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Melbourne Brick Terms & Conditions

The following standard terms and conditions (Terms) apply where Melbourne Brick Company Pty Ltd (ACN 006 995 491) (Supplier) supplies Goods or Services to a Buyer.

  1. Definitions

In these Terms:

"Accepted Order" has the meaning given under clause 3(a);

“Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any other equivalent legislation (such as the Fair Trading Acts (or equivalent legislation) in each State and Territory);

“Buyer” means the person or entity who is buying the Goods or Services from the Supplier, the details of which are set out in the Accepted Order;

“Confidential Information” has the meaning given to it in clause 16;

“Consumer” has the meaning given to it in section 3 of the Australian Consumer Law;

“Consumer Guarantee” means the guarantees contained in sections 51 to 62 inclusive of the Australian Consumer Law.

“Contract” means the contract between the Buyer and the Supplier, which consists of the Credit Account Application (if any), these Terms, the Guarantee and Indemnity (if applicable) and all Accepted Orders for Goods and Services;

“Credit Account Application” means an application for commercial credit completed by the Buyer in a form directed by the Supplier that is approved by the Supplier;

“Defective Goods” means Goods that are defective in design, performance or workmanship or that otherwise do not conform with the Contract;

“Defective Services” means Services that are defective in performance or that otherwise do not conform with the Contract;

“Excluded Loss” means any loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, loss or denial of opportunity or any other similar loss or damage suffered by a party or any other person whether such loss or damage is considered direct, which is indirect or consequential;

"Guarantee and Indemnity" means the guarantee and indemnity (if any) set out in the Credit Account Application;

“Goods” means all products supplied by the Supplier to the Buyer;

“GST” means any goods and services tax and any replacement or similar tax;

“GST Law” means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Insolvency Event” means the happening of any of these events:

  • a party suspends payment of its debts generally, is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
  • a party enters into, or resolves to enter into, any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
  • receiver, receiver and manager, liquidator, provisional liquidator, administrator, trustee or similar official is appointed over any of the assets or undertakings of a party, an application or order is made for the winding up or dissolution of a party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a party, except for the purpose of an amalgamation or reconstruction which has the other party’s prior consent;
  • a party goes bankrupt; or
  • a party ceases, or threatens to cease, to carry on a business;

“Invoice” means an invoice issued by the Supplier to the Buyer setting out the amount to be paid by the Buyer;

“Loss” means all actions, claims, costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities and losses (whether direct, indirect, special, consequential or otherwise);

"Obvious Defects" has the meaning given under clause 8(a);

“Order” means any order for Goods and/or Services placed by the Buyer with the Supplier in accordance with these Terms;

“Premises” means the premises specified in the Accepted Order where the Goods are to be delivered and/or the Services are to be performed;

“Price” means the price for the supply of the Goods or Services as provided for in clause 11;

“PPSA” means the Personal Property Securities Act 2009 (Cth);

“Services” means any services performed by the Supplier in respect of the Goods and any other services that the Supplier agrees to perform on behalf of the Buyer; and

“Website” means the Supplier's website located at: https://www.melbournebrick.com.au/.

