San Marco Ceramics – Terms & Conditions of Trade
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “San Marco Ceramics” means Surfbase Pty Ltd ATF The D Turco Family Trust T/A San Marco Ceramics, its successors and assigns or any person acting on behalf of and with the authority of Surfbase Pty Ltd ATF The D Turco Family Trust T/A San Marco Ceramics.
1.3 “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting San Marco Ceramics to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
- (a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
- (b) if the Customer is a partnership, it shall bind each partner jointly and severally; and
- (c) if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
- (d) includes the Customer’s executors, administrators, successors and permitted assigns.
1.4 “Goods” means all Goods or Services supplied by San Marco Ceramics to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Indent Orders” mean any product that San Marco Ceramics has to order from overseas that has a lead time, San Marco Ceramics will raise a proforma invoice and a deposit must be paid prior to ordering production/stock.
1.6 “Stock Order” means any product that San Marco Ceramics have in stock and as soon as a purchase order is received, San Marco Ceramics will invoice the order.
1.7 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.8 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.9 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between San Marco Ceramics and the Customer in accordance with clause 6 below.
1.10 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Goods.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any advice, recommendation, information, assistance or service provided by San Marco Ceramics in relation to Goods or Services supplied is given in good faith, is based on San Marco Ceramics’s own knowledge and experience and shall be accepted without liability on the part of San Marco Ceramics. Where such advice or recommendations is not acted upon then San Marco Ceramics shall require the Customer or their agent to authorise commencement of the Services in writing. San Marco Ceramics shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services
2.4 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.5 The Customer acknowledges that the supply of Goods on credit shall not take effect until the Customer has completed a credit application with San Marco Ceramics and it has been approved with a credit limit established for the account.
2.6 In the event that the supply of Goods request exceeds the Customers credit limit and/or the account exceeds the payment terms, San Marco Ceramics reserves the right to refuse Delivery.
2.7 The Customer acknowledges and agrees that to setup up and maintain a Credit Account, a minimum dollar spend per annum must be maintained as agreed between the two parties to retain trade pricing. In the event that purchases fall below this agreed amount, then San Marco Ceramics reserves the right to either suspend and/or cancel the Credit Account.
2.8 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (New South Wales and South Australia), the Electronic Transactions Act 2001 (Australian Capital Territory), the Electronic Transactions (Victoria) Act 2000, the Electronic Transactions (Northern Territory) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (Tasmania), Section 10 of the Electronic Transactions Act 2011 (Western Australia) (whichever is applicable), or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Purchase Orders/Authorised Rep
3.1 The Customer acknowledges and agrees where the Customer does not elect to control their purchases by a Purchase Order and/or a Letter of Authority, then all purchases made by Customer and/or any other third party acting on behalf of the Customer to which the Goods are charged to the Customer’s credit account, shall remain at all times payable by the Customer. All said notices of restrictions pertaining to purchases must be writing and will remain in place until such time as the Customer revokes.
3.2 The Customer agrees to notify San Marco Ceramics in writing immediately upon of the departure of the Customer employee if an authorised account user. Failure to advise San Marco Ceramics of such departures, then the Customer acknowledges they will be bound by all purchase orders made by that account user.
4. Errors and Omissions
4.1 The Customer acknowledges and accepts that San Marco Ceramics shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
- (a) resulting from an inadvertent mistake made by San Marco Ceramics in the formation and/or administration of this Contract; and/or
- (b) contained in/omitted from any literature (hard copy and/or electronic) supplied by San Marco Ceramics in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of San Marco Ceramics; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Customer shall give San Marco Ceramics not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by San Marco Ceramics as a result of the Customer’s failure to comply with this clause.
6. Price and Payment
6.1 At San Marco Ceramics’s sole discretion, the Price shall be either:
- (a) as indicated on any invoice provided by San Marco Ceramics to the Customer; or
- (b) the Price as at the date of Delivery of the Goods according to San Marco Ceramics’s current price list; or
- (c) San Marco Ceramics’s quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days
6.2 San Marco Ceramics reserves the right to change the Price if a variation to San Marco Ceramics’ quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to San Marco Ceramics in the cost of taxes, levies, freight and insurance charges, materials and labour, or delays in shipment etc.) will be charged for on the basis of San Marco Ceramics’ quotation, and will be detailed in writing, and shown as variations on San Marco Ceramics’ invoice. The Customer shall be required to respond to any variation submitted by San Marco Ceramics within ten (10) working days. Failure to do so will entitle San Marco Ceramics to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
