Terms and Conditions
01 - Definitions
1.1 - "Riali Tiles" shall mean Riali Tiles Pty Ltd T/A Riali Tiles, its successors and assigns or any person acting on behalf of and with the authority of Riali Tiles Pty Ltd T/A Riali Tiles.
1.2 - "Buyer" shall mean the Buyer -or any person acting on behalf of and with the authority of the Buyeras described on any quotation, work authorisation or other form as provided by Riali Tiles to the Buyer.
1.3 - "Guarantor" means that person -or persons-, or entity, who agrees to be liable for the debts of the Buyer on a principal debtor basis.
1.4 - "Goods" shall mean Goods supplied by Riali Tiles to the Buyer -and where the context so permits shall include any supply of Services as hereinafter defined- and are as described on the invoices, quotation, work authorisation or any other forms as provided by Riali Tiles to the Buyer.
1.5 - "Services" shall mean all Services supplied by Riali Tiles to the Buyer and includes any advice or recommendations -and where the context so permits shall include any supply of Goods as defined above-.
1.6 - "Price" shall mean the Price payable for the Goods as agreed between Riali Tiles and the Buyer in accordance with clause 4 of this contract.
02 - The Compettion and Consumer Act 2010 -"CCA"- and Fair Trading Acts -"FTA"
2.1 - Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
2.2 - Where the Buyer buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer's statutory rights.
03 - Acceptance
3.1 - Any instructions received by Riali Tiles from the Buyer for the supply of Goods and/or the Buyer's acceptance of Goods supplied by Riali Tiles shall constitute acceptance of the terms and conditions contained herein.
3.2 - Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
3.3 - Upon acceptance of these terms and conditions by the Buyer the terms and conditions are binding and can only be amended with the written consent of Riali Tiles.
3.4 - The Client shall give Riali Tiles not less than fourteen -14- days prior written notice of any proposed change of ownership of the Buyer or any change in the Buyer's name and/or any other change in the Buyer's details -including but not limited to, changes in the Buyer's address, facsimile number, or business practice-. The Buyer shall be liable for any loss incurred by Riali Tiles as a result of the Buyer's failure to comply with this clause.
3.5 - Goods are supplied by Riali Tiles only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Buyer's order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
04 - Price and Payment
4.1 - At Riali Tiles's sole discretion the Price shall be either:
a - as indicated on invoices provided by Riali Tiles to the Buyer in respect of Goods supplied; or
b - Riali Tiles's quoted Price -subject to clause 4.2- which shall be binding upon Riali Tiles provided that the Buyer shall accept Riali Tiles's quotation in writing within thirty -30- days.
4.2 - Riali Tiles reserves the right to change the Price in the event of a variation to Riali Tiles's quotation. Any variation from the plan of scheduled works or specifications -including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as hard rock barriers below the surface, iron reinforcing rods in concrete and asbestos, as a result of increases to Riali Tiles in the cost of materials and labour, or fluctuations in currency exchange rates- will be charged for on the basis of Riali Tiles's quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 - The Seller may submit detailed progress payment claims in accordance with the Seller's specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
4.4 - At Riali Tiles's sole discretion:
a - non-refundable deposit may be required.
4.5 - At Riali Tiles's sole discretion:
a - payment shall be due on delivery of the Goods; or
b - payment shall be due before delivery of the Goods.
4.6 - Time for payment for the Goods shalle be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven -7- days following the date of the invoice.
4.7 - Payment will be made by cash, or by cheque, or by bank cheque, or by credit card only Visa and MasterCard -plus a surcharge of up to two and a half percent -2.5%- of the price-, or by direct credit, or by any other method as agreed to between the Buyer and Riali Tiles.
4.8 - GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
05 - Delivery of the Goods
5.1 - At Riali Tiles's sole discretion delivery of the Goods shall take place when:
a - the Buyer takes possession of the Goods at Riali Tiles's address; or
b- the Buyer takes possession of the Goods at the Buyer's nominated address -in the event that the Goods are delivered by Riali Tiles or Riali Tiles's nominated carrier-; or
c - the Buyer's nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Buyer's agent.
