# BBS Terms and Conditions of Trade **Contact Information:** sales@brockbuildingsystems.com.au +03 6228 1411 **Address:** #19 Mornington Road, Mornington, Tasmania, Australia 7018 #46 Mornington Road, Mornington, Tasmania, Australia 701 To the fullest extent legally possible, all contracts, dealings, and/or arrangements made between Brock Plaster Distributors Pty Ltd, as trustee for Steele Family Trust No. 3 trading as Brock Building Systems, ABN 80 879 204 533, and each of its subsidiaries, affiliates, associated companies, and related entities (“Brock Building Systems”), and any customer ("Customer") relating to any products, services, or transactions are subject to the following Terms and Conditions of Trade ("these Terms") unless otherwise agreed in writing. ## a. Payments and Interest: 1. **Payment** is to be by cash, cheque, or electronic funds transfer without set-off or deduction of any kind within 30 days from the end of the month of the invoice date. 2. Brock Building Systems 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. 3. Brock Building Systems is entitled to set off or deduct any amount payable by Brock Building Systems to the Customer. 4. A payment dishonour fee may be charged by Brock Building Systems if a customer’s payment is dishonoured in any way. 5. Interest is payable on overdue accounts at a rate of 1% per calendar month. ## b. Property: 1. Property in goods will not pass until payment in full of all monies owed to Brock Building Systems on any basis ("Full Payment"). 2. Brock Building Systems 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 Brock Building Systems 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. 3. Immediately upon delivery, the Customer accepts liability for the goods. 4. A document signed by an officer of Brock Building Systems identifying goods and certifying that monies are owing to Brock Building Systems will be conclusive evidence of Brock Building Systems's title thereto. 5. Upon sale or disposition of goods prior to Full Payment, the Customer agrees to hold all proceeds in trust for Brock Building Systems in a separate bank account, agrees not to mix proceeds with any other monies, and will immediately account to Brock Building Systems, even if Brock Building Systems may have granted any credit facility and/or time to pay. Failure by the Customer to comply with this subclause does not render invalid the trust to be established under this subclause. 6. Until Full Payment, the Customer agrees: 1. to keep all goods as fiduciary for Brock Building Systems and to store them in a manner which shows Brock Building Systems as owner and will keep them safe and free from deterioration, destruction, loss, or harm. 2. only to sell goods in the usual course of business; and 3. that sale on terms at cost or less than cost will not be “in the usual course”. 7. Clause 2 is not intended to create a charge and must be read down to the extent necessary to avoid being a charge. 8. If the Customer uses or incorporates any goods in any production process or manufacture or combines them with anything to create a finished or combined new thing for disposition, then upon such disposition prior to Full Payment, the Customer agrees to hold such part of the proceeds thereof (and until payment is received by the Customer that part of any applicable book debt) as equals the costs of the goods used and/or incorporated therein (at the prices invoiced by Brock Building Systems to the Customer) in trust for Brock Building Systems until Full Payment. ## c. Limitation of Liability: Subject to clause 38 and if the Customer is not a Consumer (as defined under the Australian Consumer Law) then: 1. The Customer must limit any claim upon Brock Building Systems relating to goods to the cost of replacement of goods or the supply of equivalent goods and relating to services to the cost of having services supplied again. 2. Brock Building Systems 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. 3. Brock Building Systems will not be liable in any way for any contingent, consequential, direct, indirect, special, or punitive damage arising whether due to Brock Building Systems's negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly. 4. 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 Brock Building Systems is made or given. 5. Brock Building Systems will not be liable for any claim relating to or arising from any alleged fault or defect whether caused or contributed to by Brock Building Systems, the Customer, any third party, or otherwise. ## d. Returns: Subject to clause 38 and if the Customer is not a Consumer (as defined under the Australian Consumer Law) then: 1. If Brock Building Systems elects to take back a product, it must be in as new and saleable condition and upon terms agreed and a re-stocking fee of not less than 20% of invoice value will apply. 2. Custom-made or custom-processed goods or goods acquired by Brock Building Systems specifically for the Customer will not be returnable. 