1. DEFINITIONS
    • a. TBF means The Brick Fixer Pty Ltd ACN 670 687 153 ATF the S and J Ubels Family Trust.
    • b. Agreement means the Customer Application Form and these Terms and Conditions of Trade.
    • c. Customer means the customer named on a quotation, or if no customer is named, the person or entity to whom the Goods and/or Services are supplied.
    • d. Services means the specialised surface chemistry services provided by TBF, including the scientific application of chemical and water-based processes to brick, masonry and concrete surfaces, which may include, without limitation:
    • i. brick, masonry and concrete cleaning, including new build, remedial and heritage cleaning;
    • ii. removal of stains, efflorescence, contaminants and graffiti;
    • iii. colour tinting, colour matching, gloss adjustment and aesthetic blending of surfaces;
    • iv. patching, repair, re-pointing and restoration of brick, masonry and concrete surfaces;
    • v. application of waterproofing agents, sealers, hardeners and protective treatments;
    • vi. application of self-cleaning or surface-modifying treatments;
    • vii. investigative testing, sample patches, assessment and consultation in relation to surface condition, chemical compatibility or treatment suitability; and
    • viii. any ancillary or associated works undertaken as part of a surface chemistry process.
    • The Customer acknowledges that the Services inherently involve the use of water and reactive chemical products and may result in overspray, mist, run-off, migration, delayed reaction or interaction with existing substrates, coatings or materials.
    • e. Sensitive Surface means any surface, material or finish that may react adversely to water or chemical exposure, including but not limited to glass, glazing, render, micro-cement, powder-coated or hand-painted items, membranes, sealants, waterproofing agents, metals, landscaping, plants, treated concrete, or any surface that has been painted, sealed, coated or chemically treated.
    • f. Goods means any materials supplied or used by TBF in providing the Services.
    • g. Price means the price of the Goods and/or Services as agreed between TBF and the Customer and includes all out‑of‑pocket expenses incurred by TBF on the Customer’s behalf. The Price may be determined by:
    • h. reference to TBF’s current price list (available at https://www.thebrickfixer.com.au/) excluding GST;
    • i. a written quotation provided by TBF; or
    • j. any invoice rendered by TBF to the Customer.
    • k. Site means the location nominated by the Customer where the Goods and/or Services are to be performed by TBF.
    • l. GST means the Goods and Services Tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and GST Act means that legislation as amended.
  2. SCOPE OF SERVICES
    • TBF’s Services are limited to cleaning, tinting, waterproofing and associated treatments. The Services do not include rectification of underlying structural, aesthetic or construction defects in the bricks, mortar or any substrates. The Customer acknowledges that the cleaning process may expose such defects. Unless expressly agreed in writing, TBF is not responsible for remedying pre‑existing or underlying defects.
  3. ACCEPTANCE OF SERVICE STANDARD
    • a. Where TBF conducts a test patch or provides a written service specification, the Customer must inspect and approve that test patch or specification in writing before TBF commences the full Service.
    • b. The approved test patch or specification constitutes the agreed standard for the Service. The Customer acknowledges that minor variations in colour or appearance may occur due to the inherent variability of masonry and mortar.
    • c. Once TBF performs the Service substantially in accordance with the approved test patch or specification, the Customer must accept the Service and is not entitled to assert that the Service is defective or fails to meet any implied condition.
    • d. The Customer warrants that no further work will be carried out on the masonry between the test patch and completion of the Service without TBF’s written consent.
  4. ACCEPTANCE AND PRECEDENCE
    • a. Any instructions received by TBF from the Customer for the supply of Goods and/or Services, or the Customer’s acceptance of a quotation, constitute a binding contract and acceptance of these Terms and Conditions of Trade.
    • b. These Terms and Conditions take precedence over any terms and conditions contained in any document provided by the Customer unless TBF agrees in writing to vary them.
  5. PRIVACY ACT 1988 (CTH)
    • a. TBF collects personal information about the Customer (if a sole trader, individual trustee, or partnership of individuals) for the purposes set out in its Privacy Policy and Credit Reporting Policy. These policies are available at https://www.thebrickfixer.com.au/ or may be provided on request.
