hire, earthmoving and/or heavy machinery services, or services associated therewith
  • “Subcontractor”
    – Means each and any subcontractor engaged by Big Ditch for the completion of the Work at the discretion of Big Ditch from time to time
  • “Trading Terms”
    – Means all the provisions of the Application for Commercial Trading Account (including the General Credit Terms)plus
    Big Ditch’s Terms and Conditions of Trade (as they appear herein) and/or any other conditions or facility agreement or member agreement as may be amended by Big Ditch from time to time
  • “Big Ditch”
    – Means Big Ditch Digging Company Pty Ltd and any related body corporate, any subsidiary or associated trustee and as trustee of any trust from time to time, and any of its successors and assigns or any person acting on behalf of and with the authority of Big Ditch Digging Company Pty Ltd including any Agent or Subcontractor thereof 
  • “Works”
    – Means all earthmoving and heavy machinery services provided by Big Ditch to the Customer (and/or at the request of the Customer) including (but not limited to) the provision of Products and/or Services, the hire of Equipment, whether wet or dry hire including (but not limited to) the works undertaken in accordance with that hire, services provided in association with the hire and/or any items listed on the quotation and/or invoice and/or Job Docket arising out of or in connection to any supply of any kind by Big Ditch to the Customer and/or at the request of the Customer.


Interpretation:
In these Trading Terms, unless the context requires otherwise, all references to a party include the party’s successors and permitted assigns. No provision of these Trading Terms will be construed adversely against a party solely because the party was responsible for drafting the provision. All our projects, invoice and quotes, without exception, are subject to the terms of trade outlined above and they are binding on all customers of Big Ditch Digging Company Pty Ltd