Pure Marble Australia – Terms and Conditions of Trade 1.
1.Definitions
1.1 “Pure Marble” refers to Pure Marble Australia Pty Ltd T/A Pure Marble Stone, including
its successors, assigns, or any individual acting on behalf of and with the authority of Pure
Marble Australia Pty Ltd T/A Pure Marble Stone.
1.2 “Client” refers to the person(s), entities, or any individual acting on behalf of and with the
authority of the Client requesting Pure Marble to provide Services as outlined in any
proposal, quotation, order, invoice, or other documentation, and:
(a) if there is more than one Client, it refers to each Client jointly and severally;
(b) if the Client is a partnership, it binds each partner jointly and severally;
(c) if the Client is part of a Trust, it binds them in their capacity as a trustee;
(d) includes the Client’s executors, administrators, successors, and permitted assigns.
1.3 “Goods” refers to all Goods or Services supplied by Pure Marble to the Client at the
Client’s request from time to time (where context allows, the terms ‘Goods’ or ‘Services’
may be used interchangeably).
1.4 "Confidential Information” encompasses 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 “Personal Information” such as
name, address, date of birth, occupation, driver’s license details, electronic contact
information, medical insurance details, or next of kin and other contact information),
previous credit applications, credit history, and pricing details.
1.5 “Cookies” are small files stored on a user's computer, designed to hold data (including
Personal Information) specific to a particular client and website. This data can be accessed by
the web server or the client's computer. If the Client does not wish to allow Cookies when
ordering from the website, they have the right to enable or disable Cookies via the option
provided on the website before ordering Goods.
1.6 “Price” refers to the Price payable (plus any applicable GST) for the Goods as agreed
between Pure Marble and the Client in accordance with clause 5.
1.7 “GST” refers to Goods and Services Tax (GST) as defined within the “A New Tax
System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
2.1 The Client is considered to have exclusively accepted and is immediately bound, jointly
and severally, by these terms and conditions if they place an order for or accept delivery of
the Goods.
2.2 In case of any inconsistency between the terms and conditions of this Contract and any
other prior document or schedule entered into by the parties, the terms of this Contract shall
prevail.
2.3 Any amendments to the terms and conditions of this Contract can only be made in writing
with the consent of both parties.
2.4 The Client acknowledges that the supply of Goods on credit will not take effect until they
have completed a credit application with Pure Marble and it has been approved with a credit
limit established for the account.
2.5 If the Client’s request for Goods exceeds their credit limit and/or the account exceeds thepayment terms, Pure Marble reserves the right to refuse Delivery.
2.6 Electronic signatures will be considered accepted by either party, provided that the parties
have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other
applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that Pure Marble shall not be liable for any alleged
or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Pure Marble in the formation and/or
administration of this contract; and/or
(b) contained in or omitted from any literature (hard copy or electronic) supplied by Pure
Marble regarding the Services.
3.2 If such an error and/or omission occurs as per clause 3.1 and is not due to the negligence
or willful misconduct of Pure Marble, the Client shall not be entitled to treat this contract as
repudiated or render it invalid.
4. Change in Control
4.1 The Client must provide Pure Marble with no less than fourteen (14) days prior written
notice of any proposed change of ownership and/or any other change in the Client’s details
(including, but not limited to, changes in name, address, contact information, or business
practice). The Client shall be liable for any loss incurred by Pure Marble as a result of failing
to comply with this clause.
5. Price and Payment
5.1 At Pure Marble’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by Pure Marble to the Client; or
(b) Pure Marble’s quoted price (subject to clause 5.2) which will be valid for the period stated
in the quotation or otherwise for a period of thirty (30) days.
5.2 Pure Marble reserves the right to change the Price in the event of a variation to Pure
Marble’s quotation. Any variation from the specifications of the Goods (including, but not
limited to, fluctuations in currency exchange rates, ocean and air freight costs, or inaccurate
measurements provided by the Client) will be charged based on Pure Marble’s quotation and
will be shown as variations on the invoice. The Client shall be required to respond to any
variation submitted by Pure Marble within ten (10) working days. Failure to do so will entitle
Pure Marble 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.
5.3 At Pure Marble’s sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the
Client on the date/s determined by Pure Marble, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;(c) thirty (30) days following the date of the invoice;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of
any invoice given to the Client by Pure Marble.
5.5 Payment may be made by cash, cheque, electronic/online banking, credit card (a
surcharge may apply per transaction), or any other method agreed to between the Client and
Pure Marble.
