Terms & Conditions


K63 Pty Ltd T/A Stone3 – Terms & Conditions of Trade

1. Definitions

1.1  “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice, purchase order or other document or amendments expressed to be supplemental to this Contract.

1.2  “Stone3” means K63 Pty Ltd T/A Stone3, its successors and assigns or any person acting on behalf of and with the authority of K63 Pty Ltd T/A Stone3.

1.3  “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting Stone3 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 Stone3 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  “Sub-Contractor” means and include:

(a) any other person or entity with whom Stone3 may arrange for the carriage or storage of any Goods the subject of the Contract; or

(b) and any person who is now or hereafter a servant, agent, employee or sub-contractor of any of the persons referred to in clause 5(a).

1.6  “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), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.7  “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.

1.8  “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between Stone3 and the Customer in accordance with clause 5

1.9  “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

2. Acceptance

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 or by email or acceptance through the Xero platform.

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 amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4  The Customer acknowledges and accepts that:

(a) where a Customer wishes to operate a credit account with Stone3, a credit application must be completed and approved with a credit limit established first, prior to the initial delivery and/or supply of Goods; and

(b) in the event that the supply of Goods request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Stone3 reserves the right to refuse delivery and/or request an alternative payment method; and

(c) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, Stone3 reserves the right to vary the Price with alternative Goods as per clause 2, subject to prior confirmation and agreement of both parties. Stone3 also reserves the right to halt all Services until such time as Stone3 and the Customer agree to such changes.  Stone3 shall not be liable to the Customer for any loss or damage the Customer suffers due to Stone3 exercising its rights under this clause.

2.5  Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Errors and Omissions

3.1  The Customer acknowledges and accepts that Stone3 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 Stone3 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 Stone3 in respect of the Services.

3.2  In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of Stone3; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid. 

4. Change in Control

4.1  The Customer shall give Stone3 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 Stone3 as a result of the Customer’s failure to comply with this clause.

5. Price and Payment

5.1  At Stone3’s sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by Stone3 to the Customer; or

(b) Stone3’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

5.2  Stone3 reserves the right to change the Price:

(a) if a variation to the Goods which are to be supplied is requested; or

(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or

(c) if during the course of the Services, the Goods are not or cease to be available from Stone3’s third party suppliers, then Stone3 reserves the right to provide alternative Goods; or

(d) in the event of increases to Stone3 in the cost of labour or materials which are beyond Stone3’s control.

5.3  Variations will be charged for on the basis of Stone3’s quotation, and will be detailed in writing, and shown as variations on Stone3’s invoice. The Customer shall be required to respond to any variation submitted by Stone3 within three (3) working days. Failure to do so will entitle Stone3 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.

5.4  Where the Customer requires any variations to any orders, this may attract additional costs and be charged for as a variation in accordance with clause 2(a).

5.5  For certain approved Customers, and at Stone3’s sole discretion, a non-refundable deposit of up to fifty percent (50%) may be required for any non-stocklist or bespoke Goods from Stone3’s third party suppliers and is due and payable at the time the Customer places an order with Stone3.

5.6  Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by Stone3, which may be:

(a) before Delivery or collection of the Goods;

(b) by way of instalments/progress payments in accordance with Stone3’s payment schedule;

(c) by prior written agreement between the Customer and Stone3;

(d) thirty (30) days following the date in which a statement or invoice is communicated to the Customer’s address, address for notices or the Customer’s nominated email address;

(e) the date specified on any invoice or other form as being the date for payment; or

(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by Stone3.

5.7  Payment in full shall be required by:

(a) all cash-only Customers before orders of non-stockist or bespoke Goods are placed. The Customer shall be required to provide proof of payment on request by Stone3; or

(b) cash-only interstate Customers before Goods are dispatched from Stone3’s warehouse.

5.8  Payment may be made by cash, cheque (made payable to K63 Pty Ltd), bank cheque, electronic/on-line banking, credit card (VISA, American Express and MasterCard only and a surcharge may apply per transaction), or by any other method as agreed to between the Customer and Stone3.

5.9  Stone3 may in its discretion allocate any payment received from the Customer towards any invoice that Stone3 determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer Stone3 may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Stone3, payment will be deemed to be allocated in such manner as preserves the maximum value of Stone3’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.

5.10  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 Stone3 nor to withhold payment of any invoice because part of that invoice is in dispute.

5.11  Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to Stone3 an amount equal to any GST Stone3 must pay for any supply by Stone3 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. Delivery of Goods

6.1  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 Stone3’s address; or

(b) Stone3 (or Stone3’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.

