TERMS & CONDITIONS OF CONTRACT

  1. These terms and conditions (“Terms”) and the material information and further conditions contained in the invoice to which these Terms are attached constitute a contract between Amber (as defined in the invoice) and the Customer (as described on the invoice) for the supply by Amber to the Customer of the Products described in the invoice.
  2. In the event of any inconsistency between these Terms and the further conditions contained in the invoice, the further conditions prevail.
  3. These Terms and the invoice comprise the whole contract between Amber and the Customer, who each acknowledge that there are no other conditions, representations or warranties which apply to the contract between them.

THE PRODUCTS

  1. The Products to be supplied by Amber to the Customer are as specified in the invoice. The Customer acknowledges that:
    • (a) He/she is satisfied from his/her own enquiries that the specification of the Products is correct, and appropriate for the purposes for which he/she requires the Products; and
    • (b) The quantity of Products specified has been calculated and verified by the Customer and is the correct quantity to be ordered.
  2. Amber does not accept any responsibility for the calculation or the quantity of Product required, and its liability in respect of the supply of the Products is limited in the manner set out in these Terms.

PAYMENT & TRADING TERMS

  1. The price payable by the Customer to Amber for the purchase of the Products is as prescribed in the invoice.
  2. Except as provided in the invoice or as provided in clause 9, the price must be paid in full prior to delivery or collection of the Products.
  3. Where Products are ordered by a Customer in advance of delivery or collection, then the Customer must pay a minimum deposit of 50% of the price at the time the order is placed, unless Amber agree to amend this requirement. At Amber’s discretion, any such deposit is refundable on cancellation of the order if the Products are floor stock of a still current batch carried by Amber or if Amber is not itself committed to the manufacturer/ supplier to take up the order or incurs any cost in dealing with the order until cancellation. To the extent permissible by law, any costs incurred by Amber in relation to the order prior to cancellation will be passed on or deducted from any refund issued to Customer.
  4. In any case where Amber agrees to grant credit to a Customer, in the absence of special arrangements to the contrary recorded in writing, the price must be paid in full within 30 days of delivery, failing which the Customer must pay interest to Amber on the unpaid price computed from the final date for payment until the amount owing is duly paid at a rate of interest equivalent to the NAB Bank’s indicator rate as at the final date for payment plus 2%
  5. If the Customer fails to comply with these terms of payment then Amber shall be entitled to treat such failure as a fundamental breach of contract and to treat the contract as repudiated.

STORAGE OF PRODUCTS AND APPLICABLE TERMS

  1. Amber may (at its discretion) hold or store Products for the Customer in advance of delivery or collection as requested by Customers, but the Customers must take delivery or collect Products by the end of the month following the month the order is placed.
  2. 100% payment for the Products will be required prior to Amber holding or storing any Products beyond the period specified in clause 11
  3. When a customer requests "Longer Term Storage" beyond the terms of clause 11, Products are deemed delivered when payment is received for Products and Longer Term Storage is agreed to commence. Otherwise, delivery occurs when the period specified in clause 11 expires or when delivery occurs in accordance with clause 17, whichever occurs earlier.
  4. Some Amber stores may hold Products up to 90 days from order (cost may apply). Any Products not delivered or collected within 180 days by the Customer from the date of order will be deemed to be dead orders, and unless the Customer agrees to accept immediate delivery at 180 days, Amber will be entitled to return Products to stock or otherwise dispose of the stock and cancel the order.
  5. To the extent permissible by law, refund (if any) will be at Amber discretion, depending on circumstances of order and stock.
  6. Cancellation of any orders that are subject to Longer Term Storage will only be accepted in certain agreed circumstances, and are subject to 50% cancellation fee, as it is likely that Products will be from a different batch to current stock and/or unable to be returned to stock or otherwise resold and storage costs may apply

