PRIVACY POLICY

To the fullest extent legally possible, all dealings between any Customer (“Customer” or "customer") and any member of the Elephant Brick Co Pty Ltd (“Elephant Brick Co Pty Ltd”) relating to any goods (“goods”) or services (“services”) are subject to the following Terms and Conditions of Sale (“these Terms”) unless otherwise agreed in writing. These Terms and Conditions represent the sole agreement between Elephant Brick Co Pty Ltd and the customer.  Elephant Brick Co does not accept any terms and conditions issued by the customer via a Purchase Order or any similar instrument. Payment or part payment of any invoice represents the customers agreement with our Terms and Conditions of Sale.

 

1. PAYMENTS

(a) On all orders, a minimum 60% non-refundable deposit is required upon order with balance paid 1 week before delivery. The Customer agrees that no order is deemed to have been accepted by Elephant Brick Co Pty Ltd until the deposit has been paid.

(b) Elephant Brick Co Pty Ltd 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) Elephant Brick Co Pty Ltd is entitled to set-off or deduct any amount payable by Elephant Brick Co Pty Ltd to the Customer.

(d) Elephant Brick Co Pty Ltd 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 Elephant Brick Co Pty Ltd 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 Elephant Brick Co Pty Ltd 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) Elephant Brick Co Pty Ltd 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 party.

(g) Once Elephant Brick Co Pty Ltd has notified the Customer that bricks are ready for delivery, the Customer has 7 days to accept delivery before storage fees will start to accrue. Storage is charged at the rate of $10 per pallet per week plus GST.

 

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 any goods or services will not pass until payment in full of all monies owed to Elephant Brick Co Pty Ltd on any basis (“Full Payment”).

(b) Elephant Brick Co Pty Ltd 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 Elephant Brick Co Pty Ltd to enter any property (whether owned by it or otherwise) where any goods are.

(c) Immediately upon delivery the Customer accepts liability for the goods.

(d) A document signed by an officer of Elephant Brick Co Pty Ltd identifying goods and certifying that monies are owing to Elephant Brick Co Pty Ltd will be conclusive evidence of Elephant Brick Co Pty Ltd title thereto.

(e) Until Full Payment the Customer agrees:

(i) to keep all goods as fiduciary for Elephant Brick Co Pty Ltd and to store them in a manner which:

A. shows Elephant Brick Co Pty Ltd 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 and without purporting to limit its obligations thereunder and subject to clause 51:

(a) Elephant Brick Co Pty Ltd 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) Elephant Brick Co Pty Ltd will not be liable in any way for any contingent, consequential, direct, indirect, special or punitive damage arising whether due to Elephant Brick Co Pty Ltd 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 Elephant Brick Co Pty Ltd is made or given.

(d) Elephant Brick Co Pty Ltd will not be liable for any claim relating to or arising from any alleged fault or defect, whether caused or contributed to by Elephant Brick Co Pty Ltd, the Customer or any 3rd party or otherwise.

 

5. RETURNS

To the extent permissible at law (including under the Australian Consumer Law) and without purporting to limit its obligations thereunder:

(a) if Elephant Brick Co Pty Ltd agrees to take back product it must be in as new and saleable condition and upon terms agreed and a re-stocking fee of 25% of the sale price will apply.

(b) custom made or custom processed goods or goods acquired by Elephant Brick Co Pty Ltd specifically for the Customer will not be returnable.

(c) any goods which are accepted by Elephant Brick Co Pty Ltd 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. CUSTOM ORDERS:

Customer custom orders may be rejected by Elephant Brick Co Pty Ltd at its election, unless accompanied by a non-refundable deposit of at least 100% 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 Elephant Brick Co Pty Ltd 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 Elephant Brick Co Pty Ltd of any material facts which would or might reasonably affect the commercial decision by Elephant Brick Co Pty Ltd 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 Elephant Brick Co Pty Ltd and to be unconscionable, misleading and deceptive.

