This sale is made subject to the following terms and conditions which apply to all sales of Phoenix Products.
- Phoenix means Phoenix Stone Pty Ltd ACN 113 796 571
- The Customer means the person, business or company described and listed and includes its servants, agent and sub-contractors.
- Whole agreement
- These terms and conditions and any warranties implied by law which are not capable of being excluded or modified embody the whole agreement between the parties and, subject to the express terms contained in any written order and written acceptance thereof, all previous negotiations, representations, warranties, arrangements and statements (if any), whether expressed or implied, including any collateral agreement or warranty, regarding the subject matter or the intentions of either of the parties are merged in these terms and conditions and otherwise are hereby excluded and cancelled. The Customer acknowledges that it has not been induced to enter into this agreement by any representation, advice or information given or made by or on behalf of Phoenix.
- Quotations and orders
- Any quotation given by Phoenix to the Customer is not an offer or obligation to sell but an invitation to treat only.
- A quotation is open for acceptance within the period stated in the quotation or within 7 days from the date of the quotation if no period is stated.
- Phoenix is not responsible to confirm the accuracy of any information provided by a Customer and any measurements, dimensions and calculations provided shall be deemed to be correct.
- The Customer acknowledges and agrees that variations from the sample in the colour and surface texture of the goods may occur due to variations in manufacturing schedules, raw materials utilised and other unforeseen circumstances or causes beyond the control of Phoenix. Printed colour samples in Phoenix brochure only act as a guide and may vary in colour from the Products purchased.
- Until Phoenix accepts in writing an order submitted by the Customer, Phoenix is not obliged to supply the goods so ordered to the Customer. Phoenix reserves the right to refuse any order based on a quotation within 7 days after receiving the order.
- If the Customer defaults under these terms and conditions, Phoenix may cancel, suspend or vary the terms and conditions of any incomplete order that has been accepted by Phoenix without notice to the Customer and without being liable to the Customer.
- Phoenix is not responsible to the Customer for a breach of its obligation to supply the goods pursuant to an order Phoenix has accepted, or for any delay in delivery, if the failure to supply or the delay in delivery, is caused by matters beyond the reasonable control of Phoenix (including, without limitation, acts of God, acts of government, war or other hostility, national or international disaster, fire, explosion, power failure, equipment failure, strike or lockout, inability to obtain necessary supplies and any other force majeure occurrence).
- Subject to clause 9, under no circumstances is Phoenix liable for any consequential loss or damage resulting from any breach of contract or warranty, including breach of an essential term, and Phoenix’s liability is limited to the order price of the goods.
- The price of the goods shall be the price specified on the invoice and any prior quotation shall not apply;
- Prices are for supply and delivery during business hours Monday to Friday. Supply and/or delivery outside these hours will incur an extra charge to the Customer as specified on the invoice.
- If the Customer provides Phoenix with any dimension or measurements then Phoenix will calculate the quantity of the goods based upon the information furnished by the Customer. Phoenix shall not be liable for any over or under supply of goods occurring as a consequence of incorrect information being furnished.
- Prices quoted in any order apply to that order only and do not apply in any other circumstances. All prices include the Goods and Services Tax (GST)
- Payment and default
- Unless the Customer has a credit account with Phoenix, payment in full is required before any goods are made available or delivered to the Customer.
- Payment of the price shall be by cash or other mode approved by Phoenix prior to delivery of the goods. Payment by cheque shall not be deemed to be a cash payment until the cheque has been honoured by the Customer’s bank.
- Where a Credit account is provided: in the event of a credit sale, payment shall be made by the Customer within 30 days from the end of the month in which delivery occurs. After 30 days, outstanding invoices will bear interest at the rate of 15 per centum per annum calculated monthly;
- The Customer shall pay Phoenix any bank fee incurred by Phoenix in respect to a Customer’s dishonoured cheque and any legal or other costs of collection of an overdue amount including Phoenix’s monthly administration fee.
- Time is of the essence for all the Customer’s obligations.
- In the event that the Customers account is not paid on time Phoenix reserves the right to revoke all credit facilities.
