Trading Terms and Conditions
Sweven Design Pty Ltd ACN 652 184 346 T/A Coco Tiles and Mosaics
(Herein “Coco Tiles and Mosaics”)
STANDARD TRADING TERMS AND CONDITIONS
1. Interpretation and General Terms
1.1 “Australian Consumer Law or ACL” means the Competition Consumer Act 2010.
1.2 “Customer” or “You” shall mean the person accessing Coco Tiles and Mosaics’ Website or named on any invoice provided by Coco Tiles and Mosaics to the Customer or You or as otherwise specified on these Terms and Conditions, being the person for whom Products and/or goods and services are provided, and includes any person acting with the apparent authority of the Customer.
1.3 “Goods” shall mean those goods and products of any kind described on the tax invoice issued to the Customer or requested by the Customer;
1.5 “Purchase Price” means the price (inclusive of GST) payable by the Customer to Coco Tiles and Mosaics for the Products and any services performed, including the amount as stated on any tax invoice issued to the Customer.
1.6 “Products” means the Products provided, or due to be provided to the Customer or services performed for the Customer of any kind, as requested by the Customer.
1.7 The singular number includes the plural and vice versa. Words importing the masculine gender only include the other genders. Words importing persons include companies and corporations and trusts and vice versa.
1.8 Where more than one person is the Customer, those persons shall be jointly and severally liable hereunder and each person comprising the Customer will be deemed to have the authority of all of them.
1.9 Where a Customer is the trustee of any trust, they are bound to these Terms and Conditions in their personal capacity, and as trustee of the relevant trust, and agree to exercise any rights of indemnity in favour of Coco Tiles and Mosaics.
1.10 Notwithstanding any change of the trading structure of the Customer, the Customer will remain liable for all Products provided or to be provided and Products requested by either the Customer or the Customer’s agents, employees or contractors and Coco Tiles and Mosaics may invoice the Customer directly for all charges incurred, until the Customer finalises all accounts with Coco Tiles and Mosaics and provides notice that the Customer no longer wishes to have an account.
1.11 Any order of Products or presumed order of Products or services will be a deemed acceptance of these Terms and Conditions.
1.12 If a provision of this document is illegal or unenforceable, then that word or those words are read down. If reading down is not possible, that word or those words are severed; and in any other case, the whole provision is severed, and the remainder of this document continues in force.
1.13 The failure for any period whatsoever of Coco Tiles and Mosaics to exercise any right or remedy which they may hereafter have at law against the Customer shall not be an abandonment or waiver of any right or remedy
2. Offer, Acceptance and Withdrawal, and Obligations of Coco Tiles and Mosaics
2.1 All quotations made by Coco Tiles and Mosaics, unless stated to be fixed, are estimates only. All orders are subject to acceptance by Coco Tiles and Mosaics and are irrevocable by the Customer. Subject to clause 2.2, by accepting orders to provide Products, Coco Tiles and Mosaics will devote its time and ability to providing the Products. Coco Tiles and Mosaics will use reasonable endeavours to provide the Products with reasonable care and skill. Wherever possible Coco Tiles and Mosaics will minimise the total costs to the Customer, however any parts ordered, obtained or used that cannot be refunded, returned or resold together with handling charges and other direct or indirect costs incurred will be charged to the Customer.
2.2 Coco Tiles and Mosaics may, at any time, refuse to provide any further Products or services, perform further Products or extend any credit, despite the acceptance of any offer or any application.
2.3 Notwithstanding termination of this agreement for whatever reason, all the provisions that are intended to operate or have effect after termination or expiration shall continue in full force and effect.
2.4 Without regard to the reason why this agreement ends, the Customer will pay Coco Tiles and Mosaics for all expenses incurred to the time the notice of termination is received by Coco Tiles and Mosaics (calculated proportionately to the nearest one hour of time spent by Coco Tiles and Mosaics in organising the Products and taking into account any specific materials ordered for the Customer which are not of a generic nature and cannot be resold as determined by Coco Tiles and Mosaics).
