To
the fullest extent legally possible, all dealings between Brickworks
Limited ACN 000 028 526 and each of its subsidiaries, divisions,
affiliates, associated companies and related entities and any
successors and assigns ["Brickworks "] and any Customer relating to any
Brickworks "Products", "Services" or transactions are subject to the
following Terms & Conditions of Trade ("these Terms") unless
otherwise agreed in writing.
1. Payment: a) Credit Account
Customers are to pay within 30 days from end of month of invoice
without deduction b) All other sales are to be paid C.B.D. without
deduction c) credit card payments may attract a fee of up to 3% at
Brickwork's sole discretion.
2. Property: a) Property in
Products shall not pass until payment in full ("full payment") of all
monies owed on any basis by the Customer. Brickworks reserves the right
to take possession & dispose of Products as it sees fit at any time
until full payment and the Customer grants permission to Brickworks to
enter any property where any Product is in order to do so with such
force as necessary b) Immediately upon delivery the Customer accepts
liability for safe custody of Products c) Upon sale or disposition of
any Products prior to full payment, the Customer agrees to deposit all
proceeds in a separate bank account, agrees not to mix proceeds with
any other monies and to hold all proceeds in trust for Brickworks &
forthwith account to Brickworks therefore even if Brickworks may have
granted any credit facility &/or time to pay d) Until full payment
the Customer agrees (i) to keep all Products as fiduciary for
Brickworks & store them in a manner which shows Brickworks as owner
(ii) only to sell Products in the usual course of its business (iii)
sale on terms, at cost or for less than cost shall not be "in the usual
course" e) This clause 2 shall be read down to the extent necessary to
avoid creating a charge f) The Customer agrees that a certificate
purporting to be signed by an officer of Brickworks identifying
Products shall be conclusive evidence of Brickworks title thereto If
the Customer uses any Products in any construction or project
("project") the Customer agrees to hold such part of the proceeds of
sale or disposition of the project which equals the value of the
Products used in the project (and until payment, that part of the book
debt commensurate thereto) upon trust for Brickworks until payment in
full for those Products and of all monies owed to Brickworks.
3.
Limitation Of Liability: a) The Customer agrees to limit any claim it
makes to the cost of re-supply of equivalent Products or the supply of
Services again b) Brickworks shall not be liable for any claim loss or
expense arising which is made after 14 days from date of delivery of
Product or Services (or at all once Products have been unpacked,
on-sold or otherwise used or applied) after which there shall be deemed
to have been unqualified acceptance c) Brickworks will not be liable
for any contingent consequential direct indirect special or punitive
damage arising whether due to negligence or otherwise & the
Customer acknowledges this express limit of liability & agrees to
limit any claim accordingly d) No other term, condition, agreement,
warranty, representation or understanding whether
express or implied other than these Terms, is made or given by Brickworks.
4.
Exclusions: a) No dealing between Brickworks & the Customer shall
be or be deemed to be a sale by sample b) If Brickworks publishes
material concerning its business or prices, anything so published which
is incompatible with these Terms is excluded c) The Customer will rely
on its own knowledge & expertise in selecting any Product or
Services for any purpose. Any advice or assistance given for or on
behalf of Brickworks shall be accepted at the Customer's risk &
shall not be or be deemed given as expert or adviser nor to have been
relied upon by the Customer or anyone claiming through the Customer.
5.
Placement Of Orders: a) if any dispute arises over any order (&
including any question of identity, authority or telephone, facsimile,
computer or e-mail order) the internal records of Brickworks will be
conclusive evidence of what was ordered b) each order placed shall be
& be deemed a representation made by the Customer at the time that
it is solvent & able to pay all of its debts as & when they
fall due c) failure to pay in accordance with these Terms shall be
& be deemed conclusive evidence that the Customer had no reasonable
grounds for making the representations & that the representations
were unconscionable, misleading and deceptive d) when an order is
placed, the Customer shall inform Brickworks of any material facts
which would or might reasonably affect any decision to accept the order
&/or grant credit in relation to it. Failure to do so shall create
& be deemed to create an inequality of bargaining position
constitute & be deemed the taking of an unfair advantage of
Brickworks & be & be deemed to be unconscionable misleading and
deceptive.
6. Purchase Price: a) All sales are made by
Brickworks at its ruling price at time of delivery b) government
imposts, GST etc ("imposts") will be paid by the Customer c) any
Brickworks price list, estimate or quote excludes imposts unless
expressly noted thereon.
