Exner Holdings Pty Ltd, trading as OzGrind Polished Concrete (ACN 153 083 964) · Terms of Trade 2026
These terms of trade apply to all works and materials supplied by OzGrind Polished Concrete. Please read them carefully. They set out how quotes, pricing and payment work, what we need from you on site, and how warranties, defects and disputes are handled. For how we handle your personal information, see our Privacy Policy.
1. Definitions
1.1“Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2“OzGrind” means Exner Holdings Pty Ltd T/A OzGrind Polished Concrete Brisbane, its successors and assigns or any person acting on behalf of and with the authority of Exner Holdings Pty Ltd T/A OzGrind Polished Concrete Brisbane.
1.3“Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting OzGrind to provide the Works as specified in any proposal, quotation, order, invoice or other documentation, and:
(a)if there is more than one Client, is a reference to each Client jointly and severally; and
(b)if the Client is a partnership, it shall bind each partner jointly and severally; and
(c)if the Client is a part of a trust, shall be bound in their capacity as a trustee; and
(d)includes the Client’s executors, administrators, successors and permitted assigns.
1.4“Works” means all Works (including consultation, manufacturing and/or installation services) or Materials supplied by OzGrind to the Client at the Client’s request from time to time (where the context so permits the terms ‘Works’ or ‘Materials’ shall be interchangeable for the other).
1.5"Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.6“Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Works via the website.
1.7“Price” means the Price payable (plus any GST where applicable) for the Works as agreed between OzGrind and the Client in accordance with clause 6 below.
1.8“GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
2.1The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of any Works.
2.2In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act
3. Authorised Representative
3.1The Client acknowledges that OzGrind shall (for the duration of the Works) liaise directly with one (1) authorised representative, and that once introduced as such to OzGrind, that person shall have the full authority of the Client to order any Works and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to OzGrind for all additional costs incurred by OzGrind (including OzGrind’s profit margin) in providing any Works or variation/s requested thereto by the Client’s duly authorised representative.
4. Errors and Omissions
4.1The Client acknowledges and accepts that OzGrind shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a)resulting from an inadvertent mistake made by OzGrind in the formation and/or administration of this Contract; and/or
(b)contained in/omitted from any literature (hard copy and/or electronic) supplied by OzGrind in respect of the Works.
4.2In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of OzGrind; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change in Control
5.1The Client shall give OzGrind not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by OzGrind as a result of the Client’s failure to comply with this clause.
6. Price and Payment
6.1At OzGrind’s sole discretion the Price shall be either:
(a)as indicated on invoices provided by OzGrind to the Client in respect of Works performed or Materials supplied; or
(b)OzGrind’s quoted Price (subject to clause 6.2) which shall be binding upon OzGrind provided that the Client shall accept OzGrind’s quotation in writing within forty five (45) days unless stated otherwise.
6.2OzGrind reserves the right to change the Price:
(a)if a variation to the Materials which are to be supplied is requested; or
(b)if a variation to the Works originally scheduled (including any applicable plans or specifications) is requested; or
(c)where additional Works are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather conditions, limitations to accessing the site, availability of machinery, safety considerations, stair work, additional floor preparation, hand grinding or additional grinding, pre-existing defects or defects caused by third parties (other trades, insects, debris, etc.), change of design, prerequisite work by any third party not being completed, change of design, iron reinforcing rods in concrete, or hidden pipes and wiring etc) which are only discovered on commencement of the Works; or
(d)in the event of increases to OzGrind in the cost of labour or materials which are beyond OzGrind’s control; or
(e)if the commencement of the Works is six (6) months or more of from the date the quotation supplied by OzGrind.
6.3OzGrind reserves the right to withdraw the quotation if changes occur with the surface or site conditions.
6.4At OzGrind sole discretion a deposit of ten percent (10%) may be required.
