1. Definitions And Interpretation
“Australian Consumer Law” means Schedules 1 and 2 of the Competition and Consumer Act 2010 (Cth) and any other relevant provisions contained in that Act. “Consequential Loss” means loss of revenue, loss of profits, loss of anticipated savings or business, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity and any form of consequential, special, indirect, punitive or exemplary loss or damages however it arises including as a result of negligence.
“Collection Expenses” means any legal and/or other expenses incurred by Us including debt collection agency expenses in obtaining or attempting to obtain payment of any amount due by You to Us.
“Consumer” has the meaning in the Australian Consumer Law.
“Goods” means the materials to be supplied by Us as described on the Quotation or delivery docket.
“Intellectual Property” means all registered and unregistered rights in relation to present and future copyright, trademarks, designs, know-how, patents, confidential information, moral rights and all other intellectual property.
“Loss” means any liability however it arises (including as a result of negligence) and includes any loss, claim, damage, demand, injury or death and any fine or penalty imposed by a statutory or other authority.
“PPS and PPSA Act” means the Personal Property Securities Act 2009 (Cth) (as amended).
“Quotation” means the document provided by Us to You outlining information concerning the supply of the Goods but not limited to a description of the Goods, charge rates, additional associated charges, the address for supply of the Goods or in the event that there is no such document the oral terms agreed between You and Us for the supply of Goods.
“Rates” means the unit rate shown on the face of the Quotation or otherwise used to calculate the price for the Goods.
“Site” means the site at Pottery Road Somerville or such other location for the supply specified on the Quotation and/or delivery docket.
“Terms and Conditions” means these terms and conditions and any additional matters agreed in writing between the parties.
“We/Us/Our” means Peninsula Quarries (Vic) Pty Ltd (ACN 619 476 345).
“You/Your” refers to the person, partnership, corporation, trust or other entity to whom We are Supplying the Goods as named in the Quotation and/or delivery docket. The reference to “You” includes any of Your employees, agents and contractors.
2. Supply Agreement
The supply agreement (“Supply Agreement”) between You and Us is comprised of these Terms and Conditions of Supply together with:
Except to the extent otherwise explicitly agreed in writing between the parties these Terms and Conditions (and any credit application or credit guarantees, if applicable) govern the relationship between You and Us in connection with the Goods and will prevail over any other document. To the extent of any inconsistency between the credit application, the credit guarantees and these Terms and Conditions, these Terms and Conditions prevail. You acknowledge that You have not relied on any representation, inducement, warranty or promise which is not set out below. These Terms and Conditions may only be varied by agreement in writing by both parties.
The Quotation is an offer open for acceptance by You within 30 days from the date on the Quotation. The offer is made subject to You meeting Our credit approval requirements. Your written order to commence the supply of the Goods or your collection or receipt of the Goods shall be deemed an acceptance by You of the Supply Agreement.
5. Point Of Supply
The Quotation is based on all materials being available from the Site.
6. Extent Of Goods
The Quotation is based on supply of the Goods at the Site. Should the quantities to be supplied or location of the Site vary from the Quotation We reserve the right to adjust the Rate. You acknowledge that the Goods shall be supplied in accordance with industry standards and statutory requirements (where applicable) unless otherwise stated on the face of the Quotation.
7. Basis Of Payment
The Goods will be paid for by You at the Rates according to the actual quantities supplied as shown on the delivery docket. You acknowledge that unless otherwise specifically stated on the face of the Quotation or delivery docket the Rates are subject to additional charges pursuant to the Fees and Charges Sheet provided to you or published on our Website from time to time. You acknowledge that the Goods will be paid for in full without any retention or set-off.
8. Limitation Of Liability And Indemnity
If You are not a Consumer, We shall not be liable in any circumstances:
9. Limitation Of Liability – Australian Consumer Law Guarantees
Unless You indicate otherwise below, You acknowledge that the Goods You will acquire from Us will be obtained for either the purpose of resupply (in an altered form or condition or to be incorporated into other goods) or for the purpose of using them or transforming them in trade or commerce in the course of a process of production or manufacture or in the course of repairing or treating other goods or fixtures on land.
