TERMS AND CONDITIONS OF SALE
1.1 In these terms and conditions of sale (Conditions):
(1) “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Fair Trading Act 1999 (Vic).
(2) “Company” means Decor8 Tiles Pty Ltd ABN 71 112 905 147 of 3 Foran Grove, Oakleigh South, Vic, 3167, its successors and assigns, which is the seller of the Goods.
(3) "Consequential Loss" means any loss, damage or costs incurred by a party or any other person that is indirect or consequential, as well as loss of revenue; loss of income; loss of business; loss of profits; loss of production; loss of or damage to goodwill or credit; loss of business reputation, future reputation or publicity; loss of use; loss of interest; losses arising from claims by third parties; loss of or damage to credit rating; loss of anticipated savings and/or loss or denial of opportunity.
(4) “Customer” means the person specified as the customer of the Goods purchased under this account.
(5) "Default Rate" means on any day the aggregate of 2% per annum above the rate set down from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic).
(6) "Display Materials" means all display materials, mechanisms, boards and other means of public advertising supplied by the Company.
(7) “Goods” means the products supplied by the Company to the Customer (and where the context permits shall include any supply of Services as defined below) which are specified as being purchased under this account.
(8) "Key Personnel" means a board member, committee member or anyone that holds a position of power attached to which is the ability to make decisions that affect the direction and operation of the entity.
(9) "Non-excludable Rights" means rights under the Australian Consumer Law or other rights in relation to the supply of the Goods and Services that cannot lawfully be excluded by the Company.
(10) "PPS Act" means the Personal Property Securities Act 2009 (Cth).
(11) "Services" means all services supplied by the Company to the Customer in connection with the Goods and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
(12) “Price” shall mean the price payable for the Goods and/or Services as agreed between the Company and the Customer in accordance with clause 4 of these Conditions.
1.2 In these Conditions:
(1) A word denoting the singular number includes the plural number and vice versa.
(2) A word denoting an individual or person includes a corporation, firm or other entity.
(3) A word denoting a gender includes all genders.
2.1. If these Conditions are executed by a person other than the Customer, that person warrants that he/she has express authority to enter into these Conditions on behalf of the Customer and hereby indemnifies the Company against all losses and costs incurred by the Company arising directly or indirectly from the absence of such authority.
2.2. Where more than one Customer has entered into these Conditions, the Customers shall be jointly and severally liable under these Conditions, including for all payments of the Price.
2.3. Upon acceptance of these Conditions by the Customer, these Conditions shall become binding and can only be amended in writing with the written consent of all parties.
2.4. These Conditions and any quotation given by the Company (which may only be waived in writing signed by the Company) shall prevail over all conditions of the Customer’s order to the extent of any express or implied inconsistency.
2.5. The Customer shall give the Company not less than 14 days prior written notice of any proposed change of ownership of the Customer, change in the Customer’s name, change in the Customer's Key Personnel and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss or damage directly or indirectly incurred by the Company as a result of the Customer’s failure to comply with this clause.
- Terms of Sale
3.1. The Customer agrees that these Conditions, the Credit Application where accepted by the Company, any quotation by the Company and all orders for Goods or Services placed by the Customer constitute the agreement between the Company and the Customer.
- Price and Payment
4.1. Subject to clauses 4.2, 4.3 and 4.4, the Price shall be the Company's quoted price.
4.2. The Company reserves the right to change the Price if there is a variation to the Company's quotation. Any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to the Company in the cost of materials and labour) will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice.
4.3. Unless previously withdrawn, the Company’s quotations are open for acceptance within the period stated therein or, when no period is so stated, within 60 days only after this date. The Company reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.
4.4. Unless otherwise stated all prices quoted by the Company are net, inclusive of sales tax. Prices quoted are those ruling the date of issue of the quotation and are based on rates of freight, insurance, customs duty, exchange, shipping expenses, sorting and stacking charges, cartage, cost of material and other charges affecting the cost of production ruling on the date of the quotation is made and any alterations thereto either before acceptance of or during the currency of the contract shall be to the Customer’s account.
4.5. If the Goods are sold by way of cash sale, the Customer shall pay for the Goods by cash, cheque or credit card approved by the Company prior to delivery of the Goods.
