Vic Mix Concrete Pty Ltd t/a VIC MIX
These Terms of Sale of Vic Mix Concrete Pty Ltd (ABN 55 669 889 720) will be effective from 20 November 2023.
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Are there any indemnities provided under these
You may be required to indemnify us for any loss or damage in connection
cancellation of an Order (see clause 27);
A request by
you for our delivery vehicle to enter a delivery location to unload (see
clause 36); and
to perform your obligations (see clause 78).
Is any liability limited or excluded under
Our liability is capped to the sum you pay us under the relevant Contract
(see clause 86).
also exclude liability for any consequential loss (see clause 88).
Are any additional fees payable?
will be charged:
charge of up to 30% of the Price, reasonable cartage fees and other amounts
we incur in relation to the manufacture of Goods under an Order you cancel
(see clause 29);
fees if a delivery vehicle is unable to promptly unload Goods upon arrival at
a delivery location or the quantity of Goods delivered is smaller than the
minimum load size for that type of Goods (see clause 38);
storage charges if you defer delivery and, where delivery has previously been
attempted, you will also be charged a re-delivery fee (see clause 40);
concrete service fees may be charged for pre-mixed concrete services as set
out in the Concrete Service Fee Summary or Concrete Testing Fee Schedule (see
and administration charge of up to 25% of the Price of returned Goods, except
in certain circumstances (see clause 50). In the case of returns of Goods
which are precast and structural concrete products, a restocking fee of up to
30% of the original invoice Price plus a one-off $75 administration fee which
may be increased from time to time (see clause 67).
Are there any unusual obligations?
conduct any testing on delivered Goods, you must, upon written request,
provide us with copies of the test results accompanied by explanations of the
testing methodologies applied within seven (7) days of our request (see
TERMS OF SALE
Application of Terms
These Terms set out the contractual
basis upon which we agree to supply you with Goods and Services and apply
whenever Goods and Service are quoted for, sold, supplied, or delivered by us
These Terms apply to each and every
Contract between us and you for the supply of Goods and Services. Any terms or
conditions included in, attached to, or referenced in your Order including any
purchase order terms subsequently given to us by you, or any other document
provided by you deviating from, or inconsistent with, these Terms (even if any
representative of Vic Mix signs the document), are expressly rejected by us and
will not vary or supplement these Terms.
Each supply which we make following
our acceptance of an Order will be regarded as a separate Contract, which is
subject to these Terms.
Where we have granted you a credit
facility, our Credit Terms apply. In the event of any conflict, ambiguity, or
inconsistency between these Terms and our Credit Terms, our Credit Terms
prevail to the extent of the conflict, ambiguity, or inconsistency.
Quotations made by us are estimates
only and will not be construed as an offer or obligation to supply any Goods or
perform any Services.
Unless specified otherwise,
quotations made by us:
are exclusive of GST;
are exclusive of the costs of delivery,
and if and when required, any Testing; and
will remain valid for a period of
thirty (30) days from the date of quotation.
You acknowledge and agree that
quotations made by us may include additional terms or conditions, which will
supplement (and are intended to be read in conjunction with) these Terms.
Unless specified otherwise, insofar
as quotations made by us relate to the performance of Services, the Price will
be based upon Services being performed during Normal Working Hours on Business
Days. If requested by you, we may from time to time agree to perform Services
outside of Normal Working Hours or Business Days, in which case such Services
will be deemed a variation and we will provide you with an estimate of the
additional charges that will apply and you will have the right to accept or
reject those charges. If you reject those charges, we will not perform the
Services outside Normal Working Hours or Business Days.
We reserve the right to withdraw,
vary, or extend the time for acceptance in respect of any quotation made by us
at any time prior to the formation of a Contract in accordance with clause 12.
Formation of Contract
You may accept these Terms (and you
will be deemed to accept these Terms) if you, following receipt of a copy of
confirm your acceptance of these
place an Order with us.
We reserve the right to not accept
your Order, without having to provide reasons to you for doing so.
For clarity, nothing in these Terms obliges us to supply you with any Goods or
perform any Services at any time.
Any Order placed by you will be
construed as an offer. A binding Contract will only come into existence if:
we communicate our acceptance of
your Order, whether in writing or by electronic means; or
we supply you with any Goods or
perform any Services following receipt of your Order.
