Terms Of Sale
1. SALE TERMS
1.1 These Terms constitute the entire agreement between the parties. All prior negotiations, representations and agreements are superseded by these Terms.
1.2 These Terms prevail over any terms and conditions provided by You, unless We otherwise expressly agree in writing.
1.3 To the extent of any inconsistency between the Sales Order or Quote and these Terms, these Terms prevail.
1.4 Acceptance of a Sales Order, payment of a Deposit and/or acceptance of Goods means You accept these Terms.
2. GOODS
2.1 The Goods to be supplied by Us to You are specified in the Sales Order. We may, on request from You and at Your cost, provide technical test results on the Goods including wet pendulum test, wet-barefoot inclining platform tests, oil-wet inclining platform tests, accelerated wear slip tests and luminance reflectance tests. You agree that any results, if provided, are provided by Us for information purposes only. You agree that:
a) You have not relied on any information provided by Us in connection with the Goods or their proposed use, and You rely solely on Your own investigations regarding the Goods;
b) It is Your responsibility to ensure the described Goods are correct and appropriate for the purpose for which You require the Goods;
c) The quantity of the Goods specified has been calculated and verified by You and is the correct quantity required by You; and
d) You release Us from all loss or damage incurred by You in connection with any test results We provide to You or any use to which You may put such results.
2.2 We do not accept any responsibility for the specification, calculation or quantity of Goods required. Our liability in connection with the Goods is limited as set out in these Terms.
2.3 You agree Goods supplied by Us may contain, display or be subject to one or more of the following characteristics:
a) crazing, blemishes, specks, spots, smudging and hazing; and/or
b) variations in colour, shade, size, patterns, veining, marking, texture, durability, dimensional straightness, surface, density, size, weight, dimension and finish and may fade or change colour over time.
2.4 You agree Goods which contain, display, or are subject to any of the characteristics in clause 2.3 are not defective or of unacceptable quality due to those characteristics.
2.5 If You provide any specification, design or instructions to Us for the Goods, You warrant that Our use will not cause Us to infringe any intellectual property rights of any party, and You agree to indemnify Us from and against any loss or damage suffered by Us arising from or in connection with any breach of that warranty.
2.6 If You are supplied samples of Goods, these samples are indicative of the colour, design and quality of the Goods to be supplied only and are not to be accepted as an exact match to the Goods to be supplied. Shade variation is an inherent characteristic of all kiln-fired and natural products, and therefore the sample provided may exhibit variation to the Goods to be supplied.
2.7 For all Goods, you acknowledge that We recommend incorporating an additional 10% of each item on Your Order to facilitate cutting, breakages and installation. Some formats or directionally installed tiles may require an additional 15-20%. This is deemed industry best practice and is advised by professional tile installers. We do not accept responsibility for the accuracy of your measurements or required quantities.
2.8 For Special Order Goods, you acknowledge that We recommend You Order a further 10% of Special Order items to minimise the impact of potential breakages during Import or Delivery/Collection. Our Goods are inherently fragile, and it is common for breakages to occur. At Our discretion, We may compensate You the value of the broken Goods, or supply You with replacement Goods of the same type, quality and value. Our recommended importation timeframes will apply to Special Order Goods which are replaced. No compensation will be made by Us for delays You may incur due directly or indirectly to breakages.
3. QUOTES AND PURCHASE ORDERS
3.1 Subject to clause 4.5, Quotes are valid for 30 days from the date of the Quote. After this period passes, We may provide You with a new Quote and You acknowledge We cannot guarantee Our prices will remain the same.
3.2 We will not order on Your behalf and/or allocate any stocked Goods specified in Your Sales Order until we receive Your Deposit Payment in accordance with clause 4.2.
3.3 If You request any changes to Your Sales Order after We have ordered Your Goods, We are under no obligation to accept such a change. Changes to Your Sales Order may attract additional Costs.
4. PAYMENT TERMS
4.1 Payment is only received by Us if the payment is made in cash, or when the proceeds of other methods of payment are cleared and credited to our nominated bank account. Payments by cheque are at Our absolute discretion.