3. Time for completion of Products/goods, Delivery & Inspection
3.1 Whilst Coco Tiles and Mosaics will use reasonable endeavours to complete and deliver Products, or obtain Products for sale by the time specified to the Customer, Coco Tiles and Mosaics accepts no responsibility, and the Customer is not entitled to compensation or to bring any claim if the Products are not complete in the time specified because the Products are not available at the time specified, or at all. Coco Tiles and Mosaics is not liable for any loss to the Customer because of a failure to complete or deliver Products in these circumstances. For the avoidance of doubt, although Coco Tiles and Mosaics will use reasonable endeavours to procure the delivery of the products in a timely manner, it does not provide any guarantees as to estimated shipping and delivery times. Accordingly, You agree to release Coco Tiles and Mosaics from any claims arising from or in connection with estimated shipping and delivery times.
3.2 If Coco Tiles and Mosaics provides the Customer with a written quote as to an estimated date of completion of Products or delivery of Products, this clause applies. If the Products are not completed, or the Products have not arrived, within three (3) months of the date as quoted by Coco Tiles and Mosaics, then either party may terminate the engagement to perform the Products and/or supply services, unless the delay is due to an event beyond the reasonable control of Coco Tiles and Mosaics, whereby the completion of Products or delivery of the Products will be delayed until a reasonable time after such event. Any Products performed to that date, or Products supplied to that date, must be paid. Termination is the Customer’s only remedy.
3.3 The Customer will be notified when goods and/or Products are ready for collection/delivery. Should the Customer refuse, be unable to, or not take delivery of the Products within fourteen (14) days of being notified that the Products are available for delivery, Coco Tiles and Mosaics may retain any monies already paid by the Customer by way of pre-estimated liquidated damages, terminate the agreement between the parties and exercise any other rights available at law or under this agreement.
3.4 If the Products are to be delivered, you will ensure access at the delivery location. If there is no one present at the delivery location to receive the product, we will, unless instructed to leave the Product at a specific location at the delivery address, return the Product back to our premises (in which case you will be responsible for any additional return and re-delivery expenses). If you authorise Coco Tiles and Mosaics to leave the Product at a designated location within the delivery address, you acknowledge that the Product is left at your risk.
3.5 Where in any case a person who, so far as Coco Tiles and Mosaics is reasonably aware, has the authority to collect the Products, collects the same, Coco Tiles and Mosaics shall not be responsible for any loss or damage resulting, on the grounds that such person had in fact no such authority, even if payment has already been made. It shall not be an obligation of Coco Tiles and Mosaics to seek confirmation from the Customer of the person’s apparent authority; however it may choose to do so.
3.6 You agree and acknowledge that the risk in the Products will transfer from Coco Tiles and Mosaics to You either on collection by you of the product or delivery of the product to the address provided by you (whichever occurs first).
3.7 You or your agent, employee or contractor must conduct a thorough visual inspection of the Goods (individually) on delivery and prior to the laying, installing or use of the Goods to ensure that the Goods are appropriate as to type, size, quantity, appearance, colour, pattern, compliance with description or sales quote, suitability of purpose and any other characteristic of the Goods. If upon such inspection, any Goods are damaged, wrongly supplied or not in accordance with any tax invoice or these Terms and Conditions, the Customer may return those Goods in accordance with these Terms and Conditions.
3.8 The Customer must within two (2) days of delivery notify Coco Tiles and Mosaics in writing of any evident defect or damage, excess or shortage in quantity, or failure to comply with the description, sales quote or sample (where any of these were provided prior to acceptance of any quote or offer given from Coco Tiles and Mosaics to the Customer). The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification, the Customer must allow Coco Tiles and Mosaics to inspect the Goods within a reasonable time and the provisions of clause 8 will apply.
3.9 Subject to the provisions of clause 8, the Customer agrees that the act of laying, installing or use of the Goods constitutes the Customer’s full and unconditional acceptance and approval of all characteristics of the Goods in all regards
4.1 The Customer must pay the full purchase price of the Goods and/or Products immediately on purchase unless otherwise specified on any invoice provided by Coco Tiles and Mosaics to the Customer.