5.2 - At Riali Tiles's sole discretion the costs of delivery are:
a - included in the Price; or
b - in addition to the Price and, where applicable, charged to the Buyer's account.
5.3 - The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then Riali Tiles shall be entitled to charge a reasonable fee for redelivery.
5.4 - Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
5.5 - The failure of Riali Tiles to deliver shall not entitle either party to treat this contract as repudiated.
5.6 - Riali Tiles shall not be liable for any loss or damage whatsoever due to failure by Riali Tiles to deliver the Goods -or any of them- promptly or at all, where due to circumstances beyond the control of Riali Tiles.
06 - Risk
6.1 - If Riali Tiles retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
6.2 - If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, Riali Tiles is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Riali Tiles is sufficient evidence of Riali Tiles's rights to receive the insurance proceeds without the need for any person dealing with Riali Tiles to make further enquiries.
6.3 - Where the Buyer expressly requests Riali Tiles to leave Goods outside Riali Tiles's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Buyer's sole risk and it shall be the Buyer's responsibility to ensure the Goods are insured adequately or at all.
6.4 - Tiles are not guaranteed against crazing, cracking, chipping or scratching.
6.5 - The Buyer acknowledges that:
a - variations of colour, shade and grain are inherent in all kiln fired products and natural stone. While every effort will be taken by Riali Tiles to match colour, shade or grain of product, Riali Tiles shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain between batches of product or sale samples and the final product supplied once the tiles have been fixed. Further, the Buyer acknowledges that all Goods are sold subject to their normal and natural colour variations and samples given or displayed are to be considered indicative only; and
b - optical hazing -which is a smoky, hazy, smudgy effect visible on the surface of the tile when a light source reflects at a certain angle across the surface of the tile- is an inherent characteristic of polished tiles, stemming mainly from the mineral content and manufacture of the tile. It is caused by light reflection, and bulk sunlight shining through large windows will increase the amount of haze visible. Subsequently, this will not allow the polished porcelain floor to have a mirror-like finish and such an expectation is unrealistic. Further, the Buyer acknowledges that this has no effect on the technical performance of the tile and therefore is not considered to be a defect. Optical hazing is primarily an aesthetic issue. Riali Tiles strongly advises the Buyer purchase tile samples to test in different locations, and under various lighting conditions, of the intended site, as Riali Tiles accept no liability in the event the Buyer is unhappy with their choice.
6.6 - Riali Tiles shall not accept any liability for tiles with any obvious faults or marks once the tiles have been fixed.
07 - Title
7.1 - Riali Tiles and the Buyer agree that ownership of the Goods shall not pass until:
a - the Buyer has paid Riali Tiles all amounts owing for the particular Goods; and
b - the Buyer has met all other obligations due by the Buyert to Riali Tiles in respect of all contracts between Riali Tiles and the Buyer.
7.2 - Receipt by Riali Tiles of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Riali Tiles's ownership or rights in respect of the Goods shall continue.
7.3 - It is further agreed that:
a - where practicable the Goods shall be kept separate and identifiable until Riali Tiles shall have received payment and all other obligations of the Buyer are met; and
b - until such time as ownership of the Goods shall pass from Riali Tiles to the Buyer Riali Tiles may give notice in writing to the Buyer to return the Goods or any of them to Riali Tiles. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease; and
c - Riali Tiles shall have the right of stopping the Goods in transit whether or not delivery has been made; and
d - if the Buyer fails to return the Goods to Riali Tiles then Riali Tiles or Riali Tiles's agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods; and
e - the Buyer is only a bailee of the Goods and until such time as Riali Tiles has received payment in full for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Buyer owes to Riali Tiles for the Goods, on trust for Riali Tiles; and
f - the Buyer shall not deal with the money of Riali Tiles in any way which may be adverse to Riali Tiles; and
g - the Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Riali Tiles; and
h - Riali Tiles can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer; and
i - until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products, the parties agree that Riali Tiles will be the owner of the end products.
