Terms and Conditions of sale

Effective 27 June 2018

1. Definitions and interpretation

1.1 Definitions

In these terms and conditions of sale (terms and conditions), unless the context clearly indicates otherwise:

Buyer means the purchaser of the Goods, whose details are set out in the invoice.

Goods means the products and, if any, services specified in the invoice.

Seller means Tile Ezy Pty Ltd (ACN 125 044 653) or such other seller of the Goods whose details are set out in the invoice.

1.2 Interpretation

Nothing in these conditions exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.

2. General

These conditions (which will only be waived in writing signed by the Seller and Buyer) will prevail over all conditions of the Buyer’s order, to the extent of any inconsistency.

3. Terms of sale

The Goods and all other products sold by Seller are sold subject to these terms and conditions.

4. Seller’s quotations

Unless previously withdrawn, Seller’s quotations are an invitation to treat and orders may be submitted to the Seller within the period stated in them or, when no period is so stated, within 30 days only after its date. The Seller reserves the right to refuse any order based on its quotation following receipt of such order.

5. Packing

The cost of any special packing and packing materials used in relation to the Goods are at the Buyer’s expense, even if that cost has been omitted from any quotation.

6. Shortage

The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with the Seller within 2 business days from the date of receipt of Goods by the Buyer.

7. Specifications

    1. All specifications, images and particulars of weights and dimensions submitted to the Seller are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.
    2. The descriptions, illustrations and performances contained in the website, catalogues, price lists and other advertising matter of the Seller do not form part of the contract of sale of the Goods or of the description applied to the Goods.
    3. Where specifications, drawings or other particulars are supplied by the Buyer for the purposes of the Goods order, the Seller’s price will be calculated on the basis of estimates of quantities required to provide the Goods as specified, drawn or otherwise particularised by the Buyer. If there are any adjustments in quantities above or below the quantities estimated by Seller as set out in a quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.

8. Disclaimer

The Customer acknowledges and agrees:

      1. Goods which are described by the Seller as “economy” or “factory second” are goods that have failed to pass quality inspection, including due to cosmetic reasons (as opposed to functional reasons);
      2. to the maximum extent permitted by law, such “economy” or “factory second” Goods are sold “as-is”, including in respect of their cosmetic and other physical features
      3. due to the nature of such “economy” or “factory second” Goods and having regard to the basis upon which they are sold, the Buyer shall not be entitled to make any claims in respect of cosmetic faults in respect of such Goods, including with respect to calibration differences in the Goods;
      4. all “economy” or “factory second” Goods are subject to limited availability and are sold on that basis that such Goods shall only be available from the Seller “while stocks last”;
      5. order quantities are the responsibility of the Customer and all associated calculations must be checked by the Customer prior to submission of any order to the Seller. Without limiting the foregoing, to the maximum extent permitted by law the Seller does not accept any responsibility for and the Seller shall not be liable in respect of any claim, liability, cost, expense, claim or demand in connection with any calculation in respect of any quantities of Goods required by the Customer which has been made by the Seller or any of its officers, employees, agents, contractor or other personnel;
      6. the Customer shall be responsible for confirming all shade and/or batch variations in respect of Goods delivered prior to installation of them;
      7. the Customer shall not be entitled to make any claims and the Seller shall not be liable to the Customer for any claim, liability, cost, expense, claim or demand in respect of shade and/or batch variations after installation of Good; and
      8. all Goods listed as available by the Seller are subject at all times to stock availability.  In the event Goods are out of stock from time to time, the Seller may offer alternative Goods or a refund of the purchase price and this shall be the sole remedy of the Customer in respect of such matters.  Further, the Customer acknowledges certain Goods may be available through an alternative supply chain and still be available to purchase at an alternative price point.  The Seller will use reasonable commercial endeavours to provide details of same to the Purchaser, including details of the price of such alternative Goods.

9. Performance

Any performance figures given by the Seller are estimates only. To the maximum extent permitted by law, the Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

10. Delivery

    1. The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
    2. The Seller will not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods.
    3. The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.
    4. If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
      1. this does not constitute a repudiation of the contract of sale formed by these conditions; and
      2. the defective instalment is a severable breach that gives rise only to a claim for compensation.

11. Loss or damage in transit

    1. The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not the Seller is legally responsible for the actions of that person).
    2. The Seller must provide the Buyer with such assistance as may be reasonably necessary to institute claims against a carrier for damages to Goods in transit so long as the Buyer:
      1. has notified the Seller and the carrier in writing immediately after loss or damage is discovered by the Buyer on receipt of Goods; and
      2. serves a claim for compensation on the carrier within 3 days of the date of receipt of the Goods.