For clarity, a Contract is formed at
the location where your Order is placed.
Subject to clause 15, the Price
payable for the Goods or Services will be in accordance with our then
prevailing price list (as notified by us to you from time to time), as
applicable as at the date of your Order.
Where we have issued you a
quotation, the Price will be our quoted price (subject to clauses 6, 20 and 23
to 26) which will be
binding on us provided you accept our quotation in writing within the period it
is valid for acceptance.
Unless otherwise agreed in writing,
the terms of payment are strictly cash on delivery. We may, in our sole
discretion, withhold the despatch of any Goods if you fail to make any payment
due in accordance with the terms of any Contract of which these Terms form
Payment may be made by cash, EFTPOS,
VISA, and MasterCard credit cards, or by using your credit facility with us
(where applicable), and:
we reserve the right to change the
payment methods that we accept at any time; and
you acknowledge that we will be at
liberty to charge a payment surcharge for applicable transactions equal to our
reasonable cost of acceptance.
We reserve the right to require
payment of a deposit. The amount of the deposit will be specified in our
quotation or will be advised by us and will immediately become due and payable
upon the formation of a Contract in accordance with clause 12, unless otherwise
agreed in writing. For clarity, where we require payment of a deposit, we are
under no obligation to procure or supply Goods or Services until the deposit
has been received by us in cleared funds.
If GST is imposed on a Taxable
Supply made by us to you under any Contract of which these Terms form part, the
price of the Taxable Supply will be equal to the GST-exclusive consideration
that you must pay to us for the Taxable Supply under the Contract increased by
an amount (the “GST Amount”) equal
to the amount of GST payable on that Taxable Supply. The GST Amount is, subject
to us issuing a Tax Invoice to you, payable at the same time and in the same
manner as the consideration to which it relates. If we become liable to pay any
tax, duty, excise, or levy in connection with any Contract of which these Terms
form part, you must pay us these additional amounts upon written demand.
You must check all Tax Invoices and
advise us of any errors or omissions within seven (7) days of receipt. Failing
advice from you that a Tax Invoice contains any errors or omissions, the Tax
Invoice may be deemed accepted by you.
Any sums owed under any Contract of
which these Terms form part will be made free of any set-off, or counterclaim,
and without deduction or withholding (including by way of cash retention).
If you default in the payment of any
money due to us pursuant to any Contract of which these Terms form part by the
date specified in our Tax Invoice, we are entitled to, without prejudice to any
other rights which may be conferred upon us by law or equity, do any or all of
charge you interest on the
outstanding amount at the rate of 10% per annum, which interest will accrue and
will be recoverable for each day (or part thereof), that the money remains
outstanding until payment is received by us in full;
require you to pay, in advance, for
any Goods or Services (or any part of the Goods or Services) which have not yet
been supplied; and
suspend or cease the supply of any
further Goods or Services to you.
If you request or direct that any
Goods or Services be supplied that are not strictly in accordance with an Order
which we have accepted under clause 12, then such Goods or Services will
constitute a variation.
A notice of variation must be
submitted in writing and is only effective if agreed by both Parties.
You understand and agree that:
all variations must be agreed
between the Parties in writing prior to the Goods or Services being supplied;
all variations will be, in our
discretion, invoiced at the rates specified in our quotation, as specifically
quoted, or in accordance with our then current price list.
Notwithstanding clauses 24 and 25,
and subject to any rights you might have under the Competition and Consumer Act 2010 (Cth) or any other legislation,
we reserve the right to vary the quoted Price, if:
the Goods or Services specified in
your Order are varied from the Goods or Services specified in our quotation (or
are otherwise varied following the formation of a Contract); or
otherwise as provided for in these
You may not cancel an Order (or any
part of an Order) once a Contract has been formed, delivery of the Goods cannot
be deferred, and Goods ordered cannot be returned (unless permitted by law),
except with our prior written consent, and then only upon terms that you
reimburse and indemnify us against all reasonable losses we have incurred or
may incur as a result of the cancellation, deferral, or return, including but not limited to third-party supplier restocking
fees, cartage, bank charges, other incidental expenses incurred on any part of
your Order, and loss of profits, except to the extent to which the loss was
caused or contributed to by the negligence or wilful act or omission of us or
Without limiting clause 27, you
acknowledge and agree that any cancelled Order whether in whole or in part (if
accepted by us) may be subject to a restocking charge of up to 30% of the Price, reasonable cartage fees
(to the extent to which we have incurred such fees) and that you may also be
required to pay any amount incurred by us for all or part of the Goods
manufactured pursuant to the cancelled Order prior to the date of cancellation,
provided that we will undertake reasonable endeavours to mitigate our loss in
Unless our quotation states
otherwise, you will be liable for all costs associated with packaging and
delivery, including cartage/freight, handling, and other charges. Where you
have engaged a carrier to deliver the Goods, you will also be responsible for the
cost of insuring the Goods.
