Terms & Conditions

1. Definitions

1.1 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Contractor to provide the Services 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.

1.2 “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.

1.3 “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.

1.4 “Contractor” means Aussie Enviro Excavations Pty Ltd T/A Aussie Enviro Excavations, its successors and assigns or any person acting on behalf of and with the authority of Aussie Enviro Excavations Pty Ltd T/A Aussie Enviro Excavations.

1.5 “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 using the Contractor’s 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 making enquiries via the website.

1.6 “Equipment” means all Equipment including any accessories supplied on hire by the Contractor to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, hire form, or any other work authorisation form provided by the Contractor to the Client.

1.7 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

1.8 “Incidental Items” means any reports, documents, tests or materials supplied, consumed, created or deposited incidentally by the Contractor in the course of it conducting, or supplying to the Client, any Services.

1.9 “Price” means the Price payable (plus any GST where applicable) for the Services as agreed between the Contractor and the Client in accordance with clause 6 of this Contract.

1.10 “Services” mean all Services supplied by the Contractor to the Client at the Client’s request from time to time.

1.11 “Wet Hire” shall mean that the Equipment is hired with an operator who shall at all times remain an employee of the Contractor.

2. Acceptance

2.1 The parties acknowledge and agree that:

(a) they have read and understood the terms and conditions contained in this Contract; and

(b) the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Services provided by the Contractor.

2.2 In 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.

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 The Client acknowledges that:

(a) the supply of Services on credit shall not take effect until the Client has completed a credit application with the Contractor and it has been approved with a credit limit established for the account. In the event that the supply of Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, the Contractor reserves the right to refuse delivery; and

(b) if the Contractor has been requested by the Client to prepare a quotation that involves multiple site visits or third-party involvement (including, but not limited to, engineers, surveyor or local councils), all costs involved will be charged to the Client irrespective of whether or not the Services go ahead.

2.5 Any advice, recommendation, information or assistance provided by the Contractor in relation to the Services supplied is given in good faith to the Client, or the Client’s agent and is based on the Contractor’s own knowledge and experience and shall be accepted without liability on the part of the Contractor. Where such advice or recommendations are not acted upon then the Contractor shall require the Client or their agent to authorise commencement of the Services in writing. The Contractor shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.

2.6 In the event that the Client requests the Contractor to provide the Services urgently, that may require the Contractor’s staff to work outside normal business hours (including but not limited to working, through lunch breaks, weekends and/or Public Holidays) then the Contractor reserves the right to charge the Client additional labour costs (penalty rates apply), unless otherwise agreed between the Contractor and the Client.

2.7 Electronic 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 Representatives

3.1 Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to the Contractor as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services on the Client’s behalf and/or to request any variation to the Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies the Contractor in writing that said person is no longer the Client’s duly authorised representative).

3.2 In the event that the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise the Contractor in writing of the parameters of the limited authority granted to their representative.

3.3 The Client specifically acknowledges and accepts that they will be solely liable to the Contractor for all additional costs incurred by the Contractor (including the Contractor’s profit margin) in providing any Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

4. Errors and Omissions

4.1 The Client acknowledges and accepts that the Contractor 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 the Contractor 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 the Contractor in respect of the Services.

4.2 In circumstances where the Client is required to place an order for the Services, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for the Services (whether they are made to order Incidental Items or not) ("Client Error"). The Client must pay for all Services it orders from the Contractor notwithstanding that such Services suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take delivery of such Services. The Contractor is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

5. Change in Control

5.1 The Client shall give the Contractor 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 the Contractor as a result of the Client’s failure to comply with this clause.

6. Price and Payment

6.1 At the Contractor’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by the Contractor to the Client upon placement of an order for the Services; or

(b) the Price as at the date of delivery of the Services according to the Contractor’s current price list as previously disclosed to the Client upon the Client’s placement of an order for the Services; or

(c) the Contractor’s quoted Price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

6.2 The Contractor reserves the right to change the Price:

(a) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or

(b) where additional Services are required due to the discovery of hidden or unidentifiable difficulties (including, but not limited to, poor weather, limitations to accessing the site, deeper levels of contamination uncovered, additional testing required, availability of Equipment, incorrect measurements, plans and/or specifications provided by the Client, prerequisite work by any third party not being completed substantially or at all, hard rock, iron reinforcing rods in concrete or hidden pipes and wiring or other barriers below the surface, safety consideration etc.) which are only discovered on commencement or during the course of the Services; or

(c) in the event of increases to the Contractor in the cost of labour or materials which are beyond the Contractor’s control.

