1.1 In this agreement, unless expressed or implied otherwise:
Client means the consumer whose order for the purchase of Materials/Works is accepted by MMD, as specified in that Purchase Order or invoice. If there is more than one Client in a Purchase Order, Client shall refer to each of the Clients jointly and severally.
MMD means Melbourne Marble Designs Pty Ltd.
Conditions means these standard terms and conditions of trade and includes any special terms and conditions agreed to in writing between MMD and the Client.
Delivery means the actual or deemed voluntary delivery of the Materials/Works in accordance with clause 6 of this agreement. Any reference to dollars in these terms and conditions means Australian dollars.
Materials/Works means all materials and/or works or services, including any part thereof supplied by MMD to the Client at the Client’s request in accordance with agreed items in the Contract. Where the context so permits, the term “Works” or “Materials” shall be interchangeable for the other.
Price means the price(s) payable for the Materials/Works as agreed to between MMD and the Client in accordance with clause 4 of this agreement.
Purchase Order or Contract means the contract for purchase and sale of the Materials/Works. A customer signed quotation will act as a Contract if no further documentation is produced or exchanged. A signed quotation means the client has accepted the quotation either through writing, conduct or verbal, for the order the proceeds and of Materials/Works is accepted by MMD, as specified in that Purchase Order or invoice. If there is more than one Client in a Purchase Order, Client shall refer to each of the Clients jointly and severally.
2.1 If the Client places an order for or accepts delivery of any Materials/Works, the Client is deemed to have exclusively accepted and is immediately bound jointly and severally to these Conditions.
2.2 The Client accepts that these Conditions shall only be amended with MMD’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between MMD and the Client.
3. CHANGE IN CONTROL
3.1 The Client shall give MMD not less than fourteen (14) days’ prior written notice of any proposed change in 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 number, fax number or business practice.
3.2 The Client shall be liable for any loss incurred by MMD as a result of the Client’s failure to comply with clause
4. PRICE & COSTS
4.1 At the sole discretion of MMD, the Price shall be either:
(a) The sum as indicated on any invoice provided by MMD to the Client; or
(b) orMMD’s quoted Price (subject to clauses 4.2 and 4.3) provided the Client accepts MMD’s quotation in writing within thirty (30) days of the quotation date
4.1.2 At the sole discretion of MMD, the cost of delivery is included in the Price.
4.1.3 Unless otherwise stated, the Price does not include:
(i) In addition to the Price, the Client must pay or reimburse MMD an amount equal to any GST paid by MMD for any supply by it under this or any other agreement for the sale of the Materials/Works;
(ii) The Client shall 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;
(iii) The Client shall pay any other taxes and duties that may be applicable in addition to the Price, except where they are expressly included in the Price.
(b) Provision of any mechanical fastening systems or embeds of any sort, unless outlined in proposal documentation and specifically agreed to;
(i) Interim storage costs as referred to in clause 6.3; (ii) Site preparation; and (iii) Sealers or surface treatment.
4.1.4 Prices do not include:
(a) The provision of any mechanical fastening systems or embeds of any sort, unless outlined in proposal documentation and specifically agreed.
(b) Sealers or surface treatment by others.
4.2 Price and Specifications Variation
4.2.1 Quotations are based on quantities stated within the Contract or quotationQuotation and may not represent the final quantities required for installation, in which case the Client shall pay for any additional costs.
4.2.2 If the architectural drawings, contract drawings, site conditions, shop drawings, site sketches, or engineered assembly drawings deem alternative quantities, then those quantities will prevail and will be considered in addition to the Contract.
4.2.3 MMD reserves the right to by giving notice to the Client, increase the Price in the event of a variation to the quotation resulting from:
(a) A request for change to the Materials supplied, including but not limited to quantities or specifications;
(b) A request for change to the Works originally scheduled, including but not limited to any applicable plans, delivery dates or specifications;
(c) Additional Works required due to the discovery of hidden or unidentifiable difficulties that could not reasonably be discovered prior to the commencement of the Works, including but not limited to hard rock barriers below the surface, alterations in joinery or hidden pipes or wiring in walls or benches;
(d) Cost increases that are beyond MMD’s control or reasonable foresight including those relating to labour, materials, currency exchange rate fluctuations and freight costs;
(e) Any costs associated with additional lifting and/or handling; and
(f) Any delay caused by inaccurate instructions of the Client or failure of the Client to give MMD adequate information or instructions.
