Terms and Conditions of Sale
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Unless Beaumont Tiles and the Customer otherwise agree in writing, these Terms are incorporated into and form part of any contract (‘the Contract’) between Beaumont Tiles and the Customer for the supply of Goods by Beaumont Tiles.
In these Terms unless the contrary intention appears:
1.1 ‘Australian Consumer Law’ means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (C’th);
1.2 ‘Beaumont Tiles’ means R J Beaumont & Co. Pty Ltd ACN 007 703 997 and any and all of its “Related Bodies Corporate” and/or “Associated Entities” as such terms are defined in the Corporations Act 2001 (C’th);
1.3 ‘Customer’ means the party or parties entering into the Contract with Beaumont Tiles;
1.4 “Commercial Credit Trade Account Customer” means a Customer who has entered into an agreement called a Commercial Credit Trade Account with Beaumont Tiles;
1.5 ‘Goods’ means any tiles and related products (including timber and any other type of wall and/or floor furnishings), extending to kitchenware and bathroomware and also including products such as tools, adhesives, grouts and any and all other ancillary or associated products supplied by Beaumont Tiles to the Customer and further extending to the supply of tools or equipment on a hire-charge basis; and
1.6 ‘Terms’ means these terms and conditions.
2.1 The Contract and these Terms constitute the entire agreement between Beaumont Tiles and the Customer. All prior negotiations, representations, understandings, arrangements and agreements (whether oral and/or in writing) are superseded by the Contract and these Terms.
2.2 The Contract and these Terms will in all circumstances prevail over the Customer’s terms and conditions (if any), unless Beaumont Tiles agrees in writing to be bound by the Customer’s terms and conditions or any of them.
2.3 To the extent that there is any inconsistency between the Contract and these Terms, these Terms prevail unless and to the extent only that Beaumont Tiles otherwise agrees in writing PROVIDED ALWAYS if Goods are supplied by Beaumont Tiles to a Commercial Credit Trade Account Customer, then the terms and conditions of sale incorporated into the Commercial Credit Trade Account shall prevail to the extent of any inconsistency or conflict with these Terms.
3.1 The price for the supply of Goods will be specified in the invoice or account issued by Beaumont Tiles to the Customer.
3.2 Unless otherwise stated, the price for the supply of any tiles by Beaumont Tiles will be on a per square metre basis.
3.3 Beaumont Tiles may increase the price of Goods if the price increase results from the introduction of any legislation, regulation or government policy.
3.4 Unless otherwise stated:
3.4.1 the price for the Goods agreed in the Contract and any other amount payable under the Contract or these Terms shall be inclusive of any tax payable pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘GST’); and
3.4.2 the Customer will be required to pay to Beaumont Tiles an amount equal to the GST (which will be included in the invoice or account issued) in addition to the price or any relevant other amount.
4.1 The Customer will, unless Beaumont Tiles and the Customer otherwise agree, bear the cost of delivery of the Goods.
4.2 Beaumont Tiles will make all reasonable efforts to have Goods delivered to the Customer by the date agreed between the parties, but Beaumont Tiles will not be liable for:
4.2.1 any failure to deliver, or delay in delivery, of Goods;
4.2.2 any damage or loss due to unloading or packaging of Goods; and
4.2.3 any damage to property caused upon entering premises to deliver the Goods.
4.3 Upon delivery or collection and prior to laying, installation or use of any Goods, the Customer will inspect the Goods as appropriate as to the type, quantity, quality, aesthetics, appearance, shade, colours, layout patterns, suitability of purpose and any other characteristic of the Goods.
4.4 If any Goods are damaged, wrongly supplied or not in accordance with the Contract, the Customer may return those Goods in accordance with clause 6.
4.5 The Customer will be deemed to have accepted delivery of the Goods in the following events:
4.5.1 failure by the Customer to return Goods in accordance with clause 6; or
4.5.2 laying, installation or use of the Goods in any way by the Customer.
4.6 The Customer will indemnify Beaumont Tiles against any losses, costs or expenses incurred by Beaumont Tiles due to any failure by the Customer to accept the Goods at the time of delivery or collection.
5. Characteristics of Goods
5.1 The Customer acknowledges that Goods, which are tiles, supplied by Beaumont Tiles may contain, display or be subject to any one or more of the following characteristics:
5.1.1 crazing, spots, specks and blemishes;
5.1.2 variations in colour, shade, size, pattern, veining, marking, texture, durability, density, size, weight, dimension, surface and finish, and may fade or change colour over time; and
5.1.3 optical effects such as hazing or smudging at varying light sources and at differing angles.
5.2 The Customer acknowledges that Goods which contain, display or are subject to any one or more of the characteristics referred to in clause 5.1 are not defective or of unacceptable quality by reason of any of those characteristics.
6. Return of Goods
6.1 The Customer may reject and return Goods to Beaumont Tiles provided that:
6.1.1 the Goods are damaged, wrongly supplied, defective or not in accordance with the Contract;
6.1.2 the Goods are returned within one month of the date of the invoice or account issued by Beaumont Tiles to the Customer in respect of those Goods;
6.1.3 the Customer notifies Beaumont Tiles of the invoice or account number in respect of the Goods to be returned;
6.1.4 the Goods are returned in the original state or condition in which they were supplied, and remain in original boxes together with all packaging and instruction material; and
6.1.5 the Goods are in as new condition as is reasonably possible, and are from current stock held in store by Beaumont Tiles and, if applicable, matching current stock shade.
6.2 All Goods returned by the Customer are subject to assessment by Beaumont Tiles, and Beaumont Tiles may, if permitted by the Australian Consumer Law or any other law, refuse to accept the return of the Goods at its sole discretion.