 

8. DELIVERY

(a) Elephant Brick Co Pty Ltd 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) When Elephant Brick Co Pty Ltd elects to arrange delivery, delivery is done by third party provider(s) and the customer agrees to be bound by the providers terms and conditions. Goods can only be delivered to locations which are accessible for delivery vehicles and delivery equipment and those locations considered safe for delivery. Determination of the accessibility and safety aspects of delivery is at the sole discretion of the transport provider. If the transport provider deems the location for delivery to be unsafe and/or inaccessible, freight will need to be collected from a depot nominated by the transport provider by the customer and at the customers expense. Freight is sent on an uninsured basis. The Customer must nominate a site contact person with contact details, this contact must be on site for delivery. While Elephant Brick Co Pty Ltd will provide the transport operator with any relevant delivery instructions we accept no liability in regard to these instructions. It is the Customers responsibility to insure goods are placed in a location designated by the Customer.

(c) Elephant Brick Co Pty Ltd reserves the right to charge for the arrangement of any delivery.

(d) The Customer will be deemed to have accepted delivery and liability for the goods immediately Elephant Brick Co Pty Ltd 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.

(e) A document (including without limitation a consignment note) purporting to be signed by an officer(s) of Elephant Brick Co Pty Ltd confirming delivery will be conclusive evidence of delivery as will any signed delivery docket.

(f) Elephant Brick Co Pty Ltd will not be liable for delay, failure or inability to deliver any goods.

(g) Once the Customer has been notified that goods are ready for collection, the Customer agrees to pay all costs of holding or handling goods.

(h) 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 Australian Consumer Law) and without purporting to limit Elephant Brick Co Pty Ltd obligations thereunder:

(a) no dealing with the Customer will be or be deemed to be a sale by sample or description.

(b) if Elephant Brick Co Pty Ltd 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 Elephant Brick Co Pty Ltd 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.

 

11. NO MISREPRESENTATIONS:

The Customer agrees not to make any misrepresentations to any third parties about the goods or service.

 

12. SEVERABILITY:

Any part of these Terms can be severed without affecting any other part.

 

13. PURCHASE PRICE:

(a) All sales are made by Elephant Brick Co Pty Ltd at its ruling price at the time of order.

(b) All Government imposts and any GST (“Imposts”) will be to the Customer’s account.

(c) Elephant Brick Co Pty Ltd price lists exclude Imposts unless expressly noted thereon.

 

14. DEFAULT:

To the extent permissible at law (including under the Australian Consumer Law) and without purporting to limit Elephant Brick Co Pty Ltd obligations thereunder:

(a) default or breach by the Customer of these Terms or in any dealings with Elephant Brick Co Pty Ltd will entitle Elephant Brick Co Pty Ltd to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not), cease further deliveries, recover from the Customer all loss of profits and/or take immediate possession of any product, without prejudice to any other of its rights and without liability to any party;

(b) the Customer agrees not to commence or continue or permit to be commenced or continued any action against Elephant Brick Co Pty Ltd whilst the Customer is in default under any part of these Terms; and

 

15. GOODS AND SERVICES:

(a) To the extent permissible at law (including under the Australian Consumer Law) and without purporting to limit its obligations thereunder:

(i) Elephant Brick Co Pty Ltd disclaims any responsibility or liability whatsoever relating to suitability for any particular purpose or process;

(ii) Elephant Brick Co Pty Ltd disclaims any responsibility or liability relating to any goods:

(A) processed or made to designs, drawings, specifications or measurements etc. or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer; and/or

(B) utilised, stored, handled, cleaned or maintained incorrectly or inappropriately. Elephant Brick Co Pty Ltd guidelines can be found at https://www.elephantbrickco.com.au/brick-wall-construction; and https://www.elephantbrickco.com.au/installation-of-brick-tiles.

(b) The Customer agrees to check all goods prior to use, alteration or any application thereof whether in relation to suitability for any particular purpose, process or otherwise.

(c) The Customer agrees to check and test all goods for compliance with all relevant applicable standards and regulatory bodies before use, on-sale or application and to use or apply same in accordance with all applicable standards, regulations and guidelines, with all manufacturers and/or Elephant Brick Co Pty Ltd recommendations and directions as well as with good commercial practice. Elephant Brick Co Pty Ltd guidelines can be found at https://www.elephantbrickco.com.au/brick-wall-construction; and https://www.elephantbrickco.com.au/installation-of-brick-tiles.