You must make all arrangements
necessary to take delivery of the Goods when they are tendered for delivery
provided we have given you reasonable notice of actual delivery.
You acknowledge and accept that any
period or date for delivery stated by us is intended as an estimate only and is
not a contractual commitment. We will undertake reasonable endeavours to meet
an estimated delivery date but will not in any circumstances be liable for any
loss or damage suffered by you or any third party for failure to meet an
estimated delivery date.
Delivery will be made within Normal
Working Hours on Business Days, unless otherwise agreed in writing.
Delivery is deemed to occur at the
you, or any third party on your
behalf, collects the Goods from us;
the Goods are delivered to the
delivery location specified in your Order (or to such other location as
otherwise agreed in writing);
your nominated carrier takes
possession of the Goods, in which event the carrier will be deemed to be your
upon commencement of unloading of the Goods by
you or your representative whether by attachment of plant, materials, items or
any apparatus to the Goods for the purpose of unloading.
For clarity, the Goods will be
delivered to the roadside adjacent to the delivery location, unless otherwise
agreed in writing.
If requested by us, you or your duly
authorised representative must sign our delivery docket as confirmation that
the Goods ordered by you have been received by you in apparent good order and
If, at your request (or the request
of your Personnel), our delivery vehicle leaves the road and enters the
delivery location to unload, you warrant and represent to us that the delivery
location is suitable and safe for our delivery vehicle and our Personnel. You
are liable for and, to the extent permitted by law, indemnify us and our
Personnel from and against any liability, claims, damages, losses, costs, and
expenses whatsoever (including legal costs on a full indemnity basis) arising
from or in connection with the entry of our delivery vehicle onto the delivery
location, including injury to any person, damage 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 Goods as a
result of you failing to provide suitable and safe access to the delivery site,
except to the extent to which the loss was caused or contributed to by the
negligence or wilful act or omission of us or our Personnel.
You acknowledge and agree that we
may, acting reasonably:
charge for waiting time or impose an
hourly hire fee where a delivery vehicle is unable to unload Goods promptly
upon arrival at the delivery location; and
charge a minimum load service fee
for delivery of Goods smaller than the minimum load size for each particular
type of Goods.
If the Goods are delivered on
Pallets, the Pallets remain our property. You may be charged for the use of
such Pallets. On the return of the Pallets to us:
if the Pallets are returned to us in
good condition (as determined by us, acting reasonably), we agree to give you a
credit in an amount equal to the fee charged by us in respect of the Pallets;
if the Pallets are returned to us in
a damaged condition (as determined by us, acting reasonably), we will be
entitled to charge you a reasonable amount for the cost of repairing or
replacing the Pallets.
If we have provided you with notice
of delivery of the Goods and delivery is deferred:
at your request; or
due to you being unable to accept
delivery of the Goods (for whatever reason),
(where no date for delivery has been
specified by you) we are ready to deliver the Goods;
(where a delivery date has been
specified by you) the Goods are due to be delivered,
then we will be
entitled to charge you, and you must pay to us:
reasonable storage charges (which
will accrue on a daily basis until such time as the Goods are delivered); and
a charge to re-deliver the Goods
(where delivery has previously been attempted).
You acknowledge and accept that we
may, acting reasonably, deliver Goods by instalments and reserve the right to
require payment for each separate instalment in accordance with these
You acknowledge and accept that you
are not relieved from any obligation arising under these Terms, or any Contract
of which they form part, by reason of any delay in delivery, and delay in
delivery will not entitle you to rescind the Contract.
