TERMS AND CONDITIONS OF PURCHASE
1. Unless otherwise agreed in writing by Landscaping and Water Cartage “the Seller”, the customer “the Buyer” agrees that it will be bound by these terms and conditions if the Buyer places an order with the Seller and it is accepted by the Seller. The Seller is not bound by any terms and conditions contained in any document issued by the Buyer.
2. Once an order has been accepted by the Seller, it cannot be cancelled by the Buyer. The supply of goods or services is subject to availability. The Seller reserves the right to suspend or discontinue the supply of goods or services to the Buyer. If the Seller is unable to supply all of the Buyer’s order, these terms and conditions continue to apply to any part of the order supplied.
3. Where a written quotation has been given by the Seller, the selling price is the price specified in the quotation. In any other case, the Seller’s selling price is the price specified in the price list as at the date of dispatch. Unless otherwise stated, the selling price does not include GST. The Seller may at any time change its price list to reflect, among other things, changes in exchange rates or the imposition of any duties, levies or other taxes and the Buyer is bound by those changes. The Seller may charge a reasonable handling fee for all orders delivered to the Buyer. The Buyer must accept any errors or omissions in invoicing and, where applicable, the Buyer must accept the amended pricing and pay the difference within the approved terms of trade.
4. Unless otherwise agreed in writing by the Seller, delivery is to the Buyer’s premises. If a delivery date is specified, that date is an estimate only and the Seller is not liable for any delay in delivery. Time is not of the essence in relation to delivery and the Buyer must accept delivery and pay for the goods delivered including transport costs, if applicable, even if they are delivered after any specified delivery date. Please note that delivery costs (otherwise called freight) does not include offloading and positioning of goods. This is the responsibility of the Buyer and depending on the size and weight of goods purchased, may require additional resources such as manpower and/or a forklift. Any additional costs incurred for offloading and positioning of goods upon delivery must be negotiated directly between the Buyer and freight delivery supplier.
5. The Buyer must inspect the goods or services immediately following delivery or completion of the services (as the case may be). The Buyer may only return goods with the prior approval of the Seller. The goods must then be returned within 21 days of the date of delivery in an unsoiled, undamaged and re-saleable condition and, where appropriate, in the original packaging. A reasonable handling fee for any returned goods will be charged to the Buyer. Any claim that the goods or services are not in accordance with these terms and conditions (including if they are defective, damaged during delivery, are short delivered or services not as per contract) must be made at the time of delivery/services provided or in writing to the Seller within 48 hours after delivery of the goods/completion of the services to the Buyer. If the Buyer fails to make a claim then, to the extent permitted by law, the goods or services are deemed to have been accepted by the Buyer and the Buyer must pay for the goods or services in accordance with these terms and conditions.
6. If employees or authorised representatives of the Seller attend any premises as directed by the Buyer to install or apply any goods or perform any services, the Buyer will ensure appropriate policies and procedures are in place and followed and generally implement good industry practice (including occupational health and safety policies and risk assessments for any dangerous or potentially dangerous activities) and act consistently with the Seller’s policies as notified to the Buyer. This includes ensuring all safety equipment, communications equipment or other items are provided, maintained and are fit for their intended purpose and conducting hazard and assessment risk assessments.
7. Unless otherwise agreed, if the Buyer has an approved credit account with the Seller, the Buyer must pay for goods or services ordered by the Buyer within 30 days from the end of the month of invoicing or earlier if the approved credit limit is exceeded. The Seller may charge an administration fee for any payments by credit card. Time is of the essence in respect of the Buyer’s obligation to make payment for goods or services supplied by the Seller to the Buyer.
