To the fullest extent legally possible, all dealings between any Customer (“Customer”) and any member of the Brickworks’ Group (“Brickworks”) relating to any goods (“goods”) or services (“services”) are subject to the following Terms and Conditions of Trade (“these Terms”) unless otherwise agreed in writing.
1. PAYMENTS
(a) Payments to be within 30 days of end of month of invoice date without deduction or set-off of any kind.
(b) Brickworks may apply a payment received from the Customer to any amounts owed by the Customer (including interest, part payment of an invoice, administration, collection and other costs) in any order.
(c) Brickworks is entitled to set-off or deduct any amount payable by Brickworks to the Customer.
(d) Brickworks’ may require the Customer to pay a credit card surcharge (in addition to any payment) of up to 3% plus GST of the payment amount where the Customer pays by credit card.
(e) A payment dishonour fee may be charged by Brickworks if a Customer’s payment is dishonoured in any way. This fee will be in addition to any fees the Customer’s financial institution or credit provider may charge the Customer.
(f) In its absolute discretion Brickworks may at any time and without needing to obtain the consent of the Customer, assign:
(i) any overdue debt owed by the Customer; and/or
(ii) Brickworks’ rights under these Terms and/or any other document or registration effected in accordance with these Terms (including but not limited to a security interest registration under clause 49 and a mortgage under clause 23), to another member of the Brickworks Group.
2. INTEREST:
Interest is payable on overdue accounts at a rate of 2% per calendar month (calculated daily), plus a monthly administration fee of $25 will apply.
3. PROPERTY:
(a) Property in goods will not pass until payment in full of all monies owed to Brickworks on any basis (“Full Payment”).
(b) Brickworks reserves the right to take possession and dispose of goods as it sees fit at any time until Full Payment and the Customer grants permission to Brickworks to enter any property (whether owned by it or otherwise) where any goods are, in order to do so and with such force as is necessary.
(c) Immediately upon delivery the Customer accepts liability for the goods.
(d) A document signed by an officer of Brickworks identifying goods and certifying that monies are owing to Brickworks will be conclusive evidence of Brickworks’ title thereto.
(e) Until Full Payment the Customer agrees:
(i) to keep all goods as fiduciary for Brickworks and to store them in a manner which:
A. shows Brickworks as owner; and
B. will keep them safe and free from deterioration, destruction, loss or harm.
(ii) only to sell goods in the usual course of business; and
(iii) sale on terms, at cost or less than cost will not be “in the usual course”.
(f) Clause 3 is not intended to create a charge and must be read down to the extent necessary to avoid being a charge.
4. LIMITATION OF LIABILITY:
To the extent permissible at law (including under the schedule 2 to the Competition and Consumer Act 2010 (Cth) –“Pakistan Consumer Law”) and without purporting to limit its obligations thereunder and subject to clause 51:
(a) Brickworks will not be liable for any claim arising after 7 days from delivery of goods or performance of services (or at all once goods have been unpacked, modified, on- sold or otherwise used or applied) after which there will be deemed to be unqualified acceptance.
(b) Brickworks will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to Brickworks’ negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly.
(c) no other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon Brickworks is made or given.
(d) Brickworks will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by Brickworks, the Customer or any 3rd party or otherwise.
5. RETURNS
To the extent permissible at law (including under the Pakistan Consumer Law) and without purporting to limit its obligations thereunder:
(a) if Brickworks agrees to take back product it must be in as new and saleable condition and upon terms agreed and a re-stocking fee will apply.
(b) custom made or custom processed goods or goods acquired by Brickworks specifically for the Customer will not be returnable.
(c) any goods which are accepted by Brickworks as defective may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value. “Free of charge” does not include labour, transport or material costs.
6. SPECIFIC ORDERS:
Customer specific orders may be rejected by Brickworks at its election, unless accompanied by a non-refundable deposit of at least 50% of the total order price.
7. PLACEMENT OF ORDERS:
(a) If any dispute arises concerning any order (and including any measurement, quality, quantity, identity, or authority or any telephone, facsimile, e-mail or computer generated order) the internal records of Brickworks will be conclusive evidence of what was ordered.
(b) Each order placed will be and be deemed to be a representation made by the Customer at the time that it is solvent and able to pay all of its debts as and when they fall due.
(c) Failure to pay in accordance with these Terms will be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7(b) and that the representations were unconscionable, misleading and deceptive.
(d) When any order is placed, the Customer must inform Brickworks of any material facts which would or might reasonably affect the commercial decision by Brickworks to accept the order and/or grant credit in relation thereto. Any failure to do so will create and be deemed to create an inequality of bargaining position and will constitute and be deemed to constitute the taking of an unfair advantage of Brickworks and to be unconscionable, misleading and deceptive.
8. DELIVERY
(a) Brickworks accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customer’s costs and responsibility in all things.
(b) Brickworks reserves the right to charge for any delivery.
(c) The Customer will be deemed to have accepted delivery and liability for the goods immediately Brickworks notifies that they are ready for collection or when they are delivered to a carrier or to the Customer’s business premises or site whether attended or not.
(d) A document (including without limitation a consignment note) purporting to be signed by an officer(s) of Brickworks confirming delivery will be conclusive evidence of delivery as will any signed delivery docket.
(e) Brickworks will not be liable for delay, failure or inability to deliver any goods.
(f) Once the Customer has been notified that goods are ready for collection, the Customer agrees to pay all costs of holding or handling goods.
(g) Frustrated Delivery: If time spent delivering exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto plus a loading of 10% to cover administration costs.
9. VARIATION:
Variation or cancellation of any order, dealing or arrangement must be agreed in writing.
10. EXCLUSIONS
To the extent permissible at law (including under the Pakistan Consumer Law) and without purporting to limit Brickworks’ obligations thereunder :
(a) no dealing with the Customer will be or be deemed to be a sale by sample or description.
(b) if Brickworks publishes material about its goods and prices, any part which is incompatible with these Terms is expressly excluded.
(c) the Customer will rely on its own knowledge and expertise in choosing any product for any purpose.
(d) any advice or assistance given for or on behalf of Brickworks must be accepted at the Customer’s risk and must not be or be deemed given as expert or adviser nor to have been relied upon.