By agreeing to the Terms and Conditions on this website, You notify Us that You are acquiring the Goods for a purpose other than that stated immediately above, in which event the provisions below may apply.
If You are a Consumer and any of the Goods supplied by Us are not goods of a kind ordinarily acquired for personal, domestic or household use or consumption, You agree that Our liability for a failure to comply with a consumer guarantee in relation to those Goods (other than a guarantee under sections 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities) of the Australian Consumer Law, is limited, at Our option, to one or more of the following:
10. Site Access
We will deliver and You will receive the Goods at the Site where the Site is other than Our Site. You will be responsible for providing adequate and timely access to the Site for Our personnel and equipment. You will ensure that all personnel and equipment sent to our Site by you are suitable for purpose and in the case of personnel, suitably qualified and experienced to undertake the task of collecting the Goods. You will indemnify Us for all Loss incurred by Us as a result of your failure to provide access or your failure to provide suitable equipment and/or personnel. If We or Our agents enter the Site for the purposes of delivering the Goods, You shall indemnify Us for any Loss incurred by Us arising out of or in connection with such. Where the Site is other than our Site and We leave equipment on the Site in connection with the supply of the Goods, You shall take all reasonable precautions to secure the Site to prevent loss or damage to the equipment or any injury to persons entering upon the Site.
We will use reasonable endeavours to supply Goods in accordance with Your nominated timeframe. However, should supply of the Goods be delayed for any reason beyond Our control or as a result of any cause which You are or should reasonably have been aware of all Loss arising therefrom will be Your responsibility and You shall indemnify Us in respect of such Loss. Please refer to our website (www.peninsulaquarriesvic.com.au) for more information, including our Fees and Charges Sheet. Prior to delivery You shall check that the Goods and quantity on the delivery docket conforms with Your requirements and You must record any discrepancies in writing on the delivery docket including discrepancies in quantity or specification.
12. Site Visits And Hours
Unless otherwise stated on the Quotation, the Quotation is based on
We are not obliged to carry out any variation to the supply of the Goods. Any variation that We do carry out shall be subject to these Terms and Conditions and shall be charged to You and paid for by You at an agreed rate or failing agreement at the rate determined Us.
14. Terms Of Payment
15. Taxes And Other Charges
16. Force Majeure
We shall not be liable in any way for any delay in the supply of Goods where such delay occurs by reason of any cause whatsoever beyond Our reasonable control including without limiting the generality thereof, restrictions of Government or other statutory authorities, wars, fires, epidemics, failure or fluctuation in any electrical power supply, storm, flood, earthquake or other climatic event or occurrence, accident, labour dispute, plant breakdown, materials or labour shortage, the change or introduction of any law or regulation or an action or omission of any supplier or other third party or any failure of any equipment owned or operated by them.
We will, at Your request, use reasonable endeavours to arrange testing of the Goods priced in accordance with our then prevailing Fees and Charges Sheet. Any testing conducted or arranged by You will be carried out by an accredited laboratory acceptable to Us. You will provide Us with copies of the results of any such third party testing conducted.
Upon delivery of the Goods to you at the Site all risk in relation to the Goods shall pass to You. Title in the Goods shall not pass to You until We have been paid in full. Where Goods are sold ex-bin risk passes to You when the material is loaded on Your vehicle.
Where the Site is other than Our Site:
(Severance) Any provision of these Terms and Conditions which is unenforceable or partly unenforceable is where possible to be read down so as to be enforceable and if it cannot be read down, severed to the extent necessary to make these Terms and Conditions enforceable, unless this would materially change the intended effect of these Terms and Conditions.
(Waiver) A right may only be waived in writing, signed by the party giving the waiver, and no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
(No Implied Terms) You may have the benefit of certain statutory guarantees relating to the Goods services pursuant to the Competition and Consumer Act 2010 (Cth). Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Conditions or in connection with the supply of the Goods by law, statute, custom or international convention (including those relating to quality or fitness for purpose) are excluded.
(Governing Law) These Terms and Conditions are governed by the laws of the State of Victoria.