3. Any goods which are accepted by Brock Building Systems 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. ## e. Placement of Orders: 1. If any dispute arises concerning any order (including any measurement, quality, quantity, identity, authority, or any telephone, facsimile, e-mail, or computer-generated order), the internal records of Brock Building Systems will be conclusive evidence of what was ordered. 2. 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 its debts as and when they fall due. 3. Failure to pay in accordance with these Terms will be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 5(b) and that the representations were unconscionable, misleading, and deceptive. 4. When any order is placed, the Customer must inform Brock Building Systems of any material facts which would or might reasonably affect the commercial decision by Brock Building Systems 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 Brock Building Systems and to be unconscionable, misleading, and deceptive. ## f. Delivery: 1. Brock Building Systems 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. 2. Brock Building Systems reserves the right to charge for any delivery. 3. The Customer will be deemed to have accepted delivery and liability for the goods immediately when Brock Building Systems 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. 4. A document (including without limitation a consignment notes) purporting to be signed by an officer of Brock Building Systems confirming delivery will be conclusive evidence of delivery, as will any signed delivery docket. 5. Brock Building Systems will not be liable for delay, failure, or inability to deliver any goods. 6. Once the Customer has been notified that goods are ready for collection, the Customer agrees to pay all costs of holding or handling goods. 7. The Customer shall provide reasonable and proper access to any site specified for delivery and Council-approved crossing facilities. 8. The Customer agrees to pay all costs and expenses arising from frustrated or delayed deliveries. 9. The Customer shall be responsible for any damage costs (including cleanup costs), or fines caused in the course of delivery whether to footpaths or to any other property. 10. Brock Building Systems may unilaterally delay, cancel, or suspend any delivery for any period or cancel any agreement for sale without any liability to any party. ## g. Variation: Variation or cancellation of any order, dealing, or arrangement must be agreed in writing by Brock Building Systems. ## h. Exclusions: 1. No dealing with the Customer will be or be deemed to be a sale by sample or description. 2. If Brock Building Systems publishes material about its goods and prices, any part which is incompatible with these Terms is expressly excluded. 3. The Customer will rely on its own knowledge and expertise in choosing any product for any purpose. 4. Any advice or assistance given for or on behalf of Brock Building Systems 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. ## i. On-Sale: The Customer agrees that upon on-sale of any goods to inform any third party involved of these Terms and in particular the provisions of clause 2 and especially clause 2(g). ## j. Severability: Any part of these Terms can be severed without affecting any other part. ## k. Purchase Price: 1. All sales are made by Brock Building Systems at its ruling price at the time of delivery. 2. All Government imposts and any GST (“Imposts”) will be to the Customer’s account. 3. Brock Building Systems's price lists exclude Imposts unless expressly noted thereon. ## l. Default: 1. Default or breach by the Customer of these Terms or in any dealings with Brock Building Systems will entitle Brock Building Systems 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. 2. The Customer agrees not to commence or continue or permit to be commenced or continued any action against Brock Building Systems whilst the Customer is in default under any part of these Terms. 3. If the Customer on-sells any product, the Customer agrees to pay to a stakeholder nominated by Brock Building Systems the cost price incurred or payable by Brock Building Systems for the acquisition of the product for supply to the Customer (estimated at 75% of the amount invoiced to the Customer by Brock Building Systems) before the Customer is entitled to take any step in any proceedings commenced by Brock Building Systems for payment for that product. The Customer agrees that this clause may be pleaded as a bar to any action by the Customer until payment to the stakeholder has been made. The stakeholder nominated is authorised to invest the moneys at 30-day call with any major banking institution in Australia. The money so held is to be applied in accordance with any appropriate court determination or agreement between the parties resolving the proceedings. ## m. Products and Services: Subject to clause 38 and to the maximum extent permitted by law: 1. Brock Building Systems disclaims any responsibility or liability whatsoever relating to suitability for any particular purpose or process. 2. 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. 3. 