  1. General
    • The Contract:
      • supersedes and excludes all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods and Services; and
      • overrides any quotes, invoices, accepted or modified Orders and the Buyer’s terms and conditions of purchase (if any), exchanged between the parties whether or not such documents expressly provide that they override this Contract or any part of it.
    • The Supplier may from time to time vary these Terms at its sole discretion without notice and with immediate effect once posted on the Website. The varied terms will apply in relation to all Accepted Orders made after the date they are published, but will not apply in relation to any pre-existing Accepted Orders or under any contract for a specified term that incorporates the version of these Terms that was applicable on the Website as at the date of that contract, which version will continue to apply in relation to such contract.
  2. Orders
    • The Supplier has sole discretion to accept or reject any Order, any part of an Order, or any variation or modification of an Order, requested by the Buyer. Once accepted by the Supplier, an Order becomes an 'Accepted Order' for the purposes of the Contract.
    • The Supplier has sole discretion to accept or reject any Accepted Order cancellation request by the Buyer. If a cancellation request is accepted by the Supplier, the Buyer will be liable for any Loss incurred by the Supplier in respect of that Accepted Order (including, without limitation, payment for any Goods ordered by the Supplier from its suppliers relating to that Accepted Order or any costs incurred by the Supplier as at the date of cancellation in respect of the Services).
    • The Buyer authorises the Supplier to subcontract the provision and delivery of the Goods and Services at the Supplier’s absolute discretion.
  3. Claims and limitation of liability
    • Nothing in the Contract is intended to have the effect of excluding any applicable law that cannot be excluded, restricted or modified by agreement of the parties (Non-Excludable Rights).
    • Subject to any Non-Excludable Rights, and to the extent permitted by law:
      • The Buyer must:
        • promptly inform the Supplier of all complaints or claims received by the Buyer relating to any of the Goods or Services;
        • not admit liability on behalf of the Supplier in respect of any complaint or claim relating to any of the Goods or Services;
        • not resolve or settle any complaint or claim relating to any of the Goods or Services which may result in the Supplier incurring any liability (whether to a customer, the Buyer or any other person); and
        • deal promptly with all complaints or claims received by the Buyer relating to any of the Goods or Services, which will not result in the Supplier incurring any liability.
      • all conditions, warranties and implied terms, whether statutory or otherwise, are excluded in relation to the Goods and Services;
      • each party excludes all liability to the other party for any Excluded Loss;
      • the Supplier’s liability for any Defective Goods or Defective Services:
        • in the case of Goods, is limited to:
          • the replacement of the Goods or the supply of equivalent Goods;
          • the repair of the Goods;
          • the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
          • the payment of the cost of having the Goods repaired; or
        • in the case of Services, is limited to:
          • the resupply of the services; or
          • the payment of the cost of resupply of the services;
        • subject to clause 2(d), each party's liability for any Loss arising under the Contract is limited to the total value of the Goods and Services supplied under the Contract at the time the relevant liability arose.
  1. Samples and Descriptions
    • The Supplier uses natural materials in the production of Goods available for purchase by the Buyer and as such colour, shade, tone, markings and texture may vary between samples of the Goods and the actual Goods supplied. This may include, but is not limited to, materials such as clay, shale and sand (Materials). The Buyer acknowledges and agrees that, due to the use of Materials, the Goods supplied may:
      • exhibit variations in shade, colour, texture, surface, finish, markings and may contain natural fissures, occlusions, lines or indentations and may fade or change colour over time;
      • expand, contract or distort as a result of exposure to extreme temperatures or weather conditions;
      • mark or stain if exposed to certain substances; and
      • be damaged or disfigured by impact or scratching.
    • Subject to the application of any Non-Excludable Rights, while the Supplier will take use all reasonable endeavours to match samples of the Goods to the Goods supplied, the Supplier does not give any warranty or guarantee that the Goods will correspond in appearance with any samples or goods previously sold.
    • For the purposes of this clause 5 samples include items on display in any of the Supplier's physical locations or online on the Website.
  2. Services
    • The Supplier will perform the Services (if any) at the Premises.
    • If for any reason the Buyer is not ready, willing or able to receive the Services on the date specified in the relevant Accepted Order (or as otherwise agreed by the parties), the Supplier will still be entitled to payment for such Services and may issue an Invoice to the Buyer in respect of such Services, except that the Supplier will not be entitled to do so to the extent the Supplier has caused the Buyer to not be ready, willing or able to receive the Services on the relevant date.
    • The Buyer must ensure that the Premises are sufficiently clean, secure and safe to enable the Supplier to perform the Services and must ensure at all times that it has appropriate occupational health and safety processes and policies in place at the Premises which comply with all applicable laws.
  3. Delivery
    • The Supplier will use all commercially reasonable efforts to deliver the Goods and supply the Services to the Premises by the delivery date specified in the Accepted Order.
    • The Supplier may deliver the Goods and supply the Services by separate instalments.  Each separate instalment will be invoiced and paid in accordance with clause 11.
    • The Buyer must at all relevant times provide sufficient access to the Premises to enable the Supplier to deliver the Goods and supply the Services, including approved crossing facilities. 
    • In the event the Supplier delivers any pallets with the Goods or Services they must be returned by the Buyer in good order and condition within thirty days of the delivery.
    • Delivery of the Goods and supply of the Services to a third party nominated by the Buyer is deemed to be delivery or supply to the Buyer for the purposes of the Contract.
    • The failure of the Supplier to deliver the Goods or supply the Services does not entitle either party to treat the Contract as repudiated.
    • Subject to any Non-Excludable Rights, the Supplier is not liable for any failure to deliver the Goods or supply the Services (or any of them) promptly or at all, other than to refund the price paid by the Buyer for Goods or Services that are not delivered at all.
  4. Defects
    • The Buyer must, within 14 days after delivery of the Goods or performance of the Services, check whether the Goods or Services, when delivered or performed, contain any Defects which are obvious or able to be detected by a visual inspection of the Goods or Services, including but not limited to any discrepancy in the size or colour of Goods against those ordered (Obvious Defects). Subject to clause 8(d), the Buyer must advise the Supplier of all Obvious Defects within 14 days after delivery or performance.
    • If the Buyer gives the Supplier notice under clause 8(a), it must:
      • preserve the Goods or Service deliverables in the state in which they were delivered for 14 days after it gives the Supplier notice; and
      • during that period, allow the Supplier to access the Buyer's premises to inspect the Goods or Service deliverables; or
      • at the Supplier’s request, return the Goods within 14 days after the delivery date in the condition in which they were delivered and with all packaging material in as new condition as is reasonably possible in the circumstances.
    • Where the Supplier makes such a return request under clause 8(b)(iii), the Supplier will be responsible for the costs of return, unless the Supplier reasonably determines following inspection that the returned Goods do not contain Obvious Defects, in which case the Buyer must reimburse the Supplier for the return costs.
    • The process set out in clause 8(a) and 8(b) only applies to Obvious Defects. For Goods or Services that contain a Defect that is not an Obvious Defect, the Buyer must advise the Supplier of any Defects within the period following delivery of the Goods or performance of the Services during which it would be reasonable to expect the relevant Defect to become apparent.
    • The Buyer acknowledges and agrees that, subject to any Non-Excludable Rights, Goods and Services will not be considered Defective where the purported Defect:
      • was disclosed to the Buyer as a feature or limitation of the Goods or Services before the date of purchase;
      • was caused by the Buyer during the period following delivery during which the Buyer had risk in the Goods; or
      • is trivial or insubstantial.
  1. Returns

