1.1.    Company means Marmo Pty Ltd (ABN 76 673 878 969).

1.2.    Customer means the person or persons buying the Products.

1.3.    Estimate means any estimate by the Company in respect of a request by the Customer to supply a Product or several Products, and to which these terms and conditions are attached by reference.

1.4.    Order means an order for the supply of Products by the Company.

1.5.    Price means the Price payable for the Products, as calculated or determined in accordance with these terms and conditions.

1.6.    Products means all goods to be supplied by the Company to the Customer at the Customer’s request and includes the supply of any related services such as the provision of advice or recommendations relating to the Products.

2.1.    The Customer may request an Estimate from the Company from time to time.

2.2.    The Customer is taken to have accepted the Estimate if the Customer:

(a)  signs and returns the Estimate; or

(b)  sends an email accepting the Estimate (expressly or implied, as determined by us, acting reasonably); or

(c)   makes any payment of the Price including any deposit.

2.3.    Upon acceptance of the Estimate by the Customer in accordance with clause 2.2, a binding agreement for the supply of the Products is deemed to be formed between the Company and the Customer.

3.1.    Unless otherwise agreed with the Customer, a deposit of 50% of the Price of the Products is payable to the Company within seven (7) days of the Customer’s acceptance of the Estimate.  

3.2.    Upon receipt of the deposit, the Company will issue the Customer an invoice for the Products.

3.3.    Any deposits paid by the Customer are not refundable if the Order is later cancelled by the Customer.

3.4.    The Customer accepts that some Products may require a lead-time of approximately twelve (12) weeks or more from the date of the Order being confirmed.

3.5.    The Customer is liable for and, indemnifies the Company for, any additional and/or unforeseen costs not presented in the Estimate, in connection with, or in any way related to facilitating the transportation of the Products into Australia, including but not limited to costs imposed by any transport, logistics and/or shipping supplier, and/or in connection with Australian Customs’ clearance.

4.1.    The Customer acknowledges that Stone is a natural product which will vary in colour, shade, pattern and veining and does contain natural fissures, markings and flaws (hereafter, Natural Stone).

4.2.    The Company cannot and does not warrant that any Natural Stone will match the characteristics of samples inspected in the Company’s showroom or installed in other projects. In addition, Natural Stone products are generally cut from blocks quarried at similar times in similar locations. For this reason, later orders of the ‘same’ product are likely to exhibit more varied characteristics than products ordered with the same batch. For this reason, the Company cannot guarantee any particular characteristic of any Natural Stone product. The Company will not consider any claims in relation to natural variations including any ‘failure’ to match samples.

4.3.    Images and descriptions of Natural Stone on the Company’s website or sales materials are for illustration purposes only.

4.4.    Natural Stone can and does stain. Natural Stone is not stain-proof and is susceptible to etching.

4.5.    Natural stone is porous and the level of porosity will vary from one stone to another. Regardless of the level of porosity, staining will occur if the stone is not sealed and protected correctly at the outset. It is the Customer’s responsibility to seek independent professional advice for sealing, protecting and cleaning Natural Stone. We expressly exclude all responsibility and liability for any staining, damage or discolouring caused or partially caused, or contributed to, by inadequate sealing or cleaning, or inappropriate sealing or cleaning products or methods.

4.6.    Subject to applicable law, the Customer acknowledges and agrees that:

(a)  it is the Customer’s sole decision and responsibility to determine whether Natural Stone is suitable and fit for the intended purpose(s);

(b)  the Customer should obtain independent testing of Natural Stone to verify suitability before placing an Order;

(c)   Natural Stone should be professionally installed;

(d)  the Customer is responsible for ensuring all surfaces and substrates are professionally prepared and are suitable for Natural Stone;

(e)  any advice given on the above matters by the Company is of a general nature only and without regard to your actual circumstances and should be approved by your professional advisors prior to installation;

the Company takes no responsibility for Products that have already been installed.

5.1.    The Price for the Products is the price specified in the Estimate or other document provided by the Company, provided the price is accepted by the Customer in writing within thirty (30) days of receipt of the Estimate. All amounts are stated in Australian dollars and are exclusive of GST (unless otherwise stated).