    • b. By instructing TBF to supply Goods and/or Services, the Customer consents to TBF collecting, using and disclosing the Customer’s personal information in accordance with those policies and Australia’s privacy laws.
  6. PRICE
    • a. The Price shall, at TBF’s sole discretion, be as listed on TBF’s website, stated on a quotation, or shown on any invoice provided by TBF to the Customer.
    • b. The Price is exclusive of GST unless otherwise stated. GST will be payable by the Customer in addition to the Price.
  7. PAYMENT
    • c. All invoices rendered by TBF are payable in full within seven (7) days from the date of the invoice or completion of the Services (whichever occurs later), unless otherwise agreed in writing.
    • d. Payment of any amount outstanding shall be deemed immediately due and payable if:
    • i. any amount is not paid by its due date;
    • ii. TBF reasonably believes the Customer will not pay any amount by its due date;
    • iii. the Customer is bankrupted or enters administration, liquidation or receivership;
    • iv. a court judgment remains unsatisfied for seven (7) days; or
    • v. there is any material adverse change in the Customer’s financial position.
    • e. Interest accrues on any overdue amount at 15 % per annum, calculated daily from the first day the amount becomes overdue until payment is received.
    • f. All payments by the Customer must be made without set‑off or counterclaim and free of any withholding or deduction, unless prohibited by law.
    • g. The Customer shall pay on a full indemnity basis all expenses, disbursements and legal costs incurred by TBF in connection with the enforcement or preservation of its rights under this Agreement. Collection costs may be calculated on a commission basis of up to 20 % of the overdue debt and are payable as liquidated damages.
    • h. A $450.00 administration fee applies to each invoice not paid by its due date.
    • i. Receipt of a cheque, bill of exchange or other negotiable instrument shall not constitute payment until funds are cleared.
    • j. Without prejudice to any other rights, TBF may suspend or terminate the supply of Goods and/or Services if the Customer breaches any obligation (including payment obligations). TBF will not be liable for any loss incurred by the Customer because TBF exercises its rights under this clause.
    • k. TBF reserves the right to request progress payments at any time during the supply of Goods and/or Services.
    • l. The Customer agrees to pay for any additional Goods, Services or variations provided by TBF after completion of the initial Services.
    • m. Additional charges: In addition to the Price, the Customer acknowledges and agrees that the following charges may apply when relevant:
    • i. Waiting time: $150 per person per hour for time spent by TBF’s personnel on site waiting for access or instructions.
    • ii. Travel time: $60 per person per hour for travel time if such charge is specified in a quotation.
    • iii. Mileage: $0.88 per kilometre per vehicle for travel outside of the Metropolitan Melbourne area or where travel to or from the Site exceeds 50 km or one hour.
    • iv. Accommodation and air travel: Accommodation and air travel expenses (if required) are charged at 15% of the relevant cost plus GST.
    • n. Administrative charge for disputed collections: If TBF is required to expend time administering or recovering a disputed payment, the Customer will pay TBF for that time at TBF’s prevailing day rate for the relevant service. This amount is in addition to any collection costs payable under clause 7(g).
    • o. Security of Payment Act: The Customer acknowledges that each invoice rendered by TBF constitutes a payment claim under the Building and Construction Industry Security of Payment Act 2002 (Vic). TBF may, at its discretion, exercise its rights under that Act to recover payment.
  8. QUOTATION
    • a. A quotation provided by TBF shall, unless otherwise agreed, remain valid for 30 days from the date of issue.
    • b. TBF is not bound by any order given pursuant to a quotation unless accepted in writing.
    • c. TBF may alter a quotation to reflect circumstances beyond its control, including increases in supplier prices.
    • d. Goods and/or Services required in addition to those specified in a quotation will be charged to the Customer.
    • e. Quotations are based on site plans provided to and approved by TBF.
    • f. Once authority to commence the Services has been given, provision of the Services will continue until completion. An initial quotation does not include the cost of any variations.
  9. 9. SITE DAMAGE, CUSTOMER’S OBLIGATIONS AND PRE‑EXISTING DEFECTS
    • a. Turn Away / Aborted Attendance: If TBF attends the Site at the agreed date and time and is unable to commence or complete the Services due to:
    • i. the Site not being ready;
    • ii. incomplete, defective or ongoing work by a third party;
    • iii. lack of access to the Site; or
    • iv. instructions, restrictions or interference by any third party on the Site, local attendance is deemed a Turn Away.