6.5Time for payment for the Works being of the essence, the Price will be payable by the Client on the date/s determined by OzGrind, which may be:
(a)on completion of the Works; or
(b)by way of progress payments in accordance with OzGrind’s specified progress payment schedule, which unless otherwise stated by OzGrind shall be:
(i)ten percent (10%) deposit upon acceptance of the quote;
(ii)forty percent (40%) Materials progress payment shall be required prior to the commencement of the Works;
(iii)thirty percent (30%) progress payment, due and payable before completion of the Works;
(iv)remaining balance owing shall be required on completion of the Works; and
(v)Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; or
(c)seven (7) days following the end of the month in which a statement is delivered to the Client’s address or address for notices;
(d)the date specified on any invoice or other form as being the date for payment; or
(e)failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by OzGrind.
6.6Payment may be made by electronic/on-line banking, cash, cheque, bank cheque, or by any other method as agreed to between the Client and OzGrind.
6.7OzGrind may in its discretion allocate any payment received from the Client towards any invoice that OzGrind determines and may do so at the time of receipt or at any time afterwards. On any default by the Client OzGrind may re-allocate any payments previously received and allocated. In the absence of any payment allocation by OzGrind, payment will be deemed to be allocated in such manner as preserves the maximum value of OzGrind’s Purchase Money Security Interest (as defined in the PPSA) in the Materials.
6.8The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by OzGrind nor to withhold payment of any invoice because part of that invoice is in dispute. Notwithstanding the above, where the Client is a consumer within the meaning of the CCA, or where part of an invoice is the subject of a genuine, bona fide dispute that the Client has notified to OzGrind in writing, the Client may withhold payment of the disputed amount only (and must still pay any undisputed amount) until that dispute is resolved.
6.9Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to OzGrind an amount equal to any GST OzGrind must pay for any supply by OzGrind under this or any other agreement for the sale of the Materials. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6.10Where OzGrind exercises its right under clause 6.2 to vary the Price after the Client has accepted a quotation, OzGrind will notify the Client in writing of the variation and the reason for it as soon as reasonably practicable. The Client may, within five (5) business days of receiving that notice, elect in writing not to proceed with the affected Works, in which case the Client is liable only for Works actually performed and Materials supplied up to that date. This clause does not apply to a variation requested by the Client.
6.11Where the Works are ‘domestic building work’ to which Schedule 1B of the Queensland Building and Construction Commission Act 1991 applies, the deposit and progress-payment provisions of clauses 6.4 and 6.5 apply only to the extent permitted by that Act, and to the extent of any inconsistency the requirements of that Act prevail over those clauses. Nothing in this Contract limits any right or entitlement the Client has under that Act.
7. Provision of the Works
7.1Subject to clause 7.2 it is OzGrind’s responsibility to ensure that the Works start as soon as it is reasonably possible.
7.2The Works commencement date will be put back and/or the completion date extended by whatever time is reasonable in the event that OzGrind claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond OzGrind’s control, including but not limited to any failure by the Client to:
(a)make a selection; or
(b)have the site ready for the Works; or
(c)notify OzGrind that the site is ready.
7.3Any time specified by OzGrind for delivery of the Works is an estimate only and OzGrind will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Works to be supplied at the time and place as was arranged between both parties. In the event that OzGrind is unable to supply the Works as agreed solely due to any action or inaction of the Client then OzGrind shall be entitled to charge a reasonable fee for re-supplying the Works at a later time and date.
7.4The Client acknowledges that the Works are carried out during OzGrind’s normal trading hours, Monday to Friday. In the event that OzGrind is required to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then OzGrind reserves the right to charge the Client additional labour costs (penalty rates will apply), unless otherwise agreed between OzGrind and the Client.
8. Risk
8.1OzGrind shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works all risk for the Works shall immediately pass to the Client.
8.2The Client acknowledges that:
(a)variations of colour and texture are inherent in concrete, filling and grout. OzGrind shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between existing substrate, the different areas treated and/or batches supplied;
(b)grouting may not fill in all open pores and some minor unfilled sections can be expected.
8.3OzGrind is not responsible for and has no control over discolouration including, but not limited to, staining, tile grout lines in floors, previous damage, spillages or glues from previous coatings.