4.3 Where there is a variation to the specifications and/or quotation and Price, these will be documented in writing on an invoice, and only after written acceptance by the Client of these variations will Works based on these variations commence.
5. TERMS OF PAYMENT
5.1 Payment time of the Materials/Works is of the essence. The Price will be payable by the Client on the date(s) determined by MMD, which may be:
(a) On Delivery of the Materials;
(b) Before Delivery of the Materials;
(c) The date specified on any invoice, quotation or other form as being the date for payment;
(d) By way of progress payments in accordance with MMD’s specified progress payment schedule. Such progress payment claims may include the reasonable value of authorised variations and the value of any Materials delivered to the site but not yet installed; (e) Thirty (30) days following the date of the invoice; or
(f) Failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by MMD.
5.2 Receipt of payment Receipt by MMD of any form of payment other than cash shall not be deemed to be payment received until that form of payment has been honoured, cleared or recognised.
5.3 Deposit At MMD’ sole and absolute discretion, the Client may be required to pay to MMD a non-refundable deposit for the Materials/Works. Payment Methods
5.4 Payment Method
5.4.1 Payment may be made by cash, cheque, bank cheque, EFT transfer, BPAY, credit card (plus a surcharge of up to three percent (3%) of the Price), or by any other method as specified by MMD or as agreed to between MMD and the Client.
5.4.2 The Client must provide proof of financing or a payment guarantee upon request by MMD. Payment Default
5.5 Payment Default
5.5.1 If the Client fails to make any payment on the payment due date or is in breach of any obligation the Client is subject to under these Conditions then, without limitation to any other right or remedy available to MMD at law, MMD shall be entitled to: (a) Cancel or terminate all or any part of the Contract or Purchase Order that remains unfulfilled, or suspend any further delivery and supply of Materials/Works to the Client. In addition, all amounts owing to MMD, whether or not yet due for payment, shall become immediately payable if:
(i) Any money payable to MMD becomes overdue, or in the opinion of MMD, the Client will be unable to make a payment when it falls due;
(ii) The Client becomes insolvent or bankrupt, convenes a meeting with its creditors or proposes to enter into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(iii) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
(b) Charge interest to the Client on the unpaid balance:
(i) Such interest shall accrue on a daily basis from the payment due date until the receipt date (in accordance with clause 5.2) of the full amount by MMD whether before or after any judgment, at a rate of two point five percent (2.5%) per calendar month; and (ii) At MMD’s sole discretion, such interest may compound monthly at such a rate as prescribed in clause 5.5.1(b)(i);
5.5.2 If the Client defaults in payment, it shall indemnify MMD from and against all costs, disbursements and expenses incurred or sustained by MMD in recovering sums due or in exercising its rights pursuant to the Contract or Purchase Order, including but not limited to collection costs and agency fees, bank dishonour fees and any legal costs and expenses on a full indemnity basis.
5.5.3 Further to any other rights or remedies MMD may have under these terms and conditions, if the Client has made payment to MMD using credit card and the transaction has been subsequently reversed as a result of fraud, illegality, or being in contravention of the Client’s obligations under this agreement, the Client shall be liable for the amount of the reversed transaction in addition to any further costs MMD is entitled to under clause 5.5
5.5.4 MMD will not be liable to the Client for any loss or damage the Client suffers as a result
5.6 Other Rights upon Payment Default
5.6.1 Where the Client has left any item or Materials with MMD for repair, modification, exchange or for MMD to perform any other services in relation to the item, and MMD has not received or been tendered the whole of any monies owing to it by the Client, MMD shall have, until all monies owing to MMD are paid:
(a) A lien on the item, which shall continue despite the commencement of proceedings or judgment for any monies owing to MMD having been obtained against the Client; and
(b) 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 Materials
5.7 Building and Construction Industry Security of Payment Act 2002 (“SOP Act”) of Victoria
5.7.1 At the sole discretion of MMD, if there are any disputes or claims for any unpaid Materials/Works, then the provisions of the SOP Act may apply.
5.7.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the SOP Act except to the extent permitted by the SOP Act where applicable.
6.1.1 Delivery time is not of the essence in this agreement. Any delivery or shipping date or time for Materials/Works quoted by MMD to the Client are MMD’s best estimate for informational purposes only.
6.1.2 Delivery of the Materials is taken to occur at the time that:
(a) MMD or MMD’s nominated carrier delivers the Materials to the Client’s nominated delivery address even if the Client is not present at the address; or
(b) The Client or Client’s nominated carrier takes possession of the Materials at MMD’s address.