Risk of loss or damage to the Goods
passes to you upon delivery to you or to your agent or to a carrier
commissioned by you in accordance with clause 34.
You must insure the Goods on or
before delivery against all losses which may be sustained as a result of the
loss, damage, or destruction of the Goods (or any part thereof) by accident,
theft, fire, explosion, flood, negligence, and such other insurable causes as
may be available and must include us as co-insured.
If you request that Goods are to be
delivered either to an unattended location, left outside your premises, or left
outside our premises for collection, you acknowledge that we will deliver the
Goods as requested at your sole risk.
Until such time as you have made
payment in full for the Goods title in the Goods does not pass to you, and you
agree that property and title in the Goods will not pass to you, and we retain
the legal and equitable title in those Goods supplied and not yet sold.
You must, within seven (7) days of
the date of delivery, give us written notice, with particulars, of any claim
that the Goods delivered are not in accordance with your Order. If you fail to
provide us with such notice, then to the extent permitted by law, the Goods
must be treated as having been accepted by you.
Unless otherwise agreed in writing
and to the extent permitted by law, you must pay all costs associated with the
return of any Goods (either to us or from us to you or any third party) including
freight, insurance, handling, and other charges.
To the maximum extent permitted by
law, Goods cannot be returned to us without our prior written consent and Goods
that have been specifically produced or procured at your request cannot be
returned in any circumstances.
Any return (except for Goods which
have been incorrectly supplied by us or determined by us, acting reasonably, to
be defective or Goods which are precast and structural concrete products in
which case the relevant special terms apply) will incur a handling and
administration charge of up to 25% of the purchase Price of the returned Goods,
unless otherwise agreed in writing or otherwise required by law.
Goods to be returned to us must be
unsoiled, undamaged, packed and wrapped appropriately, and must include all
original packaging and documentation.
To the extent permitted by law, we
accept no liability for any damage that occurs to any Goods in return transit.
If you conduct any tests whatsoever on the Goods
after the Goods have been delivered and we make a written request for those
tests, you must give us copies of the test results accompanied by explanations
of the testing methodologies applied, within seven (7) days of our request.
Special terms applying to
the sale and delivery of pre-mixed concrete
Unless our quotation states
otherwise, Prices are based on “Normal Class Concrete” as specified in the
current issue of Australian Standard AS1379 (Specification & Supply of
Concrete) and having a nominal slump not exceeding 100mm and using a nominal
20mm maximum size aggregate. If you require a slump in excess of 100mm or
aggregate with a maximum size other than 20mm, a service fee may apply.
We reserve the right to charge for
return cartage, handling and disposal costs, to the extent to which we have or
will incur such costs, for:
any pre-mixed concrete ordered for
which you do not accept delivery (except where non-acceptance is due to the
pre-mixed concrete not complying with the specification);
pre-mixed concrete which is returned
from the delivery location due to you being unable to use the full quantity
pre-mixed concrete rejected because
the time between batching and discharge is greater than the time permitted by
AS1379 or the specification that covers the project being supplied, provided
that the delay was not caused by us.
Unless otherwise agreed in writing,
pre-mixed concrete will comply with AS1379. If compliance with AS1379 requires
the addition of a cooling agent, a service fee to the quoted price may apply.
Pre-mixed concrete is sold in the
plastic state and the subsequent in-situ performance when set is greatly
affected by your work practices in handling, placing, and curing of the
concrete. To the maximum extent permitted by law, we accept
no responsibility 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);
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 us or our authorised representative;
if you have specified or prescribed
a pre-mixed concrete mix design other than a mix design devised by us;
the surface texture and colour of
hardened pre-mixed concrete, including where the aggregate in the concrete has
been exposed by you, and for any future colour change or oxidation of aggregates
that have been exposed to the atmosphere.
For the avoidance of doubt, you are
responsible for ensuring that the ambient temperature at the time of delivery
is in accordance with the applicable Australian Standard.
