GENERAL TERMS AND CONDITIONS OF OLDE ENGLISH TILES AUSTRALIA
All contracts and agreements entered between the Supplier and the Purchaser are subject to the “General Terms & Conditions of Sale” appearing herein.
1. DEFINITIONS
The following words shall have where the context so permits the following meaning:
“Sales Order” means the agreement between the Supplier and the Purchaser comprised of the Quotation, the Purchase Order, and these General Terms and Conditions of Sale;
“Date of Delivery” means the date upon which the Goods are dispatched from the Supplier’s Premises to the Delivery Point;
“Delivery Point: means the address nominated by the Purchaser as the place for delivery of Goods mentioned in the Sales Order;
“Goods” means all materials, supplies, plant equipment, machinery, stores, services and the like to be provided by the Seller under this Sales Order;
“Date of Cancellation” means the date upon which the Supplier receives a notice of cancellation from the Purchaser;
“Price” means the price the Supplier charges the Purchaser for the supply of the Goods as indicated in the Sales Order;
“Purchaser “ means the person, firm or corporation to whom the Sales Order is issued;
‘Purchase Order” means the purchase order provided to the Supplier by the Purchaser, evidencing the Purchaser accepts the Quotation:
“Quotation” means a document provided by the Supplier to the Purchaser specifying the price the Supplier will charge the Purchaser for the supply of the Goods;
“Stipulated Period means the period specified on the Quotation as the period for which the quoted price shall apply;
“Supplier” means Olde English Tiles Australia Pty Ltd ABN 97002435449;
“Supplier’s Premises” means the premises from which the Supplier ordinarily conducts its business.
2. QUOTATIONS
UNLESS otherwise stated in a Quotation, the
Supplier will not alter any quoted price within the Stipulated Period. However, as quoted prices are based on the supplier’s estimated cost of production to manufacture or supply at the time of quotation, after the Stipulated Period the Supplier may alter the quoted prices without notice to the Purchaser. A quotation is not an offer by the Supplier to sell and may be withdrawn without notice. Any Sales Orders given in respect of a quotation is not binding on the Supplier until accepted by the Supplier in writing. Unless otherwise expressly stated, prices quoted do not include cartage costs for delivery from the Supplier’s Premises to the Delivery Point. The price specified in the Quotation relates only to the type and quantity of goods identified in the Quotation. The Supplier reserves the right to alter the price if the quantity of Goods specified in the Sales order differs from the quantity of Goods specified in the Quotation.
3. ENTIRE AGREEMENT
The Sales Order embodies the whole of the agreement and understanding between the Supplier and the Purchaser with respect to the supply of the Goods and is the only document which will be recognised by the Supplier as authority for undertaking to supply the goods. The Sales Order constitutes the entire agreement between the parties and supersedes all previous negotiations and communications. The supplier’s Terms and Conditions shall prevail where inconsistencies exist with the Terms and Conditions contained in the Purchaser Order. The supplier reserves the right to decline, by written notice to the Purchaser, to fulfil any Sales order in whole or in part, at any time prior to the delivery of the goods or performance of the services, in which case the supplier will be under no obligation in respect of the Sales order. The Sales Order may only be varied by written agreement between the parties.
4. VARIATIONS TO SPECIFICATIONS
Prior to the commencement of manufacture of the Goods, the Purchaser may, by notice in writing, request the supplier to vary the colour or specifications of the Goods which request the supplier may or may not grant in its unfettered discretion. If the Supplier denies such request then the Purchaser must accept and pay for the goods as specified in the relevant Purchaser must accept and pay for the Goods as specified in the relevant Purchase Order. The Supplier shall not vary the colour or specifications of the goods unless and until requested to do so in writing by the Purchaser. If any such request causes a change in the cost or time required for the manufacturer and/or supply of the Goods then an equitable adjustment shall be made to the Price and/or the terms of the Sales Order. The Purchaser is not entitled to request the Supplier to vary the colour or specifications of the goods after the commencement of manufacture of the Goods.
5. CANCELLATION
The Purchaser may, prior to the commencement of the manufacture of Goods, by notice in writing to the Supplier, cancel the Sales Order. In the event of cancellation, the Purchaser shall be required to pay to the Supplier the Supplier’s actual out-of-pocket expenses and any other reasonable expenses incurred by the Supplier prior to the Date of Cancellation.