Subject to any Non-Excludable Rights, all returns for Defective Goods and Services will be dealt with in accordance with clause 8, and no refund or exchange will be provided for any change of mind or an error in ordering, except to the extent that the Supplier consents to cancellation of an Order under clause 3(b).

  1. Risk and title
    • The risk in the Goods passes to the Buyer when the Goods are loaded at the Supplier’s premises for delivery to the Buyer. 
    • Title in and to the Goods passes to the Buyer on full payment in cleared funds for all Goods. Until the Supplier receives full payment in cleared funds for all Goods supplied by it to the Buyer, as well as all other amounts owing to the Supplier by the Buyer under this or any other Contract:
      • legal title and property in all Goods supplied under this Contract remains vested in the Supplier and does not pass to the Buyer;
      • the Buyer must store the Goods separately and in such a manner and maintain any labelling and packaging of the Supplier, so that the Goods are clearly and readily identifiable as the property of the Supplier;
      • the Buyer must not sell the Goods except in the ordinary course of the Buyer’s business and holds the proceeds of any sale of the Goods on trust for the Supplier until the Goods are paid for in full;
      • in addition to any rights the Supplier may have under Chapter 4 of the PPSA, if the Buyer fails to comply with its payment obligations under the Contract, the Supplier may, at any time, demand the return of the Goods and shall be entitled without notice to the Buyer and without liability to the Buyer, to enter any premises where it suspects the Goods may be located in order to search for and remove the Goods without committing a trespass, even though they may be attached or annexed to other goods or land not the property of the Supplier, and for this purpose the Buyer irrevocably licenses the Supplier to enter such premises, undertakes that it will procure any necessary authority to enter from any relevant person and also indemnifies the Supplier from and against all loss suffered or incurred by the Supplier as a result of exercising its rights under this clause 10(b)(iv), except to the extent such loss or caused by the Supplier's negligence or wilful misconduct. If there is any inconsistency between the Supplier’s rights under this clause 10(b)(iv) and its rights under Chapter 4 of the PPSA, this clause 10(b)(iv)
      • the Buyer acknowledges and warrants that the Supplier has a security interest (for the purposes of the PPSA) in the Goods and any proceeds described in clause 10(b)(iv) and the Buyer must do anything reasonably required by the Supplier to ensure that such security interest is enforceable, perfected and otherwise effective and has the priority required by the Supplier, which, unless the Supplier agrees in writing otherwise, is first priority; and
      • the security interest arising under this clause 10(b)(vi) attaches to the Goods when the Buyer obtains possession of the Goods and the parties confirm that they have not agreed that such security interest attaches at any later time.
    • The Buyer warrants that, except where the Buyer is a Consumer, it does not intend to use the Goods predominantly for personal, domestic or household purposes.
    • The Buyer must, at its own cost, insure and keep insured the Goods against such risks as a prudent owner of the Goods would insure at their full cost price, with a reputable insurance company.
    • The Supplier’s rights under this clause 9 secure:
      • the Supplier’s right to receive the Price of all the Goods sold under this Contract; and
      • all other amounts owing to the Supplier under this Contract or any other agreement between the Buyer and the Supplier.
    • All payments received from the Buyer must be applied in accordance with section 14(6)(c) of the PPSA.
  2. Price and payment
    • All prices quoted are in Australian dollars.
    • Unless prices quoted by the Supplier are stated to include any sales, value added, GST or similar tax which may apply, these taxes are payable by the Buyer in addition to the quoted prices.
    • At the Supplier’s discretion, the Price of the Goods and Services in each Accepted Order will be:
      • the Supplier’s then-current price for the Goods and Services according to the Supplier’s price list at the time the order (which became an Accepted Order) was placed by the Buyer; or
      • the Supplier’s quoted price which will be binding on the Supplier for a period of 30 days from the date of quotation and which may be accepted by the Buyer, by written notice to the Supplier, at any time within those 30 days.
    • Time for payment for the Goods and Services is a material term of the Contract and will be stated in the Credit Application (if applicable) or otherwise on the Seller’s invoice, quotation or any other order forms.  If no time is stated by the Supplier, then payment must be made on or before delivery of the Goods or the performance of the Services (as applicable).
    • Subject to the terms of any Credit Application, the Supplier may withhold delivery of the Goods or the supply of the Services until the Buyer has paid for them in full, in which case payment must be made on or before the delivery/ supply date (as applicable).
    • The Buyer must pay the Price for Goods or Services supplied to the Buyer by cash, credit card (plus any credit card surcharges that may be applicable), direct debit, or in any other way that the Supplier directs.
    • Payment by cheque or other negotiable instrument is not regarded as received until it is cleared.
    • Without prejudice to any other rights or remedies of the Supplier, if the Buyer fails to make (whether in full or in part) any payment required under these Terms on or before the due date for payment, and fails to remedy such payment failure within 7 days after being given written notice of the payment failure, then:
      • the Supplier may charge the Buyer interest on the unpaid amount at 2% per annum above the average of the most recent prime rate, indicator rate, or reference rate (however described) for business overdraft published by Commonwealth Bank of Australia;
      • such interest will accrue from the date payment was due to the date payment is made, will be calculated daily and capitalised monthly and must be paid by the Buyer upon demand by the Supplier; and
      • the Buyer must reimburse the Supplier for all reasonable Loss that the Supplier incurs in recovering the amounts owing to it.
  1. GST and other taxes and duties