Production Assessment’ (as described
in AS1379) will be carried out by us in accordance with AS1379. Where ‘Project
Assessment’ (as described in AS1379) is requested by you, we will provide that
service at the ruling price at the date of supply. If you wish to perform
independent tests at your own expense, you will only consider the results of
samples and tests performed in accordance with the current issue of AS1012
(Methods of Testing Concrete) and tested in a National Association of Testing
Authorities (NATA) approved laboratory.
You acknowledge receipt of our
Concrete Service Fee Summary and Concrete Testing Fee Schedule provided in
conjunction with our quotation and understand the additional fees that may be
Special Terms applying to
the sale and delivery of Quarry Products
When quarry products are sold by
volume rather than weight, the volume will be determined by the loose
uncompacted volume as measured on the delivery vehicle at the time of loading
at the quarry.
Upon request, we will make the
relevant quarry product available for inspection and sampling by you prior to
If quarry products are returned at
your request, we reserve the right to charge for return cartage, handling, and
Unless otherwise agreed in writing,
quarry products covered by Australian Standard AS2758, will comply with this
Special Terms applying to
sale and delivery of Precast & Structural Concrete Products
When the concrete products quoted
are described as “seconds”, “rejects” or “not first class” (NFC), you
acknowledge that any defects in these concrete products have been specifically
drawn to your attention prior to purchase.
Unless our quotation states
otherwise, concrete products will be manufactured to the relevant definition of
“finishes” as set out in the current edition of Precast Concrete Recommended
Practice of the Concrete Institute of Australia and to the relevant permissible
tolerances specified in the current issue of Australian Standard AS3600
(Concrete Structures). If you require testing of the concrete product prior to
delivery, our obligation will be limited to preparation and testing of standard
concrete test cylinders to indicate concrete strength for the purposes of
determining twenty-eight (28) day compressive strength, transfer of pre-stress,
or lifting of reinforced concrete components. The cost of additional or
different tests including testing by a NATA approved laboratory will be charged
Unless our quotation states otherwise,
we will not be responsible for removing or patching cast-in fittings or holes
provided for lifting or hoisting the concrete products supplied.
When you have arranged the unloading
of the concrete products from the delivery vehicle, we accept no responsibility
for any damage to the concrete products that occurs during unloading. Our
responsibility for the Goods ceases upon attachment of any lifting device to
the concrete products.
We will accept “change of mind”
return, within thirty (30) days of supply, of concrete products (other than
products manufactured to your design) subject to the concrete products being
clean, free from defects, of saleable quality, and you arranging and paying for
return delivery to us. A restocking fee of up to 30% of the original invoice Price may be charged plus
a one off $75.00 administration fee which may be increased by us, acting
reasonably, from time to time to reflect our actual costs.
The specification of Goods
manufactured by us to your design must be supplied in writing by you and we
will be entitled to rely upon those specifications as being correct for the
production of the shop drawings required for manufacture.
We, at our sole discretion, may
submit shop drawings and details (Specifications) to you for approval. When you
have given written approval that the Specifications meet your requirements, we
will not be liable for any errors or divergences from the Specification,
provided that the concrete products supplied are in accordance with the
You acknowledge and agree that any steel
reinforced concrete pipe (SRCP) will be manufactured to AS4058 unless agreed
We will not be liable for any delays
caused by you not providing any specifications required to prepare shop
drawings, or delays caused by you in failing to approve shop drawings.
Description of Goods
It is a condition of sale that any
description or specification contained in our printed literature is for general
indicative purposes only and does not render us responsible in any way, except
to the extent that the Goods shall comply with the standards set out in such
description or specification and that such description or specification shall
not be taken as implying or giving any undertaking as to fitness for any
Where you have ordered Goods to
comply with particular specifications, you warrant that you have verified those
specifications and have satisfied yourself that the Goods are fit for purpose.
All right, title and interest in the
Intellectual Property Rights in and to all Works, and all Goods sold or
supplied by us are, and will at all times, remain our property.
All improvements, derivatives and
modifications to the Intellectual Property Rights contemplated by clause 74
(the “Improvements”) vest in us
immediately on creation. To the extent
necessary to give effect to this clause 76, you assign to us all right, title and interest in the
You acknowledge and agree that you
have no rights to use our Intellectual Property Rights under these Terms,
except as expressly set out herein, unless otherwise agreed in writing.