4.2 Unless otherwise agreed to between the parties in writing, where the Goods and/or Products are ordered specifically for a Customer, the Customer must pay 50% at the time they place an order. The balance 50% must be paid at the earlier of either collection or delivery.
4.3 Where Goods and/or Products are ordered pursuant to clause 4.2, the order cannot be cancelled once it has been made. For the avoidance of doubt, notwithstanding the cancellation or the purported cancellation of any order, the balance purchase price of the Goods and/or Products will become due and payable once the order arrives at Coco Tiles and Mosaics premises.
4.4 Interest will accrue on any amounts outstanding from the date payment is due, at the rate of 1.5% per month until payment is received.
4.5 A certificate signed by a Director, manager, accountant, secretary, or accounts manager of Coco Tiles and Mosaics in respect of any sale or delivery or price of any Products or the provision or price of any Products by Coco Tiles and Mosaics or the amount due and owing or payable to Coco Tiles and Mosaics in respect of the sale of or provision of Products or on any account whatsoever as at the dates set out in the certificate shall be prima facie evidence of the facts stated therein.
4.6 The term as to the payment shall be of the essence.
5.1 Notwithstanding the delivery of the Products or part thereof, all Products sold by Coco Tiles and Mosaics in the possession of the Customer, remain the sole and absolute property of Coco Tiles and Mosaics as full legal and equitable owner until such time as the Customer has paid Coco Tiles and Mosaics the full price of such Products together with the full price of all other Products supplied and services performed by Coco Tiles and Mosaics for the Customer (“all monies”).
5.2 The Customer acknowledges that they receive possession of and hold Products delivered by Coco Tiles and Mosaics solely as bailee for Coco Tiles and Mosaics until such time as all monies have been paid.
5.3 Until such time as the Customer becomes the owner of the Products, they will:
5.3.2 Ensure that the goods are kept in good and serviceable condition;
5.3.3 Secure the goods from risk, damage and theft; and
5.3.4 Keep the goods fully insured.
5.4 The Customer may resell the Products only as a fiduciary agent of Coco Tiles and Mosaics, provided that such resale is at arm’s length and for market value. The Customer must not bind and has no authority to bind Coco Tiles and Mosaics to any liability with any third party.
5.5 The Customer agrees that if they use the Products in a manufacturing process (which includes using the Products to manufacture other products or by incorporating the Products in or with other products) of its own or a third party, then the Customer holds such part of the proceeds of sale as relates to the Products on trust for and as a bailee and fiduciary agent of Coco Tiles and Mosaics, who will be entitled to payment on demand. ‘Such part’ shall be deemed to equal in dollar terms the amount owing by the Customer at the time the Products are processed.
5.6 The Customer must hold the proceeds of any sale of the Products in a separately identifiable account for the benefit of Coco Tiles and Mosaics, who shall be entitled to payment on demand. Upon request, the Customer must assign its rights to receive the sale price in respect of the Products purchased to Coco Tiles and Mosaics.
5.7 If the Customer does not pay for any goods on the due date then Coco Tiles and Mosaics and its agents and employees are hereby irrevocably authorised by the Customer to enter the Customer’s premises (or any premises under the control of the Customer or as agent of the Customer in which the Products are stored) and use reasonable force to take possession of the Products without liability for the tort of trespass, negligence, assault or battery, or for any damage at all caused, or payment of any compensation to the Customer. Coco Tiles and Mosaics may then dispose of the Products or sell them in any way it deems fit.
6. Risk and Insurance
6.1 Risk in Products sold passes to the Customer upon notification by Coco Tiles and Mosaics to the Customer that the Products are ready for delivery or collection, or if a later time is mandatory by law, at such later time.
6.2 Where Coco Tiles and Mosaics leaves Products at the premises of the Customer, the Products are at Customer’s sole risk. The Customer should ensure that all insurance policies in respect of the Customer’s property are up to date, and adequate. Coco Tiles and Mosaics accepts no responsibility for damage, theft or loss to the Products left at the Customer’s premises.
7. Uncollected Goods
7.1 Coco Tiles and Mosaics may charge the Customer a fee equal to 2% of the price payable for the product per week if the Customer fails to collect or organise collection or delivery of the Products within 2 weeks of Coco Tiles and Mosaics notifying or attempting to notify the Customer that the Products are available.
