TERMS & CONDITIONS
These Terms & Conditions shall apply to the exclusion of all others including any Terms & Conditions of the Applicant (whether on the Applicant’s Order Form or otherwise). No goods or services will be supplied by Midway Concrete & Garden Supplies Pty Ltd on any Terms & Conditions other than those set out herein and by taking delivery of the goods the Applicant shall be deemed to agree to these Terms & Conditions. For the purposes of these Terms & Conditions Midway Concrete & Garden Supplies Pty Ltd shall mean and include the party named above and/or in whose name an Account is maintained by Midway Concrete & Garden Supplies Pty Ltd.
CONCRETE STRENGTH, ETC.
The concrete ordered under Australian Standard Ready Mixed Concrete No. AS1379 including amendments, will be supplied of a standard not less than prescribed by the relevant specification.
Testing will not be automatically carried out, however, if instructed a testing programme will be arranged at the Customer’s expense. Charges for this service will be in accordance with the Company’s scale of rates. The company does not recognize and will not be bound by test results by others unless concrete is sampled in accordance with Australian Standard No. 1379 and tested strictly in accordance with AS No’s. 1012 and amendments.
The company will not be liable and the Customer agrees to indemnify the Company in respect of any claims made by the Customer or any third party which arises out of any defects which may develop in the concrete which are due to:
Faulty handling, placing or curing of the concrete or faulty job practice by the Customer or its Subcontractors or any other person. Claims will not be recognized unless received in writing not later than five weeks after the date of the pouring of the concrete.
The addition of any water or other material to the concrete either before or after the discharge from the delivery unit without the express instruction of a representative of the Company. Drivers of the delivery vehicles shall not be deemed to be a representative of the Company for this purpose.
The addition of any additives to the concrete at the request or specification of the Customer, unless the Company confirms the same in writing.
Any negligent act or omission of the Customer in the handling and treatment of the concrete in situ.
Any act or omission of any third party which could have been reasonably foreseen by the Customer.
The strength characteristics of the concrete are those shown on the face of the delivery docket and upon signing the docket, the Customer becomes bound by the information shown thereon. Customers are solely responsible for ensuring the strength shown accords with the specification and the Company will not be held liable for any loss or damage incurred by reason of the Company’s failure to provide concrete according to specification if such failure could have been discovered by the Customer upon reasonable inquiry.
The Company make no guarantee or warranty as to the strength of the concrete if the concrete is not in situ within 1¾ hours of leaving the plant or if any of the events referred to in Clause 3 above shall occur. The time of leaving the plant is shown on the delivery docket.
Although the Company undertakes to supply concrete in accordance with Clause 1 above, if to do so necessitates the addition of a cooling or heating agent, the cost thereof will be charged as an extra.
DELIVERY
The Company will not be liable in any manner whatsoever for the delay in delivery of concrete provided that due care and responsibility is exercised by the Company in attempting to meet scheduled requirements.
Delivery must be accepted and effected by the Customer within the discharge time allowance provided in the selling price. If delivery is not effected within the time allowed then excess discharge time will be charged at the ruling rate.
In the event of the orders being placed and then cancelled, the Customer will pay to the Company at costs incurred by the Company up to the time of cancellation and any costs yet to be incurred by Company in relation to the cancelled order. The company’s assessment of these costs shall be binding on the Customer.
In the event of the concrete (part or whole load) being returned by the Customer. The Customer agrees to pay in full for all concrete ordered and to reimburse the Company for any costs incurred as a result of such returns including costs of return of cartage and disposal.
Unless prior agreement is reached, the Company undertakes to deliver and the Customer to receive the concrete at the kerb alignment. The delivery vehicle will only enter the job area to facilitate unloading at the Customer’s sole risk and responsibility and at the absolute discretion of the truck driver.
Delivery is specified at Kerb Side Only. Delivery of materials is at the Customer’s risk. The Company is not responsible for and the Customer agrees to indemnify the Company against any consequential damages arising from delivery.
PRICE AND PAYMENT
The price quoted is net per cubic metre minimum load and GST exclusive. Extra cartage is chargeable for Loads less than the minimum.
Deliveries outside normal working hours will be subject to surcharges as from time to time defined by the Company.
Prices referred to herein are based on current material, labour, administrative and transport costs as determined by the Company and its contractors from time to time. In the event of any increase in any of these costs the quotation shall be no longer valid and prices charged shall increase in accordance with the increase in such costs or otherwise at the discretion of the Company.
The amount charged is based upon the quantity shown on the face of the delivery docket. Upon signing the docket, the Purchaser becomes bound by the information shown thereon and no claims for short deliveries will be entertained by the Company.