6. PRICE The Price is expressed in Australian dollars and shall be determined by the supplier pursuant to an agreed price payable per item or square metre rate or Supplier’s price list. Unless otherwise stated in the Sales Order, prices shall not include Goods And Services Tax (GST) which will be charged to the Purchaser’s account where applicable. If GST is to be included, it shall be stated separately. All Custom Duty and the other like charges shall be stated separately.
7. TERMS OF PAYMENT
Unless otherwise agreed the goods must be paid for in full prior to the Delivery Date. Where the Supplier agrees to accept the Payment from the Purchaser on a credit account:
The Supplier shall invoice the Purchaser for payment of each delivery made by the Supplier or for goods not delivered but available for the Purchaser to take possession at the Supplier’s Premises. Payment to the supplier is not subject to the Purchaser receiving payment for the Goods. The Purchaser must make all payments to the supplier without deduction, set-off, or counter-claim and no amounts are to be deducted from any payments as security retentions or for any other reason unless the Supplier agrees to such deduction in writing. Payment is required to be made by the Purchaser as follows: 25% of the Price on confirmation of order. The balance of the Price due and payable prior to Delivery. In the case of custom-made hand-painted goods full payment (100% of the Price) is required on confirmation of order, and no cancellations or returns are accepted (see #25: RETURNS, para. C).
8. DEFAULT IN PAYMENT
Any delay or default by the Purchaser in payment of any monies due to the Supplier is a substantial breach of the Terms and Conditions of the Sales Order. The Supplier may without prejudice to its other rights power or remedies provided by law, withhold deliveries on the relevant Sales Order and all other Sales Orders placed by the Purchaser until the due payment are made. Recurring payment default may lead to the Purchaser’s account with Supplier being closed and any further Sales Order placed by the Purchaser will only be processed when pre-paid in cash or by bank cheque. A failure or delay by the Supplier to exercise a power or right under this paragraph 8 does not operate as a waiver of that power or right or a waiver of the breach which gave rise to that power or right.
9. COMPLETION OF GOODS
The Purchaser’s obligation to pay for the goods is not conditional on the Purchaser’s willingness and/or readiness to take delivery of the Goods. If the Goods are manufactured and completed by the Supplier and the Purchasers is not ready to take delivery of the goods, then the Purchaser is required to pay for the goods and for all costs incurred in or about the storage of the Goods.
10. WARRANTY
The Supplier acknowledges that there are certain conditions and warranties implied at law or by statute in the Sales Order, which cannot be excluded, restricted or modified by agreement (“Non-Excludable Rights”). Subject to the above, the Supplier disclaims and expressly excludes all conditions and warranties expressed or implied, and all rights and remedies conferred on the Purchaser by statue, law, equity, trade, custom or usage or otherwise. Where so permitted the liability of the Supplier for the breach of a Non-Excludable Right is limited, at the supplier’s option, to replacement of the goods or the refund of the price paid by the Purchaser.
11. VARIATIONS IN COLOUR, TEXTURE & FINISH
The Supplier shall make every reasonable endeavour to match the colour, texture and finish of the Goods to the colour, texture and finish to any materials which the Supplier provides to the Purchaser as samples of the Goods. However, at the time of making an order the Purchaser is deemed to acknowledge that naturally occurring products such as stone and clay, may vary in both colour and texture and that the supplier cannot and does not accept any claim for liability relating to any such variations of the Goods.
All tiles in the Olde English Tiles Australia "Delft", "Puebla", "French Provincial" (a.k.a. Jardin Provencal) and "Hand-painted" collections, and many iin the "Country" and "Art Deco" collections, are hand-painted. Colour, tone and graphic variations from tile to tile are inherent characteristics of these tiles and add to their charm. No claims will be considered based on variations of colour or motif details.
12. DELIVERY
Olde English Tiles Australia use “DHL Express” to deliver anywhere around the world. You can track your orders from the DHL Australian “Tracking page” http://www.dhl.com.au/en/express/tracking.html
Australia
Delivery rates are dependent on the weight of goods ordered and destination. Delivery rates represents the time the order is placed.
Rest of the World
International Delivery shipping rates are dependent on the weight of goods ordered, destination and fuel surcharge which varies month to month. Delivery rates represents the time the order is placed.
Delivery Timeframe
Normal delivery time for Domestic orders after completion of order is 1 to 2 days. Remote areas can expect delays.
Normal delivery time for International orders after completion of order is 2 to 6 days. Remote areas can expect delays.
Stock orders take 2 to 3 days before delivery pick up is organized. Most Hand Painted tiles are done to order and can take 3 to 5 weeks before delivery pick up is organized.