DELIVERY

  1. Where these Terms specify that the Products are to be delivered by Amber, then;
    • (a) The Customer must provide adequate directions to enable Amber or its agents or contractors to affect delivery.
    • (b) Amber will use reasonable endeavours to affect delivery within any time frame specified on the invoice at the t of delivery (as specified by the Customer in the order), which is subject to the driver's ability to unload the Products(including but not limited to access and safety), in the driver’s discretion.
    • (c) Products will be delivered to the nature strip of the Customer’s household, unless other specific arrangements have been made and are specified on the invoice. If delivery other than to the nature strip is required, Amber shall be entitled to charge the Customer a reasonable additional fee for such a delivery. If entry to the Customer’s site is required, Amber shall not have any liability for loss, damage or injury caused by such entry, and the Customer must indemnify Amber in respect of any claims against Amber for such loss, damage or injury.
    • (d) Amber's delivery records are proof of delivery of the Products in good order and of the quality and quantity specified on the invoice, and shall be evidence of receipt by the Customer notwithstanding the absence of any representation of the Customer at the point of delivery.
  2. Amber shall not be under any liability, for inability or failure to deliver Products, within specified time frames or at all, where such inability or failure is due to circumstances outside Amber’s control, including unavailability of Products from manufacturers or suppliers or access or safety issues associated with the unloading of the Products at the point of delivery.
  3. When the Customer removes or arranges for the removal of Products from Amber’s premises, all delivery costs shall be to the Customer’s account.
  4. Where the Products are faulty or are damaged or do not meet the specifications set out in the invoice, Amber may at its discretion, other than in the case of warranty or consumer guarantee claims, accept return of Products only if a claim to return the Products is made by the Customer to Amber within 48 hours of delivery.
  5. Claims in respect of faulty or damaged Products or Products which do not meet prescribed specifications must be made within 48 hours of delivery.
  6. All other claims arising out of these Terms must be notified in writing to Amber within (7) days of the date of delivery or collection, and in any event prior to the use or installation of the Products
  7. Return of Products, other than in the case of warranty or consumer guarantee claims, will:
    • (a) only be accepted by Amber if the Products are of merchantable quality and:-
      • (i) The Amber store has agreed to the return before it occurs,
      • (ii) Proof of purchase is provided,
      • (iii) Products are returned within 30 days of delivery or collection,
      • (iv) Products are still current (not discontinued) at time of return, and of current batch/shade, and
      • (v) Products are undamaged, in original packaging, and are not water damaged and/or have not been soaked in water.
    • (b). not be accepted if:-
      • (i) Products were sold as run of kiln, seconds, commercial or other special non-first quality grading, and/or
      • (ii) Products had been the subject of a special order, or ordered by Amber specifically for Customer and is not able to be returned to supplier.
  8. Acceptable returns are subject to a handling fee not less than 20%

INSTALLATION & USE

  1. To the extent permitted by law, the Customer agrees that once they lay the Products, they have accepted the quality of the Products and claims for incorrect Product or obvious physical defects or claims for unacceptable quality that are discoverable by inspection are waived by the Customer.
  2. The Customer acknowledges that it is essential that the Products be laid or installed strictly in accordance with the manufacturer’s directions and guidelines and the relevant Australian Standard. It is the Customer’s responsibility to ensure that this is done, and Amber bears no responsibility for Products’ failure caused by non-observance of any such directions, guidelines and standards.
  3. The Customer acknowledges that:
    • (a) he/she does not rely in any way on Amber in relation to the use, fixing, installation or incorporation of the Products; and
    • (b) Amber has no responsibility for the works of any tradespersons in the installation of the Products, whether or not Amber may have recommended a tradesperson to the Customer.

WARRANTY PROVISIONS

  1. Where the Products carry a manufacturer’s warranty, Amber shall if and when required to do so use all reasonable endeavours to assist the Customer in getting the benefit of that warranty
  2. Warranties expressed or implied in these Terms are subject to the following qualifications:
    • (a) Where Products are described as “Run of Kiln”, which means a mix of ungraded products of both first and second quality, those Products carry no warranty as to quality, colour and shape, and the Customer {01294560 v2} acknowledges that he/she is reliant solely on any warranty provided by the manufacturer.
    • (b) Where Products are described as “Seconds” or “Second Quality” or “Commercial Grade”, which means Products which are not warranted to be first quality, then Products may be subject to colour and size variation, and may also include such imperfections as chips and poor shape. Accordingly, such Products carry no warranty as to colour, size or shape, or the absence of imperfections.
    • (c) Variations in colour and shade are inherent in fired clay, concrete and stone products and are natural characteristics of such products. Products as displayed are representative of the actual product, but supply may vary with batch or other production or manufacturing variation. Paving products particularly may also vary within and between pallets, as manufacturing batches are very small. Stone products being natural products can substantially vary between display and product supplied. If the Customer wishes to match the characteristics of any Products then it is his/her responsibility to either check the Products before purchase or to purchase sufficient quantities of the Product to permit selection and matching of the Products.
    • (d) Tiles, Stone and Pavers are sold on the basis of covered square metres, and using the manufacturer’s suggested scale of quantities and joint allowance, or industry practice.
    • (e) Unless otherwise stated in writing in the Products specification, the Products are not suitable for use in an environment which is exposed to salt or salt air or seawater, and are not warranted for use in such environments.
    • (f) The customer acknowledges that "optical hazing" is an inherent characteristic of all polished tiles, which presents as a hazy or smoky finish on the tile, and is not a default. It is sometimes only visible in certain light or from certain angles, and does not affect the technical performance of the tiles, and Amber will not address claims for optical hazing unless they breach relevant Australian Standards
  3. Amber’s liability is limited, to the extent permissible by law and at the option of Amber:
    • (a) in relation to the Products, to:
      • (i) replacing the Products or the supply of equivalent Products;
      • (ii) the repair of the Products;
      • (iii) the payment of the cost of replacing the Products or of acquiring equivalent Products; or
      • (iv) the payment of the cost of having the Products repaired.
    • (b) in relation to services, to:
      • (i) the supply of the services again; and
      • (ii) the payment of the cost of having the services supplied again.
  4. To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms are excluded and Amber is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
    • (a) any increased costs or expenses;
    • (b) any loss of profit, revenue, business, contracts or anticipated savings;
    • (c) any loss or expense resulting from a claim by a third party; or
    • (d) any special, indirect or consequential loss or damage of any nature whatsoever caused by Amber’s failure to complete or delay in completing the order to deliver the goods.
  5. Any information provided regarding Slip Resistance of Tiles is passed on in good faith, and Amber cannot assume responsibility for testing or other information provided

