Definitions and Inconsistency
1. In these Terms of Sale:
“Terms” means these Terms of Sale (including the Special Terms applicable to the type of goods being supplied);
“Company” means Eureka Concrete Holdings Pty Ltd (ABN 14 005 232 342), and its related bodies corporate, (as defined in the Corporations Act 2001), and its related business names and brands.
“Customer” means the customer placing an order and any agent or representative of that customer.
2. Placing of an order with the Company by the Customer for goods and/or services indicates acceptance by the Customer of these Terms for the provision of those goods and/or services. In the event of any inconsistency between these Terms and any terms and conditions on the Customer’s order, the Customer agrees that these Terms shall prevail.
Standard terms and conditions of sale
All goods and services are supplied subject to these conditions unless varied in writing by the Company and prevail over all conditions appearing on any document of the purchaser.
Any quotation or statement of price shall not constitute a firm offer to supply.
Quotations are open for acceptance by the Customer for 30 days from the date of the quotation.
3.1 The price for each delivery shall be the Company’s price ruling on the date of placement of the order.
3.2 Unless the Goods are supplied on credit:
3.2.1 payment is due in full before delivery;
3.2.2 where there is more than one load of Goods to be delivered to the Applicant, full payment must be made prior to the unloading of the first delivery vehicle; and Payment for service fees must be made at the time they are incurred.
4. Delivery and Surcharges:
4.1 Unless otherwise quoted, all prices are for supply, delivery and/or installation, (Work) undertaken during the Supplier’s business hours, Monday to Saturday. Any Work undertaken by the Supplier outside these hours may incur a service fee and the Applicant will be responsible for payment of this service fee.
4.2 The Supplier may:
4.2.1 charge waiting time or an hourly hire where a delivery vehicle is unable to unload promptly and without delay on arrival at the delivery site; and/or
4.2.2 charge a minimum load service fee for delivery of loads smaller than the minimum load size for each particular type of Goods.
4.3 Goods will be delivered to the roadside adjacent to the delivery site unless otherwise agreed in advance between Supplier and Applicant.
4.4 If, at the Applicant’s request, and, at the absolute discretion of the truck driver, the delivery vehicle leaves the road and enters the delivery site to unload, the Applicant is responsible for providing suitable and safe access for the Supplier delivery vehicle and the Suppliers’ agents and contractors. In addition, the Applicant indemnifies the Supplier and its agents and contractors for all damage and injury to any person and to any public or private property which may result including any costs associated with enabling the delivery vehicle to leave the site, and the cost of any returned product as a result of the Applicant failing to provide suitable and safe access to the delivery site.
4.5 Part deliveries are permitted and each instalment of goods delivered shall constitute a separate contract which shall be a separate debt.
4.6 Where orders are cancelled or varied, or delivery is delayed or prevented by any act of the Purchaser, then the Purchaser agrees to pay the costs that the Company incurred as a result of such cancellation, variation, delay or prevention.
4.7 The Company will not be responsible for failure to deliver or delay in delivery caused by or arising out of any circumstances whatsoever beyond the Company’s control.
4.8 Deliveries will be scheduled for normal trading hours may be made in accordance with these conditions by special arrangements with the Company.
4.9 The Company will not be responsible for malfunction or failure of equipment, or for any unsafe practice, at the Purchaser’s point of receipt.
4.10 If goods are sold on pallets, the pallets remain the property of the Company.
5. Formation of contract:
5.1 Placement of an order by the Applicant, either verbally or in writing, with the Supplier will constitute acceptance of the Supplier’s offer and of these terms and conditions.
5.2 All quotations provided by the Supplier are open for acceptance by the Applicant for 30 days from the date of the quotation.
The Applicant will become responsible for loss of or damage to the Goods, except where the Supplier is at fault, immediately upon delivery of the Goods to the nominated delivery site or the roadside adjacent to the delivery site or to a carrier nominated by the Applicant.
7.1 The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant. The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).
7.2 The Applicant will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including collection costs, debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Applicant to the Supplier irrespective of whether pursuit of the recovery action, claim or remedy is successful.
The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
9.1 All payments required to be made by the Applicant under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
9.2 Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.
10.1 The Applicant agrees to indemnify the Supplier against any liability the Supplier may incur as a result of the failure of the Applicant to follow generally accepted good practice, or due to a lack of ability, expertise, or skill with the particular type of Goods when they are being installed.
10.2 Pre-mixed concrete is sold in the plastic state and the subsequent in-situ performance when set is greatly affected by the Applicant’s work practices in handling, placing and curing of the concrete. The Supplier accepts no responsibility:
10.2.1 for the performance of pre-mixed concrete other than with respect to the criteria speciﬁed in AS1379 (when tested in strict accordance with the relevant Australian Standard by a NATA-accredited construction materials testing facility), and in particular the Supplier accepts no responsibility:
10.2.2 if water or any other material is added to the plastic concrete before or after discharge from the delivery vehicle, unless there is prior approval by an authorised representative of the Supplier; or
10.2.3 if the Applicant has speciﬁed or prescribed a pre-mixed concrete mix design other than a mix design devised by the Supplier; or
10.2.4 for the surface texture and colour of hardened pre-mixed concrete, including where the aggregate in the concrete has been exposed by the Applicant, and for any future colour change or oxidation of aggregates that have been exposed to the atmosphere.
10.2.5 Concrete uses ingredients – Sand, Aggregate, Water and Cement, all of which originate from naturally occurring materials. So some variation in colour and texture of a concrete surface is to be expected.
10.2.6 A popout is a small fragment of concrete surface that has broken away due to internal pressure, leaving a shallow, typically conical, depression. Popouts caused by alkali-silica reactivity (ASR) may occur as early as a few hours to a few weeks, or even a year, after the concrete is placed. Popouts caused by moisture-induced swelling may occur shortly after placement due to the absorption of water from the plastic concrete, or they may not appear until after a season or year of high humidity or rainfall or after the concrete has been exposed to freezing temperatures.
10.2.7 Polished Concrete – NATURAL PRODUCTS CAN VARY – Eureka Concrete decorative concrete contains aggregates and other materials that originate from natural quarry products. As such, some variation in appearance and consistency may occur from batch to batch, and the photographs used in this website are representative only.
11.1 If the Applicant believes that the Goods and/or services supplied do not conform with the order placed or that the price charged does not conform with the quotation given by the Supplier, the Applicant shall notify the Supplier in writing as soon as possible and, in any event, within 7 days, detailing the way in which the Goods or price do not conform.
11.2 Failure to give such notification within 7 days of the date of supply or date of invoice (as applicable) the Applicant will be deemed to accept the Goods and that they are in accordance with the order and quotation.
11.3 The Applicant shall be deemed to have accepted the Goods as supplied if it fails to keep the Goods in the condition they were in when supplied or declines a reasonable request from the Supplier to inspect the Goods.
12. Closing of account, Termination and Suspension:
12.1 Credit accounts may be closed without notice if not used for a period of 12 months.
12.2 If the Supplier is not satisfied as to the Applicant’s ability to pay for the Goods and/or services, it may suspend or terminate supply and shall not be liable for any claim, damage, loss, expense or cost arising therefrom and all monies then outstanding by the Applicant shall immediately become due and payable.
13. Consent to register:
13.1 The Applicant hereby consents to the Supplier recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to effect such registration.
13.2 The Applicant waives any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.