7. Ability to Supply: The Customer
agrees that Brickworks will not be liable for any delay in supply or
availability of any Products and Brickworks may allocate Products to
Customers at its unfettered discretion: eg: if demand exceeds available
supply.
8. Delivery: The Customer acknowledges & agrees a)
Brickworks accepts no duty or responsibility for delivery but may elect
to arrange delivery at its discretion without any liability & at
the Customer's costs & responsibility in all things b) Brickworks
may elect to charge for any delivery c) it shall be deemed to have
accepted delivery & liability for Products immediately Brickworks
notifies the Customer that any Products are ready for collection or
they are placed with a carrier or delivered to the Customer's business
premises or site whether attended or not d) a certificate purporting to
be signed by an officer of Brickworks confirming delivery shall be
conclusive evidence of delivery as shall any signed delivery docket e)
Brickworks will not be liable for delay failure or inability to deliver
any Products or perform any Services f) once notified that Products are
ready for collection or delivery the Customer agrees to pay all costs
of Brickworks in holding Products g) it shall provide reasonable and
proper access to any site specified for delivery and Council approved
crossing facilities h) to pay all costs and expenses arising from
frustrated or delays in delivery i) to pay all damages or claims
arising in the course of or after delivery whether to footpaths or any
other property and including any fine or penalty and/or local authority
claim to clean-up roads made dirty on departure j) Brickworks may
delay, cancel or suspend any delivery for any period or cancel any part
of any agreement for sale without liability to anyone
9. Variation or cancellation of these Terms or any order must first be agreed in writing.
10.
Pallets: The Customer will return all pallets provided with Products
and indemnifies Brickworks for the full replacement cost of any pallet
not returned to Brickworks promptly and in good order, except for any
pallets proven to be paid for in advance.
11. Other Terms &
Conditions: (a) No terms & conditions sought to be imposed by the
Customer upon Brickworks shall apply, unless otherwise agreed in
writing (b) Brickworks standard Terms and Conditions of Purchase will
apply to all purchases from the Customer to the exclusion of any
Customer terms or conditions.
12. Severability: Any part of these Terms may be severed without affecting any other part.
13.
Interest will be charged on overdue accounts at the rate prescribed
under the Penalty Interest Rates Act 1983 (Vic) rate, plus an
additional 3%.
14. Products and Services a) Brickworks disclaims
any responsibility or liability relating to any Products or Services i)
made or performed to designs, drawings, specifications &/or
procedures etc or with materials which are provided or approved in part
or in full by or on behalf of the Customer ii) utilised, stored,
handled or maintained incorrectly or inappropriately b) the Customer
agrees to check all Products and Services for compliance with all
applicable standards & regulatory bodies before use, on-sale or
application & to use or apply same in accordance therewith, with
all manufacturers and/or Brickworks recommendations & directions as
well as with good commercial practice c) Due to variations in colour
and texture of materials (including natural materials) used in
manufacture, no warranty, condition or guarantee is given by Brickworks
that any Products shall correspond (in glaze, colour, texture,
appearance, blend or otherwise) with any sample, display or any
previous Products sold or displayed or any other batch of similarly
described Product d) Brickworks shall not be liable for any claim, loss
or expense on any basis, which may be sustained or incurred by any
person by reason of any alleged variation between the Products
delivered and Products ordered e) Products may be damaged in transit or
otherwise be or become unusable, so an allowance of +/- 5% is agreed.
15.
Recovery Costs: The Customer will pay all the costs & expenses (on
a full indemnity basis) incurred by Brickworks or its solicitors, legal
advisers, mercantile agents & other parties acting on Brickworks'
behalf in respect of anything instituted or being considered against
the Customer whether for debt, loss, damages, possession of any
Products or otherwise.
16. Attornment: To give effect to the
Customer's obligation arising under these Terms, the Customer
irrevocably appoints any solicitor of Brickworks as its attorney in all
things.
17. Default: a) Upon any default or breach by the
Customer of these Terms or any other dealing or arrangement with
Brickworks, Brickworks may at its discretion (inter alia) retain all
monies paid, call-up any monies unpaid, cease further deliveries,
recover from the Customer all loss of profits arising & take
immediate possession of any Product held by the Customer, without
prejudice to any other rights & without being liable to any party
b) The customer agrees not to commence or continue or permit to be
commenced or continued through it any suit or action against Brickworks
whilst the customer is in default under any part of these Terms or in
any of its dealings with Brickworks.
