Conditions of Sale
1. GENERAL PROVISIONS
1.1 It’s Design Furniture operates exclusively on the basis of the Terms and Conditions stated here.
1.2 Any agreements that include an alteration or amendment of these conditions including verbal agreements shall only be binding if It’s Design Furniture has given consent in writing.
1.3 All sales documents belong to It’s Design Furniture and are placed at the buyers disposal only for the time of the co-operation.
In these Terms and Conditions of Sale:
2.1 “we” or “us” or “the Company” means It’s Design Furniture Pty Ltd (ABN 80 003 189 062)
2.2 “you” or “buyer” means the Customer stated in the Application and any other person offering to contract with us on these terms and conditions or, where such person is acting in the course of employment, such person’s employer;
2.3 “Goods” means goods supplied by us to you from time to time including, but not limited to, goods described in any invoice we issue to you;
2.4 “Agreement” or “Contract” means the agreement for purchasing Goods and incorporates these Terms and Conditions of Sale as amended from time to time.
2.5 Where appropriate the singular shall include the plural, the plural the singular and where there are two or more persons comprised in the definition of the Customer, then the obligations imposed herein on the Customer shall be deemed to be joint and several.
3.1 You will purchase and we will supply Goods to you on the following Terms and Conditions of Sale. However, we are not obliged to supply Goods to you when requested to do so.
3.2 All additions and amendments to these Terms and Conditions must be in writing signed by us.
4. QUOTATIONS AND ORDERS
4.1 Any quotation or price list given by us to you does not constitute an offer to sell Goods to you. We reserve the right to alter the quote or price list without notice to you.
4.2 Trading terms set by the Customer shall only be recognised in the event that we expressly agree to these in writing.
4.3 Quotations are valid for thirty (30) days unless otherwise agreed by the Company in writing.
4.4 By ordering Goods, you are making a binding offer to purchase those Goods. We will notify you of our acceptance of your order in writing. Alternatively, our manufacture of Goods or delivery of Goods pursuant to your order shall be deemed acceptance of your offer to purchase.
4.5 We reserve the right to modify the design of Goods, and cease to manufacture or supply Goods without notice.
4.6 All specifications, drawings, descriptions and catalogues issued by, or on behalf of the Company are intended merely to give a general description of items supplied by the Company and any person reading them may not rely on anything contained as being a representation of fact concerning the Goods produced by the Company or a warranty relating to the Goods, whether as to their condition or otherwise.
4.7 The Company reserves the right to amend the order placed by the Customer and the Company will then advise the Customer who may within seven (7) days’ by written notice cancel the Contract. In all other cases of cancellation the Customer will be liable to the Company for all costs or work carried out and parts or materials ordered by the Company up to the date of cancellation.
4.8 The Company will not accept alterations to orders which are in production or complete.
5. PRICES, GST and FREIGHT
5.1 Unless otherwise expressly agreed in writing, the price of the Goods shall be the price specified in our invoice plus the amount which we are required to pay on account of any charges which may be levied by any government (domestic or foreign) plus any amount that reflects any increase in exchange rates, costs of labour, materials and overheads.
5.2 Unless otherwise expressed in writing, you are responsible for all freight costs. If you nominate a carrier, this must be advised to us in writing in the absence of which we will choose a carrier.
6.1 You agree that until we confirm that credit terms have been granted to you, all Goods are supplied on a cash before delivery basis.
6.2 Unless otherwise agreed in writing, you are required to pay within the agreed payment terms.
6.3 Payment will be considered as being made upon receipt of the money in our bank account.
6.4 You may pay by American Express, Visa and MasterCard. However, we reserve the right to charge a credit card handling fee for effecting payment by this method at the rate advised by us in the Schedule of Fees and Charges.
6.5 If the payment deadlines are exceeded by over fourteen (14) days, our claims from all deliveries are due immediately.
6.6 You agree that if you fail to pay in accordance with this clause 6.2, we may:
6.6.1 charge interest on the whole or any part of the monies outstanding on the invoice shall accrue at 5% above the Commonwealth Banks Corporate Overdraft Reference Rate monthly charging cycle rate per annum from and including the day after the time prescribed, and shall be compounded on a daily basis.