6.3 At San Marco Ceramics’ sole discretion, a non-refundable deposit may be required.
6.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by San Marco Ceramics, which may be:
- (a) on or before delivery of the Goods;
- (b) by way of instalments/progress payments in accordance with San Marco Ceramics’ payment schedule, which shall be due sixty (60) days from end of month for:
- (i) Indent Orders – a minimum of thirty (30%) percent deposit up to a maximum of fifty (50%) percent depending on the project size, margin and lead time. Each project is required to have its own separate schedule, which San Marco Ceramics will work to, in accordance with the schedule for each item listed; and
- (A) once Goods arrive in San Marco Ceramics’s warehouse, it will be invoiced on the day of receipt;
- (B) multiple orders, then the Customer’s shall be required to pay for the first container one hundred (100%) percent within the time period of sixty (60) days from end of month and the deposit initially paid will transfer to the second container, payment due sixty (60) days from end of month in which the second container is received, less the deposit; and
- (ii) Stock Orders - will be invoiced, as soon as a purchase order is received; or
- (c) the date specified on any invoice or other form as being the date for payment; or
- (d) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Customer by San Marco Ceramics.
6.5 Subject to clause 6.4(b) a one percent (1%) discount shall be applicable in respect of the Goods supplied by San Marco Ceramics to the Customer provided San Marco Ceramics receives payment to San Marco Ceramics’s bank account within thirty (30) days from the end of month of invoicing. Any discounts applicable to the Price shall become null and void if payment is not made within this timeframe.
6.6 Payment may be made by cheque, bank cheque, electronic/on-line banking, credit card (only VISA, MasterCard and Diners accepted and a surcharge may apply per transaction), or by any other method as agreed to between the Customer and San Marco Ceramics.
6.7 San Marco Ceramics may in its discretion allocate any payment received from the Customer towards any invoice that San Marco Ceramics determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer San Marco Ceramics may re-allocate any payments previously received and allocated. In the absence of any payment allocation by San Marco Ceramics, payment will be deemed to be allocated in such manner as preserves the maximum value of San Marco Ceramics’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
6.8 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by San Marco Ceramics nor to withhold payment of any invoice because part of that invoice is in dispute.
6.9 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to San Marco Ceramics an amount equal to any GST San Marco Ceramics must pay for any supply by San Marco Ceramics under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer 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.
6.10 All transactions are processed in Australian Dollars (AUD)
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
- (a) the Customer or the Customer’s nominated carrier takes possession of the Goods at San Marco Ceramics’s address; or
- (b) San Marco Ceramics (or San Marco Ceramics’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
7.2 At San Marco Ceramics’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
7.3 San Marco Ceramics 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.
7.4 Any time specified by San Marco Ceramics for Delivery of the Goods is an estimate only and San Marco Ceramics will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. However both parties agree that they shall make every endeavour to enable the Goods to be delivered at the time and place as was arranged between both parties. In the event that San Marco Ceramics is unable to supply the Goods as agreed solely due to any action or inaction of the Customer, then San Marco Ceramics shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.5 Failure by the Customer to pick-up or give confirmation of Goods to be dispatched after a ninety (90) day period, after the Customer has been invoiced, then San Marco Ceramics reserves the right to charged storage fees based upon the market rate at a per month per cubic m3 fee.
8.1 The Customer will be and shall remain responsible to San Marco Ceramics for all its proper charges incurred for any reason. A charge may be made by San Marco Ceramics in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of San Marco Ceramics. Such permissible delay period shall commence upon San Marco Ceramics reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and expense of the Customer.
9. On-Line Ordering
9.1 The Customer acknowledges and agrees that:
- (a) San Marco Ceramics does not guarantee the website’s performance;
- (b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by San Marco Ceramics;
- (c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
- (d) there are inherent hazards in electronic distribution, and as such San Marco Ceramics cannot warrant against delays or errors in transmitting data between the Customer and San Marco Ceramics including orders, and you agree that to the maximum extent permitted by law, San Marco Ceramics will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders; and
- (e) if the Customer is not the cardholder for any credit card being used to pay for the Goods, San Marco Ceramics shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
9.2 San Marco Ceramics reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of San Marco Ceramics’ business, or violated these terms and conditions.
10.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
10.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, San Marco Ceramics is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by San Marco Ceramics is sufficient evidence of San Marco Ceramics’s rights to receive the insurance proceeds without the need for any person dealing with San Marco Ceramics to make further enquiries.