4.2 To secure Your Sales Order, You are required to pay a non-refundable Deposit subject to Item 4 in the Reference Schedule (this includes Credit Account Customers). Your deposit will be held against your order as a commitment. Deposit payments must be received within 5 business days of receiving Your Sales Order. Failure to do so may release the goods on Your Sales Order for general sale. All Goods dispatched on Your behalf must be paid in full, any remaining Goods on Your order must retain the Deposit amount as indicated in Item 4 of the Reference Schedule to continue to secure the Goods.
4.3 If you operate on Cash Before Delivery terms, in preparation for your goods being released, a request for the total outstanding balance will be raised up to 5 business days prior to the required Dispatch Date. This amount must be paid in full, and cleared, prior to release of goods. If you operate as an account customer, we will notify you of the approaching order fulfilment to agree delivery terms. Your goods will be dispatched as long as your account has the required credit available and will be due according to your agreed payment terms.
4.4 If payment is not made as required by this clause 4.2, We may, in addition to Our other rights, charge You Interest as per Item 5 of the Reference Schedule on overdue amounts, materials stored on your behalf, suspend deliveries of any Goods ordered by You and/or terminate this agreement. Interest will accrue from and including the due date until the date the account is paid in full. Payment will be first credited against Interest accrued.
4.5 All prices included in Your Sales Order include taxes, duties or other imposts levied on the Goods in Australia, unless a tax exemption number or exemption certificate is provided at the time of order.
4.6 By accepting Your Quote or by submitting to Us a Purchase Order or Purchase Request, you agree that upon notification that your goods are ready for dispatch, Orders with greater than 30 days remaining until the Target Delivery Date will require full payment of Your Order. In the case of Orders for Standard Products in-stock, being placed greater than 30 days before the Target Delivery Date, full payment for Your Order will be required in accordance with our Deposit Payment Terms as per clause 4.2.
5. COLLECTION OF GOODS
5.1 We may charge You a Storage Charge if You fail to collect/accept delivery of the Goods within 4 weeks of being notified your Goods are available for Collection/Delivery. Storage Charges will accrue on a weekly basis. Storage Charges must be paid and received by Us before Your Goods will be cleared for Delivery/Collection.
5.2 Any dates given for availability of the Goods are approximate. We will endeavour to ensure Goods are available by the estimated availability date, but any failure of availability of the Goods by that date will not entitle You to cancel Your Sales Order, void any of these Terms or claim compensation.
5.3 You must inspect the Goods upon collection to ensure the Goods are in good condition in accordance with Your Sales Order. If any Goods are incorrectly supplied, You may return the Goods subject to clauses 6.4 and 7.3.
5.4 We are not liable for any damage or loss following delivery by us or collection by You.
5.5 It is Your responsibility to ensure Your Vehicle is appropriate and has sufficient Load Capacity to accept the Goods. We reserve the Right to deny or delay collection of Goods if We deem Your vehicle inappropriate for loading.
6. DELIVERY/COLLECTION
6.1 Unless otherwise stated in Your Sales Order, no allowance has been made in Our price for delivery, insurance or associated costs.
6.2 If You require us to arrange these services for You:
a) You must notify us of the Delivery Site on or prior to payment of your Deposit;
b) You must notify us in writing of the Target Delivery Date (the Date on which You would prefer Delivery or Collection) on or prior to payment of your Deposit. Please Note that while We will endeavour to deliver the Goods on the Target Delivery Date, this can not be guaranteed due to third-party logistics providers, and other factors outside of Our control;
c) the cost of those services will be payable by You on demand prior to Your Order being booked for delivery;
d) any additional costs incurred by Us in connection with the delivery, including as a result of site conditions at the Delivery Point, will be immediately payable on demand by You;
e) We will endeavour to deliver the Goods to a safe and secure position as per Clause 6.7, at the Delivery Point, but this cannot be guaranteed;
f) We are not liable for:
- any failure/delay to deliver Goods to the Delivery Point; or
- any damage or loss due to unloading or packaging of Goods or leaving the Goods at the Delivery Point; or
- any damage to property caused upon entering the Delivery Point to deliver the Goods; or
- any ground or site conditions or damage or actions in connection with delivery of the Goods; or
- any costs incurred by You or those Contracted by You, for delays associated with Delivery of Goods.