5.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums
owed or claimed to be owed to the Client by Pure Marble nor to withhold payment of any
invoice because part of that invoice is in dispute.
5.7 Unless otherwise stated, the Price does not include GST. In addition to the Price, the
Client must pay to Pure Marble an amount equal to any GST Pure Marble must pay for any
supply under this or any other agreement for the sale of the Goods. The Client must pay GST,
without deduction or set off of any other amounts, at the same time and on the same basis as
the Client pays the Price. Additionally, the Client must pay any other taxes and duties that
may be applicable in addition to the Price except where they are expressly included in the
Price.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at Pure
Marble’s address; or
(b) Pure Marble (or Pure Marble’s nominated carrier) delivers the Goods to the Client’s
nominated address, even if the Client is not present at the address.
6.2 The cost of delivery is in addition to the Price.
6.3 Any time specified by Pure Marble for delivery of the Goods is an estimate only. The
Client must take delivery by receipt or collection of the Goods whenever they are tendered
for delivery. Pure Marble will not be liable for any loss or damage incurred by the Client as a
result of delivery being late. If the Client is unable to take delivery of the Goods as arranged,
then Pure Marble shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.4 The Client shall ensure that Pure Marble has clear and free access to the worksite at all
times to enable them to deliver the Goods. Pure Marble shall not be liable for any loss or
damage to the site (including, without limitation, damage to pathways, driveways, and
concreted, paved, or grassed areas) unless due to the negligence of Pure Marble.
6.5 It is the responsibility of the Client to ensure that access is suitable to accept the weight of
laden trucks. The Client agrees to indemnify Pure Marble against all costs incurred in
recovering such vehicles in the event they become bogged or otherwise immovable.
7. Risk7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery, and the Client
must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership
passing to the Client, Pure Marble is entitled to receive all insurance proceeds payable for the
Goods. The production of these terms and conditions by Pure Marble is sufficient evidence of
Pure Marble’s rights to receive the insurance proceeds without the need for any person
dealing with Pure Marble to make further enquiries.
7.3 Stone is a natural material, and variations in color, shade, tone, markings, and veining
may occur. Pure Marble will make every effort to match color samples to the Goods supplied
but will not be liable in any way whatsoever for color samples differing from the Goods
supplied.
7.4 The Client acknowledges that Goods supplied may:
(a) exhibit variations in shade, color, texture, surface finish, and markings, and may contain
natural fissures, occlusions, lines, indentations, and may fade or change color over time;
(b) expand, contract, or distort as a result of exposure to heat, cold, or weather;
(c) mark or stain if exposed to certain substances;
(d) be damaged or disfigured by impact or scratching.
7.5 The Client acknowledges that it is their responsibility to check quantities with an on-site
measurement before commencing fixing. Measurements taken off plans or the Client’s
figures by Pure Marble are approximate only, and no responsibility is taken for their
accuracy.
7.6 If the Client orders an insufficient amount of product, then Pure Marble will take no
responsibility for any variation of color in further batches supplied to the Client or the
inability to supply Goods at all.
8. Title
8.1 Pure Marble and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Pure Marble all amounts owing to Pure Marble; and
(b) the Client has met all of its other obligations to Pure Marble.
8.2 Receipt by Pure Marble of any form of payment other than cash shall not be deemed to be
payment until that form of payment has been honored, cleared, or recognized.
8.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 8.1, the Client
is only a bailee of the Goods and must return the Goods to Pure Marble on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for Pure
Marble and must pay to Pure Marble the proceeds of any insurance in the event of the Goods
being lost, damaged, or destroyed.
(c) the Client must not sell, dispose of, or otherwise part with possession of the Goods other
than in the ordinary course of business and for market value. If the Client sells, disposes of,
or parts with possession of the Goods, then the Client must hold the proceeds of any such acton trust for Pure Marble and must pay or deliver the proceeds to Pure Marble on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods, but
if the Client does so, then the Client holds the resulting product on trust for the benefit of
Pure Marble and must sell, dispose of, or return the resulting product to Pure Marble as it so
directs.
(e) the Client irrevocably authorizes Pure Marble to enter any premises where Pure Marble
believes the Goods are kept and recover possession of the Goods.
(f) Pure Marble may recover possession of any Goods in transit whether or not delivery has
occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant or otherwise
give away any interest in the Goods while they remain the property of Pure Marble.
(h) Pure Marble may commence proceedings to recover the Price of the Goods sold
notwithstanding that ownership of the Goods has not passed to the Client.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause, financing statement, financing change statement, security agreement, and
security interest have the meaning given to them by the PPSA.
