These terms and conditions (“Terms”) plus any implied terms which cannot be excluded are the whole of the agreement between the applicant referred to in the Credit Application (“Customer” or “you/your”) and Multiform Stone Industries Pty Ltd ACN 627 282 599 ABN 25 627 282 599 (“Multiform” or
“we/us/our”). No other contractual terms of the Customer (such as on a purchase order or otherwise) apply and, if provided, they don’t constitute a counteroffer. After you have received a copy of these Terms, if you place an order for the supply of all or a portion of the goods (including but not limited to porcelain, marble, granite and reconstituted stone supplied on a wholesale basis) and/or services (including but not limited to installation services) supplied under these Terms (“Goods” and/or “Services”), you will be deemed to have accepted these Terms and they shall apply to the exclusion of all other written agreements with us.

2.1. Payment is due as follows:

2.1.1. for credit account customers, on or prior to thirty (30) days from the end of the month in which the invoice is rendered in respect of the supply of Goods or Services;

2.1.2. for non-credit account customers, we reserve the right to require payment of a 50% deposit on placing the order and 30% progress payment, with the remaining 20% balance to be paid prior to installation or delivery of the Goods or supply of the Services. Depending on the nature of the job, we may agree with you in writing to supply the Goods or Services on amended payment terms stated in writing determined by Multiform.

2.2. Upon written request by us, if you are a credit account customer you must pre-pay the cost of the Goods at the time of making the order.

2.3. If we don’t receive payment on the due date, we may (1) charge a 10% late fee from the day the invoice is overdue (i) an additional late fee will be charged every 7 days against your account until the invoice is fully paid (ii) the late fee will be calculated based on the total amount owing on the invoice including all prior late fees (2) charge interest (as liquidated damages) at the rate of 2% above the rate of interest fixed from time to time under Section 2 of the Penalty Interest Rates Act 1983; (3) suspend or discontinue supply of the Goods/Services or cancel your account with us.

2.4. We can set-off any money owing to us by you on any account whatsoever.
2.5. Any payments received from you on overdue accounts will be applied first to satisfy interest which may have accrued, second to reasonable expenses and legal costs, and then to principal.
2.6. We may revoke our express or implied approval for extending credit to you at any time.
2.7. Receipt by us of any form of payment (other than cash) shall not be deemed payment until that form of payment has been honoured, cleared or recognised.
2.8. You are liable for all reasonable expenses (including but not limited to internal administration fees, bank dishonour fees and contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by us for enforcement of obligations and recovery of monies due from you to us.
2.9. All sums outstanding become immediately due and payable by you to us if you make default in paying sums due to us, you become bankrupt, or commit any act of bankruptcy, compound with your creditors, have judgment entered against you in any court or, being a company, have a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.

3.1. Prices charged for Goods and Services, including any materials forming part of an order, will be according to a current quotation or determined by us by reference to our standard prices in effect at the date of the order. Subject to clause 19 we reserve the right to increase the prices, however, we will not change any prices for an existing order that has been accepted by us; the prices that apply to the order are the prices that applied at the time you placed the order. For the avoidance of doubt, we will not increase our prices if you have paid a deposit whether of a mutually agreed percentage of the total cost of a project or to cover the cost of materials.

3.2. A quotation shall not constitute an offer and will only remain valid for the period stated on the quotation or otherwise for a period of thirty (30) days from the date of the quotation. You are responsible for ensuring the accuracy of all specifications, details, sizes and quantities which form the basis of a quotation. We do not accept any responsibility for any errors in such specifications, details, sizes and quantities and shall fulfil the order in conformity with the information supplied by you.

3.3. We may require that you inspect the Goods prior to placing an order.

3.4. Where you have supplied us with your own material for fabrication, we may charge an additional fee (which is not included in our original quotation) if extra works are required to rectify defects or enhance any natural inclusions. Such extra works include but are not limited to fibreglass rodding, re-honing and resin or polyester treatment to cracks, pits or fissures. We will let you know if there will be extra works and/or additional fees.

