Terms And Conditions
1.1 These terms and conditions ('Terms of Trade') shall apply to the supply of all goods ('Goods') by KH & KH Enterprises Pty Ltd ('NITO Tiles') to every customer of NITO Tiles. ('Customer') and to all quotations, purchase orders, invoices or other documentation concerning such Goods unless specifically agreed by NITO Tiles in writing.
1.2 The Customer, irrespective of whether it has an existing account with NITO Tiles at the date of notice of these Terms of Trade, shall be deemed to accept or have accepted these Terms of Trade unless NITO Tiles is notified in writing within seven (7) days of these Terms of Trade being notified to the Customer.
1.3 The Customer acknowledges that NITO Tiles will accept orders for Goods only upon these Terms of Trade.
1.4 These Terms of Trade shall apply to the exclusion of any other appearing on any invoice or other document of NITO Tiles which other terms and conditions shall be totally disregarded from the date of these Terms of Trade are notified to the Customer. No terms and conditions including any written on or attached to any purchase order or document or included or implied by law shall be binding upon NITO Tiles unless agreed in writing by NITO Tiles but nothing shall be deemed an attempt to exclude conditions applied by law which cannot be excluded by agreement.
1.5 The Customer shall be deemed to have been notified of these Terms of Trade two (2) days after being dispatched if sent by ordinary post to the address of the Customer as specified by the Customer when opening an account with NITO Tiles or such other address as has since been notified to NITO Tiles in writing.
1.6 Give that these Terms of Trade apply generally and exclusively to the supply of Goods to the Customer it shall not be necessary to include these Terms of Trade on any NITO Tiles orders, invoices or other documentation, as these Terms of Trade shall be deemed included therein.
2. Purchase Price
The price for Goods ('the price') shall be as specified on NITO Tiles's price list as amended from time to time and distributed to the Customer. Unless and except to the extent otherwise specified in writing by NITO Tiles the following shall apply:
(a) Unless otherwise agreed by NITO Tiles in writing, Goods are ex-factory in Melbourne and all costs of deliveries outside these areas shall be to the Customer's account. The Price does not include sales tax, or any other taxes, duties or imposts imposed on or in relation to the goods or services in Australia or overseas.
(b) NITO Tiles reserves the right to add any sales tax or other government levies to the Price of Goods effected at the rate ruling at date of delivery.
3. Methods & Terms of Payment
3.1 The Price is strictly payable in full by the due date ('the Due Date') being thirty (30) days from the date of the monthly statement delivered by NITO Tiles to the Customer ('the Statement'). Customers other than those with credit accounts, are required to pay in full prior to delivery of Goods.
3.2 NITO Tiles shall be paid in Australian dollars in cash, cheque, bank draft, irrevocable letter of credit, electronic transfer, credit card (plus merchant transaction fees) any agreed combination thereof, or in such other manner or currency as is approved by NITO Tiles in writing. Payment shall not be considered to have been made unless and until clearance of any cheques.
4. Default in Payment
4.1 Should the Customer default in payment of any part of the Price by the Due Date then without prejudice to any other rights NITO Tiles may have:
(a) Any other amounts outstanding by the Customer shall become immediately due and payable and shall be paid by the Customer to NITO Tiles.
(b) NITO Tiles may suspend, supply and/or delivery of any and all Goods to the Customer until receipt in full of all monies outstanding.
(c) NITO Tiles may retake possession of any Goods supplied by NITO Tiles to the Customer which it is acknowledged shall have remained the property of NITO Tiles by virtue of Clause 6 hereof.
(d) The Customer shall pay to NITO Tiles all reasonable costs of the default including all legal or other expenses incurred by NITO Tiles (on a solicitor-own-client basis).
(e) The Customer shall cease to be entitled to any discount allowed by NITO Tiles in respect of the goods and shall pay to NITO Tiles any further sum required.
(f) Charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic.) plus 2% cent for the period from the due date until the date of payment in full.
4.2 PROVIDED THAT NITO Tiles shall not be entitled to exercise any of the foregoing rights in this Clause until it has given to the Customer seven (7) days notice in writing of default in payment.
5. Provision of Credit
5.1 NITO Tiles may at any time and for whatever reason suspend, cancel, reduce or review a customer's credit facility upon written notice to the customer.
5.2 NITO Tiles may at any time request additional information or the provision of further security in relation to a credit facility and may suspend or cancel a credit facility if the information or security requested is not provided within a reasonable time.
