Terms & Conditions of Trade - Austral Bricks: Bricks, Pavers, Retaining walls

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 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.