Version Date: July 1, 2016 (01-07-2016)
ecoJarrah ("eco Jarrah") is a business of Industry Group Pty Ltd ("IG") (ACN 158 959 338)
By accepting an estimate or quote or by the outright purchase of "our" products and/or combined services, "you", the customer, understand and accept the following terms and conditions transliterated in this statement; and by doing so "you" also agree "you" are aware of the unpredictable impacts that can be and/or may be caused in the process of or as a result of using our products and/or combined services rendered.
Except with respect to claims arising from individual negligence reported internally, which
remains personal obligation of the individual, subcontractor or principal contractor, other than the correct supply on our behalf, You agree to defend, indemnify and hold harmless
Our company name and directors, officers, and employees with respect to a claim arising from a failure to act, error, or omission in the performance of obligations under this Agreement or any governing law or regulation.
You understand that We cannot detect or anticipate every condition or event that leads to the environmental or structural failure, revegetation or successful remediation or suppression of "nature", "living matter" or "plant life" nor can We warrant against acts of nature, regrowth or continued or improved environmental health, safety or sustained under any or all circumstances. You hereby acknowledge Your understanding that "nature", "living matter" and other "plant life" are living, changing organisms affected by several factors beyond Our control.
We do not warrant the prolonged life or lifespan of alive or deceased "nature", "living matter" and other "plant life" which has been subject to neglect, poor upkeep or low maintenance which may be further affected by Our products or services or the process endured with Our services.
Responsibility held is subject to the particular job and it's requirements. In most cases, responsibility is held by the Contractor providing the works on behalf of "us", or a conjunction of both numerous parties performing services on the "site", depending on circumstances; unless stated otherwise.
We do not take responsibility for damages caused to substandard driveways, kerbing and/or concrete, stone or pavement driveways or surfaces caused by "our" vehicles unless "we" have been advised in writing to avoid these surfaces. Standard practices are taken into consideration.
"We" are not responsible for damage caused to underground property or services unless "we" have been informed of its exact location by the property owner or through the appropriate local authorities.
"We" are not responsible for the maintenance upkeep or damages made to the property owner's equipment or machinery if choosing to involve operations with "our" services, unless stated otherwise.
"We" are not responsible for damages caused in the process of "our" service to trees, plants, shrubs, vines or lawns or living matter similar. Please refer to 'Working With Living Things'.
"We" will not assume liability for any accident, damage or injury that may occur on the ground or on any other object or structure.
Scheduling, and Schedules of Works, is dependent on weather conditions, work safe conditions and workloads on a first-come-first-serve basis unless categorized as 'Priority'.
Majority of works are scheduled for specific days however, on smaller jobs and with "your" permission, "we" may perform the outlined works on an estimated day which "our" workload is considered lesser; in which case "we" may provide the service unannounced.
"We" ensure all working personnel are covered by Worker's Compensation.
"We" ensure appropriate insurance to site and job specifications at all times.
Evidence of insurance(s) can be verified by requesting a copy of "our" Certificate of Currency prior to commencement of works.
OVERDUE OR NON-PAYMENT OF MONIES OWED
Invoices are considered 'overdue' three (3) business days after advised due date. Invoices are considered 'unpaid' or subject to 'non-payment' forty two (42) calendar days after advised due date
Calculation of interest will commence twenty-eight (28) days after the due date provided and terminate upon receival of payment or resolution of dispute.
Interest will compound on a monthly pro-rata basis at the current interest rate of the Reserve Bank of Australia "RBA".
Unpaid invoices exceeding sixty (60) days are released from "our" Administration and provided to the Collections department of "our" holdings Company:
Upon release, all Administration and correspondence is dealt with by the Collections department on behalf of "ecoJarrah Group".
Where a dispute arises, "the customer" should seek to resolve the dispute through open and good faith discussions in the first instance.
Under first instance circumstances, "we" agree to to act reasonably in these discussions.