8.4OzGrind cannot guarantee that existing stains within the concrete will be removed by the preparation process.
8.5The Client accepts that OzGrind has no control over added colours once the product has touched the concrete.
8.6No responsibility will be taken by OzGrind for any possible capillary action of water, sealants, fluids, rising damp or contaminants within the concrete or stone during the grinding and sealing process.
8.7Contaminated and stained concrete can affect the sealants adhesion and life span, due to unknown contaminations. No responsibility will be taken by OzGrind under these circumstances.
8.8OzGrind’s equipment is dustless; however, during the grinding process some fine dust may be generated and settle throughout the site. Cleaning of the site is not included.
8.9OzGrind takes no responsibility for the method used on installation of the concrete (including, aggregate exposure, blow outs or uneven placement, etc.). Aggregate exposure is the full responsibility of the concrete contractor or OzGrind.
8.10OzGrind shall not be liable for any defect in the Works if the Client does not follow OzGrind’s recommendation to allow no foot traffic and/or any vehicles on the concrete for a minimum of twenty four (24) hours after completion of the Works. OzGrind will advise if covering of the Works is required while curing.
8.11OzGrind recommends the removal of skirting’s to allow for a better finish and to eliminate the risk of damage during the Works. OzGrind will make every effort to protect and minimize damage to walls and skirting’s within the dwelling, however will not liable for any marks, scratches or other damage incurred.
8.12OzGrind gives no guarantee (expressed or implied) as to the length of time the curing process will take, and/or against:
(a)damage caused by contact with chemicals, solvents, oils or any other substances; or
(b)the affects by elements such as heat exposure or wet weather conditions that prolong the curing process.
8.13OzGrind will not accept responsibility for any damage to the floor due to microenvironments caused by air-conditioning, heating or large expanses of glass windows without curtains or blinds.
8.14Whilst OzGrind will take all due care to avoid contamination of the finished surface, OzGrind accepts no responsibility for contamination by other trades people or natural contaminates such as dust, insects or hair which may be present at the worksite.
8.15Before the commencement of the Works the Client shall be in attendance and the works shall then be duly approved before the application of any sealants or finishes and any discrepancies are to be address immediately. Any delays or variations may incur extra charges as per clause 6.2.
8.16Where OzGrind gives advice or recommendations to the Client, or the Client’s agent, with specific instructions regarding the use of the Materials and such advice or recommendations are not acted upon then OzGrind shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Works.
8.17Nothing in this clause 8 excludes, restricts or modifies any guarantee, right or remedy the Client has under the Australian Consumer Law or any other law that cannot lawfully be excluded, and every exclusion or limitation in this clause 8 applies only to the extent permitted by law.
9. Underground Locations
9.1Prior to OzGrind commencing any work the Client must advise OzGrind of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Client must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, telephone cables, fibre optic cables, oil pumping mains, and any other services that may be on site.
9.2Whilst OzGrind will take all care to avoid damage to any underground services the Client agrees to indemnify OzGrind 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 as per clause 9.1.
10. Accuracy of Client’s Plans and Measurements
10.1OzGrind shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Client. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, OzGrind accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
10.2In the event the Client gives information relating to measurements and quantities of the Materials required to complete the Works, it is the Client’s responsibility to verify the accuracy of the measurements and quantities, before the Client or OzGrind places an order based on these measurements and quantities. OzGrind accepts no responsibility for any loss, damages, or costs however resulting from the Client’s failure to comply with this clause.