10.3 If the Customer requests San Marco Ceramics to leave Goods outside San Marco Ceramics’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Customer’s sole risk
10.4 San Marco Ceramics shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer. The Customer acknowledges and agrees that in the event that any of this information provided by the Customer is inaccurate, San Marco Ceramics accepts no responsibility for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information.
10.5 The Customer acknowledges and agrees that:
- (a) variations of colour, shade and grain are inherent in all kiln fired products and natural stone. While every effort will be taken by San Marco Ceramics to match colour, shade or grain of product, San Marco Ceramics shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied; and
- (b) due to the nature of the product, San Marco Ceramics gives no guarantee (expressed or implied) against crazing, cracking, chipping or scratching that is beyond San Marco Ceramics’ control that may occur at the time of installation; and
- (c) it is the Customer’s responsibility to check quantities, with an on-site measurement before commencing fixing. Measurements taken off plans or the Customer’s figures by San Marco Ceramics are approximate only and no responsibility is taken for their accuracy.
10.6 If the Customer orders an insufficient number of tiles, then San Marco Ceramics will take no responsibility for any variation of colour in further batches supplied to the Customer or the inability to supply Goods at all.
10.7 San Marco Ceramics will accept no responsibility for tiles that have already been affixed.
10.8 The Customer also acknowledges that Goods (including, but not limited to, tiles, stone and ceramics) supplied may
- (a) expand, contract or distort as a result of exposure to heat, cold, weather; and
- (b) mark or stain if exposed to certain substances; and
- (c) be damaged or disfigured by impact or scratching.
11.1 The Customer acknowledges that all descriptive specifications, illustrations, dimensions and weights stated in San Marco Ceramics’ or the manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Customer shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by San Marco Ceramics.
12.1 The Customer shall ensure that San Marco Ceramics has clear and free access to the work site at all times to enable them to undertake the Services. San Marco Ceramics shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of San Marco Ceramics.
13.1 San Marco Ceramics and the Customer agree that ownership of the Goods shall not pass until:
- (a) the Customer has paid San Marco Ceramics all amounts owing toSan Marco Ceramics; and
- (b) the Customer has met all of its other obligations to San Marco Ceramics
13.2 Receipt by San Marco Ceramics 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.
13.3 It is further agreed that, until ownership of the Goods passes to the Customer in accordance with clause 13.1:
- (a) the Customer is only a bailee of the Goods and must return the Goods to San Marco Ceramics on request;
- (b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for San Marco Ceramics and must pay to San Marco Ceramics the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
- (c) the Customer 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 Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for San Marco Ceramics and must pay or deliver the proceeds to San Marco Ceramics on demand;
- (d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of San Marco Ceramics and must sell, dispose of or return the resulting product to San Marco Ceramics as it so directs;
- (e) the Customer irrevocably authorises San Marco Ceramics to enter any premises where San Marco Ceramics believes the Goods are kept and recover possession of the Goods;
- (f) San Marco Ceramics may recover possession of any Goods in transit whether or not Delivery has occurred;
- (g) the Customer 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 San Marco Ceramics;
- (h) San Marco Ceramics may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
14. Personal Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
14.2 Upon assenting to these terms and conditions in writing the Customer 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 and/or collateral (account) – being a monetary obligation of the Customer to San Marco Ceramics for Services – that have previously been supplied and that will be supplied in the future by San Marco Ceramics to the Customer.
14.3 The Customer undertakes to:
- (a) 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 San Marco Ceramics may reasonably require to;
- (b) indemnify, and upon demand reimburse, San Marco Ceramics 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;
- (c) not register a financing change statement in respect of a security interest without the prior written consent of San Marco Ceramics;
- (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of San Marco Ceramics;
- (e) immediately advise San Marco Ceramics 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.
14.4 San Marco Ceramics and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions
14.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
14.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by San Marco Ceramics, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Customer must unconditionally ratify any actions taken by San Marco Ceramics under clauses 14.3 to 14.5.
14.9 Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
15. Security and Charge
15.1 In consideration of San Marco Ceramics agreeing to supply the Goods, the Customer 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 Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
15.2 The Customer indemnifies San Marco Ceramics from and against all San Marco Ceramics’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising San Marco Ceramics’s rights under this clause.
15.3 The Customer irrevocably appoints San Marco Ceramics and each director of San Marco Ceramics as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Customer’s behalf.
16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
16.1 The Customer must inspect the Goods on Delivery and must within seven (7) days of Delivery notify San Marco Ceramics in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow San Marco Ceramics to inspect the Goods.
