Sale Terms & Conditions
1. These Terms apply whenever Goods or Services are quoted for, sold, supplied, delivered or laid by Align Masonry to a Customer.
2. Requesting or accepting a Quotation from, placing an Order with or accepting a supply or Delivery of Goods or Services from Align Masonry by a Customer constitutes acceptance by the Customer of these Terms.
3. To the extent permitted by Law, it is a condition of the Quotation, sale, supply and Delivery of Goods and Services by Align Masonry to a Customer that the Customer accept that these Terms apply as provided in Clause 1, regardless of the provisions of any other document or instruction of the Customer, including any purchase order terms subsequently given to Align Masonry by the Customer.
4. Where Align Masonry and a Customer enter into a supply agreement for Goods or Services, these Terms shall continue to apply to the extent they are not inconsistent with the terms of the supply agreement.
Conditions of Quotation or ordering
5. The Customer warrants that:
a. the Customer will provide all Relevant Information to Align Masonry when seeking a Quotation or placing an Order for Goods or Services from Align Masonry;
b. any Relevant Information supplied by the Customer to Align Masonry is accurate and complete;
c. in giving any Quotation, accepting any Order or supplying or delivering any Goods or Services, Align Masonry will be entitled for all purposes to rely upon the accuracy and completeness of any Relevant Information provided by the Customer;
d. subject to any Law to the contrary, unless Align Masonry makes an express representation to the contrary in writing, the Customer will not allege or in any circumstances maintain:
I. i.that Align Masonry had, or should be taken to have, approved of or represented any specification (whether supplied by the Customer, by Align Masonry or by a third party) as being suitable for any particular purpose; or
II. ii. that Align Masonry is liable for any Loss to the extent that the Loss results from or is attributable to any defects in, or unsuitability of, the specification;
e. the Customer has formed its own opinion as to the correctness or otherwise of any information or advice provided by or any representation made by Align Masonry (including as to product design and application) in connection with any Goods or Services quoted for, ordered from or supplied or Delivered by Align Masonry and does not rely on Align Masonry in respect of such information, advice or representation or maintain or allege that it has so relied; and
f. unless the Customer notifies Align Masonry to the contrary prior to or when placing an Order for the Goods, the Customer is, and has held itself out to be, acquiring the Goods for either the purpose of re-supply (in an altered form or condition or to be incorporated into other goods) or for the purpose of using them up 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.
Delivery of Goods
7. The Customer shall take full responsibility for assessing any requirements for traffic management associated with
a. a) Delivery to the Customer and for putting in place all traffic management measures which the Customer ought reasonably to know are required in all the circumstances of the Delivery.
8. Unless the Customer otherwise requires, Delivery will be made to the kerbside nearest the Delivery address. If the Customer requires the Delivery vehicle to leave a public road to gain access to the discharge or unloading location, the Customer shall:
a. ensure that the vehicle has a safe, suitable and unrestricted route between the kerbside nearest to the Delivery address and the discharge or unloading location; and
b. indemnifies Align Masonry against any Loss arising from events occurring while gaining such access unless solely caused by Align Masonry negligent act or omission.
9. Align Masonry may refuse to deliver if it is of the opinion that the Customer has failed to perform its obligations under Clause 7 or 8(a) and will be indemnified by the Customer against any Loss arising from the refusal.
10. Subject to Clause 13, the Customer shall, before the Delivery of any Goods, check for any difference between the Goods as delivered, the description or quantity of the Goods appearing on the Delivery Docket and the Customer’s Order placed with Align Masonry.
11. If the Customer disagrees with any of the details on the Delivery Docket or if there is a difference between the Goods as delivered, the description or quantity of the Goods appearing on the Delivery Docket or the Goods Ordered, then the Customer must elect whether to accept or reject the Goods in whole or in part, and, thereafter:
a. if the Customer accepts all or some of the Goods, the Customer will be taken to have Ordered what is delivered; and
b. if the Customer rejects all or some of the Goods, the Customer shall record in writing on the Delivery Docket details sufficient to accurately identify the nature of such disagreement or difference before the Delivery vehicle departs from the Delivery address.