6.3 If You select a delivery carrier, You do so at Your own risk and agree Your carrier is acting as agent for You regarding freight, insurance and safe carriage of the Goods, and Your carrier must collect the Goods on Your behalf in accordance with Clause 5.
6.4 You must notify Us within 7 days of delivery or collection of any Goods which are damaged or incorrectly supplied by Us. Upon delivery or collection of Goods, please check:
a) Product - verify the design, finish, colour and size of the Goods supplied matches your Sales Order;
b) Quantity - verify the quantity supplied matches your Sales Order;
c) Damage - visually inspect for any damage to the Goods and/or packaging of the Goods;
d) Shade/Batch - verify the shade/batch number on each product box is the same;
Include detailed photos of any damages or defects, without this We maintain the right to refuse claims for damaged/defective Goods. To initiate a Return Claim, please email photos and detailed information regarding the Goods for which the claim is being raised to Your Customer Service Representative.
6.5 You will be deemed to have accepted the Goods if:
a) You fail to notify Us in accordance with clause 6.4;
b) You lay, install or use the Goods in any way; or
c) You fail to return the Goods in accordance with clause 7.3.
6.6 We may charge You a Storage Charge if You fail to accept delivery/collect of the Goods within 4 weeks of the Target Delivery Date as confirmed on Your Sales Order by Us. Storage Charges will accrue on a weekly basis. Storage Charges must be paid and received by Us before Your Goods will be cleared for Delivery/Collection.
6.7 We reserve the right to refuse delivery, and prescribe this right to Our Delivery Contractors, if the following site conditions or situation is deemed unsafe to access.
We will deliver to:
a) a driveway, a garage, a private footpath, the ground floor, loading docks;
b) a flat, level, solid, safe and unobstructed delivery location;
We will not:
a) deliver through sliding doors, deliver onto decks/balconies/patios, push or slide pallet/s across any surface, drive under or through scaffolding, drive down the side of a house/structure unless it is a sealed surface and meets all other requirements stipulated in this clause;
b) deliver to an uneven, unlevel, soft, unsafe or obstructed delivery location;
We do not drive over:
a) screeded packing sand, steel reinforcing bar, sand, electrical cables, open or freshly filled trenches, suspended slabs, timber decking, ‘green’ concrete, paved driveways, wet pebblecrete on gradients, or other people’s property;
b) grass, dirt, gravel or any other uneven or soft surface;
7. INSTALLATION AND USE
7.1 You agree the Goods must be installed strictly in accordance with the manufacturer’s directions and guidelines, and any relevant Australian Standards. We are not liable for any Goods failure caused by Your failure to comply with this requirement.
7.2 We recommend You employ the skills of a qualified tradesperson to install the Goods. You agree We have no responsibility for the works of any tradespeople who install the Goods even if We recommended that tradesperson to You.
7.3 We are not liable for any loss suffered by You or damage to the Goods during installation resulting from information provided by Us regarding the use or installation of the Goods.
8. RETURN, CANCELLATIONS AND CREDITS
8.1 Other than as provided in these Terms or as otherwise required by law, We do not accept the return of any Goods.
8.2 We may, in Our absolute discretion, provide store credits for the return of undamaged standard stock items if the Goods are returned to Us (delivered to 26 Darling Street, Carrington NSW 2294 Australia) at Your expense.
8.3 If We accept return of any Goods, a Restocking Fee will apply, based on the amount of the initial Sales Order price, as per Item 1 of the Reference Schedule.