6.3 Unless Beaumont Tiles and the Customer otherwise agree in writing, the Customer will bear the costs of delivery when returning any Goods.
6.4 Subject to the Customer’s rights under the Australian Consumer Law, the following Goods cannot be returned by the Customer to Beaumont Tiles under any circumstances:
6.4.1 those that were specially made, sourced, ordered or purchased for the Customer;
6.4.2 those that were used, installed, laid, damaged or altered in any way by the Customer;
6.4.3 those that were sold to the Customer at wholesale or discounted prices, or as second grade or quality; or
6.4.4 those that are no longer in stock in store by Beaumont Tiles or have been discontinued.
6.5 Goods returned in accordance with this clause will be subject to a restocking fee. The restocking fee will be 25% of the price (plus GST) agreed in the Contract for the relevant Goods.
7.1 Unless the Customer is a Commercial Credit Trade Account Customer and Beaumont Tiles agrees in writing for the Customer to pay for Goods on the Customer’s Commercial Credit Trade Account, the Customer will pay for the Goods before the time specified by Beaumont Tiles for delivery or collection of the Goods.
7.2 The Customer must pay for the Goods in cash, by cheque (for authorised Customers only), by credit card (excluding American Express and Diners Club) or by any other method of payment specified by Beaumont Tiles.
7.3 Payment is only received by Beaumont Tiles when it receives cash or when the proceeds of other methods of payment are credited and cleared to Beaumont Tiles’ bank account.
7.4 The Customer may not assert or exercise any right of set-off against monies payable by it to Beaumont Tiles.
7.5 Beaumont Tiles may charge interest on amounts which remain unpaid for more than 14 calendar days. The interest rate will be seven percentage points above the cash rate target announced by the Reserve Bank of Australia from time to time. That interest will accrue and be recoverable from day to day.
8. Title and risk
8.1 The legal and equitable title to the Goods will only be transferred from Beaumont Tiles to the Customer when the Customer has met and paid all that is owed to Beaumont Tiles on any account whatsoever.
8.2 The Customer acknowledges that until the Customer has met and paid all that is owed to Beaumont Tiles on any account whatsoever, the Customer holds the Goods as bailee for Beaumont Tiles and that a fiduciary relationship exists between the Customer and Beaumont Tiles.
8.3 Risk in the Goods passes to the Customer upon delivery or handover (including all risks associated with unloading) or upon title in the Goods passing to the Customer, whichever is the earlier.
9. Limitation of liability
9.1 If under the Australian Consumer Law or any other law any terms which apply to the sale of Goods under the Contract cannot be legally excluded, restricted or modified then those terms apply only to the extent required by law.
9.2 All terms, which would otherwise be implied by law or otherwise, are excluded except as stated in these Terms.
9.3 To the extent permitted by law, Beaumont Tiles’ liability for any breach of the terms of the Contract, and any condition or warranty implied by the provisions of the Australian Consumer Law, is limited to and will be completely discharged by any one of the following as determined by Beaumont Tiles in its absolute discretion:
9.3.1 the replacement of the Goods or the supply of equivalent Goods;
9.3.2 the repair of the Goods;
9.3.3 the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
9.3.4 the payment of the cost of having the Goods repaired.
9.4 Except as expressly provided in this clause and to the extent permitted by law, Beaumont Tiles is not liable to the Customer (and any party claiming through the Customer) for:
9.4.1 any claim made after laying, installation or use of the Goods;
9.4.2 any claim made with respect to or in connection with any of the matters referred to in clause 5;
9.4.3 any claim made under, or in connection with, the Contract, in tort, under statute, in equity or otherwise in respect of any defects whatsoever in Goods for the loss or damage to person or property arising from or caused from such defects; and
9.4.4 any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods where indirect, special or consequential loss or damage’ includes:
(a) any loss of income, profit or business; or
(b) any loss of goodwill or reputation.
The Customer will indemnify and keep indemnified and hold Beaumont Tiles harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Beaumont Tiles, and from and against all actions, proceedings, claims or demands made against Beaumont Tiles, arising from one or more of the following:
10.1 the Customer’s failure to comply with any laws, rules, standards, regulations or instructions applicable in relation to the Goods or the use of the Goods; and
10.2 any negligence or breach of duty by the Customer and its employees, agents or contractors in relation to the Goods or the use of the Goods.
11.1 The Contract and these Terms are governed by the laws of the Commonwealth of Australia and the State or Territory in which Goods are supplied to the Customer and the parties submit to the jurisdiction of the courts of the Commonwealth of Australia and the courts or tribunals of the applicable/relevant State or Territory, with any proceedings to be issued out of a court or tribunal of competent jurisdiction in or nearest to the capital of such State or Territory.
11.2 The rights and obligations of the parties will not merge on completion of any transaction under the Contract and these Terms or upon the execution of any other document in connection with the subject matter of the Contract and the Terms.
11.3 All rights under the Contract and these Terms are in addition to and do not abrogate, limit or reduce any other rights that Beaumont Tiles may have.
11.4 Any provision of the Contract and these Terms that is invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect. If that is not possible, that provision must be excluded from the Contract and these Terms but only to the extent necessary to avoid that effect. All other provisions of the Terms continue to be valid and enforceable.
11.5 Unless otherwise specified, time is of the essence in the Contract.
11.6 Beaumont Tiles may vary the Terms with reasonable notice to the Customer.
11.7 A right or obligation under the Contract and these Terms cannot be waived except by a document executed by the party waiving that right or obligation and specifying the waiver.