- If the Customer defaults in any payment or commits any act of bankruptcy or being a corporate body passes a resolution for winding up or a petition is presented for its winding up, then all monies owing and outstanding to Phoenix on any account whatsoever shall become immediately due and payable. In addition Phoenix may without prejudice to its other rights suspend further deliveries, require payment in advance for all such deliveries or terminate any contract forthwith by written notice to Customer;
- Any delivery times notified to the Customer are estimates only and Phoenix is not responsible for late or non-delivery. Phoenix will make all reasonable efforts to deliver the goods to the Customer on the date agreed between the parties but any date named or accepted by Phoenix for completion, delivery, despatch, shipment or arrival of the goods is an estimate only and does not constitute a condition of the Contract but notwithstanding, all promises of delivery are made in good faith in the light of conditions and circumstances prevailing at the time.
- If the Customer requests Phoenix to postpone delivery of the Product beyond the delivery date or dates specified in the order, Phoenix may agree to do so if the Customer pays an additional fee for such postponement and for storage charges.
- Unless the quoted price is inclusive of delivery to a nominated address, the Customer will be charged for delivery.
- “delivery address” means the property address identified by the Customer when ordering the goods and nominated as such on the front of this invoice.
- Goods will be delivered to the kerbside adjacent to the delivery address.
- The driver of the Phoenix delivery vehicle will assess any request of the Customer to enter the site and will only proceed if it is deemed to be safe to do so. If at the Customer’s request, the Phoenix delivery vehicle leaves the road and enters the delivery site to unload, the Customer is responsible for providing suitable and safe access for the Phoenix delivery vehicle and agrees to indemnify Phoenix and its agents for all damage and injury to any property which may result including any costs associated with enabling the delivery vehicle to enter or leave the site;
- When ordering goods for delivery to a delivery address which may be unattended, the Customer shall specify the manner in which the Customer will mark the place on the delivery site where goods are to be deposited by Phoenix If the Customer has not so marked the place at the time of delivery, Phoenix may deposit the goods in such place as seems reasonable including the kerbside adjacent to the delivery address;
- The Customer undertakes to inspect all goods immediately upon delivery.
- Phoenix’s delivery records shall be prima facie evidence of the delivery of the goods of the quantity and description stated therein in good order to the Customer and his receipt thereof notwithstanding the absence of any representative of the Customer at the delivery address;
- If a delivery is prevented from unloading within fifteen minutes of Phoenix’s arrival on site for any reason then the Customer will be responsible for a waiting time charge at Phoenix’s then current hourly rate;
- If Phoenix is unable to deliver due to insufficient space on site or for any other reason not the fault of Phoenix then the Customer shall be responsible for a cartage charge at Phoenix’s current hourly rate at the time for the delivery to and from the site. Any subsequent delivery attempt will incur an additional charge.
- Phoenix reserves the right to refuse to accept any Products from the Customer (including made to order or “one off”) for return and credit.
- If Phoenix elects to accept a return of products from the customer, any credit given to the customer will be at Phoenix’s discretion after deduction of any cartage costs borne and or handling fee charged/incurred by Phoenix.
- A restocking fee may apply to all retuned Product.
- If Phoenix provides a sample of the goods the Customer acknowledges and agrees that variations from the sample in the colour and surface texture of the goods may occur due to variations in manufacturing schedules, raw materials utilised and other unforeseen circumstances or causes beyond the control of Phoenix;
- printed colour samples in Phoenix’s brochure only act as a guide.
- a small sample of goods may vary from a full size sample.
- Phoenix warrants that any goods sold by it will be free from defects in workmanship and material under normal use for a period of 12 months after delivery. This warranty does not cover any goods accessories and parts which are not manufactured by Phoenix, and in that case the Customer will only have the benefit of the warranty (if any) of the manufacturer of such parts and accessories which forms part of the contract between Phoenix and the manufacturer. This warranty does not apply where in Phoenix’s opinion a defect has been caused by careless or improper handling, by non-adherence to operating instructions or by fair wear and tear.