9.2 Upon assenting to these terms and conditions in writing, the Client acknowledges and
agrees that these terms and conditions constitute a security agreement for the purposes of the
PPSA and create a security interest in all Goods that have previously been supplied and that
will be supplied in the future by Pure Marble to the Client.
9.3 The Client 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 Pure Marble may
reasonably require to:
(i) register a financing statement or financing change statement in relation to a security
interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, Pure Marble 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 Pure Marble;
(d) not register, or permit to be registered, a financing statement or a financing change
statement in relation to the Goods in favor of a third party without the prior written consent of
Pure Marble;
(e) immediately advise Pure Marble 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.
9.4 Pure Marble and the Client agree that sections 96, 115, and 125 of the PPSA do not apply
to the security agreement created by these terms and conditions.
9.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130,
132(3)(d), and 132(4) of the PPSA.9.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of
the PPSA.
9.7 Unless otherwise agreed to in writing by Pure Marble, the Client waives their right to
receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Client must unconditionally ratify any actions taken by Pure Marble under clauses
9.3 to 9.5.
9.9 Subject to any express provisions to the contrary (including those contained in this clause
9), nothing in these terms and conditions is intended to have the effect of contracting out of
any of the provisions of the PPSA.
10. Security and Charge
10.1 In consideration of Pure Marble agreeing to supply the Goods, the Client charges all of
its rights, title, and interest (whether joint or several) in any land, realty, or other assets
capable of being charged, owned by the Client either now or in the future, to secure the
performance by the Client of its obligations under these terms and conditions (including, but
not limited to, the payment of any money).
10.2 The Client indemnifies Pure Marble from and against all of Pure Marble’s costs and
disbursements, including legal costs on a solicitor and own client basis, incurred in exercising
Pure Marble’s rights under this clause.
10.3 The Client irrevocably appoints Pure Marble and each director of Pure Marble as the
Client’s true and lawful attorney(s) to perform all necessary acts to give effect to the
provisions of this clause 10, including, but not limited to, signing any document on the
Client’s behalf.
11. Defects, Warranties, and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Client must inspect the Goods on delivery and must, within seven (7) days of
delivery, notify Pure Marble in writing of any evident defect/damage, shortage in quantity, or
failure to comply with the description or quote. The Client must notify any other alleged
defect in the Goods as soon as reasonably possible after any such defect becomes evident.
Upon such notification, the Client must allow Pure Marble to inspect the Goods.
11.2 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 (Non-Excluded Guarantees).
11.3 Pure Marble acknowledges that nothing in these terms and conditions purports to modify
or exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-
Excluded Guarantees, Pure Marble makes no warranties or other representations under these
terms and conditions, including but not limited to the quality or suitability of the Goods. Pure
Marble’s liability in respect of these warranties is limited to the fullest extent permitted by
law.
11.5 If the Client is a consumer within the meaning of the CCA, Pure Marble’s liability is
limited to the extent permitted by section 64A of Schedule 2.11.6 If Pure Marble is required to replace the Goods under this clause or the CCA, but is
unable to do so, Pure Marble may refund any money the Client has paid for the Goods.
11.7 If the Client is not a consumer within the meaning of the CCA, Pure Marble’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 Client by
Pure Marble at Pure Marble’s sole discretion;
(b) limited to any warranty to which Pure Marble is entitled, if Pure Marble did not
manufacture the Goods;
(c) otherwise negated absolutely.
11.8 Subject to this clause 11, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 11.1; and
(b) Pure Marble has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’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
possible.
11.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, Pure Marble 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 Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should
have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Pure Marble;
(e) fair wear and tear, any accident, or act of God.
11.10 Pure Marble may, in its absolute discretion, accept non-defective Goods for return, in
which case Pure Marble may require the Client to pay handling fees of up to fifteen percent
(15%) of the value of the returned Goods plus any freight costs.
11.11 Notwithstanding anything contained in this clause, if Pure Marble is required by law to
accept a return, then Pure Marble will only accept a return on the conditions imposed by that
law.
12. Default and Consequences of Default
12.1 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 Pure Marble’s sole discretion, such interest shall compound monthly at such a rate)
after as well as before any judgment.
12.2 If the Client owes Pure Marble any money, the Client shall indemnify Pure Marble from
and against all costs and disbursements incurred by Pure Marble in recovering the debt
(including but not limited to internal administration fees, legal costs on a solicitor and own
client basis, Pure Marble’s contract default fee, and bank dishonor fees).