(d) Elephant Brick Co Pty Ltd may update, modify, make substitution or alter any of its goods or any component or raw material incorporated in or used in forming any part of any goods as part of its ongoing business.

(e) The Customer agrees to accept current goods in substitution for any goods ordered provided they are not materially different.

 

16. OTHER TERMS AND CONDITIONS AND NOTICE:

(a) Terms and/or conditions sought to be imposed by the Customer upon Elephant Brick Co Pty Ltd will not apply unless agreed in writing by Elephant Brick Co Pty Ltd.

(b) The Customer will be deemed to have notice of any change to these Terms, immediately Elephant Brick Co Pty Ltd adopts them.

 

17. RECOVERY COSTS:

The Customer will pay (on a full indemnity basis) all costs and expenses of Elephant Brick Co Pty Ltd, its legal advisers, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms or breach of any dealings with Elephant Brick Co Pty Ltd.

 

18. ATTORNMENT:

To give effect to its obligations arising under these Terms (and especially clause 23) the Customer hereby irrevocably appoints any officer or manager of Elephant Brick Co Pty Ltd from time to time, as its attorney.

 

19. CUSTOMER RESTRUCTURE:

(a) The Customer will notify Elephant Brick Co Pty Ltd of any change in its structure or management including any sale or disposition of any part of the business of the Customer, any change in director, shareholder, management, partnership or trusteeship or sale of any material part of its business (“Restructure”) within 7 days of any such change.

(b) The Customer agrees it will:

(i) cause any new entity created by virtue of a Restructure (“New Entity”) to be bound by these Terms;

(ii) continue to be bound by these Terms despite a Restructure and will indemnify Elephant Brick Co Pty Ltd for any loss or damage it suffers as a result of a breach of these Terms by the New Entity.

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20. JURISDICTION:

All contracts and dealings with Elephant Brick Co Pty Ltd shall be deemed to be in the State/Territory nominated by Elephant Brick Co Pty Ltd & the Customer agrees to submit to the jurisdiction of the appropriate Courts in or nearest Capital of that State/Territory.

 

21. CREDIT LINE:

Elephant Brick Co Pty Ltd can vary or withdraw any credit facility or limit it at any time at its discretion and without any liability to the Customer or any other party.

 

22. WAIVER:

If Elephant Brick Co Pty Ltd elects not to exercise any rights arising as a result of breach of these Terms it will not constitute a waiver of any rights relating to any subsequent or other breach.

 

23. SECURITY FOR PAYMENT:

The Customer agrees that:

(a) despite anything to the contrary contained herein or any other rights which Elephant Brick Co Pty Ltd may have howsoever, where the Customer is the owner of property (tangible or intangible), land, realty or any other asset capable of being charged and/or over which a security interest may be created (“Asset”), the Customer agrees, upon Elephant Brick Co Pty Ltd written request, to mortgage and/or charge all of their joint and/or several interest in the Asset to Elephant Brick Co Pty Ltd to secure all amounts and other monetary obligations payable by the Customer to Elephant Brick Co Pty Ltd;

(b) it grants a lien to Elephant Brick Co Pty Ltd over any of its property in the possession or control of Elephant Brick Co Pty Ltd until Full Payment;

(c) it will execute any documents and to do all things requested by Elephant Brick Co Pty Ltd to register a mortgage (or such other security Elephant Brick Co Pty Ltd requires) over any current or later acquired real property the Customer has an interest in;

(d) it consents unconditionally to Elephant Brick Co Pty Ltd lodging a caveat noting Elephant Brick Co Pty Ltd interest in any current or later acquired real property the Customer has an interest in;

(e) any officer of Elephant Brick Co Pty Ltd may (without limitation) sign documentation to effect the Customer’s compliance with this clause 23 by virtue of the provisions of clause 18.

(f) agrees that if it is in default of any part of these Terms,

Elephant Brick Co Pty Ltd may, in order to make good any default (in whole or in part), garnishee moneys:

(i) held by third parties on behalf of the Customer; and/or

(ii) which the Customer is entitled to payment of (whether that entitlement is past, present or future)

 

24. FORCE MAJEURE:

Elephant Brick Co Pty Ltd will not be in default or breach of any dealing with the Customer as a result of Force Majeure (i.e: anything beyond Elephant Brick Co Pty Ltd reasonable control).

