SKHEME PTY LTD - TERMS & CONDITIONS
1 THE AGREEMENT
- These Terms and Conditions and the material information and further conditions contained in the invoice to which this document is attached constitute the agreement between Skheme Pty Ltd (“Skheme”) and the customer as named on the invoice(“Customer”) for the supply from Skheme to the Customer of the products described on the invoice (“Products”).
- In the event of any inconsistency between these Terms and Conditions and the further conditions contained on the invoice, the further conditions on the invoice shall prevail.
- These Terms and Conditions and the invoice comprise the whole of the agreement between Skheme and the Customer (“the Agreement”), and all other conditions, representations or warranties not contained in these Terms and Conditions and the invoice shall not apply.
2 THE PRODUCTS
- The Products to be supplied by Skheme to the Customer are as specified in the invoice. The Customer acknowledges that:
- they are satisfied from their own enquires that the product specifications are correct and appropriate for the purposes for which the Customer requires the Products; and
- The quantity of Products specified has been calculated and verified by the Customer.
- Skheme does not accept any responsibility for either the specification of the Products, the calculation of the quantity required by the Customer. Any liability in respect of the supply of the Products is limited in the manner set out in this Agreement.
3 PAYMENT & TRADING TERMS
- The price payable by the Customer to Skheme for the purchase of the Products is as prescribed on the invoice.
- Except as provided in the invoice or as provided in clause 3.4, the price must be paid in full prior to delivery or collection of the Products.
- Where Products are ordered by a Customer in advance of delivery or collection, then the Customer must pay a 50% deposit of the price at the time that the order is placed, unless Skheme agrees to waive this At Skheme’s discretion, any such deposit shall be refundable on cancellation of the order if the Products are current floor stock carried by Skheme or if Skheme is not itself committed to the manufacturer/supplier to take up the order.
- Where Skheme agrees to grant credit to a Customer, in the absence of written agreement to the contrary the price must be paid in full within 30 days of delivery, failing which the Customer must pay interest to Skheme on the unpaid price calculated from the date for payment until the amount owing is paid at a rate of interest equivalent to the Westpac Bank’s indicator rate as at the final date for payment plus 2%.
- Where the terms of this Agreement specify that the Products are to be delivered by Skheme, then;
- The Customer must provide adequate directions to enable Skheme or its agents or contractors to effect delivery.
- Skheme will use reasonable endeavours to effect delivery within any time frame specified on the invoice but shall not be liable for any loss or damage suffered by the Customer for late delivery.
- Products will be delivered to the easiest option available to Skheme or it’s delivery contractor, being either the nature strip of the Customer’s household, building site or depot unless other specific delivery instructions are given (together “the Customer’s Site”) and are specified on the invoice. If entry to the Customer’s Site is required the Customer must ensure safe entry, sufficient access and a stable delivery pad. Skheme or it’s delivery contractor shall not be required to move any other materials or open and close gates to gain safe access to the Customer’s Site. Skheme and its delivery contractor may at their absolute discretion and without liability change the delivery point at the Customer’s Site if they are of the opinion that delivery as required by the Customer is unsafe or impractical. Skheme shall not be liable for any loss, damage or injury caused to the Products, persons or property during or as a result of delivery. The Customer indemnifies Skheme in respect of any claims for such loss, damage or injury as a result of entry to the Customer’s Site. If delivery other than to the Customer’s Site is required, Skheme shall be entitled to charge the Customer a reasonable handling fee for such a delivery.
- Skheme delivery, including unsigned delivery records shall be proof of delivery of the Product in good order, quality and the quantity specified on the invoice, and shall be evidence of receipt by the Customer.
- Skheme shall not be liable for inability or failure to deliver Products within specified time frame or at all for any reason.
- The Customer may remove or arrange for the removal of Products from Skheme’s premises at its cost.
- Where the Products are faulty or are damaged, Skheme may be required to accept return of Products only if a claim to return the Products is made by the Customer to Skheme within 48 hours of delivery, otherwise Products may be returned only at Skheme’s discretion. Skheme shall only accept return if the Products are undamaged, of merchantable quality and of the current batch and colour for such products. All returns, unless deemed to be faulty or damaged, shall be charged a handling fee of not less than 20% of the price of the return Products.
