Terms & Conditions

Evolution Construction and Landscapes Pty Ltd

as trustee for the Suggitt Family Trust

ABN: 42 722 094 391

(referred to in these terms as “Evolution”)

Terms of trade

Terms of trade

1 Definitions and interpretation

1.1 Definitions

Additional Charge means fees or charges for additional work performed by Evolution as a result of any of the matters set out in clause 8 calculated in accordance with Evolution's then current prices, and/or expenses incurred by Evolution.

Customer means the person or entity identified on a Quote or Order as the customer or client and includes the Customer's agents and permitted assigns.

Goods means any goods supplied by Evolution including materials supplied in the course of providing Services.

Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.

Loss includes, but is not limited to, costs (including all legal costs paid or payable by Evolution on a full indemnity basis), expenses, lost profits, award of damages, personal injury and property damage.

Order means a purchase order for Goods or Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties.

PPS Law means:

(a) 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); and

(b) any amendment made at any time to any other legislation as a consequence of a PPS Law.

Quote means a written description of the Goods or Services to be provided, an estimate of Evolution's charges for the performance of the required work and any estimate of the time frame for the performance of the work.

Services means the services to be provided by Evolution to the Customer in accordance with a Quote and these terms of trade.

1.2 Interpretation

In these terms of trade, unless the context otherwise requires:

(a) a reference to a party to these terms of trade or any other document or arrangement includes that party's executors, administrators, successors, agents and permitted assigns; and

(b) headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade.

2 General

(a) These terms of trade apply to all transactions between the Customer and Evolution relating to the provision of Goods and Services. This includes all quotations, contracts and variations. These terms of trade prevail over terms of trade contained in any document of the Customer or elsewhere.

(b) 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.

3 Quotes

(a) Evolution may provide the Customer with a Quote. Any Quote issued by Evolution is valid for:

(i) the duration specified on the Quote; or

(ii) if no duration is specified on the Quote, 30 days from the date of issue.

(b) Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer to Evolution of any necessary material, instructions and access to premises.

(d) Evolution is not obliged to commence work until the Quote has been accepted by the Customer (referred to in these terms as an Order) and any deposit specified in the Quote or otherwise required by clause 7 has been paid by the Customer.

(e) Acceptance of a Quote occurs by the Customer either:

(i) signing and returning a copy of these terms that were attached to the Quote;

(ii) providing a written communication to Evolution indicating that the terms of the Quote are satisfactory to the Customer and/or that the Customer wishes for Evolution to proceed with the supply of Goods or Services specified in the Quote;

(iii) providing verbal communication of the kind set out at clause (i), if such communication is considered by Evolution in its absolute discretion to be satisfactory acceptance of the Quote in the circumstances and Evolution subsequently commences the supply of Goods or Services specified in the Quote.

(f) Evolution may amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. Evolution will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these terms of trade.

(g) An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon Evolution.

4 Supply of Goods and Services

(a) Placement of an Order by the Customer signifies acceptance by the Customer of these terms of trade and the most recent Quote provided by Evolution relating to that Order.

(b) Evolution may in its absolute discretion refuse to provide Goods or Services where:

(i) goods are unavailable for any reason whatsoever;

(ii) payment for Goods or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of Evolution, associated with the Customer under the same or another supply contract, has not been received by Evolution;

(iii) the Customer has not obtained the necessary building and/or planning permits and/or any other necessary approvals required by council for the provision of the Services in accordance with clause 7.

(c) An Order cannot be cancelled without the prior written consent of Evolution. Where an Order is cancelled, the Customer indemnifies Evolution against any Losses incurred by Evolution as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

5 Warranties

(a) Evolution warrants that:

(i) Goods supplied to Customer will be of acceptable quality, within the meaning of section 54 of the Australian Consumer Law;

(ii) Services supplied to the Customer will be performed with due/reasonable care and skill to the standard generally accepted within the industry;

(iii) Goods and Services supplied to Customer will be fit for any particular purpose for which the Goods or Services are being acquired by the Customer, provided that the purpose is made known by the Customer to Evolution prior to supply.

6 Variations

(a) The Customer may request that its Order be varied by providing a request in writing to Evolution. A request for a variation must be agreed to in writing by Evolution in order to have effect.

(b) If the Customer wishes to vary its requirements after a Quote has been prepared by Evolution or after the placement of an Order, Evolution reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by Evolution in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.

(c) Any previously agreed time for the provision of the Goods or Services will be automatically extended to account for the delay caused by the variation.

7 Building and planning permits

(a) The Customer warrants that it will obtain any necessary building and/or planning permits and/or any other necessary approval from council required for the Services.

(b) The Customer must take all necessary and reasonable steps to obtain any building and/or planning permits and/or any other necessary approvals from council necessary to commence the provision of the Goods and/or Services.

(c) On request by Evolution, the Customer must provide a copy of any building and/or planning permits and/or any other necessary approvals from council to Evolution prior to the commencement of the provision of the Goods and/or Services.