Notwithstanding any other clause in the Contract, to the extent that any supply made under or in connection with the Contract is a taxable supply (as defined by the GST Law), the Buyer must pay to the Supplier, in addition to the consideration provided for under these Terms for that supply (unless it expressly includes GST) an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The Buyer must pay to the Supplier the additional amount at the same time as the consideration to which it is referable. The Buyer is responsible for paying any other duties, taxes or charges, including any stamp duty (if applicable), in relation to the Goods.

  1. Termination
    • Either party (Non-Defaulting Party) may terminate:
      • the terms of credit provided to the Buyer under the Credit Application;
      • any Accepted Order; or
      • the Contract in its entirety,

by written notice to the other party (Defaulting Party) if the Defaulting Party:

  • breaches the Contract in a material respect and, in the reasonable opinion of the Non-Defaulting Party, the breach:
    • cannot be remedied; or
    • can be remedied, but is not remedied by the Defaulting Party within 7 days after the Non-Defaulting Party provides notice of the breach; or
  • suffers an Insolvency Event.
  • If the Customer's line of credit under the Credit Application is terminated:
    • the Contract will continue in effect (including the Credit Application and Guarantee and Indemnity), but on the basis that the Customer will no longer be able to access any line of credit under the Credit Application;
    • all amounts the Customer owes to the Supplier under the Credit Application, whether due at that time or not, will become immediately due and payable; and
    • any accrued rights and obligations as at the date the line of credit is terminated are unaffected.
  • If an Accepted Order is terminated or if the Contract terminates or expires:
    • the Buyer must pay the Supplier all amounts it owes the Supplier under the terminated Accepted Order or the terminated or expired Contract (as applicable), whether such amounts are due at that time or not;
    • the Buyer must return all Confidential Information to the Supplier; and
    • any accrued rights and obligations as at the date of termination or expiration are unaffected.
  1. Force majeure
    • In these Terms, the term 'Force Majeure Event' means any event beyond the reasonable control of a party including, without limitation, any act of God, war, terrorism, revolution, unlawful act against public order or authority, strike, lockout or other industrial dispute, an act or omission of a government agency, inability to obtain any necessary materials, products, equipment, facilities or services from usual suppliers on usual terms, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network. 
    • An obligation of a party (other than an obligation to make payment) is suspended for the time and to the extent that the party is prevented from, hindered or delayed in complying with that obligation by reason of a Force Majeure Event.
    • If a Force Majeure Event continues for more than 30 consecutive days, either party may terminate any affected Accepted Order and/or the Contract immediately by notice in writing to the other party.
  2. General lien