 

25. SAMPLING:

The Customer must pay for all goods provided to or ordered by the Customer as “sampling” unless otherwise agreed in writing.

 

26. INTELLECTUAL PROPERTY:

(a) If Elephant Brick Co Pty Ltd utilises any design, patent, copyright material or other intellectual property or follows any instruction provided by or on behalf of the Customer, the Customer indemnifies Elephant Brick Co Pty Ltd against any claim, proceeding, damages or liability for any loss, cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise.

(b) The Customer must not reproduce, communicate to the public or, use any material in which copyright subsists and which is owned by Elephant Brick Co Pty Ltd without the prior written consent of Elephant Brick Co Pty Ltd.

(c) If the Customer breaches or permits any breach of this clause, it acknowledges Elephant Brick Co Pty Ltd may suffer claims by third parties as a result and clause 35 will apply:

 

27. DISCOUNTS:

(a) Any discount offered by Elephant Brick Co Pty Ltd is at its complete discretion and will only be available provided the Customer is not in breach of any part of these terms nor in default in any of its dealings with Elephant Brick Co Pty Ltd.

(b) Unless otherwise agreed in writing, early payment discounts (if any) will be noted on the face of the relevant invoice and are subject to these Terms.

 

28. SPECIFICATIONS:

(a) To the extent permissible at law (including under the Australian Consumer Law), any illustration drawing or specification supplied by Elephant Brick Co Pty Ltd (“Specs”) are drafts and approximates and are for illustration purposes and the Customer should not rely on the accuracy of such Specs in any way.

(b) Any tangible or intellectual property rights in Specs remain the property of Elephant Brick Co Pty Ltd and may be recalled at any time.

(c) Specs are to be treated at all times as confidential and not made use of without the prior written consent of Elephant Brick Co Pty Ltd.

 

29. NO SET-OFF:

No Set-off or counterclaim will be made or applied by the Customer until payment in full of all bona fide invoices raised by Elephant Brick Co Pty Ltd (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full.

 

30. TRUSTS:

The Customer agrees that these Terms binds it not only in its own capacity but also as the Trustee of every trust of which it is a trustee.

 

31. NO MERGER:

Termination of these Terms and/or dealings between the Customer and Elephant Brick Co Pty Ltd (“Cessation”) will not end those provisions of these Terms that are capable of surviving Cessation.

 

32. STOCK DISCRETION:

Elephant Brick Co Pty Ltd has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.

 

33. PARTIAL DELIVERY/FORWARD ORDERS:

If the Customer places forward orders or request partial or instalment delivery, the Customer agrees:

(a) to pay for so much of any order as is from time to time delivered by Elephant Brick Co Pty Ltd; and

(b) that no delay or failure to fulfil any part of any order will entitle the Customer to cancel or vary any order or delay or reduce any payment.

 

34. ACCEPTABLE VARIATION:

(a) The Customer will accept variation in quantities at plus or minus 5% and will pay pro-rata for the actual quantity delivered.

(b) Breakage of goods within the pallets during transport is common. Upto 10% damage during transport must be accepted by the Customer for standard size bricks (ca. 230mm x 68mm x 110mm, ca. 230mm x 75mm x 110mm, ca. 215mm x 65mm x 105mm) and brick tiles (ca. 215mm x 65mm x 22mm) and upto 15% for Roman style bricks (ca. 320mm x 50mm x 110mm) of Roman style brick tiles (ca. 320mm x 50mm x 20mm) which is outside of our control.

(c) The Customer will accept variation in colour and dimensions as this is a characteristic of the traditional methods of manufacturer of handmade products and the use of natural materials. Dimensional variation of up to +/- 5mm 1 sigma standard deviation as measured across 20 individual bricks or brick facings can be expected.

(d) The Customer will accept that bricks and brick facings with surface coatings will show colour variation, this is an inherent characteristic of surface coated bricks and brick facings and is not considered a defect of the bricks and brick facings.

(e) The Customer accepts that the bricks and brick facings may be chipped during transport or construction and that chipping is not considered a defect but is an inherent characteristic of handmade bricks and brick facings.