6. Passing of Property
6.1 The property in any Goods shall not pass from NITO Tiles to the Customer but shall remain with NITO Tiles until payment in full of the Price and notwithstanding possession of the Goods may pass to the Customer unless NITO Tiles declares by notice in writing given to the Customer that property in the Goods has passed. Immediately upon giving such notice property in the Goods shall pass to the Customer and NITO Tiles shall be entitled to rely on property having passed for the purpose of maintaining an action to recover the Price of the Goods or for any other reason.
6.2 Customer hereby authorises NITO Tiles to enter onto its premises during normal business hours for the purpose of retaking possession of any Goods in respect of which payment has not been received by NITO Tiles after the expiry of the seven (7) days notice referred to in Clause 4.2 and may without notice, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of NITO Tiles and for this purpose the Customer irrevocable licences NITO Tiles to enter such premises and also indemnifies NITO Tiles from and against all costs, claims, demands or actions by any party arising from such action; and
6.3 The goods are held as fiduciary bailee and agent for the Supplier.
NITO Tiles reserves the right to request payment of a deposit with the placing of any particular order. Where such request is made NITO Tiles shall not be obliged to process the order until payment of the deposit.
8. Minimum Order
Orders placed with NITO Tiles shall be for full pallet load quantities of Goods. NITO Tiles reserves the right to specify or nominate minimum order quantities from time to time and to impose an additional surcharge on orders for a quantity of Goods which is less than the then current minimum orders requirement of NITO Tiles.
Any statement, specification, illustration, diagram, dimension, weight, performance or estimate given by or on behalf of NITO Tiles in regard to the Goods shall not form part of any order nor be regarded as a representation inducing an order.
10. Design & Specification
NITO Tiles reserves the right to modify, design and revise specifications at any time and in particular NITO Tiles may make substitutions during manufacture.
11. Colour & Shade Variation
11.1 The Customer acknowledges that shade variation is inherent in all kiln-fired clay products and is a natural characteristic of the type of Goods referred to hereunder.
11.2 NITO Tiles warrants that the colour of first quality Goods supplied by reference to a sample will substantially comply with the sample subject to the possibility of a shade variation referred to in paragraph (11.1).
11.3 NITO Tiles shall not be obliged to acknowledge claims in respect of shade variation after the Goods have been fixed or installed or claims in respect of Goods sold as second quality Goods.
11.4 NITO Tiles makes no other warranty with respect to the colour of the Goods.
12.1 Any time quoted for delivery is an estimate only. NITO Tiles shall not be liable for any loss or damage howsoever arising as a result or consequence of any failure to deliver or delay in delivery arising from any circumstances of whatsoever nature. NITO Tiles reserves the right to vary delivery, despatch or completion dates as necessary where delays beyond NITO Tiles control occur in completion or orders and the Customer agrees to accept delivery, despatch or completion on such dates are varied. If NITO Tiles determines that it is or maybe unable to deliver within a reasonable time or at all, the contract may be cancelled by NITO Tiles. In the event of cancellation the Customer shall have no claim against NITO Tiles for any damage, loss, cost or expenses of whatsoever nature or howsoever arising. NITO Tiles is not obliged to deliver the goods or any part thereof if the Customer is in default of any of its obligations or if the Customer appears to NITO Tiles to be unable to pay its debts. Should NITO Tiles be prevented from delivering goods at any time when they are available for delivery as a result of the Customer's instructions or default all additional expenses incurred by NITO Tiles for storing and handling the goods shall be for the Customer's account. If, in the terms of the contract, deliveries are to be effected on more than one date, then goods supplied on each delivery shall be deemed delivered in terms of a separate and divisible contract and if the Customer fails to effect payment of any amount due in respect of any part delivery then NITO Tiles shall be entitled, without prejudice to any other rights it may have, to suspend further deliveries and/or cancel the contract. Failure of NITO Tiles to deliver any instalments within a reasonable time of any estimated delivery date shall not entitle the Customer to cancel the balance of the order. NITO Tiles delivery records shall be prima facie proof of delivery of the Goods of the quantity and description stated therein in good order to the Customer and his receipt thereof notwithstanding the absence of any representative of the Customer at the delivery site upon delivery.
12.2 Paragraph (12.1) hereof shall apply in every instance unless otherwise agreed by NITO Tiles in writing.
13.1 Orders cannot be cancelled without NITO Tiles consent and upon terms that will indemnify NITO Tiles against all losses. Goods ordered in error or in excess cannot be returned to NITO Tiles for credit or exchange except by special arrangement. Orders or balances of orders may be cancelled at NITO Tiles option in the event of any failure by the Customer to adhere to the terms of the Contract.
