Terms & Conditions of Contract THE CONTRACT
- These terms and conditions and the material information and further conditions contained in the invoice to which this document is attached constitute a contract between TOP Tiles (as defined in the invoice) and the Customer (as described on the invoice) for the supply by TOP Tiles to the Customer of the Products described in the invoice.
- In the event of any inconsistency between these terms and conditions and the further conditions contained in the invoice, the further conditions shall prevail.
- This document and the invoice comprise the whole of the contract between TOP Tiles and the Customer, who each acknowledge that there are no other conditions representations or warranties which apply to the contract between them.
- The Products to be supplied by TOP Tiles to the Customer are as specified in the invoice. The Customer acknowledges that:
(a) He/she is satisfied from his/her own enquiries that the specification of the Products is correct, and appropriate for the purposes for which he/she requires the Products: and (b) The quantity of Products specified has been calculated and verified by the Customer.
- TOP Tiles thus does not accept any responsibility for either the specification of the Products on the calculation or the quantity required, and its liability in respect of the supply of the Products is limited in the manner set out in these terms and conditions.
PAYMENT & TRADING TERMS
- The price payable by the Customer to TOP Tiles for the purchase of the Products is as prescribed in the invoice.
- Except as provided in the invoice or as provided in clause 9, the price must be paid in full prior to delivery or collection of the Products.
- Where Products are ordered by a Customer in advance of delivery or collection, then the Customer must pay a deposit of 33% of the price at the time the order is placed, unless TOP Tiles agrees to waive this requirement. At TOP Tiles discretion, any such deposit shall be refundable on cancellation of the order if the Products are current floor stock carried by TOP Tiles or if TOP Tiles is not itself committed to the manufacturer/supplier to take up the order.
- In any case where TOP Tiles agrees to grant credit to a Customer, in the absence of special arrangements to the contrary recorded in writing, the price must be paid in full within 30 days of delivery, failing which the Customer must pay interest to TOP Tiles on the unpaid price completed from the final date for payment until the amount owing is duly paid at a rate of interest equivalent to the NAB Banks indicator rate as at the final date of payment plus 2%.
- If the Customer fails to comply with these terms of payment then TOP Tiles shall be entitled to treat such failure as a fundamental breach of contract and to treat the contract as repudiated.
- Where the terms of this contract specify that the Products are to be delivered by TOP Tiles , then;
(a) The Customer must provide adequate directions to enable TOP Tiles or its agents or contractors to affect delivery. (b) TOP Tiles will use reasonable endeavours to affect delivery within any time frame specified on the invoice. (c) Products will be delivered to the nature strip of the Customer’s household, unless other specific arrangements have been made and are specified on the invoice. If delivery other than to the nature strip is required, TOP Tiles shall be entitled to charge the Customer a reasonable handling fee for such a delivery. If entry to the Customer’s site is required, TOP Tiles shall not have any liability for loss, damage or injury caused by such injury, and the Customer must indemnify TOP Tiles in respect of ay claims against TOP Tiles for such loss, damage or injury. (d) TOP Tiles delivery records shall be proof of delivery of the products in good order and of the quality and quantity specified on the invoice, and shall be evidence of receipt by the Customer notwithstanding the absence of any representation of the Customer at the point of delivery.
- TOP Tiles shall not be under any liability, for inability or failure to deliver products, within specified time frames or at all where such inability or failure is due to circumstances outside TOP Tiles control, including unavailability of products, from manufacturers or suppliers.
- When the Customer removes or arranges for the removal of products from TOP Tiles premises, all delivery costs shall be to the Customer’s account.
- Where the products are faulty or are damaged or do not meet the specifications set out in the invoice, TOP Tiles may be required to accept return of products only if a claim to return the products is made by the Customer to TOP Tiles within 48 hours of delivery.
- Otherwise products may be returned only at TOP Tiles discretion and if the products are undamaged, of merchantable quality and of the current batch and colour for such products. In any case TOP Tiles may impose a handling fee of not less than 15% of the price of the return product.
- The Customer acknowledges that save as permitted by clasue12 and at TOP Tiles discretion by clause 13, he/she has no right to return products to TOP Tiles or to claim any credit for returned or unused products.
- Claims in respect of faulty or damaged products or products which do not meet prescribed specifications must be made within 48 hours of delivery.
- All other claims arising out of this contract must be notified in writing to TOP Tiles within (7) days of the date of delivery or collection and in any event prior to the use or installation of the products.
INSTALLATION & USE
- The Customer acknowledges it is essential that the products be laid or installed strictly in accordance with the manufacturer’s directions and guidelines and the relevant Australian Standard. It is the Customer’s responsibility to ensure that this is done, and TOP Tiles will have no responsibility for products failure caused by non-observance of any such directions, guidelines and standards.
