TERMS & CONDITIONS

TERMS AND CONDITIONS OF TRADE

1. Contract and Acceptance

• These terms and conditions (terms) constitute an agreement between Concrete Booking Agency Pty Ltd Pty Ltd (ACN 161 264 553) trading as Concrete Sales (CBA) and the Customer (Customer or you) in relation to any goods and/or services to be provided to the Customer by CBA. The Customer is taken to have accepted and be bound by these terms if it instructs CBA to provide any goods and/or services, accepts such goods or services or accepts these terms in any other manner recognised by law.
• The Customer acknowledges and agrees that these terms and conditions shall be read together with any quote in relation to goods and/or services that may have been provided by CBA to the Customer.
• The Customer acknowledges that CBA may, in its entire discretion, sub-contract, assign or license or any part of its rights and obligations in terms of this agreement. The Customer may not assign or transfer any of its rights or obligations in terms of this agreement without the prior written consent of CBA.
• These terms may only be amended by written agreement between the parties.
• In the event of there being any conflict between these terms and conditions and any terms and conditions, purchase order or similar document provided by the Customer, then these terms will take precedence.

2. Definitions

• “CBA” means Concrete Booking Agency Pty Ltd trading as Concrete Sales of 52 Holloway Drive, Bayswater, Victoria 3153 and includes any agents, contractors, sub-contractors and employees of the company.
• “Customer” means the Customer or entity purchasing goods or services from CBA, its successors and assigns or any person acting on behalf of and with the authority of the Customer, as described in any application, quote, work authorisation or other form.
• “Guarantor” means any person or persons, or entity, who agrees to be jointly and severally liable for the debts of the Customer in accordance with these terms.
• “Works” means any goods and/or services provided by CBA to the Customer in accordance with these terms.

3. Price and Payment

• The price payable for the goods and/or services shall be either:
  • the amount indicated on invoices provided to the Customer, or
  • the price quoted by CBA, provided the Customer accepts such quotation in writing within 30 days.
• CBA requires the full cost of any goods to be delivered to the Customer plus any delivery costs to be paid in advance in respect of any goods and/or services, before any goods and/or services are delivered. The Customer agrees that CBA may pre-authorise the Customer’s credit card for an amount equivalent to the cost of any goods plus between 5% and 15% of such cost, to allow for any surcharges and any other legitimate expenses on the date of delivery. In the event that the total costs of supply of the goods and/or services exceeds the pre-authorised amount, then the Customer hereby authorises CBA to charge such additional amount to the credit card provided.
• In the event of the Customer not paying in full as indicated in clause 3 (b) above, payment in full shall be due on delivery of the goods and/or services, or in accordance with an written agreed plan for payments in instalments. Payments by credit card shall be subject to payment of any surcharge charged by the financial institution to CBA.
• All goods and services are subject to payment of Goods and Services Tax (GST).
• Unless agreed to the contrary in writing, any amounts not paid within 14 days of due date shall be liable for payment of interest at the rate stipulated in terms of the Penalty Interest Rates Act (Vic), as varied from time to time, with effect from the due date. In the event of CBA incurring any costs (including legal costs) in order to recover any amount owing in terms of these terms, or to enforce its rights in accordance with these terms, the Customer agrees that it will be liable for the legal costs of CBA on a solicitor and own client basis and any collection agency costs.

4. 4. Delivery

(a)     CBA will deliver and the Customer will receive the goods at the curbside or public roadway frontage of the delivery address.

(b)     The Customer will be responsible for providing adequate and timely access to the delivery address and notifying CBA prior to delivery of any obstacles or peculiarities in relation to the delivery site, including whether the site or its approach has a gradient greater than 8%.

(c)     The Customer must ensure that a member of their personnel is available at the delivery address on the delivery date to sign the delivery docket. The Customer furthermore acknowledges that signature of the delivery docket by a member of the Customer’s personnel will be the Customer’s confirmation that the delivery of the goods complies with CBA’s obligations in terms of these terms and conditions.

(d)     CBA may refuse to deliver goods and return the goods at the Customer’s cost, if CBA or a member of its personnel considers it would be unsafe to deliver the goods.

(e)     CBA quotes on work on the assumption that the delivery site is safe and complies with all relevant legislation and regulations.

(f)      The Customer acknowledges liability for on-site preparations or placement techniques (including the adding of water or sugar or other additives), or finishing techniques (including the hosing or polishing of concrete) used by the Customer or its contractors.