08 - Terms and Conditions of Trade
Personal Property Securities Act 2009 - "PPSA" Poulton Properties Pty Ltd T/A Riali Tiles
8.1 - In this clause:
a - financing statement has the meaning given to it by the PPSA;
b - financing change statement has the meaning given to it by the PPSA;
c - security agreement means the security agreement under the PPSA created between the Buyer and Riali Tiles by these terms and conditions; and
d - security interst has the meaning given to it by the PPSA.
8.2 - Upon assenting to these terms and conditions in writing the Buyer acknowledges and agrees that these terms and conditions:
a - constitute a security agreement for the purposes of PPSA; and
b - create a security interest in:
- i - all Goods previously supplied by Riali Tiles to the Buyer -if any-;
- ii - all Goods that will be supplied in the future by Riali Tiles to the Buyer.
8.3 - The Buyer undertakes to:
a - promptly sign any further documents and/or provide any further information -such information to be complete, accurate and up-to-date in all respects- which Riali Tiles may reasonably require to:
- i - register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
- ii - register any other document required to be registered by the PPSA; or
- iii - correct a defect in a statement referred to in clause 8.3 a i or 8.3 a ii;
b - indemnify, and upon demand reimburse, Riali Tiles for all expenses incurred in registering a financial statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
c - not register a financing change statement in respect of a security interest without the prior written consent of Riali Tiles;
d - not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Riali Tiles; and
e - immediately advise Riali Tiles of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
8.4 - Riali Tiles and the Buyer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
8.5 - The Buyer hereby waives its rights to receive notices under sections 95, 118, 121-4-, 130, 132 -3-dand 132 -4- of the PPSA
8.6 - The Cusomter waives its right as a grantor and/or a debotr under sections 142 and 143 of the PPSA.
8.7 - Unless otherwise agreed to in writing by Riali Tiles, the Buyer waives its right to recieve a verification statement in accordance with section 157 of the PPSA.
8.8 - The Buyer shall unconditionally ratify any actions taken by Riali Tiles under clauses 8.3 to 8.5. Buyer's order and the Buyer agress to idemnify Riali Tiles against any action taken by a third party against Riali Tiles in respect of any such infringement.
09 - Security and Charge
9.1 - Despite anything to the contrary contained herein or any other rights which Riali Tiles may have howsoever:
a - where the Buyer and/or the Guarantor -if any- is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Riali Tiles or Riali Tiles's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Riali Tiles -or Riali Tiles's nominee- shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
b - should Riali Tiles elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify Riali Tiles from and against all Riali Tiles's costs and disbursements including legal costs on a solicitor and own client basis.
c - The Buyer and/or the Guarantor -if any- agree to irrevocably nominate constitute and appoint Riali Tiles or Riali Tiles's nominee as the Buyer's and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
10 - Defects
10.1 - The Buyer shall inspect the Goods on delivery and shall within two -2- days of delivery -time being of the essence- notify Riali Tiles of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford Riali Tiles an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Riali Tiles has agreed in writing that the Buyer is entitled to reject, Riali Tiles's liability is limited to either -at Riali Tiles's discretion- replacing the Goods or repairing the Goods except where the Buyer has acquired Goods as a consumer within the meaning of the Competition and Consumer Act 2010 -CWlth- or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer's discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
11 - Returns
11.1 - Returns will only be accepted provided that:
a - the Buyer has complied with the provisions of clause 10.1; and
b - Riali Tiles has agreed to accept the return of the Goods -prior to the Goods being returned-; and
c - the Goods are returned at the Buyer's cost, within two -2- days of the delivery date; and
d - Riali Tiles will not be liable for Goods which have not been stored or used in a proper manner; and
e - if the Goods are returned in a saleable condition with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
12 - Warranty
12.1 For Goods not manufactured by Riali Tiles, the warranty shall be the current warranty provided by the manufacturer of the Goods. Riali Tiles shall not be bound by nor be responisble for any term, condition, replresentation or warranty other than that which is given by the manufacturer of the Goods.
