TERMS OF SALES
These terms and conditions are between Kaolin Tiles Pty Ltd as trustee for Kaolin Tiles Trust ABN 83 266 185 729 (we, us or our) and you, the party stated in the Quote (you or your), together the Parties and each a Party. Together, these terms and conditions and the Quote form the entire agreement under which we will provide the Goods to you (together, the Terms). Definitions are at the end of these Terms.
1.1 You have requested the Goods set out in the Quote and accept these Terms by instructing us to provide the Goods or by paying the Deposit.
1.2 A Quote:
(a) is valid for 30 days from the date of the Quote; and
(b) may be amended or revoked by us at any time by notice to you. An updated or revised Quote will make all previous Quotes invalid in their entirety.
1.3 All Quotes are subject to confirmation by us on receipt of any order and we reserve the right to refuse any order.
1.4 We take no responsibility for shortages or excess Goods supplied and you must confirm all measurements /quantities before accepting a Quote. You should allow for wastage, chipping, breakage and cutting when you order our Goods.
1.5 All prices and discounts in a Quote are on the basis of the quantities in the Quote. If you request that we amend a Quote or order more Goods in the future, we may review the prices and any previous discounts may not apply to that order. You acknowledge that the Price for an order may with a requested lead time of more than 8 weeks may be subject to change due to various factors, including currency fluctuations, fluctuation in material prices, changes to custom/taxes affecting the Goods and other factors.
1.6 All variations to these Terms must be agreed in writing between the Parties and will be priced as reasonably determined by us.
2.1 We agree to provide you the Goods in accordance with these Terms whether ourselves or through our Personnel.
2.2 You acknowledge and agree that any dates for collection or delivery notified by us are estimates only, and delays will not entitle you to cancel a Quote, reject the Goods or claim damages, costs or any other compensation or take any other action against us in connection with the delay. We will have no Liability to you for failing to meet any collection or delivery date.
2.3 We sell our Goods in full boxes only excluding mosaics and special pieces and this will be as set out in the Quote.
2.4 You may pay a Deposit and request that Goods be made available in the future. You must make full payment of the balance of the Price within 12 months of your acceptance of the Quote regardless of whether you are ready to receive the Goods.
3. PRICE AND PAYMENT
3.1 You agree to pay us the Price in accordance with these Terms. All amounts are stated in Australian dollars and are exclusive of GST (unless otherwise stated).
3.2 We will set out the applicable GST in our invoice. You agree to pay the GST amount at the same time as you pay the Price.
3.3 You agree to pay our invoices at the times, and using the payment method, stipulated in our invoice. Payment is only received by us when the proceeds of payment are credited and cleared in our bank account. You acknowledge that bank transfers can often take up to 3 Business Days so payments must be made sufficiently in advance.
3.4 The Deposit must be paid before we commence the provision of the Goods.
3.5 The remainder of the Price and any Delivery Costs must be paid when we notify you that the Goods are available for collection or delivery. We will not release the Goods for collection or deliver the Goods until the remainder of the Price and the Delivery Costs (if applicable) have been received by us.
3.6 If you cancel a previously accepted Quote, you must pay us a cancellation charge of 50% of the Price. You agree that this cancellation charge is a genuine pre-estimate of our loss.
3.7 If you do not make payment under these Terms (or any other payment due and payable by you to us) by the due date, we may (in our absolute discretion):
(a) immediately cease providing the Goods, and recover, as a debt due and immediately payable from you, our additional costs of doing so; and
(b) charge interest at our bank’s then current commercial overdraft rate plus a margin of 4% per annum, calculated daily and compounding monthly, on any amounts unpaid 7 days after the due date;
(c) suspend any further deliveries to you under any quote; and
(d) terminate these Terms.
4.1 Unless otherwise agreed with us, you must collect the Goods at a location in Sydney, unless otherwise agreed with you. We will notify you of the exact location when the Goods are ready for collection.
4.2 When we notify you that the Goods are ready for collection, we will agree with you a date and time for collection.
4.3 If you do not collect the Goods on the agreed collection date or do not agree a collection time with us, within 7 days of being notified by us that your Goods are ready for collection, we may at our absolute discretion, either charge a daily storage fee of $30 per pallet per week or we will be entitled to assume that you have cancelled your order and we may resell the Goods to another customer. In respect of any Goods which remain uncollected in accordance with this clause, you acknowledge and accept that you forfeit any payment made towards the Price.
