Terms and conditions of use

These Terms of Use form an agreement between you and Found Concrete Pty Ltd ACN 620 531 820 (together with its related bodies corporate (as defined in the Corporations Act 2001 (Cth)), "Found Concrete", "we" or "our") regarding use of Found Concrete (including https://www.foundconcrete.com.au, Found mobile apps) and associated software and services ("Found Concrete"). Before you use Found Concrete, please read these Terms of Use and Found Concrete Supply privacy policy (at https://www.foundconcrete.com.au/privacy). By using Found Concrete, you agree to be bound by these Terms of Use. If you do not agree with them, you are not authorised to use Found Concrete.

1. Subject to your compliance with these Terms of Use, Found Concrete grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal use of Found Concrete. This license does not include any resale of any services provided by Found Concrete or its contents, any collection and use of any product listings, descriptions, or prices, any downloading, copying or other use of account information for the benefit of any third party, or any use of data mining, robots, or similar data gathering and extraction tools. All rights not expressly granted to you in these Terms of Use are reserved and retained by Found Concrete Supply.

2. Found Concrete and its contents are subject to copyright which is owned by a member of Found Concrete or a third party. Found Concrete does not grant you any intellectual property rights in Found Concrete’s interface or contents. You must not (a) use any trademark displayed on Found Concrete; (b) frame or utilise framing techniques to enclose any trademark, logo or other proprietary information (including images, text, page layout or form) of Found Concrete or any member of Found Concrete; or (c) use any meta tags or any other “hidden text” utilising any Found Concrete member’s name or trademarks.

3. We do not warrant the accuracy or completeness of any information you derive from Found Concrete and we exclude liability for loss or damage arising from any errors or omissions in Found Concrete or your use of Found Concrete (including any interference with or damage to your computer system, iPhone, iPad, Android device or other electronic device). If any liability is not able to be excluded by law, we limit our liability to the re of the relevant information or services.

4. You will need to register for a free account to use Found Concrete and may be required to log in to your account. You are responsible for maintaining the confidentiality of your login information and for restricting access to your account, and you agree to take responsibility for all activities that occur under your Found Concrete account.

5. When you use Found Concrete, you may grant certain permissions to us for your device. Most mobile devices provide you with information about these permissions.

6. You release each member of Found Concrete and its affiliates to the fullest extent permitted by law from any and all claims arising out of or related to the use of Found Concrete (or inability to use Found Concrete), or of any material or information made available through Found Concrete.

7. We reserve the right to change any information on this website at any time including, but not limited to, prices.

8. Found Concrete may contain links to external Internet websites. Found Concrete does not sponsor, guarantee or approve of any material or representations in those websites. Nor do we warrant that material on linked sites is free of any computer virus, defects or infringements.

9. Links to individual graphics or to areas that are considered "security areas" that bypass any security protection or password protection that Found Concrete establishes are expressly prohibited. If you wish to use a graphic to link to this site please contact us.

10. You must only use Found Concrete, and you must only display, copy, distribute, download and print portions of Found Concrete for your own personal use. You must not attempt to change, reproduce, add to, remove, hack or interfere with Found Concrete or its material. You must use Found Concrete in compliance with all applicable laws.

11. You may not modify, reverse engineer, decompile or disassemble Found Concrete in whole or in part, or create any derivative works from or sublicense any rights in Found Concrete. Found Concrete may not be reproduced, duplicated, copied, sold, resold, visited or otherwise exploited for any commercial purpose without express written consent of Found Concrete .

12. We cannot guarantee any file, data or program available for download from Found Concrete (or any linked website) is free of viruses and you assume the risk of any damage to your computer, iPhone, iPad, Android or other electronic device as a result of using Found Concrete. Found Concrete may be inaccessible from time to time due to events outside Found Concrete ’s control or maintenance requirements.