The Customer will pay the price of the concrete either prior to discharge, or, if credit arrangements have been made, on or before the last day of the month next following the month in which the concrete is delivered. If the Customer defaults in any payment or in complying with its obligations elsewhere contained in these conditions of sale and delivery all credit arrangements shall, unless the Company at its complete discretion decides otherwise, forthwith cease and all monies owing for concrete delivered shall be payable forthwith and the Company may sue to recover such monies forthwith and without notice to the Customer. Amounts not paid by the Customer by the due date shall bear interest at the rate of 20% per annum from the date of delivery to the date of payment. All amounts received by the Company shall be credited first against such interest.
In the event of the Customer defaulting on any payment due and payable to the Company:
then all money which would become payable by the Customer to the Company at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Company may, without prejudice to any other remedy available to it proceed to recover the whole amount.
the Customer shall pay all unpaid accounts, and all expenses and costs (including legal costs and disbursements on an indemnity basis) incurred by the Company in enforcing or seeking to enforce or recover moneys owed, including in taking whatever action it deems appropriate to recover or defend any action instituted by the Customer relating to any sum due to the Company
To better secure payment of any monies owed by the Customer to the Company:
if the Customer is incorporated pursuant to the Corporations Act 2001 or previous corresponding legislation,
grants a fixed and floating charge over the assets of the Customer in favour of the Company And to allow the registration of that charge by the Company to secure all monies owing to the Company;
grants a charge to the Company in respect of all right, title and interest in and to any interest in land held either wholly or jointly by the Customer as security for all monies owed to the Company;
if the Customer is a natural person, to grant a charge to the Company in respect of all right, title and interest in and to any interest in land held either wholly or jointly by the Customer as security for all monies owed to the Company and further agrees and consents to the registration by the Company, pursuant to the charge, of a registered mortgage against the title to property owned either wholly or jointly by the Customer and to do all things necessary to register the mortgage, including signing all necessary documents to secure the charge.
The Customer shall pay all costs and expenses, including legal costs and disbursements, incurred by the Company associated with the granting, registration and enforcement of the charge and/or mortgage.
In the event of any dispute arising between the Company and the Customer, the Customer will pay to the Company the amount then owing to the Company which amount will be held by the Company until the Determination of the dispute and the Customer shall not commence any action or claim against the Company in any court whatsoever before paying such amount to the Company. The Company and/or his Agents shall not be liable for any damage caused to the premises or property of the Customer and/or his Agent was assisting the Company’s agent in the delivery of the goods the subject of this Delivery Docket.
Terms of payment are strictly 30 days. After that period, the Seller shall charge interest at the rate of 20% Per annum. Interest shall be added to each monthly account after the first monthly account.
GENERAL
Any reference to the Customer in these terms and conditions means and includes the Customers, his Employees, agents and sub-contractor. The actions or signatures of any person appearing to have the authority of the Customer so to do shall bind the Customer.
All warranties whether expressed or implied and whether statutory or otherwise with regard to the goods/services supplied by the Company as to quality, fitness for purpose or any other matter are hereby excluded except insofar as any such warranties are incapable of exclusion at law. These terms and conditions cannot be altered except by the Company’s duly authorised representative in writing.
The Applicant agrees to notify the Company in writing of any change of ownership of the Customer within 7 days from the date of such change and indemnifies the Company against any loss or damage incurred by it as a result of the Applicant’s failure to notify Company of any change.
Failure by The Company to enforce any of these Terms shall not be construed as a waiver of its rights.
If any term or condition is unenforceable it must be read down so as to be enforceable, or if it cannot be read down, the term or condition may be severed from these Terms without effecting the enforceability of the remaining Terms.
TERMS AND CONDITIONS
General Supply Terms
Supply of Goods
We may supply Goods to you from time to time. These General Supply Terms apply to any supply of Goods made by us to you on a cash basis. (If we supply Goods to you on credit, the Trading Terms in our Credit Application Form will apply to that supply).
You must pay the price for the Goods prior to Delivery.
Risk in Goods supplied by us to you passes at the time of Delivery.
Delivery means the time that:
you (or a representative of yours) collect the Goods from us; or
we deliver the Goods to a location agreed by us and you, as determined by us, acting reasonably.
Orders & Delivery
You may place an order with us by using our order form, or such other form we approve (acting reasonably). We may accept or reject your order.
In the event of any inconsistency between the order and these General Supply Terms, these General Supply Terms will prevail.