4.4 You may collect the Goods yourself or arrange for collection by your delivery partner. Your partner must comply with this clause and clause 6 below.
5.1 You may request that we deliver the Goods to you at your chosen address. We may accept or reject your request.
5.2 Where we accept your request, we will deliver the Goods, either ourselves or through our third party delivery partners, to the delivery address you provided when making the request for delivery. You agree to pay us for all Delivery Costs.
5.3 If neither you nor your authorised representative is at the delivery address at the scheduled delivery time, if you refuse to accept delivery of the Goods or if you do not agree a delivery date and time with us, within 7 days of being notified by us that your Goods are ready for delivery, we will return the Goods to our warehouse (if applicable) and charge you any redelivery costs. We may also, at our absolute discretion, either charge a daily storage fee of $30 per pallet per week or we will be entitled to assume that you have cancelled your order and we may resell the Goods to another customer. In respect of any Goods which remain undelivered in accordance with this clause, you acknowledge and accept that you forfeit any payment made towards the Price.
5.4 You must ensure that clear, safe access is provided at the delivery address for the Goods, which is free from harm or risk to safety when the Goods are delivered either by us, or our delivery partner. If the party delivering the Goods deems it to be unsafe to deliver the Goods, they may, at their sole discretion, decline to deliver the Goods at that time, and you will need to pay for the redelivery of the Goods when the delivery address has been made safe.
5.5 Delivery of the Goods may be subject to, or impacted by, our delivery partners. We accept no liability for any loss, damage or claim made in respect of a delay in the delivery of any Goods which is beyond our reasonable control.
6. SIGNING FOR GOODS
6.1 Subject to your Statutory Rights and the Warranty, upon receipt of the Goods, you must inspect the Goods and note any discrepancy, visible defects or damage in the delivery. You must notify us by email to the address at the end of these Terms in writing within 24 hours of collection or delivery upon receipt of the Goods (Claim) and make the Goods available for inspection by us or our Personnel. After 24 hours, you will be deemed to have accepted the Goods and we will not consider any Claim, subject to applicable law. This clause does not limit your Statutory Rights or your rights under the Warranty.
6.2 All Goods collected by you or delivered to you must be signed for either by yourself or your authorised representative.
7. TITLE AND RISK
7.1 Title in the Goods will remain with us until the Price and all amounts due and payable to us under these Terms are paid in full.
7.2 If you or your delivery partner are collecting the Goods from us, risk in the Goods will pass to you immediately upon us making the Goods available for your collection.
7.3 If we deliver the Goods to you, risk in the Goods will pass to you immediately upon the freight vehicle arriving at the delivery address and us or our delivery partner making the Goods available for unloading.
7.4 In the case of a postponed or delayed delivery by you, risk in the Goods will pass to you upon our delivery of the Goods to our warehouse or the warehouse of a third party provider.
7.5 Once risk in the Goods passes, you will be solely responsible for them.
8. PRODUCT APPEARANCE
8.1 You acknowledge that tiles naturally exhibit variation in shade and pattern, size, flatness. Polished and honed tiles can exhibit swirls, polish marks and optical hazing, this is an inherent characteristic of the tile and not a flaw. To the extent permitted by law, we will not accept Liability for tiles that fall within international standards and allowances.
8.2 We may provide you with samples of the Goods. No two pieces of stone or tiling will be the same, subject to your Statutory Rights, we accept no responsibility in respect of any minor variations between samples, brochures, digital images and showroom displays and the actual Goods provided.
9. YOUR OBLIGATIONS & WARRANTIES
9.1 You represent, warrant, acknowledge and agree that:
(a) there are no legal restrictions preventing you from engaging us, or agreeing to these Terms;
(b) you have not relied on any representations or warranties made by us in relation to the Goods unless expressly stipulated in these Terms;
(c) the information you provide to us is true, correct and complete; and
(d) you will not infringe any third-party rights in working with us and receiving the Goods.
