1.1 “Stone Factory” shall mean Stone Factory Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Stone Factory Pty Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Stone Factory to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by Stone Factory to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Stone Factory to the Client.
1.5 “Services” shall mean all Services supplied by Stone Factory to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the Price payable for the Goods as agreed between Stone Factory and the Client in accordance with clause 4 of this contract.
2. The Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Client buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3.1 Any instructions received by Stone Factory from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Stone Factory shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Stone Factory.
3.4 The Client shall give Stone Factory not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Stone Factory as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by Stone Factory only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1 At Stone Factory’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Stone Factory to the Client in respect of Goods supplied; or
(b) Stone Factory’s current price at the date of delivery of the Goods according to Stone Factory’s current Price list; or
(c) Stone Factory’s quoted Price (subject to clause 4.2) which shall be binding upon Stone Factory provided that the Client shall accept Stone Factory’s quotation in writing within thirty (30) days.
4.2 Stone Factory reserves the right to change the Price in the event of a variation to Stone Factory’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances such as international supply problems or delays, or as a result of increases to Stone Factory in the cost of materials and labour) will be charged for on the basis of Stone Factory’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 Stone Factory may submit detailed progress payment claims in accordance with Stone Factory’s specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
4.4 At Stone Factory’s sole discretion a non-refundable deposit may be required.
4.5 At Stone Factory’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Clients shall be made by instalments in accordance with Stone Factory’s payment schedule; or
(d) payment for approved Clients shall be due thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices.
4.6 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.7 Payment will be made by cash, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Client and Stone Factory.
4.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1 At Stone Factory’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Stone Factory’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Stone Factory or Stone Factory’s nominated carrier); or
(c) the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
5.2 At Stone Factory’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price; or
(c) for the Client’s account.
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Stone Factory shall be entitled to charge a reasonable fee for redelivery.
5.4 Stone Factory may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 The Client shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
(a) such discrepancy in quantity shall not exceed five percent (5%); and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.6 The failure of Stone Factory to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Stone Factory shall not be liable for any loss or damage whatsoever due to failure by Stone Factory to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Stone Factory.
6.1 If Stone Factory retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Stone Factory is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Stone Factory is sufficient evidence of Stone Factory’s rights to receive the insurance proceeds without the need for any person dealing with Stone Factory to make further enquiries.
6.3 Where the Client expressly requests Stone Factory to leave Goods outside Stone Factory’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
6.4 The Client acknowledges that variations of colour, shade and grain are inherent in all kiln fired products and natural stone. While every effort will be taken by Stone Factory to match colour, shade or grain of product, Stone Factory shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied.
6.5 Tiles are not guaranteed against crazing, cracking, chipping or scratching.
6.6 The Client acknowledges that it is the Client’s responsibility to check quantities, with an on-site measurement before commencing fixing. Measurements taken off plans or the Client’s figures by Stone Factory are approximate only and no responsibility is taken for their accuracy.
6.7 If the Client orders an insufficient number of tiles, then Stone Factory will take no responsibility for any variation of colour in further batches supplied to the Client or the inability to supply Goods at all.
6.8 Stone Factory will accept no responsibility for tiles that have already been affixed. The Client acknowledges and agrees that no claims can be made to Stone Factory once the tiles are fixed, and it is the Client’s responsibility to check all quantities and qualities of all the tiles prior to installing them.
6.9 Stone Factory strongly recommends that marble and granite tiles/slabs should only be laid by qualified and experienced marble and granite stonemasons. Inexperience with these materials can result in damages to the polished surface. Stone Factory shall not be liable to any loss incurred by the Client as a result of such damages or breakages.
7. Installation Instructions of Marble, Granite and Limestone
7.1 All stone must be sealed with Pre-Seal Sealer before grouting as grout can stain the surface, especially dark coloured grout.
7.2 All stone must be sealed with Penetrating Sealer after it has been grouted and cleaned.
7.3 For the installation of coloured marble (except green marble), limestone and travertine Davco SMP 2010 Powder together with Davco Davelastic liquid should be used.
7.4 For the installation of green marble, water sensitive stone, Epoxy backed marble and translucent marble Davco 2 Part Rapid Adhesive should be used.
7.5 The Client must read the instructions of Davco products carefully prior to installation and understand that no claims will be recognised if those instructions are not followed.