6.3 Variations will be charged for on the basis of the Contractor’s quotation, and will be detailed in writing, and shown as variations on the Contractor’s invoice. The Client shall be required to respond to any variation submitted by the Contractor within ten (10) working days. Failure to do so will entitle the Contractor to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.

6.4 At the Contractor’s sole discretion, a reasonable non-refundable deposit may be required upon placement of an order for the Services, in accordance with any quotation provided by the Contractor or as notified to the Client prior to the placement of an order for the Services.

6.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by the Contractor, which may be:

(a) on completion of the Services; or

(b) by way of instalments/progress payments in accordance with the Contractor’s payment schedule; or

(c) the date which shall either be thirty (30), forty-five (45) or sixty (60) days following the date of any invoice given to the Client by the Contractor.

6.6 Payment may be made by electronic/on-line banking or by any other method as agreed to between the Client and the Contractor.

6.7 The Contractor may in its discretion allocate any payment received from the Client towards any invoice that the Contractor determines and may do so at the time of receipt or at any time afterwards.

6.8 The 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 the Contractor nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify the Contractor in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Contractor investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Contractor placing the Client’s account into default and subject to default interest in accordance with clause 19.1.

6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Contractor an amount equal to any GST the Contractor must pay for any supply by the Contractor under this or any other agreement for providing the Contractor’s Services. 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.

7. Wet Hire

7.1 The Contractor will supply an experienced plant operator with the Equipment and the hire rates for the Equipment shall be inclusive of any fuel charges.

7.2 The Client acknowledges and accepts that the operator of the Equipment remains an employee of the Contractor and operates the Equipment in accordance with the Client’s instructions. As such the Contractor shall not be liable for any actions of the operator in following the Client’s instructions.

7.3 The Equipment and vehicles supplied by the Contractor will be washed and cleaned thoroughly and can be accompanied with a Weed and Seed Hygiene Declaration if required. In the event that any third-party requires a certified Weed and Seed Hygiene Declaration, the Client acknowledges and agrees that this shall be charged to the Client at an additional cost unless otherwise agreed.

7.4 The Client agrees to fully and completely indemnify the Contractor in respect of all claims by any person or party whatsoever for injury to any person or persons and/or property caused in connection with or arising out of the use of the Equipment and in respect of all costs and charges in connection therewith whether arising under statute or common law.

7.5 The Client acknowledges and agrees that the replacement cost of auger teeth and pilots will be the Client’s responsibility should the wear be excessive. Hire rates

7.6 The following Equipment hire rates are exclusive of the following charges:

(a) disposal fees of soil, waste or other material;

(b) transport costs for Equipment greater than 9 tonne capacity; and

(c) supply of material including gravel, sand and rock.

Minimum hire period

7.7 The following minimum hire periods apply to all plant and equipment supplied by the Contractor. All minimum hire includes travel charges for the Brisbane metro area only:

(a) Posi track hire: four (4) hours;

(b) excavators and combos 1.5 tonne to 3 tonne capacity: three (3) hours;

(c) all excavators up to 8 tonne: four (4) hours;

(d) excavators from 14 tonne to 35 tonne: eight (8) hours + float fee (each way); and

(e) all trucks: four (4) hours.

Travel / Transport

7.8 Any Equipment:

(a) up to an 8 tonne excavator hired within the Brisbane metro area shall incur a minimum of one (1) hour travel charge. Additional charges shall apply for any Equipment hired outside the Brisbane metro area and will be confirmed with the Client upon receiving booking request; and

(b) greater than 9 tonne capacity will incur a float fee each way. Costs will be confirmed with the Client upon receiving booking request.

Sundays / Public Holidays / Penalty Rates

7.9 Penalty rates of an additional twenty percent (20%) per hour applies for Equipment hired during nonstandard working hours/days. These include:

(a) all public holidays and Sunday; and

(b) Services performed outside of standard working hours, Monday to Saturday inclusive, between the hours of 6pm and 6am (AEST, ACST, AWST).

7.10 Any Services to be completed on Saturdays will incur an additional one (1) hour based on standard minimum hire charges.

Cancellation Policy

7.11 Notwithstanding the provisions of clause 20,if the Client wishes to cancel the delivery of the Equipment or the Equipment is not required as a result of inclement weather, it is the Client’s responsibility to contact the Contractor’s office directly at least two (2) hours prior to the Equipment and plant operator being dispatched to the site. The Client acknowledges and accepts that a cancellation fee of two (2) hours will apply if prior notice has not been received and where the Equipment and operator have already been dispatched to the site.