9.2 Without limiting and in addition to any other obligation under these Terms, you agree to:
(a) not do anything that may adversely affect our goodwill, brand or reputation (or that of the Goods);
(b) comply with all guidelines and procedures made available to you by us in relation to the installation, use, maintenance or transformation of the Goods;
(c) obtain, and provide to us, in a timely manner and at your cost, any access, consents, Approvals, permits, licences and assistance (including information or documentation) necessary to enable us to comply with our obligations under these Terms or under any laws;
(d) immediately inform us of any issues, concerns or matters which may (directly or indirectly) adversely affect our reputation or brand (or that of the Goods), including where you have become aware of a Good being defective, and cooperate with, and assist, us to respond to, or rectify or remedy, any such issues, concerns or matters; and
(e) not make or offer any warranty or guarantee, or make any representation, in relation to the Goods, other than those warranties, guarantees or representations expressly stated in the material provided by us.
10. INSTALLATION AND LAYING
10.1 You should inspect the Goods for any obvious visual defects prior to laying them. Once the Goods have been laid, and subject to Your Statutory Rights, we will not be liable for any Goods with obvious visual faults.
10.2 Goods must be installed in accordance with Australian Standards (currently AS 3958.1 and AS 3958.2 as may be updated from time time) and any guidelines we provide to you. Failure to follow installation instruction will void any warranties or claims of any kind.
10.3 All tiles can become slippery when wet. We do not accept Liability for accidents due to inappropriate tile selection. Slip ratings are only given as an “Indication Only”. It is the responsibility of the end user to carry out appropriate and updated testing for the tiles and to rely solely on your own investigations regarding the suitability of the tile for the intended use.
10.4 We recommend that our Goods should only be laid by experienced licensed tilers. If the person laying the Goods is not experienced, the Goods may be damaged. We will not be liable for any damage or breakage to Goods after delivery (including during the laying of the Goods) or for any loss you incur as a result of such damage or breakage.
10.5 Our Goods should not be cleaned with acid or acid based industrial cleaners. It is recommended that you seek advice on all cleaning needs.
10.6 We recommend that you seek advice on pre sealing and sealing aspects of the Goods.
11. YOUR STATUTORY RIGHTS
11.1 Certain legislation, including the Australian Consumer Law (Australian Consumer Law) in the Competition and Consumer Act 2010 (Cth) and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Goods, if you are defined as a consumer, which cannot be excluded, restricted or modified (Statutory Rights). If you are a consumer under the Australian Consumer Law, our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. The rights and remedies contained in this clause are limited to the extent that the Australian Consumer Law applies. You may not be entitled to remedies under the Australian Consumer Law as it may not apply to you. Nothing in this Agreement shall be construed as affecting any rights you may have under all the relevant laws, or Commonwealth or State legislation, which give you rights which cannot be modified or excluded by agreement.
11.2 Except for your Statutory Rights and the Warranty, we exclude all express and implied warranties, representations and guarantees of any kind (whether under statute, law, equity or on any other basis) and all materials, work, goods and services (including the Goods) are provided to you without warranties, representations and guarantees of any kind. You are solely responsible for determining the suitability, compatibility, quality and use of the Goods.
Your rights under the Australian Consumer Law
12.1 If you are a consumer under the Australian Consumer Law, the benefits given to you under this Warranty are in addition to, and do not limit or derogate, your rights and remedies at law in relation to your Goods, including under the Australian Consumer Law.
12.2 Consumer guarantees (under the Australian Consumer Law) have no set time limit but generally last for an amount of time that is reasonable to expect, given factors such as the cost and quality of the Goods or any representations made.
12.3 If you are a consumer under the Australian Consumer Law, our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
What Goods does our Warranty apply to
12.4 This Warranty only applies to Goods from Precious Stone and Showpiece ranges.
12.5 To qualify for this Warranty, Goods must have been installed by a licensed tiler and in accordance with Australian Standards (currently AS 3958.1 and AS 3958.2 as may be updated from time time).
12.6 To qualify for this Warranty, you must return to us a completed application form or register with us within 6 months of the date of purchase (being the date the balance of Price is paid to us) and within 30 days after the date of installation and you must provide us with proof that that the Goods were installed by a licensed tiler.
