TERMS OF TRADE – BATAVIA CONCRETE

1    INCORPORATION OF TERMS

1.1 The Terms of Trade shall be incorporated into each and every contract for the sale of goods which is entered into between Batavia and the Customer, by use of the words “Batavia’s Terms of Trade are incorporated into this Agreement a copy of which is available on request.”

1.2 These Terms of Trade:

(a)  are current from 1 October 2013;

(b) apply to all Sale Contracts entered into between Batavia and the Customer from 1 October 2013; and

(c)  may be replaced by Batavia at any time and, upon such replacement, the newer terms of trade shall prevail over these Terms of Trade.

2    PURCHASE ORDERS

2.1 Formation Of Sale Contract

(a)  A Sales Contract is formed between the Customer and Batavia upon the terms contained in these Terms of Trade on each occasion when:

(i)   the Customer places a request with Batavia Concrete (either by telephone or e-mail) specifying the quantity and type of concrete they wish to purchase (“Customer’s Order”); and

(ii)  Batavia acknowledges by telephone that the Customer’s Order has been accepted.

(b) Batavia is not obliged to accept any Customer Orders.

2.2 Pricing

(a)  Public Customers

(i)   If the Customer is purchasing Goods for their personal use (and not in the course of business), then the Sale Price shall be set by the verbal quote given by Batavia when Batavia accepts the Customer’s Order.

(ii)  Batavia reserves the right to change this quote at any time prior to the dispatch of the Goods.

(b) Trade Customers

If the Customer is purchasing the Goods in the course of a business, the price payable for the Goods shall be set as follows:

(i)   Orders – Less Than 3.4m³

Where an individual Customer Order is for 3.4m³ or less of Goods, the Sale Price shall be determined according to the standard rate set by Trade Price List.

(ii)  Orders – More Than 3.4m³

Where an individual Customer Order is for more than 3.4m³ of Goods, the Sale Price shall be determined according to bulk rate set by the Trade Price List based on the Customer’s average annual purchases over the previous 12 months.

(c)  Price List & Confidentiality

A Trade Customer may request a copy of the Trade Price List PROVIDED THAT the Customer agrees to maintain confidentiality over the pricing information provided to them and will indemnify Batavia for any loss if the information is provided to any person who is a competitor of Batavia, a potential customer of Batavia or member of the public.

2.3 Payment Of Purchase Price

(a)  Subject to clause 2.3(b) below the Customer shall pay the Sale Price within 30 days of invoice.

(b) Batavia reserves the right to ask for payment of the Sale Price prior to delivery if the Customer does not have an approved credit application form with Batavia Concrete.

2.4 Overdue Amounts

(a)  Any amount not paid by the due date will incur interest at a rate of 12% calculated daily and compounded monthly.

(b) The Customer agrees to pay all costs and expenses (including but not limited to legal fees and dishonor fees) incurred by Batavia in connection with the recovery of overdue amounts and enforcing any security provided for in clause 4.

2.5 Title & Risk

(a)  Title in the Goods does not pass to the Customer until the Sale Price is paid in full.

(b) Risk in the Goods passes to the Customer on acceptance of the Goods.

(c)  Batavia shall have the right to retake possession of all or any of the Goods upon the Customer being in default of the Sale Contract and these Terms of Trade and the Customer irrevocably authorises and allows Batavia or its representatives, servants, agents or employees to enter upon any premises at which the Goods are housed or stored for the purpose of retaking possession and shall not be liable for any costs, damages, losses, expenses or any other monies or losses suffered by the Customer as a result of Batavia retaking possession of the Goods.

3    DELIVERY

3.1 Warranty by Customer

(a)  The Customer warrants to Batavia that there are no hazards at the address for delivery that may damage Batavia’s trucks or cause them delay.

(b) The Customer will indemnify Batavia for all costs incurred by Batavia in recovering incapacitated or damaged vehicles from the address for delivery including but not limited to repair costs, crane hire charges, waiting time charges of $1.50 per minute that Batavia’s truck remains at the address, hourly rate of Batavia representative to attend at the address for deliverly and other incidental costs.