12. If the Customer accepts the Goods then:
a. before delivering the Goods, Align Masonry shall complete the then relevant Delivery Details on the Delivery Docket and the Customer shall sign the Delivery Docket; and
b. after Delivery, Align Masonry shall complete the Delivery Details and enter the quantity of any returned Goods on the Delivery Docket and give a copy of the completed signed Delivery Docket to the Customer.
13. If the Customer is not present at the Delivery location at the time of Delivery, or being so present, fails or refuses to sign as required by Clause 12, Align Masonry may, in its absolute discretion, elect to refuse to deliver the Goods but, in those circumstances, the Customer will none the less be liable to pay for those Goods as if they had been delivered.
14. Notwithstanding any other provisions of these Terms, if the Customer is not present at the Delivery location at the time of Delivery, or the Customer is present but does not sign the Delivery Docket in accordance with Clause 12(a) or, having so signed, recorded details of any disagreement or difference on the Delivery Docket in accordance with Clause 11 and the Goods are discharged then, to the extent permitted by Law:
a. the Customer shall be deemed to have unreservedly accepted both the Delivery and the accuracy of the Delivery Details;
b. b Align Masonry shall have no Liability to the Customer for Loss in respect of any difference between the description
c. and quantity of the Goods appearing on the Delivery Docket and the Customer’s Order;
d. the Customer irrevocably waives all of its rights to reject the Goods referred to in the Delivery Docket; and
e. the Delivery Docket shall be prima facie evidence of all matters recorded thereon including the Delivery Details
f. and the application of Delivery related surcharges. Sub-clause (c) shall not apply in relation to any defect, non-conformity or failure which would not have been
g. apparent upon reasonably diligent inspection at the time of Delivery.
Payment
15. Unless otherwise quoted, all prices are for supply, delivery and/or installation, (work) undertaken during the Suppliers business hours, Monday to Friday. Any work undertaken by the supplier outside these hours may incur a service fee and the Customer will be responsible for payment of this service fee.
a. The Customer will be charged for delivery unless the quoted price includes an amount for delivery
b. The suppliers may;
I. Charge a waiting time or an hourly hire where a delivery vehicle is unable to unload promptly and without delay on arrival at the delivery site; and/or
II. Charge a minimum load service fee for delivery of loads smaller than the minimum load size for each particular type of goods
16. The Customer shall pay the amount payable to Align Masonry prior to Delivery or within any agreed credit period.
17. Align Masonry is entitled to charge the Customer interest on amounts not paid at the time they are payable under Clause 17 at the interest rate payable from time to time on unsatisfied judgement debts under the Governing Law from invoice date until payment and the Customer shall be liable to Align Masonry for all Costs.
18. The Customer hereby irrevocably agrees that it is not entitled to withhold payment of the whole or any part of an amount payable to Align Masonry under these Terms by the way of retention or set-off for any reason whatsoever.
19. In the event of any dispute arising between Align Masonry and the Customer as to whether an amount is payable, the Customer shall, within the relevant period under Clause 17, pay to Align Masonry the amount claimed by Align Masonry to be payable (including any amount charged by Align Masonry under Clause 18), to be held by Align Masonry until settlement of the dispute.
20. A statement signed by Align Masonry certifying any amount payable by the Customer to Align Masonry, including any Costs, interests or other claims whether under these Terms or otherwise, shall, in the absence of manifest error, be prima facie evidence of the amount payable.
21. Each amount payable by the Customer under these Terms in respect of a Taxable Supply is exclusive of GST and the Customer must, in addition to that amount and at the same time and manner, pay the GST payable in respect of that supply upon receipt of a tax invoice. “Taxable Supply” and “GST” have the meanings set out in the A New Tax System (Goods and Services) Act 1999.
Limitations on Align Masonry liabilities
22. The Supplier warrants that the Goods delivered are those specified in the delivery docket and the Goods delivered are owned by the Supplier, are free from third party claims, undisclosed securities and are of acceptable quality as defined in the Australian Consumer Law.
23. To the maximum extent permitted by law, all terms, conditions or warranties that would have been implied into these conditions or in connection with the supply of any Goods and/or services by the Supplier under law, statute or custom are excluded.
