Terms & Conditions

1.     Definitions

1.1    “Mawsons” means E.B. Mawson & Sons Proprietary Limited ACN 004 519 617, its ‘related bodies corporate’ (as that term is defined in the Corporations Act 2001 (Cth)) and its successors and assigns.

1.2    “You” or any derivative thereof means the entity that has contracted with Mawsons to buy Goods and/or Services, and includes, without limitation, the Customer that has applied for Commercial Credit with Mawsons pursuant to this Application for Commercial Credit.

1.3    “Guarantor” means any person that has signed a Deed of Personal and Guarantee & Indemnity in favour of Mawsons.

1.4    “Agreement” means this agreement.

1.5    “Goods” means any goods supplied by Mawsons to You (or ordered by You but not yet supplied) including and in no way limited to rocks, aggregates and additives used in the manufacture of concrete, or Pre-mixed concrete, or Quarry Materials supplied by Mawsons to You (and where the context so permits, includes any supply of Services as hereinafter defined).

1.6    “Services” means any services supplied by Mawsons to You (or ordered by You but not yet supplied) including, and in no way limited to any services related to the Goods, and transportation (and where the context so permits shall include any supply of Goods as defined supra).

1.7    “Price” means the cost of the Goods and/or Services as determined by Mawsons subject to clause 4 of these Terms and Conditions.

1.8    “GST” has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth);

1.9    “Pre-mixed concrete” means concrete of any specification and state, that is delivered or to be delivered by Mawsons to You.

1.10  “Quarry Materials” means but is not limited to stone, rock, construction aggregate, rip rap, sand, gravel, slate and any other material excavated from the ground, or any other product deemed by Mawsons to fall within this category from time-to-time and at Mawsons complete discretion.

1.11  “Terms and Conditions” shall mean these Terms & Conditions of Trade.

2.     Acceptance

2.1   Any instructions received by Mawsons from You for the supply of Goods and/or Services, or Your acceptance of Goods and/or Services supplied by Mawsons, shall constitute acceptance of the Terms and Conditions contained herein.

2.2   Upon acceptance of these Terms and Conditions by You, Terms and Conditions are irrevocable and can only be rescinded in accordance with these Terms and Conditions or with the written consent of Mawsons.

2.3   None of Mawsons’ agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by a manager or director of Mawsons in writing nor is Mawsons bound by any such unauthorised statement unless made by a manager or director of Mawsons in writing.

2.4   You undertake to give Mawsons not less than fourteen (14) days prior written notice of any proposed change in Your name and/or any other change in Your details (including but not limited to, changes in Your address, number, or business practice or structure, ABN). You agree to submit a new Application for Commercial Credit to Mawsons should Your name, ABN, or person(s) or entity responsible for payment to Mawsons change. In the absence of a new Application for Commercial Credit being submitted to and accepted by Mawsons, those persons or entities (including Guarantor(s)) originally liable to Mawsons pursuant to the initial Application for Commercial Credit, will remain liable.

2.5   You acknowledge that these Terms and Conditions take precedence over any terms and conditions contained in any document provided by You. Further, if there is any inconsistency between these Terms and Conditions, a quotation or a purchase order supplied by Mawsons, then these Terms and Conditions shall prevail, then the quotation, then the purchase order.

2.6   You expressly warrant and acknowledge that any credit provided to You by Mawsons is to be used for wholly (or predominantly) business purposes.

3.     Goods

3.1   The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by Mawsons to You.

4.     Price and Payment

4.1   At Mawsons sole discretion the Price shall be either;

(a)             as indicated on invoices provided by Mawsons to You;

(b)            as stated on any quote provided by Mawsons to You;

(c)             as per Mawsons’ price list that is in force at the time Goods or the Services were provided.

4.2   The Price in respect of Pre-mixed concrete is quoted as nett per cubic metre delivered on the basis of a three (3) cubic metre minimum load supplied during normal working hours. For delivery on public holidays, weekends and before 6.30am or after 4.30pm, a surcharge applies. For loads less than 3m3, a minimum cartage charge on the shortfall from 3m3 applies. Details of the surcharge or the cartage charge are available upon request.