18. Customer Restructure:
The Customer will notify Brickworks in writing within 7 days of any
change in its structure or management including any change in director,
shareholder or change in partnership or trusteeship and/or of the sale
of any part of its business.
19. Jurisdiction: All contracts and
dealings with Brickworks shall be deemed to be made in the
State/Territory nominated by Brickworks & the Customer agrees to
submit to the jurisdiction of the appropriate Courts in or nearest the
Capital of that State/Territory.
20. Credit Limit: If Brickworks
grants any credit facility or nominates any credit limit, this is an
indication only of its intention at the time. Brickworks can vary or
withdraw any credit facility at its unfettered discretion, without
liability to the Customer or any other party.
21. Waiver: If
Brickworks elects not to exercise any of its rights as a result of any
breach of these Terms, it shall not be a waiver of any rights relating
to any subsequent or other breach.
22. Notice: The Customer will
be deemed to have notice of any change to these Terms immediately they
are adopted by Brickworks whether or not the Customer has actual
notice. The Customer shall be bound by any terms & conditions
adopted by Brickworks immediately they are so adopted, despite other
purported, pre-existing or conflicting terms or conditions.
23.
Indemnity: a) The Customer indemnifies Brickworks against any claim or
loss arising from or related to any dealing with Brickworks or anything
arising therefrom, including any liability arising under the Trade
Practices Act any other law or as a result of any default as described
in clause 17 or otherwise b) nothing in these Terms will derogate from
Brickworks' right to maintain any action against the Customer for any
part of any unpaid purchase price, for any monies owed to Brickworks
for any damages loss, liability or any other cause of action.
24.
Security For Payment: The Customer agrees upon written request, to
charge in favour of Brickworks (i) by way of a fixed charge all its
fixed plant & equipment, books of account, financial records,
goodwill, documents of title & current & later acquired real
property & intellectual property (ii) by way of a floating charge,
the whole of the Customer's other undertaking, property & assets,
with payment of all monies owed to Brickworks.
25. Partial
Delivery/Forward Orders: The Customer agrees that if any forward order
is placed a) to pay for so much of any order as is from time to time
invoiced by Brickworks b) no delay or failure to fulfil any part of any
order or any alleged delay in or incomplete delivery shall entitle the
Customer to cancel or vary any order or delay or reduce any payment.
26.
Force Majeure: Brickworks will not be in default or in breach of any
contract with the Customer as a result of Force Majeure. Force Majeure
means anything or event beyond the reasonable control of Brickworks and
includes any strike or lock-out.
27. Insolvency: a) If the
Customer commits or is involved in any act of insolvency, it agrees it
shall be deemed in default under these terms b) An act of insolvency is
deemed to include bankruptcy, liquidation, receivership, administration
or the like.
28. Description: Brickworks will have fulfilled its
obligations upon having available for delivery Products (+/- 5%) which
comply with the generic description of what was ordered
29.
Product Specific Terms a) These Terms will form part of any dealings
with Brickworks, relating to any specific Products (tiles, pavers
and/or linkwalls etc), in addition to any Product Specific terms or
conditions b) facing bricks will have one face & one header unless
otherwise specified & agreed in writing c) Products sold as "first
quality" will comply with Brickworks' definition of first quality d)
Products sold other than as "first quality" may be imperfect or damaged
and no warranty as to quality or fitness for any purpose is given or to
be implied.
30. Adverse Environments: The Customer acknowledges
that Products (especially sandstock, extremely hard, glazed or softer
Products) can be adversely affected by severe environments, temperature
extremes, frost, wind borne salt or abrasives which cause flaking,
eat-away glaze or finish and reduce expected operating life especially
in seaside locations.
31. Brick Block Levies etc: The Customer
will pay any industry or legally imposed levy which applies to any
Products from time to time, in addition to the purchase price.
32.
Privacy Policy: Brickworks' Privacy Policy details can be obtained from
the Credit Manager, Brickworks Ltd at PO Box 6550, Wetherill Park, NSW
1851.
SILICA WARNING: Always "wet" cut saw, drill, chase, break
etc Products. Dust from Products may contain silica and/or other
material which is harmful to health. Avoid inhaling any dust to avoid
the risk of respiratory impairment etc.
Copyright: R. A. Lewis Tel (03) 9670 8314
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