If you are a ‘consumer’ under the Australian Consumer Law, you have the benefit of Australian Consumer Law guarantees which cannot be excluded by agreement. You are a ‘consumer’ under Australian Consumer Law if:
(a) you acquire goods or services from us for $100,000 or less; or
(b) the goods or services are of a kind ordinarily acquired for personal, domestic or household use.
If you are a ‘consumer’, notwithstanding anything to the contrary in these conditions of sale, under the Australian Consumer Law:
• If a defect or failure in our products constitutes a ‘major’ failure to comply with a consumer guarantee, you are entitled to:
(a) cancel your agreement with us; and
(b) compensation for any reduction in the value of the products.
• If a defect or failure in our products does not constitute a ‘major’ failure to comply with a consumer guarantee, you are entitled to:
(a) repair or replacement of those products; or
(b) a refund of any money paid for those products.
You may also be entitled to compensation for any other reasonably foreseeable loss or damage.
Note: This document sets out our conditions of sale only. If we agree to deliver the products, this service will be provided subject to our standard conditions of carriage available at www.richers.com.au (see clause 10.4).
CONDITIONS OF SALE
1. DEFINITIONS AND INTERPRETATION
1.1 In these conditions:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Claim means all actions, suits, causes of action, arbitrations, claims, demands, proceedings or complaints whether at law, in equity or arising under a statute;
Consequential Loss means any indirect or consequential loss; loss of use; loss of product or production; delayed, postponed, interrupted or deferred production; inability to produce, deliver or process; loss of profit, revenue or anticipated revenue; loss of anticipated savings or business; loss of bargain, contract, expectation or opportunity; wasted expenditure; loss of data; loss of value of equipment (other than cost of repair); special, punitive or exemplary damages; in each case arising from or in connection with the performance of these conditions and whether or not foreseeable at the time of entering into any agreement incorporating these conditions;
Consumer has the same meaning as in the Australian Consumer Law;
Customer means the person who engages Richers to supply Products, including the person’s employees, agents, subcontractors, successors, assignees or any entity claiming through or under the person;
Force Majeure Event means an act, event or cause that is beyond the reasonable control of Richers or Richers’ Personnel, including acts of God, lightning, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, public disorder, riots, civil commotion, malicious damage, sabotage and revolution, any circumstances where Richers is prevented or hindered from supplying the Products as a result of any inability to obtain necessary materials, products, equipment, facilities or services from usual suppliers on usual terms, strikes, labour disputes, lockouts or industrial action, any road closure or congestion of roads, any quarantine or customs restriction, any interruption of power supply or scarcity of fuel, accident, collision or breakdown of vehicle, machinery or equipment;
GST Act means A New Tax System (Goods and Services) Tax Act 1999 (Cth);
Law means applicable statutes and any associated regulations, proclamations, rules, bylaws, requirements and approvals;
Order means a Customer’s request to Richers to purchase Products from Richers;
Price means the price for supply of the Products and, if applicable, any transport of the Products;
Products means the goods (including bricks, blocks and pavers) to be supplied by Richers to the Customer in accordance with an Order;
Quotation means a quotation by Richers stating the Price to supply the Products in accordance with these conditions;
Rates means the rates of Richers for the supply of Products and any transport of the Products as amended from time to time;
Richers means Richers Transport Pty Ltd (ACN 009 721 788) trading under its own name or any other business name;
Richers’ Personnel means Richers’ employees, agents and subcontractors;
Site means the location for supply of the Products, if the Products are to be delivered by Richers; and
Taxable Supply has the same meaning as in the GST Act.
1.2 In these conditions:
(a) words in the singular include the plural and vice versa;
(b) words indicating any gender indicate the appropriate gender;
(c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(d) a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;
(e) references to any document (including these conditions) include references to the document as amended, consolidated, supplemented, novated or replaced;
(f) a reference to a statute includes a reference to all enactments amending or consolidating the statute and to an enactment substituted for the statute and any subordinate legislation, including regulations;
(g) monetary references are references to Australian currency;
(h) headings are included for convenience only and do not affect interpretation of these conditions; and
(i) no provision will be construed adversely to a party solely on the grounds that the party was responsible for the preparation of these conditions or that provision.
2.1 These conditions apply to and form part of any agreement between Richers and the Customer for the supply of Products.
2.2 These conditions (and any credit application completed by the Customer and credit guarantees, if applicable) govern the entire relationship between Richers and the Customer in connection with the supply of Products and will prevail over any other document (including purchase order terms or procurement terms provided by the Customer) to the extent of any inconsistency with these conditions.