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 Brock Building Systems' recommendations and directions as well as with good commercial practice. 4. Brock Building Systems may update, modify, make substitutions, 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. The Customer agrees to accept current goods in substitution for any goods ordered, provided they are not materially different. 5. Brock Building Systems disclaims any responsibility or liability relating to any goods: 1. 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 2. utilised, stored, handled, or used incorrectly or inappropriately. ## n. Other Terms and Conditions and Notice: 1. Terms and/or conditions sought to be imposed by the Customer upon Brock Building Systems will not apply unless agreed in writing by Brock Building Systems. 2. The Customer will be deemed to have notice of any change to these Terms immediately upon Brock Building Systems adopting them whether or not the Customer has "actual" notice. 3. The Customer shall be bound by any terms and conditions of trade adopted by Brock Building Systems immediately they are so adopted notwithstanding any other purported pre-existing or other terms and conditions. ## o. Recovery Costs: The Customer will pay (on a full indemnity basis) all costs and expenses of Brock Building Systems, 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 Brock Building Systems. ## p. Attornment: To give effect to its obligations arising under these Terms (and especially Clause 21), the Customer hereby irrevocably appoints any solicitor for Brock Building Systems from time to time as its attorney. ## q. Customer Restructure: 1. The Customer will notify Brock Building Systems 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. 2. The Customer agrees it will: 1. cause any new entity created by virtue of a Restructure ("New Entity") to be bound by these Terms; and 2. continue to be bound by these Terms despite a Restructure and will indemnify Brock Building Systems for any loss or damage it suffers as a result of a breach of these Terms by the New Entity. ## r. Jurisdiction: All contracts made with Brock Building Systems will be deemed to be made in the State/Territory in which the goods and/or services were supplied by Brock Building Systems and the Customer and Brock Building Systems submit to the jurisdiction of the appropriate Courts in or nearest the capital city of that State/Territory. In the event of any dispute as to the correct jurisdiction (or if the goods and/or services have been supplied to the Customer in more than one State/Territory), the determination (at any time) by Brock Building Systems of the jurisdiction will be binding on the Customer. ## s. Credit Limit: Brock Building Systems 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. ## t. Waiver: If Brock Building Systems 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. ## u. Security for Payment: The Customer agrees subject to clause 34 that: 1. despite anything to the contrary contained herein or any other rights which Brock Building Systems may have howsoever, where the Customer is the owner of 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 Brock Building Systems's written request to mortgage and/or charge all of their joint and/or several interest in the Asset to Brock Building Systems to secure all amounts and other monetary obligations payable by the Customer to Brock Building Systems; 2. it grants a lien to Brock Building Systems over any of its property in the possession or control of Brock Building Systems until Full Payment; 3. it will execute any documents and do all things requested by Brock Building Systems to register a mortgage (or such other security Brock Building Systems requires) over any current or later acquired real property the Customer has an interest in; 4. it consents unconditionally to Brock Building Systems lodging a caveat noting Brock Building Systems's interest in any current or later acquired real property the Customer has an interest in; and 5. Brock Building Systems may (without limitation) exercise its rights under clause 16 to effect compliance with this clause 21. ## v. Force Majeure: Brock Building Systems will not be in default or breach of any dealing with the Customer as a result of Force Majeure (i.e.: anything beyond Brock Building Systems's reasonable control). ## w. Intellectual Property: 1. If Brock Building Systems utilises any design, patent, or intellectual property or follows any instruction provided by or on behalf of the Customer, the Customer indemnifies Brock Building Systems 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. 2. The Customer must not advertise, use, or represent any intellectual property of Brock Building Systems or of any goods themselves in any way without the prior written consent of Brock Building Systems. 