12.3 Further to any other rights or remedies Pure Marble may have under this contract, if a
Client has made payment to Pure Marble, and the transaction is subsequently reversed, the
Client shall be liable for the amount of the reversed transaction, in addition to any further
costs incurred by Pure Marble under this clause 12 where it can be proven that such reversal
is found to be illegal, fraudulent, or in contravention to the Client’s obligations under this
contract.
12.4 Without prejudice to Pure Marble’s other remedies at law, Pure Marble shall be entitledto cancel all or any part of any order of the Client which remains unfulfilled, and all amounts
owing to Pure Marble shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Pure Marble becomes overdue, or in Pure Marble’s opinion, the
Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by Pure Marble;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters
into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise), or similar person is appointed
in respect of the Client or any asset of the Client.
13. Cancellation
13.1 Without prejudice to any other remedies Pure Marble may have, if at any time the Client
is in breach of any obligation (including those relating to payment) under these terms and
conditions, Pure Marble may suspend or terminate the supply of Goods to the Client. Pure
Marble will not be liable to the Client for any loss or damage the Client suffers because Pure
Marble has exercised its rights under this clause.
13.2 Pure Marble may cancel any contract to which these terms and conditions apply or
cancel delivery of Goods at any time before the Goods are delivered by giving written notice
to the Client. On giving such notice, Pure Marble shall repay to the Client any money paid by
the Client for the Goods. Pure Marble shall not be liable for any loss or damage whatsoever
arising from such cancellation.
13.3 In the event that the Client cancels delivery of Goods, the Client shall be liable for any
and all loss incurred (whether direct or indirect) by Pure Marble as a direct result of the
cancellation (including, but not limited to, any loss of profits).
13.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist
items, will definitely not be accepted once production has commenced, or an order has been
placed.
14. Privacy Policy
14.1 All emails, documents, images or other recorded information held or used by Pure
Marble Australia is Personal Information, as defined and referred to in clause 14.3, and
therefore considered Confidential Information. Pure Marble Australia 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”). Pure Marble Australia acknowledges that in the event it becomes aware of any data
breaches and/or disclosure of the Client's Personal Information, held by Pure Marble
Australia, that may result in serious harm to the Client, Pure Marble Australia will notify the
Client 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 Client by written consent, unless subject to an operation of law.
14.2 Notwithstanding clause 14.1, privacy limitations will extend to Pure Marble Australia in
respect of Cookies where transactions for purchases/orders transpire directly from Pure
Marble Australia’s website. Pure Marble Australia agrees to display reference to suchCookies and/or similar tracking technologies, such as pixels and web beacons (if applicable).
Such technology allows the collection of Personal Information such as the Client’s: (a) IP
address, browser, email client type, and other similar details; (b) tracking website usage and
traffic; and (c) reports available to Pure Marble Australia when Pure Marble Australia sends
an email to the Client, so Pure Marble Australia may collect and review that information
(“collectively Personal Information”). In order to enable/disable the collection of Personal
Information by way of Cookies, the Client 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 Pure Marble Australia’s website.
14.3 The Client agrees for Pure Marble Australia 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, next of kin, and other contact information (where applicable),
previous credit applications, credit history) about the Client in relation to credit provided by
Pure Marble Australia.
14.4 The Client agrees that Pure Marble Australia may exchange information about the Client
with those credit providers and with related body corporates for the following purposes: (a) to
assess an application by the Client; and/or (b) to notify other credit providers of a default by
the Client; and/or (c) to exchange information with other credit providers as to the status of
this credit account, where the Client is in default with other credit providers; and/or (d) to
assess the creditworthiness of the Client including the Client’s repayment history in the
preceding two (2) years.
14.5 The Client consents to Pure Marble Australia being given a consumer credit report to
collect overdue payment on commercial credit.
14.6 The Client agrees that personal credit information provided may be used and retained by
Pure Marble Australia for the following purposes (and for other agreed purposes or as
required by): (a) the provision of Goods; and/or (b) analysing, verifying, and/or checking the
Client’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 Client; and/or (d) enabling the collection of amounts outstanding in relation
to the Goods.
14.7 Pure Marble Australia may give information about the Client 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 Client including credit history.