6.2.1 Where completion of the Works in full or in part is not prompt or is delayed by circumstance(s) beyond the reasonable control of MMD, including but not limited to:
(a) Any failure of the Client to: (i) Make a selection; (ii) Have the site ready for the Works; and (iii) Notify MMD that the site is ready for the Works;
(b) Adverse weather conditions; and 6.3 6.4
(c) Supply of materials and/or works by a third party supplier, then the Delivery and Materials/Works commencement and completion dates shall be postponed by whatever time is reasonable in the event that MMD claims an extension of time via written notice to the Client, and MMD shall not be liable to the Client for any loss or damage resulting from such delay or failure.
6.2.2 MMD shall not be liable for any loss or damage incurred by the Client as a result of delayed or late Delivery.
6.3 Receipt & Storage
The Client must accept Delivery of the Materials by receipt or collection whenever they are tendered for delivery. In the event that the Client is unable to take Delivery of the Materials as agreed to, MMD shall be entitled to charge the Client a reasonable fee for redelivery and/or (interim) storage.
MMD may deliver the Materials/Works in separate instalments. Each separate instalment shall be invoiced and paid for by the due dates specified by MMD and in accordance with clause 5.
7. DIMENSIONS, PLANS & SPECIFICATIONS
7.1 All customary building industry tolerances shall apply to the dimensions and measurements of the Materials unless MMD and the Client agree otherwise in writing.
7.2 Information supplied by the Client is the Client’s responsibility. MMD shall be entitled to rely on the accuracy of any drawings, designs, plans, specifications and other information it receives from the Client or its designers at the time of Contract or subsequently given by other methods of communication, including but not limited to those relating to cut-out dimensions, overhangs, splashbacks and positioning of cut-outs. MMD shall not be liable whatsoever for any Works it conducts or any changes it makes to the Materials deemed incorrect or unsatisfactory based on such reliance.
7.3.1 The Client acknowledges and undertakes responsibility to ensure that all Materials, that MMD is required to install are of the correct type, size, standard, quality, colour and finish, conform with all relevant Australian standards and local authority and statutory requirements and are as specified in the specifications, drawings and plans upon which MMD based the quotation.
7.3.2 The Client shall ensure that cabinets are secured firmly to the wall, installed correctly are level and have sufficient braces and that the floor can support the prescribed weight.
7.3.3 The Client agrees to indemnify MMD against any costs incurred by MMD in rectifying such errors if and where necessary.
7.4.1 If the giving of an estimate or quotation for the supply of Materials involves MMD estimating measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of MMD’s estimated measurement and quantities before the Client places an order based on such estimate, or accepts such quotation.
7.4.2 In the event the Client require any changes to MMD’s estimated measurements and quantities, the Client shall request such changes in writing:
(a) In the case of an estimate, before placing an order based on that estimate; and
(b) In the case of a quotation, before acceptance of that quotation.
8. CLEAR ACCESS
8.1 The Client shall ensure that MMD has clear and unrestricted access to the designated worksite at all times to enable it to deliver the Materials and undertake the Works. In connection with clause 8.1,
8.2 MMD and its employees, agents, contractors and other authorised representatives, shall not be liable for any loss or damage to the site, including but not limited to damage or change to pathways, driveways, and concreted, paved or grassed areas, except where such loss or damage is directly caused by the negligence of MMD.
9.1 Concealed Services Prior to MMD commencing any Works, the Client must advise MMD, where applicable, of the precise location of all concealed services on the site and clearly mark the precise area in the Client’s plans as well as physically identify such services on the worksite. The concealed services the Client must identify and disclose to MMD include, but are not limited to:
(a) Electrical, water, gas and sewer services; and
(b) Telecommunication and telephone cables, fibre optic cables. Whilst MMD will take all care to avoid damage to any service, the Client agrees to indemnify MMD in respect of all and any liability claims, loss, damage, cost and fines as a result of damage to services not precisely located and notified in accordance with clause 9.1.
9.3 The Client agrees to ensure that the worksite is free of asbestos or any other toxic materials. In the event that such materials are discovered, it is the Client’s responsibility to ensure the safe removal thereof. The Client further agrees to indemnify MMD against any costs incurred by MMD as a consequence of such discovery. Under no circumstance will MMD handle removal of asbestos or toxic materials.
9.4 The Client shall be fully responsible for the clean-up and removal of waste and extra materials from the worksite.
9.5 The Client shall ensure that the worksite is equipped with materials and/or equipment to clean up or remove any substance(s) that may affect or damage the Materials.