4.3   The Price in respect of Quarry Materials is based on the following:

(a)             Current costs of transport, labour and materials, and in the event of any variation to any of these costs prior to delivery, Mawsons may adjust the Price accordingly without notice to You;

(b)            Mawsons ruling minimum load, and in the event of deliveries being required of less than the minimum load, an additional cartage charge will be payable in accordance with Mawsons ruling rates;

(c)             Delivery being made by the shortest access route available, and in the event of roads being closed and preventing delivery by the shortest access route, Mawsons shall have the right to charge for any additional cost incurred by it in making delivery; and

(d)            Delivery being made during normal working hours and in the event of delivery being required outside such hours, an additional cartage charge will be payable in accordance with the Mawsons ruling rates.

(e)             If stated on a volumetric basis, the Price will be based on a loose uncompacted volume as measured in the truck body at the place of loading.

4.4   Time for payment of the Price the Goods and/or Services shall be of the essence and will be on the date/s determined by Mawson, which may be:

(a)             before delivery of the Goods and/or Supply of the Services;

(b)            the due date specified on Mawsons’ invoice, quote or order form;

(c)             thirty (30) days following the date of invoice;

(d)            in the absence of any notification of the due date by Mawsons, on delivery of the Goods and/or supply of the Services by Mawsons.

4.5   Unless Mawsons receives a written request from You to receive hard copy or paper invoices, all invoices will be sent to You electronically and to the email address for receiving invoices nominated by You on page 1 of the Application for Commercial Credit. You are solely responsible to advise Mawsons within 24 hours in writing of any change to Your email address. You accept all risk and liability from any failure to notify Mawsons of any change to Your email address.

4.6   At Mawsons sole discretion, payment for approved customers shall be made by instalments in accordance with Mawsons delivery/payment schedule.

4.7   In the event that:

(a)             Mawsons retains or regains possession or control of the Goods; and

(b)            payment of the Price is due to Mawsons; and

(c)             Mawsons has made demand in writing of the You for payment of the Price in terms of this Agreement; and

(d)            Mawsons has not received the Price of the Goods, then, Mawsons may dispose of the Goods and may claim from You the loss to Mawsons on such disposal.

4.8   Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed between Mawsons and You.

4.9   The Price shall be increased by the amount of any:

(a)             GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by Mawsons; and

(b)            Any reasonable expenses incurred by Mawsons in respect of the Goods and/or Services.

4.10    Where You make payment of the Price by credit card or by direct credit, any and all merchant fees in facilitating the payment of the Price will also be payable by You. You hereby agree that 2.5% of Your payment amount is a genuine pre-estimate of Mawsons’ costs of providing credit card facilities (i.e. the merchant fees). For example, if Your payment amount was $100.00, then the merchant fees applicable would be $2.50 being 2.5%.

4.11    Payment for any amount outstanding shall be deemed immediately due and payable in any of the following circumstances:

(a)             there is non-payment of any sum by the due date;

(b)            Mawsons forms a view that You will not pay any sum by its due date;

(c)             You are bankrupted or enter administration, liquidation or receivership;

(d)            any material adverse change in Your financial position (in Mawsons’ sole discretion).

4.12    All payments to be made by You to Mawsons shall be made without set-off (whether arising at law or in equity) or counterclaim (whether arising at law or in equity) and free and clear of any withholding or deduction whatsoever, unless prohibited by law.

4.13    Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until it results in Mawsons receiving cleared funds for the entire amount of the negotiable instrument.

5.     Delivery of Goods

5.1   Risk in any Goods shall be deemed to pass to You, and delivery shall be deemed to occur, at the time when the Goods have been either (a) delivered to You, (b) delivered to the delivery address nominated by You or (c) delivered to a carrier or third party nominated by You. Unless prior agreement is reached, Mawsons undertakes to deliver, and You agree to receive the Goods at the kerb alignment. The delivery vehicle will only enter the job area to facilitate unloading at Your sole risk and responsibility, and at the absolute discretion of the truck driver.

