Terms and Conditions of Sale Unless Stone Wholesale Group and the Customer otherwise agree in writing, these Terms are incorporated into and form part of any contract ('the Contract') between Stone Wholesale Group and the Customer for the supply of Goods by Stone Wholesale Group.
Terms and Conditions of Sale
Unless Stone Wholesale Group and the Customer otherwise agree in writing, these Terms are incorporated into and form part of any contract (‘the Contract’) between Stone Wholesale Group and the Customer for the supply of Goods by Stone Wholesale Group.
In these Terms unless the contrary intention appears:
1.1 ‘Australian Consumer Law’ means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (C’th);
1.2 ‘Stone Wholesale Group’ means Stone Wholesale Group PTY LTD and or any Trading Names associated with the Company ABN – 57622497625 and any and all of its “Related Bodies Corporate” and/or “Associated Entities” as such terms are defined in the Corporations Act 2001 (C’th);
1.3 ‘Customer’ means the party or parties entering into the Contract with Stone Wholesale Group;
1.4 “Commercial Credit Trade Account Customer” means a Customer who has entered into an agreement called a Commercial Credit Trade Account with Stone Wholesale Group;
1.5 ‘Goods’ means any form of slabs, natural, man made or porcelain, tiles of any nature and related products and including products such as tools, adhesives, grouts and any and all other ancillary or associated products supplied by Stone Wholesale Group to the Customer and further extending to the supply of tools or equipment on a hire-charge basis; and
1.6 ‘Terms’ means these terms and conditions.
2.1 The Contract and these Terms constitute the entire agreement between Stone Wholesale Group and the Customer. All prior negotiations, representations, understandings, arrangements and agreements (whether oral and/or in writing) are superseded by the Contract and these Terms.
2.2 The Contract and these Terms will in all circumstances prevail over the Customer’s terms and conditions (if any), unless Stone Wholesale Group agrees in writing to be bound by the Customer’s terms and conditions or any of them.
2.3 To the extent that there is any inconsistency between the Contract and these Terms, these Terms prevail unless and to the extent only that Stone Wholesale Group otherwise agrees in writing PROVIDED ALWAYS if Goods are supplied by Stone Wholesale Group to a Commercial Credit Trade Account Customer, then the terms and conditions of sale incorporated into the Commercial Credit Trade Account shall prevail to the extent of any inconsistency or conflict with these Terms.
3.1 The price for the supply of Goods will be specified in the invoice or account issued by Stone Wholesale Group to the Customer.
3.2 Unless otherwise stated, the price for the supply of any tiles by Stone Wholesale Group will be on a per square metre basis, in most cases slabs will carry a total cost and may include a per metre square figure.
3.3 Stone Wholesale Group may increase the price of Goods if the price increase results from the introduction of any legislation, regulation or government policy.
3.4 Unless otherwise stated:
3.4.1 the price for the Goods agreed in the Contract and any other amount payable under the Contract or these Terms shall be inclusive of any tax payable pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘GST’); and
3.4.2 the Customer will be required to pay to Stone Wholesale Group an amount equal to the GST (which will be included in the invoice or account issued) in addition to the price or any relevant other amount.
4.1 The Customer will, unless Stone Wholesale Group and the Customer otherwise agree, bear the cost of delivery of the Goods.
4.2 Stone Wholesale Group will make all reasonable efforts to have Goods delivered to the Customer by the date agreed between the parties, but Stone Wholesale Group will not be liable for:
4.2.1 any failure to deliver, or delay in delivery, of Goods;
4.2.2 any damage or loss due to unloading or packaging of Goods; and
4.2.3 any damage to property caused upon entering premises to deliver the Goods.
4.3 Upon delivery or collection and prior to laying, installation or use of any Goods, the Customer will inspect the Goods as appropriate as to the type, quantity, quality, aesthetics, appearance, shade, colours, layout patterns, suitability of purpose and any other characteristic of the Goods.
4.4 If any Goods are damaged, wrongly supplied or not in accordance with the Contract, the Customer may return those Goods in accordance with clause 6.
