“BMC STONE” means BMC STONE PTY LTD, its successors and assigns or any person acting on behalf of and with the authority of BMC STONE PTY LTD.
“Client” means the person/s buying the Goods as specified in any invoice, document, or order, and if there is more than one Client is a reference to each Client jointly and severally.
“Goods” means all Goods or Services supplied by BMC STONE to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Price” means the Price payable for the Goods as agreed between BMC STONE and the Client in accordance with clause 4
Acceptance
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for Goods or accepts Delivery.
These terms and conditions may only be amended with BMC STONE’ consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and BMC STONE.
Change in Control
The Client shall give BMC STONE not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by BMC STONE because of the Client’s failure to comply with this clause.
Price and Payment
At BMC STONES’ sole discretion the Price shall be either:
as indicated on any invoice provided by BMC STONE to the Client; or
BMC STONES’ quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of ninety (90) days.
BMC STONE reserves the right to change the Price if a variation to BMC STONE’ quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties or as a result of increases to BMC STONE in the cost of materials and labour) will be charged for on the basis of BMC STONES’ quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
At BMC STONE’ sole discretion, a non-refundable deposit may be required.
Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by BMC STONE, which may be:
on Delivery; or
by way of instalments/progress payments in accordance with BMC STONE’ payment schedule; or
due on the last day of the month in which the invoice was issued; or
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by BMC STONE.
Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Client and BMC STONE.
Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to BMC STONE an amount equal to any GST BMC STONE must pay for any supply by BMC STONE under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery
Delivery of the Goods (“Delivery”) is taken to occur at the time that:
the Client or the Client’s nominated carrier takes possession of the Goods at BMC STONE’ premises; or
BMC STONE (or BMC STONE’ nominated carrier) delivers the Goods to the Client’s nominated address, even if the Client is not present at the address.
Delivery to a third party nominated by the Client shall be deemed to be Delivery to the Client for the purpose of this agreement.
BMC STONE may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
Any time or date given by BMC STONE to the Client is an estimate only. The Client must still accept Delivery even if late and BMC STONE will not be liable for any loss or damage incurred by the Client because of the Delivery being late.
Risk
Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, BMC STONE is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by BMC STONE is sufficient evidence of BMC STONE’ rights to receive the insurance proceeds without the need for any person dealing with BMC STONE to make further enquiries.
The Client acknowledges that natural defects, variations in colour, shade and grain are inherent in all-natural and engineered stone products. While every effort will be taken by BMC STONE to match colour, shading or grain of product. BMC STONE shall not be liable for any loss, damages or costs howsoever arising resulting from any natural defect or any variation in colour, shading or grain between batches of product or sale samples and the final product supplied.
BMC STONE will accept no responsibility for damage caused to Goods after supply and installation is complete.
Goods are not guaranteed against crazing, cracking, chipping, or scratching.
The Client acknowledges and agrees that the Goods may be damaged because of systemic activity or exposure to extreme temperatures. BMC STONE shall not be liable for any loss, damages, or costs howsoever resulting from the systemic activity or exposing the Goods to extreme temperatures.
The Client acknowledges that BMC STONE will accept no responsibility and shall not be liable for any loss, damages or costs incurred howsoever when contracted in the removal and demolition of existing materials.
Client’s Responsibilities
The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the Services and agrees that BMC STONE shall not be liable for any damage caused to those items through the Client’s failure to comply with this clause.
The Client shall ensure that BMC STONE has clear and free access to the work site (during all hours allowed by relevant statutory authorities) for BMC STONE to complete the Services.
The Client acknowledges and agrees that it’s their responsibility to ensure third party tradespersons have completed tasks to a professional standard, BMC STONE will accept no responsibility and shall not be liable for any loss, damages or costs incurred howsoever due to poor or unprofessional workmanship by third party tradespersons and costs maybe incurred due to delays, failed installations and re-scheduling of appointments.
Title
BMC STONE and the Client agree that ownership of the Goods shall not pass until:
the Client has paid BMC STONE all amounts owing to BMC STONE; and
the Client has met all its other obligations to BMC STONE.
Receipt by BMC STONE 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 BMC STONE’ rights and ownership in relation to the Goods, and this agreement, shall continue.
It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
the Client is only a bailee of the Goods and must return the Goods to BMC STONE on request.
the Client holds the benefit of the Client’s insurance of the Goods on trust for BMC STONE and must pay to BMC STONE the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for BMC STONE and must pay or deliver the proceeds to BMC STONE on demand.
the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of BMC STONE and must sell, dispose of or return the resulting product to BMC STONE as it so directs.
the Client irrevocably authorises BMC STONE to enter any premises where BMC STONE believes the Goods are kept and recover possession of the Goods.
BMC STONE may recover possession of any Goods in transit whether or not Delivery has occurred.
the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of BMC STONE.
BMC STONE may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by BMC STONE to the Client.
The Client undertakes to:
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 BMC STONE may reasonably require to;
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 3(a)(i) or 9.3(a)(ii);
indemnify, and upon demand reimburse, BMC STONE 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.
not register a financing change statement in respect of a security interest without the prior written consent of BMC STONE.
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 BMC STONE.
immediately advise BMC STONE 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.
BMC STONE 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.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by BMC STONE, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Client must unconditionally ratify any actions taken by BMC STONE under clauses 3 to 9.5.
Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of BMC STONE agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies BMC STONE from and against all BMC STONE’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising BMC STONE’ rights under this clause.
The Client irrevocably appoints BMC STONE and each director of BMC STONE as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
The Client must inspect the Goods on Delivery and must within seven (7) days of such time notify BMC STONE in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow BMC STONE to inspect the Goods.
Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
BMC STONE acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, BMC STONE makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. BMC STONE’ liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, BMC STONE’ liability is limited to the extent permitted by section 64A of Schedule 2.
If BMC STONE is required to replace the Goods under this clause or the CCA, but is unable to do so, BMC STONE may refund any money the Client has paid for the Goods.
If the Client is not a consumer within the meaning of the CCA, BMC STONE’ liability for any defect or damage in the Goods is:
limited to the value of any express warranty or warranty card provided to the Client by BMC STONE at BMC STONE’ sole discretion.
limited to any warranty to which BMC STONE is entitled if BMC STONE did not manufacture the Goods.
otherwise negated absolutely.
Subject to this clause 11, returns will only be accepted provided that:
the Client has complied with the provisions of clause 1; and
BMC STONE has agreed that the Goods are defective; and
the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
the Goods are returned in as close a condition to that in which they were delivered as is possible.
Notwithstanding clauses 1 to 11.8 but subject to the CCA, BMC STONE shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Client failing to properly maintain or store any Goods.
the Client using the Goods for any purpose other than that for which they were designed.
the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user.
the Client failing to follow any instructions or guidelines provided by BMC STONE.
fair wear and tear, any accident, or act of God.
Notwithstanding anything contained in this clause if BMC STONE is required by a law to accept a return then BMC STONE will only accept a return on the conditions imposed by that law.
Intellectual Property
Where BMC STONE has designed, drawn, or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of BMC STONE.
The Client warrants that all designs, specifications or instructions given to BMC STONE will not cause BMC STONE to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify BMC STONE against any action taken by a third party against BMC STONE in respect of any such infringement.
The Client agrees that BMC STONE may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings, or Goods which BMC STONE has created for the Client.
Default and Consequences of Default
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 BMC STONE’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes BMC STONE any money the Client shall indemnify BMC STONE from and against all costs and disbursements incurred by BMC STONE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, BMC STONE’ contract default fee, and bank dishonour fees).
Without prejudice to any other remedies BMC STONE may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions BMC STONE may suspend or terminate the supply of Goods to the Client. BMC STONE will not be liable to the Client for any loss or damage the Client suffers because BMC STONE has exercised its rights under this clause.
Without prejudice to BMC STONE’ other remedies at law BMC STONE shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to BMC STONE shall, whether or not due for payment, become immediately payable if:
any money payable to BMC STONE becomes overdue, or in BMC STONE’ opinion the Client will be unable to make a payment when it falls due.
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
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Cancellation
BMC STONE 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 BMC STONE shall repay to the Client any money paid by the Client for the Goods. BMC STONE shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by BMC STONE as a direct result of the cancellation (including, but not limited to, any loss of profits).
Privacy Act 1988
The Client agrees for BMC STONE to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by BMC STONE.
The Client agrees that BMC STONE may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
to assess an application by the Client; and/or
to notify other credit providers of a default by the Client; and/or
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
to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
The Client consents to BMC STONE being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by BMC STONE for the following purposes (and for other agreed purposes or required by):
the provision of Goods; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the collection of amounts outstanding in relation to the Goods.
BMC STONE may give information about the Client to a CRB for the following purposes:
to obtain a consumer credit report.
allow the CRB to create or maintain a credit information file about the Client including credit history.
The information given to the CRB may include:
personal information as outlined in 1 above.
name of the credit provider and that BMC STONE is a current credit provider to the Client.
whether the credit provider is a licensee.
type of consumer credit.
details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested).
advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and BMC STONE has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
information that, in the opinion of BMC STONE, the Client has committed a serious credit infringement.
advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from BMC STONE:
a copy of the information about the Client retained by BMC STONE and the right to request that BMC STONE correct any incorrect information; and
that BMC STONE does not disclose any personal information about the Client for the purpose of direct marketing.
BMC STONE will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting BMC STONE via e-mail. BMC STONE will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.
Unpaid Seller’s Rights
Where the Client has left any item with BMC STONE for repair, modification, exchange or for BMC STONE to perform any other service in relation to the item and BMC STONE has not received or been tendered the whole of any moneys owing to it by the Client, BMC STONE shall have, until all moneys owing to BMC STONE are paid:
a lien on the item; and
the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
The lien of BMC STONE shall continue despite the commencement of proceedings, or judgment for any moneys owing to BMC STONE having been obtained against the Client.
General
The failure by BMC STONE to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect BMC STONE’ right to subsequently enforce that provision. 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.
These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which BMC STONE has its principal place of business and are subject to the jurisdiction of the courts in that state.
Subject to clause 11, BMC STONE 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 BMC STONE of these terms and conditions (alternatively BMC STONE’ liability shall be limited to damages which under no circumstances shall exceed the Price).
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 BMC STONE nor to withhold payment of any invoice because part of that invoice is in dispute.
BMC STONE may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
The Client agrees that BMC STONE may amend these terms and conditions at any time. If BMC STONE makes a change to these terms and conditions, then that change will take effect from the date on which BMC STONE notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for BMC STONE to provide Goods to the Client.
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.
The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
