Client Service Terms & Conditions

Thank you for choosing Brick and Stone Construction. We are delighted to work with You and the terms and conditions below set out how we will work together.

These terms and conditions are designed to be read in conjunction with the Quote provided to you along with these terms and conditions (referred to collectively as the Agreement).

For the purpose of this document, You are the Client, and your details have been set out in the Quote, including the property address referred to in these terms and conditions as the Site.

Our details are Frank Alker t/as Brick and Stone Construction (abn: 54266987942) of 97 Pitt Road, North Curl Curl, New South Wales 2099 (Brick and Stone Construction).

Brick and Stone Construction specialise in providing retaining wall design, construction and repair services, as well as driveway and brick and stone front fence services, tailored to clients' needs and requirements (Services).

By accepting the Quote You are engaging Brick and Stone Construction to provide the Services and You accept and agree to each of these terms and conditions.

1.     The Engagement

(a)   You represent and warrant that You are the owner of the Site or You are authorised to engage Brick and Stone Construction to provide the Services on the Site. 

(b)   Brick and Stone Construction agrees to provide the Services for You, for the fees (Fees) set out in the Quote.

(c)   Brick and Stone Construction agrees to provide You with an estimate of time frames and dates for the Services after the payment of the non-refundable deposit of 10% of the Fees (Deposit) as set out in the Quote (Commencement Date). However, dates are an estimate only and final dates are to be discussed upon acceptance of the Quote.

(d)   Brick and Stone Construction will provide an estimated completion date for the Services (Completion Date).You agree that this completion date is an estimate only and may be impacted by factors such as weather, material suppliers, unforeseen excavation requirements and additional services requested by You.

(e)   You agree that any variation to the Services, including the scope of the project, must be agreed to in writing between the parties and that Brick and Stone Construction is entitled to charge additional fees for any variation to the Services.

2.     Fees and Invoicing

(a)   You agree to pay Brick and Stone Construction the Fees set out in the Quote, and any additional fees incurred in accordance with this Agreement.

(b)   You must pay the Deposit before a Commencement Date can be agreed. 

(c)   You must pay the remainder of the Fees set out in the Quote in accordance with the stages outlined in the Quote.

(d)   The Fees payable to Brick and Stone Construction to perform the Services may be adjusted from time to time as agreed by the parties in writing (including email) on account of changes in relation to the nature of the Services to be performed by Brick and Stone Construction.

(e)   In the event that any payment under this Agreement is not made in full on the due date, Brick and Stone Construction is entitled to charge You interest at the rate of 5% per annum, calculated daily.

(f)    You agree that if You default on any payments due and payable under this Agreement, any costs incurred by Brick and Stone Construction for steps taken to enforce payment terms will be recoverable and payable by You.

(g)   You acknowledge and agree that Brick and Stone Construction is not responsible for any third-party payment processing fees, bank fees, transaction fees, currency conversion fees and/or adverse currency fluctuations.

(h)   Unless otherwise stated, all amounts expressed and described on or in connection with this Agreement are listed in Australian Dollars (AUD) and are GST inclusive, being goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999, inclusive amounts.

3.     Delays

(a)   If, after you make payment of the Deposit, Brick and Stone Construction is unable to contact You/You become non-responsive, Brick and Stone Construction will attempt to contact you a maximum of 3 times over a period of 4 weeks from the time of the first attempt to make contact with you. If, after this time, you remain non-responsive/fail to reply to the attempts to contact You, the full Deposit will be forfeited. 

(b)   If after the Deposited has been forfeited as outlined in clause 3(a) above, You make contact with Brick and Stone Construction and wish to re-engage, a further deposit will need to be paid to progress the Services. 

4.     Your Responsibilities

You acknowledge and agree that the below responsibilities are required to ensure Brick and Stone Construction is able to provide the Services. You agree to indemnify Brick and Stone Construction from all costs, losses, damages, penalties or expenses resulting from a failure to carry out the responsibilities listed below in this clause 4. Any delays caused by Your failure to carry out these responsibilities may lead to additional costs as determined necessary by Brick and Stone Construction.

4.1  Permits & Permission

You are responsible for obtaining all necessary permits, permissions and authorisations for the Services before the Services commence.

4.2  Site Plans and Information

You are required to provide to Brick and Stone Construction any plans or specifications upon request by Brick and Stone Construction.

4.3  Site Access and Care of Materials

(a)   You agree that Brick and Stone Construction will have continuous, clear and uninterrupted access to the Site until the Services have been completed, and You will ensure that the Site is cleaned, safe and clear for the Services to be carried out.

(b)   If required, You will designate an area for Brick and Stone Construction to store, park and secure materials and tools and You will take all reasonable precautions to protect any such materials stored on Site from destruction, damage or theft.

(c)   You agree to give Brick and Stone Construction clear vehicle and generator access to the Site as required.