(f) The Customer indemnifies Elephant Brick Co Pty Ltd against any claim or loss arising from or related in any way to any contract or dealing between Elephant Brick Co Pty Ltd and the Customer or anything arising therefrom or arising as a result of or subsequent to any breach of these Terms.

 

36. INSOLVENCY:

(a) If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these Terms.

(b) An act of insolvency includes bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms.

 

37. EXPORTS:

Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) are expressly excluded unless otherwise stipulated in these Terms or on Elephant Brick Co Pty Ltd’ invoice for the goods.

 

38. QUOTATIONS:

The Customer agrees:

(a) quotations must be in writing;

(b) Elephant Brick Co Pty Ltd shall not be bound by any quotation if an order is placed outside the period of the quotation’s validity noted thereon and in the absence of such period being noted, 14 days from the date of the quotation;

(c) prior to receipt of any order Elephant Brick Co Pty Ltd may amend a quote;

(d) Elephant Brick Co Pty Ltd shall not be bound by any quote if:

(i) it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer and those circumstances have materially changed; or

(ii) the Customer is in breach of these Terms;

(e) to pay any reasonable charges Elephant Brick Co Pty Ltd claims for holding any goods referred to in any quote pending placement of an order.

 

39. CREDIT INFORMATION AND PRIVACY ACT 1988 (CTH):

(a) The Customer and the Agent irrevocably authorise Elephant Brick Co Pty Ltd, its servants and agents to make (subject to the requirements of the Privacy Act, the Credit Reporting Privacy Code and Elephant Brick Co Pty Ltd privacy policy) such enquiries as they deem necessary to investigate the credit worthiness of the Customer (and its directors if a company) and the Agent from time to time, including the making of enquiries with (without limitation) persons nominated as trade references, other entities which in Elephant Brick Co Pty Ltd opinion the Customer may have had dealings with, the bankers of the Customer (and its directors if a company), any credit provider or Credit Reporting Agency or Credit Reporting Bodies (“CRBs”) such as Veda Advantage and Creditor Watch and including personal credit and consumer credit information and Land Data/property inquiries and name searches (hereinafter called “Sources”).

(b) The Customer (and its directors if a company) and the Agent (subject to the requirements of the Privacy Act, the Credit Reporting Privacy Code and Elephant Brick Co Pty Ltd privacy policy) hereby authorise the Sources to disclose to Elephant Brick Co Pty Ltd such information concerning the Customer (and its directors if a company) and the Agent which is within their possession. The Customer (and its directors if a company) and the Agent agree that the information provided on this Credit Application concerning the Customer (and its directors if a company) and the Agent and any relevant trading information arising from any dealings between the Customer and Elephant Brick Co Pty Ltd may (subject to the requirements of the Privacy Act, the Credit Reporting Privacy Code and Elephant Brick Co Pty Ltd privacy policy) be disclosed to a Credit Reporting Agency or CRB subject to Elephant Brick Co Pty Ltd’ Privacy Policy and can be obtained by writing to the:

 

Credit Manager,

Elephant Brick Co Pty Ltd,

25 James Congdon Drive

Thebarton, S.A. 5021

 

Where Elephant Brick Co Pty Ltd collects personal information that Elephant Brick Co Pty Ltd is likely to disclose to a CRB please note:

(i) the CRB may include that information in reports provided to Elephant Brick Co Pty Ltd to assist it to assess the Customer’s creditworthiness;

(ii) if the Customer fails to meet payment obligations in relation to consumer credit or commits a serious credit infringement, Elephant Brick Co Pty Ltd may be entitled to disclose this to the CRB;

(iii) the Customer – if an individual- may access information from Elephant Brick Co Pty Ltd in accordance with Elephant Brick Co Pty Ltd privacy policy at www.Elephant Brick Co Pty Ltd.com.au; and

(iv) the Customer – if an individual – may access this information for the purpose of requesting Elephant Brick Co Pty Ltd to correct the information and make a complaint to Elephant Brick Co Pty Ltd; and

(v) other notifiable matters (as defined in the Credit Reporting Privacy Code) are posted on Elephant Brick Co Pty Ltd website at www.elephantbrickco.com.au.