3.2 Delivery Of Goods

(a)  Batavia shall provide free delivery within 10kms of Geraldton Post office .

(b) Batavia shall deliver the Goods to the kerb side of the address nominated by the Customer in the Customer’s Order.

(c)  If Batavia is required to cross the footpath or enter onto private property in the course of affecting the delivery to the Customer, the Customer will provide safe and adequate access and will indemnify Batavia for all damage to any public or private property and every injury or wrong which may result from that delivery.

(d) The Customer is deemed to have accepted the Goods upon delivery unless the Customer telephones Batavia immediately at the time of delivery and rejects the Goods.

3.3 Delivery outside prescribed area

The Customer accepts that Batavia will charge a delivery fee of $1.60 per kilometre per metre³ in excess of 10kms from Geraldton Post Office.

3.4 Waiting times/late acceptance

Each delivery vehicle is allowed  time depending how much is in the truck to discharge. Extra time will be charged to the Customer in accordance with Batavia’s waiting time scale (a copy which is available upon request).

3.5 Non delivery

If the Goods have to be disposed of at the tip Batavia will charge the Customer a disposal fee equal to double the tip fees to dispose of the Goods.

3.6 Late Deliveries

(a)  Batavia may deliver only a portion of the quantity of Goods ordered and may invoice the Customer for that portion, unless the parties agree otherwise in writing.

(b) The Customer may not refuse to accept delivery of particular Goods on the grounds that Batavia was late in delivering the Goods to the Customer.

(c)  If Batavia delivers items which do not match the description of the Goods ordered:

(i)    the Customer must notify Batavia immediately and reject the delivery; and

(ii)  Batavia must arrange for the delivery of the correct Goods as soon as possible after the rejection of the delivery and in any case no longer than 7 days.

(d) Batavia will not be liable for any loss incurred or suffered by the Customer as a result of any:

(i)   delay in delivery of Goods; or

(ii)  incorrect supplies.

4    SECURITY AND CHARGE

4.1 Lien over Real Property

(a)  As security for any amounts due to Batavia from time to time, the Customer charges all of its legal and equitable interest of whatsoever nature held in any and all real property to Batavia.

(b) The Customer agrees to do all things reasonably required by Batavia to perfect its security over any real property.

(c)  The Customer consents unconditionally to Batavia lodging a caveat or caveats noting its interest in any real property held by the Customer.

5   WARRANTY CLAIMS

5.1 Batavia will not offer refunds or exchanges for Goods unless the Customer makes a valid warranty claim.

5.2 Batavia will not be liable to and will be indemnified by the Customer in respect of any claims made by the Customer or any third party which arise out of any defects which may develop in the concrete and are due to:

(a)  Faulty placing, curing, handling by the Customer, subcontractors or any other person who is not a representative of Batavia;

(a)  Addition of any water or other material other than in concrete mix specified on the front of the delivery docket/invoice;

(b) Exceeding the strength characteristics of the Goods as provided for on the delivery docket.

5.3 Batavia will accept warranty claims for the repair or replacement any Good or part of the Goods which satisfy the following conditions:

(a)  the defect arises as a result of any structural fault or defect in the materials used in the manufacture of the Goods;

(b) the alleged defect is not occasioned by the neglect or abuse of the Good in question; and

(c)  the alleged defect does not include fading or aging of any material used in the Good’s construction.

5.4 Unless the Customer is a “Consumer” within the meaning of the Australian Consumer Law:

(a)  Batavia’s liability for:

(i)   personal injury howsoever occasioned and arising out of the use of the Goods; and

(ii)  consequential loss howsoever occasioned and arising out of the use of the Goods,

are expressly excluded.

(b) The cost of delivering the Goods that are subject to the warranty claim and the costs of returning the repaired/replacement Goods to the Customer shall be borne by the Customer.

5.5 No Warranty As To Fitness For Purpose

(a)  Unless the Customer is a “Consumer” within the meaning of the Australian Consumer Law, Batavia makes no warranty or representation to the Customer regarding whether the Goods purchased by the Customer are fit for the purpose to which the Customer proposes to use the Goods for.

