Terms & Conditions
Welcome to our website. You should read the following Terms and Conditions before using ColorTile website (“this website”). Your use of this website is governed by the following Terms and Conditions. They describe your rights and responsibilities. Please take a few minutes to review these Terms and Conditions. Your use of this website constitutes your agreement to follow these rules and to be bound by them. If you do not agree with all these Terms and Conditions, please exit the website now.
These are the entire Terms and Conditions of Sale of all Goods supplied by COLORTILE PTY LTD ACN 145 801 181 and its associated and subsidiary Companies (all of which are referred to as “the Supplier”) to any person, firm or company placing an order with the Supplier for the purchase of any products (“the Customer”). Except as otherwise expressly agreed upon in writing between a duly authorised officer of the Supplier and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by any Customer.
DEFINITIONS
In these Terms and Conditions, the following definitions will apply:
“Customer” means the person, business or company which is supplied Goods by COLORTILE and its associated and subsidiary Companies.
“Goods” means the products materials or merchandise supplied by COLORTILE
“COLORTILE” means COLORTILE PTY LTD ACN 145 801 181.
“GST” means goods and services tax, currently 10%.
“PPS Act” means the Personal Property Securities Act (Cth).
“PPSR” means Personal Property Securities Register.
“Terms and Conditions” means these terms and conditions of sale.
GENERAL
All orders placed with the Supplier shall only be accepted subject to these Terms and Conditions. The Supplier reserves the right to change prices without notice. Further, the Supplier may at any time, and from time to time alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by the Supplier to the Customer.
The Supplier is not obliged to accept any orders from the Customer, but if the Customer does place an order with the Supplier, then it becomes binding from the moment that the Supplier accepts it even if the Supplier does not tell you that it has been accepted.
Any quotation is merely an invitation to the Customer to place an order with the Supplier. Unless the Supplier has given an applicable quotation, the purchase price for Goods is the price appearing in the Suppliers price list current at the date on which the Goods are ordered. The Supplier may alter the prices appearing on the price list at any time. Unless otherwise indicated, prices on quotations and price lists do not include the cost of freight or Goods and Services Tax (GST). Unless otherwise indicated, the Customer must pay to the Supplier the freight costs and the amount of any taxes arising out of the sale of the goods, in addition to the purchase price for the Goods.
The Supplier may cancel acceptance of an order at any time. If the Supplier cancels acceptance of an order in accordance with this clause, the Supplier must refund any deposit paid in relation to the order but otherwise have no liability to the Customer in relation to the cancellation.
The Supplier may increase any agreed sale price after the Supplier accepts an order, to cover the full amount of any increases in indirect taxes and duties such as sales taxes, GST, consumption taxes and stamp duty which the Supplier incurs in connection with a transaction after the date of the Customers order.
GOODS AND SERVICES TAX (GST)
All prices shown in the COLORTILE A price list will be exclusive of GST. All quotations submitted to customers by sales representatives of COLORTILE will be exclusive of GST and shall remain valid for 1 month from the date of the quotation unless otherwise stated. Significant variations to quantities or different products shall be treated as separate enquiries and must be requoted.
INVOICING FOR GOODS & SERVICE TAX
Invoices will be calculated exclusive of GST (as per COLORTILE ’s price list) and then sub totalled. This sub-total will then be increased by a factor of 10% for GST, which will be identified separately on the COLORTILE ’s invoice. The invoice total will therefore include GST. The separation of our invoice into components of base wholesale price and GST will facilitate the recording of input tax credits and accounting for GST generally.
TERMS OF PAYMENT
Unless the Supplier agrees in writing to give the Customer credit, the Customer must pay 50% of the invoice amount at the time of placing the order and the balance of the invoice amount 7 days before delivery.
If any amount the Customer owes to the Supplier is not paid within 7 days of the due date then all of the monies that the Customer owes to the Supplier on any account becomes immediately due and payable, and without limiting our other rights the Supplier may suspend the supply of Goods and defer or cancel any outstanding orders. If you do not pay an invoice by the due date, a late payment fee of 2% above the prime overdraft rate charged from time to time by the Suppliers bankers calculated and payable daily may be imposed. In addition, without limiting any right contained below, the Customer will be liable to indemnify the Supplier for all expenses incurred by the Supplier in recovering any amounts which the Customer fails to pay by the due date (including any commission payable to any commercial or mercantile agents and legal costs). Payments received from the Customer will be credited first against any account keeping fees and all such fees shall be payable on demand .