    • b. In the event of a Turn Away:
    • i. TBF may charge the Customer waiting time at the rate of $150 per person per hour for time spent on Site waiting for access or instructions;
    • ii. TBF may charge a turn‑away or abortive attendance fee (where applicable); and
    • iii. any rescheduled attendance or additional visit will be treated as a variation and charged at the Customer’s cost.
    • c. The Customer remains responsible for all costs incurred by TBF arising from a Turn Away, regardless of whether the cause is the Customer or any third party.
    • d. The Customer must ensure the Site is prepared and safe for TBF to perform the Services. The Customer is responsible for any additional work required to address unsafe or unsuitable site conditions.
    • e. The Customer agrees to pay for cleaning, rectifying and repairing any damage to the Site that exists prior to TBF providing the Services, including on any Site where TBF conducts testing.
    • f. The Customer agrees to pay for the costs of preventing and rectifying any collateral damage on the Site.
    • g. The Customer agrees to be solely responsible for any further studies, cleaning, fixing and/or treatments TBF recommends after performing investigative Services on the Site.
    • h. Pre‑existing defects: The Customer acknowledges that the Services may expose structural or aesthetic defects in the bricks, mortar or other elements that pre‑exist the provision of the Services. TBF is not responsible for any pre‑existing defect or for rectification of that defect unless expressly agreed in writing.
    • i. Third‑party interference: TBF’s liability and warranties do not extend to damage or deterioration resulting from work undertaken by third parties or from materials of inferior quality supplied by others, or from any alterations to the masonry after TBF has completed the Services. The Customer indemnifies TBF against any claim arising from such third‑party interference.
  10. RISK TO GOODS AND DELIVERY
    • a. Risk in the Goods passes to the Customer upon delivery of the Goods to the Customer or to the Site.
    • b. Unless TBF expressly guarantees in writing a liquidated damages clause for late delivery, TBF is not liable for any loss arising from failure to deliver on or before a quoted delivery date.
  11. TITLE AND PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
    • a. Security agreement: The Customer acknowledges that this Agreement constitutes a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA).
    • b. Grant of security interest: As security for the payment of all amounts owing to TBF under this Agreement (whether present or future, actual or contingent), the Customer grants TBF a security interest in its personal property to the extent permitted by law.
    • c. Perfection and priority: The Customer must do all things reasonably required by TBF to ensure that the security interest granted under this clause is enforceable, perfected and maintained with the priority required by TBF, including executing documents and providing information requested by TBF.
    • d. Waiver of notices: To the maximum extent permitted by law, the Customer waives its rights to receive any notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA.
    • e. No limitation on recovery: Nothing in this clause limits TBF’s right to recover unpaid amounts by any other lawful means, including commencing legal proceedings.
  12. LIABILITY AND STATUTORY GUARANTEES
    • a. To the extent permitted by law, all conditions, warranties and undertakings not expressly set out in this Agreement are excluded.
    • b. Non‑excludable rights: Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Competition and Consumer Act 2010 (Cth) or any other applicable law that cannot lawfully be excluded, restricted or modified.
    • c. Where the Goods or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, TBF’s liability for failure to comply with a consumer guarantee is limited, at TBF’s option, to:
    • d. re‑supplying the Goods or Services; or
    • e. paying the cost of having the Goods or Services re‑supplied.
    • f. Subject to the Customer’s rights under Schedule 2 of the Competition and Consumer Act 2010, TBF is not liable for:
    • g. any loss or damage of any kind, including consequential loss, suffered by the Customer or any other person and arising from the Goods or Services, whether in contract, tort (including negligence) or otherwise, and whether the loss arises directly or indirectly from the Goods or Services; or
    • h. any claim or loss brought by any person in connection with any act, omission or error by TBF, its agents or employees in connection with the Goods or Services, and the Customer indemnifies TBF against all such claims and losses.
