Terms of Trade
General Terms and Conditions of Sale
“Supplier” means AML Limited trading as Allied Concrete or Allied Concrete Limited.
“Customer”means the Customer, any person acting on behalf of and with the authority of the Customer, or any person purchasing products and services from the Supplier.
“Business Day” means a day other than a Saturday, Sunday or public holiday in New Zealand, when banks are open for business.
“Business Hours” means the period from 9.00 am to 5.00 pm on any Business Day.
“Customer” means the person or entity who purchases the Goods from the Supplier.
“Delivery Location” has the meaning given in Clause 3.1.
“Force Majeure Event” means an event, circumstance or cause beyond a party’s reasonable control.
“Goods” means the goods (or any part of them) set out in the Order.
"GST'’ means goods and services tax within the meaning of the Goods and Services Tax Act 1985.
“Order” means the Customer’s order for the Goods, as set out in the Supplier’s quotation OR in the Customer’s purchase order/request, as the case may be.
“Specification” means any specification for the Goods that is agreed in writing by the Customer and the Supplier.
2. APPLICABLE TERMS
The Customer acknowledges that these Terms of Sale are to be read in conjunction with any terms or conditions contained within an Order and the Supplier’s Terms of Credit for an applicable account, which shall all apply to the sale of the Goods to the Customer. In the event of any conflict, inconsistency or ambiguity then these Terms of Sale shall take precedence.
3.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
3.2 Delivery is completed on the completion of unloading of the Goods at the Delivery Location. If the Customer fails or refuses or indicates to the Supplier that the Customer will fail or refuse to take or accept delivery, then the Goods shall be deemed to have been delivered when the Supplier was willing to deliver them.
3.3 Any claim by the Customer for alleged short delivery of goods must be made in writing and received by the Supplier within five Business Days after delivery of the Goods. If notification is not made within this timeframe, time being of the essence, then the Customer shall have no entitlement to any financial compensation or other remedy.
3.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
3.5 The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery in an instalment shall not entitle the Customer to cancel any other instalment.
3.7 The Supplier may charge the Customer transportation and disposal expenses and may in addition recover from the Customer all additional costs, charges and expenses incurred by the Supplier as a result of failure, refusal or inability to take or accept delivery. The Supplier shall not be required to make any adjustment to its price in respect of any such Goods unless the Supplier shall have received written notice of the Customer’s requirements before loading of the Supplier’s delivery vehicle(s) at the Supplier’s premises
3.8 The Customer shall at its own cost ensure that the Goods are discharged immediately upon arrival of the Supplier’s delivery vehicle(s) at the site. The Supplier shall not be responsible for any malfunction of or damage caused to any such equipment used in discharging the Goods and the Customer shall indemnify the Supplier from and against all related costs, expenses, claims, actions and liabilities
3.9 The Customer shall provide suitable access to the Delivery Location in all weather conditions for the Supplier’s delivery vehicle(s). Damage to footpaths, kerbs, drains, verges or other property caused by any of the Supplier’s vehicles in the course of deliveries beyond the kerbline, charges payable in returning any of the Supplier’s vehicles to the roadway and the removal of mud, clay and other materials tracked onto footpaths, roads or verges in the course of delivery shall be the Customer’s responsibility and the Customer shall indemnify the Supplier from and against all related costs, expenses, claims, actions and liabilities.
3.10 The Supplier shall be entitled to charge waiting time at its current rate on that period of time beyond ten minutes per cubic meter the vehicle is on or at the Delivery Location to discharge the Goods. The Supplier shall be entitled to make an additional charge for an amount to be determined by the Supplier for deliveries made before 7.30am or after 5.00pm on weekdays, before 7.30am or after 11.00am on Saturdays and at any time on Sundays and statutory holidays.
3.11 The terms implied by sections 131 to 142 of the Contract and Commercial Law Act 2017 are, to the fullest extent permitted by law, excluded from these Terms of Sale or any Order.
4.1 Unless otherwise expressly stated in writing, the price of the Goods shall be priced as at the date of delivery. A quotation price shall only be valid for a period of 20 Business Days from its date of issue, after which it shall be deemed to have expired and will require repricing or the price will be as priced by the Supplier as at the date of delivery.
4.2 Unless any price quoted in writing is expressed to be a fixed price, the Supplier reserves the right to adjust its prices at any time and from time to time.
4.3 The Supplier may, by giving notice to the Customer at any time up to 2 Business Days before delivery, increase the price of any quoted Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
4.4 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
4.5 The Customer shall pay each invoice submitted by the Supplier:
(a) on or before the 20th day of the month following delivery (the due date); and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
(c) time for payment shall be of the essence of the Contract.
4.6 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting any other remedies available to the Supplier, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum. Interest under this Clause 4.6 will accrue at 18% per annum. Interest shall compound monthly on the 20th day of each month following the month of the due date. The Customer shall also be immediately liable for all costs of collection (including legal costs on a solicitor and client basis) of and incidental to the enforcement or attempted enforcement of the Supplier’s rights, remedies and powers under these Terms of Sale.
4.7 All amounts due under the Contract shall be paid in full without any set-off, abatement, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.8 The Supplier reserves the right to withdraw any discounts on overdue accounts. Overdue accounts may be re-invoiced at “list” price and interest charged in accordance with Clause 4.6.
4.10 Notwithstanding the Supplier having processed or approved the application or having previously granted credit and without prejudice to any other of its rights, the Supplier shall be entitled, at its sole discretion, to withhold delivery until payment has been made in advance.