8. If the Buyer does not make any payment by the due date, exceeds its credit limit at any time, commits any other material breach of these terms and conditions or an insolvency event in respect of the Buyer arises or is reasonably suspected by the Seller, the Seller may (without limiting any other right or claim it may have against the Buyer) do any or all of the following:
(a) charge the Buyer interest calculated on a daily basis on any portion of the Buyer’s account that is overdue at the rate of 2.5% from the date the payment was due until the date payment is made (both dates inclusive) as an account keeping fee;
(b) vary or withdraw any approved credit limit and/or terms of trade;
(c) cancel or suspend any unfilled orders or cease providing the services;
(d) terminate any contracts between the Seller and the Buyer and demand immediate payment of any moneys due and outstanding under those contracts;
(e) cancel any rebate, discount or allowance due or payable by the Seller as at the date of the event;
(f) enter (at any time) any premises in which the Seller’s goods (including any merchandising materials) are stored, to enable the Seller to inspect the goods and to reclaim possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Buyer whatsoever;
(g) lodge a caveat or other similar instrument over any property of the Buyer; or
(h) institute any recovery process as the Seller in its discretion decides at the Buyer’s cost and expense.
9. If any part of an invoice is in dispute, the balance will remain payable and must be paid when due. The Buyer has no right to set-off any claim against the Seller from moneys owing to the Seller.
10. Goods supplied by the Seller to the Buyer are at the Buyer’s risk immediately on the earlier of delivery to the Buyer or into the Buyer’s custody, including its carrier or forwarder. The Buyer must insure the goods at its cost from delivery of the goods until they are paid for in full against such risks as are usual or common to insure against in a business of a similar nature to the Buyer.
11. The Buyer charges to the Seller all of the Buyer’s rights, property and undertaking of whatever kind and wherever situated and whether present or future for the purpose of securing payment of all amounts that, at any time and for any reason or circumstance and whether at law or otherwise and whether or not of a type within the contemplation of the parties at the date of this Agreement, are payable, are owing but not currently payable, are contingently owing, or remain unpaid by the Buyer to the Seller. If the Buyer fails to pay any amount owing to the Seller by the date on which such payment is due, the Seller may appoint one or more receivers to the Buyer’s property and undertaking, and may do anything that a receiver could do under law.
12. Property in the goods supplied by the Seller to the Buyer does not pass to the Buyer until those goods have been paid for in full. In the meantime, the Buyer takes custody of the goods and retains them only as fiduciary agent and bailee of the Seller. Until goods have been paid for in full:
(a) to the extent possible, the Buyer must store the goods in a manner that shows clearly they are the property of the Seller, maintain records relating to the goods, secure the goods from risk, damage and theft and ensure that the goods are kept in good and serviceable condition;
(b) the Buyer may sell the goods, in the ordinary course of its business, but only as fiduciary agent of the Seller. The Buyer must not represent to any third party that the Buyer is acting in any capacity for or on behalf of the Seller and the Buyer has no authority to bind the Seller to any contract or otherwise assume any liability for or on behalf of the Seller. The Buyer receives all proceeds (including any proceeds from insurance claims) in trust for the Seller and must keep the proceeds in a separate bank account until all liability to the Seller is discharged;
(c) if the Buyer uses the goods in some manufacturing or construction process of its own or of a third party, the Buyer must hold in trust for the Seller that part of the proceeds of the manufacturing or construction process as is equal to the amount owing by the Buyer to the Seller at the time of receipt of the proceeds.
13. To the extent permitted by law and subject to any written warranty entered into between Seller and the Buyer with respect to goods provided under these terms and conditions, these terms and conditions exclude all other conditions, warranties, liabilities or representations in relation to the goods and /or services. Where legislation implies in these terms and conditions any condition or warranty that cannot be excluded or modified, the liability of the Seller for a breach of any such condition or warranty is limited at the Seller’s option to any one or more of the following:
a. In the case of goods:
i. replacement of the goods or the supply of equivalent goods;
ii. payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to the Buyer’s account, in cash or by cheque at the Seller’s discretion; or
iii. repayment of any part of the purchase price of the goods which has been paid by the Buyer, by credit to the Buyer’s account, in cash or by cheque at the Seller’s discretion.
b. In the case of advice, recommendations, information or services by supplying the advice recommendations, information or services again.
14. Subject to clause 12, The Seller is not liable for any loss or damage of any kind whatsoever and howsoever arising out of or in connection with the supply of goods and services, including (without limitation) any indirect or consequential loss (including without limitation loss of profit, loss of revenue, loss of contract, loss of goodwill or increased cost of workings), arising out of or in connection with the supply of goods or services, even if due to the negligence of the Seller or any of its employees or agents.