7.2 If the Customer fails to make payment or fails to take delivery of the Products in accordance with clause 7.1 of these Terms and Conditions, then in addition to any other rights available, Coco Tiles and Mosaics may take any action allowable by the Disposal of Uncollected Goods Act 1967 (as subsequently amended, replaced or superseded).
7.3 In addition to Coco Tiles and Mosaics’ rights under clause 7.2 and subject to clause 7.1 of these Terms and Conditions, if any of the Customer’s Products are not collected or delivered, the amount recoverable from the Customer will be increased by the amount actually expended or incurred in transporting, storing, placing on hard stand, insuring and any other costs in Coco Tiles and Mosaics holding the Customer’s Products until they are collected or sold. In this respect, all advertising, selling, legal, Court and other costs are recoverable from the Customer and from the sale price of the Customer’s Products, on an indemnity basis.
7.4 If indebtedness to Coco Tiles and Mosaics is not satisfied within three months from any account/invoice falling due, Coco Tiles and Mosaics may without notice and without being liable for conversion (subject to the law), sell any of the Customer’s Products and goods by public auction or private treaty. The net proceeds of the sale shall be applied towards satisfying monies due to Coco Tiles and Mosaics, and any balance shall be paid to the Customer.
8. Return of Goods, Warranty and Characteristics of Products
8.1 Where Products supplied or services performed are subject to the Australian Consumer Law, then the Products come with guarantees that cannot be excluded under the Australian Consumer Law. If the Australian Consumer Law applies, then the Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage, and the Customer is 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.
8.2 In addition to any rights the Customer has at law, the Customer shall be entitled to the benefit of any warranty as described on Coco Tiles and Mosaics’ Website, Returns Policy or these Terms and Conditions.
8.3 Subject to the law, in order to be entitled to refund or replacement the Customer must make a valid claim with Coco Tiles and Mosaics within 3 business days after receiving the product.
8.4 Apart from those mandatory at law and those warranties specified on Coco Tiles and Mosaics’ Website, Returns Policy or these Terms and Conditions, no warranties are given to the Customer in respect of the Products supplied or the services performed, and Coco Tiles and Mosaics is not liable to the Customer or any other person for any loss or damage whatsoever. Warranties can only be claimed if full payment has been made.
8.5 Subject to the law, any repairs, maintenance or alterations performed on any Products by any person (including the Customer) other than Coco Tiles and Mosaics will cause any warranty to void immediately upon such acts being conducted.
8.6 To the extent possible, any valid claim by the Customer for the performance of a warranty or breach of a statutory obligation is limited to one of the following, at the election of Coco Tiles and Mosaics:
8.6.1 In the case of Products: A refund of the purchase price paid for the Products or the issue of a credit note, a replacement of the Products or supply of equivalent Products ,the repair of the Products or the payment of any of the aforementioned;
8.6.2 In the case of services: the performance of the services again, or the cost thereof.
However if the Products installed or replaced are more expensive, the Customer must pay the difference.
8.7 In relation to any services performed for the Customer by Coco Tiles and Mosaics which involve any artistic work, input, expression or styling, the Customer accepts and agrees that there may be differences to exactly what has been drawn for the Customer, or ordered by the Customer. Coco Tiles and Mosaics shall not be liable to the Customer for any difference in final result due to Coco Tiles and Mosaics exercising a degree of artistic or design creativity or expression, provided that Coco Tiles and Mosaics uses reasonable endeavours to perform the services in the manner as generally requested by the Customer.
8.8 The Customer acknowledges that Products, which are tiles, supplied by Coco Tiles and Mosaics may contain, display or be subject to any one or more of the following characteristics:
8.8.1 Crazing, spots, specks and blemishes;
8.8.2 Variations in colour, shade, size, pattern, veining, marking, texture, durability, density, size, weight, dimension, surface and finish, and may fade or change colour over time; and
8.8.3 Optical effects such as hazing or smudging at varying light sources and at differing angles.
8.8.4 Tiles may be non-rectified, being tiles that have a natural edge that has not been mechanically trimmed which results in each tile having a curved edge and the tiles will all have slightly different sizes.