(b) If the Customer is a “Consumer” within the meaning of the Australian Consumer Law, Batavia shall only be deemed to have made a warranty or representation to the Customer regarding whether the Goods purchased by the Customer are fit for the purpose to which the Customer proposes to use the Goods for if the Consumer has stated that purpose in the Order in writing.

6    Miscellaneous

6.1 GST

(a)  The parties acknowledge that the supply made by Batavia to the Customer will be subject to GST which will be added to invoices rendered.

(b) The Customer must pay to Batavia an additional amount equal to the amount of the consideration multiplied by the applicable GST rate.

6.2 Force Majeure

The obligations of Batavia to perform any Sale Contract will be suspended for the duration of any delay arising from circumstances outside the reasonable control of Batavia, including but not limited to, war, accident, fire, storm, flood, earthquake, labour dispute, plant equipment breakdowns, unavailability of materials.

6.3 Severability

IF any provision of these Terms of Trade:

(a)  is declared void; or

(a)  if effective, would  render either:

(i)   these Terms of Trade; or

(ii)  any provision in these Terms of Trade

void or unenforceable

then that provision shall have no force or effect whatsoever and shall be ineffective and severed from these Terms of Trade to the extent necessary to avoid that consequence without affecting the validity and enforceability of this Agreement.

1.2 Entire Agreement

The Terms of Trade represent the entire agreement between the Customer and Batavia with respect to the provision of goods.  Any other arrangement purported to be made by the Customer to vary the terms of these Terms of Trade do not form part of a Sale Contract unless those variations are agreed to in writing by Batavia.

1.3 Applicable Law

These Terms of Trade shall be governed by and construed in accordance with the laws of the State of Western Australia and the parties agree to submit to the non-exclusive jurisdiction of its courts.

1.4 Amendment

These Terms of Trade may be varied by Batavia at any time PROVIDED THAT the varied Terms of Trade shall only apply to Sale Contracts entered into after the date of variation.

7    INTERPRETATION AND DEFINITIONS

7.1 The terms defined have the same meanings when used throughout this Agreement.

7.2 Unless the contrary intention appears:

(a)  a reference to this Agreement or any other document includes any variation

(b) or replacement of it;

(c)  a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(d) the singular includes the plural and vice versa;

(e)  a reference to a person includes a reference to the person’s executors, administrators, successors, transferors, substitutes (including persons taking by novation) and assigns;

(f)  an agreement, representations or warranty on the part of or in favour of two (2) or more persons binds or is for the benefit of them jointly and severally;

(g) if a period of time is specified and commences from a given day or the day of an act or event, it is to be calculated exclusive of that day;

(h)  a reference to time shall mean Western Standard Time;

(i)   a term or definition incorporated by reference into this Agreement remains in force notwithstanding that the document from which it was referred may at any time be no longer in force; and

(j)   gender reference includes all genders.

7.3 Headings are inserted for convenience and do not affect the interpretation of this Agreement.

7.4 The following words have the following meanings:

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
“Batavia” means Mixing It Up WA Pty Ltd
[ACN 080 324 394] as Trustee for the Batavia Concrete Trust trading as Batavia Concrete;
“Business Day” means any day on which trading banks in Western Australia are open for business;
“Customer” means any Person to whom Batavia provides goods;
“Day” means the period of time commencing at midnight and ending 24 hours later;
“Goods” means concrete products (plain or decorative) the Customer wishes to purchase from Batavia;
“Loss” Means any delay, loss, liability, damage, expense or cost, and includes, without limitation, direct or consequential loss or damage.
“Person” includes a firm, a body corporate, an unincorporated association and an authority;
“Sale Contract” means a contract for the sale of Goods between Batavia and the Customer pursuant to clause 2.1 of these Terms of Trade;
“Sale Price” means the price payable by the Customer for the Goods as determined by clause 2.2 of these Terms of Trade;
“Terms of Trade” means these terms and conditions of regulating the supply of Goods by Batavia Concrete;
“Trade Price List” means the internal price list maintained by Batavia for its trade customers, as amended from time to time.