8. Provision of the Services

8.1 Subject to clause 8.2 it is the Contractor’s responsibility to ensure that the Services start as soon as it is reasonably practicable.

8.2 The Services’ commencement date will be extended, and the completion date extended by whatever time is reasonable in the event that the Contractor claims an extension of time (by giving the Client written notice) where completion is delayed by an event beyond the Contractor’s control, including but not limited to any failure by the Client to:

(a) have the site ready for the Services; or

(b) notify the Contractor that the site is ready.

8.3 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this Contract.

8.4 The Contractor may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.

8.5 Any time specified by the Contractor for delivery of the Services is an estimate only and the Contractor 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 Services to be supplied at the time and place as was arranged between both parties. In the event that the Contractor is unable to supply the Services as agreed solely due to any action or inaction of the Client then the Contractor shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.

9. Risk

9.1 The Contractor shall be entitled to rely on the accuracy of any plans, specifications, geotechnical reports 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, the Contractor accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.

9.2 Where test pits are made, these shall be backfilled, and wheel or track rolled by the backhoe/excavator. Any resulting surplus soil shall be mounded on the surface.

9.3 If the Contractor discovers:

(a) undisclosed waste and/or hazardous materials then the Contractor reserves the right to halt all Services and immediately notify the Client. It shall be the responsibility of the Client to arrange the removal of all such materials. In the event that the Contractor agrees to remove such materials for the Client then this shall be treated as a variation in accordance with clause 6.2 and shall be in addition to the Price. The Contractor under no circumstances shall undertake the removal of asbestos; and

(b) fossils, artefacts or any other remains of geological or archaeological interest then the Contractor reserves the right to halt all Services and immediately notify the Client. The Client accepts and agrees that all additional costs that may be incurred by the Contractor as a result of any such delays shall be borne by the Client and shall be treated as a variation in accordance with clause 6.2.

10. Site Access and Condition

10.1 It shall be the Client’s responsibility (where applicable) to ensure that, prior to commencement of the Services by the Contractor that:

(a) all gas and electricity are cancelled and disconnected (from the main supply at the street); and

(b) a safety fence is erected around the perimeter of the site to ensure public safety.

10.2 It is the intention of the Contractor and agreed by the Client that the Client shall ensure that the Contractor has clear and free access to the site at all times to enable them to undertake the Services (including carrying out site inspections, gain signatures for required documents etc). The Contractor 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 the Contractor.

10.3 It is the responsibility of the Client to ensure that access is suitable to accept the weight of laden trucks, front end loaders or other earth moving equipment as may be deemed necessary by the Contractor.

10.4 Further to clause 10.3, the Client shall be responsible for any additional site access requirements for wide load mobilisation. This may include supply of traffic controllers or escort vehicles to ensure safe transportation of Equipment. Confirmation is required to be sent to the Contractor by email or phone within twenty-four (24) hours prior to the commencement of the Services.

10.5 The Client agrees to:

(a) provide the Contractor, while at the site, with adequate access to available amenities as may be required; and

(b) be present at the Worksite when and as reasonably requested by the Contractor and its employees, contractors and/or agents.

10.6 Where the Contractor requires that Equipment, materials, tools etc. required for the Services be stored at the site, the Client shall supply the Contractor a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Client’s responsibility.

10.7 Site Inductions

(a) in the event the Client requires an employee or sub-contractor of the Contractor to undertake a site induction during working hours, the Client will be liable to pay the hourly charges for that period. If any induction needs to be undertaken prior to the commencement date then the Client shall be liable to pay the Contractor’s standard (and/or overtime, if applicable) hourly labour rate; or

(b) where the Contractor is in control of the site, the Client and/or the Client’s third-party contractors must initially carry out the Contractor’s Health & Safety induction course before access to the site will be granted. Inspection of the site during the course of the Services will be by appointment only and unless otherwise agreed, in such an event the Client and/or third party acting on behalf of the Client must at all times be accompanied by the Contractor.

11. Underground Locations

11.1 The Client shall be responsible to pay any fees as maybe required by the public authority for the location and marketing of all services at the site.

11.2 Prior to the Contractor commencing any work the Client must advise the Contractor of the precise location of all underground services on the site and clearly mark/map the same. The underground mains and 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 the site.

11.3 Whilst the Contractor will take all care to avoid damage to any underground services the Client agrees to indemnify the Contractor 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 11.2.