4.6. If the Goods are sold by way of credit sale, the Price in relation to the Goods shall be payable net and payment thereof shall be made on or before the end of the month next following the delivery of the Goods unless other terms of payment are expressly stated herein in writing. Goods are only sold by way of credit sale where the Company has approved the Customer’s written application for a credit account.
4.7. Should any payment pursuant to these Conditions not be paid by the due date then all monies shall immediately become payable.
4.8. To the extent that any supply made under or in connection with these Conditions is a taxable supply, the Customer must pay, in addition to the Price payable for that supply (unless it expressly includes GST) an amount equal to the amount of that Price (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply, provided that the Company has first issued to the recipient a tax invoice in respect of that taxable supply. The Customer must also pay any stamp duty and all other excises and duties that are payable relating to the supply of the Goods and/or Services by the Company.
4.9. 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 the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
5.1. The cost of any special packing and packing materials used in relation to the Goods shall be at the Customer’s expense not withstanding that such a cost may have been omitted from any quotation.
6.1. The Customer waives any claim for shortage of any Goods delivered if it has not lodged that claim with the Company within 7 days from the date of receipt of Goods by the Customer.
- Drawings, Description and Variation
7.1. Subject to the Non-excludable Rights, all specifications, drawings and particulars of weights and dimensions submitted to the Company are approximate only and any deviation shall not form grounds of any claim against the Company. The descriptions, illustrations and performances contained in catalogues, price lists and other advertising materials do not form part of the contract of sale of the Goods. Where specifications, drawings or other particulars are supplied by the Customer, the Company may estimate a Price and provide it to the Customer in an individual quotation. The Company does not guarantee the accuracy of the Price as it is merely an estimate. If there are any changes to the Price, the Company will vary the Price up or down and will notify the Customer of this variation and the Customer will be liable to pay the varied Price.
7.2. Due to variations in natural products, raw materials and other factors, fired clay, fired glass and natural stone products offered for sale by the Company may vary in shade, colour, veining, glaze, finish and in other respects from products of the same description displayed or advertised by the Company and from goods of that description manufactured at another time and, subject to the Non-excludable Rights, the Company is not liable for any such variation. The Company does not warrant that fired clay, fired glass or natural stone products sold under the same description as goods displayed, sampled or advertised by the Company shall be identical as goods of that description displayed or advertised by the Company or with goods sold under that description sold on another occasion.
7.3. To the full extent permitted by law the Company shall not be liable for crazing of ceramic tiles.
8.1. Any performance figures given by the Company are estimates only. The Company shall be under no liability for damages for failure to obtain such figures unless specifically guaranteed in writing and any such written guarantee shall be subject to the recognised tolerances applicable to such figures.
- Laying the Goods
9.1. All Goods must be inspected by the Customer prior to laying.
9.2. All Goods must be laid in accordance with recognised industry standards.
9.3. The act of laying the Goods is deemed to be acceptance of the quality, size, shade, colour, veining, glaze and finish of the Goods by the Customer.
9.4. Except to the extent that the Goods are faulty and subject to the Non-excludable Rights, once the Goods have been laid, the Customer cannot bring a claim against the Company and the Company shall have no liability in respect of those Goods. Shade variation is an inherent characteristic of ceramic tiles and natural stone and shall not be considered a fault.
10.1. Delivery of the Goods shall take place at the earlier of:
(1) the Customer or the Customer's nominated carrier taking possession of the Goods at the Company's address; or
(2) the Customer taking possession of the Goods at the Customer’s nominated address (if the Goods are delivered by the Company or the Company's nominated carrier).
10.2. Subject to the Non-excludable Rights, the delivery times made known to the Customer are estimates only and the Company shall not be liable for late delivery or non-delivery and under no circumstances shall the Company be liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non-delivery or late installation of the Goods.
10.3. When, for example by reason of the Customer’s inadequate or incorrect description of the delivery site, the Company’s carrier cannot identify the delivery site or for whatever reason the Customer is unable to take delivery, the Goods shall be returned to the Company and the Customer shall pay for the Company’s storage, cartage charges for the journey and re-delivery.