16.2 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 (NonExcluded Guarantees).
16.3 San Marco Ceramics acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, San Marco Ceramics makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. San Marco Ceramics’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Customer is a consumer within the meaning of the CCA, San Marco Ceramics’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If San Marco Ceramics is required to replace the Goods under this clause or the CCA, but is unable to do so, San Marco Ceramics may refund any money the Customer has paid for the Goods.
16.7 If the Customer is not a consumer within the meaning of the CCA, San Marco Ceramics’s liability for any defect or damage in the Goods is:
- (a) limited to the value of any express warranty or warranty card provided to the Customer by San Marco Ceramics at San Marco Ceramics’s sole discretion;
- (b) limited to any warranty to which San Marco Ceramics is entitled, if San Marco Ceramics did not manufacture the Goods;
- (c) otherwise negated absolutely.
16.8 Subject to this clause 16, returns will only be accepted provided that:
- (a) the Customer has complied with the provisions of clause 16.1; and
- (b) San Marco Ceramics has agreed that the Goods are defective; and
- (c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
- (d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, San Marco Ceramics shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
- (a) the Customer failing to properly maintain or store any Goods;
- (b) the Customer using the Goods for any purpose other than that for which they were designed;
- (c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- (d) the Customer failing to follow any instructions or guidelines provided by San Marco Ceramics;
- (e) fair wear and tear, any accident, or act of God.
16.10 San Marco Ceramics may in its absolute discretion accept non-defective Goods for return in which case San Marco Ceramics may require the Customer to pay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
16.11 Notwithstanding anything contained in this clause if San Marco Ceramics is required by a law to accept a return then San Marco Ceramics will only accept a return on the conditions imposed by that law.
16.12 Subject to clause 16.1, customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.
17. Intellectual Property
17.1 Where San Marco Ceramics has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of San Marco Ceramics. Under no circumstances may such designs, drawings and documents be used without the express written approval of San Marco Ceramics.
17.2 The Customer warrants that all designs, specifications or instructions given to San Marco Ceramics will not cause San Marco Ceramics to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify San Marco Ceramics against any action taken by a third party against San Marco Ceramics in respect of any such infringement.
17.3 The Customer agrees that San Marco Ceramics may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which San Marco Ceramics has created for the Customer.
18. Default and Consequences of Default
18.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at San Marco Ceramics’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Customer owes San Marco Ceramics any money the Customer shall indemnify San Marco Ceramics from and against all costs and disbursements incurred by San Marco Ceramics in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, San Marco Ceramics’s contract default fee, and bank dishonour fees).
18.3 Further to any other rights or remedies San Marco Ceramics may have under this Contract, if a Customer has made payment to San Marco Ceramics, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by San Marco Ceramics under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
18.4 Without prejudice to San Marco Ceramics’s other remedies at law San Marco Ceramics shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to San Marco Ceramics shall, whether or not due for payment, become immediately payable if:
- (a) any money payable to San Marco Ceramics becomes overdue, or in San Marco Ceramics’s opinion the Customer will be unable to make a payment when it falls due;
- (b) the Customer has exceeded any applicable credit limit provided by San Marco Ceramics;
- (c) the Customer 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
- (d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
19.1 Without prejudice to any other remedies San Marco Ceramics may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions San Marco Ceramics may suspend or terminate the supply of Goods to the Customer. San Marco Ceramics will not be liable to the Customer for any loss or damage the Customer suffers because San Marco Ceramics has exercised its rights under this clause.
19.2 San Marco Ceramics may cancel any contract to which these terms and conditions apply or cancel Delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice San Marco Ceramics shall repay to the Customer any money paid by the Customer for the Goods. San Marco Ceramics shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.3 In the event that the Customer cancels Delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by San Marco Ceramics as a direct result of the cancellation (including, but not limited to, any loss of profits).
19.4 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
20.1 All emails, documents, images or other recorded information held or used by San Marco Ceramics is Personal Information, as defined and referred to in clause 20.3, and therefore considered Confidential Information. San Marco Ceramics acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). San Marco Ceramics acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by San Marco Ceramics that may result in serious harm to the Customer, San Marco Ceramics will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to San Marco Ceramics in respect of Cookies where transactions for purchases/orders transpire directly from San Marco Ceramics’s website. San Marco Ceramics agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
- (a) IP address, browser, email client type and other similar details;
- (b) tracking website usage and traffic; and
- (c) reports are available to San Marco Ceramics when San Marco Ceramics sends an email to the Customer, so San Marco Ceramics may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via San Marco Ceramics’s website.