13.2 If, through circumstances beyond the control of NITO Tiles, NITO Tiles is unable to supply the goods or services, then NITO Tiles may cancel the Customer's order (even if it has already been accepted) by notice in writing to the Customer. NITO Tiles will be under no liability to the Customer or any third party for any damages or losses, direct or indirect, resulting from such cancellation.
The Customer acknowledges that the Goods delivered to it may be loaded on pallets hired by NITO Tiles. In such event the Customer undertakes to deliver to such hirer an equal number of pallets as delivered to the Customer forthwith upon the Goods being delivered to the Customer. Should any pallet not be delivered to such hirer for any reason NITO Tiles reserves the right to invoice the Customer for the cost of the same which monies shall be paid to NITO Tiles by the Customer on receipt of the invoice.
Goods returned without NITO Tiles written permission will be refused and will remain at the Customer's risk and expense. If written permission to return the Goods has been obtained the cost of the return will be borne by the Customer. A credit will only be given for returns where the Goods are received in first class order and condition; a testing and/or re-handling fee will be charged to the Customer's account where applicable.
Packing or crating when it differs from that required in the normal course of NITO Tiles business will be charged to the Customer's account at NITO Tiles discretion.
Notwithstanding any other provision in these terms and conditions the risk of loss or damage to the Goods shall pass to the Purchaser when the Goods leave NITO Tiles store as defined in paragraph 2(a) hereof.
18.1 The Customer shall promptly examine all Goods delivered and shall notify NITO Tiles within seven (7) days of the date of delivery of any items that are not in accordance with the quantity, general specifications or description of the Goods ordered. NITO Tiles shall authorise the return, whereupon the Customer may return or arrange for the return of the Goods to NITO Tiles in exchange for new Goods of identical specification or for credit. NITO Tiles shall not be obliged to allow or accept any returns unless the foregoing procedure is complied with and the Customer provides any documentation required by NITO Tiles.
18.2 The foregoing provisions shall be equally construed as applying to Goods delivered by NITO Tiles to the Customer as replacement for rejected Goods. Unless otherwise agreed in writing by NITO Tiles and the Customer, NITO Tiles shall be responsible for the cost of freight, delivery, packing and insurance in respect of return of rejected Goods.
19.1 NITO Tiles warrants that its first quality goods will be free from defects in materials and workmanship for a period of 7 years beginning on the date of the purchase of the goods from NITO Tiles or any wholesale or retail supplier of NITO Tiles goods.
19.2 NITO Tiles liability under this warranty is limited to repairing or replacing any products that NITO Tiles accepts are defective and covered by this warranty
19.3 In order to make a claim under this warranty, a person must:
(a) refrain from removing products which have been laid or installed without first receiving the prior written consent of NITO Tiles;
(b) allow NITO Tiles, its employees or agents to inspect the products and take samples;
(c) provide any information requested by NITO Tiles in relation to the products or the laying or installation of the products.
19.4 This warranty does not cover any products with defects arising out of or due to:
(a) the products being repaired, modified or altered by a person who is not an employee or agent of NITO Tiles;
(b) misuse, physical abuse, neglect, or accident, however arising;
(c) the products not being installed in accordance with relevant Australian Standards and NITO Tiles instructions;
(d) the products not being maintained in accordance with industry recommendations; or
(e) normal wear and tear
Under this warranty, the products are not defective if they meet accepted industry standards with respect to colour, size, tolerance or thickness, under this warranty is limited to repairing or replacing any products that NITO Tiles accepts are defective and covered by this warranty.
20.1 Where the Customer is a consumer for the purposes of the Trade Practices Act 1974 as amended ('the Act') or similar State or Territorial law it will have the benefit of all non-excludable statutory rights and remedies in respect to the Goods. Except to the extent of such non-excludable statutory rights and remedies these conditions supersede and exclude all other conditions and warranties whether expressed or implied by law and all prior agreements and representations. In all cases other than where the Goods are of a kind ordinarily acquired for personal, domestic or household use or consumption the liability of NITO Tiles for a breach of a term or condition implied by the Act or similar State or Territorial law (other than by Section 69 of the Act or corresponding Section of any similar State or Territorial Act or Ordinances) shall be limited at NITO Tiles option to:
(a) the replacement of the Goods or the supply of equivalent Goods,
(b) the repair of the Goods,
(c) the payment of the cost of replacing the Goods or acquiring equivalent Goods,
(d) the payment of the cost of having the Goods repaired
20.2 In the event of Section 74(H) of the Act or corresponding section of any similar State or Territorial Act or Ordinances applying to these terms and conditions then notwithstanding such Section in the case where the Goods are goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption the liability of NITO Tiles under the aforesaid Section shall be limited to the liability to pay to the Customer an amount equal to:
(a) the cost of replacing the Goods.