6.6.2 charge a dishonour handling fee at the rate advised by us in the “Schedule of Fees and Charges” where we are unable to obtain payment from your credit card provider or a cheque is not paid by your bank;
6.6.3 recover all collection costs and expenses incurred in collecting overdue accounts;
6.6.4 withhold supply;
6.6.5 sue for the money owing on the Goods.
6.7 Any forbearance by us in charging any of the fees set out in clause 6 does not constitute a waiver of our right to do so in the future.
6.8 Complaints do not constitute an entitlement to exceed payment dates.
6.9 Should retentions apply to the contract, an additional 3% will be applied to the total price.
6.10 Payment shall be in Australian Dollars, unless otherwise has been agreed in writing.
7.1 Whilst the Company shall make every effort to place the Goods at the disposal of the Customer in accordance with any times stated in the Contract, time shall not be of the essence in this regard.
7.2 We reserve the right to deliver Goods by instalments. Any delivery times notified to you are estimates only. If you request us to postpone delivery of the Goods beyond the delivery date or dates specified in your order, we may agree to do so if you agree to pay an additional fee for such postponement.
7.3 The Company is entitled to make delivery dependent upon advance payment of the Contract price.
7.4 If we do not receive delivery instructions sufficient to enable us to dispatch the Goods within fourteen (14) days of you being notified that the Goods are ready for delivery, you shall from the fifteenth day after notification:
7.4.1 be deemed to have taken delivery of the Goods;
7.4.2 be liable for storage charges outlined in the Schedule of Fees and Charges, payable monthly on demand;
7.4.3 assume risk in the Goods.
7.5 Unless the Company expresses delivery within the Contract all deliveries are ex works, and risk shall pass to the Customer when the Goods leave the Company’s premises. Otherwise, risk passes to the Customer on delivery.
7.6 The Customer is liable for all:
7.6.1 charges relating to the hand unloading, crane or tail-lift charges;
7.6.2 charges for specific equipment or specialised services; and
7.6.3 charges arising from failed delivery or re-delivery (including storage charges).
7.7 In the event that the Company’s Contract extends to including installation work it is on the basis that the site is free of other trades other than those involved in providing services to the furniture. The site must be clear and free from obstruction and unrestricted lift facilities must be available at no charge.
7.8 The dispatch of Goods can only occur promptly provided that we have been provided with all the necessary information for its manufacture on time. Delays in the receipt of colour samples and measurements, etc. Automatically result in an extension of the dispatch deadline.
8. CLAIMS AND LIABILITIES
8.1 Where the Customer is a Consumer, the Company will provide a remedy or refund for any Goods which:
8.1.1 are or become faulty through no fault of the Consumer,
8.1.2 are not fit for a stated purpose or a purpose the Consumer has made known to our sales personnel,
8.1.3 or at the Company’s option will arrange for the repair or replacement of the Goods, where practicable. The Consumer should retain a receipt as proof of purchase.
8.2 Where the Customer is not a Consumer:
8.2.1 Unless any complaints about the quality or quantity of Goods are received by the Company within fourteen (14) days of delivery the Customer shall be deemed to have accepted the Goods.
8.2.2 In order to claim any loss or damage, notification must be made to the Company, and the carriers within three days of receipt, and within fourteen days of date of despatch in the case of non-delivery.
8.3 Upon making a defect claim the Customer is by no means to use the Goods. In the event that the Goods have been used, the Customer is obliged to refund the Company for depreciation of the used Goods.
8.4 The Company will charge a re-stocking fee and/or handling fee where Goods are returned through no fault of the Company as outlined in the Schedule of Fees and Charges.
8.5 The Company will not accept claims for dissatisfaction with colour, grain, veining or texture of wood, marble and leather because of natural variations over which the Company has no control. This also applies to repeat orders.
8.6 Slight natural deviations in structure and shade are inevitable in sample materials due to the effects of light. This may result in deviations between sample and the finished product and is no case for claim by the Customer.
8.7 We are not liable for materials supplied to us by the Customer this includes but is not limited to flaws and defects in the material. In the case where the material provided in unsuitable a warranty claim is void. The Customer has to pay any additional charges that may arise due to unsuitable material including but not limited to rectification and complications in manufacture as a result of using the material provided.