11. Client’s Responsibilities
11.1It is the Client’s responsibility to:
(a)make the premises available on the agreed date and time, providing suitable power (32amp 3 phase or 15amp single phase power onsite, unless stated otherwise) and water supply onsite, and all areas clean and clear to enable the scheduled Works to be completed in accordance with the schedule of installation. OzGrind shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of OzGrind, and if the Works are interrupted or delayed by the failure of the Client to adhere to their responsibilities under this Contract, any additional costs will be invoiced to the Client as an extra; and
(b)if no on-site power source is available or is inadequate as per clause 11.1(a)the Client agrees to OzGrind providing a suitable power source. Charges will apply as per clause 6.2.; and
(c)ensure that access is suitable for the equipment OzGrind requires complete the Works. The Client agrees to indemnify OzGrind against all costs incurred by OzGrind in recovering such equipment in the event they become otherwise immovable; and
(d)remove all existing floor coverings, skirting’s, tacks and staples; and
(e)fully disclose any information that may affect OzGrind’s installation procedures (including, but not limited to, disclosing known breaks or tears in the membrane, extensions of existing slabs, thickened beams, curing compounds that may have been used, or the use of concrete over 25mpa); and
(f)in the event bulk filling is required for any major divots, the Client is to supply OzGrind with the required mix from the concrete OzGrind; and
(g)remove all fragile items such as glassware, crockery, pot plants, furniture and ornaments. Breakages and damages are the responsibility of the Client. All care taken but no responsibility accepted by OzGrind in this regard; and
(h)provide adequate dust sheets to protect the Client’s furniture and décor. OzGrind will not accept any responsibility for cleaning or repair costs attributed to dust or damage caused by any sanding process. Flaking or crumbling walls should be temporarily covered by the Client, until the coatings are dry; and
(i)cover the floor surface with corrugated cardboard as per the instruction of OzGrind until the Works have reached the cured stage, or if the Works are to be completed in two stages the Client is responsible for keeping the floor surface clean to avoid any unnecessary damage or contamination. OzGrind reserves the right to charge for any required cleaning and/or rectification of the floor surface; and
(j)provide a skip bin on site for the disposal of dust and debris. OzGrind will not be responsible for the cleanup of the site; and
(k)extinguish all naked flames prior to coating including, but not limited to, pilot lights, heaters etc; and
(l)ensure that full and final lighting as designed for the completed project is fully operational prior to sanding works commencing, and are made available for use at no cost for the duration of the project. Any costs incurred by OzGrind will be invoiced to the Client should this requirement not be met; and
(m)arrange for the caulking of expansion joints after the completion of the Works.
11.2OzGrind is not insured to remove furniture or fittings and will not do so, nor is OzGrind licensed to move gas or electrical appliances.
12. Title
12.1OzGrind and the Client agree that ownership of the Materials shall not pass until:
(a)the Client has paid OzGrind all amounts owing to OzGrind; and
(b)the Client has met all of its other obligations to OzGrind.
12.2Receipt by OzGrind of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
12.3It is further agreed that:
(a)until ownership of the Materials passes to the Client in accordance with clause 12.1 that the Client is only a bailee of the Materials and unless the Materials have become fixtures must return the Materials to OzGrind on request.
(b)the Client holds the benefit of the Client’s insurance of the Materials on trust for OzGrind and must pay to OzGrind the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c)the production of these terms and conditions by OzGrind shall be sufficient evidence of OzGrind’s rights to receive the insurance proceeds direct from the insurer without the need for any person dealing with OzGrind to make further enquiries.
(d)the Client must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for OzGrind and must pay or deliver the proceeds to OzGrind on demand.
(e)the Client should not convert or process the Materials or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of OzGrind and must sell, dispose of or return the resulting product to OzGrind as it so directs.
(f)unless the Materials have become fixtures the Client irrevocably authorises OzGrind to enter any premises where OzGrind believes the Materials are kept and recover possession of the Materials.
(g)OzGrind may recover possession of any Materials in transit whether or not delivery has occurred.
(h)the Client shall not charge or grant an encumbrance over the Materials nor grant nor otherwise give away any interest in the Materials while they remain the property of OzGrind.
(i)OzGrind may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client.
13. Personal Property Securities Act 2009 (“PPSA”)
13.1In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
13.2Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Materials that have previously been supplied and that will be supplied in the future by OzGrind to the Client.
