Terms & Conditions
Terms of Sale
ALL AGREEMENTS and CONTRACTS made by Melbourne Brick Company Pty. Ltd. or any of its related companies (herein called “the Vendor”) for the sale of pavers, bricks or any other products (herein called “the Products”) are subject to the following terms and conditions of sale unless otherwise agreed in writing:
- 1. Sale Price. All sales made by the Vendor will be at the Vendor’s ruling price at the time of delivery unless it is otherwise agreed in writing. The Purchaser shall pay for the products in cash with the order unless otherwise agreed in writing.
- 2. Terms of Sale. It is expressly agreed that no Contract entered into by the Vendor shall be construed as a sale by sample. As variations will occur in colour and texture of materials used in manufacture no warranty or conditional guarantee is given by the Vendor that the products correspond in glaze, appearance, texture, colour or blend with any sample or previous goods sold or displayed or with any sample wall. The Vendor shall not be liable for any expense, loss or claim of any nature whatsoever which may be sustained or incurred by any Purchaser by reason of any alleged variation between the products delivered and the products ordered whether in relation to texture, glaze, colour, appearance or blend or on any other basis whatsoever. The Vendor shall not be bound by any warranty, condition, term or representation not specified herein and the buyer shall not rely upon any representation, condition, term, information or warranty given by the Vendor or its servants or agents or generally as being accurate or binding in any way upon the Vendor and the buyer expressly acknowledges that for all purposes whatsoever the buyer has relied entirely on their own knowledge, skill and judgement in selecting and ordering the products.
- 3. Description of Products. Unless the products are sold with the description “first quality” then it is agreed and acknowledged that the goods maybe imperfect or damaged and no warranty, terms or condition is given or implied by the Vendor whatsoever as to the quality, condition, colour, merchantability or fitness for any particular purpose of any nature whatsoever or otherwise. Face Bricks are sold with one face & one header unless specified. Any products which are used or are intended to be used to form part of pavements, pathways or other horizontal surfaces which are not specifically sold under the description “pavers” may not be suitable for such use and no warranty, term or condition is given or implied by the Vendor as to the quality, condition, colour, merchantability or fitness for that particular purpose or otherwise. Not withstanding that any order may specify particular goods the seller shall be deemed to have fulfilled its entire contractual obligation upon delivery of goods which comply with the generic description of those goods. Nothing in this agreement shall be deemed to be an acceptance by the Vendor of any obligation to deliver the goods to the buyer whatsoever. The Vendor shall not be liable for any claim, loss, or expense of any nature whatsoever sustained or incurred by any person for any cause or reason whatsoever arising in any way as a result of unavailability of the products or any delays in delivery of the products or any part thereof or failure to deliver the product or any part thereof. The buyer shall at all times provide reasonable and proper access to the site for any delivery including approved crossing facilities. If for any reason whatsoever the time necessarily spent by the Vendor in attempting to or effecting delivery exceeds twenty minutes the buyer agrees to pay all costs and expenses of the Vendor thereby incurred. If the site for delivery of goods cannot be located for any reason whatsoever or is obstructed so that the goods cannot reasonably be delivered then they shall be returned to the Vendor and the buyer agrees to pay all the vendors costs and expenses resulting therefrom. The buyer agrees to be responsible and indemnify the Vendor against any damage whatsoever or howsoever caused during the course of delivery whether to property or pavements which arise in relation thereto. The buyer authorises the Vendor to sub contract delivery at the absolute discretion of the Vendor. The Vendor may at any time suspend delivery for any period or cancel an agreement for sale without any liability whatsoever save as otherwise is provided for herein.
- 4. Limitation of Liability. The Vendor shall not be liable for any claim, loss or expense of any nature whatsoever which arises on or after the expiration of 48 hours from the date of delivery and in writing within 7 days, or if the claim is in respect to less than 5% of the number of goods sold, or once the products have been fixed, laid or otherwise used after which there shall be deemed to have been complete and unqualified acceptance of the products. The Vendor will not admit any liability whatsoever which would exceed the cost of replacement of the subject goods and shall not in any event be liable for any contingent or indirect special or punitive damages arising in any way whatsoever in relation thereto and the buyer acknowledges that this is an express condition and limitation of liability and agrees to limit any claim accordingly. No other term, condition, warranty, representation, agreement or understanding of any nature whatsoever expressed or implied in any way extending to or otherwise relating to or binding on the Vendor in relation to such sale other than these terms and any term or other terms which the Vendor agrees in writing to be bound by is made or given. The seller shall not be liable for any damage or loss suffered by the purchaser by reason of any failure to perform or delay of performance of the contract due to strikes, fires, explosion, flood, riot, lockouts, injunction, interruption of transportation, accidents, inability to obtain supplies, war, governmental action or other circumstances beyond the seller’s reasonable control.