10. INSTALLATION WORK
10.1 Hours of installation
10.2 The Client accepts that the installation of any marble, granite, stone and/or masonry shall be at the sole discretion of MMD.
10.3 Where MMD is required to install the Materials, the Client shall ensure that:
(a) The area of installation is free of debris and is safe;
(b) The construction of the premises, structure, equipment or joinery in or upon which the Materials are to be installed or erected is sound and will sustain the installation, Materials and Works required, and MMD shall not be liable for any claim, demands, losses, damage, costs and expenses however caused or arising in connection with the installation and Works incidental thereto, including any damage to cupboard fronts or wall fixings; and
(c) Any removable item(s) that can be damaged or affected by dust and/or water are removed from the area and/or sufficiently covered. MMD shall not be liable for any loss or damage relating thereto. Any such removable items shall be removed by the Client prior to the Works.
10.4 With any installation or erection of the Materials/Works, MMD shall comply with:
(a) Any applicable recommendations or instructions by the supplier(s); and
(b) Common industry practice to perform the Works unless otherwise mutually agreed to with the Client.
10.5 MMD shall not be liable for any damage to completed Works caused by the Client or third party after installation, including but not limited to cracks and fissures.
10.6 MMD reserves the right to add joints where it deems necessary commensurate with health and safety guidelines and accessibility. The Client shall be liable for any extra costs thereof.
10.7 In the event that MMD is required to alter the cabinets by routing or cutting out sections or providing extra braces, MMD reserves the right to charge an extra $50.00 per cabinet at the time of installation.
11.1 The Client shall insure the Materials on or before Delivery in accordance with clause 6.1.2. Risk of damage to or loss of the Materials shall immediately pass to the Client upon Delivery at the delivery or project address. Under no circumstances shall MMD be under any liability with respect to arranging insurance, and no claim shall be made against MMD for any failure to arrange or ensure that the Materials are insured adequately or at all. However, should MMD damage any delivered Materials due to its negligence or recklessness, then that Material will be replaced free of charge.
11.2 Where MMD is required to both supply and install the Materials, then MMD shall maintain a contract works insurance policy until the Works are completed. Upon completion of the Works, all risk for the Works shall immediately pass to the Client.
11.3 The Client agrees to indemnify MMD against any damage occurring after Delivery and installation.
11.4 Notwithstanding the provisions of clauses 11.1 and 11.2, if the Client specifically requests MMD to leave Materials outside MMD’s premises for collection or to deliver the Materials to an unattended location, then all risk for such Materials shall immediately pass to the Client, and it shall be the Client’s full responsibility to ensure the Materials are adequately insured.
(a) In the event that such Materials are lost, damaged, or destroyed after they have been left at a location nominated by the Client irrespective of whether it is attended to or not, the Client shall be liable for the replacement of the Materials.
12.1 MMD and the Client agree that ownership of the Materials shall not pass until: (a) The Client has paid MMD all amounts owing to MMD; and
(b) The Client has met all of its other obligations to MMD as agreed to orally and/or in writing.
12.2 It is further agreed that:
(a) Until ownership of the Materials has passed to the Client in accordance with clause 12.1, the Client is only a bailee of the Materials and unless the Materials have become fixtures, must return the Materials to MMD on request;
(b) The Client holds the benefit of the Client’s insurance of the Materials on trust for MMD and must pay to MMD the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed;
(c) If any of the Materials are damaged or destroyed following Delivery but before ownership passes to the Client, MMD is entitled to receive all insurance proceeds payable for the Materials. The production of this agreement by MMD is sufficient evidence of MMD’s rights to receive the insurance proceeds;
(d) The Client must not sell, dispose or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Materials then the Client must hold the proceeds of any such act on trust for MMD and must pay or deliver the proceeds to MMD on demand;
(e) The Client should not convert or process the Materials or intermix them with other goods, but if the Client does so, the Client shall hold the resulting product on trust for the benefit of MMD and must sell, dispose of or return the resulting product to MMD as it so directs;
(f) The Client irrevocably authorises MMD to enter any premises where MMD believes the Materials are kept and remove the Materials/Works for the purpose of recovering immediate possession of the Materials/Works as MMD’s property without prejudice to MMD’s right to recover any further expenses, including but not limited to expenses arising from the removal or disassembly of the Materials/Works;
(g) MMD may recover possession of any Materials in transit whether or not Delivery has occurred;
(h) The Client shall not charge or grant any encumbrance over the Materials nor grant or otherwise give away any interest in the Materials while they remain the property of MMD;
(i) MMD may commence proceedings to recover the Price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Client;
(j) Any surplus of Materials that MMD brings to the site remain the property of MMD.