    • i. TBF shall not be liable for any loss or damage of any kind to the Site or any surrounding or neighbouring property, including internal and external flooring, paving, paths, render, coatings, windows, glazing, metals, plants or personal property, arising from chemical interaction, overspray, mist, run-off, pooling, migration or delayed reaction associated with the materials and treatments used by TBF, except to the extent caused by TBF’s failure to exercise due care and skill as required by the ACL.
    • j. For the avoidance of doubt, where TBF is required or agrees to rectify, re-supply or repeat any Services (including under a warranty or consumer guarantee), TBF’s obligation is limited to the re-supply of the relevant Services only. All ancillary, access or third-party costs, including scaffolding, boom lifts, traffic control, permits, site access arrangements or similar costs, are the responsibility of the Customer.
  13. LIMITATION OF LIABILITY AND INDEMNITY
    • a. Subject to clause 12, TBF’s total cumulative liability to the Customer in connection with the supply of Goods or Services (whether in contract, tort including negligence, equity, statute or otherwise) is limited to an amount equal to the Price paid by the Customer for the Goods and/or Services giving rise to the liability.
    • b. The Customer indemnifies TBF against all claims, losses and costs arising from:
    • c. the Customer’s breach of this Agreement;
    • d. pre‑existing defects in the Site; or
    • e. acts or omissions of third parties or the Customer’s failure to follow TBF’s instructions.
  14. WARRANTY
    • Manufacturer’s warranty: Manufacturer’s warranties apply to the Goods where applicable. The Customer’s rights under any manufacturer’s warranty operate in addition to rights under the ACL and this Agreement.
    • Tinting Warranty
    • a. TBF guarantees that masonry tinting performed on the specified project will remain colourfast and durable under normal weathering conditions for a period of up to thirty (30) years.
    • b. If masonry tinted by TBF fails to maintain its appearance in relation to adjacent untinted units, TBF will provide the materials and labour to restore the stain to the failed units.
    • c. This warranty is limited to corrective action. Any special access equipment required to perform the repair is at the Customer’s cost. The warranty will be void if:
    • i. the masonry units have been previously treated with silicone, graffiti preventatives, waterproofing agents or any other chemical (including accelerators added to the mortar during mixing);
    • ii. the substrate on which the tint is applied fails of its own accord, has been exposed to excessive hydrochloric acid, has an acidic pH or has been treated with hydrofluoric acid‑based products such as NoSkum, Active Chemicals Fluorotech or Walltech products;
    • iii. the masonry tinting is subject to abuse or improper care (including picking, improper cleaning or water leaking through window frames).
    • This warranty is not transferable.
    • Brick Cleaning Warranty
    • a. TBF warrants that the Service will meet the quality achieved in the site test patches or written agreement approved by the Customer.
    • b. Site tests may involve assessing water content of bricks and mortar, salt analysis, stain removal or hardness of mortar. TBF may recommend a Barratec beneficiation wash (also marketed as Barracuda 10K) or other treatments before performing the Service. If the Customer does not undertake the recommended treatments, this warranty is void.
    • c. This warranty is not transferable.
    • Warranty Conditions
    • a. The warranties in clause 14 are conditional upon the Customer:
    • b. following all recommendations by TBF, including undertaking any preparatory treatments recommended by TBF;
    • c. ensuring no additional cleaning, building or staining work is carried out on the masonry by third parties without TBF’s written consent; and
    • d. complying with the acceptance mechanism in clause 3.
    • e. The warranties do not cover damage or deterioration caused by pre‑existing defects, underlying structural issues, defective or porous mortar, or interference by third parties.
  15. VARIATIONS
    • a. Either party may request a variation to the Services. All variations must be agreed in writing and signed by both parties.
  16. CANCELLATION
    • a. The Customer must provide at least twelve (12) hours’ written notice to cancel any Services scheduled. If TBF accepts a cancellation with less than twelve hours’ notice, TBF is entitled to charge $250.00 per labourer engaged for the scheduled Service.
    • b. If TBF accepts the cancellation of Services that are part‑performed, TBF may charge for work performed up to the date of cancellation.
  17. CHARGE
    • a. The Customer charges in favour of TBF all of its estate and interest in any land (freehold or leasehold) now or subsequently owned with payment of all monies owed to TBF. The Customer consents to TBF lodging a caveat noting TBF’s interest.