8.8 The Company is not liable for any Goods that have been altered by the Customer or a third party without our prior written consent.
8.9 Without limiting clause 8.2, to the extent permitted by law, if the Customer does not issue legal proceedings within 120 days from the date the Customer became aware or should have been aware of circumstances giving rise to a claim under these conditions or in respect of the Goods, the Customer releases the Company from all causes of action in relation to such claims.
8.10 Subject to Clause 8 the Company shall be under no liability whatsoever in regard to the Goods or the services provided under the Contract and the provisions of this condition shall exclude any warranty or condition which might but for this condition be implied by statute, common law, custom or otherwise and the Company shall be under no further, or other liability whatsoever in respect of loss or damage caused directly or indirectly by any failure or defect in the design, performance, quality or condition of the Goods even if the same frustrates further performance of the Contract. In any event the Company’s liability in respect of the Goods or the services provided under the Contract proving defective shall be limited to the cost of replacement, repair or rectification unless the same shall relate to personal injury or death and only then and if to the extent that the same shall arise out of the Company’s negligence.
8.11 The Customer shall indemnify the Company in respect of any loss, injury, expense or claim of whatsoever nature and howsoever arising out of the Contract or the Goods, or their storage, installation, use, operation or maintenance save to the extent that the same is caused by the negligence of the Company.
8.12 If the Company is prevented, or delayed from, or in performing any of its obligations under the Contract by force majeure, which shall include but not be limited to strikes, lock-outs or other industrial action, whether or not by, or involving employees of the Company, then the Company may give notice in writing to the Customer or the circumstances constituting force majeure and of the obligation, performance of which is delayed or prevented and shall be excused from compliance with such obligations for as long as such circumstances may continue. If by virtue of this Clause either party is excused from compliance with any obligation for a continuous period of four calendar months then without prejudice to any other right or remedy either party may forthwith terminate the Contract by giving notice in writing to the other.
8.13 The Company shall not be liable in any circumstances whatsoever to the Customer for:
8.13.1 Any loss of profits or contracts suffered by the Customer.
8.13.2 Any loss or damage in circumstances over which the Company has no control.
8.14 Any claim by you as to breach of these Terms and Conditions must be made to us in writing within fourteen (14) days of delivery, for which time is of the essence.
8.15 If you do not notify us of any claim within fourteen (14) days of delivery, the Goods are deemed to be delivered by us and accepted by you in compliance with these Terms and Conditions.
8.16 You have the benefit of conditions, guarantees and warranties implied by the Competition and Consumer Act 2010 (Cth) (“the CCA”) and nothing in these Terms and Conditions is intended to exclude, restrict or modify any statutory obligation we have if that cannot lawfully be effected. References to specific provisions of and circumstances arising under the CCA are intended to include reference to equivalent or similar provisions of and circumstances arising under any State or Territory enactment.
8.17 Should we be liable for breach of a condition, guarantee or warranty implied by Schedule 2 of the CCA, our liability for the breach will, subject to Section 64A(3) of Schedule 2 of the CCA, be limited to one of the following as determined by us:
8.17.1 the replacement or repair of the Goods or the supply of equivalent Goods; or
8.17.2 the payment of the cost of replacing or repairing the Goods or of acquiring equivalent Goods.
8.18 Subject to any legislation to the contrary:
8.18.1 to the fullest extent permitted by law, all express and implied terms, other than the ones set out in these Terms and Conditions are excluded;
8.18.2 to the fullest extent permitted by law, we are not liable for any injury to or death of any person or loss (including loss of profits or consequential loss) or damage to property arising from any act or omission by you, us or any other person (including any loss or damage arising from our negligence);
8.18.3 you indemnify us against:
188.8.131.52 any claims made against us by any third party in respect of any loss, damage, death or injury; and
184.108.40.206 all losses and expenses which we may suffer or incur due to your failure to observe fully your obligations under the Agreement
8.18.4 we make no representation, warranty or undertaking about the compliance of the Goods with any statutory requirements relating to the marketing of Goods. You acknowledge that you alone are responsible for compliance of the Goods with this legislation.