13. SECURITY INTEREST
13.1 Notwithstanding Delivery of the Materials/Works and the passing of risk, damage to or loss thereof, or any other provision of these terms and conditions, MMD shall retain a purchase price security interest in the Materials/Works until MMD has received, in cash or immediately available funds, payment in full of the Price of the Materials/Works and all other Materials/Works agreed to be sold by MMD to the Client for which payment is due.
13.2 In consideration of MMD agreeing to supply the Materials, the Client charges all of its rights, title and interest (whether joint or several) in any land, real property or other assets capable of being charged that is 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 monies.
13.3 The Client indemnifies MMD from and against all costs and disbursements – including but not limited to legal costs on a solicitor and own client basis – incurred by MMD in exercising its rights under this clause 13.
13.4 The Client irrevocably appoints MMD and each director of MMD as the Client’s true and lawful attorney(s) to perform all necessary acts to give effect to the provisions of this clause 13 including but not limited to signing any document on the Client’s behalf
14. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)
14.1 In this clause 14, “financing statement”, “financing change statement”, “security agreement” and “security interest” have the definitions given to them under the PPSA.
14.2 Upon assenting to these Conditions in writing, the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and create a security interest in all Materials that have previously been supplied and that will be supplied in future by MMD to the Client.
14.3 The Client further agrees that it grants to MMD a security interest in the secured property and the proceeds of sale of the secured property for the purposes of the PPSA.
14.4 MMD shall be entitled to at any time during which it retains a security interest in the Materials/Works, require the Client to deliver up the Materials/Works to MMD and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where the Materials/Works are situated and repossess the Materials/Works.
14.5 The Client agrees to cooperate with MMD in regard to creating a security interest in the Materials and in line with any PPSA requirements, including undertaking to:
(a) Promptly sign any further documents and/or provide any further notice or document (such information to be complete, accurate and up-to-date in all respects) that MMD may reasonably require to:
(i) Register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register (“PPSR”); 14.6 14.7 14.8 14.9 14.10
(ii) Register any other document required to be registered under the PPSA;
(iii) Correct a defect in a statement referred to in clauses 14.5(a)(i) or 14.5(a)(ii);
(iv) Provide more effective security over the secured property;
(v) Allow MMD to exercise its rights in connection with the secured property; and (vi) Show to MMD the Client’s compliance with these requirements.
(b) Indemnify, and upon demand reimburse MMD for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Materials charged thereby;
(c) Not register or permit to be registered a financing change statement in respect of a security interest without the prior written consent of MMD;
(d) Not register or permit to be registered a financing statement or financing change statement in relation to the Materials and/or collateral in favour of a third party without the prior written consent of MMD; and
(e) Immediately advise MMD of any material change in its business practice of selling the Materials that would result in a change in the nature of proceeds derived from such sales.
14.6 MMD 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.
14.7 The Client waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d), 132(4) and 157 of the PPSA, unless otherwise agreed to.
14.8 The Client waives its rights as a grantor and/or debtor under sections 142 and 143 of the PPSA.
14.9 The Client shall unconditionally ratify any actions taken by MMD under clauses 14.5 to 14.7.
14.10 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 provisions of the PPSA.
12. DEFECTS, WARRANTIES & LIABILITY
15.1 Except as expressly exempted and subject to the Client’s responsibilities within these terms and conditions and, MMD warrants that:
(a) All marble, granite, stone and/or masonry supplied by MMD are covered for ten (10) years under its supplier warranty and subject to the conditions provided by the supplier; Except as expressly set out in these terms and conditions or in respect of the Non excluded Guarantee, MMD limits any warranty in respect of engineered stone to that of the manufacturer.
(b) Any workmanship defects directly caused by MMD of fabrication shall be covered by MMD until the job is completed. Upon satisfactory completion, MMD shall not be responsible for any damage thereafter.
15.2 In no event shall the total monetary liability of MMD to the Client under a Contract for any and all claims or causes of action exceed the cumulative amount of the payments made by the Client and actually received by MMD for the Materials/Works under a Contract.