10.4. If there is any delay at the delivery site beyond the control of the Company’s carrier the Customer must pay waiting of any period in excess of one hour at the reasonable rate charged from time to time by the Company.
10.5. Subject to the Non-excludable Rights, the failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
- Display Materials
11.1. The Company may, at its sole discretion, provide the Customer with Display Materials at the time of delivery.
11.2. The Display Materials remain the property of the Company at all times and are provided to the Customer for display purposes only.
11.3. If the Company provides the Customer with Display Materials in accordance with clause 11.1, the Customer must erect and exhibit the Display Materials at its premises in a position that is easily viewed by the public and passers-by.
11.4. The Company may, at any time, demand the return of the Display Materials and shall be entitled without notice to the Customer and without liability to the Customer, to enter any premises where it suspects the Display Materials may be located in order to search for and remove the Display Materials without committing trespass, even though they may be attached or annexed to other goods or land not the property of the Company, and for this purpose the Customer irrevocably licenses the Company to enter such premises, undertakes that it will procure any necessary authority to enter from any relevant person and also indemnifies the Company from and against all loss suffered or incurred by the Company as a result of exercising its rights under this clause 11.4.
- Loss or damage in transit
12.1. Subject to the Non-excludable Rights, if the Company delivers the Goods, the Company’s liability for loss or damage to the Goods in transit is limited to the replacement of the Goods lost or damaged or the supply of equivalent goods. In other respects the Company’s liability is strictly limited in accordance with clause 13.2 of these Conditions.
- Australian Consumer Law and the Company's Liability
13.1. Subject to clause 13.1 (2), the Company makes no guarantee, condition or warranty as to materials, workmanship or performance of the Goods and Services.
(1) The Company does not provide an express guarantee in relation to the Goods. The guarantee of the manufacturer of the Goods shall be accepted by the Customer and is the only express guarantee given to the Customer in respect of the Goods.
(2) With the exception of the Non-excludable Rights to which the Customer may be entitled, and notwithstanding any other provision of these Conditions, the liability of the Company to the Customer, whether arising under or in connection with these Conditions or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort for negligence or otherwise, or on any other basis in law or equity is hereby limited and excluded as follows:
- a) the Company shall have no liability whatsoever to the Customer for any financing costs or increase in operating costs or for the loss of data or contract, or for any economic, special or Consequential Loss; and
- b) the total aggregate liability of the Company is at all times limited to the amount equal to the Price of the Goods or Services.
(3) The Customer indemnifies and agrees to keep indemnified the Company against all actions, proceedings, claims, demands, liabilities, losses, damages, costs penalties and all expenses legal or otherwise arising from any matters covered in clause 13.1.
13.2. To the maximum extent permitted by law, the Company’s liability for the breach of any Non-excludable Right is hereby limited, at the Company's option, to:
(1) in the case of Goods, repair or replacement of the Goods or the cost of repairing or replacing the Goods; and
(2) in the case of Services, the supply of the Service again, or the payment of the cost of having the Service supplied again.
13.3. To the extent permissible by law and when not in conflict with the Non-excludable Rights, the Customer must indemnify the Company and hold it harmless against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons or damage to property arising out of the use of the Goods however arising and whether or not arising from any negligence, failure or omission of the Customer or any other persons.
13.4. The Customer acknowledges that it has not relied upon or been induced by any representation by the Company.
- Title and Risk in relation to the Goods
14.1. The risk in the Goods passes to the Customer when delivery of the Goods is deemed to have taken place in accordance with clause 10.1 of these Conditions.
14.2. The Company’s rights under this clause 14 secure the Company’s right to receive all amounts owing to it under these Conditions or any other agreement between the parties.
14.3. All payments received from the Customer may be applied by the Company in the manner the Company, in its absolute discretion, determines.
