1. INTERPRETATION
“Customer” shall mean the Sole Trader, Partnership, Company or Trustee to whom the product/s are
supplied including that entity’s employees, contractors, partners and/or agents.
“parties” shall mean RICH RIVER ASPHALT PTY LTD and the Customer.
“product” shall mean any asphalt, bitumen or related product or any other item whatsoever supplied by RICH
RIVER ASPHALT PTY LTD to the Customer.
“RICH RIVER ASPHALT PTY LTD” shall mean RICH RIVER ASPHALT PTY LTD Pty Ltd ACN 602 586 621 including
its employees, contractors, partners and/or agents.
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“PPS register” means the Personal Property Securities Register;
“purchase money security interest”, “security interest” and “verification statement” all have the meanings given by
the PPSA.
2. CONTRACT
These general terms and conditions of sale form the contract between the Customer and RICH RIVER ASPHALT
PTY LTD and the contract does not include any terms or conditions varying or in addition to these general terms
and conditions of sale unless such terms and conditions have been expressly agreed in writing by RICH RIVER
ASPHALT PTY LTD. No prior correspondence, discussion or other terms and conditions form part of this contract
unless stated in this contract.
3. CANCELLATION
(1) The Customer may only cancel this contract with RICH RIVER ASPHALT PTY LTD’s consent and only
on the basis that the Customer meets all loss, damage, cost or expense, including loss of profits, incurred
by RICH RIVER ASPHALT PTY LTD as a result of the cancellation.
(2) RICH RIVER ASPHALT PTY LTD may suspend delivery, cease manufacture or cancel the contract, if the
Customer at any time:
(a) breaches any terms of the contract or any other contract with RICH RIVER ASPHALT PTY LTD;
(b) commits an act of bankruptcy, resolves to or goes into liquidation, has a receiver or
manager appointed, enters into voluntary administration or enters into a scheme of
arrangement or other composition with its creditors or otherwise becomes insolvent
and unable to pay its debts; or
(c) refuses or neglects to take delivery of the products.
4. PRICE VARIATION
(1) Unless otherwise stated in this contract RICH RIVER ASPHALT PTY LTD may vary the price stated in the
contract to reflect any change in costs, taxes or duties incurred by RICH RIVER ASPHALT PTY LTD after the
date of this contract.
(2) Where a list price applies to products all prices listed:
(a) are subject to alteration without notice;
(b) are applicable to all deliveries on or after the effective date of any alteration; (c) do not include tax or other government impost unless specifically stated.
5. VARIATIONS TO SCOPE OF CONTRACT
The price is based upon:
(a) the scope of the work as detailed in the information provided by the Customer to RICH RIVER ASPHALT PTY
LTD
for the purpose of this contract including, where applicable, plans, specifications
(including standards and finish), schedules, and nominated quantities; and
(b) delivery arrangements in accordance with clause 8 and any variations to the scope of the work or delivery
arrangements shall be a variation of the contract entitling RICH RIVER ASPHALT PTY LTD to vary the price
stated.
6. SPECIFICATIONS
(1) Where RICH RIVER ASPHALT PTY LTD manufactures or supplies products according to the Customer’s
specifications:
(a) RICH RIVER ASPHALT PTY LTD does not warrant the suitability or performance of the product; and
(b) the Customer shall provide to RICH RIVER ASPHALT PTY LTD accurate information sufficient to enable
RICH RIVER ASPHALT PTY LTD to provide the products specified and the Customer warrants to RICH
RIVER ASPHALT PTY LTD that the information and any products to be manufactured by RICH RIVER
ASPHALT PTY LTD under the contract do not breach any copyright, registered design, patent or other right
of any third party and the Customer shall indemnify RICH RIVER ASPHALT PTY LTD in relation to any
such breach.
(2) Unless otherwise stated in this contract the products shall be in conformity with a standard determined by RICH
RIVER ASPHALT PTY LTD.
7. PAYMENT
(1) Time for payment of the amount due to RICH RIVER ASPHALT PTY LTD shall be of the essence in this
contract and the amount due shall include the price, any variations to the price and any additional charges
which RICH RIVER ASPHALT PTY LTD is entitled to make.