4.4     Electricity and Water

You agree to ensure that, at no extra cost to Brick and Stone Construction, Brick and Stone Construction will have free and convenient access to electricity (240V power outlets) and water at the Site for the term of the Agreement.

4.5      Risk and Retention of Title

(a)   The risk in any goods and materials will pass to You upon delivery to You or the Site. Notwithstanding the delivery or installation of the goods and materials, title in the goods and materials will remain with Brick and Stone Construction until You have paid all amounts owing pursuant to any invoice issued by Brick and Stone Construction, including all applicable GST and other taxes, levies and duties.

(b)   You acknowledge and agree that Brick and Stone Construction may repossess any Good and materials if payment is not made within the payment terms prescribed by Brick and Stone Construction. You grant an irrevocable license to Brick and Stone Construction or its agent to enter the tite to recover possession of any goods or equipment pursuant to this clause.

4.6  Interaction with Provider Workmen, Sub-Contractors and Employees

You acknowledge and agree that You will not issue instructions to, or interfere with, hinder or obstruct any of Brick and Stone Construction’s employees, contractors, or other person acting on behalf of Brick and Stone Construction.

4.7  Alarm Systems

You will ensure any back-to-base and smoke/fire alarms are isolated prior to the Commencement Date.

4.8  Cleaning and Rubbish Removal

(a)   Unless otherwise stated and agreed in the Quote, Brick and Stone Construction will leave the Site cleaned by removing any dirt and debris attributable to the Services. You agree to ensure the Site is clear and accessible to Brick and Stone Construction for the duration of the Services.

(b)   Brick and Stone Construction will discuss location and storage of waste prior to the commencement of Services. In general, waste generated by Brick and Stone Construction will be deposited in one area only on the Site, as designated by You, and will be removed at no cost to You unless otherwise stated and agreed in the Quote.

(c)   You agree to control and supervise Your domestic animals and pets while Brick and Stone Construction, including Brick and Stone Construction employees or agents, are working on the Site.

5.     Property Conditions

You acknowledge that the Fees are based on the survey provided by You, and assume the property is free from asbestos in the soil, contamination, latent defects or conditions that may affect the Services. If the survey or other documentation provided by You contains incorrect details or information, and if the Services need to be varied as a result, Brick and Stone Construction will charge You additional fees accordingly.

6.     Performance of the Services

(a)   Brick and Stone Construction will perform the Services during their normal working hours of 7.00am to 5.00pm unless a concrete pour delay has occurred and concreting must be completed after work hours.

(b)   If You require Brick and Stone Construction to perform the Services outside of their normal working hours, or access to the Site is restricted in a way that means Brick and Stone Construction cannot perform the Services during their normal working hours, Brick and Stone Construction reserves the right to charge additional fees.

(c)   If Brick and Stone Construction make recommendations for the use of specific materials within the Services, and if You make changes to the materials which are not within the recommendations made by Brick and Stone Construction, or if You permit either directly or indirectly for a third party to make such changes, Brick and Stone Construction will not be responsible or liable in any way for the outcome or subsequent consequences that may follow.

7.     Supplier Advice

(a)   Where applicable, if any goods/materials supplied are accompanied by the advice of the supplier in relation to lay/conditions for lay, Brick and Stone Construction will adhere to that advice.

(b)   If You instruct or direct Brick and Stone Constructions to adopt a process or method that is inconsistent with any advice provided by a supplier, You agree to indemnify Bick and Stone Construction from any and all loss that may arise as a result of Your directions.

8.     Revisions

(a)     If the Services include providing design documentation, 1 round of minor revisions by You is included. 

(b)     You agree to provide any requests for revisions to design documentation within 2 weeks from the date these are provided to you. All revision requests are to be included in a single email to Brick and Stone Construction.

(c)     Additional revisions (beyond the 1 round included) will incur an additional fee payable by You charged at the rate of between $150.00+GST per hour.

(d)     If You do not request revisions within the time outlined in clause 8(b) above, Brick and Stone Construction will proceed on the basis that the design documentation is agreed and accepted in the form provided to You.

9.     Termination of this Agreement

(a)   Either party may terminate this Agreement for any breach of these terms and conditions by providing 7 days written notice by email to the other party. 

(b)   Either party may terminate this Agreement for any reason whatsoever by providing 30 days written notice by email to the other party. 

(c)   If this Agreement is terminated, You will pay Brick and Stone Construction for the portion of the Services completed up to the date and time of termination, plus any expenses incurred, less the Deposit paid.

8.     Work Stoppages and Delays

(a)   If circumstances beyond the control of Brick and Stone Construction prevent or hinder its provision of the Services, Brick and Stone Construction is free from any obligation to provide the Services while those circumstances continue. Brick and Stone Construction may elect to terminate this Agreement as per clause 7 or keep the Agreement remaining current until such circumstances have ceased.