14.4. Until full payment in cleared funds is received by the Company for all Goods supplied by it to the Customer, as well as all other amounts owing to the Company by the Customer under this or any other agreement:
(1) legal title and property in all Goods supplied under these Conditions remains with the Company;
(2) the Customer must store the Goods separately and in such a manner and maintain any labelling and packaging of the Company , so that the Goods are clearly and readily identifiable as the property of the Company;
(3) the Customer must not sell the Goods except in the ordinary course of the Customer's business;
(4) the Customer holds and agrees to hold the proceeds of any sale, lease or other dealing with the Goods for the Company in a separate bank account with a bank which does not (and will not in the future) provide finance to the Customer;
(5) in addition to any rights the Company may have under Chapter 4 of the PPS Act, the Company may, at any time, demand the return of the Goods and shall be entitled without notice to the Customer and without liability to the Customer, to enter any premises where it suspects the Goods may be located in order to search for and remove the Goods without committing trespass, even though they may be attached or annexed to other goods or land not the property of the Company, and for this purpose the Customer irrevocably licenses the Company to enter such premises, undertakes that it will procure any necessary authority to enter from any relevant person and also indemnifies the Company from and against all loss suffered or incurred by the Company as a result of exercising its rights under this clause 14.4(5). If there is any inconsistency between the Company's rights under this clause 14.4(5) and its rights under Chapter 4 of the PPS Act, this clause 14.4(5) prevails; and
(6) the Customer acknowledges and warrants that the Company has a security interest (for the purposes of the PPS Act) in the Goods and any proceeds described in clause 14.4(6) and the Customer must do anything reasonably required by the Company to ensure that such security interest is enforceable, perfected and otherwise effective and has the priority required by the Company which, unless the Company agrees in writing otherwise, is first priority; and
(7) the security interest arising under this clause 14.4(7) attaches to the Goods when the Customer obtains possession of the Goods and the parties confirm that they have not agreed that such security interest attaches at any later time.
14.5. The Customer must, at its own cost, insure and keep insured the Goods against such risks as a prudent owner of the Goods would insure at their full cost price, with a reputable insurance company and note the Customer as a person to whom the benefit of such insurance policies extend for its respective rights and interests and include an acknowledgement from the insurer that it will notify the Company not less than 30 days before cancelling any such insurance policies.
- PPS Act
15.1. Unless a contrary intention appears, words or expressions used in this clause 15 that are defined in the PPS Act have the same meaning as given to them in the PPS Act.
15.2. If at any time the Company determines that these Conditions (or any of the transactions contemplated by or under them) creates a security interest in its favour over any personal property, the Company may apply for any registration, or give any notification, in connection with that security interest and the Customer must promptly, upon the Company's request, do any thing (including, without limitation, completing, signing and producing documents, obtaining consents and supplying information) to:
(1) protect any right, title and/or interest of the Company in the relevant personal property;
(2) provide more effective security over the relevant personal property;
(3) ensure that any such security interest in favour of the Company:
- a) is at all times registered, enforceable, perfected (including, where applicable, by control as well as by registration), maintained and otherwise fully effective; and
- b) ranks as a first priority security interest;
(4) enable the Company to prepare and register a financing statement or a financing change statement or give any notification in connection with that security interest; and
(5) enable the Company to exercise any of its rights or perform any of its obligations in connection with any such security interest or under the PPS Act.
15.3. All costs and expenses arising as a result of actions taken by either party pursuant to this clause 15 will be for the account of the Customer. Within 14 days of a written request, the Customer must pay to the Company any costs or expenses incurred or to be incurred in connection with this clause 15.
15.4. If Chapter 4 of the PPS Act would otherwise apply to the enforcement of the security interest created under these Conditions, the Customer agrees that the following provisions of the PPS Act will not apply:
(1) section 95 (notice of removal of accession), to the extent that it requires the Company to give a notice to the Customer;
(2) section 121(4) (enforcement of security interests in and seizure of liquid assets – notice to grantor);
(3) section 125 (obligation to dispose of or retain collateral);
(4) section 130 (notice of disposal), to the extent that it requires the Company to give a notice to the Customer;
(5) section 132(3)(d) (contents of statement of account after disposal);
(6) section 132(4) (statement of account if no disposal); (7) section 135 (notice of the Company's proposal to retain the Goods or their proceeds);
(8) section 142 (redemption of collateral); and
(9) section 143 (reinstatement of security agreement).
15.5. Pursuant to section 125(3) of the PPS Act, the Company may delay disposing of, or taking action to retain, the whole or part of the collateral that it seizes under section 123 of the PPS Act, for as long as it sees fit in its absolute discretion.
