PART A – GENERAL
1 Application of Terms
1.1 These Terms apply to all orders accepted by Best Masonry Bricks and Pavers Pty Ltd ABN 90 255 253 191 (Best) for the supply of goods or services to a customer by Best. An order is accepted by Best when the customer receives an acceptance of the order from Best (which may be in the form of written confirmation, tax invoice or the provision of goods or services).
1.2 These Terms prevail over any other terms and conditions provided or referred to by the customer, unless expressly agreed by Best and the customer. These Terms, Best’s quote and/or acceptance of order and any delivery notes given by Best to the customer comprise the entire agreement between Best and the customer.
All prices are inclusive of delivery and mobilisation, taxes, costs and charges, but exclude GST (or any similar transaction tax) and additional delivery charges referred to in clause 15.3. Prices are subject to change without notice.
3.1 Payment, including all pre-payments and progress payments, must be made by the customer to Best at such times as required by Best in its quote and/or order acceptance. Payment must be made in full, as applicable: (a) prior to completion of services, (b) prior to delivery of goods to the customer, or (c) when goods are available for collection by the customer. If payment is made by cheque, payment will not be deemed to have been made until the cheque has been cleared by the bank on which it is drawn.
3.2 Best has the right to cease, delay and/or reschedule supply of goods and services if payments are not made on time by the customer.
3.3 The customer agrees to pay to Best on demand all costs and expenses, including legal costs on a solicitor/client basis, incurred by Best in the collection of any overdue amounts.
3.4 If requested by Best, the customer must, as a condition to Best’s acceptance of the customer’s order, provide such security for payment (such as a guarantee or insurance bond) as Best may reasonably require.
4.1 If any of the following events occur, all agreements as to the grant of credit by Best (if any) to the customer will automatically terminate (unless Best determines otherwise in its discretion), all amounts outstanding will be immediately due and payable by the customer (and Best may institute legal action for recovery of such amounts), Best may withhold supply or terminate in relation to undelivered goods or unperformed services, the customer’s right to possession of all goods supplied by Best will cease and Best will be entitled to recover possession of all goods supplied:
(a) the customer commits any act of bankruptcy, or compounds or makes any arrangements with its creditors, or executes a bill of sale over its goods or any of them, or if any execution or distress is levied on the goods of the customer;
(b) the customer, being a company, is wound up either compulsorily or voluntarily or a receiver of its assets is appointed; or
(c) the customer fails to pay all amounts due to Best in accordance with these Terms and the terms of the credit agreement, or the customer otherwise breaches the terms of the credit agreement.
4.2 The customer will indemnify and keep indemnified Best against all losses, claims, costs, demands and expenses howsoever arising which Best may sustain or incur during the course of or in any attempt to exercise its rights or should it be prevented for any reason from exercising its rights. If before or after goods are supplied to the customer by Best they or any of them become a constituent or component of another product, Best will have all legal and beneficial title and interest in such products as if these were goods supplied to the customer by Best.
4.3 If credit arrangements are in place, a credit limit will have been advised. Once the credit limit has been reached no further deliveries will be supplied until payment is made reducing the account balance. Best accepts no responsibility for delivery delays due to payment arrangements being breached.
5 Warranty of quality and limitation of liability
5.1 Nothing in these Terms attempts to exclude the operation of the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (ACL) and any exclusions of liability are subject to any overriding provisions or non-excludable consumer guarantees under the ACL.
5.2 The liability of Best in connection with these Terms is limited:
(a) in the case of goods which fail to comply with a guarantee imposed by the ACL (other than a guarantee under section 51, 52, or 53 of the ACL) to any one of the following (as determined by Best):
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services which fail to comply with a guarantee imposed by the ACL to any one of the following (as determined by Best):
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
5.3 Subject to clause 5.1 and to the extent permitted by law, the total liability of Best for loss or damage that the customer suffers as a result of any breach by Best (or its employees and contractors) of these Terms or as a result of any act or omission on the part of Best is limited to the lesser of the price paid to Best and the amount of loss or damage incurred.
5.4 Subject to clause 5.1 and to the extent permitted by law, Best will not in any circumstances be liable for any consequential loss or damage that the customer suffers as a result of:
(a) any breach by Best of these Terms or as a result of any act or omission on the part of Best (or its employees and contractors) in the course of performing its obligations under these Terms; and
(b) the use or application of goods or services, the failure to properly maintain goods or services, or further processing of goods singly or in combination with other goods (whether supplied by Best or not), whether due to defects in goods or otherwise.
For the purposes of this clause 5.4, consequential loss or damage includes any loss of income, profit, production, contract, customers, business opportunity, loss of goodwill or reputation, loss of value of intellectual property, loss or damage resulting from the loss or damage to goods other than the goods supplied by Best.
5.5 Subject to clause 5.1 and save and except for any non–excludable condition warranty guarantee obligation or liability which is implied as a matter of law, Best will not be bound by or subject to any condition warranty guarantee obligation or liability whatsoever in respect of the condition, merchantability or fitness for purpose of goods supplied or the quality or workmanship of services performed by Best.