- The Customer acknowledges that save as permitted by clause 3.7 and Skheme’s discretion by clause 3.8, they have no right to return Products to Skheme or to claim any credit for returned or unused products.
- All other claims arising out of this contract must be notified in writing to Skheme within 7 days of the date of delivery or collection, and in any event prior to the use or installation of the Products.
4 INSTALLATION & USE
- The Customer acknowledges that prior to the Products being laid or installed, it is the Customer’s responsibility to check that the Product delivered is as specified on the invoice and is in a fit and proper state to be laid and installed. In the event that the Product is not as specified on the invoice and is not in a fit and proper state, it is the responsibility of the Customer to give notice in writing to Skheme that the Product is not in a fit and proper state to be installed. Once the Product is installed and laid, Skheme has no responsibility and the Product is deemed to be accepted as fit and proper.
- The Product must be laid or installed (including sealing) strictly in accordance with the manufacturer’s directions and guidelines and the relevant Australian Standard. Skheme shall not be liable for the Customer’s failure to install or lay in accordance with manufactures guidelines and Australian Standards.
- The Customer acknowledges that in the event that there are no manufacturer’s directions and guidelines to installation and use of the Products, the relevant Australian Standards will apply as the guideline for installation and use.
- The Customer does not rely in any way on Skheme in relation to the use, fixing and installation of the Products; Skheme is not liable for the works of any tradesperson in the installation of the Products, whether or not Skheme may have recommended the tradesperson to the Customer. The Customer should make its own enquiries as to the competency of any tradesman recommended by Skheme.
- The Customer acknowledges that the Product should be stored on level ground and under cover to avoid damage and staining and should not have any other product, machinery or items stored or leaning upon it.
- The Customer must once the Product has been laid properly clean and maintain the Product to avoid staining. Once laid Skheme will not be liable for any staining caused as a result of the installation process, failure to comply properly clean and maintain once installed or as a result of the storage of any items on the Product after installation.
5 WARRANTY PROVISIONS
- Skheme Warrants to the Customer that
- Skheme owns the Products and is free to sell them to the Customer.
- At the time the products leave Skheme’s control the Products are of merchantable quality, having regard to the grade and/or quality specified on the invoice.
- Where a condition specifying the purpose for which the Products are required is recorded on the invoice, the Products are, at the time they leave Skheme’s control, reasonably fit for that If no condition specified, then no warranty as to purpose is given.
- Where the Products are sold by reference to a generic description or to a sample as specified on the invoice, that the Products are, at the time they leave Skheme’s premises, reasonably consistent with that description or sample. If no generic description or sample is so specified, then no such warranty is given.
- Where the Products carry a manufacturer’s warranty, Skheme shall if and when required to do so use all reasonable endeavours to assist the Customer in getting the benefit of that warranty.
- Where the Products carry a manufacturer’s warranty, Skheme shall if and when required to do so, use all reasonable endeavours to assist the Customer in obtaining the benefit of that warranty.
- Warranties expressed or implied in this contract are subject to the following qualifications:
- Where Products are described as “Run of Kiln”, which means a mix of upgraded products of both first and second quality, those Products carry no warranty as to quality, colour and shape.
- Where Products are described as “Seconds” or “Second Quality” or “Commercial Grade”, this means Products are not warranted to be first quality and may be subject to colour and size variation and may also include such imperfections as chips and poor shape. Such Products carry no warranty as to colour, size or shape, or the absence of imperfections.
- Variations in colour and shade are inherent in fired clay, vitrified, porcelain, concrete stone and engineered stone products and are natural characteristics of such products. If the Customer wishes to match the characteristics of any Products, then it is their responsibility to either check the Products before purchase or to purchase sufficient quantities of the Product to permit selection and matching of the Products And allow for wastage.
- Unless otherwise stated in writing in the Products specification, the Products are not suitable for use in an environment which is exposed to chemicals, salt, salt air or seawater, and are not warranted for use in such environments.
- Apart from the warranties given in this clause and any other warranties implied by statute, Skheme gives no further warranties and the Customer acknowledges that in entering into this contract they have not relied on any warranties by or on behalf of Skheme which are not recorded in this Agreement.