(g)     The Customer furthermore acknowledges liability for all or any charges or fines levied by local authorities, police or other regulatory bodies in relation to the delivery of concrete.

(h)     CBA:

1. will only deliver goods during normal business hours, unless agreed otherwise in writing;
2. will attempt to deliver the goods to the specified delivery address on the delivery date;

• may deliver goods in separate loads;

1. may charge additional charges, including waiting time and the cost of returned concrete, if the Customer is unable to receive delivery of the goods at the specified delivery address on the delivery date;
2. may charge the additional cost of transport to and from the site, in the event that the delivery driver reasonably believes that the site is unsafe and cannot deliver the concrete,
3. may deliver goods to the delivery address, regardless of whether there is a anyone at the address at the time of delivery;

• may require traffic management to be provided, at the customer’s expense, if the delivery driver requires such traffic management for safety purposes..

5. Variations, Exceptions and Time Extensions

• In the event of a variation to the proposed goods and/or services, CBA may change the price by either providing a new quotation, or providing a written variation notice. CBA may charge a fee for additional administration costs.
• CBA may charge an additional cost for delivering any goods to the Customer.
• Unless specifically included, the following items are excluded from any quote and will be subject to additional cost:
  • Waiting time
  • Return cartage
  • Any unexpected or hidden complications arising during the course of providing the services or delivery of the goods, or
  • Any services or delivery of goods which may be provided outside of normal trading hours, which costs may include overtime rates.
• The Customer acknowledges and agrees that the completion date for any services or the delivery of any goods may be extended, due to external factors over which CBA may have no control, such as inclement weather, force majeure and/or the exclusions referred to in clause 5(c) above.

6. Title and Risk

• CBA and the Customer agree that ownership of any goods will not pass until the Customer has paid CBA all amounts owing in relation to the goods and/or any services.
• The Customer may not grant an encumbrance or charge over the goods and/or services or transfer any interest in the goods and/or services while they remain the property of CBA.
• The Customer must provide CBA with notice in writing of any cancellation of works at the latest by 2 PM on the last business day prior to delivery. In the event of the Customer failing to provide such notice, CBA shall be entitled to retain any deposit paid, or to payment of 10% (ten percent) of the value of the goods or services, whichever amount is the higher.
• Although CBA retains ownership of the goods until all goods and/or services have been paid in full, full risk for the goods passes to the Customer on delivery. Where delivery is effected by CBA or its nominated carrier, delivery shall be when the Customer takes possession of the goods at the Customer’s nominated address.
• Notwithstanding any other provision of these terms and conditions, as CBA only delivers the concrete and is not responsible for the final concreting product, under no circumstances does CBA provide any guarantee in relation to the finish on the concrete.
• The Customer acknowledges that they must check the delivery docket for the concrete prior to discharge and in the event of the Customer not doing so and the incorrect concrete being delivered, then the Customer accepts liability for failing to check the delivery docket and shall have no claim against CBA in relation to the delivery of incorrect concrete.

7. 7. Limitation of Liability and Australian Consumer Law Guarantees

• Unless the Customer indicates otherwise, the Customer acknowledges that the goods and/or services it will acquire from CBA will be obtained for either the purpose of resupply (in an altered form or condition to be incorporated into other goods), or for the purpose of using them up or transforming them in trade or commerce in the course of a process of production or manufacture, or in the course of repairing or treating other goods or fixtures on the land.
• If the Customer is a consumer within the meaning of the Australian Consumer Law and any of the goods or services supplied by CBA are not goods of a kind ordinarily acquired for personal, domestic or household use or consumption, the Customer agrees that CBA’s liability for a failure to comply with a consumer guarantee under the Australian Consumer Law in relation to those goods or services (other than a guarantee under sections 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities)) of the Australian Consumer Law are subject to the following mandatory wording in terms of the Australian Consumer Law:

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.”

• The guarantees in this clause 7 shall not cover any defect or damage which may be caused or partly caused by or arise through:

(i) failure on the part of the Customer to properly maintain any Works; or

(ii) failure on the part of the Customer to follow any instructions or guidelines provided by CBA ; or

(iii) any use of any Works otherwise than for any application specified on a quote or order form; or

(iv) the continued use of any Works after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or

(v) fair wear and tear, any accident or act of God.