13.3The Client undertakes to:
(a)promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which OzGrind may reasonably require to:
(i)register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii)register any other document required to be registered by the PPSA; or
(iii)correct a defect in a statement referred to in clause 13.3(a)(i) or 13.3(a)(ii);
(b)indemnify, and upon demand reimburse, OzGrind for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Materials charged thereby;
(c)not register a financing change statement in respect of a security interest without the prior written consent of OzGrind;
(d)not register, or permit to be registered, a financing statement or a financing change statement in relation to the Materials in favour of a third party without the prior written consent of OzGrind; and
(e)immediately advise OzGrind of any material change in its business practices of selling the Materials which would result in a change in the nature of proceeds derived from such sales.
13.4OzGrind and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7Unless otherwise agreed to in writing by OzGrind, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
13.8The Client shall unconditionally ratify any actions taken by OzGrind under clauses 13.3 to 13.5.
13.9Subject to any express provisions to the contrary (including those contained in this clause 13), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
14. Security and Charge
14.1In consideration of OzGrind agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
14.2The Client indemnifies OzGrind from and against all OzGrind’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising OzGrind’s rights under this clause.
14.3The Client irrevocably appoints OzGrind and each director of OzGrind as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 14 including, but not limited to, signing any document on the Client’s behalf.
14.4Despite clauses 14.1 to 14.3, the charge and the power of attorney granted under this clause secure only the amounts actually owing by the Client to OzGrind under these terms and conditions (together with OzGrind's reasonable recovery costs), may be exercised only while such an amount remains overdue, and (in the case of the power of attorney) may be used only to sign or lodge documents reasonably necessary to register, maintain or release that security. OzGrind will take reasonable steps to release the charge once all amounts owing to it have been paid.
15. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
15.1The Client must inspect all Materials on delivery (or the Works on completion) and must within seven (7) days of delivery notify OzGrind in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Materials/Works as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow OzGrind to inspect the Materials or to review the Works provided.
15.2Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
15.3OzGrind acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
15.4Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, OzGrind makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Materials/Works. OzGrind’s liability in respect of these warranties is limited to the fullest extent permitted by law.
15.5If the Client is a consumer within the meaning of the CCA, OzGrind’s liability is limited to the extent permitted by section 64A of Schedule 2.
15.6If OzGrind is required to replace any Materials under this clause or the CCA, but is unable to do so, OzGrind may refund any money the Client has paid for the Materials.
15.7If OzGrind is required to rectify, re-supply, or pay the cost of re-supplying the Works under this clause or the CCA, but is unable to do so, then OzGrind may refund any money the Client has paid for the Works but only to the extent that such refund shall take into account the value of Works and Materials which have been provided to the Client which were not defective.
15.8If the Client is not a consumer within the meaning of the CCA, OzGrind’s liability for any defect or damage in the Materials is:
(a)limited to the value of any express warranty or warranty card provided to the Client by OzGrind at OzGrind’s sole discretion;
(b)limited to any warranty to which OzGrind is entitled, if OzGrind did not manufacture the Materials;
(c)otherwise negated absolutely.
15.9Notwithstanding clauses 15.1 to 15.8 but subject to the CCA, OzGrind shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a)the Client failing to properly maintain the floor or concrete surface;
(b)the Client using the floor or concrete surface for any purpose other than that for which they were designed;
(c)continual use of the concrete surface by the Client after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d)interference with the Works by the Client or any third party without OzGrind’s prior approval;
(e)the Client failing to follow any instructions or guidelines provided by OzGrind;
(f)fair wear and tear, any accident, or act of God.
16. Intellectual Property
16.1Where OzGrind has designed, drawn, written plans or a schedule of Works, or created any products for the Client, then the copyright in all such designs, drawings, documents, plans, schedules, photographs and products shall remain vested in OzGrind, and shall only be used by the Client at OzGrind’s discretion. Under no circumstances may such designs, drawings and documents be used without the express written approval of OzGrind.
16.2The Client warrants that all designs, specifications or instructions given to OzGrind will not cause OzGrind to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify OzGrind against any action taken by a third party against OzGrind in respect of any such infringement.