If our ability to fulfil an order is affected by a circumstance or event beyond our control we may (acting reasonably):
extend the date for Delivery;
with your approval, alter the specifications for the Goods to allow the substitution of equivalent Goods; or
cancel the order.
Any times estimated or quoted for Delivery are reasonable estimates and may be subject to change. We will do our best to keep you reasonably informed as to any changes to times quoted for Delivery.
We do not accept liability for any loss or damage suffered or incurred by you if any Goods are not Delivered on time or are otherwise affected by any circumstances contemplated in clause 2.3.
Other than as contemplated in clause 2.3, any delays in Delivery (acting reasonably) will not constitute grounds for cancellation of the subject order or any other order by you, unless you and we otherwise mutually agree.
We will use reasonable endeavours to Deliver the Goods at the kerb alignment of the Job Area. The delivery vehicle may enter the Job Area to facilitate unloading, including any concrete pour, of the Goods at your risk and responsibility, and, where so, you must ensure that the delivery vehicle has safe and unimpeded access to enter the Job Area and to a safe and suitable space to unload, including any concrete pour, the Goods.
At the time of Delivery we will provide you with a delivery docket which sets out the specifications of the Goods. You must ensure the delivery docket complies with the specifications of your order (including any characteristics of the concrete and the quantity). Upon your signing of the delivery docket or your instruction to unload the Goods, you will be taken to have approved the specifications on the delivery docket.
You indemnify us and keep us indemnified from and against any loss or damage suffered by:
us;
you; or
any third party,
in connection with our delivery of the Goods to you at the Job Area, except to the extent the loss or damage is suffered as a result of our fraud, wilful misconduct or negligence.
Payments & charges
Any pricing given in a Quotation is valid for 14 days from the date of the Quotation.
All prices that we provide are in Australian dollars and unless otherwise specified are exclusive of GST.
You must make all payments to us prior to Delivery of the Goods unless our Invoice specifies other payment terms.
In the event you seek to effect payment through the use of a credit card facility which is accepted by us, and for whatever reason you later instruct your credit provider to stop payment, any charges which may be imposed by your credit card provider are payable by you.
In relation to some Goods that we supply, further applicable fees, terms and surcharges in relation to the Goods are set out in the Concrete Surcharges section after these General Supply Terms.
Warranties & liability
Nothing in this agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot lawfully be excluded or limited and that includes the consumer guarantees that may apply by application of the Australian Consumer Law (ACL), to the goods and services that you acquire from us.
Other than the non-excludable warranties, conditions, rights or guarantees implied or imposed by relevant legislation, including the ACL, you agree and acknowledge that we exclude all liability arising from any implied or imposed express representations, terms, conditions or warranties that would otherwise apply to the Goods provided by us.
We are not liable for any defects in the Goods to the extent:
the defect arises because you failed to follow our verbal or written instructions and/or specifications for the storage, commissioning, installation, use or maintenance of the Goods or general industry practice;
the defect arises due to any act or omission by you, your sub-contractors or any other third party in the handling, treatment, placing or curing of the concrete, including the addition of any water, additives or other material to the concrete without our express instruction;
the defect arises as a result of us following any instruction, drawing, design or specification supplied by you to us;
you alter or change the Goods without our written consent;
the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions;
the Goods differ from their description or any specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements, including AS1379.
You acknowledge that:
there are inherent risks and factors which may affect the strength of concrete. This includes the time within which it is poured and how the concrete is cured once in position. For example, concrete pour rate and weather elements (including rain and climate temperature);
concrete is made up of natural materials and, therefore, we cannot control: variations in the colour of both concrete and aggregate; aggregate shapes & sizes; concrete cure colour variations including arising from cure rates, cure conditions and pure rates; and general characteristics of aggregates, in respect of each order that we supply;
concrete colour, aggregate colour and aggregate shapes and sizes, may be different to the exact product that you select compared with what is supplied by us to you.
Without limiting or excluding any of your rights under the ACL, we are unable to provide a guarantee as to the strength or suitability of the concrete we supply to you, save and except that concrete supplied by us will be of a strength and standard not less than that prescribed by the relevant specification under AS1379.
If you believe the Goods provided by us are defective, you must provide us with:
notice within a reasonable time after your receipt of the Goods; and
all information reasonably requested by us, including proof of purchase and maintenance records (if applicable).
If the Goods provided by us are defective and we are liable for the defect, then we may at our option:
replace the rejected Goods or supply equivalent goods;
repair the rejected Goods;
reimburse you for the cost of replacing the rejected Goods or of acquiring equivalent goods;
reimburse you for the cost of repairing the rejected Goods;
if you have not paid the price for the rejected Goods, release you from any obligation to pay the price for the rejected Goods; or
if you have already paid the price for the rejected Goods, refund to you the price for the rejected Goods.