3.1 The Customer’s Order may be placed verbally, by email or by post to Richers.
3.2 Richers will use reasonable endeavours to fulfill accepted Orders and comply with any requested or estimated date of delivery, but does not guarantee to deliver the Products by a particular date. If Richers ability to fulfil an Order is affected by a Force Majeure Event, Richers may:
(a) extend the date for delivery by a reasonable period;
(b) with the approval of the Customer, alter the specifications for the Products to allow for the substitution of similar Products; or
(c) cancel the Order without liability for breach of these conditions.
3.3 If Richers is unable to fulfil an Order within thirty (30) days from the date for delivery nominated by Richers at the time of placement of an Order, the Customer may cancel the Order without liability for breach of these conditions.
4. MASONRY PRODUCTS
4.1 The Customer acknowledges that:
(a) the raw materials used to manufacture masonry Products are natural products and are subject to variations;
(b) masonry Products may also contain iron stone which could cause rust stains in finished products;
(c) the colour, texture or appearance of masonry Products might not precisely match the Customer’s selections in any Order;
(d) masonry Products should be viewed before purchase and all required Products should be ordered at the same time to reduce the risk of variations;
(e) masonry Products should be installed from pallets in rotation to help ensure even blending;
(f) Richers does not represent, warrant or guarantee that the colour, texture, appearance or quality of concrete masonry Products will precisely match the selections made by the Consumer; and
(g) the Products may suffer from stains and other blemishes as a result of exposure to the surrounding soil and the environment;
(h) the Customer is responsible for checking colour variation in masonry Products before installation.
5.1 The Customer acknowledges that seconds or redundant Products (including any Products that Richers supplies as seconds) (Seconds):
(a) are not graded as first quality;
(b) may have variations in colours, textures, sizes and shapes and other irregularities; and
(c) a proportion of those Products may be broken, cracked or damaged.
5.2 The Customer must thoroughly inspect Seconds prior to purchase to ensure the Customer is satisfied with the nature and condition of the Seconds and to ensure the Seconds meet the Customer’s needs and are fit for the intended application.
5.3 The Customer cannot return the Seconds because on the basis of any of the circumstances set out in clause 5.1.
5.4 Subject to clause 15.1, Richers will not provide refunds, replacements or credit in relation to Seconds in any circumstances.
6.1 The Customer acknowledges that concrete masonry Products contain silica and acknowledges that silica is a dangerous good and will obtain advice in relation to the handling of silica.
7. RICHERS’ WARRANTIES AND LIABILITY
7.1 If the Customer is a Consumer:
(a) the Products come with guarantees that cannot be excluded under the Australian Consumer Law;
(b) the Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage; and
(c) the Customer is entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure.
7.2 Subject to clause 7.1 and 15.1, to the extent permitted by Law, Richers gives no warranties or guarantees, either express or implied, as to merchantability, fitness for purpose or otherwise of any Products.
7.3 In respect of Products that comprise any masonry bricks, blocks or pavers (except for Seconds), Richers warrants that the colour of the Products is supplied by reference to a sample and will substantially comply (subject to any variation usually found in masonry products) with the range of the colours of the sample wall on exhibition at Richers’ premises (but no smaller sample of the Products). Richers accepts no responsibility for variations in colour between Products supplied under different orders, or delivered at the request of the Customer in separate deliveries, or the failure of the Customer (or their contractors) to blend the Products before construction.
7.4 Richers is not liable in respect of any claims that arise out of any damage to, or faults or defects which may develop in the Products, as a result of:
(a) faulty handling, storage or placement of the Products by any person other than Richers;
(b) the inappropriate selection by the Customer of Products for the required use, situation or conditions;
(c) the base on which any Products are laid being unsuitable or defective; or
(d) the Customer failing to order an amount of the Products sufficient to properly cover a particular area.
8. POINT OF SUPPLY
Quotations for the supply of Products are based on all Products being available from Richers’ normal point of supply (as determined by Richers).
9.1 Ownership of the Products will not pass until:
(a) the Customer has paid Richers all amounts owing for the particular Products; and
(b) the Customer has met all other obligations due by the Customer to Richers in respect of all contracts between Richers and the Customer.
9.2 Until ownership of the Products passes to the Customer in accordance with clause 9.1:
(a) the Customer is only a bailee of the Products and must return the Products to Richers on request;
(b) the Customer holds the benefit of the Customer’s insurance of the Products on trust for Richers and must pay to Richers the proceeds of any insurance in the event of the Products being lost, damaged or destroyed;
(c) the Customer must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Products, then the Customer holds the proceeds of any such act on trust for Richers and must pay or deliver the proceeds to Richers on demand;
(d) the Customer must not convert or process the Products or intermix them with other goods but, if the Customer does so, the Customer holds the resulting Products on trust for the benefit of Richers and must sell, dispose of or return the resulting Products to Richers as it so directs;
(e) the Customer irrevocably authorises Richers to enter any premises where Richers believes the Products are kept and recover possession of the Products;
(f) Richers may recover possession of any Products in transit whether or not delivery has occurred; and
(g) the Customer must not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of Richers.