- For the purpose of making any claim in accordance with this clause the Customer must:
- immediately upon becoming aware of circumstances giving rise to a claim under this clause, notify Phoenix in writing setting out full particulars of the claim;
- allow Phoenix, its employees and agents full and free access to the goods in relation to which the claim is made and to the place where the goods have been applied or used for the purpose of conducting such tests as Phoenix may in its absolute discretion consider necessary to determine whether the claim is justified or not.
- Phoenix shall not be liable for any personal, physical or financial injury loss or damage or for any consequential loss or damage of any kind arising out of any goods manufactured or supplied by Phoenix arising out of Phoenix’s negligence, default or other conduct in any way whatsoever.
- All express and implied warranties, guarantees and conditions whether under statute or common law as to workmanship, merchantability, description, quality, suitability or fitness of the goods for any purpose are hereby excluded.
- Nothing in these conditions shall be read or applied to exclude, restrict or modify any condition, warranty, guarantee right or remedy existing by law including the Trade Practices Act 1974 and which by law cannot be excluded, restricted or modified.
- Phoenix’s liability for any breach of a condition or warranty existing by law including the Trade Practices Act 1974 is hereby limited (at Phoenix’s option) to either the replacement of the goods or the supply of equivalent goods or the repair of the goods or the payment of the cost of replacement of the goods or acquiring equivalent goods.
- Phoenix has no liability in respect of any vehicle, which leaves Phoenix’s premises in breach of any statutory provision or regulation relating to the vehicle loads or for any loss or damage resulting from such breach.
- The Customer shall indemnify Phoenix against any claim made against Phoenix by any third party in respect of any loss, damage, death or injury and the Customer further agrees to indemnify Phoenix against all losses and expenses which Phoenix may suffer or incur due to the failure of the Customer to fully observe its obligations under this contract.
Any advice, recommendation or assistance provided by Phoenix in relation to the goods or their use or application is given in good faith and is believed by Phoenix to be appropriate and reliable. However any such advice, recommendation, information or assistance is provided without liability or responsibility on the part of Phoenix.
The risk in the goods shall pass to the Customer upon delivery to the Customer or his agent or to a carrier commissioned by the Customer however legal and equitable title remains with Phoenix until payment in full for all debts accrued or owed to Phoenix is made.
- Reservation of Title
- Ownership of the goods shall remain with Phoenix until such time as –
- payment in full for the goods has been made by the Customer; or
- the Customer sells the goods to his Customer in the ordinary course of business.
- If the Customer fails to pay any amount of the Customer’s total indebtedness to Phoenix when due to Phoenix, Phoenix may without prejudice to any of its other rights and remedies recover and/or resell the goods or any of them and may enter upon the Customer’s premises for that purpose;
- Until payment in full for the goods has been received by Phoenix, the Customer shall store the goods in a way which duly manifests Phoenix’s title in the goods;
- The Customer acknowledges that until its total indebtedness under these conditions of sale is discharged he holds the goods as bailee for Phoenix and a fiduciary relationship exists between them;
- In the event of the sale of the goods to a Customer by the Customer then the Customer in his position as a fiduciary shall –
- assign to Phoenix the benefit of any claim against the Customer and;
- account fully to Phoenix for the proceeds of the sale.
- It is expressly agreed and declared that the Product delivered by Phoenix to the Customer remains the sole and absolute property of Phoenix as legal and equitable owner until all money due to Phoenix has been paid to Phoenix.
- The Customer undertakes to store the Product on its premises separately from its own goods or those of any other person and in a manner which makes the Product readily identifiable as Phoenix’s Product, until delivery of the Product to a third party.
- The Customer may resell the Product, but only as fiduciary agent of Phoenix.
- The Customer must keep an amount from the proceeds of sale which is equal to the debt owed to Phoenix in a separate identifiable account as the beneficial property of Phoenix and must immediately pay such amount to Phoenix upon request.
- The Customer’s right to possession of the Product ceases if it does anything or fails to do anything which would entitle a receiver, a receiver and manager, an administrator or a trustee to be appointed in respect of the Customer, its undertaking or property or any part thereof, or entitle a person to present a creditor’s petition for winding up the Customer.
