Disclaimer, Privacy Policy & Terms of Trade

1. Definitions

1.1  Seller shall mean Emperor Stone & Tile Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Emperor Stone & Tile 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�s 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�s name and/or any other change in the Customer�s details (including but not limited to, changes in the Customer�s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer�s 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�s authorised agent, representative, contractor or employee has not inspected the site, the Seller shall not be bound by any quotation for the installation of the Goods.

5.3 The Seller reserves the right to change the Price in the event of a variation to the Seller�s 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�s 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:

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. Installation

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. Risk

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 enquiries.

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 Customer�s 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 bench tops 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. Defects

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 Seller�s 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�s 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.

11. Title

11.1 The Seller and Customer agree that ownership of the Goods shall not pass until:

11.2 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.

11.3 It is further agreed that:

12. Warranty

12.1 To the extent permitted by statute, 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.

12.2 For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

13. Intellectual Property

13.1 Where the Seller has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in the Seller, and shall only be used by the Customer at the Seller�s discretion.

13.2 The Customer 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 of the Customer�s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.

14. Default & 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 one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.

14.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller�s collection agency costs.

14.3 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.

14.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) 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.

14.5 Without prejudice to the Seller�s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:

15. Security And Charge

15.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:

16. Cancellation

16.1 The Seller 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 Customer. On giving such notice the Seller shall repay to the Customer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.

16.2 In the event that the Customer cancels delivery of Goods the Customer 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.

17. Privacy Act 1988

17.1 The Customer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Seller.

17.2 The Customer and/or the Guarantor/s agree that the Seller may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

17.3 The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

17.4 The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time:

17.5 The Seller may give information about the Customer to a credit reporting agency for the following purposes:

18. Unpaid Seller�s Rights

18.1 Where the Customer has left any item with the Seller for repair, modification, exchange or for the Seller to perform any other Service in relation to the item and the Seller has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Seller shall have:

18.2 The lien of the Seller shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.

19. General

19.1 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.

19.2 These terms and conditions and any contract to which they apply shall be governed by the laws of South Australia and are subject to the jurisdiction of the courts of South Australia.

19.3 The Seller shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions.

19.4 In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

19.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Seller.

19.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer�s consent.

19.7 The Customer agrees that the Seller 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 the Seller notifies the Customer of such change.

19.8 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.

19.9 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.