12. Compliance with Laws

12.1 The Client and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services, including any work health and safety laws (WHS) relating or any other relevant safety standards or legislation pertaining to the Services. The Client agrees to indemnify the Contractor for any liability as a result of the Client’s failure to comply with this clause.

12.2 The Client shall obtain (at the expense of the Client) all licenses, permits and approvals that may be required for the Services.

13. Title to Incidental Items

13.1 The Contractor and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:

(a) the Client has paid the Contractor all amounts owing for the Services; and

(b) the Client has met all other obligations due by the Client to the Contractor in respect of all Contracts between the Contractor and the Client.

13.2 Receipt by the Contractor 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 and until then the Contractor’s ownership in the Incidental Items or rights in respect of the Services shall continue.

14. Personal Property Securities Act 2009 (“PPSA”)

14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 14.2 Upon 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:

(a) all Incidental Items previously supplied by the Contractor to the Client;

(b) all Incidental Items will be supplied in the future by the Contractor to the Client and the proceeds from such Incidental Items; and

(c) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to the Contractor for Services – that have previously been provided and that will be provided in the future by the Contractor to the Client.

14.3 The 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 the Contractor 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 14.3(a)(i) or 14.3(a)(ii);

(b) indemnify, and upon demand reimburse, the Contractor 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 Incidental Items charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of the Contractor;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items or the proceeds of such Incidental Items in favour of a third party without the prior written consent of the Contractor.

14.4 The Contractor 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.

14.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

14.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

14.7 Unless otherwise agreed to in writing by the Contractor, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

14.8 The Client must unconditionally ratify any actions taken by the Contractor under clauses 14.3 to 14.5.

14.9 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

15. Security and Charge

15.1 In consideration of the Contractor agreeing to provide its Services, the Client grants the Contractor a security interest by way of a floating charge (registerable by the Contractor pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Services under this Contract and/or permit the Contractor to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).

15.2 The Client indemnifies the Contractor from and against all the Contractor’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Contractor’s rights under this clause.

15.3 In the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 13.1,14.2 and 15.1 as applicable, is deemed insufficient by the Contractor to secure the repayment of monies owed by the Client to the Contractor, the Client hereby grants the Contractor a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money.

16. Defects, Warranties and the Competition and Consumer Act 2010 (“CCA”)

16.1 The Client must inspect the Contractor’s Services on completion of the Services and must within seven (7) days notify the Contractor in writing of any evident defect in the Services or Incidental Items provided (including the Contractor’s workmanship) or of any other failure by the Contractor to comply with the description of, or quote for, the Services which the Contractor was to supply. The Client must notify any other alleged defect in the Contractor’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Contractor to review the Services or Incidental Items that were provided.

16.2 Under 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).

16.3 The Contractor acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Contractor makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. The Contractor’s liability in respect of these warranties is limited to the fullest extent permitted by law.

16.5 If the Client is a consumer within the meaning of the CCA, the Contractor’s liability is limited to the extent permitted by section 64A of Schedule 2.

16.6 If the Contractor is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then the Contractor may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Client which were not defective.

17. Intellectual Property

17.1 Where the Contractor has developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of the Contractor. Under no circumstances may such documents be used without the express written approval of the Contractor.

17.2 The Client warrants that all designs, specifications or instructions given to the Contractor will not cause the Contractor to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Contractor against any action taken by a third party against the Contractor in respect of any such infringement.

18. Permission to Use for Promotion and Social Media

18.1 The Client grants the Contractor the non-exclusive, worldwide, and perpetual right to use the Incidental Items/Works created under this Contract, including, but not limited to, photographs, videos, and written content, in the Contractor’s promotional materials, including on social media platforms, websites, blogs, portfolios, and print marketing, solely for the purpose of promoting the Contractor’s services.

18.2 However, in doing so the following restrictions apply, the Contractor will not:

(a) disclose any confidential or proprietary information related to the Client's business operations, the site where the work is performed, or the specific details of the project without the Client’s explicit prior written consent;

(b) use any images or likenesses of the Client’s employees, contractors, or any members of the public (including visitors or clients of the Client) in promotional materials unless those individuals have provided explicit written consent for such use. Including, but not limited to, to, photographs, video footage, and audio recordings of individuals; and

(c) disclose any sensitive site details, project specifics, or work-related processes that could compromise the security, confidentiality, or integrity of the project or the Client’s business operations. Including, but not limited to, specific locations, proprietary methods, or any information not already publicly available.