16.3The Client agrees that OzGrind may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products which OzGrind has created for the Client.
17. Default and Consequences of Default
17.1Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of eight percent (8%) per annum, calculated daily and not compounding after as well as before any judgment.
17.2If the Client owes OzGrind any money the Client shall indemnify OzGrind from and against all costs and disbursements incurred by OzGrind in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, OzGrind’s contract default fee, and bank dishonour fees).
17.3Further to any other rights or remedies OzGrind may have under this Contract, if a Client has made payment to OzGrind, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by OzGrind under this clause 17 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
17.4Without prejudice to OzGrind’s other remedies at law OzGrind shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to OzGrind shall, whether or not due for payment, become immediately payable if:
(a)any money payable to OzGrind becomes overdue, or in OzGrind’s opinion the Client will be unable to make a payment when it falls due;
(b)the Client has exceeded any applicable credit limit provided by OzGrind;
(c)the Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d)a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
18. Cancellation
18.1Without prejudice to any other remedies OzGrind may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions OzGrind may suspend or terminate the supply of Works to the Client. OzGrind will not be liable to the Client for any loss or damage the Client suffers because OzGrind has exercised its rights under this clause.
18.2OzGrind may cancel any contract to which these terms and conditions apply or cancel delivery of Works at any time before the Works are commenced by giving written notice to the Client. On giving such notice OzGrind shall repay to the Client any sums paid in respect of the Price, less any amounts owing by the Client to OzGrind for Works already performed. OzGrind shall not be liable for any loss or damage whatsoever arising from such cancellation.
18.3In the event that the Client cancels the delivery of Works the Client shall be liable for any and all loss incurred (whether direct or indirect) by OzGrind as a direct result of the cancellation (including, but not limited to, any loss of profits).
18.4Any amount payable by the Client under clause 18.3, and any deposit retained by OzGrind, is a genuine pre-estimate of the loss OzGrind is likely to suffer as a result of the cancellation and is not a penalty. OzGrind will take reasonable steps to mitigate its loss.
18.5Where these terms and conditions form part of a regulated contract for domestic building work under the Queensland Building and Construction Commission Act 1991, the Client may withdraw from the contract during any cooling-off period that Act provides (generally within five (5) business days after the Client receives a signed copy of the contract), by giving OzGrind written notice. If the Client withdraws within that period, OzGrind may retain only the amount permitted by that Act (being its reasonable out-of-pocket expenses and any withdrawal amount the Act allows) and will refund the balance of any deposit paid.
19. Privacy Policy
19.1All emails, documents, images or other recorded information held or used by OzGrind is Personal Information, as defined and referred to in clause 19.3, and therefore considered Confidential Information. OzGrind acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB). OzGrind acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by OzGrind that may result in serious harm to the Client, OzGrind will notify the Client in accordance with the Act. Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
19.2Notwithstanding clause 19.1, privacy limitations will extend to OzGrind in respect of Cookies where transactions for purchases/orders transpire directly from OzGrind’s website. OzGrind agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a)IP address, browser, email client type and other similar details;
(b)tracking website usage and traffic; and
(c)reports are available to OzGrind when OzGrind sends an email to the Client, so OzGrind may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via OzGrind’s website.
19.3The Client agrees for OzGrind to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by OzGrind.
19.4The Client agrees that OzGrind may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a)to assess an application by the Client; and/or
(b)to notify other credit providers of a default by the Client; and/or
(c)to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d)to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
19.5The Client consents to OzGrind being given a consumer credit report to collect overdue payment on commercial credit.
19.6The Client agrees that personal credit information provided may be used and retained by OzGrind for the following purposes (and for other agreed purposes or required by):
(a)the provision of Works; and/or
(b)analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Works; and/or
(c)processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d)enabling the collection of amounts outstanding in relation to the Works.
19.7OzGrind may give information about the Client to a CRB for the following purposes:
(a)to obtain a consumer credit report;
(b)allow the CRB to create or maintain a credit information file about the Client including credit history.