7.6 The Client acknowledges and agrees that Stone Factory shall not be held liable for any loss, damages or costs howsoever incurred by the Client for not following the above instructions and recommendations.
8.1 Stone Factory and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Stone Factory all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Stone Factory in respect of all contracts between Stone Factory and the Client.
8.2 Receipt by Stone Factory of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Stone Factory’s ownership or rights in respect of the Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Stone Factory shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Stone Factory to the Client Stone Factory may give notice in writing to the Client to return the Goods or any of them to Stone Factory. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Stone Factory shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Stone Factory then Stone Factory or Stone Factory’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Stone Factory has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Stone Factory for the Goods, on trust for Stone Factory; and
(f) the Client shall not deal with the money of Stone Factory in any way which may be adverse to Stone Factory; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Stone Factory; and
(h) Stone Factory can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Stone Factory will be the owner of the end products.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Client and Stone Factory by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Goods previously supplied by Stone Factory to the Client (if any);
(ii) all Goods that will be supplied in the future by Stone Factory to the Client.
9.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Stone Factory may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, Stone Factory for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Stone Factory;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Stone Factory; and
(e) immediately advise Stone Factory of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.4 Stone Factory and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by Stone Factory, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Client shall unconditionally ratify any actions taken by Stone Factory under clauses 9.3 to 9.5.
10. Security and Charge
10.1 Despite anything to the contrary contained herein or any other rights which Stone Factory may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Stone Factory or Stone Factory’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Stone Factory (or Stone Factory’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Stone Factory elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Stone Factory from and against all Stone Factory’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Stone Factory or Stone Factory’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 10.1.
11.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Stone Factory of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Stone Factory an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Stone Factory has agreed in writing that the Client is entitled to reject, Stone Factory’s liability is limited to either (at Stone Factory’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Competition and Consumer Act 2010 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
12.1 Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 11.1; and
(b) Stone Factory has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Client’s cost within seven (7) days of the delivery date; and
(d) Stone Factory will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
12.2 Stone Factory may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to twenty-five percent (25%) of the value of the returned Goods plus any freight costs.
12.3 Non-stocklist items or Goods made to the Client’s specifications are under no circumstances acceptable for credit or return.
13.1 To the extent permitted by statute, no warranty is given by Stone Factory as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Stone Factory shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Stone Factory’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Stone Factory.
14.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Stone Factory from and against all costs and disbursements incurred by Stone Factory in pursuing the debt including legal costs on a solicitor and own client basis and Stone Factory’s collection agency costs.
14.4 Without prejudice to any other remedies Stone Factory may have, if at any time the Client is in breach of any obligation (including those relating to payment) Stone Factory may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Stone Factory will not be liable to the Client for any loss or damage the Client suffers because Stone Factory has exercised its rights under this clause.
14.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
14.6 Without prejudice to Stone Factory’s other remedies at law Stone Factory shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Stone Factory shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Stone Factory becomes overdue, or in Stone Factory’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15.1 Stone Factory may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Stone Factory shall repay to the Client any sums paid in respect of the Price. Stone Factory shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Stone Factory (including, but not limited to, any loss of profits) up to the time of cancellation.
15.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
16. Privacy Act 1988
16.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Stone Factory to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Stone Factory.
16.2 The Client agrees that Stone Factory may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3 The Client consents to Stone Factory being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Client agrees that personal credit information provided may be used and retained by Stone Factory for the following purposes (and for other purposes as shall be agreed between the Client and Stone Factory or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Stone Factory, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
16.5 Stone Factory may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Stone Factory is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Stone Factory, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Stone Factory has been paid or otherwise discharged.
17. Building and Construction Industry Security of Payments Act 1999
17.1 At Stone Factory’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
17.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
18.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
18.4 Stone Factory shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Stone Factory of these terms and conditions.
18.5 In the event of any breach of this contract by Stone Factory the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
18.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Stone Factory nor to withhold payment of any invoice because part of that invoice is in dispute.
18.7 Stone Factory may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.8 The Client agrees that Stone Factory may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Stone Factory notifies the Client of such change. The Client shall be under no obligation to accept such changes except where Stone Factory supplies further Goods to the Client and the Client accepts such Goods.
18.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.10 The failure by Stone Factory to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Stone Factory’s right to subsequently enforce that provision.