9.3 Richers may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Customer.
10. DELIVERY/COLLECTION - RISK AND LIABILITY
10.1 Richers may withhold delivery of the Products until the Customer has paid for them in full.
10.2 The Products at the risk of the Customer after collection by the Customer, or delivery to a carrier nominated by the Customer.
10.3 If at the request of the Customer, Richers delivers the Products to a carrier (other than Richers) for transportation, it does so as agent for the Customer. Richers has no liability to the Customer for any delay in transportation or for the loss of or damage to the Products or any part of the Products during loading, unloading or transit, or for any Consequential Loss in relation to such transportation.
10.4 If Richers agrees to deliver, or in fact delivers, the Products to the Site:
(a) the transport services provided by Richers are subject to Richers standard conditions of carriage, available on its website at www.richers.com.au. Those conditions contain various exclusions and limitations of liability with respect to loss of or damage to Products during transit; and
(b) Richers agrees that clauses 4.2(g) and 4.2(h) of those standard conditions of carriage do not apply to the transport of the Products to the Site.
10.5 If the Purchaser collects the Products, it must ensure that any motor vehicle to be used for such collection is fit for the purpose of collecting and transporting the Products, and Richers, acting reasonably, may refuse to release the Products if the relevant motor vehicle is not fit for that purpose.
11. RIGHT TO SUBCONTRACT
11.1 Richers at its discretion may subcontract the performance of its obligations under these conditions.
11.2 If Richers subcontracts the performance of any of its obligations under these conditions, Richers:
(a) will not be relieved of any of its liabilities or obligations under any agreement incorporating these conditions; and
(b) will be liable to the Customer for any act or omission of the subcontractor as if such act or omission were the act or omission of Richers.
12. LIABILITY OF RICHERS’ PERSONNEL
12.1 Every exemption, limitation, condition and liberty to which Richers is entitled under these conditions will also be available and will extend to protect all Richers’ Personnel.
12.2 For the purposes of clause 12.1, Richers is or will be deemed to be acting as agent or trustee on behalf of all Richers’ Personnel and all Richers’ Personnel will, to this extent, be or be deemed to be parties to these conditions.
13. SITE ACCESS AND DELIVERY
If Richers agrees to deliver the Products to the Site:
(a) Richers may deliver Products in separate instalments;
(b) the Customer will ensure a person authorised by the Customer will be at the Site on the nominated delivery date to sign the delivery docket on the Customer’s behalf;
(c) the Customer will be responsible for the safety of the Site and for providing safe, adequate, and timely access to the Site for Richers’ Personnel and equipment and will indemnify Richers for any Claim arising from any failure to provide a safe Site or safe access;
(d) the driver making any delivery may refuse to complete the delivery, if not satisfied with the Customer’s compliance with clause 13(c), however, effecting delivery will not constitute assessment of the safety of the Site and in no way relieves the Customer of its obligations under these conditions; and
(e) the Products must be accepted by the Customer and unloading of the Products completed as soon as possible after arrival of Richers’ delivery vehicle at the Site.
14. PRICE AND PAYMENT
14.1 The Price payable by the Customer for the supply of Products will be:
(a) the price quoted to the Customer by Richers in writing provided that quotation is accepted within 30 days; or
(b) if no quotation is provided, the price based on Richers’ Rates in accordance with the actual quantities supplied, subject to these conditions.
14.2 Richers may vary the Rates at its discretion including as a result of fluctuations in the currency exchange rate, government charges, transport charges or increases to the price of the Products to Richers.
14.3 If the Customer has a credit account with Richers, the Customer must pay the Price in accordance with the terms of its credit account with Richers.
14.4 If the Customer does not have a credit account with Richers:
(a) unless agreed otherwise by Richers in writing, the Customer must pay the Price before the requested delivery date of the Products; and
(b) Richers may terminate the Order if the Customer does not pay the Price before the requested delivery date.
14.5 If the Customer fails to make any payment under these conditions, without prejudice to any other right or remedy, interest will accrue at the rate of 1.5% per calendar month on the amount outstanding, compounding monthly, until the Products and any associated delivery or other charges are paid in full.
14.6 If any payment made by the Customer is by cheque or electronic funds transfer, the Products will not be considered as being paid for until clear funds have been received by Richers.