5.6 Any advice, recommendation, information, assistance, or service given by Best in relation to goods or services supplied by Best is given in good faith and believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability. Best does not accept any liability or responsibility for any loss suffered as a result of the customer’s reliance on such advice, recommendation, information, assistance or service.
6 Ability to perform
Best is not liable for failure to perform its obligations to the extent and for so long as its performance is prevented or delayed because of circumstances outside its reasonable control (including by reason of delay caused by a limited supply of stock or the availability of contractors to Best). Best reserves the right to deliver by instalments and failure to deliver any instalments shall not place any liability upon Best.
If an order for goods from Best specifies an installation component in the supply of goods, then the installation shall be treated as services.
8 Performance over time
Goods supplied or services performed by Best will undergo change over time depending on a range of factors outside of Best’s control, including (but not limited to):
8.1 naturally occurring changes in the goods or services;
8.2 naturally occurring changes in land or material that surrounds or supports the goods or services;
8.3 the effect of weather on the goods and services;
8.4 general use and wear and tear of the goods or services;
8.5 incorrect use or modification of the goods and services;
8.6 the quality and frequency of maintenance of goods or services;
8.7 the quality and frequency of maintenance of other goods or services that goods supplied by or services performed by Best rely on to function;
8.8 design flaws of other goods or services that goods supplied by or services performed by Best rely on to function.
Best takes no responsibility and is not liable for such changes over time as a result of these (or similar) factors.
9 Order cancellation or deferment
No requests to cancel or defer orders will be accepted by Best unless they are authorised in writing by the General Manager of Best or his/her nominee.
Best may vary these Terms from time to time by giving notice of such variation to the customer.
South Australian law applies to these Terms.
If any provision of these Terms is invalid and not enforceable in accordance with its terms, all provisions which are self–sustaining and capable of separate enforcement without regard to the invalid provisions will be and continue to be valid and enforceable in accordance with their terms.
13 Goods and Services Tax (GST)
If a party (the supplier) is required to pay GST in respect of a supply made under, or pursuant to, or by reason of a breach of, these Terms, the recipient of the supply must (in addition to any other payment for, or in connection with, the supply) on receipt of a valid tax invoice from the supplier for the supply, pay to the supplier an amount equal to such GST.
Best may suspend or terminate supply if the customer breaches these Terms.
PART B – GOODS
15.1 If the customer requires delivery of goods, Best will supply the goods to the delivery point and on the date agreed between the parties. Goods delivered to unattended sites shall be the customer’s responsibility and Best will not accept claims for shortages. Delivery dates are estimates only and Best is under no liability for any loss or damage arising if delivery is not made on an agreed date.
15.2 Where a customer elects to collect goods, the customer must collect the goods within 30 days of notice from Best of the goods being available. If goods are not collected within that time, unless agreed otherwise by Best, the customer is deemed to have requested delivery and Best will deliver the goods to the customer’s premises (and may leave them on nature strip or any other convenient area at the customer’s responsibility). Goods delivered to unattended sites are the customer’s responsibility and Best will not accept claims for shortages.
15.3 Customers collecting goods are solely responsible for ensuring loading of their vehicle complies with all laws, regulations and Best site requirements applicable to collection of goods (including all Government vehicle standards).
15.4 Variations of quantities from those shown on delivery notes (if any), must be reported in writing to Best within 24 hours of delivery otherwise no responsibility will be accepted by Best for such claims. The delivery records of Best are prima facie proof of delivery of the goods in good order and in the quantity and of the description ordered. Standard time designated for unloading is up to 30 minutes. Should unloading time exceed 30 minutes Best or its delivery sub-contractors reserve the right to charge additional delivery charges to the customer.
15.5 We will take as much care as possible when delivering product to site. However, we will not be responsible for any damage or injury to person, creature or property. Please ensure that our drivers have easy access.
16 Delivery Instructions
Any special delivery instruction will be assessed on site by our sub–contractor delivery driver. Best reserves the right to refuse any delivery instruction that is deemed to be dangerous and or unreasonable. In these cases goods will be left on nature strip or any other convenient area at the customer’s responsibility.
17.1 Title in the goods shall not pass to the customer until payment in full for the goods together with any interest or associated costs have been received by Best.
17.2 Until such time, the customer will hold all goods delivered as fiduciary and bailee for Best and will deliver them up to Best when required. If payment is overdue in whole or in part, Best may recover or recall the goods and may enter upon premises where they are reasonably thought to be stored and may repossess the goods (and the customer agrees to pay to Best on demand all costs and expenses, including legal costs on a solicitor/client basis, incurred by Best in connection with repossession).
17.3 The customer will at all times store any goods supplied by Best which have not been paid for in such a manner that they are clearly identifiable as being the property of Best. The customer must keep records of any of Best’s goods in the possession of the customer, including but not limited to serial numbers (if any). The customer must keep sufficient records or employ appropriate practices so as to enable Best to identify its property. If the customer disposes of goods the customer will hold the proceeds of sale on trust for Best to secure payment of any amounts owing to Best for the goods.
