1. Definition and Interpretation
1.1 “Vendor” means Sydney Brick Matching Pty Ltd ABN 67 626 595 471 and its employees.
1.2 “Goods” means any goods or services supplied by the Vendor to the Customer that are the subject of this agreement.
1.3 “Customer” means the person purchasing the Goods as set out in this agreement or any invoice or order form. A reference to Customer in this agreement includes each and every Customer jointly and severally where there is more than one Customer to this agreement.
1.4 “Delivery Address” means the address nominated by the Customer for the delivery of the Goods.
1.5 “Delivery Date” means the date specified in the agreement for the delivery of the Goods.
1.6 “Price” means the price agreed to be paid by the Customer to the Vendor for the supply of the Goods.
1.7 Where reference is made in this agreement to a “person” the expression is interpreted to include an individual, corporation, government or governmental agency, estate, trust, partnership, association or other legal or commercial entity or undertaking.
1.8 The words “includes” and “including” or words of similar effect are not words of limitation.
2. The Agreement
2.1 The sale of Goods by the Vendor to the Customer is governed by this Agreement and its terms.
2.2 This Agreement is the entire agreement between the parties and supersedes all and any communications, negotiations, arrangements and agreements, whether oral or written, between the parties in respect of the matters that are the subject of this Agreement.
3.1 Any quoted price provided by the Vendor to the Purchaser will remain valid for a period 7 days of the date of the quotation.
3.2 The Vendor reserves the right to vary or alter the price without notice after the period set out in clause 3.1 of this Agreement.
3.3 The Vendor reserves the right to change the Price in accordance with any variation to the quote requested by the Customer.
4.1 The Customer agrees to accept and immediately be bound by this Agreement and its terms when the Customer acceptsa written quotation from the Vendor referring to these terms and conditions.
5 Variation to Agreement
5.1 The parties agree that the terms and conditions of this Agreement may only be amended with the written consent of the Vendor.
6.1 The price for the Goods shall be:
a. Subject to clause 3, the Vendor’s quoted price; and Sydney Brick Matching Pty Ltd Terms and Conditions
b. Any additional charges arising under this Agreement including but not limited to any additional charges for unsuccessful delivery.
6.2 The Price of the Goods is in Australian Dollars and exclusive of GST.
6.3 The Customer must pay to the Vendor the GST in addition to and at the same time as payment of the Price is made. No deduction or set off of the GST by any other amount is permitted.
6.4 The Customer is liable for any freight charges, duties or taxes that may apply to this Agreement in addition to the Price unless such amounts are expressly included in writing in this Agreement.
7.1 The Price will be payable by the Customer within seven (7) days of the date this Agreement is entered into. This is an essential term of the Agreement.
7.2 The Vendor is under no obligation to deliver the Goods, or any instalment of the Goods until the Price is paid by the Customer in full.
7.3 The Vendor reserves the right to require a deposit from the Customer.
7.4 Payment may be made by Cash, Cheque, Electronic Transfer, Credit Card or any other method agreed to between the Customer and the Vendor and set out in writing in this Agreement.
8.1 The Customer acknowledges that natural variations in colour, texture and finish are an inherent quality of the Goods and that the Goods may naturally fade or change in colour, texture or quality over time.
8.2 While the Vendor shall make all reasonable attempts to match the colour, texture and finish of the Goods as requested by the Customer, the Vendor will not be liable for any claim in relation to variations of texture, colour or shade of the Goods.
9.1 All Goods will be delivered by the Vendor’s contractor to the Delivery Address.
9.2 Delivery of the Goods will be performed by a third party nominated by the Vendor and the Customer indemnifies the Vendor from any claim for loss or damage in relation to the delivery of the Goods.
9.3 The Customer must ensure that the Delivery Address is accessible for the delivery of the Goods and this includes ensuring that:
a. The pathways, driveways are clear and capable of carrying the vehicles
delivering the Goods; and
b. The delivery carrier has safe access to the Delivery Address; and
c. The delivery carrier is made aware of where the Goods are to be delivered and unloaded; and
d. The delivery vehicle can safely park and unload the Goods at the Delivery Address.
e. The Customer or an agent of the Customer is present to take delivery of the Goods.
9.4 The Customer accepts that the driver making the delivery has sole discretion as to whether the site is accessible and fit for delivery and unloading. The Vendor will not be liable for any loss or damage suffered by the Customer in the event the driver refuses to deliver and unload the Goods at the Delivery Address for safety reasons. Sydney Brick Matching Pty Ltd Terms and Conditions
9.5 The Customer indemnifies the Vendor in relation to any claim for damage or loss, excluding any claim due to negligence of the Vendor, to the Delivery Address arising out of the delivery of the Goods.
9.6 The Customer is liable for the cost of any state government or council charges or fees as a result of delivery vehicles accessing the Delivery Address, including the cost of any clean-up for mud or detritus left on public roads by the delivery vehicle.
9.7 The Customer will be liable for any additional costs and charges arising out of any delay or unsuccessful delivery of the Goods to the Delivery Address arising out of a failure by the Customer to ensure access in accordance with Clause 9.3 of this Agreement.
9.8 Delivery is taken to have occurred at the time the Vendor’s nominated carrier delivers the Goods to the Delivery Address even if the Customer is not personally present at the Delivery Address. A delivery receipt or docket signed by anyone present at the site address is proof of delivery for the purposes of this Agreement.