15.6. The Company does not need to give the Customer any notice required under the PPS Act (including, without limitation, a notice of a verification statement under section 157 of the PPS Act) unless the requirement for the notice cannot be excluded.
15.7. In addition to and without derogating from the confidentiality obligations of the parties set out in these Conditions, neither party will disclose to a person or entity that is not a party to these Conditions information of the kind mentioned in section 275(1) of the PPS Act unless section 275(7) of the PPS Act applies or that information is publicly available.
- Customer’s Property
16.1. Any property of the Customer under the Company’s custody or control shall be entirely at the Customer’s risk as regards loss or damage caused to the property or by it.
17.1. In addition to its rights under clause 10.3, the Company reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Customer within 14 days of a request by the Company for such information.
- Returned Goods
18.1. Save for any Non-excludable Rights, the Company shall not be under any obligation to accept goods returned by the Customer and will do so only on terms to be agreed in writing in each individual case.
18.2. Without limiting condition 18.1 and save for any Non-excludable Rights, if the Customer requests that the Company provide a credit in respect of the Goods, the following conditions shall apply:
(1) invoice number must accompany returns;
(2) the Goods must be returned within 2 weeks of purchase date;
(3) where the Goods returned are tiles, the tiles must be of current stock and match in shade to stocks on hand;
(4) the Company may impose a reduction in the amount of credit equal to 20 percent of the invoiced value of the returned Goods to compensate for handling and possible loss, the cost of returning the Goods shall be borne by the Customer.
18.3. The Company may (at its sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to twenty percent (15%) of the value of the returned Goods plus any freight costs.
- Goods Sold
19.1. All Goods to be supplied by the Company shall be as described on the purchase order agreed by the Company and the Customer and the description on such purchase order modified as so agreed shall prevail over all other descriptions including any Customer’s specification or enquiry.
- Default and Consequences of Default
20.1. Interest on any overdue amounts owing to the Company under these Conditions shall be payable on demand and will accrue daily from the date when payment becomes due, until the date of payment at the Default Rate.
20.2. If the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Company.
20.3. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company's collection agency costs.
20.4. Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under these Conditions or withdraw or cancel any discount, markdown, reduction or special price, previously offered by the Company to the Customer, and the Customer must, from the moment of withdrawal or cancellation, pay the Company's standard Price as at the date of the original order. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
21.1. The Customer may not cancel any except with consent in writing and on terms which will indemnify the Company against all losses.
- Force Majeure
23.1. The supply of Goods or Services by the Company under these Conditions may be totally or partially suspended by the Company during any period in which the Company may be prevented or hindered from delivering the Goods by the Company’s normal means of supply or delivering by normal route through any circumstances outside its reasonable control including but not limited to war, acts of terror, strikes, lockouts, raw material shortages, accidents or breakdowns of plant or machinery or failure of delivery by the Company’s suppliers.
23.2. The Company shall not incur any liability to the Customer in respect of such suspension. The Company may terminate these Conditions or any order if in the Company’s reasonable opinion, it believes a force majeure event will prevent it from supplying the Goods for longer than one month.
23.3. To the extent not excluded by law, the Company’s failure to deliver the Goods due to the occurrence of a force majeure event will not entitle either party to treat these Conditions, or any contract to which these Conditions apply, as repudiated.
- Entire Contract
24.1. Subject to the Non-excludable Rights, this contract for sale of the Goods constitutes the sole and entire agreement between the parties and any representation, term or condition not contained or recorded in this contract is of no force or effect.
25.1. If a provision in these Conditions is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be read down and interpreted so that it is no longer void, illegal or unenforceable or treated as deleted from these Conditions for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of the Conditions. This clause does not apply and has no effect if such severance of the provision of the Conditions materially affects or alters the nature or effect of the parties’ obligations under the Conditions.
26.1. The contract for sale of the Goods is governed by, and is to be construed in accordance with, the Law of Victoria and any Court hearing appeals from those Court.
27.1. Tiles are not guaranteed against crazing
- Shade Variation
28.1. No claims in respect to variation in shade can be allowed after tiles have been fixed. Care should be taken in laying out tiles prior to installation to ensure an acceptable mix of shade and colour.
- Special Orders
29.1. No credit will be given to special orders.