3. If the Customer breaches or permits any breach of this clause, it acknowledges Brock Building Systems may suffer claims by third parties as a result (e.g.: by models whose images are reproduced without authority and/or by parties who are entitled to exploit any intellectual property) and clause 31 will apply. ## x. Specifications: 1. Any illustration, drawing, or specification supplied by Brock Building Systems (“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. 2. Any tangible or intellectual property rights in Specs remain the property of Brock Building Systems and may be recalled at any time. 3. Specs are to be treated at all times as confidential and not made use of without the prior written consent of Brock Building Systems. ## y. 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 Brock Building Systems (whether current or overdue), and this clause may be pleaded as a bar to any action taken prior to such payment in full. ## z. Trusts: The Customer agrees that these Terms bind it not only in its own capacity but also as the Trustee of every trust of which it is a trustee. ## aa. No Merger: Termination of these Terms and/or dealings between the Customer and Brock Building Systems ("Cessation") will not end those provisions of these Terms that are capable of surviving Cessation. ## bb. Stock Discretion: Brock Building Systems has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance. ## cc. Partial Delivery/Forward Orders: If the Customer places forward orders or requests partial or instalment delivery, the Customer agrees: 1. to pay for so much of any order as is from time to time delivered by Brock Building Systems; and 2. 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. ## dd. Acceptable Variation: The Customer will accept variation in quantities at plus or minus 5% and will pay pro-rata for the actual quantity delivered. ## ee. Indemnity: To the maximum extent permitted by law, the Customer indemnifies Brock Building Systems against any claim or loss arising from or related in any way to any contract or dealing between Brock Building Systems and the Customer or anything arising therefrom or arising as a result of or subsequent to any breach of these Terms. ## ff. Insolvency: 1. If the Customer commits or is involved in any act of insolvency, it will be deemed in default under these Terms. 2. An act of insolvency includes bankruptcy, liquidation, receivership, administration, or the like, and failure to pay in accordance with these Terms. ## gg. Personal Property Securities Act 2009: 1. Where the Personal Property Securities Act 2009 ("PPSA") is in force, the Customer acknowledges that these Terms create a security interest under the PPSA in favour of Brock Building Systems in all goods supplied by Brock Building Systems to the Customer (and all goods previously supplied by Brock Building Systems to the Customer) and for avoidance of doubt the proceeds of sale of those goods. 2. The Customer consents to Brock Building Systems effecting a registration on the PPSA register (in any manner Brock Building Systems considers appropriate) in relation to any security interest contemplated by these Terms (including but not limited to an interest under clause 2 in relation to retention of title) and further agrees: 1. to do all things necessary and required by Brock Building Systems to make sure that the security interest is a perfected "purchase money security interest" under the PPSA; and 2. not to allow any third party to acquire a security interest in the goods. 3. 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: 1. to receive notice of removal of an accession under the PPSA; 2. under Chapter 4 of the PPSA; or 3. under the PPSA to receive a copy of any verification statement of financing change statement under the PPSA. 4. Without in any way limiting clause 33(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. 5. Unless otherwise agreed to in writing by Brock Building Systems, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA. 6. 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. 7. The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation to the goods without Brock Building Systems's prior written consent. 8. Without limiting any other provision of these Terms, if the Customer makes a payment to Brock Building Systems at any time whether in connection with the supply of goods or otherwise, Brock Building Systems 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. 9. Everything the Customer is required to do under this clause 33 is at the Customer's expense. The Customer agrees to pay or reimburse Brock Building Systems's costs and expenses in connection with anything Brock Building Systems does under this clause 33. ## h. Delamination and Timber: 1. Delamination and Failure, etc.: The Customer acknowledges that laminated, veneered, plywood, and decorated products sold are not manufactured or processed by Brock Building Systems and accepts all risks associated with any delamination or failure. 