8 Invoicing and payment

(a) Unless otherwise specified in the Quote, Evolution will issue invoices to the Customer as follows:

(i) prior to commencing the provision of the Goods or Services, for an amount equal to 30% of the Quote and any Additional Charges;

(ii) after the commencement of the provision of the Goods or Service, but before completion, an amount equal to 50% of the Quote and any Additional Charges; and

(iii) upon completion of the provision of the Goods or Services or any time thereafter, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced.

(b) The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as the amount for the Goods or Services (or both) as set out in the Quote and any Additional Charges.

(i) by the time specified on the invoice; or

(ii) if no time is specified on the invoice, within 7 days of a valid tax invoice being issued to the Customer.

(d) Evolution may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to Evolution.

(e) The Customer is not entitled to set-off, deduct, withhold or otherwise retain any money owing to Evolution including in circumstances where:

(i) there is a default or alleged default by Evolution relating to the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard, delay in the provision of Goods or Services or any other alleged breach of these terms of trade; and/or;

(ii) the Customer asserts any other claim against the Evolution, including a claim arising under statute or equity.

Nothing in this clause affects the Customer's rights for any alleged failure of a guarantee under the Australian Consumer Law.

(f) If any invoice is due but unpaid:

(i) Evolution may withhold the provision of any further Goods or Services until overdue amounts are paid in full;

(ii) Interest will accrue on the overdue amounts at the rate of 10% per year, calculated daily and payable on demand;

(g) If any invoice remains unpaid for a period of more than 30 days after its due date, Evolution may in its complete discretion cause the amount owing to be listed with a credit reporting or default listing agency or website.

(h) All costs and expenses associated with collecting overdue amounts, including (but not limited to) all legal fees and internal costs and expenses of Evolution, are to be paid by the Customer on an indemnity basis as a debt due and payable under these terms of trade.

(i) The Customer and Evolution 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.

(j) All payments to Evolution by the Customer must be made to [Evolution Construction and Landscapes P ATF Suggitt Family Trust 012349 196865718]. Evolution’s bank details will not change. If the Customer receives any communication purporting to be from Evolution notifying of any change in bank details, or any invoice purporting to be from Evolution with bank details that are different to a previous invoice, the Customer should contact Evolution directly to confirm the bank details for payment of invoices. Any payments that are made to an entity other than Evolution in relation to Goods or Services supplied by Evolution, including as a result of fraudulent conduct by an entity other than Evolution, will not be treated as payment for the Goods or Services.

9 Additional Charges

(a) Evolution may require the Customer to pay Additional Charges in respect of Costs incurred by Evolution as a result of reliance on inadequate or incorrect information, material or access to premises provided by the Customer or information, material or access supplied later than required by Evolution in order for it to provide the Goods or Services within the specified time frame (if any).

(b) The imposition of Additional Charges may also occur as a result of:

(i) cancellation by the Customer of an Order where cancellation results in Loss to Evolution;

(ii) storage costs for Goods not collected from Evolution within 2 weeks of the date on which the Goods are manufactured, fabricated, created or formed;

(iii) photocopying, courier, packing or handling charges not included in the Quote;

(iv) factors relating to the site of the Services which were unknown at the time of the Quote;

(v) Government or council taxes or charges not included in the Quote; or

(vi) additional work required by the Customer or any other occurrence which causes Evolution to incur costs in respect of the Customer's Order additional to the quoted cost.

10 Acceptance of Goods

If the Customer fails to advise Evolution in writing of any fault in Goods or failure of Goods to accord with the Customer's Order within 7 days of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer's Order. Nothing in this clause affects the Customer's rights for any alleged failure of a guarantee under the Australian Consumer Law.

11 Title and risk

(a) Risk in Goods passes to the Customer immediately upon delivery.

(b) Property and title in Goods supplied to the Customer under these terms of trade does not pass to the Customer until all money (including money owing in respect of other transactions between Evolution and the Customer) due and payable to Evolution by the Customer have been fully paid.

(i) is a bailee of the Goods until property in them passes to the Customer;

(ii) irrevocably appoints Evolution to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of Evolution with respect to the Goods under applicable law;

(iii) must be able upon demand by Evolution to separate and identify as belonging to Evolution Goods supplied by Evolution from other goods which are held by the Customer;

(iv) must not allow any person to have or acquire any security interest in the Goods;

(v) agrees that Evolution may repossess the Goods if payment is not made within 14 days (or such longer time as Evolution may, in its complete discretion, approve in writing) of the supply of the Goods; and

(vi) the Customer grants an irrevocable licence to Evolution or its agent to enter the Customer's premises in order to recover possession of Goods pursuant to this clause. The Customer indemnifies Evolution for any damage to property or personal injury which occurs as a result of Evolution entering the Customer's premises.

(d) Where Goods are supplied by Evolution to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by Evolution in respect of those Goods, and:

(i) the Customer makes a new object from the Goods, whether finished or not;

(ii) the Customer mixes the Goods with other goods; or

(iii) the Goods become part of other goods (New Goods),

the Customer agrees with Evolution that the ownership of the New Goods immediately passes to Evolution. The Customer will hold the New Goods on trust for Evolution until payment of all sums owing to Evolution whether under these terms of trade or any other contract have been made. Evolution may require the Customer to store the New Goods in a manner that clearly shows the ownership of Evolution.

(e) For the avoidance of doubt, under clause 11(d), the ownership of the New Goods passes to Evolution at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.

(f) Despite clause 11(c), the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that:

(i) where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale, less any GST, on trust for Evolution in a separate account, until all amounts owned by the Customer to Evolution have been paid; or

(ii) where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to Evolution upon Evolution giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints Evolution as its attorney.

(g) Where Goods are supplied by Evolution to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by Evolution in respect of those Goods, the Customer acknowledges that Evolution has a right to register and perfect a personal property security interest.

(h) If:

(i) a PPS Law applies or commences to apply to these terms of trade or any transaction contemplated by them, or Evolution determines (based on legal advice) that this is the case; and

(ii) in Evolution's opinion, the PPS Law:

(A) does or will adversely affect Evolution's security position or obligations; or

(B) enables or would enable Evolution's security position to be improved without adversely affecting the Customer,

Evolution may give notice to the Customer requiring the Customer to do anything (including amending these terms of trade or execute any new Terms and Conditions) that in Evolution's opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in clause 11(h)(ii)(A) or improve the security position as contemplated in clause 11(h)(ii)(B). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this clause, in Evolution's opinion Evolution's security position or obligations under or in connection with these terms of trade have been or will be materially adversely affected, Evolution may by further notice to the Customer cancel these terms of trade. If this occurs, the Customer must pay to Evolution any money owed to Evolution by the Customer immediately.

12 Intellectual Property Rights

(a) The Customer warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or Services or has a licence to authorise Evolution to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Customer to Evolution for the purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified Evolution against all Losses incurred by Evolution in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Customer.

(b) Unless specifically agreed in writing between Evolution and the Customer, all Intellectual Property Rights in any works created by Evolution on behalf of the Customer vest in and remain the property of Evolution.

(c) Subject to payment of all invoices due in respect of the Goods or Services, Evolution grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by Evolution in connection with the provision of Goods or Services under these terms of trade for the purposes contemplated by the Order.

13 Agency and assignment

(a) The Customer agrees that Evolution may at any time appoint or engage an agent to perform an obligation of Evolution arising out of or pursuant to these terms of trade.

(b) Evolution 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 Evolution owed to the Customer under these terms of trade.

(c) 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 Evolution.

14 Default by Customer

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

(i) 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 Evolution to do so;

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

(iii) the Customer, 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 Customer 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 Customer's property and undertaking;

(D) any assignment for the benefit of creditors;

(iv) the Customer purports to assign its rights under these terms of trade without Evolution's prior written consent; or

(v) the Customer 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 Evolution, Evolution may:

(i) terminate these terms of trade;

(ii) terminate any or all Orders and credit arrangements (if any) with the Customer;

(iii) refuse to deliver Goods or provide further Services;

(iv) pursuant to clause 11(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or

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

(c) In addition to any action permitted to be taken by Evolution under clause 14(b), on the occurrence of an event of default all invoices will become immediately due and payable.

15 Exclusions and limitation of liability

(a) Evolution’s liability in relation to any breach of:

(i) the warranties referred to in clause 5;

(ii) any other warranties referred to in the Quote; and

(iii) any guarantees arising under the Australian Consumer Law (to extent liability for non-compliance with such guarantees can be limited)

are limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.

(b) To the fullest extent permissible at law:

(i) any warranties or other terms that might otherwise be implied into these terms of trade are excluded; and

(ii) Evolution 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 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.

(c) All information, specifications and samples provided by Evolution 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 Customer's use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.

(d) Any advice, recommendation, information, assistance or service given by Evolution in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. Evolution does not accept any liability or responsibility for any Loss suffered as a result of the Customer's reliance on such advice, recommendation, information, assistance or service.

16 Indemnity

(a) The Customer indemnifies and keeps indemnified Evolution, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against Evolution or, for which Evolution 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.

(b) This includes, but is not limited to, any legal costs incurred by Evolution in relation to meeting any claim or demand or any legal costs for which Evolution is liable in connection with any such claim or demand, on an indemnity basis.

17 Force majeure

(a) If circumstances beyond Evolution's control prevent or hinder its provision of the Goods or Services, Evolution is free from any obligation to provide the Goods or Services while those circumstances continue. Evolution may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.

(b) Circumstances beyond Evolution's control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, pandemics, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

18 Miscellaneous

(a) These terms of trade are governed by the laws of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.

(b) These terms of trade and any Quotes and written variations agreed to in writing by Evolution represent the whole agreement between the parties relating to the subject matter of these terms and supersede all oral and written negotiations and communications by and on behalf of either of the parties.

(c) In entering into these terms of trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by Evolution or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.

(d) 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.

(e) A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.

(f) A notice or other communication required or permitted to be given by one party to another must be in writing to the email address shown on a Quote.