8.4 We will not accept return of any Goods which are Special Order, if the Goods are used, installed, laid, damaged, or altered in any way by You, or if the Goods were sold at any clearance, sale or discounted price. Special Order Goods include, but are not limited to:
a) Goods manufactured, sourced, fabricated, altered or designed specifically for You;
8.5 You may not cancel Your Sales Order if the Goods are available/dispatched for collection or delivery, or if Your Order includes Custom or Fabricated Products. Cancellation of Your Order will forfeit Your Deposit and any other Payments made to date.
9. TITLE AND RISK
9.1 Title to the Goods passes to You on payment of the full purchase price. Risk in the Goods, including risk of loading and unloading, passes to You upon the earlier of:
a) collection of the Goods by You or Your agent; and
b) the Goods being picked up from Our premises to be delivered to You (if delivered).
10. WARRANTY
10.1 The warranty period for the Goods is the period specified in Item 6 of the Reference Schedule and commences on the date You assume risk for the Goods in accordance with clause 9.1 (Goods Warranty Period). Failure to comply with these Terms will void the warranties given.
10.2 If any Goods are defective, in breach of these Terms or do not conform to the specifications in the Sales Order (Defective Goods), You must notify Us in writing within the Goods Warranty Period and within 7 days of first becoming aware of the defect specifying the nature of the defect, breach or non-conformance. All written correspondence must include Your warranty number and be sent to Earp Brothers Hardware Pty Limited (Attention: Operations Director) via email to operationsdirector@earp.com.au
10.3 You must return any Defective Goods to Us at Your expense. If You do not notify Us in writing of the reason for the return of the Defective Goods and return those Goods within the Goods Warranty Period, You waive all rights in relation to the Goods and agree We will not be liable for any loss suffered by You in connection with those Goods.
10.4 You agree the Goods will be deemed not to be defective if:
a) they are subject to minor omissions or minor defects which do not substantially affect normal use of the Goods;
b) the Goods are installed in buildings used for heavy industrial purposes or processes, including chemical or fertiliser processing or storage, aluminium processing, pulp and paper mills, coal handling facilities, mining applications or any other facility allowing exposure to aggressive industrial environments;
c) You fail to comply with the installation, use and maintenance guidelines provided by Us and/or the manufacturer of the Goods;
d) any faults or damage to the Goods are caused or contributed to by You, including by:
- faulty installation, including exposure to condensation or dust build-up during installation, failure to remove debris and/or provide free drainage of water including condensation from all surfaces during installation or installation in unusually corrosive environments;
- damage during transport, handling, storage, installation or subsequent to installation;
- improper or inadequate storage, including exposure to moisture;
- failure to design, install, use or maintain the Goods in accordance with manufacturer’s directions and guidelines, and relevant Australian Standards;
- inappropriate use of or exposure to chemical agents, fumes, liquids or solids, including inappropriate mechanical polishing or acid cleaning; or
- contact with bitumen, soil, ash, fertilizer, moisture retaining substances, lead or copper or dissimilar metals; or
e) any faults or damage to the Goods are caused or contributed to by any earthquake, hurricane, tornado, cyclone, typhoon, gale, lightning, hail, fire, flood or other similar acts of God.
10.5 You agree to permit Us to inspect premises at which the Goods are or have been used as part of the warranty registration process and to inspect and/or conduct tests as deemed necessary by Us if You make a claim under this clause 10.
10.6 If any of the Goods are Defective Goods, We may, in Our absolute discretion (and to the extent permitted by law):
- replace the Defective Goods (or the cost thereof);
- supply equivalent Goods (or the cost thereof);
- repair the Defective Goods (or the cost thereof); or
- return the invoiced price of the Defective Goods to You.
10.7 You agree that, if any replacement or alternative Goods are provided by Us to You under clause 10.5, the Goods Warranty Period for those Goods will be limited to the remainder of the Goods Warranty Period for the original Goods provided to You.
10.8 You agree that, to the extent permitted by law, the remedies set out in this clause 10 will be Your sole remedy in connection with any Defective Goods provided to You, and You agree We will not be liable to You for any loss (including costs of removal or reinstallation), damage (whether direct or indirect, special or consequential) or injury resulting from any breach of warranty or any defective material, faulty workmanship or otherwise howsoever arising out of or in connection with the Goods, whether or not caused by Our negligence or default.