• The guarantees shall cease and CBA shall thereafter in no circumstances be liable under the terms of the guarantees if the goods and/or services are repaired, altered or overhauled without the consent of CBA.

(e)     In respect of all claims CBA shall not be liable to compensate the Customer for any delay in either replacing or remedying any workmanship or in properly assessing the Customer’s claim.

(f)      For goods not manufactured by CBA the warranty shall be the current warranty provided by the manufacturer of the goods. CBA shall be under no liability   whatsoever, except for the express conditions as detailed and stipulated in the   manufacturer’s warranty. CBA warrants that in respect of the supply of concrete it will only purchase concrete from suppliers which comply with S.A.A. “Specification and Supply of Concrete” AS 1379-2007, as amended from time to time.

(g)     Nothing in these terms is intended to have the effect of enabling CBA to contract out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts.

(h)     In the event of any breach of these terms and conditions by CBA, the remedies of the Customer shall be limited to damages, which shall not exceed the price of the goods and/or services under any circumstances. CBA shall furthermore not be liable for any indirect loss and/or expense (including loss of profits) suffered by the Customer, or any third party, as a result of a breach of these terms and conditions by CBA.

(i)      Neither party shall be liable for any breach of contract, or liable for any default, delays or failure to perform any of that party’s obligations in terms of these terms and conditions, due to any act of God, force majeure or other event beyond the reasonable control of that party.

8. Release and Indemnity

The Customer indemnifies CBA and each member of CBA’s personnel from and against any liability or claim arising directly or indirectly in relation to:

• The accuracy of any information provided by the Customer to CBA in relation to the goods and/or services provided in accordance with these terms and conditions or the delivery address;
• The Customer’s breach of these terms and conditions;
• The negligence or wilful misconduct of the Customer, or any member of the Customer’s personnel;
• CBA or any member of its personnel delivering the goods in accordance with the Customer’s instructions;
• CBA or any member of its personnel entering the delivery address;
• Damage to the property of the Customer or any third party during any delivery of goods;
• Any spillage, breakage or contamination of goods during any transport or delivery;
• The goods and/or services not being fit for any particular purpose, if the Customer has ordered the goods direct from a supplier and CBA is only delivering and pumping any concrete to the Customer’s site;
• Any tests in relation to goods and/or services;
• A Customer or any member of the Customer’s personnel directly or indirectly causing any delay in the supply of any goods and/or services;
• CBA having to resupply the goods and/or services, as a result of the actions or omissions of the Customer or any third party;
• The Customer or any member of the Customer’s personnel refusing to accept any delivery;
• The Customer or any member of the Customers personnel purporting to cancel any order or contract;
• CBA adding additives or other materials to concrete at the Customer’s request;
• The Customer or any other person handling, placing, curing or otherwise dealing with the concrete;
• The Customer or any other person adding water or any other substance to concrete whether before, during or after the delivery of the concrete;
• The actual discharge time (being the time between the arrival of CBA’s delivery vehicle at the delivery address and the completion of the discharge of the goods) exceeding CBA’s standard or stated discharge time;
• The effect of weather conditions on concrete, including but not limited to, heat, rain, wind or hail,
• The supply of exposed, decorative or coloured concrete by CBA, in particular in relation to the colour (including standard grey), texture, appearance or quality of exposed concrete or coloured concrete (including rust stains which may be caused by iron stone), as it cannot be guaranteed that those qualities will match the selections in any order or contract made by the Customer, or
• any proceedings, claims and demands in relation to any secured property.

Note: CBA recommends that prior to any concrete delivery, the Customer accesses the Cement Concrete and Aggregates Australia Smart Concreting APP for advice on best practices and whether it is a good day to pour concrete.

9. Personal Property Securities Act, 2009 (PPSA)

(a)     The Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and create a security interest in all goods that have previously been supplied and that will be supplied in the future by CBA to the Customer.

(b)     The Customer undertakes to:  

(i)      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 CBA may reasonably require to;

• register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
• register any other document required to be registered by the PPSA ; or
• correct a defect in a statement referred to in clause 9(b)(i)(a) or (b);      

(ii)      indemnify, and upon demand reimburse, CBA for all expenses incurred in registering a financing statement or financing charge statement on the Personal Property Securities Register established by the PPSA or releasing any goods and/or services charged thereby;

(iii)     not register a financing change statement in respect of a security interest in relation to the goods without the prior written consent of CBA;

(iv)    not register, or permit to be registered, a financing statement or financing charge statement in relation to the goods and/or services in favour of a third party, without the prior written consent of CBA.