(b)   Circumstances beyond the control of Brick and Stone Construction include but are not limited to, inclement weather, shortage of labour, pandemics, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government orders, failures or malfunctions of computers or other information technology systems.

(c)   For the sake of clarity, if in the reasonable opinion of Brick and Stone Construction, the provision of the Services will be affected by a pandemic, Brick and Stone Construction may suspend the provision of the Services in part or in whole or terminate this Agreement. Additionally, Brick and Stone Construction will not be liable for any losses or damage due to any circumstances surrounding a pandemic. If a party chooses to terminate this Agreement in accordance with this clause, clause 7 will apply.

9.     Insurance

(a)   Before Brick and Stone Construction commences the Services under this Agreement, Brick and Stone Construction will have current insurance cover for all legally required insurances.  

10.  Warranties

10.1       Warranty Period for the Services

(a)   Brick and Stone Construction warrants that it will comply with all statutory warranties implied under the Home Building Act 1989 (NSW) (the Act) including that the Services will be performed with due care and skill. Under the Act, You are able to make a claim for 6 years for major defects and 2 years for all other defects commencing from the date the work was completed.

(b)   Brick and Stone Construction warrants that it maintains current Home Building Compensation Fund (HBCF) insurance as required by law, for residential home building work with a contract price of more than $20,000. Under this insurance, in the case of major or structural defects, You are able to make a claim for cover up to $340,000 for a period up to 6 years from the final completion date. For minor or non-structural defects, You can claim up to $340,000 for a period up to 2 years from the final completion date. If You become aware of the defects in the last 6 months of the period of insurance may claim within 6 months of awareness of the defect(s).

(c)   Brick and Stone Construction will use its best efforts and take all reasonable steps to assist You in achieving Your desired results. However, Brick and Stone Construction makes no warranty that the Services will meet Your requirements.

(d)   The Services do come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the Services, You are entitled to cancel the Agreement with Brick and Stone Construction and You are entitled to a refund for the unused portion. A major failure with the service is defined by the Australian Consumer Law and includes but is not limited to severe situations where a service is unfit for the purpose it is sold or creates an unsafe situation.

10.2       Warranty Exclusions

(a)   You acknowledge that the warranties described in clause 10.1 do not apply to the following:

                                               i.     failure within substrate due to concrete fracture;

                                              ii.     structural or substrate movement leading to stress fracture, cracking or other damage;

                                             iii.     delamination due to improper substrate condition;

                                             iv.     mechanical damage;

                                              v.     damages or flaws due to rising moisture or rising damp; oil or other contaminations, flaws from mix, cracking, debris, staining, exposure to heat or flame, solvents, acids or any other materials, windstorms, rain, nails and screws, plants or animals;

                                             vi.     shrinkage cracking;

                                            vii.     leaching (concrete flooring and driveway);

                                           viii.     colour, appearance and size of materials;

                                             ix.     consistency of finish;

                                              x.     staining;

                                             xi.     damage due to foot traffic on wet or uncured substrate;

                                            xii.     roller marks visible on the end product due to the inherent nature of certain topical sealers; or

                                           xiii.     damages due to Your actions, by any person, or any act of God.

(b)   You agree that Brick and Stone Construction will not be responsible for costs associated with rectifying any of the situations, including replacing materials, outlined in 10.2(a), if rectification is possible.

(c)   You agree that an independent assessment at Your cost may be required to assess the circumstances leading to an outcome identified in 10.2(a).

10.3   Making a Warranty Claim

To make a warranty claim during the warranty period, You are required to email Brick and Stone Construction at info@brickandstone.com.au outlining the issue. Brick and Stone Construction will then work with You to investigate Your warranty claim and follow any requirements under the HBCF.

11.  Risk

(a)   While carrying out the Services to and including the Completion date, Brick and Stone Construction is responsible for loss or damage to the Services except to the extent that it is caused or contributed to by an act or omission of You.

(b)   Brick and Stone Construction is not responsible for:

(i)     loss or damage to Your property or property for which You are responsible that is left on the site;

(ii)    any defect, structural deficiency, settlement or deterioration in the property except to the extent that it is caused by Brick and Stone Constructionfailing to take reasonable care in carrying out the Services;

(iii)   the restoration of areas affected by the Services to their original condition unless otherwise discussed and stated in the Quote.

12.  Liability

(a)   The total liability of Brick and Stone Construction arising out of or in connection with the Services or these terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the resupply of the Services to You.

(b)   You expressly understand and agree that Brick and Stone Construction, its affiliates, employees, agents, contributors and licensors shall not be liable to You for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by You, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.

13.  Waivers

(a)   A waiver of any right, power or remedy under these terms must be in writing and signed by the party granting it. A waiver is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.