13. If we collect your personal information, we do so subject to the terms of our Privacy Policy, details of which are at: https://www.Foundconcrete.com.au/privacy. When you use Found Concrete, or send emails, text messages and other communications to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts and mobile push notices. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

14. We may use cookies to gather data in relation to Found Concrete and you consent to us doing so (although you may be able to disable cookies on your web browser).

15. We may update Found Concrete from time to time. We may automatically install updates to Found Concrete, or prompt you to install the updates.

16. We may modify, suspend or discontinue Found Concrete, in whole or in part, at any time without notice.

17. Your rights under this agreement, including any licences granted by Found Concrete , will automatically terminate without notice from us if you fail to comply with its terms. In case of such termination, you must cease all use of Found Concrete, and we may immediately revoke your access to Found Concrete without notice to you. Our failure to insist upon or enforce your strict compliance with this agreement will not constitute a waiver of any of our rights. We may amend any of this agreement's terms at our sole discretion by notice to you. Your continued use of Found Concrete after the effective date of the revised agreement terms constitutes your acceptance of the terms.

18. These conditions are governed by laws of the State of New South Wales, Australia. You submit to the non-exclusive jurisdiction of the courts of that State.

Conditions of quotation and supply

1. DEFINITIONS AND INTERPRETATION

“Found Concrete Service Fees” means the Company’s schedule of additional service fees applicable from time to time, which may be attached to this quotation, available on the website, or provided on request.

“AS1379-2007” means S.A.A. “Specification and Supply of Concrete” AS 1379-2007 as amended from time to time.

“Australian Consumer Law” means Schedules 1 and 2 of the Competition and Consumer Act 2010 (Cth) and any other relevant provisions contained in that Act.

“Client” means the customer named on the quotation, and if no customer is named, the customer to whom the Goods & Work is supplied.

“Company” means Found Concrete Pty Ltd (ACN 620 531 820).

“Conditions” means these conditions of quotation and any additional matters prescribed on the face of this quotation.

“Consequential Loss” means loss of revenue, loss of profits, loss of anticipated savings or business, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any form of consequential, special, indirect, punitive or exemplary loss or damages, however it arises (including as a result of negligence).

“Consumer” has the meaning in the Australian Consumer Law.

“Intellectual Property” all registered and unregistered rights in relation to present and future copyright, trade marks, designs, know-how, patents, confidential information and moral rights.

“Goods & Work” means the materials or the materials and services supplied or to be supplied as described on the face of this quotation.

“includes” or “including” means includes or including without limitation.

“Loss” means any liability, however it arises (including as a result of negligence) and includes any loss, claim, damage, demand, injury or death and a fine or penalty imposed by a statutory or other authority.

“Rates” means the unit rate shown on the face of this quotation, or otherwise used to calculate the prices in the quotation.

 “Site” means the location for supply / performance of the Goods & Work specified on the face of this quotation.

2. AGREEMENT

(a)  Unless otherwise agreed in writing, the agreement between the Company and the Client comprises the following documents only (in order of precedence to the extent of any inconsistency between them):

(i)      these Conditions;

(ii)     Quotation; 

(iii)    Credit Application (to the extent completed by the Client);

(iv)    Credit Guarantee (to the extent applicable),

and the agreement excludes:

(v)     any prior quotation;

(vi)    the terms and conditions on the back of any delivery docket issued by the Company to the extent inconsistent with these Conditions; and

(vii)   any purchase order, delivery receipt, procurement document or similar (including terms and conditions on the back of such documents) issued by the Client from time to time (including any document post-dating the quotation) to the extent inconsistent with these Conditions.

(b)  The Client acknowledges that it has not relied on any representation, inducement, warranty or promise which is not set out below.

(c)  The Conditions may only be varied by both parties agreement in writing.

3. VALIDITY

(a)  This quotation is an offer open to acceptance by the Client within 30 days from the date on the quotation and any such acceptance must be on the basis that supply / performance of the Goods & Work is started within 3 months of the date of the quotation.

(b)  The offer is made subject to the Client meeting credit approval requirements.

(c)  The Client’s written order to commence the supply / performance of the Goods & Work or such commencement by the Company constitutes acceptance of the offer.