In addition to any right of lien to which the Supplier may be entitled under the common law, the Supplier shall be entitled to exercise a general lien over all items in its possession belonging to the Buyer until the Buyer has paid in full for all Goods or Services supplied by the Supplier to the Buyer.  Where the Buyer defaults on payment under clause 11(h), the Supplier may in its sole discretion sell any item that is subject to a lien, provided that the Supplier shall pay to the Buyer any surplus proceeds that are realised by it from a sale of any such items after discharging in full all monies outstanding to the Supplier in respect of unpaid Goods and all reasonable costs of sale incurred by the Supplier.

  1. Confidential information
    • In this clause 16, Confidential Information means confidential information, trade secrets, know-how, scientific, technical, product, market or pricing information relating to the Goods or Services or the Supplier’s business.
    • The Buyer is authorised to use the Confidential Information for the sole purpose of using or selling the Goods or Services supplied under these Terms and must not otherwise use or disclose any Confidential Information.
  2. Severance

If any provision of the Contract or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall, so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of the Contract shall not in any way be affected or impaired.

  1. Variation and assignment

The Contract may be varied by agreement between the parties in writing only.  The Buyer may not assign its rights under the Contract without the Supplier’s prior written consent.

  1. Governing law

The Contract is governed by the law of the State of Victoria. The Supplier and the Buyer submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.

  1. Waiver

Waiver by the Supplier of a breach of the Contract or of any right or power arising on a breach of the Contract must be in writing and signed by the Supplier. A right or power created or arising on a breach of the Contract is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.

  1. No right to offset

No amount owing, whether present or future, actual, contingent or prospective and on any account whatsoever, by the Buyer to the Supplier may be offset against any amount owing whether present, future, actual, contingent or prospective to the Buyer from the Supplier hereunder or on any other account whatsoever.

  1. Intellectual property

The purchase of Goods or Services under the Contract does not confer on the Buyer any licence or assignment of any copyright, patent, design or trademark, or any other intellectual property right (whether registered, registrable or not) that subsists in the Goods and/or Services. 

  1. Confidentiality and PPSA

Subject to section 275(7) of the PPSA, neither party will disclose information of the kind mentioned in section 275(1) of the PPSA.

  1. Enforcement of security interest

If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under the Contract, the Buyer agrees that the following provisions of the PPSA will not apply:

  • section 95 (notice of removal of accession), to the extent that it requires the Supplier to give a notice to the Buyer;
  • section 121(4) (enforcement of liquid assets – notice to Grantor);
  • section 130 (notice of disposal), to the extent that it requires the Supplier to give a notice to the Buyer;
  • paragraph 132(3)(d) (contents of statement of account after disposal);
  • subsection 132(4) (statement of account if no disposal);
  • section 135 (notice of retention);
  • section 142 (redemption of collateral); and
  • section 143 (reinstatement of security agreement).
  1. Notices under the PPSA

The Supplier does not need to give the Buyer any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.

  1. Further assurances

If at any time:

  • the Supplier determines that the PPSA applies, or will at a future date apply, to the Contract or any of the transactions contemplated by the Contract; and
  • in the reasonable opinion of the Supplier,
    • the PPSA adversely affects or would adversely affect the security position; or
    • the rights of the Supplier under or in connection with the Contract; or
    • the Goods or compliance with the PPSA is necessary or advisable for the Supplier to maintain a first priority perfected security interest in the Goods; or
    • any other personal property of the Buyer under applicable law,

then the Buyer must, upon the Supplier’s request cause the Contract and/or the security interest or ownership interests created under the Contract,  

  • to be registered with the applicable registry in accordance with; and to the extent possible under the PPSA; and
  • must cause all other filings and recordings necessary or advisable under the PPSA; and
  • all such other action (including amending the Contract) required under the PPSA to be effected and taken, in order to maintain, protect and perfect the respective right, title and interests of the Supplier thereunder. 

All costs and expenses arising as a result of actions taken pursuant to this clause 26 will be for the account of the Buyer.

  1. Benefit of contract

The Supplier holds the benefit of the Contract for itself and on trust for each of its agents and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth).