Terms & Conditions
1.1 “Agreement” means this document.
“Service” means the whole of the operations and services undertaken by Power Pumping as specified in the purchase order provided by the client from time to time and including other services where this is applicable.
“Customer” includes the supplier, contracting entity, receiver of the Service, any person owning or entitled to the property at which the Service was delivered, and anyone acting on behalf of such persons.
“Place of Delivery” means the place designated as such on the face of this Agreement.
“Sub-Contractor” means any sub-contractor of Power Pumping and that sub-contractor’s employees or agents.
“Property” means all and any property upon which or to which Power Pumping is required by the Customer to provide the Service, whether real or personal.
2.1 Headings are inserted for ease of reference only and shall be disregarded in the interpretation of this Agreement.
2.2 The parties acknowledge and agree that:-
2.2.1. All the provisions of this agreement are reasonable in all the circumstances and that each provision is and shall be deemed to be severable and independent.
2.2.2. This agreement is subject to all compulsory rules and requirements of law to which Power Pumping is subject to the intent and effect: that if any provision hereof is to any extent repugnant to or inconsistent with any such rules or requirements or if all or any part of any provision is judged invalid or unenforceable, such provision shall to that extent, but no further, be deemed not to form part of these terms and conditions and shall not affect the validity enforceability of the remaining provisions.
2.2.3. Notwithstanding anything herein contained, Power Pumping shall continue to be subject to any condition or warranty implied by the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1989 (Qld), if and to the extent that the said Acts are applicable to this agreement and prevent the exclusion, restriction or modification of any such Condition or warranty.
2.3 This agreement contains the entire understanding of the parties as to its subject matter. There is no other understanding, agreement, warranty or representation whether express or implied in any way defining or extending or otherwise relating to these provisions or binding on the parties with respect to the Service or the matters to which this agreement relates.
2.4 Governing Law
2.4.1 This agreement is governed by and is to be construed in accordance with the laws of the State of Queensland.
2.4.2 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of Queensland and Courts entitled to hear appeals from those Courts.
2.4.3 No action arising out of this agreement may be brought by a party more than one (1) month after the cause of action has arisen except in the case of non-payment where the appropriate statutory limitation to an action for recovery of a simple contractual debt will apply.
2.5 Where discretion is given to Power Pumping by any provision hereof, the exercise of that discretion by Power Pumping shall be absolute and unfettered. Such an exercise of discretion may be unreasonable or arbitrary.
3.1 Power Pumping will accept work only on these conditions.
3.2 Power Pumping undertakes to perform the Service detailed in the Agreement to which these conditions are annexed.
3.3 Power Pumping at its discretion may subcontract on any terms all or any part of its undertaking herein.
4. CUSTOMER’S WARRANTIES ACKNOWLEDGMENTS AND INDEMNITIES
4.1 The Customer warrants that –
4.1.1 the Property is fit for Power Pumping to provide the Service.
4.1.2 the Customer has the authority of all persons owning or interested in the Property upon which the Service is to be performed on their behalf.
4.1.3 the person or persons engaging Power Pumping for the Service is authorized to sign this document for the Customer and by such signature or by the signature of any other person acting for the Customer, the Customer accepts these terms and conditions.
4.2 The Customer acknowledges that:-
4.2.1 no agent or employee of Power Pumping is permitted to alter or vary these conditions.
4.2.2 no representations have been made by any employee or agent of Power Pumping to the Customer.
4.2.3 Power Pumping enters into this Agreement for and on behalf of itself and its servants, agents and subcontractors, all of whom shall be entitled to the benefit of the Agreement and shall be under no liability whatsoever to the Customer or anyone claiming through him in respect of the Service, in addition to or separately from that of Power Pumping under this Agreement.
4.3 The Customer shall indemnify Power Pumping against –
4.3.1 any loss or damage which may be suffered by Power Pumping as a result of any breach by the Customer of the warranties and acknowledgments herein.
4.3.2 any loss or damage to Power Pumping’s equipment which occurs whilst on or working on the Property which occurs due to the nature or condition of the Property. For the purpose of this clause, “loss” expressly includes:-
188.8.131.52. consequential loss; and
184.108.40.206. any fine, levy, charge or other monetary imposition to which Power Pumping may become liable as an incident to the carriage, and resultant from any breach by the Customer of this agreement.
5. CHARGES AND PAYMENT TERMS
5.1 The Customer will pay the current charges of Power Pumping from time to time for the Service that Power Pumping provides to the Customer and the invoices of Power Pumping must be paid by the due date specified in the invoice.
5.2 If the Customer does not pay its account by the due date then:
5.2.1 Power Pumping will charge 2.5% per calendar month (or part thereof) compounding default interest from the date payment was due until the date payment is made, and
5.2.2 Power Pumping will charge an administration fee in an amount equivalent to the greater of $20.00 or 10% of the outstanding amount (up to a maximum of 200.00), and
5.2.3 Power Pumping may suspend all or part of the Service it provides to the Customer pending payment of all outstanding amounts including interest.
5.3 The Customer will be liable for all reasonable collection costs including legal fees incurred by Power Pumping in collecting any monies outstanding.
6. HIMALAYA CLAUSE/SUBCONTRACTING
6.1 Where the Customer is not the owner of some or all of the Property the Customer shall be deemed for all purposes to be the agent of the owner, and any person signing an Agreement on behalf of another warrants that they have full power and authority to bind the other Person in respect of that Agreement.
6.2 The Customer undertakes that no claim or allegation shall be made against any servant, agent or subcontractor of Power Pumping which imposes or attempts to impose upon any of them any liability whatsoever in connection with the Service, whether or not arising out of negligence or a wilful act or omission on the part of any of them, and if any such claim or allegation should nevertheless be made to indemnify Power Pumping against all consequences thereof.
6.3 Every such servant, agent, and subcontractor, shall have the benefit of all provisions herein benefiting Power Pumping as if such provisions were expressly for their benefit.
6.4 The Customer shall save harmless and keep Power Pumping indemnified against all claims or demands whatsoever by whomsoever made in excess of the liability of Power Pumping under these conditions in respect of any loss, damage or injury however caused, whether or not by the negligence of wilful act or omission of Power Pumping, its servants, agents or sub-contractors.
7.1 The Customer authorises any variation from Power Pumping’s usual manner of performance of the Service which may in Power Pumping’s discretion be necessary.
7.2 The Customer shall allow the performance of the Service as soon as Power Pumping is ready to deliver the Service and if the Customer fails to allow performance of the Service, Power Pumping may without notice perform the Service to the best of its ability whilst taking into account the limitations imposed by the Customer’s failure to perform as it is required under this clause. Such performance of the Service shall constitute completion of the required Service and thereupon all liability whatsoever of Power Pumping in respect of the Service shall cease.
8.1 At all times and in all circumstances and for all purposes the Property shall be and remain at the sole risk of the Customer, and Power Pumping shall be under no liability whatsoever for any loss, to property arising from any reason whatsoever, including without limiting the foregoing, any negligence or breach of contract or wilful act or default on the part of Power Pumping, its servants and agents, or otherwise.
8.2 The defences and exclusions of liability provided for in this Clause and throughout this Agreement generally shall apply in any action against Power Pumping for loss or damage to the Property whether the action be founded in contract or in tort or otherwise.
8.3 Power Pumping shall be entitled to the benefit of the exclusion of liability provided for herein even if it is proved that the loss or damage resulted from an act of omission of Power Pumping done with intent to cause damage or recklessly and with knowledge that damage would probably result.
8.4 Nothing whatsoever done or omitted to be done or other conduct by Power Pumping in breach of the contract or otherwise howsoever lawfully or unlawfully, shall under any circumstances constitute a breach going to the root of this Agreement, or a deviation or departure therefrom or repudiation thereof such as to have the effect of disentitling Power Pumping from obtaining the benefit of and enforcing all rights, defences, exceptions, immunities and limitation of liability and other like protections on Power Pumping contained in those conditions and all such rights, defences, exceptions, immunities, limitations of liability and like protections shall continue to have full force and effect in any event whatsoever.
8.5 The liability of Power Pumping to the Customer for the breach by Power Pumping of any condition or warranty is limited at the option of Power Pumping to re-supply of the Service or refund of the price of the Service.
9. FORCE MAJEURE
9.1 Where a party is unable, wholly or in part, by reason of any fact, circumstance, matter or thing beyond the reasonable control of the party affected (“force majeure”), to carry out any obligation under this agreement, and that party:
9.1.1. gives the other party prompt notice of such force majeure with reasonably full particulars thereof, and insofar as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation; and
9.1.2. uses all possible diligence to remove that force majeure as quickly as possible; that obligation is suspended, so far as it is affected by force majeure, during the continuance thereof.
9.2 Any obligation to pay money under this agreement shall not excused by force majeure.
9.3 The requirement that any force majeure shall be removed with all possible diligence shall not require the settlement of strikes, lockouts or other labour disputes, or claims or demands by any government on terms contrary to the wishes of the party affected.
10.1 Power Pumping will not effect any insurance of the Service or the Property for the benefit of the Customer or otherwise, except:
10.1.1. on the prior written instruction of the Customer; and
10.1.2. at the Customer’s sole expense.
10.2 Should the Customer fail to specify the class of any insurance to be effected pursuant to clause 10.1, Power Pumping may effect that class of insurance which Power Pumping in its discretion considers most appropriate to the Service or the Property.