3.5. We reserve the right to charge you a surcharge fee for eftpos, Mastercard or Visa payments.

3.6. Documents requiring signature may be signed in electronic form and are binding from the time a person affixes a signature. We will not deliver/supply the Goods or Services unless there is a signed acceptance of quotation or purchase order confirming the request for the Goods or Services.

4.1. Unless otherwise agreed, we will deliver the Goods to you and install the Goods at the location specified by you (e.g. in your purchase order). If we quote a time for delivery/supply of the Goods or Services, it is an estimate only. You are not relieved of any obligation to accept or pay for Goods or Services, by reason of any delay in deliver/supply of the Goods or Services. We are not liable for any loss and/or expense that you suffer as a result of any delay in delivery/supply of the Goods or Services (including, for example, costs associated with rescheduling subcontractors booked in to commence work by a certain date).

4.2. We may make acceptance of an order conditional upon receiving a satisfactory credit assessment of the Customer.

4.3. Clauses 4.4 to 4.8 only apply if you have asked us to supply the Goods to you without installing the Goods.

4.4. If you tell us to deliver the Goods over different times or to different addresses from those specified in the Credit Application, then you: (1) shall be liable for any additional cost, charge and expense incurred by us in complying with your direction; (2) shall pay for the whole of the invoiced value of the Goods pursuant notwithstanding the staggered deliveries; and (3) such action shall be deemed to be delivery to you.

4.5. You are deemed to accept delivery of the Goods when they are either delivered to your premises (even if you are not present at the address) or when we notify you that the Goods are available for collection.

4.6. If you tell us to leave the Goods outside our premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at your sole risk.

4.7. If you are unable or fail to accept delivery of the Goods, we may deliver them to a place of storage nominated by you and, failing such nomination, to a place determined by us. Such action shall be deemed to be delivery to you. You shall be liable for all cost, charge and expense incurred by us on account of storage, detention, double cartage/delivery or similar causes.

4.8. Subject to clause 4.1, you agree that you will be obliged to and shall pay for the Goods/Services on the due date notwithstanding that supply is made after the agreed date, and notwithstanding that the Goods/Services may not yet be supplied.

5.1. Until full payment has been made for all Goods/Services, and any other sums in any way outstanding from you to us from time to time:

5.1.1. Title to the Goods shall not pass to you and you shall hold the Goods as bailee for us (returning the same to us on request). The Goods shall nevertheless be at your risk from the time of delivery/supply and you must insure the Goods from the time of delivery/supply.

5.1.2. You must not sell, dispose or otherwise part with possession of the Goods other than in the ordinary course of business and for market value.

5.1.3. You are only authorised to sell the Goods (or any portion of them) to third parties as our fiduciary agent provided that there shall be no right to bind us to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by you for the Goods (or any portion of them) shall be held on trust for us pursuant to the fiduciary relationship, except where clause 6.8 applies.

5.1.4. You must not charge or grant an encumbrance over the Goods or grant or otherwise give away any interest in the Goods.

5.1.5. If you incorporate or transform the Goods (or any portion of them) into any other goods or products produced by you (or a third party), then you must hold a proportion of any payment (“relevant proportion”) received by you for such goods or products on trust for us. You expressly acknowledge that the relevant proportion shall be equal to the dollar value of the Goods incorporated or transformed.

6.1. You grant a security interest in the Goods and the proceeds (as defined in the Personal Property Securities Act 2009 (Cth) (‘PPSA’)) to secure the obligation to pay the purchase price of the Goods and other of your obligations to us under this agreement (together the “Indebtedness”). You warrant that the Goods are not purchased for personal, domestic or household purposes.

6.2. Where the Goods and/or proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the goods present and after acquired by you, of which the Goods form part, to the extent required to secure the Indebtedness.

6.3. You waive any right to receive notice in relation to any registration or amendment to a registration on the Personal Property Security Register (‘PPSR’). At your own expense, you will provide all reasonable assistance and relevant information to enable us to register on the PPSR and generally to obtain, maintain, register and enforce the security interests created by this agreement.