If a dispute is unable to be resolved through good faith discussions, the dispute can be referred to the dispute resolution process (refer to clause 20) at any time during the term of the Service Agreement regarding any aspect of the Service Agreement.
If "the customer" and "we" agree, both parties can also choose to mediate earlier than provided for under the dispute resolution process.
DISPUTE RESOLUTION PROCESS
The party claiming that the dispute has arisen will give written notice to the other party, describing in full the details of the dispute (the "First Notice").
Within fourteen days of receiving the First Notice, the parties will meet to discuss and try to resolve the dispute.
If the dispute remains unresolved twenty one days after receipt of the First Notice, then either party may give written notice (the "Second Notice") to either party requesting that the dispute be referred to the acting Dispute Resolution Officer for resolution.
The acting Dispute Resolution Officer being a Deputy Secretary or Director of the Company available at the time of the Second Notice; who is not ordinarily involved directly in managing the Service Agreement under which the dispute has arisen.
Within fourteen days of receiving the Second Notice, the parties will either meet with the Dispute Resolution Officer to discuss the dispute or provide written submissions regarding the dispute.
Within twenty eight days of receiving the Second Notice, the Dispute Resolution Officer will provide their decision to the parties in writing.
Within fourteen (14) days from the date which the Dispute Resolution Officer provides their decision in writing, either party may provide written notice referring the dispute to mediation (the "Mediation Notice").
Within fourteen (14) days of receiving the Mediation Notice, the party that received the Mediation Notice will provide written notice to the other party as to whether or not it agrees to mediate.
Failure to provide this notice will not be deemed as an agreement to mediate.
If neither party provides a Mediation Notice to the other, or if the party served with the Mediation Notice does not agree to mediate to resolve the dispute or; fails to provide a notice in response, then any decision of the Dispute Resolution Officer above will be final and binding on the parties.
If the party served with the Mediation Notice agrees to mediate then the parties will mediate to resolve the dispute on the following terms:
a mediator may be appointed either by agreement between the parties or, failing such agreement within seven (7) days of the date of the Mediation Notice.
each party will share equally the costs of the mediation including the mediator's fee, fees for mediation rooms and costs of shared equipment facilities and services of the mediation.
the venue for the mediation will be agreed between the parties or, failing such agreement, will be nominated by the mediator
each party may be legally represented if they intend to do so.
the mediation will be conducted without prejudice and complete confidentiality will be preserved in respect of the mediation and any documents and information used at or in relation to the mediation.
if the dispute is still unresolved within twenty eight days after the date of the Mediation Notice (or after such other period of time agreed by the parties), the parties agree that the Dispute Resolution Officer will provide a new decision in writing (which may be the same as the decision made by the Dispute Resolution Officer in Step 05 before the mediation process commenced) and such decision will be final and binding on the parties.
WITHHOLDING PAYMENT ON DISPUTES
In the event of a dispute, "you", "the customer" may withhold only the reasonable value of the amount under dispute. Both parties will immediately make authorized personnel available to meet and make good faith attempts to resolve the dispute. If within thirty (30) calendar days the dispute is not resolved, "we" may commence action for breach of the agreement.
The reasonable legal fees of both parties shall be shared on a pro-rata basis based upon the court's determination of the amount due.
If the court determines "the customer" to have wrongfully withheld the complete payment; "the customer" is responsible for payment of their, and "our" legal fees.
If the court determines that "the customer" wrongfully withheld half of the payment, each party would be responsible to pay half. For monies retained by "the customer" too any amount in excess of the amount the parties agreed or the court awarded, "the customer" shall pay "us" interest at the current rate of the Reserve Bank of Australia's percentage rate commencing from the date the payment was due to be made.
Payment of monies due to "us" is based upon agreement of both parties or the court award plus applicable attorney's fees plus interest shall be paid within ten (10) calendar days after the date of such agreement or arbitrator decision.