Risk (including the risk of unloading) will pass to the customer at the time the goods are delivered.
19.1 Any complaints regarding the quality of goods supplied must be made in writing to Best within seven (7) days of delivery of the goods. Goods subject to any claim must be preserved intact and available for inspection by Best.
19.2 Return of goods to Best for inspection purposes will be at customer’s expense, unless Best has otherwise agreed in writing. Goods being returned to Best must be in the same order and condition as that in which they were delivered. Subject to clause 5, if Best is satisfied that the goods are of legally inadequate quality, it may replace the goods or reimburse the customer to the extent of the amount originally charged.
Claims for faulty goods will not be considered:
20.1 unless made in writing within seven (7) days of date of delivery;
20.2 if claim is for less than 5% of goods sold;
20.3 once goods have been moved from original point of delivery; and
20.4 once goods have been laid.
No returns are accepted arising from over-ordering.
21 Variations in Best goods
Any sample goods or display is provided to indicate only the general nature of a product. Best provides no warranty or guarantee that the goods supplied shall correspond in colour, texture or blend with any previously supplied sample or viewed display.
Best makes every effort to minimize the occurrence of efflorescence in all its goods. Nevertheless, efflorescence may from time to time occur. Efflorescence must be taken for what it is – a natural occurrence in a product made from natural raw materials. Best will not accept any liability or claims should efflorescence appear in its goods.
The complete Best product range is manufactured using the finest natural raw materials available. These natural raw materials will from time to time exhibit shade variations. As a result all goods supplied should be blended by mixing from various pallets and it is the customer’s responsibility to ensure adequate blending occurs. Best will not accept liability for “patchy” areas. .
Any product that is honed or polished may be subject to a thickness reduction of up to 10mm.
21.5 Size Variation
The stated sizes are nominal sizes only. Size variation may from time to time occur as a result of the manufacturing process.
The customer acknowledges and agrees that where Best supplies concrete masonry products, the order will be grossed up to include a 5% wastage margin (the Concrete Masonry Industry standard).
23 Made to Order Goods
23.1 Non-standard goods will be manufactured to order. Due to concrete batch sizes there may be small over runs above the original ordered quantity. These extra quantities will be delivered, invoiced and must be paid for by the customer.
23.2 Should a customer request a refund of any deposit or pre-payment for a “made to order” good, they will need to make that request in writing to the General Manager of Best or his/her nominee. The customer’s eligibility to a refund will be at the sole discretion of Best.
24 Roadway/Footpath Soiling
Best’s delivery sub–contractors may refuse any delivery instruction that may cause soiling to roadways and/or footpaths. In these cases goods will be left in any convenient area at customer’s responsibility.
25 ‘Specials’ or ‘Seconds’
Where goods are supplied by Best as a ‘second’ or ‘special’, no warranty is given by Best to the extent permitted by law. Best shall not be liable in any way for the performance or use of, or any defect in, such goods.
Pallets remain at all times the property of Best Masonry Bricks and Pavers Pty Ltd and may be collected at our convenience. A pallet deposit charge may apply. Permission to enter private property to collect Best pallets is provided by customer. Pallets transported outside our metro delivery zone will be subject to a pallet deposit charge and the onus remains on the customer to return pallets to Best. No pallet deposit will be refunded in cash.
Any plan take–off or quantity estimate that Best provides will be undertaken on the basis that it is an estimate only. Best shall accept no responsibility or costs which may be incurred by the customer resulting from Best’s estimate being inaccurate.
28 Supplied goods
28.1 Best is not responsible for any damage to goods caused by factors outside of Best’s control (such as the elements (e.g. drought, wind, rain), ground movement, root damage, wear and tear, breakages or lack of maintenance).
28.2 On completion of supply, the customer is responsible for all care and maintenance of goods.
PART C – SERVICES
29 Service standards
Best will use reasonable endeavours to perform any services ordered by the customer in a competent, proper and workmanlike manner.
30 Customer warranties
Unless otherwise notified to Best prior to the commencement of Best commencing performance of services, the customer warrants that:
30.1 it will grant access (or procure that Best will have access) to the site to allow Best to perform the services;
30.2 it will provide Best with the information and assistance which is necessary to enable Best to perform the services, including prior to Best performing the services advising Best of the precise location of any hazards or underground services on the site;
30.3 the site is not contaminated and the customer has provided information to Best regarding and latent conditions at the site that could have an adverse impact on the performance of the services;
30.4 no special permits or authorisations are required in relation to the site and/or the customer has made Best aware of all relevant council or local government conditions or permissions;
30.5 it will provide any agreed and specified support services in order for Best to perform the services.
If unforeseeable work is required, it will be at the customer’s cost.
As soon as practical following Best’s completion of the services, the customer must assess Best’s work. If the customer is not satisfied with the work, the customer may issue a notice to this effect to Best within 5 days of completion. If the customer does not do so, the customer is deemed to have accepted completion of the services.