8.9 As there is often a variance in the characteristics (as outlined in in clause 8.8) between batches of Products, Coco Tiles and Mosaics cannot and will not guarantee that those characteristics of different batches of the same Product will have the same or similar characteristics (due to the nature of the product). As such, you agree to release Coco Tiles and Mosaics from any claims in relation to variations to characteristics between different batches of the products.
8.10 The Customer acknowledges that Products which contain, display or are subject to any one or more of the characteristics referred to in clause 8.7 are not defective or of unacceptable quality by reason of any of those characteristics.
8.11 In addition to clause 8.8 and in conjunction with clause 8.9, the Customer agrees that Products will be deemed not to be defective if:
8.11.1 They are subject to minor omissions or minor defects which do not substantially affect normal use of the Products;
8.11.2 The Products are installed in buildings used for heavy industrial purposes or processes, allowing exposure to aggressive industrial environments;
8.11.3 The Customer fails to comply with the installation, use and maintenance guidelines provided by Coco Tiles and Mosaics or the manufacturer of the Products or any applicable Australian Standards or other set standards for products of the like;
8.11.4 Any faults or damages to the Products are caused or contributed to by the Customer, including by:
126.96.36.199 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;
188.8.131.52 Damage during transport, handling, storage, installation or subsequent installation;
184.108.40.206 Improper or inadequate storage, including exposure to moisture;
220.127.116.11 Failure to design, install, use or maintain the Goods in accordance with manufacturer’s directions and guidelines, and relevant Australian Standards;
18.104.22.168 Inappropriate use of or exposure to chemical agents, fumes, liquids or solids, including inappropriate mechanical polishing or acid cleaning; or
22.214.171.124 Contact with bitumen, soil, ash, fertilizer, moisture retaining substances, lead or copper or other metals; or
8.11.5 Any faults or damage to the Products caused or contributed by any natural disaster.
8.11.6 The Customer requires the Goods to have a specific slip rating and the Customer does not advise Coco Tiles and Mosaics of the slip rating required prior to requesting a sales quote or accepting an offer to supply the Goods.
8.12 The Customer agrees to permit Coco Tiles and Mosaics to inspect the premises at which the Products are or have been used as part of the warranty registration process and to inspect and/or conduct tests deemed necessary by Coco Tiles and Mosaics if a claim is made against Coco Tiles and Mosaics.
8.13 Unless other arrangements have been agreed upon in writing with Coco Tiles and Mosaics, the Customer is responsible for the installation of the products. Coco Tiles and Mosaics take no responsibility for any faults or defects in the installation of the product by a third party, and take no responsibility for the product once it has been varied. Accordingly, the Customer release Coco Tiles and Mosaics from any claims in relation to defects or issues with the Product arising in relation to installation or once it has been varied.
9.1 Upon the occurrence of a default by the Customer of any of these Terms and Conditions, without prejudice to any other right or remedy which is available to Coco Tiles and Mosaics, the Customer hereby indemnifies Coco Tiles and Mosaics against any costs, fees, charges and disbursements charged by any mercantile or collection agent or solicitor engaged for the purpose of the collection or recovery or attempted recovery of monies due and payable by the Customer to Coco Tiles and Mosaics on an indemnity basis and all such costs shall be recoverable as a liquidated debt.
9.2 Should the Customer die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy laws, or being a company, appoint an external controller, Coco Tiles and Mosaics may at its option notwithstanding its waiver of such default or failure and without prejudice to its other rights, suspend or cancel any current agreement with the Customer or require immediate payment of all monies notwithstanding the term of payment previously specified, in which case those monies will become immediately due and owing.
10.1 Coco Tiles and Mosaics may, in addition to any manner stated at law, serve notice on the Customer in the following ways:
10.1.1 By sending a notice by post to the Customer at the address as specified by the Customer or Customer’s agent/representative;
10.1.2 By emailing the Customer at the Customer’s email address as specified by the Customer or Customer’s agent/representative;
10.1.3 In the case of notifying the Customer that Products are ready for delivery, by emailing or telephoning the Customer or Customer’s representative and if they do not answer, leaving a message on the answering machine or voicemail service.