4. POINT OF SUPPLY

(a)  This quotation is based on all materials being available from the Company’s normal point of supply in respect to the locations of the supply / performance of Goods & Work as reasonably determined by the Company.

(b)  Should conditions beyond the control of the Company necessitate supply from any other point of supply, the Company shall give notice of same to the Client prior to carrying out the Work in question if the Company seeks to claim any resultant increase in cost from the Client.

(c)  The Client may accept the resultant increase (in which case, the increase will apply in additional to the Rates) or terminate the agreement (in which case, clause 17(c), (d) and (e) shall apply).

5. EXTENT OF GOODS & WORK

(a)  This quotation is based on supply / performance of all of the Goods & Work at the Site.

(b)  If the Client changes the quantities supplied or location of the Site from the quotation, the Company reserves the right to adjust the Rate, and the Client may accept the adjusted Rate or not proceed.

(c)  The Client acknowledges that the concrete included in the Goods & Work shall generally be supplied in accordance with the relevant sections of AS 1379-2007, unless otherwise stated on the face of this quotation.

(d)  The Client must make its own enquiries prior to placing any order with the Company.

(e)  The Company will provide orders requested by the Client and the Client agrees that the Company is not required to check the adequacy or appropriateness of any order requested by the Client.

(f)   If the concrete is to be placed by pump, the Client must notify the Company in advance, and while the Company will use reasonable endeavours to accommodate such request, it does not warrant that such concrete will be able to be pumped due to the variations in pumps and the concrete process.

6. BASIS OF PAYMENT

(a)  The Goods & Work will be paid for by the Client at the Rates according to the actual quantities supplied as shown on the delivery docket, subject to these Conditions.

(b)  The Client acknowledges that, unless otherwise specifically stated on the face of this quotation or applicable delivery docket, the Rates are subject to the additional charges set out in the Service Fees.

(c)  The Client acknowledges that the Goods & Work will be paid for in full without any retention or set-off.

 7. LIMITATION OF LIABILITY

(a)  The Company’s total aggregate liability to the Client in all circumstances is limited to the amount paid by the Client to the Company for the Goods & Work.

(b)  Subject to clause 8 and to the maximum extent permitted by law, the Company shall not be liable in any circumstances for:

(i)      any Consequential Loss;

(ii)     any damage to any property of whatsoever kind situated in, on or adjacent to the Site (unless caused by the negligence by the Company);

(iii)    any claim for adjustment of invoicing by the Company, including (without limitation) in connection with any alleged non-delivery, short delivery, incorrect delivery, late delivery, damage caused during delivery of Goods, the charging of any fees, or errors in invoicing, unless the Client notifies the Company in writing within 30 days of the date of invoice, specifying the details and the amount of the disputed items and any amount that the Client accepts is payable. The Client must pay any undisputed amount by the relevant due date. The Company and the Client will use reasonable endeavours to resolve any notified dispute under this subclause within a further 30 days.

(c) The Company’s liability to the Client shall reduce to the extent that any Loss is caused or contributed to by:

(i)      any negligent and/or wilful act or omission or any breach of these Conditions by the Client, its employees or agents.

(ii)     an admixture being used at the Client’s request or specification;

(iii)    water being added to concrete either before or after disposal from the agitator/delivery unit without the prior approval of the Company’s representative;

(iv)    discharge from the agitator occurring more than 90 minutes from the time ex-plant;

(v)     the Goods being placed or installed by others.

8. AUSTRALIAN CONSUMER LAW GUARANTEES

(a)Unless the Client indicates otherwise, the Client acknowledges that the Goods & Work it will acquire from the Company will be obtained 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.

(b)  Where the Client is acquiring the Goods for a purpose other than that stated immediately above, the following provisions apply.