(b) the cost of obtaining equivalent Goods,
(c) the cost of having the Goods repaired
whichever is the lowest amount. Where to the extent that the Act or other legislation does not apply to these terms and conditions NITO Tiles shall have no other responsibility or liability whatsoever including without limiting the generality of the a foregoing any liability for negligence or any liability for consequential loss, however arising and all other conditions and warranties contained in and implied by any statute or rule of law are hereby expressly excluded and negated. Without derogating from the a foregoing it is expressly agreed that all rights, immunities and exemptions from liability in favour of NITO Tiles specified in these terms and conditions shall have and continue to have their full force and effect in all circumstances.
NITO Tiles will not be responsible for any promises, conditions, warranties or representations made by any of its representatives employees or agents unless the same are expressly set out herein or given by NITO Tiles in writing and the Customer acknowledges that these Terms of Trade and such writing signed by NITO Tiles shall represent the whole Agreement between the parties to the exclusion of any other Agreement or understanding whatsoever.
Failure by NITO Tiles to insist upon strict performance of any term, warranty or condition of these Terms of Trade shall not be deemed a waiver thereof or of any rights that NITO Tiles may have and no express waiver shall be deemed a waiver or any subsequent breach of any term, warranty or condition.
23. Force Majeure
NITO Tiles shall not be liable for any failure to perform or delay in performance of the Contract due to strikes, fires, explosions, flood, riots, lock outs, injunction, interruption of transportation, accidents, inability to obtain supplies, war, governmental action or other circumstances beyond NITO Tiles reasonable control.
If any provision hereof is held or declared to be in violation of public policy or legally unenforceable void or voidable of invalid at law or in equity or in breach of any Act of Parliament then such provision shall be severable and of no force and effect and shall be deemed to be omitted without effecting the validity of the remaining provisions or any parts thereof which other provisions or part or parts thereof shall remain in full force and effect.
25.01 In the Terms of Trade and in the contractual relationship between the parties the singular shall be deemed to include the plural and vice versa and each gender shall include the other gender
25.02 These Terms of Trade and the contract between the parties are personal to the Customer and accordingly the Customer shall not assign its rights or obligations pursuant to these Terms of Trade without the written consent of NITO Tiles which consent may be withheld at the sole discretion of NITO Tiles.
These Terms of Trade and all matters concerning the business relationship between the Customer and NITO Tiles shall be governed the laws of the State of Victoria, Australia and the parties hereby submit to the exclusive jurisdiction of Victorian Courts for the conduct of any litigation.
Any notices concerning these Terms of Trade or the business relationship between the Customer and NITO Tiles shall be deemed to be properly served two days after being dispatched if sent by ordinary post to the address of the party as specified in the documentation and correspondence between the parties or such other address as shall be notified in writing, or instantaneously on transmission in the case of email, facsimile or telex transmissions or on www.nito.com.au website. Notification by NITO Tiles in a publication or in any newsletter or bulletin to the Customer shall be sufficient notice for the purpose of this clause.
28. Goods & Services Tax
28.1 For the purposes of this Agreement:
"GST" means any consumption tax imposed by government, whether at point of supply or at some other specified occurrence, by whatever name, and includes (without limitation) a goods and services tax, a broad based consumption or indirect tax and value-added tax; and "tax invoice" means a tax invoice which complies with the definition contained in section 29-70 of A New Tax System (Goods and Services Tax) Act 1999 or any amending legislation.
28.2 Each amount, of whatever description, specified as payable by the Customer to NITO Tiles under any Contract or Agreement is expressed net of GST. In addition to the amount payable, the Customer must therefore pay to NITO Tiles on demand, the GST payable by NITO Tiles in respect of that amount.
NITO Tiles is bound by the Privacy Amendment (Private Sector) Act 2000 and takes steps to ensure that all personal information obtained in connection with the Customers will be appropriately collected, stored, used, disclosed, transferred and destroyed in accordance with the National Privacy Principals. NITO Tiles requires that the Customer comply with the National Privacy Principles in connection with any personal information supplied to it by NITO Tiles in connection with any agreement between the Customer and NITO Tiles.