(c) The Customer warrants to Elephant Brick Co Pty Ltd that it has (where it is a company) obtained the consent of its directors to Elephant Brick Co Pty Ltd carrying out the searches specified in subclause (a) and (b) above.

 

40. SILICA WARNING:

Always “wet” cut, saw, drill, chase etc. goods as dust from goods may contain silica and/or other material which is harmful to health. Avoid inhaling any dust to avoid the risk of respiratory impairment etc. Elephant Brick Co Pty Ltd will provide further information on request.

 

41. PRODUCTS AND SERVICES:

To the extent permissible at law (including under the Australian Consumer Law) and without purporting to limit Elephant Brick Co Pty Ltd’ obligations thereunder

(i) Bricks and brick facings are a natural product and variations in colour, texture and inherent quality occur;

(ii) Bricks and brick facings are susceptible to exposure to the elements; changes in colour, size and texture will occur over time;

(iii) Bricks and brick facings are susceptible to crushing, swelling, delamination and fungal growth etc., if not stored or used properly.

(iv) Bricks and brick facings are susceptible to damage and size variations which may be caused (inter alia) by relative humidity and/or moisture content;

(v) Due to variations in colour and texture of materials (including without limitation, natural materials) used in manufacture, to the extent permissible at law (including under the Australian Consumer Law), no warranty, condition or guarantee is given by Elephant Brick Co Pty Ltd that any goods and/or services will correspond (including without limitation, in glaze, colour, texture, appearance, blend or otherwise) with any sample, display or any previous goods and/services sold or displayed or any other batch of similarly described goods and/or services.

 

42. ALL DIVISIONS:

(a) The Customer agrees that these Terms will apply to all dealings between the Customer and Elephant Brick Co Pty Ltd and any part or member of the Elephant Brick Co Pty Ltd.

(b) While these Terms will cover all dealings the Customer will have with any member of the Elephant Brick Co Pty Ltd, any claim the Customer may have against any member of the Elephant Brick Co Pty Ltd will be limited to that member of the Elephant Brick Co Pty Ltd that supplied the goods and/or services to the Customer and the Customer agrees to limit any claim accordingly.

 

43. RECALLS:

In the event of a product recall (“Recall”), the Customer must give Elephant Brick Co Pty Ltd such assistance as Elephant Brick Co Pty Ltd reasonably requires in relation to that Recall.

 

44. PALLETS AND PACKAGING MATERIAL:

Disposal of pallets and other packaging material is the responsibility of the Customer.

 

45. THE ENVIRONMENTS:

The Customer acknowledges and agrees that goods can be adversely affected by the environment, pollution, rain, moisture, temperature extremes, frost, wind borne salt or abrasives which can cause discolouration, flaking, eat-away the glaze or finish and reduce expected operating life.

 

46. INDUSTRY LEVIES ETC:

The Customer must pay any industry or legally imposed levy which applies to any goods from time to time in addition to the purchase price.

 

47. EXCLUSION OF WARRANTY:

To the extent permissible at law (including under the Australian Consumer Law), Elephant Brick Co Pty Ltd is not bound by any warranty (and the Customer agrees not to make any claim against Elephant Brick Co Pty Ltd in relation to any warranty) in respect of goods or services unless all goods and services have been paid for in full without set-off or deduction of any kind.

 

48. DEFINITIONS:

In these Terms and Conditions of Sale:

“Elephant Brick Co Pty Ltd” means jointly and severally the entities listed on page 2 of the Credit Application and any new member admitted to the Elephant Brick Co Pty Ltd’ Group from time to time by Elephant Brick Co Pty Ltd (whether with notice or not to the Customer) and each of their subsidiaries, divisions, affiliates, associated and related entities and their successors and assigns; and

Customer refers to the legal entity entering into a sales agreement with Elephant Brick Co Pty.

“Goods or goods” refers to bricks and or brick tiles.

 

49. PERSONAL PROPERTY SECURITIES ACT 2009:

(a) The Customer acknowledges that these Terms create a security interest under the Personal Property Securities Act 2009 (“PPSA”) in favour of Elephant Brick Co Pty Ltd in all goods supplied by Elephant Brick Co Pty Ltd to the Customer (and all goods previously supplied by Elephant Brick Co Pty Ltd to the Customer), and for avoidance of doubt, the proceeds of sale of those goods.