6.4. You must not register a financing change statement (as defined in the PPSA) in respect of a security interest over the Goods without our prior written consent.

6.5. You must immediately advise us of any material change in your business practices relating to selling Goods, which would result in a change in the nature of proceeds derived from such sales.

6.6. Any payments received from you shall be deemed to be made and applied by us in the following order (unless we otherwise determine): (1) to any obligation owed by you which is unsecured, in the order in which the obligations were incurred;
(2) to any obligations that are secured, but not by a purchase money security interest (‘PMSI’), in the order in which those obligations were incurred; (3) to obligations that are secured by a PMSI, in the order in which those obligations were incurred.

6.7. Until you have paid all money owing to us, you must at all times ensure that (1) all Goods, while in your possession, can be readily identified and distinguished, and/or (2) all proceeds (in whatever form) that you receive from the sale of any of the Goods are readily identifiable and traceable.

6.8. Subject to clause 5.1.3, if the Goods are held by you as inventory (as defined in the PPSA), then you may sell or lease the Goods in the ordinary course of business. Otherwise, until you have paid all money owing to us, you must not sell or grant a security interest in the Goods without our written consent.

6.9. To the extent permissible by law, you agree that the following provisions of the PPSA will not apply and you will have no rights under them: Section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notice to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142; section 143.

6.10. Pursuant to section 115(7) of the PPSA, which allows for the contracting out of provisions of the PPSA, the following provisions of the PPSA will not apply and you will not have any rights under them: section 127; section 129(2),(3); section 130(1); section 132; section 134(2); section 135; section 136(3),
(4) and (5); and section 137.

6.11. Unless otherwise agreed and to the extent permitted by the PPSA, the parties agree not to disclose any information of a kind referred to in section 275(1) of the PPSA to an interested person or any other person. You waive any right you may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.

7.1. We will let you know if the Goods you have ordered are not available. If this occurs:

7.1.1. With your approval, we may arrange for your order to be back ordered and processed when stock becomes available;

7.1.2. With your approval, we may supply you with similar Goods as a substitute. You acknowledge and accept that the price for the substitute Goods may be higher or lower than the price for the Goods you originally ordered;

7.1.3. You may choose to cancel your order; or

7.1.4. You may choose to cancel your order and place an order for different Goods.

7.2. Deliveries at any time are subject to availability of stock and we will not be liable for any charges due to product unavailability.

7.3. All Goods are packed in “Standard Pack” quantities, which our experience has shown to be the most convenient and suitable. An additional charge may be made for Goods to be specifically packed and labelled.

Unless otherwise agreed, we will ship by the least expensive route and carrier to all points. If you choose a route with a higher charge than the route of our choice for shipment, we will charge the difference to you.

Subject to clause 11 and your rights under the Australian Consumer Law which is Schedule 2 of the Competition and Consumer Act 2010 (Cth) (‘ACL’) (if any), we generally do not accept any returns of Goods. You shall not return any Goods to us without obtaining prior written consent, which consent may be withheld in our absolute discretion. Subject to any rights you may have under the ACL, if we accept the return of any Goods that have been ordered we may charge you fifteen percent (15%) of the invoice price as a handling fee with freight costs and risk remaining your responsibility.

10.1. This clause is subject to your rights under the ACL (if any).

10.2. We will not accept variations, cancellations, or partial cancellations of an order unless we have first consented in writing, which consent may be withheld in our absolute discretion.

10.3. A request to vary, cancel or partially cancel an order must be made within thirty (30) days of making an order. A cancellation/variation request made after thirty (30) days will only be accepted by us in very limited circumstances, and in our absolute discretion.