TITLE & RISK

  1. Ownership, title and property of the Products remains with Amber until payment in full for the Products and all sums due and owing by the Customer to Amber on any account has been made. Until the date of payment:
    • (a) the Customer has the right to sell the Products in the ordinary course of business;
    • (b) until the Products have been sold by the Customer in the ordinary course of the Customer’s business, the Customer holds the Products as bailee for Amber;
    • (c) the Products are always at the risk of the Customer.
  2. If the Customer sells the Products to a third party, then the Customer must hold the proceeds of sale as trustee for Amber absolutely.
  3. If the Customer deals with the Products in a manner inconsistent with the preceding two clauses, then any costs incurred by Amber in retrieving the Products or the proceeds of sale thereof must be reimbursed by the Customer to Amber on demand.
  4. Notwithstanding that Amber may retain legal title to the Products after delivery and pending payment of the purchase price, risk in the Products shall pass to Customer on delivery by or collection from Amber.
  5. Risk in the Products also passes to the Customer for Products stored by Amber in a Longer Term Storage arrangement referred to in clauses 11 to 16 once those Products are deemed delivered.

PERSONAL PROPERTY AND SECURITIES ACT 2009 (Cth) ("PPSA")

  1. Defined terms in clauses 38 to 42 have the same meaning as given to them in the PPSA.
  2. The parties acknowledge that these Terms constitute a Security Agreement and give rise to a Purchase Money Security Interest (PMSI) in favour of Amber as Secured Party over the Products supplied or to be supplied to Customer as Grantor pursuant to these Terms.
  3. The Products supplied or to be supplied under these Terms fall within the PPSA classification of "Other Goods" acquired by the Customer pursuant to these Terms.
  4. The parties acknowledge that the Secured Party is entitled to register its interest in the Products supplied or to be supplied to the Grantor under these Terms on the PPSA Register as Collateral.
  5. To the extent permissible at law, Customer:
    • (a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by Customer, as Grantor, to Amber.
    • (b) agrees to indemnify Amber on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
      • (i) registration or amendment or discharge of any Financing Statement registered by or on behalf of Amber; and
      • (ii) enforcement or attempted enforcement of any Security Interest granted to Amber by Customer.
    • (c) agrees that nothing in sections 130 to 143 of the PPSA will apply to these Terms or the Security under these Terms;
    • (d) agrees to waive its right to do any of the following under the PPSA:
      • (i) receive notice of removal of an Accession under section 95;
      • (ii) receive notice of an intention to seize Collateral under section 123;
      • (iii) object to the purchase of the Collateral by the Secured Party under section 129;
      • (iv) receive notice of disposal of Collateral under section 130;
      • (v) receive a Statement of Account if there is no disposal under section 132(4);
      • (vi) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
      • (vii) receive notice of retention of Collateral under section 135;
      • (viii) redeem the Collateral under section 142; and
      • (ix) reinstate the Security Agreement under section 143.

GENERAL PROVISIONS

  1. If any provision of these Terms 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 these Terms.
  2. In this contract;
    • (a) words importing the singular shall import the plural, and words importing one gender shall import all other genders; and
    • (b) where Customer comprises more than one party, those parties shall be bound by this contract jointly and each of them severally.
  3. These Terms shall be deemed to be made in the jurisdiction in which Amber’s store is situated, and shall be interpreted according to the laws of that jurisdiction.
  4. Where an order for Products has been placed by a Customer by telephone or fax or an acceptable electronic format, that Customer acknowledges that he/she is aware that these Terms apply to the resultant contract with Amber.

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