15. The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.
16. If any provision of these terms or conditions is unenforceable, illegal or void, that provision is severed and the other provisions of these terms and conditions remain in force.
17. The Seller may amend or vary these terms and conditions by notifying the Buyer in writing of the amendment or variation.
18. The laws of Australia apply to these terms and conditions and any account opened in the name of the Buyer. The parties irrevocably submit to the jurisdiction of the appropriate court convenient to the Seller in respect of any claims, proceedings and matters arising out of or in respect of these terms and conditions.
19. The exemptions, limitations, terms and conditions in these terms and conditions shall apply whether or not any loss or damage is caused by negligence or actions constituting fundamental breach of contract.
20. In the event asbestos or any other toxic substances are discovered at the site, that it is the Buyer’s responsibility to ensure the safe removal of the same. The Buyer further agrees to indemnify the Seller against any costs incurred by the Seller as a consequence of such discovery. Under no circumstances will the Seller handle removal of asbestos product.
21. Where the Seller requires that Materials, tools etc. required for the Works be stored at the site, the Buyer shall supply the Seller a safe area for storage and shall take all reasonable efforts to protect all items from destruction, theft or damage. In the event that any of the stored items are destroyed, stolen or damaged, then the cost of repair or replacement shall be the Buyers responsibility.
22. The Seller shall upon installation ensure that all Materials are to be installed in a manner that is fully compliant with industry standards. If, for any reason, the Buyer specifically requires the Materials to be installed in any way which goes against the Sellers’ recommendations and/or falls below industry standards; a request detailing that requirement must be made in writing to the Seller. Accordingly, The Seller offers no warranty in regards to the aforementioned.
23. The Seller accepts no responsibility for any damage or performance related problems with any Materials where they have not been used and/or maintained in accordance with The Sellers’ and/or the manufacturers’ recommendations.
24. The Buyer acknowledges that all descriptive specifications, illustrations, drawings, data dimensions, and weights stated in the Sellers’ fact sheets, price lists or advertising material are indicative only and that they have not relied on such information.
25. Where the Buyer has supplied materials for the Seller to complete the Works, the Buyer acknowledges and accepts responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Seller shall not be responsible for any defects in the materials, any loss or damage to the materials (or any part thereof), howsoever arising from the use of materials supplied by the Buyer.
26. The Buyer warrants that no other tradesmen interfere with any Works and/or Materials supplied under this contract. The Seller shall not be liable for any costs, damages or loss however arising from the Buyers failure to comply with this clause.
27. The Seller accepts no responsibility for:
(a) any damage or defects in any Materials caused by movement and/or interference of the said Materials;
(b) painting, re-decorating, re-sealing, carpentry or any other Works required for the restoration or making good of any surface/area where any Works have been carried out.
28. The Buyer acknowledges that they shall:
(a) not be entitled to withhold any payment due under this contract because of any delay in the connection of, or the supply of electricity to the Materials by an electrical distributor or any other third party;
(b) be responsible for any building work, excavation work, core drilling or any other non-standard surface penetrations that need to be carried out to enable the Seller to carry out the Works;
(d) remove any furniture or personal items from the vicinity of the Works, and agrees that the Seller shall not be liable for any damage caused to those items through the Buyers failure to comply with this clause;
(e) be wholly responsible for animals and/or children on the worksite;
(f) be wholly responsible for the removal of rubbish (including but not limited to contaminated soil stockpiling of excess spoil) from or clean-up of the worksite;
29. The Buyer acknowledges that it is there responsibility to locate and advise the Seller prior to the commencement of earthworks, of all utility services and fixed property (including but not limited to water, sewer, drainage, power and telephone services) at the site, including by providing Earthlift with ‘dial before you dig’ or other similar reports. The Seller will take all reasonable care not to damage any utility service or fixed property that the Seller is aware of. However, the Seller does not guarantee and is in no way responsible for any damages to these services and/or fixed property as a result of the Seller’s access to the site and/or performance of the earthworks.