10.4. Cancellation will not be accepted on Goods that are in the process of manufacture or ready for shipment.

10.5. If we accept the cancellation or variation:

10.5.1. we reserve the right to charge you a cancellation fee of fifteen percent (15%) of the invoice price to indemnify us against direct loss, including without limitation any costs incurred by us for holding the material and/or measuring the job; and

10.5.2. we may issue a credit note or grant you a refund of any deposit you have paid, in our absolute discretion. You must not deduct the amount of any anticipated credit from any payment due to us.

11.1. This clause is subject to your rights under the ACL (if any).

11.2. Subject to clause 11.3, if you wish to make a claim or complaint in relation to the Goods/Services, you must make your request in writing within seven (7) days of the Goods/Services being supplied to you. If you do not make a claim or complaint within seven (7) days, you are deemed to accept the Goods and Services.

11.3. After we have installed the Goods, we may require that you sign to indicate that you have accepted the Goods/Services. If you sign off on the Goods/Services in this way, you are deemed at that point to accept the Goods/Services. You accept that you may not make a claim or complaint after you have signed off on the Goods/Services, even if it is within seven (7) days of the Goods/Services being supplied to you.

12.1. To enable us to assess your application for credit, you authorise us: (1) to obtain from a credit reporting agency/body a consumer or commercial credit report containing personal information about you and any guarantors; and (2) to obtain a report from a credit reporting agency/body and other information in relation to your commercial credit activities, and (3) to give to a credit reporting agency/body information including identity particulars and application details.

12.2. You authorise us to give to and obtain from any credit provider named in the accompanying Credit Application and credit providers that may be named in a credit report issued by a credit reporting agency/body information about your credit arrangements. You understand that this information can include any information about your credit worthiness.

12.3. You understand that the information can be used for the purposes of assessing your application for credit, assisting you to avoid defaulting on your credit obligations, assessing your credit worthiness and notifying other credit providers and credit reporting agencies of a default by you under these Terms.

13.1. Due to the great range of field conditions and variations encountered in raw materials, manufacturing equipment and methods we recommend that you inspect the Goods that you have selected or undertake your own tests of the Goods to determine the suitability of the Goods for your particular purpose. You acknowledge that the Goods may include naturally occurring variations in appearance which are inherent in the manufacturing process and are a characteristic of the material used.

13.2. No warranties except those implied and that by law cannot be excluded are given by us in respect of Goods/Services supplied. Where we are on-selling Goods to you, we are not the manufacturer/supplier of those Goods and we do not provide you with any express warranties in relation to those Goods. There may be express warranties in relation to such Goods that are provided by the manufacturer/supplier of those Goods. In order to claim on such warranties, you may be required to register the Goods with the manufacturer/supplier. It is your responsibility to make enquiries about such warranties, and to register the Goods that you receive from us with the manufacturer/supplier (if required). We are not liable for any loss that results from your failure to register the Goods with the manufacturer/supplier.

13.3. If you are a consumer for the purposes of the ACL (‘Consumer’), or these Terms are deemed to be a small business contract for the purposes of the ACL (‘Small Business Contract’), our liability for a breach of a condition or warranty is limited to:

13.3.1. The repair of the Goods or resupply of the Services or the cost of repairing the Goods or resupplying the Services if we determine that there has been a minor fault; or

13.3.2. If it is not possible to repair the Goods, or if we determine that there has been a major fault (which may include multiple minor faults), the replacement of the Goods or refund of the price paid for the Goods, as determined by you; or

13.3.3. If a minor fault prevents the Goods from being used for their intended purpose within 30 days after purchase, the replacement of the Goods or refund of the price paid for the Goods as determined by you.

13.3.4. Cancelling the agreement and granting a refund if there is a major fault with the Services.

13.4. If you seek to return Goods to us in accordance with this clause 13, we will generally make arrangements to collect the Goods and you are not responsible for returning the Goods to our premises. If the Goods are confirmed to have a minor fault or major fault, you are not required to pay any postage, transportation or handling fees.