Each party (indemnifying party) is liable for and indemnifies the other party (indemnified party) in respect of all
liability, claims, damage, loss, costs, and expenses (including collection
costs, debt recovery fees, and legal costs on an indemnity basis) that the
indemnified party may suffer or incur at any time, directly or indirectly, as
a result of any default by the indemnifying party in the performance
or observance of its obligations under any Contract of which these Terms form
The indemnifying party’s liability
under clause 78 will be reduced proportionally only to the extent that:
any negligent act or omission by the
indemnified party or a breach of its obligations under any Contract of which
these Terms form part has contributed to the liability, claim, damage, loss,
cost, or expense which is the subject of the indemnity; or
these Terms make the indemnified
party specifically liable for any cost or expense or rectifying or repairing
any defect in, malfunction of, or damage to the Goods.
The obligation under clause 78 is a
continuing obligation separate and independent from the indemnifying party’s
other obligations and survives the performance or termination of any Contract
of which these Terms form part.
It is not necessary for the
indemnified party to incur any expense or make any payment before enforcing its
rights of indemnity conferred by these Terms.
The party’s must take all reasonable
steps to mitigate any liability, claim, damage, loss, costs, and expenses the
subject of an indemnity under clause 78.
Nature of relationship
We will perform our obligations
under the Contract as an independent contractor. Nothing in these Terms, or any
Contract of which they form part, is to be construed as creating a relationship
of employment, agency, joint venture, or partnership.
Suitability of Goods
You are responsible for examining
and testing the Goods, at your own expense, to ensure they are fit or suitable
for your purposes. To the maximum extent permitted by law, we accept no
liability for the fitness or suitability of the Goods for any particular
purpose of yours.
Limitation of liability
We will not be liable for any loss
or damage suffered or incurred by you in connection with any incorrect
information contained in an Order or otherwise provided by or on behalf of you
to us from time to time, except to the extent to which we have caused or
contributed to that loss or damage through our negligence or wilful acts or
Subject to clauses 83, 85, 86, and
88, our liability for any loss or damage, however caused (including by our negligence
or wilful acts or omissions), suffered or incurred by you in connection with
any Contract of which these Terms form part is limited to the sum paid to us by
you in respect of that Contract prior to the date you first suffered loss or
damage in connection with that Contract.
The limitation contemplated in
clause 84 is an aggregate limit for all claims, whenever made.
Subject to clause 88, we are not
liable for any Excluded Loss suffered or incurred by you in connection with any
Contract of which these Terms form part.
For clarity, and without limiting
clauses 83 to 86, the Parties agree that clauses 83 to 86 are to apply in
connection with a breach of a Contract, anticipated breach of a Contract, and
other conduct regardless of the seriousness or nature of that breach,
anticipated breach, or other conduct.
If the Competition and Consumer Act 2010 (Cth) or any other legislation
provides that there is a guarantee in respect of any Goods or Services supplied
in connection with any Contract of which these Terms form part and our
liability for failing to comply with that guarantee cannot be excluded but may
be limited, clauses 83 to 86 do not apply to that liability and instead our
liability for such failure is limited to, in the case of a supply of Goods, us
replacing the Goods or supplying equivalent Goods, or in the case of a supply
of Services, us supplying the Services again or paying the cost of having the
Services supplied again.
If a difference or dispute between
the parties arises in connection with the subject matter of these Terms, either
party may give the other a notice of dispute. The notice must adequately
identify and provide details of the dispute and specify a senior representative
of the party who has authority to settle the dispute.
The parties must confer at least
once after the date of service of the notice of dispute to attempt, in good
faith, to resolve the dispute or agree to use an alternative dispute resolution
process such as mediation. All aspects of every such conference, except
the fact of occurrence, will be privileged.
If the dispute has not been resolved
within 28 days of the date of service of the notice of dispute, either party
may commence litigation regarding the dispute.
Despite the existence of the
dispute, the parties must continue to perform their respective obligations
under this Agreement.
Nothing in the clause will prejudice
the right of a party to seek injunctive or urgent declaratory relief.
Termination of Contract
Either party may, with immediate
effect, terminate any Contract of which these Terms form part by written notice
to the other party if the other party commits a material or persistent breach
of these Terms and does not remedy the breach within fourteen (14) days of
receipt of a notice identifying the breach and requiring its remedy.