10.9 Other than as expressly included in these Terms, and to the extent permitted by law, all terms, conditions, warranties and guarantees implied or imposed by statute, common law or otherwise in relation to the Goods are excluded.
11. WAIVER
11.1 No failure to exercise nor any delay in exercising any right, power or remedy under these Terms operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
12. GENERAL
12.1 Headings appear as a matter of convenience only and do not affect the interpretation or meaning of these Terms.
12.2 Unless stated otherwise, all prices or other amounts quoted in the Quotation and/or Sales Order are in Australian Dollars (AUD$).
12.3 No right, interest or obligation in these Terms can be assigned or subcontracted by you without our prior written consent. We may assign, sub-contract or otherwise transfer any right, obligation or benefit under these Terms, or any part thereof, to any other party without your consent.
12.4 These Terms are subject to the laws of Australia and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
12.5 If one of the provisions in these terms be or become entirely or partially invalid, this does not affect the validity of the remaining provisions.
13. DEFINITIONS
“Cancellation Charges” are as determined by Us which will include Our Costs for any:
- engineering specifically required for the Sales Order;
- outside purchases;
- vendor cancellation or Restocking Fee;
- manufacturing processes completed before cancellation;
- administrative costs and other actual costs already incurred by Us in fulfilling the Sales Order prior to receiving the cancellation.
“Costs" includes statutory charges (other than sales tax), the price paid by us for raw materials, components, goods or services (including and dependent on rates of overseas exchange, customs duty, primage, insurance, freight & tariff), variations in commodity prices, and any other costs incurred by Us in connection with supplying the Goods to You.
“Delivery Point” means the delivery site or address as nominated by You for the delivery of the Goods and noted in the Sales Order.
“Target Delivery Date” means the Date nominated by You for the delivery of the Goods and noted in the Sales Order.
“Deposit” is the amount specified in the Sales Order, or if no amount is specified refer to the amount specified in Item 4 of the Reference Schedule.
“Goods” means any tiles and related products (including timber and any other type of wall and/or floor furnishings or associated products supplied by Us to You in accordance with your Sales Order.
“Interest” is the amount We charge You as specified in Item 5 of the Reference Schedule.
“Purchase Order” means the acceptance of the Quote by You and the ordering of Goods in accordance with clause 3, subject to these Terms.
“Quote” means the written quote provided to You by Us for the proposed purchase of Goods.
“Progress Payment” is the amount specified in Item 3 of the Reference Schedule.
“Reference Schedule” means any schedule attached to these Terms.
“Special Orders” include one-off Goods which We are required to import from overseas or purchased for You, Goods which have been manufactured or modified to Your specifications, “one-off”, natural stone Goods, discontinued or clearance stock, left over or cancelled stock and non-standard or non-current stock products.
“Storage Charge” is the fee specified in Item 2 of the Reference Schedule.
“Terms” means these terms and conditions and includes the Sales Order.
“We/Our/Us” means Earp Brothers Hardware Pty Limited (ACN 000 343 117) and “Associated Entities” as such terms are defined in the Corporations Act 2001 (Cth), Our controllers, employees, agents or suppliers.
“You/Your” means the customer, or Your agents, nominees or suppliers, being the buyer of Goods from Us.
REFERENCE SCHEDULE
1. Restocking Fee - 50%
2. Storage Charge - $50 per pallet, per week +GST
3. Progress Payment - 30% of Total Sales Order value
4. Deposit Amount:
- Standard Products (30%)
- Custom Products (50%)
- Fabricated Products (100%)
5. Interest - The annual interest rate will be 8%.
6. Warranty Period
- All goods (Consumer Guarantee applies as required by Australian Consumer Law and Competition and Consumer Act 2010)
- Porcelanosa Group Wall and Floor Tiles (7 year limited warranty upon application)
- XTone (10 year limited warranty upon application)