14.8 The information given to the CRB may include: (a) Personal Information as outlined in
14.3 above; (b) name of the credit provider and that Pure Marble Australia is a current credit
provider to the Client; (c) whether the credit provider is a licensee; (d) type of consumer
credit; (e) details concerning the Client’s application for credit or commercial credit (e.g. date
of commencement/termination of the credit account and the amount requested); (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 Client no longer
has any overdue accounts and Pure Marble Australia has been paid or otherwise discharged
and all details surrounding that discharge (e.g. dates of payments); (g) information that, in theopinion of Pure Marble Australia, the Client has committed a serious credit infringement; (h)
advice that the amount of the Client’s overdue payment is equal to or more than one hundred
and fifty dollars ($150).
14.9 The Client shall have the right to request (by e-mail) from Pure Marble Australia: (a) a
copy of the Personal Information about the Client retained by Pure Marble Australia and the
right to request that Pure Marble Australia correct any incorrect Personal Information; and (b)
that Pure Marble Australia does not disclose any Personal Information about the Client for
the purpose of direct marketing.
14.10 Pure Marble Australia will destroy Personal Information upon the Client’s request (by
e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of
this Contract or is required to be maintained and/or stored in accordance with the law.
14.11 The Client can make a privacy complaint by contacting Pure Marble Australia via e-
mail. Pure Marble Australia will respond to that complaint within seven (7) days of receipt
and will take all reasonable steps to make a decision as to the complaint within thirty (30)
days of receipt of the complaint. In the event that the Client is not satisfied with the resolution
provided, the Client can make a complaint to the Information Commissioner at
www.oaic.gov.au.
15. Service of Notices
15.1 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.
15.2 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.
16. Trusts
16.1 If the Client at any time upon or subsequent to entering into the contract is acting in the
capacity of trustee of any trust (“Trust”), then whether or not Pure Marble Australia may have
notice of the Trust, the Client covenants with Pure Marble Australia as follows: (a) the
contract extends to all rights of indemnity which the Client now or subsequently may have
against the Trust and the trust fund; (b) the Client 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 Client against the Trust or the trust fund.
The Client 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 Client will not,
without the consent in writing of Pure Marble Australia (Pure Marble Australia will not
unreasonably withhold consent), cause, permit, or suffer to happen any of the following
events; (i) the removal, replacement, or retirement of the Client 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.
17. Dispute Resolution
17.1 If a dispute arises between the parties to this contract, either party shall send to the other
party a notice of dispute in writing adequately identifying and providing details of the
dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer
at least once to attempt to resolve the dispute. At any such conference, each party shall be
represented by a person having authority to agree to a resolution of the dispute. In the event
that the dispute cannot be so resolved, either party may by further notice in writing delivered
by hand or sent by certified mail to the other party refer such dispute to arbitration. Any
arbitration shall be: (a) referred to a single arbitrator to be nominated by the President of the
Institute of Arbitrators Australia; and (b) conducted in accordance with the Institute of
Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
18. General
18.1 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.
18.2 These terms and conditions and any contract to which they apply shall be governed by
the laws of the state of New South Wales in which Pure Marble Australia has its principal
place of business, and are subject to the jurisdiction of the Sydney Courts in that state.
18.3 Subject to clause 11, Pure Marble Australia shall be under no liability whatsoever to the
Client for any indirect and/or consequential loss and/or expense (including loss of profit)
suffered by the Client arising out of a breach by Pure Marble Australia of these terms and
conditions (alternatively Pure Marble Australia’s liability shall be limited to damages which
under no circumstances shall exceed the Price of the Goods).
18.4 Pure Marble Australia may license and/or assign all or any part of its rights and/or
obligations under this contract without the Client’s consent.
18.5 The Client cannot license or assign without the written approval of Pure Marble
Australia.
18.6 Pure Marble Australia may elect to subcontract out any part of the Services but shall not
be relieved from any liability or obligation under this contract by doing so. Furthermore, the
Client agrees and understands that they have no authority to give any instruction to any of
Pure Marble Australia’s subcontractors without the authority of Pure Marble Australia.
18.7 The Client agrees that Pure Marble Australia may amend their general terms and
conditions for subsequent future contracts with the Client by disclosing such to the Client in
writing. These changes shall be deemed to take effect from the date on which the Clientaccepts such changes or otherwise at such time as the Client makes a further request for Pure
Marble Australia to provide Goods to the Client.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike,
lockout, industrial action, fire, flood, storm, or other event beyond the reasonable control of
either party.
18.9 Both parties warrant that they have the power to enter into this contract and have
obtained all necessary authorizations to allow them to do so. They are not insolvent, and this
contract creates binding and valid legal obligations on them.