(2) Subject to clauses 7(3), 7(4), 7(5) and 7(6), the Customer shall pay the amount due in accordance with the
credit arrangements agreed by RICH RIVER ASPHALT PTY LTD.
(3) Where a credit arrangement has been made, payment for all the products supplied will become immediately
due and payable, regardless of the credit arrangement, in the event any of the following occur:
(a) an amount due remains unpaid as at the due date;
(b) the Customer enters either Bankruptcy, Part X, Receivership, Voluntary Administration or Liquidation;
(c) a meeting of the Customer’s creditors is called.
(4) Where no credit arrangements have been previously agreed by RICH RIVER ASPHALT PTY LTD, but
credit has been agreed by RICH RIVER ASPHALT PTY LTD as a condition of this particular contract, the
Customer shall pay the amount due within the month following the month of invoice.
(5) Where no credit arrangements have been agreed by RICH RIVER ASPHALT PTY LTD and the
products are delivered within the Commonwealth of Australia, the Customer shall pay the amount due
before the first delivery of the products.
(6) Where the products are to be delivered outside of the Commonwealth of Australia:
(a) terms of payment (unless otherwise agreed in writing) shall be by means of irrevocable letter of credit
established in RICH RIVER ASPHALT PTY LTD’s name with a bank of its nomination;
(b) RICH RIVER ASPHALT PTY LTD shall be entitled to payment in full for the products covered by shipping
documents, consisting of proper bills of lading, invoices and, in the case of C.I.F sales, negotiable insurance
certificates, or a certificate of manufacture if the sale is made on such basis, upon RICH RIVER ASPHALT
PTY LTD tendering those documents to the Customer or the Customer’s authorised agent;
(c) If the products are ready for shipment but the Customer is unable for any reason to accept delivery or RICH
RIVER ASPHALT PTY LTD is unable to obtain proper shipping documents for a period of 30 days because of
a lack of transportation, non-insurability of the shipment or government regulations (Australia or any other
country) RICH RIVER ASPHALT PTY LTD may terminate this agreement or become entitled to payment upon
tender to the Customer, or its authorised agent, of the certificate of manufacture.
(7) The Customer shall pay interest, at the current bank overdraft rate paid by RICH RIVER ASPHALT PTY LTD
from time to time, calculated monthly on any amount not paid by the due date.
(8) The Customer shall pay all RICH RIVER ASPHALT PTY LTD’s expenses of collection of overdue monies
and enforcement of the contract on a full indemnity basis. Such expenses shall include, without limitation,
collection fees and/or commission, agent’s fees and legal fees.
(9) Where price is stated on a volumetric basis, payment will be based on measurement of the volume of
product as loaded by RICH RIVER ASPHALT PTY LTD for delivery.
8. ORDERS AND DELIVERY
(1) All orders for products are subject to acceptance from RICH RIVER ASPHALT PTY LTD.
(2) Acceptance of orders involving import and export conditions shall be subject to RICH RIVER ASPHALT PTY
LTD being furnished with evidence satisfactory to RICH RIVER ASPHALT PTY LTD that all requisite licences
and permits have been granted and that all other Government prerequisites (both Australian and countries of
destination) have been complied with. If such evidence is not furnished within 30 days from the date of
acceptance of an order, the order shall be subject to cancellation by RICH RIVER ASPHALT PTY LTD.
(3)Subject to clause 8(4) delivery shall be on reasonable notice from the Customer to RICH RIVER ASPHALT
PTY LTD and the Customer shall not be relieved from any obligation to accept or pay for products by reason of
any delay in delivery.
(4) Where this contract includes a Delivery Schedule delivery shall be in accordance with the dates and other
information contained in such Schedule.
(5) RICH RIVER ASPHALT PTY LTD shall not be liable for delay in delivery arising from any cause whatsoever.