In addition, we may, with immediate
effect, terminate any Contract of which these Terms form part by written notice
to you, if:
you fail to make payment of a
deposit required by us or any amount owed to us as and when due; or
we are no longer able to, for
whatever reason, supply the Goods or Services (or any part of the Goods
For clarity, termination of any
Contract of which these Terms form part will not affect the rights and remedies
which have already accrued to a Party at the time of termination, whether under
that Contract or otherwise.
You will pay our costs and
disbursements incurred in pursuing any recovery action, or any other claim or
remedy, against you, including collection costs, debt recovery fees, bank
dishonour fees, and legal costs on a full indemnity basis.
We are not liable to you for any
delay or failure to perform any obligation under any Contract of which these
Terms form part if such delay or failure to perform is due to a Force Majeure
If either Party is unable to carry
out, wholly or in part, any of its obligations under any Contract due to a
Force Majeure Event for more than fifteen (15) Business Days, then either Party
may, by written notice to the other Party, terminate the Contract in whole or
in part without penalty.
Variation of Terms
No variation of these Terms, or any
Contract of which these Terms form part, will be effective, unless agreed in
writing between the Parties as set out in Clause 24. Clerical errors (such as
spelling mistakes, grammatical errors, or numerical errors) may be subject to
correction by us without notification.
We may amend these Terms by
notifying you in writing. The amended Terms will apply to any future Order
placed by you following us notifying you of the amendments.
You acknowledge that we reserve the
right to subcontract:
the manufacturing and supply of any
part of the Goods to be supplied; and
the Services to be performed (or any
part of those Services),
however, any subcontracting of the Goods or Services to be
supplied will not relieve us of any of our obligations to you.
Subject to Clause 104, neither party may assign,
transfer, or novate its rights or obligations under any Contract of which these
Terms form part without the prior written and fully informed consent of the
other party (which consent must not be unreasonably withheld).
Either party may, upon written notice to the
other and without its consent, assign or novate all or any part of its rights
and benefits in these Terms or transfer all or any part of its obligations to a
Related Body Corporate.
A waiver of any provision or breach
of these Terms, or any Contract of which these Terms form part, will only be
effective if made by the affected Party in writing. If a Party elects not to
enforce its rights arising as a result of a breach of a Contract, that will not
constitute a waiver of any rights in relation to any subsequent or other
If any part of these Terms, or any
Contract of which these Terms form part, is illegal, invalid, or unenforceable,
it will be read down so far as necessary to give it a valid and enforceable
operation or, if that is not possible, it will be severed from the Contract.
Other provisions which are self-sustaining are, and will continue to be,
enforceable in accordance with their terms.
109. Subject to clause 4 and to the extent permitted by law, the
Contract constitutes the entire agreement and understanding between the
Parties. All previous negotiations, understandings, representations,
warranties, memoranda, or commitments about the subject matter of the Contract
are merged in the Contract and are of no further effect. No oral explanation or information provided
by a Party to another Party affects the meaning or interpretation of the
Contract, or constitutes any collateral agreement, warranty, or understanding.
110. These Terms, and any Contract of which these Terms form
part, will be governed by and construed in accordance with the laws of the
State or Territory in which Goods are delivered or Services supplied.
The Parties agree to submit to the
non-exclusive jurisdiction of the courts of the relevant location under clause
102 and the federal courts and courts competent to hear appeals from those
In these Terms:
“Business Days” means a day
that is not a Saturday, Sunday, or public holiday in the State or Territory of
Australia in which Goods or Services are supplied under these Terms or any day
occurring within any of the following periods:
22 to 24 December inclusive;
27 to 31 December inclusive; and
2 to 8 January inclusive.
“Contract” means a contract for the
supply of Goods or Services, as constituted by our quotation (if any), your
Order, and these Terms.
“Credit Terms” means our credit terms,
as set out in the credit agreement executed by you (where applicable).
“Customer,” “you,” “your” means the
corporation, partnership, person, or other entity acquiring Goods or Services
“Vic Mix,” “we,” “us,” “our” means Vic Mix
Premix Concrete Pty Ltd (ACN 106 469 363).