- 5. Ownership of Products. Property in the products shall not pass to the buyer until the purchase monies are paid in full and the Vendor reserves the right to take possession of and dispose of the products as it sees fit at any time prior to full payment being made by the buyer and the buyer hereby grants permission to the Vendor to enter upon any land or premises where the products are in order to retake possession. If the buyer resells the products prior to payment to the Vendor then the monies received by the buyer shall be held upon trust for the Vendor and if required in an account opened in the Vendor’s name and the buyer agrees if requested by the Vendor to assign to the Vendor any right to any outstanding monies relating to any resale of the Vendor’s products.
- 6. Security. If the Vendor so requests the buyer shall immediately grant a floating charge in a form required by the Vendor to secure all debts whatsoever of the buyer to the Vendor and should be registered pursuant to the Corporations Act over any manufactured or constructed goods resulting from using the products in any manufacturing or building or construction process or activity whereby the products become part of or connected to or affixed to the new goods. The preparation of the documentation, stamping and registration of the floating charge of security will be effected by the Vendor at the buyers expense and the buyer hereby undertakes to reimburse the Vendor within fourteen days of demand for the amount of the costs or expenses involved or incurred by the Vendor in effecting the formal documentation, stamping and registration of the floating charge.
- 7. Guarantees by Directors and Security.
(a) An application for a credit account by a company must be accompanied by a properly signed and witnessed guarantee (in the form nominated by the seller) by each and every director of the applicant but the seller may waive this requirement in its absolute discretion. Credit account customers to which this provision applies shall forthwith upon appointment of a director deliver to the seller a duly executed guarantee by that director and the seller may thereupon release any former director of the account customer from liability.
(b) To secure payment of all monies which become payable by the credit account customer to the seller, the credit account customer hereby charges with the due payment of those monies, all the credit account customer’s interest in real property.
- 8. Any variation or amendment to any order must be approved in writing by the Vendor.
- 9. In the event that the Vendor delivers any pallets with the products they shall be returned by the buyer in good order and condition within thirty days of the delivery or the buyer shall be responsible for reimbursing the Vendor for the actual replacement value thereof.
- 10. In the event of any default or breach by the buyer the Vendor may return all monies paid on account of the products or cease further deliveries and recover from the buyer all loss of profits arising therefrom and expenses incurred without prejudice to any other rights of the Vendor and without the Vendor being liable in any way to any party whatsoever.
- 11. Any agreement, covenant, terms or condition of this agreement which is invalid, unlawful, void or unenforceable shall be capable of severance without affecting any other of these terms and conditions of sale.
- 12. The buyer undertakes to notify the Vendor in writing of any change in the directorship, shareholding, ownership or management over the buyer within seven days of such change occurring.
- 13. The buyer agrees and acknowledges that all contracts made with the Vendor shall be deemed to be made in the State of Victoria and the buyer agrees to submit to the jurisdiction of the appropriate in the State of Victoria.
- 14. The buyer waives any terms and conditions relating to the purchase of the products which are inconsistent herewith.
- 15. For the purpose of giving effect to the buyer’s obligations that may arise hereunder and to this agreement generally the buyer hereby irrevocably appoints the Vendor its attorney.
- 16. To secure payment of all monies which may become payable by the Guarantor to the Seller hereunder, each Guarantor hereby charges with the due payment of those monies all that Guarantor’s interest in real property both present and future and each Guarantor consents to the Seller lodging caveat(s) on title to such real property noting its interests hereunder.
COLOUR – because of the variation in colour which is usually found in fired clay and masonry products, the manufacturer recommends that purchasers take delivery of all goods proposed to be purchased from the Vendor for incorporation in construction at the same time and blend them to avoid obvious colour contrasts.