(c)  If the Client is a Consumer and any of the Goods supplied by the Company are not goods of a kind ordinarily acquired for personal, domestic or household use or consumption, the Client agrees that the Company’s liability for a failure to comply with a consumer guarantee under the Australian Consumer Law in relation to those Goods (other than a guarantee under sections 51(title), 52(undisturbed possession) and 53(undisclosed securities)) of the Australian Consumer Law, is limited to, at the option of the Company, one or more of the following:

(i)             the replacement of the Goods or the supply of equivalent goods;

(ii)            the repair of the Goods;

(iii)          the payment of the cost of replacing the Goods or of acquiring equivalent goods; or

(iv)         the payment of the cost of having the Goods repaired.

(d) If the Client is a Consumer and any of the Work services supplied by the Company are not services of a kind ordinarily acquired for personal, domestic or household use or consumption, the Company’s liability for a failure to comply with a consumer guarantee under the Australian Consumer Law in relation to those Work services is limited to, at the option of the Company:

(v)           the supply of the Work services again; or

(vi)         the payment of the cost of having the Work services supplied again.

9. SITE ACCESS

(a)  The Company will deliver and the Client will receive the Goods & Work at the kerb alignment in a timely manner.

(b)  The Client will be responsible for providing adequate, and timely access to the Site for the Company’s material, personnel and equipment and the Client will be liable to  the Company for all Loss (including delay and establishment costs) incurred by the Company as a result of failure to provide such access.

(c)  Entry upon the Site remains at the sole discretion of the Company.

(d)  If the Company or its agents enter the Site for the purposes of delivering the Goods, the Client shall indemnify the Company for any Loss incurred by the Company arising out of or in connection with such entry.

(e)  Where the Company leaves equipment on the Site in connection with the supply / performance of the Goods & Works, the Client shall take all reasonable precautions to secure the Site to prevent loss or damage to the equipment or any injury to persons entering upon the Site.

10. DELIVERY

(a)  The Company will use reasonable endeavours to supply/execute Goods & Work in accordance with the Client’s schedule. However, should supply / execution of the Goods & Work be early or delayed for any reason beyond the control of the Company or as a result of any cause which the Client is or should reasonably have been aware of, all Loss arising will the Client’s responsibility.

(b)  Prior to discharge from the delivery vehicle the Client shall check that the Goods & Work description and quantity on the delivery docket conforms with its requirements, and the Client must record any discrepancies in writing on the delivery docket including discrepancies in quantity, specification,

discharge records, or that the addition of water was done other than at the Client’s request.

(c)  Unless any discrepancies are recorded on the copy of the delivery docket retained by the Company, the Client accepts the Goods & Work (subject to clause 7) by the discharging of the delivery vehicle.

 11. SITE VISITS & HOURS

(a)  Unless otherwise stated on the face of this quotation, this quotation is based on:

(i)       the whole of the Goods & Work being available for completion at one Site visit.

(ii)      the whole of the supply / performance of the Goods & Work being conducted during normal hours.

(b) Should it be necessary to supply / perform the Goods & Works or any necessary establishment work on a Saturday, Sunday or public holiday, then additional charges will apply which will be calculated in accordance with the variations clause. The Company’s normal hours of business for loading are listed in the Service Fees.

12. VARIATIONS

(a)  The Company is not obliged to carry out any variation which is outside the scope of the Goods & Work.

(b)  Any variation that the Company does carry out shall be subject to these Conditions and shall be charged to and paid for by the Client at an agreed rate.

13. TAX INVOICES

(a)  The Client agrees to pay the amount shown on invoices issued by the Company.

14. TERMS OF PAYMENT

(a)  The Client must pay for the Goods & Work in immediately available funds prior to the discharge of the concrete unless the Company agrees otherwise in writing.

15. OTHER CHARGES & TAXES

(a) The prices quoted do not include any statutory or Government charges. Should any such charges or any other tax become applicable to the materials the subject of this quotation such tax or charge shall be charged to and paid for by the Client in addition to the price otherwise payable under this quotation.

(b) Notwithstanding anything else in these Conditions, if the Company has any liability to pay the Goods and Services Tax (“GST”) on any materials and / or services supplied herein to the Client, the Client shall pay to the Company the amount of such GST at the same time as amounts otherwise payable to the Company.