30. Where earthworks are performed near existing structures at the site, such as buildings and fences, the Seller will:
(a) not be responsible for moving or removing any structures such as temporary fences, site amenities, building materials or the like at the site, due to OH&S regulations; and
(b) provide its Services and excavate as far as practically possible whilst maintaining the stability and structural integrity of the nearby structures (which are not removed prior to the commencement of the earthworks);
31. The Buyer agrees that the Seller will not be responsible for any additional earthworks you require for construction purposes, which the Seller considers (in its sole discretion), will compromise the stability and structural integrity of the nearby existing structures.
32. If the site involves filled or soft grounds, the Seller may require the placement of concrete or additional crushed rock or the like at access points or other similar areas. If the Seller places such concrete, crushed rock or the like at the site, it may charge you a fee for doing so, which fee will be notified to you by the Seller.
33. Unless expressly stated otherwise, the Quote and/or the Purchase Order, do not include any allowances for the excavation, hammering and/or blasting of Rock.
34. If the Seller encounters Rock at the site, the Seller will charge you an additional fee for breaking and/or removing Rock.
35. If you provide the Seller incorrect or misleading information regarding the site, or in the Seller’s reasonable opinion, the Seller is unable to complete the earthworks in a proper manner due to site conditions beyond its control, the Seller may charge you any additional costs it incurs, or fees payable, as a result of the incorrect or misleading information, which fees or costs the Seller will notify you of from time to time and/or terminate the provision of Services.
36. Unless specified otherwise in the Quote or Purchase Order, or as agreed between the parties, the Seller will place site-excavated soil and/or imported fill by spreading it in maximum 100mm thick loose layers and then wheel rolling it in orthogonal directions using a minimum 4 ton Skidsteer Loader to elevate the fill area to the required level and for the placed fill to comply as Wheel Rolled Fill. Up to 300mm in depth
37. As less than 300mm Wheel Rolled Fill does not require compaction to a specified insitu density and/or moisture content, the Seller does not and will not adjust the moisture content in the fill when placing the Rolled Fill.
38. As the degree of compaction of the placed fill achievable is related to the moisture condition of the soil at the time of placement and the number of machinery passes applied to each layer, you acknowledge and agree that the Seller may not be able to achieve adequate compaction of the placed fill to support the slab construction if placed fill is excessively wet or dry as compared to its optimum moisture condition. the Seller strongly recommends that site conditions be reassessed by an appropriately experienced geotechnical authority after the completion of the earthworks and prior to construction.
39. Any fill that is in a depth of 300mm or more situated under a proposed building and or structure unless stated by the Buyer will have insitu moisture content adjustment and then will be compacted in layers, testing will be empolyed from an outside supplier ie. engineer or geological technician firm. Compation will be in layers of no less than 100mm thick layers and compacted by at a minimum of 5 ton roller.
40. To adhear to WH&S reguarding Dust Control the Seller reserves the right to employ dust controlling methods and will be oncharged to the Buyer methods are as follows,
(a) Trucking Water in for suppression
(b) Setup of onsite water connection to town/tank water supply using hoses and sprinklers
41. The Seller will suppy up to 20 Meters of hose to connect to filling point, the Buyer will ensure there is enough access to get the equipment within 20 Meters, if the Buyer can not do so the Seller is able to add the additonal surcharge for the running of more hoses at a cost of $5 per 10 Meters of hose.
42. The Buyer agrees to have ensure that there is a suitable enough entrance to the property where the delivery point is located, the Seller is with in there rights to refuse delivery or add an additional surcharge for the following.
(a) Overgrown Trees, the seller can and will trim minor branches or folage to gain access at extra cost to the buyer.
(b) Unsuitable Enterance ie- Driveway and or enterance, too steep, too much cross fall, too uneven, not wide enough or if the driveway or enterance is deemed unsafe in any way that was not listed above.
(c) Too close to other structures which may cause damage to under ground services and or structure engineering.
43. The Seller will refuse delivery by the direction of either of the following,
(a) The Seller’s operator of the truck at the time of delivery
(b) The Seller’s Director’s
(c) The Seller’s Manager of Operation’s