Allsett Concrete Solutions TERMS
Terms and Conditions of Trade
Terms and Conditions of Sale – Allsett Concrete Solutions Pty Ltd - ABN 62 843 272 841
1. Order and Supply
1.1 The Buyer acknowledges and agrees that the purchase of any Goods from the Seller is on these terms and conditions of sale ("Terms")
1.2 The placing of an Order via by the Buyer constitutes acceptance of the Terms.
1.3 The supply of Goods is subject to availability. The Seller reserves the right to suspend or discontinue the supply of Goods to the Buyer. If the Seller is unable to supply all of the Goods quoted, the Terms continue to apply to any part of the quotation supplied.
1.1 "Concrete Contractor" shall mean Allsett Concrete Solutions Pty ltd, its successors and assigns or any person acting on behalf of and with the authority of Allsett Concrete Solutions pTY lTD.
1.2 "Customer" means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Contractor to the Customer.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 "Materials" shall mean all Materials supplied by the Contractor to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Contractor to the Customer.
1.5 "Services" shall mean all Services supplied by the Concrete Contractor to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Materials as defined above).
1.6 "Price" shall mean the Price payable for the Materials as agreed between the Contractor and the Customer in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by the Concrete Contractor from the Customer for the supply of Materials and/or the Customer’s acceptance of Materials supplied by the Contractor shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Concrete Contractor.
3.4 The Customer shall give the Contractor not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Contractor as a result of the Customer’s failure to comply with this clause.
3.5 Materials are supplied by the Contractor only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1 At the Contractor’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Contractor to the Customer in respect of Materials supplied; or
(b) the Contractor’s quoted Price (subject to clause 4.2) which shall be binding upon the Contractor provided that the Customer shall accept the Contractor’s quotation in writing within thirty (30) days.
4.2 The Contractor reserves the right to change the Price in the event of a variation to the Concrete Contractor’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as hard rock barriers below the surface or iron reinforcing rods in concrete or as a result of increases to the Contractor in the cost of materials and labour) will be charged for on the basis of the Contractor’s quotation and will be shown as variations on the invoice.
Payment for all variations must be made in full at their time of completion.
4.3 At the Contractor’s sole discretion a non-refundable deposit may be required.
4.4 The Contractor may submit detailed progress payment claims in accordance with the Contractor’s specified payment schedule.
Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
4.5 At the Contractor’s sole discretion payment shall be due on delivery of the Materials.
4.6 Time for payment for the Materials shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and the Concrete Contractor.
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Materials
5.1 At the Concrete Contractor’s sole discretion delivery of the Materials shall take place when the Customer takes possession of the Materials at the Customer’s nominated address.
5.2 At the Concrete Contractor’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price;
(c) for the Customer’s account.
5.3 The Customer shall make all arrangements necessary to take delivery of the Materials whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the materials as arranged then the Concrete Contractor shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Materials to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 The Customer shall take delivery of the Materials tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%); and (b) the Price shall be adjusted pro rata to the discrepancy.
5.6 The failure of the Concrete Contractor to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Concrete Contractor shall not be liable for any loss or damage whatsoever due to failure by the Concrete Contractor to deliver the Materials (or any of them) promptly or at all, where due to circumstances beyond the control of the Concrete Contractor.
6.1 If the Concrete Contractor retains ownership of the Materials nonetheless, all risk for the Materials passes to the Customer on delivery.
6.2 If any of the Materials are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Concrete Contractor is entitled to receive all insurance proceeds payable for the Materials. The production of these terms and conditions by the Concrete Contractor is sufficient evidence of the Concrete Contractor’s rights to receive the insurance proceeds without the need for any person dealing with the Concrete Contractor to make further enquiries.
6.3 Where the Customer has supplied materials for the Contractor to complete the works, the Customer acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Concrete Contractor shall not be responsible for any defects in the works, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Customer.
6.4 The Customer acknowledges that variations of colour and texture are inherent in concrete. The Contractor shall not be liable for any loss, damages or costs howsoever arising resulting from any variation of the colour or texture between different batches of product.
6.5 Detailed drawings of any services that will be embedded in the concrete are to be provided to the Concrete Contractor prior to commencement of any works. Whilst all due care will be taken no liability will be accepted by the Concrete Contractor for damage to the services or any other element embedded in the concrete.
6.6 The Customer acknowledges that the curing time for concrete can be affected by elements such as temperature or the weather, as such the Concrete Contractor offers no guarantee as to the length of time the curing process will take.
6.7 The Concrete Contractor offers no guarantee against cracking of concrete.
6.8 Where the Concrete Contractor gives advice or recommendations to the Customer, or the Customer’s agent, regarding the suitability of the worksite for the laying of concrete slabs, foundations or similar works and such advice or recommendations are not acted upon then the Concrete Contractor shall require the Customer or their agent to authorise commencement of the works in writing. The Concrete Contractor shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the works.
7.1 The Customer shall ensure that the Concrete Contractor has clear and free access to the work site at all times to enable them to undertake the works. The Concrete 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 Concrete Contractor.
8. Underground Locations
8.1 Prior to the Concrete Contractor commencing any work the Customer must advise the Contractor of the precise location of all underground services on the site and clearly mark the same. The underground mains & services the Customer 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.
