Terms & Conditions
1. DEFINITIONS
(a) “Company” means Concrush Pty Ltd ABN 29 097 606 543 (and its
successors and assigns and its agents).
(b) “Goods” means all products and services agreed to be sold or supplied
by the Company to the Customer under any agreement or arrangement
between the Company and the Customer.
(c) “Customer” means the person or entity who buys or has agreed to buy
the goods from the company.
2. GENERAL
If the Company approves and accepts the Customer’s application for a
trading account (and other related documentation such as, where the
Customer is a company, a trade account guarantee), then the agreement
between the Company and the Customer resulting from such acceptance
and each agreement made between the Company and the Customer for
the sale or supply of goods to the Customer by the Company is governed
by these terms of agreement. If there is any inconsistency between these
terms and conditions, the terms and conditions stipulated or referred to by
the Customer or any provision contained in any materials or literature
prepared by the Company, the terms and conditions disclosed in this
document shall prevail.
3. PRICE
(a) All prices estimated by the Company or stated in the Company’s price
lists are effective as at the date on which the price is estimated and are
subject to alteration without notice to the Customer.
(b) Retail price lists are inclusive of GST and are exclusive of any delivery
costs (including freight, loading and insurance).
(c) Unless otherwise agreed in writing by the Company the price payable
by the Customer will be the price prevailing at the time of despatch of the
goods by the Company to the Customer which price shall be due and
payable in full by the payment due date.
4. PAYMENT
Where credit terms have been approved, payment is due no later than 30
days from the date of statement, without any deductions, withholding or set
off. If the Customer fails to make payment by the due date then, without
prejudice to any other right or remedy, the company shall be entitled to:
(a) Cancel the order or suspend any further purchases or deliveries.
(b) Charge interest on amounts not paid by the Customer statement due
date at a rate being equivalent to the amount allowed by the Supreme
Court of New South Wales in respect of judgement debts as at the date of
such statement.
If legal action is taken to recover monies due to the Company, then the
Company reserves the right to charge the Customer an amount to cover all
and any costs (including legal costs) incurred by the Company.
5. CLAIMS
It is the responsibility of the Customer to verify for itself at the time of
supply that the quantity, quality and type of goods are supplied in
accordance with the Customer’s order. For any claim for short or wrongful
supply of goods the Customer must notify:
(a) The Company at the time of supply of the goods.
(b) The full particulars and substantiation of the claim shall be made by the
Customer in writing to the Company within 14 days thereafter.
(c) Any claim which the Customer does not notify or substantiate within the
time aforesaid (time being of the essence) shall be deemed to have been
absolutely waived.
6. DESCRIPTION
Any description of the goods is given by way of identification only and the
use of such description shall not constitute this or any agreement between
the Company and the Customer a contract for sale by description.
7. IMPLIED TERMS
All conditions and warranties howsoever expressed or implied are hereby
expressly excluded to the full extent permitted by law. Where so permitted
the liability of the Company for a breach of a condition or warranty that
cannot be excluded is limited at the Company’s option to the replacement
or rectification of the goods or supply of equivalent goods or the cost of
replacing or rectifying the goods or of acquiring equivalent goods.
8. INDIRECT LOSS
So far as the law permits the Company shall not be liable in any way
whatsoever for any indirect or consequential loss or loss of profit including
in particular, but not limited to, any loss by reason of delay, defective or
faulty ingredients or workmanship, negligence or any act, matter or thing
done, permitted or omitted to be done by the Company.
9. DELIVERY
The company’s responsibility for delivery of materials will cease at the kerbside
of the job address stated. If it is necessary for a vehicle to cross a footpath or
to enter upon private property in the course of effecting delivery the customer
will provide safe and accurate access and notwithstanding will pay for all
damage to any public or private property and every injury or wrong which may
result there from. The Company shall not be liable for any loss howsoever
arising as a result or consequence of any failure to supply all or part of the
goods on a particular date or at a particular time.
If the Company determines that it is or may be unable to supply within a
reasonable time or at all, the agreement may be cancelled by it. In the event of
cancellation the Customer shall have no claim against the Company for any
loss, cost or expense whatsoever. The Customer shall not be relieved of any
obligation to accept or pay for the goods by reason of any delay in supply.
10. PROPERTY AND OWNERSHIP OF THE GOODS
Property and ownership of the goods does not pass to the Customer, and
remains with the Company until payment to the Company by the Customer of
the whole of the purchase price of the goods and all other amounts unpaid to
the Company by the Customer. Until property and ownership of the goods
passes to the Customer the Customer has no right, title or interest to or in any
of the goods and holds the goods as fiduciary, bailee and agent for the
Company.
11. RISK
Unless otherwise agreed in writing, all risk in and to the goods purchased shall
pass to the Customer upon despatch of the goods to the Customer or its agent
or to a carrier commissioned by the Customer. Without in any way limiting the
operation of the foregoing, upon delivery of the goods to the Customer or its
agent or to a carrier commissioned by the Customer, the Customer covenants
and warrants to the Company that, in the storage and handling of the goods,
the Customer and his agents and carriers shall comply with all relevant
environmental laws and all relevant permits and licenses, and the Customer
shall ensure that the Customer and his agents and carriers are familiar with,
and adhere to, all the necessary and appropriate precautions and safety
measures relating to the storing and handling of the goods (including, but not
limited to, the Company’s policies and procedures for handling the goods at
the Company’s or its agents’ premises).
12. PERFORMANCE AND REPRESENTATIONS
The Customer acknowledges that neither the Company nor any person
purporting to act on its behalf has made any representation or given any
promise or undertaking which is not expressly set out in writing either in
respect of the fitness of the goods for any particular purpose or any other
matter.
13. WAIVER
Any waiver by the Company under this agreement must be in writing and
signed by the Company. Failure by the Company to insist upon strict
performance of any term, warranty or condition of this agreement shall not be
deemed a waiver thereof or of any right the Company may have and no
express waiver shall be deemed a waiver of any subsequent breach of any
term warranty or condition.
14. NOTICES
Any notices given by the Customer to the Company shall be sent in writing to
the Company by prepaid mail to, delivered at, or transmitted electronically
(including by facsimile) to the Company’s address above or as otherwise
specified by the Company. No such notice served on the Company shall be
deemed to have been given until it is actually received at such address and, if
received after 4pm on any business day or a non-business day, on the next
following business day. Any notice given by the Company to the Customer
shall be sent in writing to the Customer by prepaid mail to, delivered at or
transmitted electronically (including by facsimile) to the last address provided
by the Customer to the Company as its postal, facsimile or other electronic
address, and shall be deemed to have been received by the Customer if sent
by post, on the second business day after its posting; if sent by facsimile , on
the day of transmission if a business day (otherwise on the next following
business day) and on receipt of a complete transmission report; or if sent
electronically otherwise than by facsimile, upon receipt by the Company of
acknowledgement of receipt by the Customer.
15. GOVERNING LAW
This and any other agreement between the Customer and the Company for the
sale or supply of goods is made in New South Wales, and is governed by,
takes effect and must be construed in accordance with the laws of New South
Wales. The Customer and the Company irrevocably submit to the nonexclusive jurisdiction of the courts of New South Wales in respect of the
hearing and determination of any action or other proceeding concerning the
same.