6.2  At Stone3’s sole discretion, the cost of Delivery is in addition to the Price.

6.3  Any time specified by Stone3 for Delivery of the Goods is an estimate only. The Customer must take Delivery by receipt or collection of the Goods whenever they are tendered for Delivery. Stone3 will not be liable for any loss or damage incurred by the Customer as a result of Delivery being late. In the event that the Customer is unable to take Delivery of the Goods as arranged then Stone3 shall be entitled to charge a reasonable fee for redelivery and/or charge a fee for storage longer than three (3) months.

6.4  Stone3 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.

6.5  The Customer acknowledges and accepts that:

(a) where the Customer requires Delivery of the Goods in instalment, the Customer must inform Stone3 of this requirement at time of order placement. The Customer may incur an additional fee where the Customer fails to notify Stone3 of such Delivery arrangement;

(b) where the Customer requires Stone3 to Deliver the Goods to multiple sites, this may be charged for as an extra, in accordance with clause 2;

(c) the Customer must provide Stone3 with a minimum of three (3) business days’ notice for the Delivery of the Goods;

(d) the Customer must notify Stone3 of the intention of moffett or tailgate unloading at the nominated Delivery site. Where Stone3 or the Sub-Contractor is unable to offload the Goods at time of delivery, Stone3 is entitled to charge a reasonable fee for redelivery;

(e) where the Customer reschedules or cancels a Delivery or where the freight company is unable to access the nominated delivery address, Stone3 reserves the right to charge a “futile charge”;

(f) Stone3 shall not be liable for any loss, costs or claims during the packing the Goods by the Customer, or the Customer’s nominated carrier upon collection of the Goods from Stone3’s premises.

7. Nomination Of Sub-Contractor

7.1  The Customer hereby authorises Stone3 (if it should think fit to do so) to arrange with a Sub-Contractor for the carriage of any Goods that are the subject of the Contract. Any such arrangement shall be deemed to be ratified by the Customer upon delivery of the said Goods to such Sub-Contractor, who shall thereupon be entitled to the full benefit of these terms and conditions to the same extent as Stone3. In so far as it may be necessary to ensure that such Sub-Contractor shall be so entitled Stone3 shall be deemed to enter into this Contract for its own benefit and also as agent for the Sub-Contractor.

8. Demurrage

8.1  The Customer will be and shall remain responsible to Stone3 for all its proper charges incurred for any reason. A charge (in addition to the Price under clause 2) may be made by Stone3 in respect of any delay in excess of thirty (30) minutes in loading or unloading occurring other than from the default of Stone3. Such permissible delay period shall commence upon Stone3 reporting for loading or unloading. Labour to load or unload the vehicle shall be the responsibility and expense of the Customer or the Customer’s agent.

9. Risk

9.1  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.

9.2  If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, Stone3 is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Stone3 is sufficient evidence of Stone3’s rights to receive the insurance proceeds without the need for any person dealing with Stone3 to make further enquiries.

9,3  If the Customer requests Stone3 to leave Goods outside Stone3’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. Any instructions must be made in writing.

9.4  In the event the Customer gives information relating to measurements and quantities of the Goods required to complete the Services, it is the Customer’s responsibility to verify the accuracy of the measurements and quantities, before the Customer or Stone3 places an order based on these measurements and quantities. Stone3 accepts no responsibility for any loss, damages, or costs however resulting from the Customer’s failure to comply with this clause.

9.5  Should the Customer require any changes to Stone3’s estimated measurements and quantities, the Customer shall request such changes in writing before placing an order, or accepting the quotation.

9.6  All customary industry tolerances shall apply to the dimensions and measurements of the Goods, unless Stone3 and the Customer agree otherwise in writing.

9.7  The Customer acknowledges and accepts that:

(a) where third-party tradesmen are engaged to install the Goods, the Customer shall be responsible for engaging skilled and qualified tradesmen. Furthermore, the Customer will also indemnify Stone3 of any damages, claims, costs or losses as a result of the Goods not being installed incorrectly; and

(b) where the Goods are required to be removed and reinstalled elsewhere, the Customer shall be responsible for all risks and costs for the relocation of the Goods.

9.8  The Customer acknowledges that all descriptive specifications, illustrations, dimensions and weights stated in Stone3’s 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 Stone3.

9.9  The Customer acknowledges and agrees that:

(a) variations of colour, shade and grain are inherent in all manufactured or natural products. While every effort will be taken by Stone3 to match colour, shade or grain of product, Stone3 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, Stone3 gives no guarantee (expressed or implied) against crazing, cracking, chipping or scratching that is beyond Stone3’s 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 Stone3 are approximate only and no responsibility is taken for their accuracy; and

(d) where the Customer orders an insufficient number of tiles, then Stone3 will take no responsibility for any variation of colour in further batches supplied to the Customer or the inability to supply Goods at all.