13 - Intellectual Property
13.1 Where Riali Tiles has designed, drawn or written Goods for the Buyer, then the copyright in those designs and drawings and documents shall remain vested in Riali Tiles, and shall only be used by the Buyer at Riali Tiles's discretion.
13.2 The Buyer warrants that all designs or instructions to Riali Tiles will not cause Riali Tiles to infringe any patent, registered design or trademark in the execution of the
14 - Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent -2.5%- per calendar month -and at Riali Tiles's sole discretion such interest shall compound monthly at such a rate- after as well as before any judgment.
14.2 In the event that the Buyer's payment is dishonoured for any reason the Buyer shall be liable for any dishonour fees incurred by Riali Tiles.
14.3 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify Riali Tiles from and against all costs and disbursements incurred by Riali Tiles in pursuing the debt including legal costs on a solicitor and own client basis and Riali Tiles's collection agency costs.
14.4 Without prejudice to any other remedies Riali Tiles may have, if at any time the Buyer is in breach of any obligation -including those relating to payment- Riali Tiles may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. Riali Tiles will not be liable to the Buyer for any loss or damage the Buyer suffers because Riali Tiles has exercised its rights under this clause.
14.5 If any account remains overdue after thirty -30- days then an amount of the greater of twenty dollars -$20.00- or ten percent -10%- of the amount overdue -up to a maximum of two hundred dollars -$200.00-- shall be levied for administration fees which sum shall become immediately due and payable.
14.6 Without prejudice to Riali Tiles's other remedies at law Riali Tiles shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to Riali Tiles shall, whether or not due for payment, become immediately payable in the event that:
a - any money payable to Riali Tiles becomes overdue, or in Riali Tiles's opinion the Buyer will be unable to meet its payments as they fall due; or
b - the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
c - a receiver, manager, liquidator -provisional or otherwise- or similar person is appointed in respect of the Buyer or any asset of the Buyer.
15 - Cancellation
15.1 Riali Tiles may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such notice Riali Tiles shall repay to the Buyer any sums paid in respect of the Price. Riali Tiles shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any loss incurred by Riali Tiles -including, but not limited to, any loss of profits- up to the time of cancellation.
15.3 Cancellation of orders for Goods made to the Buyer's specifications, imported specifically for the Client, or non-stocklist items will definitely not be accepted, once production has commenced.
16 - Privacy Act 1988
16.1 The Buyer and/or the Guarantor/s - herein referred tp as the Buyer - agree for Riali Tiles to obtain from a credit reporting agency a credit report containing personal credit information about the Buyer in relation to credit provided by Riali Tiles.
16.2 The Buyer agrees that Riali Tiles may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
a - to assess an application by Client; and/or
b - to notify other credit providers of a default by the Buyer; and/or
c - to exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and/or
d - to assess the credit worthiness of the Buyer.
16.3 The Buyer consents to Riali Tiles being given a consumer credit report to collect overdue payment on commercial credit -Section 18K-1--h- Privacy Act 1988-.
17 - General Terms and Conditions of Trade
Poulton Properties Pty Ltd T/A Riali Tiles - Terms Of Trade Page 2
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 If any provisions of these Terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
17.3 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Melbourne.
17.4 Riali Tiles shall be under no liability whatsoever to the Buyer for any indirect and/or consequential loss and/or expense -including loss of profit- suffered by the Buyer arising out of a breach by Riali Tiles of these terms and conditions.
17.5 In the event of any breach of this contract by Riali Tiles the remedies of the Buyer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.6 The Buyer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Buyer by Riali Tiles nor to withhold payment of any invoice because part of that invoice is in dispute.
17.7 Riali Tiles may license or sub-contract all or any part of its rights and obligations without the Buyer's consent.
17.8 The Buyer agrees that Riali Tiles may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Riali Tiles notifies the Buyer of such change.
17.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
17.10 The failure by Riali Tiles to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Riali Tiles's right to subsequently enforce that provision.