These transit times are estimates only and may be extended by many factors beyond DHL’s reasonable control such as Customs and Quarantine processing requirements, weekends and public holidays, varying flight schedules and other origin-specific or destination-specific factors. DHL does not guarantee any transit times or represent that any transit times will be achieved.
All goods shall be delivered by the Supplier to the kerb side in front or reasonably (at the Supplier discretion) located in the vicinity of the Delivery Point and such delivery shall be deemed to be delivery of the Goods to the Delivery Point. The forgoing notwithstanding, the Purchaser may request and the Supplier may agree in writing to deliver the goods to a location other than a kerbside in front of a reasonably located within the vicinity of the Delivery Point provided always that the Purchaser shall bear all liability (whether with respect to loss or damage to person, property, or to the Goods) arising from and in respect of delivery and the Purchaser hereby agrees to indemnify and keep indemnified the Supplier with respect to any such liability. A receipt or delivery docket for the Goods signed by any person at the Delivery Point shall be conclusive proof that the Goods were delivered in accordance with the Sales Order. If the Delivery Point is unattended or if the supplier cannot otherwise affect delivery of the goods to the Delivery Point then the Supplier may at it option leave the Goods at the Delivery Point or store the Goods at such location as the Supplier may elect. If the supplier stores the goods, the Purchaser shall pay or indemnity the Supplier for all cost incurred in or about the storage and the supplier shall be at liberty to re-deliver them to the Purchaser from the place of storage at the Purchaser’s expense. The Purchaser must ensure that the Delivery Point is easily accessible to the Supplier. If the Delivery Point is not easily accessible to the Supplier and then the Purchaser must bear any additional costs reasonably incurred by the Supplier in unloading the Goods.
Interstate and International orders will depend on Carrier’s schedule and no liability is taken for direct, indirect or consequential loss or damage caused by delay or any other cause. The delivery date represents the time the order is ready to leave the Company premises. The Company does not accept orders under penalty for late delivery. The Company reserves the right to deliver orders in whole or by instalment and each instalment shall be deemed to be sold under a separate contract. Any failure on the part of the company to deliver within the time stated shall not entitle the Purchaser to repudiate the contract in whole or in part.
13. Any time quoted for delivery is an estimate only and the supplier shall not be liable for any loss or damage howsoever arising as a result of or in consequence of any failure to deliver or delay in delivery arising from any circumstances whatsoever UNLESS such failure or delay is due to the Supplier’s negligence or wilful default and the Purchaser notifies the Supplier in writing of such loss or damage within TWO (2) days from the Date of Delivery. The Purchaser shall not be relieved of any obligation to accept or pay for Goods because of any delay in delivery. If the Supplier determines that, it is or may be unable to deliver within a reasonable time or at all, the supplier may cancel the sales Order and in the event of such cancellation, the Purchaser shall not have any claim against the supplier for any damage, loss, cost or expense whatsoever.
14. SHORT OR WRONGFUL DELIVERY
Within TWO (2) days of delivery of the Goods the Purchaser must notify the Supplier in writing of any Claim the Purchaser may have alleging that the Goods are not in accordance with the Sales Agreement and any Claim not notified within the time aforesaid shall be deemed to be absolutely waived.
15. EXAMINATION OF GOODS
At the time it takes possession of the Goods, the Purchaser must examine and shall be deemed to have examined the goods. The Supplier shall, except as may otherwise be provided by law, not be liable for any claim in respect of damaged Goods UNLESS particulars of such claim are notified to the Supplier in writing within TWO (2) days after the arrival of the Goods at the Delivery Point. The Supplier must separate and hold the Goods subject to such claim available for the inspection by the Supplier. The forgoing notwithstanding, the Purchaser must confirm that it accepts the quantity, colour and quality of any Goods it takes delivery of by signing the delivery docket which the Supplier provides to the Purchaser at any time it supplies the Goods. The delivery docket, so signed, shall be conclusive evidence that the Purchaser has reviewed and is satisfied with the quantities, colour and quality of any Goods described in the delivery docket and the Purchase shall be stopped from the making any statement or claim to the contrary. Where the Goods are collected by a courier or other agent of the Purchaser, the Purchaser warrants that its agent has authority to sign the docket on the Purchaser’s behalf.
16. INSTALLATION OF GOODS
Any other provision of the Sale Agreement notwithstanding, any liability of Supplier with respect to any aspect of the Goods including but not limited to their colour, texture, size, quality or their fitness for purposes, will cease when the Purchaser uses the Goods, sells or otherwise parts with possession of the Goods, and/or installs or affixes the Goods (or allows the Goods to be installed or affixed) in or to any surface, place, or product.