12. Guarantee

    1. The Seller’s liability for Goods manufactured by it is limited to making good any defects. This must be done by repairing the defects or, at the Seller’s option, by replacement, within a period not exceeding 12 calendar months after the Goods have been dispatched. This applies so long as:
      1. the defects have arisen solely from faulty materials or workmanship;
      2. the Goods have not received maltreatment, inattention or interference;
      3. accessories of any kind used by the Buyer are manufactured by or approved by Seller;
      4. the seals of any kind on the Goods remain unbroken; and
      5. the defective parts are promptly returned free of cost to the Seller.
    2. If the Goods are not manufactured by the Seller, the guarantee of the manufacturer of those Goods is accepted by the Buyer and is the only guarantee given to the Buyer for the Goods. The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
    3. The Seller is not liable for, and the Buyer releases the Seller from, any claims in respect of faulty or defective design of any Goods supplied. This is unless the design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing.
    4. The Seller’s liability under clause 12(c) is limited strictly to the replacement of defective parts in accordance with clause 12(a) of these conditions.
    5. Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller’s negligence or in any way.

13. Consumer guarantees

The Seller’s liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the Australian Consumer Law is limited to:

      1. in the case of Goods, any one or more of:
        1. the replacement of the Goods or the supply of equivalent goods;
        2. the repair of the Goods;
        3. the payment of the cost of replacing the Goods or of acquiring equivalent goods; and
        4. the payment of the cost of having the Goods repaired; or
      2. in the case of services:
        1. the supplying of the services again; or
        2. the payment of the cost of having the services supplied again.

14. Indemnification of suppliers by manufacturers

The Seller’s liability under section 274 of the Australian Consumer Law is expressly limited to a liability to pay to the purchaser an amount equal to:

      1. the cost of replacing the Goods;
      2. the cost of obtaining equivalent goods; or
      3. the cost of having the Goods repaired,

whichever is the lowest amount.

15. Prices

    1. Unless otherwise stated all prices quoted by vendor are inclusive of Goods and Services Tax (GST).
    2. Prices quoted are calculated at the date of issue of a relevant quotation and include rates provided by third parties providers. These third party rates include the cost of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production (Third Party Rates). Third Party Rates may vary slightly from the date of the quotation to the time of delivery of the Goods. The Buyer will be liable for any increase in the Third Party Rates.
    3. If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer’s account.

16. Payment

    1. The purchase price for the Goods plus GST where applicable is payable at the time the Customer places its order (Payment Due Date) unless other terms of payment are agreed in writing between the parties.
    2. The Buyer must pay interest on any outstanding amount not paid by Payment Due Date. Interest will be calculated on the basis of the Commonwealth Bank of Australia Business Indicator Rate as published from time to time plus 2%. Interest will accrue daily from the Payment Due Date until the outstanding amount is paid in full.

17. Buyer’s property

Any property of the Buyer under the Seller’s possession, custody or control is completely at the Buyer’s risk as regards loss or damage caused to the property or by it.

18. Storage

The Seller reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within 3 business days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.

19. Returned Goods

    1. Except for any provisions to the contrary contained in this agreement, the Seller is not under any duty to accept Goods returned by the Buyer. The Seller will do so only on terms to be agreed in writing in each individual case.
    2. If the Seller agrees to accept returned Goods from the Buyer under clause 19(a) of this clause, the Buyer must return the Goods to the Seller at the Seller’s place of business referred to at the head of these conditions.
    3. Seller may charge a restocking fee of 30% of the price of the relevant Goods.  Customer acknowledges that such fee is a genuine pre-estimate of Seller’s costs and expenses in connection with the supply and return of such Goods.

20. Goods sold

All Goods to be supplied by the Seller to the Buyer are as described on the purchase order agreed by the Seller and the Buyer and the description on such purchase order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer.

21. Cancellation

No order may be cancelled by the Buyer except with the written consent of the Seller. If there is a cancellation of the order by the Buyer, the Seller has the right to claim indemnity against all losses suffered by the Seller as a result of such cancellation.

22. Termination

    1. In the absence of any breach of this agreement, the Seller may terminate this agreement in its absolute discretion with a minimum of 7 days’ written notice to the other party.
    2. This agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).
    3. Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 14 days after receipt of a written notice by the other party requiring rectification of the breach.
    4. Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.
    5. The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.

23. Governing law

This agreement shall be governed by and construed in accordance with the laws of the State of Queensland, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of QueenslandC