(6) Where the Customer refuses or denies delivery, the Customer’s obligation to pay for
products, as set out in clause 7, remains unchanged. The Customer shall also pay
any additional storage, freight, holding or handling charges incurred by RICH RIVER ASPHALT PTY LTD.
(7) RICH RIVER ASPHALT PTY LTD reserves the right to deliver by instalments and failure to deliver any
instalment shall not entitle the Customer to terminate the contract.
(8) Deliveries are subject to suitable access, firm standing, storage, unloading and manoeuvring space, as
determined by RICH RIVER ASPHALT PTY LTD. RICH RIVER ASPHALT PTY LTD shall not be liable for, and
the Customer shall indemnify RICH RIVER ASPHALT PTY LTD against any claims for damage caused to
access ways, storage areas, plant, equipment or works during delivery.
(9) Additional costs incurred by RICH RIVER ASPHALT PTY LTD in delivering or unloading the products;
(a) outside the hours of 7.30a.m. to 4.00p.m. weekdays (excluding public holidays);
(b) due to delays at the site or an unsuitable site; or
(c) where less than full truckloads are required, shall be at the Customer’s expense.
(10)
The Customer warrants that its receivable facilities and equipment are suitable for deliveries and meet
all relevant standards, laws and regulations. The Customer hereby indemnifies RICH RIVER ASPHALT PTY
LTD against any breach of such standards, laws or regulations during delivery, and against any damage or loss
caused by leakage, spillage, breakage or contamination during or caused by delivery.
9. TITLE & PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
(1) Whilst the risk in the products passes on delivery, legal and equitable title in the products will not pass to
the Customer until payment in full for all debts accrued or owed by the Customer to RICH RIVER ASPHALT
PTY LTD has been received by RICH RIVER ASPHALT PTY LTD in cleared funds. (2)Until RICH RIVER
ASPHALT PTY LTD receives payment for the products in full, RICH RIVER ASPHALT PTY LTD reserves the
following rights:
(a) the legal and equitable ownership of the products;
(b) the right to enter upon the Customer’s premises and retake possession of the products;
(c)the right to keep or resell any products repossessed under clause 9.2(b); and
(d)any other rights RICH RIVER ASPHALT PTY LTD may have at law or under the PPSA.
(3) Until RICH RIVER ASPHALT PTY LTD receives payment for the products in full, the Customer
acknowledges that RICH RIVER ASPHALT PTY LTD has a purchase money security interest which attaches
over the products and their proceeds and a security interest in relation to other amounts owed by the Customer
to RICH RIVER ASPHALT PTY LTD.
(4) For the avoidance of doubt, RICH RIVER ASPHALT PTY LTD may register its purchase money security
interest and security interest on the PPS register established by the PPSA and, where necessary, amend the
registration.
(5) The Customer undertakes to do anything (such as obtaining consents, signing and producing documents,
producing receipts and getting documents completed and signed) which RICH RIVER ASPHALT PTY LTD
asks and consider necessary for the purposes of:
(a) ensuring that a security interest created under this agreement is enforceable, perfected and otherwise effective;
(b) enabling RICH RIVER ASPHALT PTY LTD to apply for any registration, or give any notification, in
connection with a security interest created under this agreement so that the security interest has the
priority required by RICH RIVER ASPHALT PTY LTD, including anything RICH RIVER ASPHALT PTY
LTD asks the Customer to do in connection with the PPSA.
(6) The Customer must not grant any other person a security interest over the products or their proceeds.
(7) To the extent permitted by law, if the PPSA applies, the Customer irrevocably waives its rights it may have to:
(a) receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA;
(b) redeem the products under section 142 of the PPSA;
(c) reinstate the contract under section 143 of the PPSA;
(d) receive a verification statement as defined in the PPSA
(8)Nothing in this clause 9 prevents RICH RIVER ASPHALT PTY LTD from taking action against the Customer for
the purchase price of the products.