Customers shall not be entitled to withhold payment of any account by reason of any account query, dispute or set off.
No receipt for payment by any representative of the Supplier shall be effective to acknowledge payments to the Supplier unless given on the Supplier’s official printed form.
The Supplier may impose a charge for accepting payments by credit card. The Supplier may set off against any credit owed to the Customer any amount owing by the Customer to the Supplier.
CREDIT
In the event that the Supplier delivers on credit, the Customer hereby grants the Supplier a security interest in the Goods for the purposes of PPS Act and to the extent applicable the PPS Act applies.
To give effect to clause 6.1 above, the Customer consents to the Supplier effecting a registration on the PPSR (in any manner it considers appropriate) in relation to any security interest arising under or in connection with these Terms and Conditions or the supply of Goods and the Customer agrees to provide all assistance reasonably required to facilitate this. The Customer also undertakes to do all such things, including executing any new document or providing any information that is required by the Supplier so that it acquires and maintains a perfected security interest under the PPSA in respect of the Goods and its proceeds, so that the Supplier may register a financing statement or financing change statement and to ensure that the Supplier’s security position, and rights and obligations, are not adversely affected by the PPS Act.
DELIVERY
Any date or time quoted for delivery is an estimate only and the Supplier shall endeavour to effect delivery at the time or times required by the Customer but failure to do so shall not confer any right of cancellation rescissionor refusal of delivery on the Customer or render the Supplier liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.
The Customer shall not be relieved of any obligation to accept or pay for products by reason of any delay in delivery or any strike, lockout, unavailability of materials, accidents to machinery, differences with workmen, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or intervention imposed by any laws, regulations, governments or agencies thereof and any other cause beyond the control of the Supplier or any other cause whatsoever.
The Supplier’s obligation to deliver shall be discharged on arrival of the products at the Customer’s nominated delivery destination, or collection by the Customer or the Customer’s nominated transport company or nominated agent. The Customer must accept delivery of the Goods within the later of the date nominated at the time of purchase or within 7 days of being provided notice by the Supplier that the Goods are available. The Customer shall unload the products upon delivery, provided that if the Customer is unable or unwilling to accept physical delivery of the products when the products are ready for delivery, the Supplier shall be entitled to charge a fee for any delay experienced or arrange for the storage of the products at the risk and cost of the Customer including all transportation, storage and other consequential costs. The Supplier may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms and Conditions.
All goods are priced to include delivery within the Sydney metropolitan area or in the case of country orders delivered to a carrier’s depot in the Sydney metropolitan area. Customers may elect to pick up goods from our Sydney warehouse, on the same terms and conditions set out here in.
the Supplier shall not be liable for any failure to provide or deliver goods due to transportation or shipping delays or any other circumstances beyond the Supplier’s control. Goods in transit not on the Suppliers vehicle are transported at the Customer’s risk, with insurance being the Customer’s responsibility. It is the responsibility of the Customer to check all Goods on receipt for shortages or breakages. No claims will be accepted unless made within 2 days of delivery.
The Customer shall examine the Goods immediately after delivery and the Supplier shall not be liable for any mis delivery, shortage, defect or damage unless the Supplier receives details in writing within 2 days of the date of delivery of the Goods.
It is the Customer’s responsibility to ensure that adequate stock is purchased for the Customer’s requirements, and the Supplier shall not be responsible for batch matching for subsequent orders.
It is the Customer’s responsibility to ensure that all tile fixing systems are in accordance with Australian Standard AS3958.1-2007.
DESCRIPTIVE SIZE
Tiling size is nominal only. Shrinkage rates vary from time to time depending upon firing temperatures and small variations shall occur from batch to batch. All variations shall be within Australian Standard AS4662-2003.
STORAGE
It shall be the responsibility of the Customer to ensure that all tiles are stored on their edge and in a dry environment to minimize breakages.