8.2 Whilst the Contractor will take all care to avoid damage to any underground services the Customer 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 8.1.
9.1 The Contractor and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid the Contractor all amounts owing for the particular Materials; and
(b) the Customer has met all other obligations due by the Customer to the Contractor in respect of all contracts between the Contractor and the Customer.
9.2 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 or rights in respect of the Materials shall continue.
9.3 It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until the Concrete Contractor shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Materials shall pass from the Contractor to the Customer the Concrete Contractor may give notice in writing to the Customer to return the Materials or any of them to the Concrete Contractor. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Materials shall cease; and
(c) the Concrete Contractor shall have the right of stopping the Materials in transit whether or not delivery has been made; and (d) if the Customer fails to return the Materials to the Concrete Contractor then the Contractor or the Contractor’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Materials are situated and take possession of the Materials; and
(e) until such time that ownership in the Materials passes to the Customer, if the Materials are converted into other products, the parties agree that the Contractor will be the owner of the end products.
10.1 The Customer shall inspect the Materials on delivery and shall within three (3) days of delivery (time being of the essence) notify the Concrete Contractor of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Concrete Contractor an opportunity to inspect the Materials within a reasonable time following delivery if the Customer believes the Materials are defective in any way. If the Customer shall fail to comply with these provisions the Materials shall be presumed to be free from any defect or damage. For defective Materials, which the Concrete Contractor has agreed in writing that the Customer is entitled to reject, the Concrete Contractor’s liability is limited to either (at the Concrete Contractor’s discretion) replacing the Materials or repairing the Materials except where the Customer has acquired Materials as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Materials, or repair of the Materials, or replacement of the Materials.
10.2 Materials will not be accepted for return other than in accordance with 10.1 above.
11.1 To the extent permitted by statute, no warranty is given by the Concrete Contractor as to the quality or suitability of the Materials for any purpose and any implied warranty, is expressly excluded. The Contractor shall not be responsible for any loss or damage to the Materials, or caused by the Materials, or any part thereof however arising.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Concrete Contractor’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Concrete Contractor.
12.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Concrete Contractor from and against all costs and disbursements incurred by the Concrete Contractor in pursuing the debt including legal costs on a solicitor and own client basis and the Concrete Contractor’s collection agency costs.
12.4 Without prejudice to any other remedies the Concrete Contractor may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Concrete Contractor may suspend or terminate the supply of Materials to the Customer and any of its other obligations under the terms and conditions. The Concrete Contractor will not be liable to the Customer for any loss or damage the Customer suffers because the Concrete Contractor has exercised its rights under this clause.
12.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to the Concrete Contractor’s other remedies at law the Concrete Contractor shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Concrete Contractor shall, whether or not due for payment, become immediately payable in the event that:
(a)any money payable to the Contractor becomes overdue, or in the Contractor’s opinion the Customer will be unable to meet its payments as they fall due; or
(b)the Customer becomes insolvent, 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
13. Security and Charge
13.1 Despite anything to the contrary contained herein or any other rights which the Concrete Contractor may have howsoever: (a)where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Concrete Contractor or the Concrete Contractor’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Concrete Contractor (or the Concrete Contractor’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Concrete Contractor elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Concrete Contractor from and against all the Concrete Contractor’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Concrete Contractor or the Concrete Contractor’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 The Concrete Contractor may cancel any contract to which these terms and conditions apply or cancel delivery of Materials at any time before the Materials are delivered by giving written notice to the Customer. On giving such notice the Concrete Contractor shall repay to the Customer any sums paid in respect of the Price. The Concrete Contractor shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of Materials the Customer shall be liable for any loss incurred by the Concrete Contractor (including, but not limited to, any loss of profits) up to the time of cancellation.
15. Privacy Act 1988
15.1 The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for the Concrete Contractor to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Concrete Contractor.
15.2 The Customer agrees that the Concrete Contractor may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
15.3 The Customer consents to the Concrete Contractor being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Customer agrees that personal credit information provided may be used and retained by the Concrete Contractor for the following purposes (and for other purposes as shall be agreed between the Customer and Contractor or required by law from time to time):
(a) the provision of Materials; and/or
(b) the marketing of Materials by the Contractor, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Materials; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Materials.
15.5 The Concrete Contractor may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
15.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that the Concrete Contractor is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of the Concrete Contractor, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by the Concrete Contractor has been paid or otherwise discharged.
16. Building and Construction Industry Payments Act 2004
16.1 At the Concrete Contractor’s sole discretion, if there are any disputes or claims for unpaid Materials and/or Services then the provisions of the Building and Construction Industry Payments Act 2004 may apply.
16.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 of New South Wales, except to the extent permitted by the Act where applicable.
17.1 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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 The Concrete Contractor shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Concreter Contractor of these terms and conditions.
17.4 In the event of any breach of this contract by the Concrete Contractor the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Materials.
17.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Concrete Contractor nor to withhold payment of any invoice because part of that invoice is in dispute.
17.6 The Concrete Contractor may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
17.7 The Customer agrees that the Concrete Contractor may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Contractor notifies the Customer of such change.
17.8 The Concrete Contractor shall not 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.
17.9 The failure by the Concrete Contractor to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Contractor’s right to subsequently enforce that provision.
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