24. Nothing in these conditions shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to these terms of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified. Limitation of Liability
25. Pursuant to sections 64A and 276A of the Australian Consumer Law, the following clause applies in respect of any of the Goods and/or services supplied under this agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this clause will not apply if the Customer establishes that reliance on it would not be fair and reasonable.
26. The Supplier’s liability in respect of breaches of expressed or implied terms and conditions, warranties and guarantees (other than the guarantees under section 51 (title), section 52 (undisturbed possession) and section 53(undisclosed securities) of the Australian Consumer Law) is limited to:
a. where the Customer is a consumer (as defined in the Australian Consumer Law – “consumer’) and the Supplier has
b) supplied Goods to the Customer, any one of the following as determined by the Supplier: the replacement of the
c) Goods or the supply of equivalent goods; or the repair of the Goods; or the payment of the cost of replacing the
d) Goods or of acquiring equivalent goods; or the payment of the cost of having the Goods repaired; or
I. where the Customer has supplied the Goods to a consumer: an amount equal to the lowest of the costs of the
e) actions in paragraph (a); or
I. where the Customer is a consumer and the Supplier has supplied services to the Customer, either of the following
f) as determined by the Supplier, the supply of the services again or the payment of the cost of having the services
g) supplied again; or
a. where the Customer is not a consumer and has not supplied the Goods to a consumer, the GST exclusive
h) aggregate price paid by the Customer for the specific Goods and/or services that gave rise to the Customer’s claim
i) for breach.
27. The Supplier will not be liable for any damages arising out of or in connection with, special, consequential, direct or indirect loss, damage, cost, expense, harm or injury including loss of revenue, loss of profits, loss of anticipated savings or business, loss of opportunity or loss of reputation suffered or incurred as a result of such breach unless
such liability is mandatorily imposed on the Supplier by statute, notably the Australian Consumer Law.
28. In addition to the Australian Consumer Law, the limitations of the Supplier’s liability in respect of breaches of express or implied terms or conditions and warranties and guarantees as expressed in the previous clause will be varied to the extent required to limit the Customer’s liability to the extent permitted by relevant state and territory legislation covering sale of goods and consumer protection. Termination and Suspension
29. If the Supplier is not satisfied as to the Customer’s ability to pay for the Goods and/or services, it may suspend or terminate supply and shall not be liable for any claim, damage, loss, expense or cost arising therefrom and all monies then outstanding by the Customer shall immediately become due and payable.
Claims
30. To the extent permitted by Law, Align Masonry shall not be liable for any claim by the Customer alleging a Loss arising out of the Quotation, sale, supply or Delivery of Goods or
Services under these Terms unless:
a. Align Masonry is notified by the Customer in writing of any alleged defect, non-conformity or failure giving rise to
b. the claim as soon as possible and, in any event, within 7 days, detailing the way in which the Goods do not conform;
c. Failure to give such notification within 7 days of the date of supply, the Customer will be deemed to accept the
d. Goods and that they are in accordance with the order and quotation.
e. The Customer shall be deemed to have accepted the Goods as supplied if it fails to keep the Goods in the
f. condition they were in when supplied or declines a reasonable request from the Supplier to inspect the goods.
g. the Customer allows Align Masonry reasonable facilities to investigate any such defect, non-conformity or failure
h. promptly, to advise the Customer of any appropriate remedial action and follows any such reasonable advice;
31. If the Customer fails whatsoever or howsoever to comply with any of these Terms, Align Masonry shall have the right at its option to suspend further performance of its obligations to the Customer and/or to terminate any contract with the Customer without affecting any other right or remedy of Align Masonry.
32. To the maximum extent permitted by Law, the Customer indemnifies Align Masonry against any Loss to the extent the same was caused or contributed to by any negligent or wilful act or omission of, or any breach of or failure to comply with these Terms by, the Customer.