If you are located in metropolitan Melbourne, Victoria, then we may, before complying with clause 4.7, send out a representative to inspect the Goods with a view to repairing the Goods, for which safe working access to the Goods must be provided by you.
Subject to the other terms of this clause 4:
in respect of a supply of Goods to you, our maximum aggregate liability to you is limited to the remedies in clause 4.7;
we exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss or damage arising under or in connection with these General Supply Terms or any other documents or promotional materials provided by us.
General
Variation
We may vary these General Supply Terms at any time. If you are an existing customer we will provide you with at least 45 days written notice before the variations become applicable to any future orders you place with us. We may also vary the Concrete Surcharges in accordance with the ‘Updates’ row of that section. All updates and variations will be reflected on our website.
Waiver
A failure by us at any time to require performance by you of any provision of these General Supply Terms shall not affect in any way our rights to require such performance at any time, nor shall the waiver by us of a breach of any provision these General Supply Terms be deemed a waiver of the provision itself or any other provision of these General Supply Terms.
GST
Where we make a Taxable Supply to you and the consideration otherwise payable for the Taxable Supply does not include GST, we are entitled, in addition to any other consideration recoverable in respect of the Taxable Supply, to add GST on the Taxable Supply and recover that amount from you.
Assignment
You must not assign, transfer, charge or otherwise seek to deal in any of your respective rights or obligations under these General Supply Terms without our prior written consent, which will not be unreasonably withheld. We may assign our rights under these General Supply Terms including any invoice, provided that you are not unfairly affected by the assignment. You acknowledge that we may in future acquire additional subsidiaries which may supply Goods to you and you agree that these General Supply Terms will apply to the purchase of those Goods.
Severance
Any provision of, or the application of any provision of these General Supply Terms which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition. Any provision of, or the application of any provision of these General Supply Terms, which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions of these General Supply Terms in that or any other jurisdiction.
Prior agreements
If you have entered into a credit arrangement with us, then the Trading Terms contained in our Credit Application Form will continue to apply and these General Supply Terms will not supersede that agreement.
Subject to a), these General Supply Terms otherwise supersede any previous agreements entered into between the parties which relate to the subject matter of these General Supply Terms.
Governing law
These General Supply Terms are governed by the laws in force in Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and the Federal courts of Australia and any courts having jurisdiction to hear appeals from those courts.
Definitions and Interpretation
In these General Supply Terms, unless the contrary intention appears capitalised terms have a special meaning:
“ACL” means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
“AS1379” means Australian Standard No. 1379: Specification and Supply of Concrete, as in force at the date of Delivery.
“Business Day” means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria, Australia.
“Concrete Surcharges” means the concrete surcharges table listed after these General Supply Terms, as updated from time to time.
“Corporations Act” means the Corporations Act 2001(Cth).
“Customer”, “you”, “your” means the recipient of any Goods supplied to you by us.
“Delivery”, “Deliver”, “Delivered” has the meaning given to it in clause 1.4.
“Invoice” means any invoice issued by us to you.
“Goods” means any goods and/or services supplied to you by us.
“GST” has the meaning given to it in the GST Act.
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
“Job Area” means the location at which you request the Goods to be Delivered to.
“Quotation” means any document issued by us that contains a quotation of the price relating to Goods.
“Supplier”, “we”, “us”, “our” means Aerolink Property Corporation Pty Ltd trading as Midway Mini Mix Concrete Garden and Building Supplies or any of its related bodies corporate (as defined by the Corporations Act) or assigns from whom Goods are purchased, or its employees.
“Taxable Supply” has the meaning given to it in the GST Act.
In these General Supply Terms, unless the contrary intention appears:
headings to clauses are for convenience only and do not affect interpretation;
any reference to a clause, background recital, schedule or annexure is a reference to a clause of, recital in, schedule to or annexure to, these General Supply Terms;
if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
the words “include”, “including”, “for example”, “such as” or cognate expressions are to be construed without limitation;
a reference to a document (including these General Supply Terms) or to a statute, ordinance, code or other law includes a regulation, rule or other statutory instrument issued under it and consolidations, amendments, re-enactments or replacements of any of them;
the singular includes the plural and vice versa;
where any obligation of these General Supply Terms is to be performed on a day other than a Business Day, that obligation is to be performed on the next Business Day;
no provision of these General Supply Terms is to be construed to the disadvantage of a party because that party prepared, or was responsible for the preparation of, these General Supply Terms or a provision of these General Supply Terms.