TERMS & CONDITIONS
1. Supply of Goods
These terms apply to all orders for the supply of goods by the supplier to the purchaser.
(a) Any order by the purchaser for the supply of goods must: (i) if in writing, be signed by an authorised representative of the purchaser; (ii) identify the goods ordered; (iii) be subject to these terms and such additional terms as the supplier may in its absolute discretion require; and (iv) specify the required date of delivery.
(b) The purchaser may not vary, amend or cancel any order made unless agreed to in writing by the supplier.
(c) The supplier may cancel part or all of any order at its sole discretion at any time prior to delivery. All monies paid for cancelled orders will be refunded to the purchaser by bank deposit within seven (7) days. The supplier is not responsible for any loss or damages caused by the cancellation of part of or all of an order.
(d) Any order placed for goods by the purchaser acknowledges the purchasers acceptance of these terms.
3. Stock Availability
3.1 The supplier does not guarantee that any of the goods will be in stock on a specific date and quotations or invoices are not indicative of stock availability. If the goods are not in stock, the supplier will notify the purchaser.
3.2 Timing to fulfil custom orders or re-stock unavailable goods varies. Availability dates are estimates only and are subject to change. The supplier cannot be held responsible for any loss or damage caused by any stock unavailability or delay.
3.3 Goods are not allocated to a purchaser until an order is paid for in full. If the purchaser is on credit terms, the goods are not allocated until a purchase order is received by the supplier and a corresponding pro forma invoice is sent to the purchaser.
4. Price and Payment
Unless otherwise agreed in writing between the parties, the purchaser must pay the supplier the price for the goods, plus gst and payable as follows:
(a) By the due date of the invoice; or
(b) If the purchaser is on credit terms then orders must be paid for by the invoice due date and in accordance with the terms of the purchaser’s credit agreement. Unpaid goods remain the property of the supplier and can be collected without notice if payment is not made by the invoice due date.
4.2 All prices are exclusive of GST and other statutory charges or levies. The purchaser indemnifies the supplier in respect of any such taxes or charges payable as a result of any supply of goods by the supplier to the purchaser.
Unless otherwise agreed between the parties, the supplier will invoice the purchaser for the goods after the supplier receives a valid purchase order from the purchaser.
(a) Orders will generally be despatched within 48 hours from the supplier receiving full payment of any invoice.
(b) If the purchaser is on credit terms, orders are generally despatched within 48 hours of a valid purchaser order being received.
4.5 Late payments
(a) Late payments will incur an administration fee of $50.00; and
(b) The purchaser must pay accruing interest to the supplier on any overdue invoices from the date when payment becomes due until the date of actual payment at a rate of 2.5% Per calendar month. All payments made by the purchaser will first be applied by the supplier to the accrued interest (if any).
5. Delivery, Risk and Title
(a) The supplier will deliver the goods to the delivery address given by the purchaser.
(b) It is the purchasers responsibility to ensure that the delivery address specified on a quotation or invoice is correct and complete, including the state and post code. Orders that are undeliverable due to incorrect or incomplete addresses will be subject to re-delivery costs by the purchaser. Orders that cannot be located due to incorrect or incomplete addresses cannot be replaced.
(c) Goods can only be delivered to a business address where the purchaser or its representative is available to accept and sign for the goods. Goods can be delivered to a residential address by request where the site is accessible and deemed secure by the supplier or its representative to leave the order if the address is unattended. If a delivery is unable to be completed due to site conditions then the purchaser must arrange for collection of the goods directly with the local delivery depot within two (2) business days.
(d) Delivery times may vary according to transit times provided by the supplier’s enlisted courier service. The purchaser acknowledges that delivery times can be delayed during peak period.
(e) The supplier may notify the purchaser if the estimated delivery date changes otherwise the purchaser can track its order from the nominated courier. All delivery dates are estimates only and are not binding on the supplier.
(f) The purchaser acknowledges that there may be factors out of the suppliers control that delay delivery of the goods and extend the estimated delivery date and will not hold the supplier responsible for any loss or damage whatsoever as a result of a change in the estimated delivery date.
(g) The purchaser will not hold the supplier responsible for any loss or damage whatsoever as a result of incomplete or incorrect delivery details or where the site conditions prevent delivery.
(h) Upon delivery of the goods, the purchaser shall immediately inspect goods for compliance with the specifications, as well as for any damage to the goods or shortage of goods. The purchaser acknowledges in this regard however that once the Goods are unwrapped from the casing they were delivered in to the purchaser that the supplier is not liable for any damage or loss arising from the date the goods are unwrapped.