33. Property in the Goods shall not pass until the Customer has paid all moneys payable to Align Masonry under these Terms in full. Risk in the Goods passes to the Customer at the time of Delivery. Until payment of all moneys payable by the Customer to Align Masonry, the Goods are subject to the following terms:
a. The Customer holds the Goods as fiduciary, bailee and agent for Align Masonry and must keep the Goods physically
b. separate from all other goods of the Customer, and clearly identified as owned by Align Masonry.
c. If an Event of Default occurs, then without prejudice to Align Masonry other rights, Align Masonry may without
d. notice to the Customer enter any premises occupied by the Customer or any other place where the Goods may be
e. and recover possession of them. If the Customer sells any of the Goods while money is owed to Align Masonry, the
f. Customer must keep the proceeds of the sale in a separate account and not mix them with any other funds.
g. If the Customer uses the Goods in some manufacturing or construction process of its own or of some third party,
h. then the Customer shall hold such part of the proceeds of such manufacturing or construction process as relates to
i. such Goods in trust for Align Masonry. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to Align Masonry and at the time of payment of such proceeds the Customer’s obligation to pay the amount owed for such Goods will be discharged.
j. If the Goods are resold, or products using the Goods are manufactured and resold by the Customer, the Customer holds the entire book debts owed in respect of such sales and proceeds of such sales in trust for Align Masonry. Such part of the book debts and proceeds shall be deemed to equal in dollar terms the amount owed by the Customer to Align Masonry at the time of the receipt of such book debts.
34. In the event that there is failure to deliver or any time delay in Delivery due to any cause whatsoever beyond Align Masonry control including weather, fire, labour dispute, strike or due to the inability of Align Masonry to obtain raw materials in a timely fashion from Align Masonry planned source (whether or not such source is known to the Customer):
a. Align Masonry will not be liable for any Loss sustained by reason of any such failure or delay; and
b. Align Masonry will be entitled to suspend deliveries for such period as it may think fit or terminate the agreement
b. immediately after suspending deliveries and shall not be liable for any Loss sustained by reason of such suspension
c. or termination.
35. To the extent permitted by Law, the actions or signatures of any person appearing to have the Customer’s
authority shall bind the Customer.
36. If the whole or any part of a provision of these Terms is unenforceable, the provision (or part thereof, as the case may be) is to be read down so as to be enforceable, and if it cannot be so read down, severed to the extent necessary to make these Terms enforceable.
37. A party may exercise a right, power or remedy at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise or that of any other right, power or remedy. A party is not liable for any loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising the right, power or remedy.
38. A right may only be waived in writing, signed by the party giving the waiver, and no other conduct of a party
operates as a waiver of the right or otherwise prevents the exercise of the right.
39. A single or partial exercise or waiver of a right or a delay in the exercise of a right conferred on a party by these Terms or by Law does not prevent any other exercise of that or any other right.
40. These Terms are governed by and are to be construed in accordance with the Laws of:
a. the State or Territory of Australia in which the Goods are delivered or the Services supplied; or
41. These Terms are not to be interpreted against the interests of a party because that party proposed these Terms or some provision of it or because that party relies on a provision of these Terms to protect itself.
42. The Customer consents to Align Masonry recording and disclosing telephone conversations between the Customer and Align Masonry.
43. The Customer must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Customer. The Customer must also pay for all stamp duty and other taxes payable on this agreement (if any).
44. The Customer will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including collection costs, debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Customer to the Supplier irrespective of whether pursuit of the recovery action, claim or remedy is successful.
45. The Customer acknowledges and agrees that payments by the Customer will be applied by the Supplier as follows;
a. Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 26 and 30.
b. Secondly, in payment of any interest incurred in accordance with clause 2.
c. Thirdly, in payment of the outstanding invoice(s).
46. In circumstances where the Supplier seeks to enforce a purchase money security interest under the PPSA over collateral or proceeds (these terms being consistent with the terms defined in the PPSA), payments received from the Customer will be allocated in a manner at the Suppliers sole discretion, so as to attribute, to the greatest extent
possible, the unpaid balance of the debt to the purchase money obligation in respect of the collateral and/or proceeds over which the Supplier seeks to enforce its purchase money security interest.
47. To the extent that payments have been allocated to invoices by the Supplier in its business records, the Supplier may, at its discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at any time at the Supplier’s absolute discretion at any time, including in a manner inconsistent with these terms.