(9) Until title in the products passes to the Customer, and without prejudice to RICH RIVER ASPHALT PTY LTD’s
rights under the PPSA:
(i)
(a) the Customer may use the products with or in other items on condition that the final commodity will be
RICH RIVER ASPHALT PTY LTD’s property as a security for full payment for the products;
(b) until the Customer uses or sells the products, the Customer must store them separately so that they are clearly
identifiable as
RICH RIVER ASPHALT PTY LTD’s property;
(c) the Customer may fix the products into the articles belonging to any other person on condition that the resulting
item is owned in common by RICH RIVER ASPHALT PTY LTD and that other person.
(d) the Customer may sell the products in the ordinary course of the Customer’s business on the following
conditions:
the Customer makes the sale as RICH RIVER ASPHALT PTY LTD’s agent and bailee;
any proceeds of sale received by the Customer are held by the Customer on trust for RICH
RIVER ASPHALT PTY LTD to the extent that the proceeds of sale relate to RICH RIVER ASPHALT
PTY LTD’s products which are incorporated into the final commodity or item;
(ii)
the Customer must keep RICH RIVER ASPHALT PTY LTD’s proportion of the proceeds of sale
separately and so that they are clearly identifiable as RICH RIVER ASPHALT PTY LTD’s;
(iii) if the Customer has not received the proceeds of sale, it will, if RICH RIVER ASPHALT PTY LTD
requires, transfer to RICH RIVER ASPHALT PTY LTD the Customer’s rights in respect of the sale price.
(10) In addition to being liable to pay all RICH RIVER ASPHALT PTY LTD’s enforcement expenses as set out in
clause 7(8) the Customer agrees to be liable for RICH RIVER ASPHALT PTY LTD’s costs of our registration of
its purchase money security interest and security interest on the PPS register.
10. DEFECTS
(1) The Customer shall ensure it has an authorised representative at the delivery site who shall check prior to
unloading that the information shown on the delivery docket corresponds with the Customer’s order. Unless
otherwise noted on the delivery docket, the signature of the Customer’s representative on the delivery docket
shall represent acknowledgment by the Customer that the products comply with its order and have been
supplied in accordance with this contract.
(2) Notice of any defects shall be given to RICH RIVER ASPHALT PTY LTD in writing on the delivery
docket/receipt/manifest signed by the Customer and immediately returned with the cartage contractor. Where the
point of delivery or collection is unattended, the Customer shall give notice in writing to RICH RIVER ASPHALT
PTY LTD, within 24 hours from the time of delivery or collection and prior to installation, of any defects in the
products.
(3) If notice in accordance with clauses 10(1) or 10(2) is not given, the products shall be deemed to be in good
order and condition and in accordance with the contract and the Customer shall accept the products accordingly.
(4) RICH RIVER ASPHALT PTY LTD shall have the right to inspect on site any products notified by the
Customer as being defective and until such inspection is completed the product shall not be installed.
11. TESTING AND REPORTING
(1) Where the Customer requires the products to be subject to special testing or inspection the Customer shall
pay all costs of and associated with such testing or inspection.
(2) Any inspector or other person attending RICH RIVER ASPHALT PTY LTD’s premises on behalf of the
Customer shall be authorised in writing by the Customer.
(3) The Customer shall provide RICH RIVER ASPHALT PTY LTD with copies of all authorisations, test results,
measurements and reports prepared by or for the Customer in relation to RICH RIVER ASPHALT PTY LTD’s
products.
12. LIMITATION OF LIABILITY
(1) If a product is defective and the Customer advises RICH RIVER ASPHALT PTY LTD of that defect in
accordance with clause 10(1) or 10(2) RICH RIVER ASPHALT PTY LTD shall repair or resupply the product, but
RICH RIVER ASPHALT PTY LTD shall not be liable for the removal of any defective products or for the re
installation of any products or for any consequential losses or loss of profits.
(2) RICH RIVER ASPHALT PTY LTD shall not be liable for any defect, loss, damage or injury howsoever arising
by reason of:
(a) a failure to use the products in a manner other than what is normally expected to be done with or in relation to
the products;
(b) any delay in delivery;
(c) a failure to comply with any instructions or warnings with respect to doing anything with or in relation to the
products.