5.2.    If no price has been agreed upon in accordance with clause 5.1, the Price for the Products shall be the price indicated on any Estimate or invoice provided by the Company.

5.3.    For the avoidance of doubt, if the Building And Construction Industry Security of Payment Act 2009 (SA) (SOPA) applies to the Order, then any invoice issued by the Company in respect of that Order is a Payment Claim within the meaning of SOPA.

5.4.    The Company reserves the right to change the estimated Price:

(a)  if the Customer varies the Order in accordance with clause 6; or

(b)  in the event of increases to the cost of the Products which is beyond the Company’s control, including but not limited to variations in foreign currency exchange rates and/or international freight and insurance charges.

5.5.    The due date for full and final payment of the Price will be:

(a)  the date specified on the invoice for the Products; or

(b)  if no such date is specified, fourteen (14) days after the date of the invoice.

5.6.    The time for payment of the Price is of the essence under these terms and conditions.

5.7.    Payment of the Price may be made by direct deposit or by any other method agreed by the Company. Payment will be made when the funds clear in the Company‘s designated bank account.

5.8.    The Customer must pay all money due to the Company before the Company will supply the Products to the Customer.

6.1.    The Customer may request a variation or change to the Products including the timing for collection of the Products, by providing written notice (including by email) to the Company, with details of the variation or change (Variation Request).

6.2.    The Company will not be obliged to comply with a Variation Request unless:

(a)  the Company accepts it in writing; and

(b)  the Company has adjusted the Price to reflect the variation (Price Variation); and

(c)   the Customer has accepted the Price Variation in writing.

6.3.    If the Company considers that any instruction or direction from the Customer constitutes a variation, then the Company will not be obliged to comply with such instruction or direction unless a Variation Request has been sent to the Company in accordance with clause 6.1.

7.1.    Products must be collected from the Company’s warehouse by the Customer or its nominated carrier (deemed to be the Customer’s agent).

7.2.    Before collection, the Customer or its nominated carrier must thoroughly inspect the Products to verify there are no cracks, irregularities or any other defects.

7.3.    Without prejudice to the Customer’s rights at law, if the Customer does not inform the Company in writing of any fault or defect in the Products or other non-compliance with these terms and conditions within seven (7) days of collection of Products, the Customer is deemed to accept the Products as being in full compliance with these terms and conditions.

7.4.    Collection is taken to occur at the earlier of when:

(a)  the Products are handled by the Customer or its nominated carrier;

(b)  the Products are set onto the vehicle used by the Customer or its nominated carrier; or

(c)   if the Products are transferred to the vehicle without the use of the Company’s equipment, when the Products leave the warehouse floor.

7.5.    The Company may charge a reasonable storage fee if the Customer orders Products but does not collect the Products within ninety (90) days from the time the Products are received in-stock or the date of the invoice, whichever is later.

8.1.    All risk in the Products passes to the Customer on collection in accordance with clause 7 irrespective of whether ownership in the Products has passed to the Customer. The Customer should insure the Products on or before collection.

8.2.    If any of the Products are damaged or destroyed following collection but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Products. The production of these terms and condition by the Company is sufficient evidence of the Company’s right to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.

8.3.    The Customer acknowledges the Company will not accept responsibility for damage to Products after collection in accordance with clause 7 and the Customer should ensure it, or its nominated carrier has sufficient insurance to cover the Products during transit including loading and unloading.

9.1.    Title in the Products remains with the Company until the Customer has:

(a)   paid the Company the Price and all amounts owing for the Products; and

(b)  met all other obligations due in respect of these terms and conditions and any other agreements between the parties.

9.2.    Receipt by the Company 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 Company’s ownership and rights in respect of the Products shall continue.