  18. JURISDICTION
    • a. This Agreement and all matters concerning the relationship between TBF and the Customer are governed by the law of Victoria, Australia. The parties submit to the non‑exclusive jurisdiction of the courts of Victoria.
  19. ASSIGNMENT
    • a. The Customer may not assign its rights or obligations under this Agreement without TBF’s prior written consent.
    • b. TBF may assign its rights and obligations under this Agreement without the Customer’s consent.
  20. MISCELLANEOUS
    • a. Any property of the Customer in the possession, custody or control of TBF is at the Customer’s risk. TBF is not liable for any loss or damage to or by that property.
    • b. If any fact or circumstance beyond the reasonable control of TBF (including delay in delivery) prevents TBF from performing any obligation under this Agreement, TBF is relieved of that obligation to the extent and for the period that it cannot perform and is not liable to the Customer for such inability.
    • c. TBF may perform any of its obligations through subcontractors.
    • d. Failure by TBF to enforce any term or condition does not constitute a waiver of its rights.
    • e. If any provision of this Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect.
    • f. Any variation of this Agreement must be in writing and signed by TBF.
    • g. The Customer must notify TBF in writing of any change of ownership of the Customer or its business (or of directors, if a company) within seven (7) days of the change.
    • h. Entire agreement and scope: This Agreement constitutes the entire agreement between the parties in relation to its subject matter. The Customer acknowledges that the Services are limited to cleaning, tinting and associated treatments, and that TBF has not given any representation or warranty about the underlying condition or suitability of the masonry other than as expressly set out in this Agreement.
  21. NOTIFICATION OF DEFECTS, MITIGATION AND CLAIM LIMITATION
    • a. Notice of defect and inspection: The Customer must notify TBF in writing of any alleged defect or failure in the Goods or Services within seven (7) days of becoming aware of the defect and, in any event, within thirty (30) days after completion of the Services. The Customer must provide TBF with a reasonable opportunity to inspect the alleged defect and, if required, to rectify it.
    • b. Failure to notify or permit inspection: If the Customer fails to provide the notice or opportunity required above, the Customer is strictly precluded from claiming or recovering any consequential or indirect loss arising from the alleged defect or from any rectification works performed by a third party.
    • c. Refusal of access or third-party rectification: If the Customer refuses or delays access, or engages a third party to perform rectification works without TBF’s prior written consent, TBF’s liability and warranty obligations are reduced or extinguished to the maximum extent permitted by law.
    • d. Duty to mitigate: The Customer must take all reasonable steps to mitigate any loss or damage arising from any breach of this Agreement. Nothing in this Agreement limits the Customer’s duty to mitigate its loss.
    • e. Time limit for claims: Subject to any non-excludable statutory rights under the ACL, any claim for breach of warranty or defect must be made within thirty (30) days after completion of the Services. Claims made outside this period may be rejected by TBF in its absolute discretion.
  22. INSURANCE AND AUTHORITY
    • a. Authority to engage: The Customer warrants that it has full authority from the owner of the Site (and from any principal contractor or other relevant person) to engage TBF to perform the Services. The Customer must provide evidence of such authority on request.
    • b. Insurance: The Customer must maintain adequate public liability and property insurance in respect of the Site and the Services for the duration of the Agreement. Such insurance must be with a reputable insurer and for an amount sufficient to cover the Customer’s potential liabilities to TBF and any third party. The Customer must provide TBF with a certificate of currency upon request.
  23. DISPUTE RESOLUTION
    • a. Good faith negotiations: If a dispute arises under this Agreement (other than a claim for payment of an outstanding invoice), the parties must first use their best endeavours to resolve the dispute by good‑faith negotiations between senior representatives of each party.
    • b. Mediation: If the dispute is not resolved within fourteen (14) days after a party gives written notice of the dispute, either party may refer the dispute to mediation administered by the Law Institute of Victoria or such other mediator agreed between the parties. The parties will share the costs of the mediation equally.
    • c. Clause 23(a) and (b) does not restrict TBF whatsoever from commencing proceedings for a claim for payment of outstanding invoices.