(3) Any design or description of use, capacity, durability, colour, manner of installation, information, detail
contained in drawings, data sheets, technical brochures or other documents provided by RICH RIVER
ASPHALT PTY LTD are given as a general guide only and the Customer hereby acknowledges that it has
satisfied itself as to the suitability of the products for the Customer’s particular purpose, use or application and
RICH RIVER ASPHALT PTY LTD shall not be liable in these respects.
(4) Other than expressly provided in this contract RICH RIVER ASPHALT PTY LTD provides no other warranty to
the Customer in relation to the products and this contract comprises the whole agreement between the parties.
(5) The Competition and Consumer Act 2010 (“the Act”) enables RICH RIVER ASPHALT PTY LTD to limit
its liability for breach of certain conditions and warranties implied by the Act. To the fullest extent permitted
by the Act and other similar legislation the liability of RICH RIVER ASPHALT PTY LTD for a breach of a
condition or warranty is limited to one of the following (selected at the option of RICH RIVER ASPHALT PTY
LTD):
(a) the replacement of the products; or
(b) the cost of the replacement of the products; or
(c) the repair of the products; or
(d) the cost of the repair of the products.
13. RISK
Risk in the products shall pass to the Customer upon delivery and, in the event of a site being
unattended, the delivery docket/manifest signed by the cartage contractor shall be prima facie
evidence of delivery of the products.
14. AMENDMENTS AND WAIVER
RICH RIVER ASPHALT PTY LTD shall not be taken to have agreed to any amendment or waiver of any
provision of these terms and conditions or of the contract unless the amendment or waiver shall be in writing
signed by RICH RIVER ASPHALT PTY LTD. No terms and conditions referred by the Customer after the date
of this contract shall form part of this contract unless expressly agreed in writing by RICH RIVER ASPHALT
PTY LTD.
15. GOVERNING LAW
The contract is governed by the law for the time being of the State from which the products are to be supplied.
16. FORCE MAJEURE
RICH RIVER ASPHALT PTY LTD shall not be liable for any delay, loss, damage or injury arising by reason of
any event beyond its control and without limiting the generality of the foregoing such events include industrial
disputes, the unavailability of equipment or materials, fire, flood, machinery breakdown, civil disturbance, acts of
God or government action.
17. SUBJECT TO STATUTE
The contract is subject to the provisions of any statute applicable to it and which may not be varied by the terms
of the contract. If any provision of the contract is void or unenforceable that provision shall be severed and the
remaining provisions shall continue with full force and effect.
18. NOTICES
All notices given under or in connection with this contract shall be in writing and given or delivered to the
recipient at its address specified in this contract or at its registered office or principal place of business.
19. CONFIDENTIAL INFORMATION
If at any time RICH RIVER ASPHALT PTY LTD discloses to the Customer or the Customer becomes aware of
confidential information of RICH RIVER ASPHALT PTY LTD including confidential information relating to
products, material, procedures, tests or equipment, the Customer shall not use the information for any purpose
not approved by RICH RIVER ASPHALT PTY LTD and shall not disclose that confidential information to any
other person unless expressly agreed in writing by RICH RIVER ASPHALT PTY LTD.
20. ASSIGNMENT
This contract is assignable by the Customer in whole or in part only with RICH RIVER ASPHALT PTY LTD’s
consent.
22. SAMPLES AND BLENDING
Any sample product or sample colour is provided to indicate only the general nature of the product. RICH RIVER
ASPHALT PTY LTD provides no warranty or guarantee that the products supplied shall correspond in colour,
texture or blend with any sample or with any previous or future product supplied. RICH RIVER ASPHALT PTY
LTD shall not be liable for any failure of the Customer or others to blend the products.
23. NON-CONFORMING PRODUCT
Where a product is supplied on the basis of a description or marking such as “nonconforming”, “second”,
“reject” or similar, no warranty or undertaking (express or implied) whatsoever is given by RICH RIVER
ASPHALT PTY LTD. Notwithstanding the preceding terms and conditions, RICH RIVER ASPHALT PTY LTD
shall not be liable in any way for the performance or use of, or any defect in, such a product.