“Excluded Loss” means any:
loss of revenues;
loss of reputation;
loss of profits;
loss of bargain;
lost opportunities, including
opportunities to enter into arrangements with third parties;
loss or damage in connection with
claims against you by third parties; or
loss or corruption of data.
“Force Majeure Event” means any act of
God, acts, decrees, or regulations of government authorities, casualty, fire,
explosion, storm, flood, earthquake, lightning strike, inclement weather,
cyclone, embargo, industrial action, strike, lockout, civil commotion, riot,
insurrection, war, epidemic or pandemic, quarantine or biological
contamination, damage to or destruction of facilities, equipment or mechanical
breakdown, failure of a third-party supplier or service provider, or any other
cause beyond the reasonable control of a Party.
“Goods” means all goods supplied by us
to you (and where the context so permits includes any performance of Services,
including, but not limited to any raw materials purchased, creation of any
bespoke moulds, and any costs associated with design drawings), as are
described on any invoices, quotations, or any other forms as provided by us to
“GST” has the meaning given to it by the
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Intellectual Property Rights” means all
industrial and intellectual property rights throughout the world, whether
present or future, and whether protectable by statue, at common law or in
equity, including rights in relation to copyright, trade secrets, know how,
trade marks (whether registered or unregistered or whether in word or
logo/device form), designs, patents and patentable inventions, including the
right to apply for registration of any such rights.
“Normal Working Hours” means 07:00am to
5:00pm on a Business Day.
“Order” means a written or oral order placed by you offering to
acquire Goods or Services from us.
“Pallets” means any pallets, drums, bearers, and any other
containers or dunnage supplied in conjunction with the Goods.
“Parties” means Vic Mix and the
Customer, and “Party” means either
one of them.
“Personnel” means officers, employees, and agents engaged by each
Party (but does not include the other Party) and, in the case of Vic Mix,
includes its subcontractors (and any employee of those subcontractors).
“Price” means the price payable for the
Goods or the Services as determined in accordance with these Terms.
Related Body Corporate means any related body corporate as defined in the
Corporations Act 2001 (Cth).
“Services” means all services performed
by us (and where the context so permits includes any supply of Goods).
“Tax Invoice” and “Taxable Supply” have the same meaning as in
the GST Act.
“Terms” means these terms of trade.
“Testing” tests performed in accordance with the current
issue of AS1012 (Methods of Testing Concrete)
“Works” means all literary, artistic, and other works, including all
physical works, production materials and subject matter created solely or
jointly with others, by us in the course of or in relation to any Contract in
which Intellectual Property Rights may subsist and all drafts, variations,
alterations, and adaptations of such works or subject matter (whether currently
existing or created in the future).
If there is any conflict, ambiguity,
or inconsistency between any of the documents which comprise a Contract, it is
expressly agreed the order of precedence will be (highest to lowest):
any additional terms or conditions
contained in our quotation (where applicable);
our Credit Terms (where applicable);
these Terms; and
any other documents issued by us.
Unless the contrary intention
appears, a reference to:
these Terms or another document
includes any variation or replacement of them notwithstanding any change in the
identity of the Parties;
a reference to a clause is a
reference to a clause contained in these Terms;
the singular includes the plural and
a right includes a benefit, remedy,
authority, discretion, or power;
a person includes a natural person,
partnership, body corporate, association, joint venture, governmental or local
authority or agency, or other entity;
a person includes the person’s
successors, executors, administrators, substitutes (including a person who
becomes a Party by novation), and assigns; and
any statute, ordinance, code, or
other law includes regulations and other statutory instruments under any of
them and consolidations, amendments, re-enactments, or replacement of any of
Headings are for convenience only
and will not affect the interpretation of these Terms.
The meaning of general words is not
limited by specific examples introduced by including, for example, or similar
Where two or more persons are
defined as a Party in these Terms, that term means each of the persons jointly,
each of them severally, and any two or more of them jointly.
An agreement, covenant, obligation, representation,
or warranty on the part of two or more persons binds them jointly and severally
and an agreement, covenant, obligation, representation, or warranty in favour
of two or more persons is for the benefit of them jointly and severally.
Unless specified otherwise, all reference to sums of
money is in terms of Australian currency (AUD), and all documents and
correspondence between the Parties will be in the English language.