5.2   For the purpose of the previous clause, You agree and acknowledge that in the event that there is no representative of You present to receive the Goods, You are entirely responsible for any losses, expenses, damages and liabilities occasioned as a result. Under no circumstances shall Mawsons be liable for losses, damages, expenses or liabilities occasioned by the delivery of Goods being made to the delivery address when a representative of You is absent when Goods are delivered to the nominated delivery address.

5.3   You expressly acknowledge and agree that any delivery date given by the Mawsons as the delivery date for Goods is an estimate only and does not a constitute contractual term or legally binding representation. Mawsons shall not be liable for any loss or damage (howsoever arising) to You or any third party if the Goods are not delivered by a nominated delivery date. The failure of Mawsons to deliver Goods to You at an agreed time or at all through exceptional circumstances entitles Mawsons at its sole discretion to either extend the time for delivery for such reasonable period as it thinks fit or to cancel and terminate the agreement insofar as it is incomplete without prejudice to Mawsons rights to recover all sums owing to it in respect of Goods previously provided or Services performed prior to the date of such termination. 

5.4   The cost of freight and insurance to the point of the delivery address, or any other costs which You direct Mawsons to incur, shall be at Your expense and shall form part of the Price. Such amounts will be paid by You to Mawsons without any set-off, deduction or other withholding whatsoever.

5.5   Where You arrange freight to a nominated location, risk in any goods shall pass when your nominated agent/carrier collects the Goods from Mawsons.

5.6   You are responsible for unloading the Goods at the point of delivery.

5.7   You accept that Mawsons may charge a reasonable storage fee for storage and/or redelivery charges in the event You do not, or are unable to, accept delivery of the Goods.

6.     Title And Personal Property Securities Act 2009 (“PPSA”)

Goods

6.1   Whilst risk in the Goods passes on delivery, legal and beneficial title in the Goods shall remain with Mawsons until it has received payment in full for all monies owed by You.

6.2   Until Mawsons has received payment in full for all monies owed by You, Mawsons reserves the following rights:

(a)             legal and beneficial ownership of the Goods;

(b)            the right to enter Your premises (as Your invitee) to retake possession of the Goods;

(c)             the right to keep or resell any Goods repossessed under sub-clause 6.2(b); and

(d)            any other rights it may have at law or under the PPSA.

6.3   Where, pursuant to sub-clause 6.2(c):

(a)             Mawsons resells the Goods repossessed, it is agreed that Mawsons may credit Your account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs); or

(b)            Mawsons retains possession of the repossessed Goods, it is agreed that Mawsons may credit Your account with the invoice value less such sum as Mawsons reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.

6.4   Mawsons shall not be liable for any costs, damages, expenses or losses incurred by You or any third party as a result of any action taken to repossess the Goods.

6.5   If the Goods are mixed (or commingled) with other property so as to be part of or a constituent of any new product, title to these products shall be deemed to be assigned to Mawsons as security for the full satisfaction by You of the full amount owing between Mawsons and You.

6.6   Until Mawsons receives payment for Goods in full, You acknowledge that Mawsons has a Purchase Money Security Interest (PMSI) which attaches over the Goods and their proceeds and a Security Interest in relation to other amounts owed by You to Mawsons.

General

6.7   Upon assenting to these Terms and Conditions, You acknowledge and agree that these Terms and Conditions constitute a Security Agreement for the purposes of the PPSA.

6.8   You undertake to do anything (such as obtaining consents, producing documents, producing receipts and getting documents completed and signed) which Mawsons asks and considers reasonably necessary for the purposes of:

(a)             ensuring that a PMSI and/or Security Interest is enforceable, perfected and effective;

(b)            enabling Mawsons to apply for any registration, or give any notification, in connection with the Security Interest created under this Agreement so that the PMSI and/or Security Interest has the priority required by Mawsons.

6.9   To the extent permitted by law, You irrevocably waive Your right 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 Goods under section 142 of the PPSA;

(c)             reinstate this Agreement under section 143 of the PPSA;

(d)            receive a Verification Statement.

6.10    Nothing in clause 6 prevents Mawsons from taking collection or legal action against You to recover any monies owed from time-to-time.