19.8The information given to the CRB may include:
(a)Personal Information as outlined in 19.3 above;
(b)name of the credit provider and that OzGrind is a current credit provider to the Client;
(c)whether the credit provider is a licensee;
(d)type of consumer credit;
(e)details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f)advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and OzGrind has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g)information that, in the opinion of OzGrind, the Client has committed a serious credit infringement;
(h)advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
19.9The Client shall have the right to request (by e-mail) from OzGrind:
(a)a copy of the Personal Information about the Client retained by OzGrind and the right to request that OzGrind correct any incorrect Personal Information; and
(b)that OzGrind does not disclose any Personal Information about the Client for the purpose of direct marketing.
19.10OzGrind will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
19.11The Client can make a privacy complaint by contacting OzGrind via e-mail. OzGrind will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
19.12Where OzGrind uses computer programs or other automated means to make, or to substantially and directly assist in making, a decision that could significantly affect the Client (for example, the automated assessment of a credit application), OzGrind will disclose that this occurs, and the kinds of Personal Information used, in its privacy policy, in accordance with the Privacy Act 1988 (Cth).
20. Building Industry Fairness (Security of Payment) Act 2017
20.1At OzGrind’s sole discretion, if there are any disputes or claims for unpaid Works and/or Materials then the provisions of the Building Industry Fairness (Security of Payment) Act 2017 may apply.
20.2Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the Building Industry Fairness (Security of Payment) Act 2017 of Queensland, except to the extent permitted by the Act where applicable.
21. General
21.1The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which OzGrind has its principal place of business, and are subject to the jurisdiction of the courts in Queensland.
21.3Subject to clause 15, OzGrind shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by OzGrind of these terms and conditions (alternatively OzGrind’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Works).
21.4OzGrind may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
21.5The Client cannot licence or assign without the written approval of OzGrind.
21.6OzGrind may elect to subcontract out any part of the Works but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of OzGrind’s sub-contractors without the authority of OzGrind.
21.7The Client agrees that OzGrind may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for OzGrind to provide Works to the Client. For the avoidance of doubt, this clause does not allow OzGrind to change the terms of a contract that has already been formed with the Client without the Client's agreement; it applies only to OzGrind's general terms for future contracts.
21.8Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
21.9Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
22. Dust and Site Safety (Crystalline Silica)
22.1The Client acknowledges that the grinding, cutting, polishing and preparation of concrete and stone can generate respirable crystalline silica dust, and that OzGrind applies dust-control measures (such as on-tool dust extraction, wet dust suppression and/or local exhaust ventilation) as part of its work health and safety obligations.
22.2For the health and safety of all persons on site, the Client must keep all occupants, visitors, children, pets and other trades clear of the active work area for the duration of the grinding, cutting or polishing works and until OzGrind advises that the area is clear, unless those persons are using appropriate respiratory protection under OzGrind's direction.
22.3The Client must disclose to OzGrind, before the Works commence, any known presence of hazardous materials at the site (including, but not limited to, asbestos or asbestos-containing materials). If suspected asbestos or other hazardous material is identified, OzGrind may suspend the Works until the material has been assessed and, if necessary, removed by a suitably licensed party, and any resulting delay or additional cost will be treated as a variation under clause 6.2.
23. Dispute Resolution
23.1If a dispute arises between the parties in connection with this Contract, a party must not commence court proceedings (except for urgent interlocutory relief, or to recover an undisputed debt) unless it has first complied with this clause.
23.2The party claiming that a dispute has arisen must give written notice to the other party setting out the nature of the dispute. Within fourteen (14) days of that notice the parties must meet and use reasonable endeavours, in good faith, to resolve the dispute by negotiation.
23.3If the dispute is not resolved within a further twenty-one (21) days, either party may refer it to mediation administered by the Queensland Law Society (or a mediator agreed between the parties), with the mediator's costs shared equally between the parties.
23.4Nothing in this clause prevents a party from seeking urgent interlocutory relief, or from exercising any right it has under the Building Industry Fairness (Security of Payment) Act 2017.
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