How to claim under our Warranty
12.7 To make a claim under this Warranty, you must notify us of any manufacturing fault or defect in the Goods (Defect or Defective) along with a description and photographs of the relevant Defect. You must provide any other information we reasonably require to assess your claim. We will notify you of our determination as to whether your claim is valid under this Warranty and any determination we make will be final and binding.
12.8 You must make the Goods available for inspection by us or our Personnel.
If your claim under our Warranty is successful
12.9 If we determine your claim under this Warranty is successful, we will:
(a) repair or replace the Defective Goods (the repair or replacement will be at our discretion); or
(b) if we are unable to repair or replace the Defective Goods, we will offer you a choice of a credit, refund or compensation as applicable to the Defect subject to the depreciation set out below:
Date of Warranty Claim
(from date balance of Price paid) Credit or refund
(as a percentage of Price)
0-5 years 100%
6-10 years 50%
10-25 years 10%
Over 25 years 5%
12.10 We cannot guarantee that the original Goods will still be available if the Goods are to be replaced. If the Goods are no longer available, a replacement by an alternative product of the same quality will be provided.
Exclusions from our Warranty
12.11 The following are not covered by our Warranty:
(a) any Defects caused or contributed to by an act or omission, accident, or negligence by you or any third party not engaged by us (including any tiler or builder);
(b) where you have not complied with these Terms (including clause 10);
(c) any custom-made or specially ordered Goods;
(d) where the Goods have been laid, any obvious visual defects or where the Defect should have been noticed prior to laying or installation;
(e) natural colour variation (there will be natural colour variation due to the nature of our Goods), veining and other markings;
(f) minor surface marks and blemishes;
(g) minor insignificant differences between our sample Goods and the Goods you purchased;
(h) any damage caused by structural movement, normal wear and tear, damage or defects caused by incorrect installation or laying, lack of proper maintenance, accidents or abuse/misuse; and
(i) any act of God or force majeure event (including but not limited to war, riot, invasion, act of terrorism, contamination, earthquake, flood, fire, or other natural disaster, or any other event or circumstance beyond our reasonable control).
12.12 We will have no liability, and you waive and release us from any liability, for any delays (including any costs arising out of any delays) in providing any work or services (including repairs) under this Warranty, or in assessing any claim made by you under or in relation to this Warranty.
12.13 This Warranty applies solely to the original purchaser of the Goods and is non transferrable.
13. LIABILITY, INDEMNITY & EXCLUSIONS
13.1 You are responsible for the acts or omissions, or the goods or services provided by Your Personnel and you agree to ensure they cooperate with us and do not interfere with our supply of the Goods.
13.2 You agree that any works, goods or services provided by you or Your Personnel (Your Items) will be:
(a) provided solely at your own risk, and you agree that we will assume no responsibility or Liability for Your Items;
(b) fit for purpose, of merchantable quality and compliant with all applicable laws; and
(c) sufficient to enable us to comply with our obligations under these Terms and all applicable laws.
13.3 Exclusions: Despite anything to the contrary, to the maximum extent permitted by law, we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by (whether directly or indirectly):
(a) acts or omissions of you or your personnel;
(b) your breach of these Terms, any law or third-party rights;
(c) any information, documentation, specifications or directions given by you or your Personnel;
(d) Your Items; and
(e) any event or circumstance beyond our reasonable control.
13.4 Indemnity: Despite anything to the contrary, to the maximum extent permitted by law, you are liable for, and agree to make good, indemnify us and hold us harmless in respect of, any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:
(a) acts or omissions of you or your Personnel;
(b) any breach by you or your Personnel of these Terms;
(c) Your Items; and
(d) any information, documentation, specifications or directions given by you or your personnel.
13.5 Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law and subject to your Statutory Rights:
(a) we will not be liable for any Consequential Loss; and
(b) our liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of you or any of your Personnel;
(c) our maximum aggregate Liability in relation to the provision of the Goods or these Terms will be limited to us resupplying the Goods to you or, in our sole discretion, to us repaying you the amount of the Price paid by you to us in respect of the provision of the relevant Goods to which the Liability relates.