(c) If the introduction of a regime relating to the emission, removal, mitigation, reduction, avoidance or sequestration of greenhouse gases (Carbon Scheme) results in any additional financial burden whatsoever to the Company arising from the manufacture or supply the Goods & Work, the Company may increase Rates to recover the reasonable net costs incurred arising from such Carbon Scheme.

(d) Notwithstanding any other provision of these Conditions, including any special conditions, the Company may change the Rates at its discretion by giving the Client no less than 4 weeks’ notice at any time if there has been a material increase in its cost of supply of the Goods & Work. In doing so it must act reasonably. The Client may terminate this agreement within 4 weeks of receiving such a notice. If the Client does not terminate this agreement, or if the Client continues to order Goods & Work following the expiration of that 4 week notice period, the Client is  deemed to accept the revised Rates.

16. DELAY AND FORCE MAJEURE

The Company shall not be liable in any way for any delay in the supply / performance of Goods & Work where such delay occurs by reason of:

(a)  any cause whatsoever beyond the reasonable control of the Company including (without limitation) any accident, labour dispute, plant breakdown, materials or labour shortage, the change or introduction of any law or regulation or an act or omission of any supplier or other third party or any failure of any equipment owned or operated by them; or

(b)  restrictions of Government or other statutory authorities, wars, fires, epidemics, failure or fluctuation in any electrical power supply, storm, flood, earthquake.

17. TERMINATION

(a)  Either party may immediately terminate this agreement by notice in writing to the other party if the other party fails to comply with or is in breach of any of its obligations under this agreement.

(b)  Further, the Company may terminate these Conditions in its absolute discretion, for any reason whatsoever, by giving written notice to the Client.

(c)  Upon termination pursuant to clause (a) or (b), the Client must pay the Company for Goods & Work delivered by the Company up to the date of termination.

(d)  Subject to clause (e), the Company will not be liable to the Client for any Loss arising out of any termination in accordance with clause (a) or (b).

(e)  Where this agreement is a "consumer contract" or "small business contract" as those terms are defined in the Australian Consumer Law, and the Company terminates under clause (b), then the Company will reimburse the Client for any reasonable, direct and unavoidable costs incurred (acting reasonably in anticipation of the supply of the Goods & Work by the Company) prior to receipt of notice of termination. Such reimbursement will be subject to the Client doing all things reasonably necessary to mitigate any loss and will not include any costs and expenses for which liability was assumed after the notice of termination. To the maximum extent permitted by law, the Company will not be liable for any Consequential Loss arising from termination of this agreement.

18. TESTING

(a)  The Company will, at Client’s request, use reasonable endeavours to arrange testing priced in accordance with the Service Fees.

(b)  Any testing conducted or arranged by the Client will be by sampling at the discharge chute performed in accordance with AS 1012 and carried out by a NATA accredited laboratory.

(c)  The Client will provide the Company with copies of any such third party testing conducted.

19. RISK

(a)  Upon delivery of any Goods & Work to the Site or any temporary stockpiles, all risk in relation to such shall pass to the Client.

(b)  Property in the Goods & Work shall not pass to the Client until the Company has been paid in full.

(c)  Where Goods are sold ex-bin, risk passes to the Client when the material is loaded on the Client’s vehicle.

20. SAFETY

(a)  The Client is responsible for ensuring safe and adequate access to the Site for delivery and all other aspects of Site safety.

(b)  The Client shall notify the Company prior to delivery, of any obstacles or peculiarities in relation to the Site including whether the Site or its approach has a gradient greater than 8%.

(c)  The driver making any delivery may refuse to complete the delivery, if not satisfied with the Client’s compliance with (a) and (b) above, however, making a delivery shall not constitute an assessment of the safety of the Site and in no way relieves the Client of its obligations under these Conditions, including those relating to safety.