RETURN OF GOODS
No Goods may be returned to us without our prior written approval and then only upon such terms as we may require which may include inspection, repackaging and transport costs.
Subject to clause 10.1, return of Goods (subject to our terms and conditions) will only be prior arrangement in writing. All returns are subject to a 20% handling/restocking charge.
Returns and claims for credit must be made within 7 days of receipt of Goods. After 7 days you will be deemed to have waived all rights to return Goods or claim credits and all such returns made or credit claims sought after 7 days shall be accepted at the Suppliers sole discretion. All claims will be treated on an individual basis and are limited to the invoiced price of Goods.
Without limiting clause 10.1 and clause 10.3, returns will only be accepted if:
Goods are accompanied by a copy of our invoice or delivery ticket.
Goods are returned within one month of purchase.
Goods are not discontinued at the time of return.
Goods are in full, undamaged, original cartons, minimum five boxes.
Goods are of current shade.
Returns will not be allowed if:
tiles were ordered in especially for customers.
tiles were sold on special, sale or discount.
tiles were sold as commercial grade, run of kiln or second choice.
PROPERTY AND RISK
Notwithstanding delivery of the products or their installation, property in any given products shall remain with the Supplier until the Customer has paid and discharged any and all other indebtedness to the Supplier on any account whatsoever, including all applicable taxes, levies and duties. Any payment made by or on behalf of a Customer which is later avoided by the application of any statutory provision shall be deemed not to discharge the Customer’s indebtedness and, in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.
Payments by Customer are not credited to the Customer’s account until the Supplier receives payment as cleared funds in the Suppliers bank account. Until the Customer becomes the owner of particular goods, the Supplier may enter into any premises if the Supplier has reasonable grounds to expect that it may find any part of the Goods there. If the Customer defaults in paying any part of the price or associated charges in connection with an order the Supplier may re-take possession of the Goods supplied under the order. That applies even if the Supplier holds some negotiable instrument or security for the amount unpaid. The Customer acknowledges that at all times until full payment is received as cleared funds, the Supplier will retain title (even if the Customer goes into liquidation or becomes bankrupt) and in no circumstances will the Goods be deemed fixtures. If the Customer resells any of the Goods (even if mixed with other goods) before becoming the owner, the Customer is acting as the Supplier’s selling agent and shall act as bailee although only to the absolute minimum extent necessary to protect the Supplier’s ownership. If the Goods are sold in the ordinary course of business, then the Customer will hold the proceeds of sale on trust for the Supplier.
The risk in the Goods (including any loss, damage or deteriorations) shall pass to the Customer upon delivery to the Customer immediately when the Goods leave the Supplier’s premises.
The Customer acknowledges that it is in possession of the Goods solely as a bailee for the Supplier until payment as defined in clause 5 has been made in full to the Supplier and until such payment the Customer shall:
be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused; and
store the Goods separately from its own goods and those of any other party and in a manner which clearly identifies the Goods, whether as separate chattels or as components, as the property of the Supplier.
The Customer shall maintain records of Goods owned by the Supplier identifying them as the Supplier’s property, of the persons to whom the Goods are sold or disposed to and of the payments made by such persons for such Goods. The Customer shall allow the Supplier to inspect these records and the Goods themselves on request.
The Customer hereby irrevocably grants to the Supplier, its agents and servants, an unrestricted right and licence, without notice to enter premises occupied by the Customer to identify and remove any of the Goods the property of the Supplier in accordance with these Terms and Conditions without in any way being liable to the Customer or any person claiming through the Customer. The Supplier shall have the right to sell or dispose of any such Goods removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.
The Supplier licenses the Customer to install the products. If the Goods are affixed to other materials, the totality thereof shall be the sole and exclusive property of the Supplier until payment as defined in clause 5 has been made in full to the Supplier unless the other materials or part thereof are or is the property of a party or parties other than the Customer in which case the totality thereof shall be deemed to be owned as tenants in common with such other party or parties in shares corresponding to the respective amounts paid or payable by the Customer in respect of such other party or parties.
The Customer shall be at liberty to agree to sell the Goods (independently or affixed to other materials) subject to the condition that until payment has been made in accordance with clause 5, the Customer shall sell as an agent and bailee for the Supplier and that the entire proceeds from the sale thereof shall be held in a separate account on trust for the Supplier.