(i) Any claim for a shortage of goods, damage or defects to the goods or non-compliance with specifications must be made in writing by email to firstname.lastname@example.org and accompanied by high resolution photographs within 24 hours of delivery. If the purchaser fails to advise the supplier of any shortage, damage, defect or non-compliance with 24 hours of delivery, the purchaser is deemed to have accepted the goods.
(j) The supplier reserves the right to inspect the goods and to seek its own assessment of any goods notified under clause 5.1.
(k) Damaged goods must be returned to the supplier at the expense of the purchaser within seven (7) days of receipt of the goods. Replacement of the goods will be despatched subject to availability. Where replacements are not available all monies will be returned to the purchaser within seven (7) days.
(l) The purchaser’s failure to inspect the goods or to notify the supplier of defects of non-conformities in accordance with clause 1(h) will relieve the supplier of its obligations under these terms.
(m) The supplier cannot be held responsible for loss or damages caused by order discrepancies or damages.
5.2 Exchanges and Returns
The supplier does not accept order cancellations, exchanges or returns due to change of mind. Any monies paid for orders that are cancelled by the purchaser will be forfeited.
5.3 Risk and Title
(a) Risk in the goods shall pass to the purchaser immediately upon delivery. Title in the goods delivered will not pass to the purchaser if the purchaser has not paid the supplier for those goods in full.
(b) The purchaser will hold all goods on trust and as bailee for the supplier until all amounts owed by the purchaser to the supplier have been paid in full.
(c) The purchaser authorises the supplier to enter its nominated address (or other location where the goods have been delivered or are stored by the purchaser) to take possession of the goods.
(d) The right of the purchaser to deal with the goods ceases immediately upon the appointment to the purchaser of any liquidator, receiver, receiver and manager, administrator, provisional liquidator, or bankruptcy trustee.
(e) The purchaser consents to the supplier perfecting any security interest under these terms which arises by operation of the PPSA in any property by registration under the PPSA and must do anything reasonably requested by the supplier to enable it to do so.
(f) The parties contract out of each provision of the PPSA that, under section 115(1) of that Act, they are permitted to contract out of, other than: (i) sections 117 and 118 (relationship with land laws); and (ii) sections 134(1) and 135 (retention of collateral).
(g) Each party waives its right to receive each notice which, under section 157(3) of the PPSA, it is permitted to waive, and waives its rights to receive anything from any other party under section 275 of the PPSA.
(h) The purchaser must take out and maintain appropriate insurance to cover any insurance loss in respect of the goods.
(i) The provisions of this clause 5.3 Apply notwithstanding any arrangement under which the supplier grant credit to the purchaser.
6. Stone Characteristics and Measurements
6.1 The purchaser acknowledges and agrees that the goods are naturally formed stone and may:
(a) Exhibit variations in shade, colour, veining, texture, surface, finish, markings or the like that contain natural fissures, pits, lines, cracks, indentations or the like and may change colour over time;
(b) Expand, contract or distort over time as a result of exposure to heat, cold, weather, or the like;
(c) Mark or stain if exposed to certain circumstances;
(d) Contain minor chips on the edge of individual tiles due to the cutting by machinery;
(e) Be damaged or disfigured by impact or scratching or other means; and
(f) Be subject to shade variations and manufacture batching.
6.2 The purchaser acknowledges and agrees that the goods can vary up to 5mm in size from the specifications.
6.3 Orders are fulfilled per number of sheets only and per square metre calculations including tiling wastage amounts are estimates only and should be verified by a trade professional prior to placing an order. The supplier cannot be held responsible for loss or damages caused by written or verbal measurement errors, incorrect order quantities or short orders.
6.4 The purchaser must not claim any defect or refuse payment for defect in relation to any of the matters listed in clause 6.1, 6.2 and 6.3.
6.5 The goods are a natural stone and specific methods must be followed during cutting, laying, gluing, grouting and sealing. The purchaser must install the goods using only a suitably qualified tradesperson of at least five (5) years specific experience in working with marble and mosaic tiles. To the extent a purchaser uses a tradesperson other than that specified any warranties given by the supplier are negated.
6.6 The Purchaser acknowledges marble is a porous product and should be sealed with an appropriate stone impregnator sealer. Verbal or written installation and care advice provided are recommendations only and advice should be sought from a trade professional prior to installation. The supplier cannot be held responsible for loss or damages caused by incorrect installation or failing to correctly seal the goods and for the avoidance of doubt the supplier shall not be liable whatsoever and howsoever arising once the goods are unwrapped by the purchaser or the purchaser’s employees contractors or work men.
7. No Warranties
7.1 Additional stock
The supplier makes no warranty or representative that there will be additional goods available if the purchaser requires further goods.
8. Indemnity and Liability
(a) The purchaser assumes all risks and liability in respect of any use of the goods, whether used along or in conjunction with other goods and goods.