2. Timber: The Customer acknowledges that Brock Building Systems's timber goods have (inter alia) the following characteristics: 1. it is a natural product and variations in colour, texture, and inherent quality occur; 2. It is susceptible to changes in quality, structural strength, appearance, finish, and/or colour due to mistreatment, poor storage, poor handling, inadequate, uninformed, and/or inappropriate preparation, treatments, installation, or use and by exposure to the elements, chemicals, sunlight, and foreign materials, etc.; 3. it is susceptible to bending, warping, crushing, swelling, delamination, and fungal growth, etc. if not stored or used properly; 4. it is susceptible to damage and size variations which may be caused (inter alia) by relative humidity and/or moisture content as well as those things set out at clause 34(b)(i) above; 5. it may contain or be treated with poisons and/or potentially toxic chemicals (formaldehyde, preservatives, adhesives, etc.) and should be stored and worked upon in well-ventilated areas with proper exhaust systems and not burned; and 6. product-related dust and sawdust are inherently dangerous if inhaled and may be associated with nasal cancer. 3. Adverse Environments: The Customer acknowledges and agrees that goods can be adversely affected by severe environments, temperature extremes, frost, wind-borne salt, or abrasives which cause flaking, eat-away glaze, or finish, and reduce expected operating life, especially in seaside locations. 4. MSDS: The Customer agrees to ensure all parties under its control have read and understood all relevant MSDS and observe and comply with these and with all applicable Occupational Health and Safety laws and environmental laws relating to goods or their use or application. ## ii. Pallets: The Customer will return all pallets and any re-usable packaging provided with goods and indemnifies Brock Building Systems for the full replacement cost thereof if not returned to Brock Building Systems promptly and in good order. ## jj. Exclusion of Warranty: To the maximum extent permitted by law and subject to clause 38, Brock Building Systems is not bound by any warranty (and the Customer agrees not to make any claim against Brock Building Systems 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. ## kk. Warranty by Customer: Unless otherwise expressly notified to Brock Building Systems in writing, the Customer warrants that goods it acquires from Brock Building Systems are obtained for: 1. the purpose of resupply; or 2. the purpose of using them up or transforming them in the course of a process of production or manufacture; or 3. the purpose of using them up or transforming them in the course of repairing or treating other goods or fixtures on land. ## ll. Australian Consumer Law: 1. If the Customer is a Consumer under the Australian Consumer Law, nothing in these Terms is intended to remove the Customer’s rights under the Australian Consumer Law, including statutory guarantees that may apply to goods and services supplied by Brock Building Systems. If Brock Building Systems is entitled to limit the remedies available to the Customer for breach of such guarantees, it expressly limits its liability as set out in this clause 38 to the maximum extent permitted by law. 2. If the Customer is a Consumer (as defined under the Australian Consumer Law) and any of the goods supplied by Brock Building Systems are not goods of a kind ordinarily acquired for personal, domestic, or household use or consumption, the Customer agrees that Brock Building Systems’s liability for a failure to comply with a guarantee under the Australian Consumer Law in relation to those goods (other than under sections 51 (title), 52 (undisturbed possession), and 53 (undisclosed securities) of the Australian Consumer Law) is limited to, at the option of Brock Building Systems, one or more of the following: 1. the replacement of the goods or the supply of equivalent goods; 2. the repair of the goods; 3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or 4. the payment of the cost of having the goods repaired. 3. If the Customer is a Consumer (as defined under the Australian Consumer Law) and any of the services supplied by Brock Building Systems are not services of a kind ordinarily acquired for personal, domestic, or household use or consumption, Brock Building Systems’s liability for a failure to comply with a guarantee under the Australian Consumer Law in relation to those services is limited to, at the option of Brock Building Systems: 1. the supply of the services again; or 2. the payment of the cost of having the services supplied again. 4. If the Customer resupplies goods imported or manufactured by Brock Building Systems to a Consumer (as defined under the Australian Consumer Law), the Customer must limit its liability to the Consumer on terms similar to those set out in clause 38(b). If such goods are not goods of a kind ordinarily acquired for personal, domestic, or household use or consumption, the Customer acknowledges that Brock Building Systems’s liability to indemnify the Customer under s274 of the Australian Consumer Law in respect of such goods is expressly limited to a liability to pay the Customer an amount equal to the lowest of: 1. the cost of replacing the goods; 2. the cost of obtaining equivalent goods; or 3. the cost of having the goods repaired.