The right to on-sell, deal with or otherwise dispose of the Goods in the normal course of trade may be revoked at any time by the Supplier and shall automatically cease if a receiver is appointed over any of the assets on the undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into voluntary liquidation or administration or calls a meeting of, or makes any arrangement or composition with, creditors or commits any act of bankruptcy or where the Customer is in default of any of its obligations to the Supplier.
GUARANTEES, WARRANTIES AND LIMITATIONS
The Supplier guarantees that the Goods are of acceptable quality when sold. In the event that a Good is not of acceptable quality when sold the Customer should immediately contact the Supplier by the methods described below. For all household goods (as defined by the ACL) if there is a major failure of one of our guarantees, the Customer is entitled to a refund or to reject the item and to get an identical replacement or one of similar value if reasonably available or to keep the Goods and get compensation for the drop in value of the Goods. If there is a minor failure, the Supplier can choose to repair or replace any item sold by the Supplier or to offer the Customer a refund. Important Exclusions: The Supplier’s warranty does not cover: in transit damage; reasonable directions; wilful abuse or misuse. This warranty does not cover any Goods sold ‘as is’ or used in breach of our warranty, any damage caused by Goods not used according to instructions or directions, consequential damage or incidental damages (except as provided for in the ACL), personal injury, lost profits, lost savings or other economic damages, loss of use of the goods, rental or hire use, damage from prolonged exposure to fire or heat, damage from fraud, intentional acts, war, hostilities, terrorism or vandalism or acts of God.
The Supplier sells its Goods by specification and it guarantees that they are fit for the purpose for which goods of that kind are commonly supplied. The Customer decides what specific purpose to use them for or to re-supply them for. Further, unless specifically stated in writing on the quotation, we take no responsibility for variations in colour or texture.
Delivery times are estimates only and the Supplier is not liable for minor delays in delivery. In this respect, the Customer agrees that time is not of the essence.
The Supplier discloses that the Goods are a natural product and accordingly the Goods contain variations in shade, colour, finish, texture and glaze and the Supplier provides no warranty or representation that the Goods will be free from variations in shade, colour, finish, texture and glaze. The Goods are not sold by reference to samples or display models.
The Supplier reserves the right to vary the specifications or performance criteria of any Goods or products from time to time and to obtain Goods or products from different sources, at the Suppliers absolute discretion. The Supplier may do that without telling the Customer provided the Supplier has reasonable grounds for believing that the alternative Goods offered are substantially similar to that previously offered or represents an improvement.
The law implies various terms, conditions and warranties which might apply to our supplying Goods or services to the Customer. The Supplier excludes all of those implied terms, conditions and warranties to the fullest extent permitted by law.
CLAIMS AND WARRANTIES
No warranty either implied or granted is given to Goods sold on special, sale or discount, or that are commercial grade, run of kiln or second choice. NO CLAIMS for shade variation or quality will be considered or recognised once Goods have been fixed. The Customer is responsible for drawing the attention of the principal owner or end user to any such matters PRIOR to fixing. The Customer undertakes and covenants to carry out a layout of the tiles before fixing or to advise the principal, end user or owner in writing that a layout must be carried out before fixing and obtain written instructions not to do so if instructed not to do so. Tiles are not guaranteed against chipping or crazing or wear unless expressly warranted by the Supplier. It is the responsibility of the Customer to ensure that the Goods purchased are suitable for the purpose intended and that the method by which Goods are fixed is satisfactory for the purpose intended. Grade 3 tiles are suitable for light domestic area only. Specifications and wear gradings are those of the manufacturer and have not been independently tested by the Supplier.
Samples supplied should be regarded as a guide only. Shade, colour finish, texture and glaze variation may occur from tile to tile and in successive batches of material.
the Supplier shall not be liable for any expense or injury arising from the use of any Goods supplied, and the customer shall assume all resultant risk and liability.
PPS ACT
The Customer waives the right to receive any notice under the Act (including notice of a verification statement) unless the notice is required by the Act and cannot be excluded.
