Stone Gallery Pty Ltd – Terms & Conditions of Trade
1 Definitions
1.1 “Seller”shall mean Stone Gallery Australia Pty Ltd and any of its related entities as defined in the Corporations Law.
1.2 “Buyer”shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.
1.3 “Goods”shall mean Goods supplied by the Seller to the Buyer (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 Buyer.
1.4 “Services”shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.5 “Price”shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 3 of this contract.
1.6 “PPSA”means the Personal Property Securities Register.
1.7 “PPSR”means Personal Property Securities Register.
2 Acceptance
2.1 Any instructions received by the Seller from the Buyer for the Supply of Goods and/or the Buyer’s acceptance of the terms and conditions contained herein.
2.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be amended with the written consent of the Seller.
2.4 The Seller may at any time, and from time to time, alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by the Seller to the Buyer.
2.5 The Buyer undertakes to give the Seller at least fourteen (14) days’ notice of any change in the Buyer’s name, address and/or any other change in the Buyer’s details.
3 Pricing
3.1 At the Seller’s sole discretion the Price shall be either:
a) As indicated on invoices provided by the Seller to the Buyer in respect of Good supplied; or
b) The Seller’s quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Buyer shall accept the Seller’s quotation in writing within thirty (30) days
3.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.
3.3 All quotations will remain valid for a period of thirty (30) days from the date of the original quotation unless stated to the contrary in writing. All quotations shall lapse after the period of thirty (30) days unless a signed Purchase Order is received annexing a copy of the Seller’s quote within the stipulated period.
4 Payment
4.1 Subject to sub-paragraphs 4.2, 4.3 and 4.4 the Buyer shall pay the Seller the full payment of the quote unless otherwise agreed to in writing.
4.2 If the goods comprising a Purchase Order have to be ordered from overseas then full payment is due upon their arrival into the Seller’s warehouse.
4.3 If delivery of the goods is affected by part deliveries then the Seller shall be entitled to part payment in respect of each delivery.
4.4 In the event that the Seller provides credit to the Buyer payment terms are strictly thirty (30) days from the earlier of the date of delivery, the date of installation, or the date on any progress claim submitted by the Seller.
4.5 If payment is not made strictly in accordance with the agreed terms interest at the rate of 26% per annum calculated on a daily basis will be charged on any amount outstanding from the date of the Invoice to the date of the payment.
4.6 The Buyer acknowledges and agrees that the interest charged in 4.5 above is a genuine pre-estimate of the Seller’s loss and shall not be in any way construed as a penalty.
4.7 If delivery, installation or any payment due is delayed by the Buyer, the Seller shall be at liberty to charge the Buyer any extra costs thereby incurred to the Buyer’s account including storage and associated costs on a full indemnity basis.
4.8 If goods are not collected by the Buyer within 7 days of being notified and requested to collect goods, then the Buyer agrees to pay a storage fee of $50.00 per calendar week per pallet, case or bundle.
4.9 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 Buyer and the Seller in accordance with the Terms and Conditions.
4.10 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 and Risk
5.1 At the Seller’s sole discretion delivery of the Goods shall take place when;
a) the Buyer takes possession of the Goods at the Seller’s address; or
b) the Buyer takes possession of the Goods at the Buyers address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier); or
c) the Buyer’s nominated carrier takes possession of the Goods in which even the carrier shall be deemed to be the Buyer’s agent.
5.2 At the Seller’s sole discretion the costs of delivery are:
a) included in the Price, or
b) in addition to the Price, or
c) for the Buyer’s account.
5.3 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
5.4 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
5.5 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
5.6 The failure of the Seller to deliver shall not entitle either part to treat this contract as repudiated.
5.7 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.
6 Risk
6.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, 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 enquiries.
7 Title
7.1 It is the intention of the Seller and agreed by the Buyer that ownership of the Goods shall not pass until:
a) the Buyer has paid all amounts owning for the particular Goods, and
b) the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer.