20.3 The Customer agrees for San Marco Ceramics to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by San Marco Ceramics.
20.4 The Customer agrees that San Marco Ceramics may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
- (a) to assess an application by the Customer; and/or
- (b) to notify other credit providers of a default by the Customer; and/or
- (c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
- (d) to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
20.5 The Customer consents to San Marco Ceramics being given a consumer credit report to collect overdue payment on commercial credit.
20.6 The Customer agrees that personal credit information provided may be used and retained by San Marco Ceramics for the following purposes (and for other agreed purposes or required by):
- (a) the provision of Goods; and/or
- (b) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
- (c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
- (d) enabling the collection of amounts outstanding in relation to the Goods.
20.7 San Marco Ceramics may give information about the Customer to a CRB for the following purposes:
- (a) to obtain a consumer credit report;
- (b) allow the CRB to create or maintain a credit information file about the Customer including credit history
20.8 The information given to the CRB may include:
- (a) Personal Information as outlined in 20.3 above;
- (b) name of the credit provider and that San Marco Ceramics is a current credit provider to the Customer;
- (c) whether the credit provider is a licensee;
- (d) type of consumer credit;
- (e) details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
- (f) 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 Customer no longer has any overdue accounts and San Marco Ceramics has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
- (g) information that, in the opinion of San Marco Ceramics, the Customer has committed a serious credit infringement;
- (h) advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
20.9 The Customer shall have the right to request (by e-mail) from San Marco Ceramics:
- (a) a copy of the Personal Information about the Customer retained by San Marco Ceramics and the right to request that San Marco Ceramics correct any incorrect Personal Information; and
- (b) that San Marco Ceramics does not disclose any Personal Information about the Customer for the purpose of direct marketing.
20.10 San Marco Ceramics will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
20.11 The Customer can make a privacy complaint by contacting San Marco Ceramics via e-mail. San Marco Ceramics 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 Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
21. Other Applicable Legislation
21.1 At San Marco Ceramics’ sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 (Victoria), Building and Construction Industry Security of Payments Act 1999 (New South Wales), Construction Contracts Act 2004 (Western Australia), Building Industry Fairness (Security of Payment) Act 2017 (Queensland), Construction Contracts (Security of Payments) Act (Northern Territory of Australia), Building and Construction Industry Security of Payments Act 2009 (Tasmania), Building and Construction Industry Security of Payments Act 2009 (South Australia) and Building and Construction Industry (Security of Payment) Act 2009 (Australian Capital Territory) may apply.
21.2 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the any of the Acts listed in clause 21.1 (each as applicable), except to the extent permitted by the Act where applicable.
22. Service of Notices
22.1 Any written notice given under this Contract shall be deemed to have been given and received:
- (a) by handing the notice to the other party, in person;
- (b) by leaving it at the address of the other party as stated in this Contract;
- (c) by sending it by registered post to the address of the other party as stated in this Contract;
- (d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
- (e) if sent by email to the other party’s last known email address
22.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
23.1 If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not San Marco Ceramics may have notice of the Trust, the Customer covenants with San Marco Ceramics as follows:
- (a) the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
- (b) the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
- (c) the Customer will not without consent in writing of San Marco Ceramics (San Marco Ceramics will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
- (i) the removal, replacement or retirement of the Customer as trustee of the Trust;
- (ii) any alteration to or variation of the terms of the Trust;
- (iiI) any advancement or distribution of capital of the Trust; or
- (iv) any resettlement of the trust property.
24.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s 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.
24.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which the Goods and/or Services were provided by San Marco Ceramics to the Customer however, in the event of a dispute that deems necessary for the matter to be referred to a Magistrates or higher Court then jurisdiction will be subject to the Melbourne Court in the state of Victoria in which San Marco Ceramics has its principal place of business.
24.3 Subject to clause 16, San Marco Ceramics shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by San Marco Ceramics of these terms and conditions (alternatively San Marco Ceramics’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
24.4 San Marco Ceramics may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
24.5 The Customer cannot licence or assign without the written approval of San Marco Ceramics.
24.6 San Marco Ceramics may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of San Marco Ceramics’s sub-contractors without the authority of San Marco Ceramics.
24.7 The Customer agrees that San Marco Ceramics may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for San Marco Ceramics to provide Goods to the Customer.
24.8 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.
24.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.