9.9 No variation to the Delivery Address is permitted unless the Vendor consents to the variation by way of written notice to the Customer. Such written notice may include additional fees arising out of the change in Delivery Address and the Customer agrees to pay any additional expense incurred as a result of a variation to the Delivery Address.
9.10 The Customer undertakes to do any act required by law in relation to the delivery and unloading of the Goods, including but not limited to obtaining council permission for delivery of the Goods and/or any traffic control necessary for the delivery of the Goods.
9.11 The Customer further accepts responsibility for any additional expenses incurred in relation to any act referred to in clause 9.10 of the Agreement.
9.12 The Vendor may make delivery of the Goods in separate instalments. The Customer accepts that a delivery of the Goods in separate instalments does not affect the Customer’s obligations for price and payment set out in Clause 6 and 7 of this Agreement.
9.13 The Vendor may notify the Customer of an estimated date and time for delivery of the Goods but any such notice is an estimate only. The Vendor is not liable for any loss or damage to the Customer incurred as a result of a late delivery.
9.14 The Vendor reserves the right to delay or cancel delivery by giving notice to the Customer. Notice of a delay or cancellation of delivery may be given by the Vendor to the Customer orally or in writing.
10.1 Ownership of the Goods shall not pass from the Vendor to the Customer until the later of:
a. Full payment of the Price for the Goods and fulfillment by the Customer of any other obligation owed to the Vendor; or
b. Upon delivery of the Goods to the Delivery Address.
11 Risk and Insurance
11.1 The risk of damage or loss to the Goods passes to the Customer on delivery, notwithstanding that ownership of the Goods may be retained by the Vendor in accordance with Clause 10 of the Agreement.
12 Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law Sydney Brick Matching Pty Ltd Terms and Conditions
12.1 To the extent that this Agreement is governed by the Competition and Consumer Act 2010 (Cth) (“The Act”) the Vendor’s liability is limited to the extent set out in section 64A of Schedule 2 of the Act.
12.2 The Vendor acknowledges that nothing in this Agreement purports to modify or exclude the guarantees that may be implied by the Act.
12.3 Subject to clause 12.2 the Vendor gives no other warranties or representations except as set out in the terms of this Agreement and any warranties or representations implied by the operation of the Act including any warranties or guarantees in relation to the quality or suitability of the Goods. The Vendor’s liability in respect of these warranties or guarantees is limited to the fullest extent permitted by law.
12.4 In the event the Vendor is required by the Act to replace the Goods but is unable to do so, the Vendor may refund the Price paid by the Customer for the Goods.
12.5 If the Act does not apply to this Agreement or its terms then the Vendor’s liability for any defect or damage in the Goods is limited only to the lesser of the value of any warranty to which the Seller is entitled or to the Price paid by the Customer for the Goods and is otherwise absolutely negated.
12.6 The Vendor will not be liable for any defect or damage in the Goods resulting either wholly or in part from the Customer’s failure to take reasonable care in the use, storage, maintenance, or disposal of the Goods.
13.1 This Clause 13 is subject to Clause 12 of this Agreement.
13.2 The Customer must inspect the Goods on delivery and provide written notice to the Vendor of any missing Goods or Goods that are different to those described in this Agreement within five (5) days of delivery of the Goods.
13.3 The Customer must notify the Vendor in writing in relation to any defect not included in Clause 13.2 as soon as reasonably possible after such defect becomes apparent.
13.4 In respect of any request for a return of the Goods in accordance with Clause 13 of this Agreement the Customer must allow the Vendor to examine and inspect the Goods.
13.5 The Vendor will only accept a return of the Goods if:
c. The Customer has given written notice in accordance with Clause 13.1 and
13.2 of this Agreement; and
d. The Vendor, upon inspection of the Goods, agrees that the Goods are defective; and
e. The Goods are returned in as close a condition as they were delivered as is possible; and
f. The Goods are returned within a reasonable time and at the Customer’s cost.
14 Termination and Breach
14.1 The Vendor may terminate the Agreement by giving written notice to the Customer.
14.2 In the event the Vendor terminates the Agreement the Vendor shall repay any monies paid by the Customer to the Vendor for the Goods.
14.3 The Vendor shall not be liable for any claim for loss or damage arising from cancellation pursuant to clause 14.1 of the Agreement.
Sydney Brick Matching Pty Ltd Terms and Conditions
15.1 Rights and obligations arising out of or under this agreement are not assignable by one party without the prior written consent of the other parties.A purported assignment without written consent will be deemed to be void and convey no rights.
16.1 If any term or provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, that provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this agreement.
17.1 A failure by the Vendor to enforce any provision of this agreement shall in no way affect its rights to require complete performance by the Customer
17.2 A waiver of any breach of any provision by the Vendor shall not be taken or held to be a waiver of any subsequent breach of any such provision or be a waiver of the provision itself.
17.3 Any waiver given by the Vendor to the Customer will only be effective if such waiver is in writing and signed by or on behalf of the Vendor.
18 Governing Law
18.1 This agreement and its provisions shall be governed and interpreted in accordance with the laws of the State of New South Wales.
18.2 The Vendor and Customer agree to submit to the non-exclusive jurisdiction of the New South Wales Courts in relation to any dispute arising out of this agreement.