6.11    If any of Goods are damaged or destroyed prior to the title in them passing to You, Mawsons is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions (including the right to receive payment of the Price), to receive all insurance proceeds payable for the Goods (including under any insurance policy You may have). This applies whether or not the Price has become payable under the Agreement. The production of these Terms and Conditions by Mawsons is sufficient evidence of Mawsons’ rights to receive the insurance proceeds without the need for any person dealing with Mawsons to make further enquiries.

7.     Pre-mixed concrete

7.1.   The supply of Pre-mixed concrete is according to order under AS 1379 – 1997 and AS 3600 – 1994 or the latest revision of such standards. Mawsons accepts no responsibility in respect of any defect which may develop in any concrete supplied if water is added to the concrete either before or after discharge from the delivery unit without the prior agreement by Mawsons’ engineer or representative, or if an admixture has been used in the concrete at Your request or specifications.

7.2.   The mix specification will be detailed on the face of the delivery docket, and You must check same with concrete specifications supplied to Mawsons. Mawsons will accept no responsibility for error if this check is not made at the time of delivery.

7.3.   Mawsons is not responsible for the quantity or strength of concrete in cases where You specify Your own mix design or specifications.

8.     Quarry Material Goods

8.1.   Testing of materials supplied will not automatically be carried out. If the results are to be used in any dispute with Mawsons, testing shall be carried out in accordance with the relevant Australian standard test procedure by a testing laboratory approved by the National Association of Testing Authorities and the results shall be furnished forthwith after testing to Mawsons. Any testing shall be at Your expense.

9.     Interest and Costs

9.1.   Interest accrues on any amount owing after the due date at the rate of 12% per annum, calculated daily from the first day overdue until payment.

9.2.   You shall pay (on a full indemnity basis) any and all expenses, disbursements, collection and legal costs which Mawsons incurs or is liable to pay (including contingently liable to pay), in connection with the enforcement of any and all rights and/or preservation of any and all rights contained in this Agreement.

9.3.   For the purposes of the preceding clause, You acknowledge that collection costs may be calculated on a commission basis at a percentage rate of up to 25% of the amount due and You expressly agree to pay for those expenses, as liquidated damages on demand, irrespective of whether (a) Mawsons is not liable to pay the collection agent the commission, until You have made payment of Your overdue debt (or any portion thereof) and/or (b) the amount of work actually performed by the collection agent before You make a payment for an overdue debt (or any portion thereof).

10.   Disputes

10.1.    You must, within 7 days of the relevant Goods and/or Services being provided, raise any issue associated with incomplete, damaged, incorrect or substandard quality and/or late supply.

10.2.    You must, upon request of Mawsons, allow Mawsons’ nominated representative to attend the premises where the Goods are located or, in the case of Services involving workmanship, where the workmanship was done, in order to inspect the Goods and/or the workmanship (as the case may be).

10.3.    If You fail to give notice of any claim within the 7 day period specified in clause 13.1 above and/or fail to allow Mawsons to inspect the Goods and/or workmanship in accordance with clause 13.2 above, then, to the extent permitted by law, the Goods and/or Services (if involving workmanship) are deemed to be accepted by You and You must pay for them in accordance with these Terms and Conditions.

11.   Limitation of Liability & Indemnity

11.1.    All implied conditions, warranties and undertakings other than the statutory guarantees set out in Schedule 2 of the Competition and Consumer Act 2010 (“CCA”) are expressly excluded to the extent permitted by law.

11.2.    Where the Goods are of a kind other than goods ordinarily acquired for personal, domestic or household use, then Mawsons’ liability is limited, at its option, to anyone or more of the following:

(a)           repairing the Goods

(b)           the costs of repairing the Goods;

(c)           the replacement or supply of the equivalent of the Goods; or

(d)           the payment of the costs of replacing the Goods or acquiring their equivalent.

11.3.    Where the Services are of a kind other than services ordinarily acquired for personal, domestic or household use, then Mawsons’ liability is limited at its option to:

(a)           supplying the Services again; or

(b)           the payment of the costs of supplying the Services again.