(c)     CBA and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

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

(e)     The Customer waives their rights as a grantor and/or a debtor under section 142 and  143 of the PPSA.

(f)      Unless otherwise agreed to in writing by CBA, the Customer waives the right to receive a verification statement in accordance with section 157 of the PPSA.

(g)     If it is held that section 125 of the PPSA must apply, the Customer agrees that at any time after any security interest provided for by these terms and conditions has become enforceable, CBA may delay taking action to retain the whole or part of the collateral, to the extent permitted by law.

(h)     The Customers right to possession of goods still owned by CBA shall cease if:

• the Customer being an individual, commits an act of bankruptcy;
• the Customer being a company, circumstances arise where a receiver, manager, administrator, liquidator or controller becomes entitled to take possession of any of its assets, any proceedings are instituted for winding up, or the Customer enters into a deed of arrangement ;
• the Customer ceases or threatens to cease conducting business in the normal manner, or applies for deregistration or receives a deregistration notice;
• any cheque the Customer provides to CBA is dishonoured;
• the Customer fails to comply with any demand for payment issued by CBA, or
• the Customer breaches any of these terms and conditions.

(i)      The Customer must unconditionally ratify any actions taken by in terms of this clause.

(j)      Subject to any express provisions to the contrary, nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

10. Default

• If the Customer breaches the provisions of these terms and conditions, CBA may suspend or terminate the supply of the goods and/or services to the Customer and CBA will not be liable to the Customer for any loss or damage the Customer suffers because CBA has exercised its rights in terms of this clause.
• In the event of the Customer failing to pay any amount due in terms of these terms and conditions, the Customer becoming insolvent, convening a meeting with its creditors, entering into a deed of arrangement with creditors or making an assignment for the benefit of its creditors, or a receiver, manager, liquidator or similar person being appointed in respect of the Customer, then, without prejudice to any other remedies at law, CBA will be entitled to cancel the agreement entered into in accordance with these terms and conditions and claim all amounts owing to CBA .

11. Corporate Entity, Guarantee and Joint and Several Liability

(a)     If the Customer is a corporate entity, the person signing an acceptance of these terms and conditions, or accepting in any other manner recognised by law on behalf of that entity warrants that they are a duly authorised representative of the entity and that person hereby personally guarantees performance by the Customer of all its obligations as specified in these terms and conditions and agrees to be jointly and severally liable for the debts of the Customer on a principal debtor basis.

12. Dispute

(a)     If any dispute arises out of this agreement, the parties will attempt to resolve the dispute informally. If the parties have not resolved their dispute within 10 business days of one party notifying the other party in writing of the nature of the dispute, then the parties agree to:

• engage a mediator selected by agreement or, failing agreement within 5 business days after one party nominates a mediator in writing, selected by the President of the Law institute of Victoria or their nominee; and
• conduct a mediation in respect of the dispute within 20 business days after the mediator is appointed.

(b)        The parties agree to each pay half of the mediator's fees.

• A party must not commence court proceedings, except proceedings seeking interlocutory relief, in respect of a dispute arising out of these terms and conditions, unless it has complied with this clause.
• Notwithstanding any other provision of this clause 12, CBA shall be entitled to exercise its statutory right to payment or progress payments in terms of the Building and Construction Industry Security of Payment Act 2002 (the SOP Act) and CBA  may exercise its rights in terms of the SOP Act at any relevant time, without being required to comply with the dispute resolution provisions of this clause 12.

13. Privacy

(a)     These terms and conditions are subject to, and should be read with, CBA’s privacy policy, which is available on CBA’s website or on request.

14. General

(a)     These terms and conditions and the agreement entered into between the parties shall be governed by the laws of the State of Victoria and each party submits to the non-exclusive jurisdiction of the courts of that state.

(b)     In the event that any of these terms and conditions are found to be invalid, illegal or unenforceable, such validity, legality and enforceability shall not affect the validity of any other remaining provisions of these terms and conditions.

(c)     CBA reserves the right to alter these terms and conditions at any time.

(d)     The Customer acknowledges and agrees that all calls with CBA will be recorded by CBA for record purposes.