15.3 The quality and specifications of the Materials/Works shall be those set out in the Purchase Order or Contract, subject to the following:
(a) The Client accepts that the Materials supplied may:
(i) Fade or change colour over time;
(ii) Expand, contract or distort as a result of exposure to heat, cold, temperature changes, humidity and weather changes;
(iii) Be damaged by impact or scratching; and
(iv) Mark or stain if exposed to certain substances – Marble and granite are porous (therefore products supplied by MMD are sealed for protection? Any extra cost to the Client?). However, their contact with oil and other acidic substances are likely to cause discolouration and staining.
(b) The Client accepts that marble, granite, stones and engineered stones have natural markings, indentations, texture, grain, colour, shading and veining that may likely vary from the sample(s) provided to the Client. MMD provides no express or implied guarantee that the sample(s) and supplied Materials will match, and shall not be liable in any way whatsoever for any difference thereto;
(c) The Client accepts that slight tolerances in both overhangs and thickness can be expected in templating and stone fabrication;
(d) All thicknesses quoted are nominal and MMD shall not be liable for reasonable variations of whatsoever nature;
(e) Seams in natural stone and engineered stone may range from 0-2mm with a maximum variation of +1mm; and
(f) Once Materials are fitted, no responsibility can be taken by MMD for any cracks or fissures appearing in the Materials.
15.4 Any descriptions of Materials offered are for guidance only and do not imply suitability for any particular purpose. MMD shall not be liable for the Client’s reliance on MMD’s skill and/or judgment as to whether the Materials/Works supplied are reasonably fit for any purpose for which they are being acquired.
15.5 MMD shall under no circumstances be liable to the Client or be deemed to be in breach of the Contract by reason of delay in performing, or any failure to perform any of MMD’s obligations in relation to the Materials/Works if the delay or failure was due to any cause beyond MMD’s reasonable control. This includes but is not limited to:
(a) Reasonable wear and tear; 15.6 15.7 15.8
(b) Any accident, natural disaster, act of God, weather conditions, explosion, flood or fire (including bushfire);
(c) War or threat of war, sabotage, insurrection, protests or civil disturbance;
(d) Acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental or local authority;
(e) Import or export regulations or embargoes;
(f) Strikes, lock-outs or other industrial actions or trade disputes, whether involving MMD employees or third parties;
(g) Difficulties in obtaining supplies, raw materials, labour, fuel, parts or machinery; and
(h) Power failure or breakdown in machinery.
15.6 The Client accepts and agrees that MMD shall not accept any responsibility for any damage that arises during the installation of any marble, granite, stone and/or masonry in the event that any third party contractor employed by the Client.
15.7 In no event shall MMD be liable to the Client or any other third party for any damage that arises out of or in connection with the use or resale of Materials/Works by the Client.
15.8 Competition and Consumer Act 2010 (“CCA”) and Non-Excluded Guarantees
If MMD is required to replace any Materials under this clause 15 or the CCA but is unable to do so, MMD may refund any money the Client has paid for the Materials.
If the Client is not a consumer within the meaning of the CCA, MMD’s liability for any defect or damage in the Materials is:
(a) At MMD’s sole discretion limited to the value of any express warranty or warranty card provided by MMD to the Client;
(b) Limited to any warranty to which MMD is entitled, if MMD did not manufacture the Materials; or
(c) Otherwise negated absolutely.
Under applicable State, Territory and Commonwealth Law(s) including without limitation the CCA, certain statutory guarantees and warranties may be implied into these Conditions and cannot be excluded by law (“Non-Excluded Guarantees”). MMD accepts 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, MMD shall provide no warranty in respect of natural stone after installation has completed
If the Client is a consumer within the meaning of the CCA, the liability of MMD shall be limited to the fullest extent permissible under section 64A of Schedule 2.
The Client must inspect all Materials and Works upon Delivery and completion, and must within seven (7) days from the date of Delivery or where the defect or failure was not evident on reasonable inspection as soon as reasonably practicable after discovery, notify MMD in writing of any evident defect or damage, shortage in quantity, or failure to comply with the description or quotation, otherwise claims based on warranty will be void. Upon notification of the defect or damage, the Client must allow MMD to inspect the Materials/Works.