17. SUBCONTRACTORS
The Supplier takes no responsibility for the workmanship or quality of work performed by subcontractors recommended to the Purchaser.
18. RISK
All Goods being delivered shall be at the Purchaser’s risk. The Supplier will not be liable for any damage or loss whatsoever arising out of or in connection with the carriage of goods unless the damage or loss is a result of the Suppliers negligence or wilful default.
19. TITLE
Legal and beneficial ownership in and to the Goods shall remain with the Supplier until the Purchaser has paid in full all amounts owing on all accounts to the Supplier. Until the Goods are paid for in full, the relationship between the parties shall be fiduciary, the Purchaser shall hold the Goods as bailee of the Goods, the Purchaser is required to store the Goods separately and mark them accordingly as that they are clearly identified as being or being made from or with any Goods which are the property of the Supplier. Should the Goods (or any part of them) be incorporated into a new product or products (“New Product”) the incorporation of the Goods, in whatever proportions, shall be deemed to have been effected on behalf of the Supplier and the New Product shall be the property of the Supplier. The right of the Purchaser to incorporate the Goods in a New Product shall automatically cease if a receiver or receiver and manager is appointed over any of the Purchaser’s assets or if a winding up order is made against or resolution is passed for the winding up of the Purchaser or the Purchaser is placed under official management or the Purchaser becomes insolvent or bankrupt or commits an act of bankruptcy or the Purchaser assigns the Goods or any part of the Goods for the benefit of a Creditor or if the Supplier at any time revokes such rights by notice to the Purchaser. The Purchaser shall have not right to sell or otherwise dispose of the Goods or the New Product until the purchase price has been paid in full to the Supplier UNLESS; The Goods or the new product are sold in the ordinary course of the Purchaser’s business; and The part of the proceeds of sale of the Goods and the New Product as represents the price of the goods shall be paid forthwith to the Supplier and until such part of the proceeds are so paid, they shall be held by the Purchaser in trust for the Supplier. The power of sale conferred on the Purchaser under paragraph 20(d) above shall automatically cease if a receiver or receiver and manager is appointed over any of the Purchaser’s assets or if a winding up order is made against or resolution is passed for the winding up of the Purchase or the Purchaser is placed under official management or the Purchaser becomes insolvent or bankrupt or commits an act of bankruptcy of the Purchaser assigns the Goods or any part of the Goods for the benefit of a creditor or if the Supplier at any time revokes the power of sale under paragraph 20(d) above by notice to the Purchaser. On determination of the Purchaser’s power of sale under paragraph 20(d) above the Supplier shall become entitled to the possession of the Goods and the New Product. The Purchaser is required to place the Goods and the New Product at the disposal of the Supplier who shall be entitled to enter upon the premises where the Goods or New Product/s are held without notice and remove the Goods and the New Product. The Purchaser grants to the Supplier, upon the Supplier giving notice to the Purchaser, the right to bring proceedings in the name of the Purchaser to recover monies owing to the Purchaser because of the sales of the Goods or the New Product. Any amounts recovered because of the proceeding shall be retained by the Supplier in payment of amounts owing for Goods supplied by the Supplier to the Purchaser. If any provision of this clause creates or constitutes a charge or other security right requiring registration, then the provision shall be deemed to be served from this clause. Title of the Goods and/or New Products shall pass to the Purchaser upon payment of any amount due in full together with any interest due. Risk in the material shall pass to the Purchaser upon delivery.
20. PALLETS
Title to any pallets provided by the Supplier with the Goods passes to the Purchaser with the Goods, and the Purchaser must bear the cost of their storage and/or disposal. The Purchaser must not refuse to accept any such pallets or return (or seek to return) such pallets to the Supplier
21. ADVICE
The Purchaser must not rely on any advice, recommendation, information, assistance or service provided by the Supplier in relation to the Goods, including use and application of the Goods and the Supplier shall bear no liability or responsibility for any damage, loss (direct or indirect) or any consequential loss suffered by the Purchaser as a result of reliance upon the advice, recommendation, information, assistance or service for delivery to the Purchaser.
22. INDIRECT LOSS
Notwithstanding any other provisions of this Sales Order to the contrary, the Supplier shall not be liable for any loss or damage to the purchaser arising from or caused or contributed to by the negligence of the Supplier, its servants or agents, nor shall the Supplier be liable for special, incidental, indirect or consequential loss or damage suffered by the Purchaser as a result of a breach by the Supplier of it obligation or otherwise including but not limited to economic or moral loss, loss of profits or revenue costs arising from such breach.