5. CONCRETE MIXES
5.1 Unless notified otherwise, the Supplier’s standard design mixes are supplied in lieu of an agreed Specification.
5.2 Materials or additional water added by the Customer or their representative to the concrete will be at the Customer’s risk. The Supplier will not accept liability or responsibility for the resultant performance of the concrete.
5.3 Mixes including waterproofing products and other such additives are standard concrete mixes in all respects and have had waterproofing or other additive products added at the dose rate and dosing procedure as stipulated by the manufacturer of the additive product. Any warranty or guarantee given by the manufacturer of the additive product is between the additive manufacturer and the Customer/builder/owner (as applicable), and the Supplier gives no warranty or guarantee in relation to the performance of such additive products.
5.4 The Supplier supplies concrete on the assumption that the Customer is familiar with industry standard trade practice for concrete construction as set out in the New Zealand Standard NZS3109.
5.5 Early age care of the concrete is the responsibility of the Customer. The Supplier’s responsibility for delivery is discharged as the concrete leaves the chute.
6.1 Concrete cracking is common and to be expected, as this is a part of the curing process. Cracking is caused by factors outside of the Supplier’s control, and the Supplier will not be liable whatsoever for early aged or hardened concrete cracking or subsequent loss of function or amenity, unless it can be demonstrated that the concrete compressive strength is less than levels set in NZS3104 and concrete strength is the primary cause for concrete cracking or breakdown of concrete element.
6.2 Efflorescence, both white and brown, is a naturally occurring complex phenomenon caused by moisture movement through concrete. The Customer acknowledges that the Supplier will not have any responsibility for efflorescence. Customers are recommended to consult Concrete NZ’s page that outlines some of the measures that can be employed to minimise the risk of this occurring. https://concretenz.org.nz/page/efflorescence
6.3 Concrete and concrete products are manufactured from natural materials and may produce varied shades and surface textures. The Customer acknowledges that the Supplier will not have any liability for variation in shades and surface textures caused by factors outside of its control.
7.1 Unless stated otherwise, quoted prices for Goods are based on the industry standard production testing defined in NZS3104. It is the responsibility of the Customer to provide written instructions outside of this Standard if additional testing is required. The Supplier will not accept any liability for additional testing unless it has received a written instruction from the Customer prior to pricing.
7.2 Rejected concrete that is within the tolerances for slump defined by NZS3109 will be invoiced and the Customer shall be liable for payment under Clause.
8. HEALTH, SAFETY AND ENVIRONMENTAL COMPLIANCE WHEN USING ALLIED CONCRETE PRODUCTS
The Customer acknowledges that it must comply with all laws (including without limitation the Resource Management Act 1991 or any subsequent legislation) in respect of the use, storage and/or disposal of any Goods.
A general risk assessment when using our delivery services - For incorporation into your site safety plan:
9.1 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification.
9.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
9.3 To the extent permitted by law, the maximum aggregate liability of the Supplier to the Customer whether in contract, tort (including negligence), under statute or otherwise at law is:
(a) To the extent that any such liability relates to an insured risk, being a risk that the Supplier would be excepted in the normal course of business to have obtained insurance for, and which is recoverable (or would have been recoverable but for any act or omission of the Supplier), an amount equal to the amount recovered under the applicable insurance policy; or
(b) 5% of the total price of the Goods supplied to the Delivery Location.
9.4 The Customer acknowledges and agrees that the Supplier shall not be liable for any of the following types of loss, which are are wholly excluded:
(a) liquidated damages or general damages for delay;
(b) loss of profits;
(c) loss of sales or business;
(d) loss of agreements or contracts;
(e) loss of anticipated savings;
(f) loss of use or corruption of software, data or information;
(g) loss of or damage to goodwill; and
(h) indirect or consequential loss.
9.5 Without limiting its other rights or remedies, the Supplier may terminate any Order with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Order or these Terms of Sale and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business.
9.6 Without limiting its other rights or remedies under these Terms of Sale, the Supplier may suspend provision of the Goods if the Customer fails to pay any amount due on the due date.
9.7 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under any Order on the due date.
9.8 Neither party shall be in breach of any Order or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 3 months ,the party not affected may terminate the Contract by giving 5 Business Days’ written notice to the affected party.
9.9 Variation. No variation of these Terms of Sale shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
9.11 Severance. If any provision or part-provision of these Terms of Sale is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the remainder of the Terms of Sale.
10. INTELLECTUAL PROPERTY
10.1 Any Intellectual Property Rights in any Specification, Vendor Data or Goods which arise from, or are otherwise created pursuant to or for the purpose of or during the performance of this Agreement, shall be the sole and exclusive property of the Supplier. The Customer shall not disclose, release, license or sell to any third party or use or otherwise deal with the same in any manner, except as disclosure or use is necessary for the purpose of this Agreement and agreement shall be sought from the Supplier prior to passing onto any such party.
10.2. Notwithstanding the foregoing, if any action is contemplated or instituted for an alleged infringement of any Intellectual Property Rights, the Supplier reserves the right, without waiting for the determination of such hereof and/or to require the Customer at its expense to remove the Goods already delivered and the Customer shall refund the Supplier any part of the Price already paid (without prejudice
to any other rights or remedies of the Supplier).
10.3. The Customer shall be liable for all damages, loss, costs and expense incurred or suffered by the Supplier, and shall indemnify the Supplier against all liabilities, damages, costs and other compensation awarded to the Supplier, in connection with any infringement or alleged infringement arising from or occasioned by or in relation to the use of any Intellectual Property Rights pursuant to this Agreement.