- Phoenix may for the purpose of examination or recovery of the Product enter upon any premises where the Product is stored or where it is reasonably thought to be stored.
- If the Buyer uses the Product in some manufacturing or construction process of its own or of some third party, then the Customer must hold such part of the proceeds of such manufacturing or construction process as relates to the Product in trust for Phoenix.
- These provisions apply notwithstanding any arrangement under which Phoenix provides credit to the Customer. To the extent that there is any inconsistency these provisions prevail.
- Ownership of the goods shall remain with Phoenix until such time as –
- Force Majeure
In the event of the suspension of production owing to breakdown, strikes, trade disputes, fires, accidents, act of God or other causes over which Phoenix has no reasonable control then deliveries may be wholly or partly suspended until normal production is resumed and Phoenix shall not be liable for any loss or damage accruing to the Customer in respect of such suspension.
- Claims and liabilities
- Any claim by the Customer as to incorrect performance or breach of these terms and conditions (other than a claim made under Clause 9) must be made to Phoenix in writing within 7 days of delivery, for which time is of the essence.
- Where a claim relates to the warranties under Clause 9, the limitations and exclusions in that clause apply.
- The total liability of Phoenix, its employees, servants and agents is limited to one or more of the following at the option of Phoenix:
- replacement of the Product supplied or supply of equivalent Product;
- payment of the cost of replacing the Product or of acquiring equivalent Product;
- payment of the cost of having the Product repaired; and does not extend to consequential loss or damage.
- Warranty claims
If the Customer believes that the goods as supplied by Phoenix are not in accordance with the Contract then the Customer must give notice in writing to Phoenix within 3 days of delivery of the goods. Unless such notice is given, Phoenix will be deemed to have complied with the Contract. Such notice must specify in reasonable detail the ground upon which the buyer relies.
No waiver by Phoenix of any breach of these terms and conditions operates as a waiver of any other breach, and the doing and/or omission of any act, matter or thing whatsoever by Phoenix, its employees or agents (which but for this clause ought or might amount to a waiver of Phoenix’s rights in respect of any such breach or default) does not operate as a waiver in any way of Phoenix’s rights and powers in respect of such breach or default.
Any notice required under this agreement must be in writing and given by post, facsimile or hand to Phoenix or the Customer at the address set out in the schedule or at such other address or facsimile number as is notified in writing by one party to the other.
- Governing law
This contract is governed by the laws of the State of Victoria notwithstanding the place in which the Product or any of them are to be delivered. The Customer and Phoenix irrevocably submit to the exclusive jurisdiction of the Courts of that State.
- Goods and Services Tax (“GST”)
GST is included in the price.
- information about the Customer which is provided to Phoenix may be disclosed elsewhere within Phoenix;
- Phoenix will use this information to manage its business dealings with the Customer namely;
- assess the Customer’s credit application;
- manage the Customer’s payment of accounts;
- inform the Customer of Phoenix’s products and services;
- comply with Phoenix’s legal obligations; and
- supply information to contractors and advisers that assist Phoenix.
- For the purposes of assessing the credit-worthiness of the Customer from time to time and the collection of payments, the Customer authorises Phoenix, its employees and agents to make such enquiries as they deem necessary including, without limitation, making enquiries of and obtaining reports (as may be allowed by law) from persons nominated by the Customer as trade referees, the Customer’s creditors, bankers and financiers, credit providers, mortgage and trade insurers and credit reporting agencies (“the information sources”). The Customer consents to the information sources providing to Phoenix such information as is requested by Phoenix and permitted to be given by law. The Customer also consents to Phoenix disclosing personal information or the contents of any credit report to a credit reporting agency for the purpose of that credit reporting agency creating or adding to any credit information file in relation to the Customer.
- Important Information
- Products being laid adjacent to a pool may require special attention. Products may need to be sealed to obtain full performance.
- Refer to installation and maintenance guides for information pertaining to proper installation and care of product.
I/we agree to be bound by the Terms and Conditions of Sales set out in this application and warrant that the information given by me/us in this application is true and accurate and warrant I/we have disclosed all information relevant to this application.
(signed for and on behalf of the customer)