23. WAIVER
A waiver by the Supplier of the breach of any provision of the Sales Order shall not constitute a waiver of any other breach of such provision or any other provisions.
24. INSTALLMENTS
The Supplier reserves the right to deliver the Goods by instalments. Failure of the Supplier to deliver any instalment shall not entitle the Purchaser to cancel the balance of the Sales Order. In the event of the Purchaser making default in respect of any instalment, the Supplier may elect to treat the default as a breach of contract relating to each other instalment.
25. RETURNS
No returns will be allowed or accepted for any Goods
(a) Which have been unpacked, or
(b) Are classified as reject or discontinued lines, or
(c) Were especially obtained, imported or made to order for the Purchaser, (see #11: VARIATIONS IN COLOUR, TEXTURE & FINISH)
(d) Otherwise without the prior written approval from the Supplier.
The Supplier will not refund or waive the obligation to make payment in respect of returned Goods, but shall grant the Purchaser a trade credit to the Price of the Goods, less 20% thereof to cover handling and restocking expenses. The Purchaser must clearly identify the Goods it returns and sign an endorsement on the relevant invoice, which shall be conclusive evidence that goods noted have been returned to the Supplier’s Premises. The Supplier may reduce or cancel any credit it has granted to the Purchaser if such credit has not been exercised with 7 days of return.
26. INSPECTION
The Purchaser or its designated agent at the Suppliers works carries out any inspection or test agreed upon prior to the acceptance of the Goods by the Purchaser, must unless otherwise agreed. The Purchaser must bear the cost of any specialised inspection or tests it requires. In the cause of any such inspection the Supplier accepts no responsibility in any defects in the Goods, which are identified once the Goods in question have left the Suppliers Premises.
27. SUBCONTRACTING
The Supplier reserves the right to Subcontract the production or supply of the whole or any part of the Goods or of any materials or services to be supplied.
28. LAWS, REGULATIONS, PERMITS ETC
The Purchaser shall obtain all Permits, licenses and give all notices required to be given and shall pay all fees, deposits and taxes required to be paid under all rules (federal, state or municipal) in any way effective or applicable to the manufacturer and/or supplier of the Goods.
29. SEVERANCE
If any provision of the Sales Order shall be determined to be void by any court of competent jurisdiction, then such a determination shall not affect any other provision hereof and each such other provision shall remain in such full force and effect.
30. FORCE MAJEURE
If the Supplier is rendered unable, wholly or in part, by force majeure to carry out it obligations under the Sales Order, then the Supplier shall give to the Purchaser written notice of the force majeure with reasonably full particulars thereof whereupon:
a) The obligations of the Supplier so far as it is affected by the force majeure shall be suspended for a period not longer than the continuance of the force majeure; and
b) Any period or periods referred to in the Purchase Order within which a particular obligation, responsibility, or duty is to be performed shall be extended by a period equal to that during which the force majeure continues. The Supplier shall use reasonable diligence to mitigate the effect of the force majeure. The term “force majeure” as employed in this Sales Order shall mean any cause which is not within the reasonable control of the Supplier and without limiting the generality of the foregoing, shall in so far as the same is not within such control, include any one or more of Act of God, strike, lockout, or other labour difficulty, act of the public enemy, war, blockade, revolution, riot, insurrection, civil commotion, lightning, storm, flood, earthquake, explosion, action, demand, order, restraint, restriction, requirements, prevention, frustration or hindrance by or any government or any government or authority or other duly constituted authority or statutory corporation or local government authority, embargoes and unavailability of essential equipment.
31. FUTURE DEALING
The Terms and Conditions specified in the Sales Order shall be incorporated by implication and conduct into all future agreements by the supplier, to supply Goods, with the Purchaser.
32. NOTICES
All notices, other documents and communications required or permitted to be given to the Supplier shall be in writing and shall be sent by facsimile in the first instance and then by ordinary pre-paid post to:
Olde English Tiles Australia
118 Parramatta Road,
Stanmore NSW 2050
Ph: (02) 9519 4333
Fax: (02) 9557 2996
33. GOVERNING LAW
These “General Terms and Conditions of Sale” shall be governed and construed according to the laws of the time being in force in the State of New South Wales and the parties respectively bereby submit to the jurisdiction of the Courts thereof and all Courts competent to hear appeals there from.
34. COLLECTION COST
The Purchaser agrees to indemnify the Supplier with all legal costs, charges, expenses and disbursements incurred in the collection or attempted collection of monies due