(b) The supplier’s liability for damages, whether based upon the supplier’s negligence, breach of contract, breach of warranty or otherwise, shall not exceed the price with respect to which a claim is based and shall not include liability for special, incidental, indirect, punitive or consequential damages including, but not limited to, lost profits, injury to good will, and damages for injuries to persons or to property. This limitation of liability shall include the supplier’s liability for damage to persons or property resulting from the use of the goods in manufacturing processes, or in combination with other substances, or otherwise. The supplier assumes no obligation or liability for any technical or safety advice it furnishes concerning the goods, the parties agreeing that all such advice is given without charge or warranty and accepted at the purchaser’s risk.
(c) Provisions of the Competition and Consumer Act 2010 (Cth) or any applicable state, territory or commonwealth legislation may imply warranties, confer statutory guarantees or impose other obligations on the supplier which cannot be excluded, restricted or modified at all or except to a limited extent. To the extent permitted by law, the supplier’s liability under such provisions shall be limited at the supplier’s option to:
(i) The replacement of any affected goods;
(ii) The refund of the price paid for any affected goods;
(iii) The payment of any amount equal to the cost of replacing any affected goods.
(d) All other conditions and warranties apart from those referred to in clause 1(c), whether express or implied or applied by law in respect of the goods are expressly excluded and negatived.
(e) To the extent permitted by law, the purchaser indemnifies the supplier, its affiliates and their employees, agents, contractors and keeps them indemnified and held harmless from and against any liability, cost, claim, expense (including attorney’s fees and expenses) or any loss or damage of any other kind whatsoever including, without limitation, any material or immaterial damage in the form of personal injury, illness or death to any person or damage to any property arising directly from or in direct connection with any breach of failure to perform obligations under these terms by the purchaser.
(f) The purchaser shall make no claims relating to the goods unless the supplier receives sufficient written notification of the facts relating to such claims as soon as the purchaser becomes aware of those facts. Such written notification must also be adequately documented to the supplier’s satisfaction.
9. Intellectual Property
(a) In these terms, “intellectual property” means all copyright, patents and all other rights throughout the world in relation to inventions, registered and unregistered trademarks (including service marks) and registered designs, and includes all original works of authorship fixed in any tangible medium of expression.
(b) To the extent that any intellectual property is embodied in or relates to the goods, it is vested in and owned by the supplier, and the supplier grants to the purchaser a royalty free, non-exclusive license to use the intellectual property in relation to the goods in accordance with these terms.
(c) The supplier makes no representation or warranty of any kind, expressed or implied, that the goods supplied or the use of such goods or articles made from the goods either alone or in conjunction with other substances will not infringe any patent, trademark or any other intellectual property right. The purchaser will notify the supplier of any claim or suit involving the purchaser in which such infringement is alleged and if the supplier considers itself to be affected, it will be entitled completely to control the defense or compromise of any such allegation of infringement.
10. Force Majeure
(a) The supplier is not responsible for any failure to perform any obligation under these terms if its performance has become impossible due to fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, natural catastrophes or any other events beyond the reasonable control of the supplier (each a “force majeure event”).
(b) If by reason of a force majeure event, the delay or non-performance of the supplier’s obligations continues for more than ninety (90) consecutive days, the supplier may refund any monies paid for goods that have not been delivered and cancel any order.
(a) The supplier reserves the right to change these terms at any time without notification or consent. Any variation to these terms must be in writing and signed by the supplier.
(b) These terms are governed by the laws of the state of victoria. The parties submit to the non-exclusive jurisdiction of the courts in the state of victoria in relation to these terms.
(c) If any part of clause of these terms is held illegal or unenforceable then that clause or part may be severed with the remaining clauses or parts remaining in full force and effect.
12. Definitions and Interpretation
In this agreement, unless the context otherwise necessarily requires:
(a) Delivery address means the delivery point for the goods specified by the purchaser;
(b) Estimated delivery date means the date that the supplier gives to the purchaser of when the goods are expected to be delivered;
(c) Goods means any goods which the supplier has agreed to supply to the purchaser;
(d) Order means the goods that the supplier has agreed to supply the purchaser in accordance with these terms;
(e) Parties means the supplier and the purchaser, and each is referred to in these terms as a “party”;
(f) PPSA means the Personal Properties Securities Act 2009 (Cth);
(g) PMSI means a purchase money security interest as defined by the PPSA;
(h) Price means the amount payable by the supplier to the purchaser for the goods;
(i) Purchaser means any person, firm or corporation including successors, administrators and assignors who have requested the supply of goods by the supplier;
(j) Security Interest and purchase money security interest and all related terms have the meanings given to them by PPSA;
(k) Supplier means Designer Marble Pty Ltd; and
(l) Specifications means the specifications set out in the order.