9.10  Variations may vary slightly from batch to batch ceramic tiles within the batch itself. It is Stone3’s recommendation that to ensure a successful installation, that the Customer or the Customer’s appointed tiler mix the tiles whilst being laid by working from a number of boxes at the same time. This will ensure that any small shade variations are blended among the installation evenly resulting in an aesthetically acceptable finish.

9.11  Stone3 shall not be liable for any defect, deterioration and/or damage to the Goods:

(a) if the Customer does not follow Stone3’s recommendations;

(b) where Goods are stored off site for extended periods of time as a result of any action/inaction by the Customer; and

(c) resulting from incorrect use and/or installation of the Goods by the Customer or any other third party.

10. Slip Resistance Ratings/Testing

10.1  The Customer acknowledges and accepts that:

(a) slip ratings reports are guidelines only and indicative as to tiles in stock at time of testing;

(b) the Customer shall not rely on the provided reports in its entirety and it shall be the responsibility of the Customer to make further enquiries into the Good’s ratings and grades;

(c) it shall be the Customer’s responsibility to have Goods independently tested where the Goods are required for specific ratings or grades;

(d) Stone3 shall not be liable for any damages, losses, costs and claims as a result of the Customer relying solely on information in the said slip rating reports; and

(e) the Customer shall be responsible for ensuring that the Goods ordered are suitable for their intended use.

11. Access

11.1  The Customer shall ensure that Stone3 has clear and free access to the site at all times to enable them to undertake the Services. Stone3 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 Stone3.

11.2  The Customer acknowledges and accepts that Stone3 shall not be liable for any damage or loss of the Goods as a result of poor soil or ground conditions and/or poor site conditions

12. Abandoned/Unclaimed Goods

12.1  Where the Goods have been paid for in full but the Goods remain unclaimed (after written notice was issued to the Customer for collection) at the end of a three (3) month period, then Stone3 shall be entitled to assume that such Goods have been abandoned and Stone3 shall be free to dispose of such Goods and to retain the proceeds thereof, if any, to cover any associated costs for storage.

13. Title

13.1  Stone3 and the Customer agree that ownership of the Goods shall not pass until:

(a) the Customer has paid Stone3 all amounts owing to Stone3; and

(b) the Customer has met all of its other obligations to Stone3.

13.2  Receipt by Stone3 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 1:

(a) the Customer is only a bailee of the Goods and must return the Goods to Stone3 on request;

(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Stone3 and must pay to Stone3 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 Stone3 and must pay or deliver the proceeds to Stone3 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 Stone3 and must sell, dispose of or return the resulting product to Stone3 as it so directs;

(e) the Customer irrevocably authorises Stone3 to enter any premises where Stone3 believes the Goods are kept and recover possession of the Goods;

(f) Stone3 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 Stone3;

(h) Stone3 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 PPS

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 Stone3 for Services – that have previously been supplied and that will be supplied in the future by Stone3 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 Stone3 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 3(a)(i) or 14.3(a)(ii);

(b) indemnify, and upon demand reimburse, Stone3 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 Stone3;

(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 Stone3;

(e) immediately advise Stone3 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  Stone3 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 Stone3, 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 Stone3 under clauses 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 Stone3 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 Stone3 from and against all Stone3’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Stone3’s rights under this clause.

15.3  The Customer irrevocably appoints Stone3 and each director of Stone3 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 three (3) days of Delivery notify Stone3 in writing of any evident of incorrect orders, 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 Stone3 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 (Non-Excluded Guarantees).

16.3  Stone3 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, Stone3 makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Stone3’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, Stone3’s liability is limited to the extent permitted by section 64A of Schedule 2.

16.6  If Stone3 is required to replace the Goods under this clause or the CCA, but is unable to do so, Stone3 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, Stone3’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 Stone3 at Stone3’s sole discretion;

(b) limited to any warranty to which Stone3 is entitled, if Stone3 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 1; and

(b) Stone3 has agreed that the Goods are defective; and

(c) the Goods are returned within thirty (30) days from date of delivery, subject to Stone3’s returns policy, at the Customer’s cost (if that cost is not significant); and

(d) the Goods are returned in the condition in which they were delivered, with all original packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances. Returned Goods must match Stone3’s current stock.

16.9  Notwithstanding clauses 1 to 16.8 but subject to the CCA, Stone3 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 Stone3;

(e) fair wear and tear, any accident, or act of God.

16.10  Unless otherwise agreed, the Customer may be required to pay for any freight costs associated with the return of any defective Goods.