4.5 The Customer will be deemed to have accepted delivery of the Goods in the following events:
4.5.1 failure by the Customer to return Goods in accordance with clause 6; or
4.5.2 laying, installation or use of the Goods in any way by the Customer.
4.6 The Customer will indemnify Stone Wholesale Group against any losses, costs or expenses incurred by Stone Wholesale Group due to any failure by the Customer to accept the Goods at the time of delivery or collection.
5.Characteristics of Goods
5.1 The Customer acknowledges that Goods, which are tiles or slabs, supplied by Stone Wholesale Group may contain, display or be subject to any one or more of the following characteristics:
5.1.1 crazing, spots, specks and blemishes;
5.1.2 variations in colour, shade, size, pattern, veining, marking, texture, durability, density, size, weight, dimension, surface and finish, and may fade or change colour over time; and
5.1.3 optical effects such as hazing or smudging at varying light sources and at differing angles.
5.1.3 In the case of natural stone only, fissures, hairline fractures, light scratching or chips including repairs deemed acceptable in the stone industry.
5.2 The Customer acknowledges that Goods which contain, display or are subject to any one or more of the characteristics referred to in clause 5.1 are not defective or of unacceptable quality by reason of any of those characteristics.
6.Return of Goods
6.1 The Customer may reject and return Goods to Stone Wholesale Group provided that:
6.1.1 the Goods are damaged, wrongly supplied, defective or not in accordance with the Contract;
6.1.2 the Goods are returned within one month of the date of the invoice or account issued by Stone Wholesale Group to the Customer in respect of those Goods;
6.1.3 the Customer notifies Stone Wholesale Group of the invoice or account number in respect of the Goods to be returned;
6.1.4 the Goods are returned in the original state or condition in which they were supplied, and remain in original boxes together with all packaging and instruction material; and
6.1.5 the Goods are in as new condition as is reasonably possible, and are from current stock held in store by Stone Wholesale Group and, if applicable, matching current stock shade.
6.2 All Goods returned by the Customer are subject to assessment by Stone Wholesale Group, and Stone Wholesale Group may, if permitted by the Australian Consumer Law or any other law, refuse to accept the return of the Goods at its sole discretion.
6.3 Unless Stone Wholesale Group and the Customer otherwise agree in writing, the Customer will bear the costs of delivery when returning any Goods.
6.4 Subject to the Customer’s rights under the Australian Consumer Law, the following Goods cannot be returned by the Customer to Stone Wholesale Group under any circumstances:
6.4.1 those that were specially made, sourced, ordered or purchased for the Customer;
6.4.2 those that were used, installed, laid, damaged or altered in any way by the Customer;
6.4.3 those that were sold to the Customer at wholesale or discounted prices, or as second grade or quality; or
6.4.4 those that are no longer in stock in store by Stone Wholesale Group or have been discontinued.
6.5 Goods returned in accordance with this clause will be subject to a restocking fee. The restocking fee will be 25% of the price (plus GST) agreed in the Contract for the relevant Goods provided the return items are imported by us. If we have purchased slabs or tiles via another wholesaler then that wholesalers restocking fee will also be provided to you in writing as evidence and this total restocking fee will also be deducted from the refund.
7.1 Unless the Customer is a Commercial Credit Trade Account Customer and Stone Wholesale Group agrees in writing for the Customer to pay for Goods on the Customer’s Commercial Credit Trade Account, the Customer will pay for the Goods before the time specified by Stone Wholesale Group for delivery or collection of the Goods.
7.2 The Customer must pay for the Goods in cash, by cheque (for authorised Customers only), by credit card (excluding American Express and Diners Club) or by any other method of payment specified by Stone Wholesale Group.
7.3 Payment is only received by Stone Wholesale Group when it receives cash or when the proceeds of other methods of payment are credited and cleared to Stone Wholesale Group’ bank account.