(b) The Customer consents to Elephant Brick Co Pty Ltd effecting a registration on the PPSA register (in any manner Elephant Brick Co Pty Ltd considers appropriate) in relation to any security interest contemplated by these Terms (including but not limited to an interest under clause 3 in relation to retention of title) and further agrees:

(i) to do all things necessary and required by Elephant Brick Co Pty Ltd to make sure that the security interest is a perfected “purchase money security interest” under the PPSA; and

(ii) not to allow any third party to acquire a security interest in the goods.

(c) To the extent that the goods are for the Customer’s business use, the Customer agrees to the extent permitted under the PPSA, that the Customer has no right:

(i) to receive notice of removal of an accession under the PPSA;

(ii) under Chapter 4 of the PPSA; or

(iii) under the PPSA to receive a copy of any verification statement of financing change statement under the PPSA.

(d) Without in any way limiting clause 49(c), the Customer agrees that to the extent permitted under the PPSA, the Customer hereby waives its rights under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142 and 143 of the PPSA.

(e) Unless otherwise agreed to in writing by Elephant Brick Co Pty Ltd, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

(f) The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

(g) The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation to the goods without Elephant Brick Co Pty Ltd’ prior written consent.

(h) Without limiting any other provision of these Terms, if the Customer makes a payment to Elephant Brick Co Pty Ltd at any time whether in connection with the supply of goods or otherwise, Elephant Brick Co Pty Ltd may, at its absolute discretion, apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.

(i) Everything the Customer is required to do under this clause 49 is at the Customer’s expense. The Customer agrees to pay or reimburse Elephant Brick Co Pty Ltd’ costs and expenses in connection with anything Elephant Brick Co Pty Ltd does under this clause 49.

 

50. THE COMPETITION AND CONSUMER ACT 2010 (CTH) AND FAIR TRADING ACTS:

(a) Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

(b) If the Customer is a consumer for the purposes of the Australian Consumer Law, (ACL)nothing in these Terms limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.

 

51. LIMITATION OF LIABILITY:

(a) This clause 51 is subject to any contrary provisions of any applicable law (including without limitation the Australian Consumer Law, the operation of which cannot be excluded.

(b) Except as provided in subclause (c), Elephant Brick Co Pty Ltd’ liability for a breach of these terms, a condition, warranty or a guarantee of supply or in relation to defective goods and services is limited to (at Elephant Brick Co Pty Ltd’ election):

(i) in the case of goods Elephant Brick Co Pty Ltd supplies:

A. the replacement of the goods or the supply of equivalent goods;

B. the repair of the goods; or

C. the payment of the cost of replacing the goods or of acquiring equivalent goods;

(ii) in the case of services Elephant Brick Co Pty Ltd supplies, the supplying of the services again, and the Customer will limit any claim upon Elephant Brick Co Pty Ltd accordingly.

(c) If goods or services Elephant Brick Co Pty Ltd supplies are of a kind ordinarily acquired for personal, domestic or household use or consumption, and there is a “major” failure of the goods or services to meet any consumer guarantee under the Australian Consumer Law then the Customer may choose one of the following remedies:

(i) in the case of goods Elephant Brick Co Pty Ltd supplies:

A. ask for a refund;

B. return the goods and ask for an identical replacement, or one of similar value if reasonably available; or

C. keep the goods and ask for compensation for the drop in value caused by the problem; or

(ii) in the case of services Elephant Brick Co Pty Ltd supplies:

A. cancel the contract and pay a reasonable amount for the work done, or seek a refund; or

B. for money already paid, keep the contract and negotiate a reduced price for the drop in value of the service — this may mean asking for some of the money back the Customer has already paid.

 

52. BUILDING AND GENERAL

The rights, powers and remedies available to Elephant Brick Co Pty Ltd under these Terms are in addition to and are not in derogation of Elephant Brick Co Pty Ltd’ powers, rights and remedies existing at common law, or given by any law at any time in force (including but not limited to the Building and Construction Industry Security of Payment Act 2002 (Vic) and similar legislation in other states and territories of Australia).

 

AUSTRALIAN CONSUMER LAW WARRANTY

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.