In regard to the Materials/Works, notwithstanding clauses 14.1 to 14.3 but subject to the CCA, MMD shall not be liable to the Client or deemed to be in breach of the Contract for any defect or damage that may be caused or partly caused by, or arise as a result of:
(a) The Client’s negligence, including but not limited to failing to properly maintain or store any Materials/Works;
(b) The Client’s use of the Materials/Works for any purpose other than for that for which they were designed;
(c) The Client or third party’s incorrect movement, installation or erection, and wilful damage of or to the Materials/Works;
(d) The Client’s continued use of the Materials/Works after a defect becomes evident or should have become evident to a reasonably prudent operator or user;
(e) The Client or third party’s interference without prior approval of MMD including but not limited to alterations or repairs of the Materials/Works;
(f) The Client’s failure to follow any instructions or guidelines provided by MMD whether oral or in writing;
(g) Reasonable wear and tear; and
(h) Any accident or act of God.
15.10 Returns Subject to this clause 15, returns of Materials/Works shall only be accepted if:
(a) The Client has received MMD’s written consent to such return. Consent lies in the full discretion of and may be refused by MMD;
(b) The Client has complied with the provisions of clause 15.8.1;
(c) MMD has agreed that the Materials are defective;
(d) The Materials are returned within a reasonable time at the Client’s own expense; and
(e) The Materials are returned in as close a condition to that in which they were delivered as is possible.
MMD may in its absolute discretion, accept non-defective Materials for return in which case MMD may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Materials plus any freight costs.
Notwithstanding anything contained in this clause 15, if MMD is required by law to accept a return, MMD shall only accept such return on the conditions imposed by that law.
Any credits for the returned Materials shall be an amount determined by MMD in accordance with the condition of the Materials at the time of their receipt by MMD.
In the case of the supply of any second-hand Materials, the Client accepts:
(a) That it has had full opportunity to inspect the second-hand Materials prior to Delivery;
(b) The Materials with all faults;
(c) That to the extent permitted by law, no warranty is given by MMD as to the quality or suitability for any purposes; and
(d) That any implied warranty, statutory or otherwise, is expressly excluded. 17. 17.1
17.1 Cancellation by MMD
MMD may cancel any Contract to which these terms and conditions apply, or cancel delivery of Materials/Works at any time before the Materials/Works are delivered by giving written notice to the Client. After giving such notice, MMD shall repay to the Client any sums paid for the Materials/Works (less any amounts for Materials/Works already performed). MMD shall not be liable for any loss or damage whatsoever arising from such cancellation.
17.2.1 Cancellation by the Client
Where the Client cancels delivery of Materials/Works, the Client shall be immediately liable for any and all loss incurred directly or indirectly by MMD as a direct result of the cancellation, including but not limited to any restocking fees and loss of profits.
17.2.2 Cancellation of orders for Materials made to the Client’s specifications or for non-stocklist items will under no circumstances be accepted once production or manufacture has commenced, or an order thereof has been placed.
18. INTELLECTUAL PROPERTY
18.1 Where MMD has designed, drawn, written or prepared plans or a schedule of works, or created or developed any products and/or Materials/Works for the Client, then the copyright in all such designs, drawings, documents, plans, schedules and products shall remain the property of MMD and shall only be used by the Client with the prior consent and at the full discretion of MMD: 18.2 18.3
(a) MMD shall have and retain all right, title and interest in and to any and all trade secrets, technical data, sales service and product plans, methodologies, techniques, designs, moulds, tools, samples, systems, know-how, expertise and other proprietary information that it may use pursuant to, or in connection with any Materials/Works; and
(b) The Client shall not obtain a license to or any other property rights in any such MMD property pursuant to or in connection with this agreement.
18.2 The Client warrants that all designs, specifications or instructions given to MMD shall not cause MMD to infringe any patent, registered design or trademark in the execution of the Client’s order, and the Client shall agree to indemnify MMD against any action taken by a third party against MMD in respect of any such infringement.
18.3 The Client agrees that MMD may at no cost use for the purposes of marketing or entry into any competition, any documents, designs, drawings, plans or products that MMD has created for the Client.
19. PRIVACY ACT 1988 (“Privacy Act”)
19.1 The Client may request in writing to MMD that MMD does not disclose any personal information about the Client provided to MMD for the purposes of third party marketing.
19.2 The Client agrees for MMD to obtain from a credit reporting agency or body a credit report containing personal credit information about the Client in relation to credit provided by MMD.
19.3 The Client consents to MMD obtaining a consumer credit report to collect overdue payment on commercial credit in accordance with section 18K(1)(h), Part IIIA of the Privacy Act.