9.3.    Until the Company has received payment of the Price and all amounts owing to it for the Products in full:

(a)  the Company shall have the right of stopping the Products in transit whether or not collection has been made;

(b)  where practicable, the Customer must ensure the Products are kept separate and identifiable;

(c)   the Customer must not change the Products in any way nor grant nor otherwise give any property interest in the Products;

(d)  the Company may give notice in writing requiring the Customer to return the Products or any of them to the Company, and if the Customer fails to return the Products within a reasonable time then the Company (or its agent) may enter upon and into land and premises owned, occupied or used by the Customer where the Products are situated to take possession and remove the Products and the Company shall not be liable for any damage, injury or loss however caused resulting from the recovery of the Products;

(e)  the Customer is only a bailee of the Products and shall hold any proceeds from the sale or disposal of the Products on trust for the Company, either in a separate account or clearly identified in its books and records as being so held for the Company;

(f)   if the Products are converted into other products then the Company shall be the owner of the end products; and

(g)  the Company may issue proceedings to recover the Price of the Products sold and all amounts owing to it for the Products notwithstanding that ownership of the Products may not have passed to the Customer.

10.1.    The Customer must notify the Company in writing within seven (7) days of collection – or such later date as the Company agrees is reasonable in the circumstances - of any defect or failure of the Products to comply with the Order in terms of type, quantity, variety or otherwise. The Customer will allow the Company to inspect the Products within a reasonable time and assist the Company to identify the nature, cause and extent of any defect.

10.2.    To the maximum extent allowed by law, the Company’s liability for negligence or any breach of these terms and conditions is limited (at its option) to:

(a)  re-supplying the Products in question; or

(b)  refunding the Price paid for the Products in question.

10.3.    This clause does not exclude or limit the application of any provision of any statute, including the Australian Consumer Law, where to do so would contravene that statute or cause any part of this clause to be void.

11.1.    The Customer accepts that non-defective Products cannot be returned to the Company for credit under any circumstances.

11.2.    The Company may at its discretion accept the return of Products that are not defective, but only if:

(a)  the Customer requests the return in writing within seven (7) days of collection; and

(b)  the Company has agreed in writing to accept the return of the Products; and

(c)   the Products are returned at the Customer’s cost within fourteen (14) days of the collection; and

(d)  the Products are returned in the condition in which they were collected; and

(e)  the Customer pays a restocking fee of up to 30% of the Price of the returned Products plus any freight or other costs.

11.3.    Products procured and supplied by the Company at the Customer’s specific request will not be accepted for return except in accordance with clause 10.

12.1.    The contract for the supply of the Products commences upon the Customer’s acceptance in accordance with clause 2, and will continue until the earlier of the date:

(a)  the Company considers the Products to be complete or collected by the Customer; or

(b)  the contract is terminated in accordance with this clause.

12.2.    Either party may terminate the contract if the other party has materially breached the contract, and such breach is not rectified within fourteen (14) days from the date notice is received by that party.

12.3.    On termination of the contract:

(a)  the Company will immediately cease providing the Products;

(b)  without limiting and subject to Consumer Law Rights, any amounts paid for Products supplied by the Company are non-refundable;

(c)   the Customer agrees to pay all amounts due and payable to the Company under these terms and conditions up to the date of termination, as a debt immediately due and payable;

(d)  the Customer agrees to return, or give the Company access to recover, all Products belonging to it on request (including any Intellectual Property or Confidential Information), and to give the Company such rights of access necessary to exercise its rights under this clause; and

(e)  without limiting the Company’s rights under clause 11.2, the Customer also agrees to pay the Company additional costs reasonably incurred and which arise directly from termination, including recovery fees.

12.4.    Unless otherwise agreed between the parties, if the contract is terminated then any outstanding Orders will also terminate on the date of termination.

12.5.    The accrued rights, obligations and remedies of the parties are not affected by the termination of the contract.

13.1.    The Company may reject any Order for Products, and/or cancel collection of Products at any time before the Products are collected by giving the Customer written notice, only in a situation requiring cancellation which is outside of the Company’s control and cannot be avoided.

13.2.    On giving such notice, the Company will:

(a)  repay the Customer any sums paid for the Products; and

(b)  not be liable to the Customer for any loss or damage howsoever arising from such cancellation.