7.2 Receipt by the Seller 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 the Seller’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the buyer are met; and
b) until such time as ownership of the Goods shall pass from the Seller to the Buyer and the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease; and
c) the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and
d) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods; and
e) the Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the goods on trust for the Seller; and
f) the buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller; and
g) the Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller; and
h) the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer;
i) until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products;
7.4 To the extent permitted by law, the parties agree that:
a) these terms and conditions create a Security Interest in favour of the Seller for the purpose of the PPSA;
b) the Seller may in its absolute discretion register its Security Interest as a Purchase Money Security Interest or on an “indefinite basis”on the PPSR.
7.5 The Buyer agrees at its own cost and within 48 hours of being requested by the Seller, execute all documents required by the Seller to protect its Security Interest and ensure that it has the priority required by it included but not limited to:
a) Registering maintaining or updating its Security Interest in the PPSR;
b) Giving written notification in connection with its Security Interest; and/or
c) Exercising its rights in connection with the Security Interest.
7.6 In The event the Buyer fails to comply with 7.5 herein, the Buyer appoints the Seller its irrevocable Attorney to execute all such documents as contemplated herein to give full effect to this clause.
7.7 The Buyer and the Seller agree that the following provisions are expressly negated, Sections 95, 96, 117, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA and in this regard the Buyer expressly waives its rights with respect to those provisions of the PPSA.
7.8 Where the Seller has rights in addition to or existing separately from those contained in Chapter 4 of the PPSA those rights will continue to apply and are not limited or excluded (or otherwise adversely affected) by any right provided by this clause or by law.
7.9 The Buyer agrees to indemnify and keep Stone Gallery indemnified in relation to all costs, expenses (including legal costs and expenses on a full indemnity basis), damages, losses claims and actions that the Seller may incur or sustain as a result of the Buyer’s direct or indirect breach of this Clause 7.
8 Buyer’s Disclaimer
8.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to the Buyer by the Seller and the Buyer acknowledges that the Goods are bought relying solely upon the Buyer’s skill and judgement.
9 Defects
9.1 The Buyer shall inspect the Goods on delivery and shall within three (3) business days notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer 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 Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.
9.3 Stone is a natural colour and shade tone, markings, and veining may vary from colour samples provided. The Seller gives no guarantee (expressed or implied) that colour samples will match the finished Goods. The Seller will make every effort to match colour samples to the finished Goods but will not be liable for any losses in relation to colour samples differing from the finished Goods.
10 Warranty
10.1 To the extent permitted by statue, no warranty is given by the Seller as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11 The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
11.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 19974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
12 Intellectual Property
12.1 Where the Seller has designed, drawn or written Goods for the Buyer, then the copyright in those designs and drawings and documents shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion.
12.2 The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution to the Buyer’s order and the Buyer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
13 Default & Consequences of Default
13.1 Interest on overdue invoices shall accrue from the date when payment becomes due at 26% per annum calculated daily.
13.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
13.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
13.4 If any account remains over due after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable. If not paid immediately this sum will be recalculated on the outstanding amount on a monthly basis and continue to accrue.
13.5 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any other of the Buyer which remains unperformed and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
13.6 any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
13.7 the Buyer 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
13.8 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
14 Security and Charge
14.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
a. Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the buyer 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 the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The buyer and/or the amounts and other monetary obligations payable under the terms and conditions. The buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
b. Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
c. The Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to performall necessary acts to give effect to the provisions of the clause 14.i.
15 Cancellation
15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
15.2 In the event the Buyer cancels delivery of Goods the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
16 Building and Construction Industry Security Payments Act 1999
16.1 At the Seller’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.
16.2 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.
17 General
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provision shall not be affected, prejudiced or impaired.
17.2 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.
17.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
17.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
17.5 The Buyer shall not be entitled to set off against or deduct from the Price any sums owned or claimed to be owed to the Buyer by the Seller.
17.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
17.7 The Seller reserves the right to 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 the Seller notifies the Buyer of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire flood, drought, storm or other event beyond the reasonable control of either party.
17.9 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.
18 If the buyer fails to take delivery or pick up the Goods, at the place and time as stipulated by Stone Gallery, which the buyer will be notified minimum 24 hours prior, reasonable storage and handling fees will apply until such time as the customer takes delivery.