- To the extent that the law permits, Skheme liability for any breach of warranty contained or implied in this Agreement and for any other breach of this Agreement is limited to in Skheme’s absolute discretion, one of the following;
- replacement of the Products or the supply of equivalent Products, excluding any associated works in effecting removal or lifting of the Product and relaying or fixing the replacement Products;
- repair of the Products; and
- payment of the cost of either replacing the Products, supplying equivalent Products or repairing the Products, excluding removal or lifting of the Product and relaying or fixing of the Product.
6 TITLE & RISK
- Skheme and the Customer agree that ownership of the Products remains with Skheme until Skheme has received all amounts owing for any and all Products supplied to the Customer; and all other obligations due to Skheme are met in respect of all contracts between Skheme and the Customer. In addition to any right of lien or other security to which Skheme may be entitled by law, Skheme is entitled to a general lien on all Products in Skheme’s or the Customer’s possession, even if the Products or some of them may have been paid for, against any amount outstanding under this Agreement or otherwise owing from the Customer to Skheme.
- The Customer consents to Skheme effecting a registration on the Personal Properties and Securities Register (“PPSR”) in relation to any security interest contemplated by this contract and the Customer agrees to provide all assistance reasonably required to facilitate this. The Customer waives any right to receive notice of a verification statement in relation to any registration on the PPSR.
- It is further agreed that:
- where practicable the Products shall be kept in the Customer’s possession until Skheme have received payment and all other obligations of the Customer are met;
- until such time as ownership of the Products passes from Skheme, Skheme may give notice in writing to the Customer to return the Products to Skheme. Upon such notice the rights of the Customer (or any third party) to obtain ownership or any other interest in the Products shall cease;
- Skheme shall have the right of stopping the supply of the Products where any amount due to Skheme is outstanding;
- if the Customer fails to return any Products to Skheme then Skheme (or its agent) may enter upon and into land and premises owned, occupied or used by the Customer, where the Products are situated and take possession of the Products;
- the Customer is only a bailee of the Products and until such time as Skheme has received payment in full for all Products then the Customer shall hold any proceeds from the sale or disposal of the Products (and any insurance proceeds of such proceeds), up to and including the amount the Customer owes to Skheme for the Products, on trust for Skheme; and
- the Customer shall not deal with the money of Skheme in any way which may be adverse to Skheme; and
- the Customer shall not charge the Products in any way nor grant nor otherwise give any interest in the Products while they remain the property of Skheme; and
- Skheme can recover from the Customer the Price of the Products sold notwithstanding that ownership of the Products may not have passed.
- Notwithstanding that Skheme retains ownership of the Products, all risk for the Products passes to the Customer on delivery.
- If it is agreed between Skheme and the Customer that the Products will be sent by sea transit to the Customer, the customer must insure the Products from the date of the Skheme invoice.
7 GENERAL PROVISIONS
- If any provision of this contract is held to be invalid or unenforceable for any reason, then such provision shall be severable, and its severance shall not affect the enforceability of the remaining provisions of this Agreement.
- In this Agreement;
- words importing the singular shall import the plural, and words importing one gender shall import all other genders: and
- where the Customer comprises more than one party, those parties shall be bound by this Agreement jointly and each of the severally.
- This Agreement shall be interpreted according to the laws of New South Wales. The parties submit exclusively to the jurisdiction of the Courts of NSW to determine any dispute between them.
8 GOODS IN STORAGE
Upon Skheme providing notification to the Customer that goods are being held in storage on the Customer’s behalf, the Customer acknowledges that such goods will be held in storage for 30 days, after which such goods will attract a daily storage fee of $2 per pallet or part thereof, or $25 per slab or part thereof.
Any storage charges accrued under 8.1 will be added to the account and will need to settled prior to pickup of the goods.
Some tiles may require surface sealing prior to grouting and consultation with the manufacturer and your sales representative is advised. Sealer can be purchased separately. Any form of ceramic tile can be slippery especially when wet and all necessary precaution should be taken when used in areas where tiles are exposed to any liquids. Any product containing Crystalline Silica must be installed/fabricated using score & snap method and/or wet cutting in conjunction with AS/NZS 1716:2012, AS/NZS 1715:2009, AS/NZS 60335.2.69:2017. For more information please refer to: www.safework.nsw.gov.au/hazards-a-z/hazardous-chemical/priority-chemicals/crystalline-silica