- The Customer acknowledges that he/she has received or will receive the manufacturer’s directions and guidelines for installation and use of the products.
(a) He/she does not rely in any way on TOP Tiles relation to the use, fixing, installation or incorporation of the products; and (b) TOP Tiles has no responsibility for the works of any tradespersons in the installation of the pre-cuts, whether or not TOP Tiles may have recommended a tradesperson to the Customer. WARRANTY PROVISIONS
- TOP Tiles warrants to the Customer that;
(a) TOP Tiles own the products and is free to sell them to the Customer. (b) At the time the products leave TOP Tiles control the products are of merchantable quality, having regard to the grade and/or quality specified on the invoice. (c) Where a condition specifying the purpose for which the products are required is recorded on the invoice, the products are, at the time they leave TOP Tiles control reasonably for that purpose. If no condition is so specified, then no warranty as to purpose is given. (d) Where the products are sold by reference to a generic description or to a sample, as specified on the invoice, that the products are, at the time they leave TOP Tiles control, reasonably consistent with that description or sample. If no generic description or sample is so specified then no such warranty is given.
- Where the products carry a manufacturer’s warranty, TOP Tiles shall if and when required to do so use all reasonable endeavors to assist the Customer in getting the benefit of the warranty.
- Warranties expressed or implied in this contract are subject to the following qualification:
(a) Where products are described as “Run of Kiln”, which means a mix of ungraded products of both first and seconds quality, those products carry no warranty as to quality, colour and shape, and the Customer acknowledges that he/she is reliant solely on any warranty provided by the manufacturer. (b) Where products are described as “seconds” or “seconds quality” or “Commercial Grade”, which means products which are not warrantee to be first quality, then products may be subject to colour and size variation, and may also include such imperfections as chips and poor shape. Accordingly such products carry no warranty as to colour, size or shape, or the absence of imperfections. (c) Variations in colour and shade are inherent in fired clay and are natural characteristics of such products, if the Customer wished to match that characteristic of any products then it is he/her responsibility to either check the products before purchase or to purchase sufficient quantities of the product to permit selection and matching of the products. (d) Quarry Tiles and ceramic Tiles are sold on the basis of covered square metres, and using the manufacturers suggested scale of quantities and joint allowance, or industry practice. (e) Unless otherwise stated in writing in the products specification, the products are not suitable for use in an environment which is exposed to salt or salt air or seawater, and are not warranted for use in such environments.
- Apart from the warranties given in clause 22 and any other warranties implied by statute, TOP Tiles gives no further warranties and the Customer acknowledges that in entering into this contract he/she has not relied on any warranties by or on behalf of TOP Tiles which are not record in these terms and conditions or in the invoice.
- To the extent that the law permits it to do so, TOP Tiles hereby limits its liability for any breach of warranty contained or complied in this contract and for any other breach of its contract to such on or more of the following levels of liability as TOP Tiles in its absolute discretion determines;
(a) Replacement of the products or the supply of equivalent products; (b) Repair of the products, and (c) Payment of the cost of either replacing the products, supplying equivalent products or repairing the products. TITLE & RISK
- Title in the products shall not pass to the Customer until the purchase price of the products has been paid in full by the Customer to TOP Tiles. Until title passes to the Customer following payment of the price, the Customer must hold the products as bailee for TOP Tiles, and must maintain the products in the state and condition which they were in at the time of delivery by or collection from TOP Tiles.
- If the Customer sells the products to a third party, then Customer must hold the proceeds of sale as trustee for TOP Tiles absolutely.
- If the Customer deals with the products in a manner inconsistent with the preceding two clauses, then any costs incurred by TOP Tiles in retrieving the products or the proceeds of sale thereof must be reimbursed by the Customer to TOP Tiles on demand.
- Notwithstanding that TOP Tiles may retain legal titles to the products after delivery and pending payment of the purchase price, rise in the products shall pass to the Customer on delivery by or collection from TOP Tiles.
- If any provision of this contract is held to be invalid or unenforceable for any reason, then such provision shall be severable and its severance shall not affect the enforceability of the remaining provisions of this contract.
- In this contract;
(a) Words importing the singular shall import the plural, and words importing one gender shall import all other genders; and (b) Where the Customer comprises more than one party, those parties shall by bounded by this contract jointly and each of them severally
- This contract shall be deemed to be made in the jurisdiction in which TOP Tiles store is situated, and shall be interpreted according to the laws of the jurisdiction.
- Where an order for products has been placed by a Customer by telephone or fax, that Customer acknowledges that he/she is aware that these terms and conditions shall apply to the resultant contract with TOP Tiles.