10.2 Notice will be deemed given in the case of post, on the second business day after posting, in the case of email, upon the email being sent (provided no undeliverable receipt is received) and in the case of phone when the conversation is had or message left.
11. Dispute Resolution
11.1 In the event of a dispute arising out of or in connection with these Terms & Conditions and which has not been resolved following discussions and negotiations between a person or persons appointed or authorised by Coco Tiles and Mosaics and the Customer, both parties undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing litigation, however the mediation/attempt at mediation need not last longer than 28 days.
12. Entire Agreement
13. Guarantee and indemnity
13.1 Upon acceptance of these Terms and Conditions, and where the Customer is a company, the Director or Directors of the Company must personally guarantee the Customer’s performance of any obligations under these Terms and Conditions or any other agreement entered between the Customer and Coco Tiles and Mosaics. The Director or Directors (referred hereon in this clause 13 as the “Guarantor”) agree to give this guarantee and indemnity to Coco Tiles and Mosaics, in consideration of it entering into these Terms & Conditions with the Customer.
13.2 The Guarantor:
13.2.1 hereby irrevocably and unconditionally guarantees to Coco Tiles and Mosaics the due and prompt performance by the Customer of all its obligations, under these Terms and Conditions, including any variation to them from time to time; and
13.2.2 as a separate undertaking, agrees to unconditionally and irrevocably indemnify Coco Tiles and Mosaics against all liability, damages, costs, expenses and losses (including indirect and consequential losses) of any kind and however arising (including penalties, fines, interest or legal fees on a full indemnity basis) which Coco Tiles and Mosaics may suffer as a result of:
126.96.36.199 Any default or breach by the Customer of these Terms and Conditions;
188.8.131.52 A breach by the Customer of a promise, representation, warranty or the like by the Customer in these Terms and Conditions, including any promise, representation, warranty or the like which was incorrect or misleading when made;
184.108.40.206 Any failure by the Customer to observe a term or obligation of these Terms and Conditions;
220.127.116.11 The Customer having no obligations, being relieved of any obligations or any obligations of the Customer becoming unenforceable under the Agreement.
13.3 The Guarantor will not be released from this guarantee by any arrangement made between Coco Tiles and Mosaics and the Customer or any other party with or without their consent. Such arrangement includes, but is not limited to, any variation in Coco Tiles and Mosaics’ or the Customer’s rights or obligations, or any forbearance, whether as to time, performance, or otherwise.
13.4 Coco Tiles and Mosaics shall be able to recover from the Guarantor all its costs and expenses of attempting to enforce these Terms and Conditions against the Customer and these Terms and Conditions against the Guarantor themselves.
13.5 The liability of the Guarantor shall not be affected by reason of the fact that these Terms and Conditions are void, voidable or unenforceable for any reason whatsoever, or is rescinded or terminated for any reason whatsoever.
13.6 Notwithstanding that as between the Guarantor and the Customer the Guarantor may be a surety only, if the liability of the Guarantor to Coco Tiles and Mosaics is in issue in proceedings:-
13.6.1 the Guarantor shall be deemed to be principal debtor and contractor jointly and severally liable with the Customer to discharge the obligations under these Terms and Conditions and this clause; and
13.6.2 the Guarantor shall not be entitled to raise any defence based upon an allegation (express or implicit) that its position as against Coco Tiles and Mosaics is that of promisor or surety
13.7 The Guarantor hereby waives all or any of its rights as surety (legal, equitable, statutory or otherwise) which may at any time be inconsistent with any of the provisions of this clause/guarantee.
13.8 Coco Tiles and Mosaics is not required to enforce its rights (or any of them) against the Customer under these Terms and Conditions or make any claim against the Customer in respect of a breach of these Terms and Conditions by the Customer or incur any cost or expense or take Court action in respect of such breach before enforcing its rights against the Guarantor.
13.9 If more than one person is the Guarantor they are bound jointly and severally.