(b)   The fact that a party fails to do, or delays in doing, something the party is entitled to do under these terms does not amount to a waiver.

14.  Indemnity

Except to the extent limited by another provision of this Agreement, each party indemnifies the other against:

(i)     loss or damage to property (other than the Services); and

(ii)    claims in respect of personal injury or death,

arising out of or as a consequence of a cause or event at that party's risk.

15.  Disclosure and Use of Confidential Information

(a)   All obligations of confidentiality set out in this Agreement continue in full force and effect after the Completion Date.

(b)   Confidential Information means any information that is information, ideas, forms, plans, specifications, processes, statements, trade secrets, drawings and data (and copies and extracts made of or from that information and data) that is not public knowledge. The Parties must not disclose any Confidential Information to any third party, including any customer, client and/or agent, employee or servant, without the other party’s prior consent.

(c)   The Parties must not use any Confidential Information without the other party’s prior consent.

(d)   This Agreement prohibits the disclosure of Confidential Information by either party with the exception of the following circumstances:

(i)     the disclosure is to a professional adviser for it to provide advice in relation to matters arising under or in connection with this Agreement and the other party has consented to the disclosure of such information to the professional adviser;

(ii)    the disclosure is required by applicable law or regulation; or

(iii)   if the confidential information is already in the public domain at no fault of the relevant party.

16.  Dispute Resolution

Brick and Stone Constructionhopes that a dispute under this Agreement does not arise, however in the unlikely event that it does, the following clauses will apply.

(a)   If a dispute arises out of or relates to the terms of this Agreement, either party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

(b)   A party to this Agreement claiming a dispute (Dispute) has arisen under the terms of this Agreement, must give written notice to the other party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (Notice).

(c)   On receipt of the Notice by the other party, the parties to this Agreement must, within seven days of the Notice, attempt in good faith to resolve the Dispute quickly and efficiently by negotiation or such other means upon which they may mutually agree.

(d)   If for any reason whatsoever, 21 days after the date of the Notice, the Dispute has not been resolved, the parties must either agree upon the selection of a mediator or request that an appropriate mediator be appointed by an independent third party as agreed or his or her nominee and attend a mediation.

(e)   It is agreed that mediation will be held in Sydney, New South Wales.

(f)    The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and, without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.

(g)   All communications concerning negotiations made by the parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as "without prejudice" negotiations.

(h)   If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either party may ask the mediator to terminate the mediation, and the mediator must do so.

(i)     In the event that the Dispute is not resolved at the conclusion of the mediation, either party may institute legal proceedings concerning the subject matter of the Dispute thereafter.

17.  Intellectual Property

(a)   You recognise and acknowledge that all Intellectual Property is the property of Brick and Stone Construction, and You will take all such steps as practicable to ensure that the Intellectual Property will vest in and remain vested in Brick and Stone Construction.

(b)   If the Services include design documentation, the Intellectual Property associated with all design documentation is the property of Brick and Stone Construction. You acknowledge and agree that You are not authorised to make any changes or amendments to any design documentation, and this extends to Your employees, contractors or other third parties. 

(c)   You agree that Brick and Stone Construction may arrange for photographs to be taken at any time during the Services and at the completion of the Services and the project generally (for example, after clean up). You provide irrevocable authority for photographs to be taken. Brick and Stone Construction will not disclose Your personal details.

(d)   You agree that Brick and Stone Construction may use photographs and images of the Services and Your property for Brick and Stone Construction’s own purposes, including marketing (including Instagram), media, publications, portfolio use, and website.

18.  Signage

You agree that Brick and Stone Construction may erect or install temporary signage and/or banners at the Site for the duration of the Services. Brick and Stone Construction will remove any and all signage upon completion of the Services.

19.  Communication and Notices

The Parties agree to communicate via email and telephone.

20.  Assignment and Subcontracting

 (a)   Neither party may assign this agreement or any of their rights, benefits or obligations under this Agreement without the prior written consent of the other party.

 (b)   Brick and Stone Construction may subcontract any part of the Services but remains responsible for all of the Services.

 21.  No Waiver

 Except as provided at law or in equity or elsewhere in this Agreement, none of the provisions of this Agreement may be varied, waived, discharged or released, except with the prior written consent of the parties.

22.  Governing Law & Jurisdiction

This Agreement is governed by the laws of New South Wales, Australia. In the event of any dispute arising out of or in relation to this Agreement, the parties agree that the exclusive venue for resolving any dispute will be New South Wales.

23.  Severance

Any provision in this Agreement which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and will not invalidate any other provision of this agreement.

24.  Entire Agreement and Modifications

Both You and Brick and Stone Construction confirm and acknowledge that this Agreement constitutes the entire agreement between You and Brick and Stone Construction and shall supersede and override all previous communications, either oral or written, between the Parties.