13.5. You acknowledge and warrant that you have relied on your own skill and judgment or, alternatively, on the skill and judgment of tradesmen and professional advisers retained by you to provide advice and assistance on the suitability of the Goods/Services for specific purposes and procedures and, in this respect, you shall indemnify us from and against any suit, claim, demand or compensation which, but for these Terms, you may have had against us, except if you are a Consumer or these Terms are deemed to be a Small Business Contract.

13.6. You warrant to us that you are purchasing the Goods/Services as the principal and not as an agent.

You must notify us in writing within seven (7) days of: (1) any alteration of your name or ownership; (2) the issue of any legal proceedings against you; (3) the appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer; and (4) any change in the ownership of your business name. You agree that you shall be liable to us for all Goods/Services supplied to the new owner by us until notice of any such change is received.

15.1. Our total liability arising under or in relation to this agreement or in connection with the performance or breach of our obligations under this agreement, whether such liability is based in contract, indemnity, warranty or tort (including negligence of any kind), shall not exceed the higher of $20,000,000, or the total amount paid by you to us for the Goods and/or Services.

15.2. To the maximum extent permitted by the law and notwithstanding any other clause in these Terms, we shall be under no liability whatsoever to you for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by you arising out of a breach by us of these Terms.

16.1. Either party may terminate this agreement if the other party commits a material breach of these Terms which is not remedied within fourteen (14) days of written notice given by the first party. A material breach of these Terms includes a failure by the Customer to make payment for our Goods/Services by the due date.

16.2. We may terminate this agreement if you do any of the following, which is not remedied within seven (7) days of written notice given by us:

16.2.1. Becoming bankrupt, or committing any act of bankruptcy, compounding with your creditors, having judgment entered against you in any court or, being a company, having a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.

16.3. On termination of this agreement for any reason, any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination will not be affected or prejudiced.

17.1. All intellectual property rights in relation to the Goods/Services (including all rights resulting from intellectual activity and including copyright, inventions, patent rights, registered and unregistered trademarks, design rights, circuit layouts and all rights and interests of a like nature, including but not limited to methods and techniques, together with any documentation relating to such rights and interests), including those developed during the supply of the Goods/Services remain our sole property at all times.

17.2. If we terminate this agreement, we may immediately reclaim any material incorporating our intellectual property and you grant us an irrevocable licence to enter upon your premises to reclaim such material without incurring liability to you or any other person.

We shall be released from our obligations in the event of an act of God, strike, lockout or other industrial disturbance or labour difficulty, national emergency, war, act of public enemy, blockade, revolution, riot, insurrection, civil commotion, pandemic, lightning, storm, flood, fire, earthquake, explosion, embargo, unavailability of any essential equipment or materials, unavoidable accident, lack of transportation, prohibitive governmental regulation or if any other cause beyond the reasonable control of the parties renders provision of the Goods/Services impractical, where all money due to us shall be paid immediately and, unless prohibited by law, we may elect to terminate this agreement.

19.1. We may vary these Terms by providing written notice to you (by email, conventional mail or by posting the amended terms on the website).

19.2. You agree that the variation applies from the date of receiving notice of the varied Terms. However, we will not vary Terms for an order that has already been accepted by us. Any variation to these Terms only applies for any orders made after the date of notice of the varied Terms. You will be taken to have accepted the varied Terms if you make a further request for us to provide Goods/Services to you after the effective date.

Our failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or our failure to exercise any right or remedy available under these Terms or at law, or our failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any subsequent default or a waiver of our right to demand timely payment of future obligations or strict compliance with the Terms.

Invoices that we issue under these Terms constitute a payment claim made under the Building and Construction Industry Security of Payment Act 2002 (Vic) (‘Act’). The reference date for the payment claim is the date of the invoice. If we have issued you with multiple invoices, notwithstanding that the work is completed across different sites and at different times, the invoices together will constitute one payment claim. We can make a payment claim under the Act within 24 months after the last relevant reference date.

22.1. These Terms shall be governed by and interpreted according to the laws of Victoria and the parties consent and submit to the jurisdiction of the Courts of Victoria.

22.2. Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason, that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.