13.3.    If the Customer cancels an Order or collection of Products:

(a)  the Company will retain any deposit paid by the Customer in respect of the Products; and

(b)  the Customer is liable for any additional losses incurred by the Company as a result of the cancellation, including but not limited to storage costs and any loss of profits.

13.4.    The cancellation of Orders for Products procured and supplied by the Company at the Customer’s specific request will not be accepted under any circumstances once an Order has been accepted.

14.1.    The Customer acknowledges the Products are ordered relying solely upon its skill and judgement.

14.2.    Any advice, recommendations, information, assistance or service provided by the Company in relation to the Products sold or their use or application is provided in good faith and the Company believes such advice to be appropriate and reliable. To the maximum extent permitted by law, the Company is not liable or responsible for any such advice provided by it in relation to any Products it sells.

14.3.    To the extent required under common law and any applicable legislation, the Company acknowledges that liability may attach in relation to, and be limited solely to, personal injury or property damage arising out of any negligence on behalf of the Company in provision of the Products.

14.4.    In the event of any breach of these terms and conditions by the Company, the Customer’s remedies shall be limited to damages which under no circumstances shall exceed the Price of the Products. The Company is under no liability whatever for any indirect loss and/or expense suffered by the Customer, including loss of profit, economic loss or other loss of turnover, business or goodwill.

15.1.    Any notice given to the Company under these terms and conditions must be in writing and be hand delivered, sent by prepaid post, or emailed to the Company at the address specified in the Estimate or other document or otherwise notified to the Customer and will be deemed given:

(a)  in case of hand delivery, on the date of delivery; or

(b)  in the case of prepaid post, two (2) business days after being posted and deemed to be served on the second business day following the day it was posted; or

(c)   in case of email, evidence that the email has been successfully sent will be prima facie evidence of the addressed recipient’s receipt of that email at the time of dispatch.

15.2.    Any notice given to the Customer under these terms and conditions must be in writing and be sent by one of the following methods:

(a)  by hand delivery to the Customer, in which case the notice will be deemed to be given on the date of delivery;

(b)  by prepaid post to the Customer’s address for delivery of the Products, in which case the notice will be deemed to be given two (2) business days after being sent by prepaid post; or

(c)   by SMS to the Customer’s mobile phone number which was previously supplied by the Customer to the Company, in which case the notice will be deemed to be given when the SMS is sent to the Customer; or

by email to the Customer’s email address which was previously supplied by the Customer to the Company, in which case the notice will be deemed to be given when the Company receives evidence that the email has been successfully sent.

16.1.    If circumstances beyond the Company’s control prevent or delay the supply of the Products, the Company is relieved of any obligation to provide the Products while those circumstances continue. The Company may elect to terminate these terms and conditions or keep them in place until such circumstances have ceased.

16.2.    Circumstances beyond the Company’s reasonable control include, but are not limited to, war, terrorism, fire, flood, storm or other severe weather condition, pandemic, lockdown or quarantine ordered by a government agency, unavailability of materials, transport difficulties, industrial action and failures or malfunctions of computers or other information technology systems.

17.1.    Joint and several liability Where the Customer consists of more than one individual or entity, the Customer shall be jointly and severally liable for the obligations set out in these terms and conditions including but not limited to the payment of the Price and all amounts owing to the Company for the Products.

17.2.    Building And Construction Industry Security of Payment Act 2009 SA If there are any disputes or claims for unpaid Products which relate to “Payment Claims” as defined in the SOPA, then the provisions of the SOPA will apply. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the SOPA, except to the extent permitted by that Act where applicable.

17.3.    Severance Nothing in these terms and conditions is intended to have the effect of contracting out of any applicable provisions of any state or federal legislation, including but not limited to the Australian Consumer Law, except to the extent permitted by such legislation where applicable. 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.

17.4.    Governing Law These terms and conditions are governed by the laws of South Australia.

17.5.    Waiver The Company’s failure to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.

17.6.    Whole Agreement These terms and conditions, together with any information in an Estimate which is accepted by the Customer, comprise the entire agreement between the Customer and the Company.  All conversations, representations and statements not confirmed in writing by the Company as part of the Estimate are expressly excluded and do not have any legal effect whatsoever.