TERMS
& CONDITIONS OF TRADE (11/2004)
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 there from, 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
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.
TERMS
AND CONDITIONS FOR ELECTRONIC TRADING
In addition to the Terms and Conditions of Trade ("Terms")
which you have agreed to above, the following terms and conditions
("eTerms") also apply to any purchase made via the Internet.
By using the Austral E Brick site, you acknowledge that you have read
and understood the Terms and the eTerms and you agree to be bound by them.
If you do not agree with the Terms and/or the eTerms, you should
immediately discontinue your use of this Site.
1. General: a) Description
and images shown on this Site with respect to Goods are not intended to be
literal or exact and are only intended to be used for the purpose of
identification for ordering purposes only. Austral Bricks does not warrant that
the description or images are accurate, complete or current. b) All
prices shown or quoted are in Australian Dollars. All prices are subject to
change without notice and may not be accurate, complete or current. c)
While Austral Bricks will attempt to ensure the availability of Goods
advertised on this Site, Austral Bricks does not guarantee that advertised
Goods will be available. Austral Bricks specifically retains the right, at any
time without notice, to remove, alter or add Goods to the Site or vary the
prices or description of the Goods.
2. Ordering through this Site: a) An
order placed on this Site is an offer to purchase particular Goods for the
price which is current on the delivery date. Austral Bricks may accept or
reject that offer for any reason. No contract with Austral Bricks will arise
until after Austral Bricks has advised you that it has accepted your order. An
order, once sent by you, cannot be withdrawn or amended unless Austral Bricks
expressly agrees to it. b) Only users of this Site who have a current password
registered with Austral Bricks may order Goods via this Site. Austral Bricks is
entitled to treat any order received with the appropriate password as fully
authorised by you and binding upon you. Austral Bricks accepts no
responsibility for misuse of your password. You must protect the
confidentiality of your password at all times and must not provide access to or
allow use of the password by any other person. You acknowledge and agree that
if you become aware of or suspect any unauthorised use of your password, you
will immediately advise Austral Bricks immediately by phone on 03 9881 3333 and
follow up with written and email confirmation. c) You must follow all
procedures and protocols notified to you from time to time by Austral Bricks on
this Site including all prompts and instructions appearing on this Site. d)
You acknowledge and agree that the format, content or transmission speed of any
information over the Internet may change at any time without notice. You
acknowledge and agree that Austral Bricks will be in no way responsible for the
accuracy, completeness or timeliness of the information transmitted over the
Internet. e) Austral Bricks may keep any copies of information
transmitted to or from you in paper or electronic form as it considers necessary
or desirable. f) You agree not to dispute that any message or
information passing between you and Austral Bricks is "in writing" or
a "document" merely on the grounds that the message or document was
transmitted electronically. If a message passing between Austral Bricks and you
is transmitted in accordance with the Terms or the eTerms, neither party shall
dispute that such a message has been "signed" or properly authorised
by the party from whom the message purports to be given, unless otherwise agreed
in writing. g) Austral Bricks and you agree that transactions are
validly formed by exchange of messages via this Site and both agree to
expressly waive any rights to assert invalidity of a transaction between us on
the ground that the transaction took place by use of the Internet.
3. Privacy: Austral
Bricks will observe its Privacy Policy which will include that it will use its
reasonable endeavours to keep confidential all information provided by you to
this Site (including details of each transaction made by you) and will not
deliberately disclose any such information to any third party (other than to
fulfil your orders) without your prior authorisation or as required by law.
Austral Bricks Privacy Policy details can be obtained from the company
secretary Brickworks Ltd at