7.4 The Customer may not assert or exercise any right of set-off against monies payable by it to Stone Wholesale Group.
7.5 Stone Wholesale Group may charge interest on amounts which remain unpaid for more than 14 calendar days. The interest rate will be seven percentage points above the cash rate target announced by the Reserve Bank of Australia from time to time. That interest will accrue and be recoverable from day to day.
8.Title and risk
8.1 The legal and equitable title to the Goods will only be transferred from Stone Wholesale Group to the Customer when the Customer has met and paid all that is owed to Stone Wholesale Group on any account whatsoever.
8.2 The Customer acknowledges that until the Customer has met and paid all that is owed to Stone Wholesale Group on any account whatsoever, the Customer holds the Goods as bailee for Stone Wholesale Group and that a fiduciary relationship exists between the Customer and Stone Wholesale Group.
8.3 Risk in the Goods passes to the Customer upon delivery or handover (including all risks associated with unloading) or upon title in the Goods passing to the Customer, whichever is the earlier.
9.Limitation of liability
9.1 If under the Australian Consumer Law or any other law any terms which apply to the sale of Goods under the Contract cannot be legally excluded, restricted or modified then those terms apply only to the extent required by law.
9.2 All terms, which would otherwise be implied by law or otherwise, are excluded except as stated in these Terms.
9.3 To the extent permitted by law, Stone Wholesale Group’ liability for any breach of the terms of the Contract, and any condition or warranty implied by the provisions of the Australian Consumer Law, is limited to and will be completely discharged by any one of the following as determined by Stone Wholesale Group in its absolute discretion:
9.3.1 the replacement of the Goods or the supply of equivalent Goods;
9.3.2 the repair of the Goods;
9.3.3 the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
9.3.4 the payment of the cost of having the Goods repaired.
9.4 Except as expressly provided in this clause and to the extent permitted by law, Stone Wholesale Group is not liable to the Customer (and any party claiming through the Customer) for:
9.4.1 any claim made after laying, installation or use of the Goods;
9.4.2 any claim made with respect to or in connection with any of the matters referred to in clause 5;
9.4.3 any claim made under, or in connection with, the Contract, in tort, under statute, in equity or otherwise in respect of any defects whatsoever in Goods for the loss or damage to person or property arising from or caused from such defects; and
9.4.4 any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods where indirect, special or consequential loss or damage’ includes:
(a) any loss of income, profit or business; or
(b) any loss of goodwill or reputation.
The Customer will indemnify and keep indemnified and hold Stone Wholesale Group harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Stone Wholesale Group, and from and against all actions, proceedings, claims or demands made against Stone Wholesale Group, arising from one or more of the following:
10.1 the Customer’s failure to comply with any laws, rules, standards, regulations or instructions applicable in relation to the Goods or the use of the Goods; and
10.2 any negligence or breach of duty by the Customer and its employees, agents or contractors in relation to the Goods or the use of the Goods.
11.1 The Contract and these Terms are governed by the laws of the Commonwealth of Australia and the State or Territory in which Goods are supplied to the Customer and the parties submit to the jurisdiction of the courts of the Commonwealth of Australia and the courts or tribunals of the applicable/relevant State or Territory, with any proceedings to be issued out of a court or tribunal of competent jurisdiction in or nearest to the capital of such State or Territory.
11.2 The rights and obligations of the parties will not merge on completion of any transaction under the Contract and these Terms or upon the execution of any other document in connection with the subject matter of the Contract and the Terms.
11.3 All rights under the Contract and these Terms are in addition to and do not abrogate, limit or reduce any other rights that Stone Wholesale Group may have.
11.4 Any provision of the Contract and these Terms that is invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect. If that is not possible, that provision must be excluded from the Contract and these Terms but only to the extent necessary to avoid that effect. All other provisions of the Terms continue to be valid and enforceable.
11.5 Unless otherwise specified, time is of the essence in the Contract.
11.6 Stone Wholesale Group may vary the Terms with reasonable notice to the Customer.
11.7 A right or obligation under the Contract and these Terms cannot be waived except by a document executed by the party waiving that right or obligation and specifying the waiver.