14.7 The Customer agrees that the Products will be paid for in full without any retention or set-off.
15. GUARANTEES AND LIMITATION OF LIABILITY
15.1 Notwithstanding any other provision of these conditions, Richers will continue to be subject to any terms, conditions, guarantees or warranties imposed or implied by the Australian Consumer Law or any other Commonwealth or state legislation in so far as such legislation may be applicable and prevents the exclusion or modification of any such term, condition, guarantee or warranty.
15.2 If the Customer is a Consumer and any of the Products are not goods of a kind ordinarily acquired for personal, domestic or household use or consumption, to the extent permitted by Law, Richers’ liability for a failure to comply with a consumer guarantee under the Australian Consumer Law in relation to those Products (other than a guarantee under sections 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities) of the Australian Consumer Law), is limited, at the option of Richers, to one or more of the following:
(a) the replacement of the Products or the supply of equivalent Products;
(b) the repair of the Products;
(c) the payment of the cost of replacing the Products or of acquiring equivalent Products; or
(d) the payment of the cost of having the Products repaired.
15.3 If the Customer is not a Consumer, Richers will not be liable in any circumstances for:
(a) any loss arising from delay; or
(b) any Consequential Loss, and Richers’ total aggregate liability for any Claims associated with the Products is limited (to the extent permitted by Law) to the amount paid by, or payable by, the Customer for the Products.
16.1 Unless specified otherwise, the consideration payable by the Customer has been fixed without regard to the impact of GST and is exclusive of GST.
16.2 If GST is or becomes payable on a Taxable Supply made under or in connection with these conditions, the Customer must pay an additional amount equal to the GST payable on the Taxable Supply.
17. NOTIFICATION OF CLAIM
17.1 Subject to clause 15.1, if the Customer considers that the wrong Product, or the wrong quantity of Product has been delivered, the Customer must provide Richers with a written notice of a Claim or an intended Claim (together with particulars of the Claim and the circumstances on which the Claim is based) within seven days from the delivery of the Products or from the date on which in the ordinary course of business, delivery of the Products would have been effected.
17.2 A failure by the Customer to give notice of a Claim or intended Claim prior to installation of the Products will be prima facie evidence that the supply of Products and the Products themselves are accepted by the Customer as in all respects satisfactory and in compliance with these conditions.
18.1 All notices given under these conditions must be in writing and may be delivered in person or by post or sent by email.
18.2 A party may change its particulars for service by notice in writing to the other party.
18.3 A notice sent by post will be deemed received six days after posting.
18.4 A notice sent by email will be deemed delivered at the time and on the date that it is sent, unless the sender receives notification that the delivery of the email was unsuccessful, in which case the email will not be deemed to have been delivered.
18.5 For the purposes of clause 18.4, ‘delivery’ of an email means the time that an email reaches the recipient’s server.
19.1 Richers will not be bound by any agreement purporting to vary these conditions unless such agreement is in writing and signed on behalf of Richers by a director of Richers.
19.2 These conditions are governed by and construed according to the laws in force in Queensland and the parties agree to submit to the non-exclusive jurisdiction of the courts of Queensland.
19.3 Headings are included for convenience only and do not affect interpretation of these conditions.
19.4 Each indemnity in these conditions is a continuing obligation, separate and independent from the other obligations of the parties and survives the termination of any agreement incorporating these conditions.
19.5 Any reference to a party in these conditions includes, and any obligation or benefit under these conditions will bind or take effect for the benefit of, that party’s executors, administrators, successors in title and assigns.
19.6 An obligation of two or more persons under these conditions binds them jointly and severally and every expressed or implied agreement or undertaking by which two or more persons derive any benefit in terms of these conditions will take effect for the benefit of those persons jointly and severally.
19.7 Time will be of the essence as regards a date or period determined under these conditions except that a date or period may be altered by agreement in which case time will be of the essence for date or period as altered.
19.8 Richers may alter these conditions upon providing 14 days’ notice to the Customer. Notice may be given by emailing the Customer or by including a notation on any invoice or statement sent to the Customer.
19.9 Wherever ‘include’ or any form of that word is used, it will be construed as if it were followed by ‘(without being limited to)’.
19.10 If any part of these conditions is invalid or unenforceable, that part will (if possible) be read down to the extent necessary to avoid the invalidity or unenforceability, or alternatively will be deemed deleted and these conditions will remain otherwise in full force.
19.11 The failure of a party to these conditions to enforce a provision or the granting of any time or indulgence will not be construed as a waiver of the provision nor of a waiver of the right of the party at a later time to enforce the provision.
Effective from 01/01/2024