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 All prior negotiations, representations and agreements are superseded by these Terms.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 Purchase Order or Quote and these Terms, these Terms prevail.
1.4 Acceptance of a Purchase Order, payment of a Deposit and/or acceptance of Goods means You accept these Terms.
2.1 The Goods to be supplied by Us to You are specified in the Purchase 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) You are satisfied that 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.
3. QUOTES AND PURCHASE ORDERS
3.1 Subject to clause 4.6, 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. If We do not provide a new Quote and Your order is processed then Your Quote will be Your Purchase Order.
3.2 We will not order any Goods specified in Your Purchase Order until You pay the Deposit in accordance with clause 4.2.
3.3 If You request any changes to Your Purchase Order after We have ordered Your Goods, We are under no obligation to accept such a change. Changes to Your Purchase 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 Purchase Order, You are required to pay a non-refundable Deposit. You must pay the outstanding balance owed by the earlier of:
a) 14 days prior to the delivery date of the Goods; and
b) 60 days of Us receiving Your Deposit.
4.3 If payment is not made in as required by this clause 4.3, We may, in addition to Our other rights, charge You Interest on overdue amounts, 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.
4.4 All prices included in Your Purchase 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.
4.5 We may, on notice to You, vary the price from that specified in a Purchase Order to correct any typographical or clerical errors in Your Purchase Order or to reflect any increases in Costs beyond Our reasonable control.
5. COLLECTION OF GOODS
5.1 Unless We specify in the Purchase Order, You must collect the Goods from the address specified in the Purchase Order at the time specified by Us.
5.2 We reserve the right to dispatch part of Your Purchase Order. If We do so, You must collect and pay for those Goods in accordance with clause 4.2.
5.3 We may charge You a Storage Charge if You fail to collect or organise delivery of the Goods within 2 weeks of Us notifying You the Goods are available. Storage Fees will be charged and payable on and from the end of the 2 week period.
5.4 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 Purchase Order, void any of these Terms or claim compensation.
5.5 You must inspect the Goods upon collection to ensure the Goods are in accordance with Your Purchase Order. If any Goods are incorrectly supplied, You may return the Goods subject to clauses 6.4 and 7.3.
5.6 We are not liable for any damage or loss in unloading or packing Goods upon collection by You.
6.1 Unless otherwise stated in Your Purchase 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 in writing of the Delivery Point on or prior to payment of your Deposit;
b) the cost of those services will be payable by You on demand prior to delivery;
c) 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;
d) We will endeavour to deliver the Goods to a safe and secure position (where site access permits) at the Delivery Point but this cannot be guaranteed;
e) We are not liable for:
- any failure/delay to deliver Goods to the Delivery Point;
- any damage or loss due to unloading or packaging of Goods or leaving the Goods at the Delivery Point;
- 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.
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 48 hours of delivery or collection of any Goods which are damaged or incorrectly supplied by Us.
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.
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 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 at Your expense:
a) within 30 days of delivery/collection;
b) accompanied by a delivery docket stating Our original invoice number and a written explanation for the return;
c) in original packaging, undamaged and in saleable and ‘as new’ condition; and
d) are from current stock in store and match current stock.
8.3 If We accept return of any Goods, a Restocking Fee will apply, based on the amount of the initial Purchase Order price.
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 sale or discounted price.
8.5 You may not cancel Your Purchase Order if the Goods are available for collection or delivery. If We do permit cancellation of a Purchase Order, You must pay Our Cancellation Charges.
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).
10.1 The warranty period for the Goods is the period specified in Item 4 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 Purchase Order (Defective Goods), You must notify Us in writing within the Goods Warranty Period and within 30 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: The Manager) by one of the following:
Phone: +61 2 4925 4550
Fax: +61 2 4962 2926
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 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 Defective 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.
11.1 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.
12.1 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 Purchase 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 this 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.
“Cancellation Charges” are as determined by Us which will include Our Costs for any:
- engineering specifically required for the Purchase 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 Purchase 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 Purchase Order.
“Deposit” is the amount specified in the Purchase Order, or is 30% if no amount is specified.
“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 Purchase Order.
“Interest” is the amount We charge You as specified in Item 3 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.
“Restocking Fee” is the fee specified in Item 1 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, Goods which have been manufactured or modified to Your specifications, “one-off”, stone Goods, discontinued 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 Purchase 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.
1. Restocking Fee
Thirty percent (30%)
2. Storage Charges
$50.00 per week per pallet (or part thereof)
The interest rate will be eight percentage (8%) points above the base rate target announced by the Reserve Bank of Australia from time to time.
4. Goods Warranty Period:
Porcelanosa “floor tiles”
Seven (7) years
Venis “floor tiles”
Seven (7) years
Porcelanosa “wall tiles”
Seven (7) years
Venis “wall tiles”
Seven (7) years
Ten (10) years
All other Goods
Fit for purpose in accordance with Australian standards