16.11  Stone3 may in its absolute discretion accept non-defective Goods for return in which case Stone3 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.

16.12  Stone3 will not accept for any return any non-defective Goods that have been used, installed, damaged or altered in any way by the Customer, or for the return of Goods purchased as sale or discounted items, subject to obligations under the CCA.

16.13  Notwithstanding anything contained in this clause if Stone3 is required by a law to accept a return then Stone3 will only accept a return on the conditions imposed by that law.

16.14  Subject to clause 1, customised, or non-stocklist items or Goods made or ordered to the Customer’s specifications are not acceptable for credit or return.

16.15  The Customer acknowledges and accepts that returns and/or credits take approximately ten (10) business days to process. Credit notes shall be issued once returns are approved by Stone3’s third-party suppliers. 

17. Intellectual Property

17.1  Where Stone3 has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Stone3. Under no circumstances may such designs, drawings and documents be used without the express written approval of Stone3.

17.2  The Customer warrants that all designs, specifications or instructions given to Stone3 will not cause Stone3 to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Stone3 against any action taken by a third party against Stone3 in respect of any such infringement.

17.3  The Customer agrees that Stone3 may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Stone3 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 full payment, at a rate of two and a half percent (2.5%) per calendar month (and at Stone3’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 Stone3 any money the Customer shall indemnify Stone3 from and against all costs and disbursements incurred by Stone3 in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Stone3’s contract default fee, and bank dishonour fees).

18.3  Further to any other rights or remedies Stone3 may have under this Contract, if a Customer has made payment to Stone3, 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 Stone3 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 Stone3’s other remedies at law Stone3 shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Stone3 shall, whether or not due for payment, become immediately payable if:

(a) any money payable to Stone3 becomes overdue, or in Stone3’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 Stone3;

(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. Cancellation

19.1  Without prejudice to any other remedies Stone3 may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions Stone3 may suspend or terminate the supply of Goods to the Customer. Stone3 will not be liable to the Customer for any loss or damage the Customer suffers because Stone3 has exercised its rights under this clause.

19.2  Stone3 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 Stone3 shall repay to the Customer any money paid by the Customer for the Goods. Stone3 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 Stone3 or Stone3’s third-party suppliers as a direct result of the cancellation (including, but not limited to, any loss of profits, etc.).

19.4  Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once an order has been placed.

20. Privacy Policy

20.1  All emails, documents, images or other recorded information held or used by Stone3 is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. Stone3 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”). Stone3 acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by Stone3 that may result in serious harm to the Customer, Stone3 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 1, privacy limitations will extend to Stone3 in respect of Cookies where transactions for purchases/orders transpire directly from Stone3’s website. Stone3 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 Stone3 when Stone3 sends an email to the Customer, so Stone3 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 Stone3’s website.

20.3  The Customer agrees for Stone3 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 Stone3.

20.4  The Customer agrees that Stone3 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 Stone3 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 Stone3 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 Stone3 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 3 above;

(b) name of the credit provider and that Stone3 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 Stone3 has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of Stone3, 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 Stone3:

(a) a copy of the Personal Information about the Customer retained by Stone3 and the right to request that Stone3 correct any incorrect Personal Information; and

(b) that Stone3 does not disclose any Personal Information about the Customer for the purpose of direct marketing.

20.10  Stone3 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 Stone3 via e-mail. Stone3 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. Dispute Resolution

21.1  If a dispute arises between the parties to this contract, then 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.

22. Building Industry Fairness (Security of Payment) Act 2017

22.1  At Stone3’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building Industry Fairness (Security of Payment) Act 2017 may apply.

22.2  Nothing in this contract is intended to have the effect of contracting out of any applicable provisions of the Building Industry Fairness (Security of Payment) Act 2017 of Queensland, except to the extent permitted by the Act where applicable.

23. Service of Notices

23.1 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.

23.2  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.

24. Trusts

24.1  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 Stone3 may have notice of the Trust, the Customer covenants with Stone3 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 Stone3 (Stone3 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.

25. General

25.1  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.

25.2  These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which Stone3 has its principal place of business, and are subject to the jurisdiction of the Brisbane Courts in that state.

25.3  Subject to clause 16, Stone3 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 Stone3 of these terms and conditions (alternatively Stone3’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

25.4  Stone3 may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.

25.5  The Customer cannot licence or assign without the written approval of Stone3.

25.6  Stone3 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 Stone3’s sub-contractors without the authority of Stone3.

25.7  The Customer agrees that Stone3 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 Stone3 to provide Goods to the Customer.

25.8  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.

25.9  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.

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