19.4 The Client agrees that the personal credit information provided to MMD may be used and retained by MMD for the following purposes (and for any other purpose as shall be agreed to between MMD and the Client, or as required by law from time to time):
(a) The provision of Materials/Works;
(b) Analysing, verifying or checking the Client’s credit, payment and status in relation to the provision of Materials/Works;
(c) Processing any payment instructions, direct debit facilities or credit facilities requested by the Client; and
(d) Enabling the daily operation of the Client’s account and the collection of any amounts outstanding in the Client’s account in relation to the Materials/Works.
19.5 MMD may provide information about the Client to a credit reporting agency for the following purposes:
(a) To obtain a consumer credit report about the Client; and
(b) To allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
19.6 Information of the Client and/or its relevant employees provided to the credit reporting agency in accordance with clause 19.5 may include:
(a) Personal particulars (name, gender, current and previous addresses, date of birth and driver’s licence number);
(b) Details regarding the Client’s application for credit or commercial credit and the amount(s) requested, including the date of commencement or termination of the credit account;
(c) Advice that MMD is a current credit provider to the Client;
(d) Advice of any overdue accounts, loan repayments and/or any outstanding monies owing that are overdue by more than sixty (60) days, and for which debt collection action has commenced;
(e) Advice that the amount of the Client’s overdue payment(s) is equal to or more than one hundred and fifty dollars ($150);
(f) Advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(g) In the opinion of MMD, any information implying or showing that the Client has committed a serious credit infringement; and
(h) Advice that credit provided to the Client by MMD has been paid or otherwise discharged.
19.7 The Client agrees that MMD may exchange information about the Client with credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency including for the following purposes:
(a) Assess an application by the Client;
(b) Notify other credit providers of a default by the Client;
(c) Where the Client is in default with other credit providers, exchange information with other credit providers as to the status of this credit account; and
(d) Assess the creditworthiness of the Client. The Client accepts that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act.
20. DISPUTE RESOLUTION
20.1 If a dispute arises between MMD and the Client in respect of these terms and conditions, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of such dispute. Within fourteen (14) days after service of that notice, the relevant parties shall convene at least once to discuss and attempt to resolve the dispute:
(a) This may be in the form of mediation;
(b) At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute;
(c) In the event that the dispute cannot be resolved, either party may by further notice in writing to the other party, refer such dispute to arbitration.
21. GOVERNING LAWS AND JURISDICTION
21.1 Any reference in these terms and conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
21.2 MMD and the Client shall submit to the jurisdiction of the courts of Melbourne, Victoria with respect to any proceedings which may be brought at any time between MMD and the Client.
21.3 The terms and conditions of this agreement, Purchase Orders, Contracts, quotations and any other document to which they apply shall be governed by and construed in accordance with the laws of the state of Victoria.
21.4.1 The Client and MMD shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Materials/Works.
21.4.2 The Client shall obtain at its own expense, all licences and approvals that may be required for the Works.
21.4.3 The Client agrees that the Works will comply with any occupational health and safety laws relating to building or construction sites and any other relevant safety standards or legislation.
22.1 If in doubt, these terms and conditions represent the entire agreement between MMD and the Client with respect to the sale of the Materials/Works to the Client and supersede any previous written, oral or other communications by either party related to the Materials/Works.
22.2 The failure of MMD to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the right of MMD to subsequently enforce that provision.
22.3 MMD may license or sub-contract all or any part of its rights or obligations without the Client’s consent.
22.4 The Client shall not be entitled to set off against, or deduct from the Price any sums owed or claimed to be owed by MMD to the Client, nor to withhold payment of any invoice because all or part of that invoice is in dispute.
If any provision of these terms and conditions is held by qualified authority to be invalid, void, illegal or unenforceable in whole (or in part), the validity, existence, legality and enforceability of the other provisions of these Conditions (or the remainder of the provisions in question) shall not be affected, prejudiced or impaired.
Subject to clause 15(defects warranties), MMD 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 from a breach by MMD of these terms and conditions. Alternatively, the liability of MMD shall be limited to damages which under no circumstances shall exceed the Price of the Materials/Works.
The remedies provided in this agreement are not exclusive of any rights and remedies provided under law and equity.
22.8 Amendment of Terms and Conditions
The Client agrees that MMD may amend these terms and conditions at any time. Should MMD make any such amendment, it shall take effect from the date on which MMD notifies the Client of such change. Further, the Client shall be taken to have accepted such changes if the Client makes a further request for MMD to provide any Materials/Works to the Client.
22.9 The Client warrants that:
(a) It has the authority to enter into this agreement and has obtained all the necessary authorisations to allow it to do so;
(b) It is not insolvent; and
(c) This agreement creates binding and valid legal obligations on the Client.