1.1 Seller shall mean Emperor Stone & Marble Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Emperor Stone & Marble Pty Ltd.
1.2 Customer shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Seller to the Customer.
1.3 Guarantor means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 Goods shall mean Goods supplied by the Seller to the Customer (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 the Seller to the Customer.
1.5 Services shall mean all Services supplied by the Seller to the Customer 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 the Seller and the Customer in accordance with clause 5 of this contract.
2. The Commonwealth Trade Practices Act 1974 (TPA) 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 TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3. Application of these terms and conditions to consumers
3.1 (Defects), and clause 12 (Warranty) shall NOT apply to the Customer where the Customer is purchasing Goods or Services not for resale or hire where the Price of the Goods or Services does not exceed $40,000, or where the Price of the Goods or Services does exceed $40,000 and are of a kind ordinarily acquired for personal, domestic or household use or consumption, or where the Customer is in any other way a consumer within the meaning of the TPA or the FTA of the relevant state or territories of Australia.
4. Offer & Acceptance
4.1 Any instructions received by the Seller from the Customer for the supply of Goods and/or the Customer acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
4.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
4.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Seller.
4.4 The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer name and/or any other change in the Customer details (including but not limited to, changes in the Customer address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer failure to comply with this clause.
4.5 The Customer acknowledges that the Seller shall not accept any liability for Goods manufactured based on measurements and specifications supplied by the Customer, should the accuracy of these measurements prove to be incorrect. It will be at the Seller’s sole discretion whether to carry out any alterations if measurements and specifications are initially supplied by the Customer.
4.6 The Customer accepts that any additional alterations will be viewed as a variation of the original quote and will be shown separately as variations on the invoice (subject to clause 5.3).
5. Price And Payment
5.1 At the Seller’s sole discretion the Price shall be either the Seller’s quoted Price (subject to clause 5.3) which shall be binding upon the Seller provided that the Customer shall accept the Seller’s quotation in writing within thirty (30) days.
5.2 In the event that the Seller or the Seller
5.3 The Seller reserves the right to change the Price in the event of a variation to the Seller quotation. Any variation from the plan of scheduled works or specifications that results in additional works required will be detailed in writing and charged for on the basis of the Seller’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.
5.4 At the Seller sole discretion a deposit may be required.
5.5 The Seller may submit a detailed payment claim at intervals not less than one month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorised variations, whether or not the value of such variations has been finally agreed between the parties, and the value of materials delivered to the site but not installed.
5.6 At the Seller’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 Customer’s shall be due thirty (30) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
5.7 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.
5.8 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and the Seller.
5.9 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.
6. Delivery Of Goods
6.1 At the Seller’s sole discretion delivery of the Goods shall take place when:
- the Customer takes possession of the Goods at the Seller’s address or
- the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier).
6.2 At the Seller’s sole discretion the costs of delivery are included in the Price.
6.3 The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
6.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
6.5 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
6.6 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all due to circumstances beyond the control of the Seller.
7.1 Unless specified in writing, installation shall not include any plumbing, electrical, plastering, painting or removing of existing benchtop or furniture.
7.2 Payment for installation is due and payable as stated on the quotation (subject to clause 5.2).
8.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further inquiries.
8.3 The Customer acknowledges that variations of colour, shade, finish, texture and grain are inherent in all kiln fired products and natural stone. While every effort will be taken by the Seller to match colour, shade, finish, texture or grain of product, the Seller shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading, finish, texture or grain between batches of product or sale samples and the final product supplied. Slight variation in thickness of natural and reconstituted stones might occur. The thickness on quotations are implied as approximate values only. The Seller shall not accept any liability due to variation of thicknesses.
8.4 The Customer acknowledges that it is the Customer’s responsibility to check quantities, with an on-site measurement before commencing fixing. Measurements taken off plans or the Customerï¿½s figures by the Seller are approximate only and no responsibility is taken for their accuracy.
8.5 If the Customer orders an insufficient number of tiles, then the Seller will take no responsibility for any variation of colour in further batches supplied to the Customer or the inability to supply Goods at all.
8.6 The Seller will accept no responsibility for tiles that have been fixed.
8.7 The Customer acknowledges that the benchtops are Goods that cannot be stood on and failure on the part of the Customer to properly maintain the Goods, or not to follow any instructions or guidelines provided by the Seller, then the Seller shall not be liable for any damages.
8.8 Tiles, benchtops and other stone materials are not guaranteed against crazing, cracking, chipping or scratching.
9.1 The Customer shall inspect the Goods on delivery and shall within one (1) day of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to reject, the Sellerï¿½s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (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.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.
10. Customer Disclaimer
10.1 The Customer hereby disclaims any right to rescind, or cancel the contract with the Seller or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Services are bought relying solely upon the Customer’s skill and judgment.