11.4.    Subject to Your rights under Schedule 2 of the CCA:

(a)           Mawsons shall not be liable for any loss or damage of any kind whatsoever, arising from the Goods and/or Services or this Agreement, including consequential loss whether suffered or incurred by You or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from the Goods and/or Services, or any representations or misrepresentations made to You by any servant or agent of Mawsons and You acknowledge that You buy the Goods and/or Services relying solely upon Your own skill and judgement; and

(b)           You shall indemnify Mawsons against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Mawsons or otherwise, brought by any person in connection with any matter, act, omission, or error by Mawsons, its agents or employees in connection with the Goods and/or Services.

12.   Security and Charges

12.1.    You hereby charge in favour of Mawsons all of Your estate and interest in any real property (whether held in Your own right or in Your capacity as trustee) that You now have, or which you may later acquire any such interest in, with payment of all moneys owed by You to Mawsons now and in the future, and you hereby consent to Mawsons lodging a caveat or caveats which note Mawsons’ interest.

12.2.    You also charge all of your present and after-acquired personal property with payment of all moneys owed by you to Mawsons now and in the future.

12.3.    Where You have previously granted a charge, mortgage and/or other security interest to Mawsons in any previous agreement, that charge, mortgage and/or security interest will continue, and shall be in addition to and separate from the charges and security interests created in this Agreement, and shall secure all indebtedness and obligations of You under this Agreement.

13.   Cancellation

13.1.    Mawsons may, in its sole discretion, withdraw the trade credit facility at any time, or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. Mawsons shall not be liable for any loss or damage whatever arising from any such withdrawal or cancellation.

13.2.    At Mawsons sole discretion, You may cancel delivery of Goods. In the event that You cancel delivery of Goods and Mawsons agrees to this:

(a)           You shall be liable for any and all costs incurred by Mawsons up to the time of cancellation; and

(b)           Mawsons may credit Your account with the invoice value less such sum as Mawsons reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.

14.   Privacy Policy and Credit Reporting Policy Notification

14.1.    Mawsons collects personal information about You (if a sole trader, individual trustee, or partnership of individuals) for the purposes set out in its Privacy Policy and its Credit Reporting Policy. Both of these policies may be located at www.mawsons.com.au. A hardcopy of these policies can also be provided to You free of charge, upon request.

14.2.    The Privacy Policy sets out: the personal information that Mawsons collects; how Mawsons collects and uses this information; how You may access or correct it; and how You may make a complaint in respect of Mawsons’ management of the information;

14.3.    The Credit Reporting Policy sets out: the types of credit related personal information Mawsons collects; how it is collected, why it is collected; how Mawsons may use and disclose the credit-related personal information, including the credit reporting bodies to which Mawsons is likely to disclose Your credit related personal information to; and how a complaint may be made in respect of Mawsons’ management of the credit related personal information.

14.4.    By You completing the Application for Commercial Credit or providing orders to Mawsons for the supply of Goods and/or Services, You are consenting to Mawsons collecting, handling, using, disclosing and otherwise dealing with Your personal information (including credit-related personal information) in accordance with the terms of Mawsons’ Privacy Policy, its Credit Reporting Policy and in accordance with Australia's privacy laws.

15.   General

15.1.    If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

15.2.    These Terms and Conditions and all matters concerning the business relationship between Mawsons and You shall be governed by the laws of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the Courts of that State for the conduct of any litigation.

15.3.    The parties agree that any contract between You and Mawsons is formed at Mawsons’ address.

15.4.    Mawsons may license or sub-contract all or any part of its rights and obligations without Your consent.

15.5.    This Agreement constitutes the entire agreement between the parties relating to its subject matter. All previous negotiations, representations and understandings are merged into this agreement. No oral representation or information provided by Mawsons constitutes a legally binding representation, contractual term or collateral agreement.

15.6.    Failure by Mawsons to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of its rights or obligations under this agreement.

15.7.    Any variation to the Terms and Conditions contained in this Agreement must be agreed to in writing by Mawsons for it to have any legal effect.

15.8.    Mawsons may vary these Terms and Conditions at any time. You will be notified of any variations in writing. 

15.9.    If an order is placed as an agent of a principal (whether disclosed or undisclosed), both the agent and the principal shall be joint and severally liable to pay for the Goods and/or Services and the relevant contracts shall be governed by these Terms and Conditions.