The Customer acknowledges that if the Supplier’s interest under these Terms and Conditions is a security interest for the purposes of the Act:
That security interest relates to the Goods and all proceeds of any kind; and
Each sale is a security agreement for the purposes of the Act.
The Supplier may in its absolute discretion may perfect any security interest held by it against any third party on whose site the Goods are located in any manner that the Supplier considers appropriate to protect the Supplier’s interest in the Goods.
If requested by the Supplier, the Customer must provide the Supplier with all details as to the location of the Goods and the identity of any sub-lessee or third party that has been given possession.
(Subject always to the Supplier’s consent), if the Customer sub-leases or provides the Goods to a third party, the Customer must do everything required to ensure that its security interest has attached and is perfected by registration on the PPSR.
The Customer undertakes not to:
register a financing change statement in respect of a security interest contemplated or constituted by these Terms and Conditions without the Supplier’s prior written consent; and
register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favor of a third party without our prior written consent.
If the PPS Act applies to the enforcement of a security interest arising under these Terms and Conditions:
section 115(1) of the PPS Act allows for the contracting out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and you will have no rights under them: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and
section 115(7) of the PPS Act allows for the contracting out of provisions of the PPS Act, the following provisions of the PPS Act will not apply and you will have no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
The Customer agrees not to disclose information of the kind referred to in section 275(1) of the PPS Act to an interested person, or any other person requested by an interested person. The Customer waives any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPS Act to authorise the disclosure of the above information.
For the purposes of section 20(2) of the PPS Act, the collateral is the Goods. These Terms and Conditions are a security agreement for the purposes of the PPS Act.
The Customer agrees to notify the Supplier in writing of any change to your details set out in a credit application, within 5 days from the date of such change.
SLIP RESISTANCE
Any slip resistance guides or information provided by the Supplier are not a representation by the Supplier and are to be viewed as a relative guide only to estimate the merits of one tile as against another and should be considered in conjunction with the Australian Building Code and the relevant Australian Standards. The Supplier does not warrant the veracity or application of any laboratory test results provided and makes no representation as to the accuracy of the information provided.
OPTICAL HAZING
The Supplier discloses and the Customer acknowledges that all polished tiles are subject to optical hazing, being an occurrence that presents as a smoky, or smudged finish on the surface of the tile. This occurrence may only be visible depending upon the light source reflecting at certain angles off the surface of the tile. This occurrence may vary from tile to tile and batch to batch. This is an inherent characteristic of polished porcelain tiles and does not affect the technical performance characteristics of the tile. The Supplier shall not be liable for any issue or claim regarding optical hazing which does not involve a breach of the relevant Australian Standards.
DISPLAY STAND AND EQUIPMENT
Display stands, sliders or other equipment supplied for sales promotional purposes remains the property of the Supplier, unless the customer enters into an arrangement to purchase the display equipment.
FORCE MAJEURE
18.1 The Supplier shall not be liable for any failure or delay in supply or delivery of the Goods where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of the Supplier including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.
TERMINATION
19.1 If the Customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy, or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or administration or enters into any composition or arrangement with creditors or if a receiver or manager is appointed for any property or assets of the Customer or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, or if a liquidator or provisional liquidator is appointed, the Supplier may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately recover possession of any Goods not paid for in accordance with these Terms and Conditions.
GOVERNING LAW
The Customer agrees that these Terms and Conditions shall be construed according to the laws of the State or Territory as the Supplier may in its sole discretion determine. Proceedings may be instituted in such State or Territory as the Supplier may in its sole discretion determine. Failing such determination the Customer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of New South Wales applying the laws of the State of New South Wales.
SERVICE OF DOCUMENTS
The Customer agrees that service of any notices or Court documents may be effected by forwarding same by pre-paid post or facsimile to the last known address of the Customer.
STATEMENT OF DEBT
A certificate signed by a Director, Secretary, Financial Controller or Credit Manager of the Supplier shall be prima facie evidence of the amount of indebtedness of the Customer to the Supplier at that time.
PRIVACY
It is the Supplier’s policy to comply with the Australian Privacy Principles (APPs) contained within the Privacy Act 1988 (Cth), which establish standards for the collection, use, disclosure, storage, and management of personal information.provided by the Customer.
These terms and conditions are protected by copyright.