8.19 We will not be responsible for non-delivery or delay in delivery of any Goods due to any cause beyond our reasonable control, notwithstanding that the cause may be operative at the time of entering the Contract of sale. Where such non-delivery or delay occurs, we may deliver the Goods not delivered or delayed at any subsequent time and you must accept and pay for them.
8.20 Where we give a date of intended delivery, this will be subject to the Goods ordered being available and our being able to make the delivery on that date.
8.21 The Company will not be liable for damage to the Goods which is caused by wear and tear, unsuitable, inappropriate use or application which is not in accordance with the Contract, incorrect assembly, excessive strain or inappropriate alterations, amendments and repair work carried out by the Customer or a third party, incorrect or negligent use, unless this has resulted from our own negligence.
8.22 The company will not any accept conditions related to Liquidated Damages.
9. RETURNED GOODS
9.1 Where Goods are returned to us, credit will only be issued under the following conditions:
9.1.1 You must provide the invoice number and date of purchase before a credit will be issued;
9.1.2 Goods shall be returned in original packaging or similar;
9.1.3 Goods have not been used and is subject to clause 8.3;
9.1.4 Notification of claim has been received by the Company and return has been authorised in writing.
9.2 All claims for credit must be supported by:
9.2.1 carriers consignment note or similar receipt of delivery;
9.2.2 our relevant invoice number;
9.3 Without in any way limiting our discretion to refuse to accept the return of any Goods, the following Goods will not be returnable:
9.3.1 any Goods that have been held by you for more than fourteen (14) days; or
9.3.2 any Goods which are not in original condition; or
9.4 Goods must be returned by the carrier specified by us.
9.5 You agree to pay us a restocking fee at the rate advised by us in the “Schedule of Fees and Charges”.
10. OWNERSHIP & RISK
10.1 Subject to clause 8, the risk of loss or damage to the Goods passes to you on the date and at the time that the Goods are delivered to your premises or at the date and time the Goods are collected from the Company’s premises.
10.2 Ownership of any Goods supplied by us will not pass to you until all amounts owing by you to us in respect of those Goods and all other Goods supplied by us have been received by us.
10.3 Until ownership passes to you, the Goods supplied are held by you for us as bailee and, if required, you will store the Goods so that it is clear they belong to us.
10.4 If you wish to resell any Goods before ownership passes, you may do so only by way of bona fide sale in the ordinary course of business and as our agent, but you must not represent to any other person that you are acting for, or have any authority to bind, us.
10.5 You will hold the proceeds of sale on trust for us and you must account to us for the proceeds of any sale of the Goods.
You hereby charge in favour of us:
11.1 any land that you own (or acquire after the date hereof) as security for any and all moneys owing to us and hereby authorise us to register a caveat over the land if you default in making payment of any amount due to us;
11.2 all your personal property including, without limitation, all the stock, motor vehicles, plant equipment and debtors that you own (or acquire after the date hereof) as security for any and all moneys owing to us and hereby authorise us to register, with any competent authority, including the register of personal property securities pursuant to the PPSA, the charge over the property if you default in making payment of any amount due to us.
12. SET OFF
You agree that:
12.1 we may set-off any credit amount that we owe to you against any debit due by you to us;
12.2 you are not entitled to withhold payment of any money in respect of any set-off or claim you might have against us.
13.1 Notwithstanding any other provision in these Terms and Conditions we warrant that any Goods sold by us will be free from defects under normal use for a period of twelve (12) months after delivery. This warranty does not cover any Goods which are not manufactured by us.
13.2 For the purpose of making any claim, you must immediately upon becoming aware of circumstances giving rise to a claim under this clause, notify us in writing setting out full particulars of the claim.
13.3 The warranty excludes wear and tear, unsuitable, inappropriate use or application which is not in accordance with the Contract, incorrect assembly, excessive strain or inappropriate alterations, amendments and repair work carried out by the Customer or a third party, incorrect or negligent use and will be applicable to faulty materials or workmanship.