(d)  The Client acknowledges that freshly mixed cement, mortar, concrete or grout may cause skin irritancy. The Client shall ensure that all personnel involved in the Goods & Work avoid contact with exposed skin areas and eyes and wear appropriate protection such as impervious clothing, safety goggles and gloves. The following are general guidelines relating to exposure, and should not be treated as exhaustive. The Client acknowledges that it has appraised itself of these risks and that it will take appropriate safety precautions and training of its personnel. Should exposure occur, immediately rinse eyes and wash affected skin areas with clean fresh running water for 10 minutes. Seek medical advice if symptoms persist. Avoid breathing dust generated from drilling, sawing or chasing hardened concrete or quarry products as it may contain crystalline silica. Wear appropriate protective clothing, gloves, safety goggles and particulate respirator. Should exposure occur immediately rinse eyes with fresh clean running water for a minimum of 10 minutes. If dust is inhaled, immediately remove to fresh air. Seek medical advice should inhalation occur or if symptoms persist. Contact Found for more information or to request a Material Safety Data Sheet.

21. GENERAL

(Severance) Any provision of these Conditions which is unenforceable or partly unenforceable is, where possible, to be read down so as to be enforceable, and if it cannot be read down, severed to the extent necessary to make these Conditions enforceable, unless this would materially change the intended effect of these Conditions.

(Waiver) A right may only be waived in writing, signed by the party giving the waiver, and no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right.

(No Implied terms) The Client may have the benefit of certain statutory guarantees relating to the Goods & Work services pursuant to the Australian Consumer Law. Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Conditions or in connection with the supply of the Goods & Work by law, statute, custom or international convention (including those relating to quality or fitness for purpose) are excluded.

(Governing law) These Conditions are governed by the laws of the State or Territory in which the Goods & Work is supplied / performed. The parties submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts which may hear appeals from those courts. If Goods & Work are supplied / performed outside Australia, the Conditions are governed by the laws of Queensland.

(Insurance) The Client must take out and maintain those policies of insurance that would be held by a reasonably prudent customer in the position of the Client.

(Intellectual Property) All Intellectual Property of the Company, including any developed during the course of supply / performance of the Goods & Work, shall remain the sole property of the Company and no license, right or other interest of any kind in respect of such Intellectual Property is granted, created or transferred to the Client.

(Maintenance) This quotation does not cover any maintenance after completion of the supply / performance of the Goods & Work.

(No Adverse Interpretation) These Conditions are not to be interpreted against the interests of a party merely because that party proposed this document or some provision in it or because that party relies on a provision of these Conditions to protect itself.

Concrete Cash

‘Concrete Cash’ is credit issued to your Found Concrete account.

Redemption. Concrete Cash may only be redeemed via the Found App or Website for orders of concrete. Once awarded, Concrete Cash will appear on your order and profile page. You are responsible for ensuring that it is applied to your total prior to submitting your order.

Reward expiry. Concrete Cash must be used within six (6) months from the date it is issued, or earlier if specified. Concrete Cash has no cash value and may not be transferred to another person or exchanged for cash.

Maximum balance. The maximum Concrete Cash balance is capped at $20,000. 

Concrete Cash balance. If for any reason you believe there is a discrepancy regarding your concrete cash balance, please contact Found (at hello@foundconcrete.com.au). Found may require you to submit additional information in order to make a determination regarding their balance. All decisions regarding balances will be final and at the Found’s sole discretion. 

Tax. You are responsible for tax consequences if any, that may result from redemption or use of Concrete Cash. 

Key limitations. We reserve the right to any remedy, including cancellation of accounts or bookings, if fraud, tampering, violations of these or other terms, or technical errors are suspected. Void where prohibited. If any bookings later qualify for a refund, the maximum refund you may receive is the amount you actually paid. 

Merging balances. Concrete cash accrued in separate accounts may not be combined into one account or profile.

Changes to Terms. Found reserves the right to change, amend, nullify or void any clause in respect to Concrete Cash, without notice and at its sole discretion.

Quote conditions and Conditions of Quotation & Supply apply in addition to the above.