13.6 This clause 13 will survive the expiry or termination of these Terms.
14.1 Kaolin Tiles Pty Ltd (Trustee) enters into these Terms only in its capacity as a trustee of Kaolin Tiles Trust (Trust).
14.2 Subject to clause 14.3, and despite any other provision of these Terms, a Liability arising under or in connection with these Terms is limited and can be enforced against the Trustee only to the extent to which the Trustee is indemnified out of the assets of the Trust.
14.3 The limitation set out in clause 14.2 does not apply where the Trustee’s right to indemnification is reduced or lost as a result of fraud, breach of trust or breach of duty by the Trustee.
14.4 This clause 14 will survive the expiry or termination of these Terms.
15.1 Governing Law and Disputes: These Terms are governed by the laws of Victoria. A Party may not commence proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
15.2 Force Majeure: If we are prevented (directly or indirectly) from supplying the Goods by reason of acts of God, strikes, lockouts, trade disputes, fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, act of war (whether declared or not), sabotage, insurrection, epidemic, pandemic, government sanctioned shutdown (including in relation to COVID-19), national emergency (whether in fact or in law), requirements of, restriction of, or failure to act by, any government, local body or judicial entity, breakdowns, delay in the manufacture of the Goods, the inability of our normal suppliers to supply Goods for any reason whatsoever, interruption of transport, government action or any cause whatsoever outside our control, we shall be under no Liability whatsoever to you and we shall be entitled, in our absolute discretion, to give notice to you to either cancel the contract or to extend the time for performance by us of our obligations.
15.3 Joint and Several Liability: Where you constitute two or more individuals or entities, you will each be jointly and severally liable under these Terms.
15.4 Photographs: If you provide us with photographs of the Goods including via email or by tagging us on social media, you consent to us publishing such photographs and details (including but not limited to your business name, location and date) for our marketing purposes including on our website and social media.
15.5 Notices: Any notice given under these Terms must be in writing and when sent by you, addressed to our email address at the end of these Terms and when sent by you, addressed to the relevant address last notified by you to us. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
15.6 Severance: If any provision (or part of it) under these Terms is held to be unenforceable or invalid in any jurisdiction, then it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) under these Terms cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from these Terms and the remaining provisions (and remaining part of the provision) of these Terms are valid and enforceable.
15.7 Website Terms: These Terms may be displayed on our website. For any order that has been accepted by us, the terms and conditions that apply will be the ones that were in effect (and which you agreed to) when you placed your order. We may, at any time and at our discretion, vary the terms and conditions on our website. Prior to placing an order, we recommend you carefully read the terms that are in effect at that time to ensure you understand and agree to them.
16. INTERPRETATION & DEFINITIONS
16.1 In these Terms:
Approval means any approval, consent, permit, application, registration or equivalent required to be obtained in connection with the Goods by any Authority or any law.
Authority means any national, State, Territory or local government departments, bodies, instrumentalities or other public authorities the approval of which is applicable to or necessary for the provision of the Goods.
Business Days means a day on which banks are open for general banking business in Victoria, excluding Saturdays, Sundays and public holidays.
Consequential Loss includes any consequential, special or indirect loss, damage or expense including any real or anticipated loss of revenue, loss of profit, loss of use, loss of occupation, loss of benefit, loss of financial opportunity, or economic loss whether arising out of a breach of these Terms, at law, under any statute, in equity, or in tort (including negligence).
Delivery Costs means the costs associated with the delivery or provision of the Goods from our warehouse, including any delivery, transportation, insurance, other such charges that may apply to the Goods.
Deposit means the deposit set out in the Quote.
Goods means the goods to be provided by us under these Terms, as expressly set out in the Quote.
GST means the Australian goods and services tax defined as “GST” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party or otherwise.
Personnel means our employees, consultants, suppliers, subcontractors or agents.
Price means the price set out in our Quote for the provision of the Goods.
Quote means the Quote (including any online Quote) to which these Terms are attached by reference.
Warranty is the warranty described in clause 12.
For any questions and notices, please contact us at:
Kaolin Tiles Pty Ltd as trustee for Kaolin Tiles Trust ABN 83 266 185 729
Email: [email protected]
Phone number: 02 8814 9447
These terms and conditions are valid since 25 September 2020.