14. ACTS OF DEFAULT
14.1 fail to pay for any Goods on the due date; or
14.2 otherwise breach this Agreement and fail to rectify such breach within seven (7) days notice; or
14.3 cancel delivery of the Goods; or
14.4 commit an act of bankruptcy; or
14.5 allow a trustee in bankruptcy or receiver and manager to be appointed to you or any of your property; or
14.6 allow distress to be levied or a judgment, order or security to be enforced, or to become enforceable against your property; or
14.7 are a company and:
14.7.1 proceedings are commenced to wind you up or any of your subsidiaries; or
14.7.2 a controller, receiver, administrator, liquidator or similar officer is appointed to you or in respect of any part of your property,
then we and our agents may enter upon your premises (doing all that is necessary to gain access) where Goods supplied under this Contract are situated at anytime and retake possession of any or all of the Goods we have supplied to you; and
14.8 we reserve the right to:
14.8.1 resell the Goods concerned; and
14.8.2 terminate the Agreement.
15.1 If we conduct a re-sale pursuant to clause 14:
15.1.1 we may do so at our premises or place; and
15.1.2 the re-sale may, at our discretion, be by public or private sale; and
15.1.3 we may recover from you as liquidated damages for our loss of bargain, the difference between the re-sale price and the unpaid price (together with any incidental damages, such as holding expenses and charges but less expenses saved as a result of your breach).
15.1.4 If applicable Goods cannot be sold within three (3) months of the first attempted sale, those Goods will be deemed to have a re-sale price of nil.
16. GOVERNING LAW
This Contract is governed by the laws of New South Wales. You and the Company irrevocably submit to the exclusive jurisdiction of the New South Wales courts and federal courts sitting in New South Wales.
17. WHOLE AGREEMENT
These Terms and Conditions of this Agreement embody the whole Agreement between the parties and, subject to the express terms contained in any written order or written acceptance thereof, all previous dealings, representations and arrangements are hereby excluded and cancelled.
18. CESSATION OF SUPPLY
Our Agreement to continue to deliver or sell Goods to you is always conditional upon our being satisfied of your ability to pay and comply with these Terms and Conditions. If we cease to be so satisfied we may suspend and/or terminate deliveries and shall not be liable in any way for any claim, damage, expense or cost suffered by you.
Should any part of these Terms and Conditions be held to be void or unlawful, these Terms and Conditions will be read and enforced as if the void or unlawful provisions have been deleted.
Except as required by law, this Agreement and subject to the PPSA, we and you agree to treat the terms of this Agreement as confidential.
21. INTELLECTUAL PROPERTY
We retain the right to ownership and copyright of drawings, cost proposals and other documentation passed over to the buyer. They must not be made accessible to third parties without our written consent. The Customer is responsible for the return, within fourteen (14) days, of all documents to the Company on demand.
22. DATA COLLECTION
The Customer agrees to the collection, processing and use of their personal data for the execution of orders and where applicable the deletion of personal data.
SCHEDULE OF FEES AND CHARGES
A Restocking fee calculated at ten percent (10%) of the invoiced value of the Goods returned with a minimum amount to be determined by us from time to time (exclusive of GST), where Goods are returned as a result of order errors made by the Customer. Over ordered Goods may not be accepted after fourteen (14) days from date of invoice. Made to order and special order Goods will not be accepted for return.
DISHONOUR HANDLING FEE
Where a cheque issued for payment of Goods or payment of a credit account is dishonoured by a Customer’s bank, the following dishonour handling fee (exclusive of GST) will apply;
- For invoice values under $1,000.00 a charge of $50.00 plus bank charges;
- For invoice values over $1,000.00 a charge of 5% of the face value plus bank charges will apply.
We reserve the right to charge interest on the whole or any part of the monies outstanding on the invoice shall accrue at 5% above the Commonwealth Banks Excess Drawing Interest Rate monthly charging cycle rate per annum (http://www.commbank.com.au/business/rates-fees/#excessdrawing) from and including the day after the time prescribed, and shall be compounded on a daily basis.
CREDIT CARD ADMINISTRATION FEE
A credit card administration fee of two and a half percent (2.5%) on the face value of the transaction will apply where payment of accounts is made by credit card outside agreed trading terms.
A logistics fee may be charged on orders for an amount to be determined by us from time to time – details are available on request.
If the Goods are stored at our site, at least 1% of the Contract price of the stored Goods will be charged per month.
If the Goods are stored off-site all relevant costs are liable by the Customer.