1. Purchase and supply
1.1. You agree to purchase and we agree to supply all Goods and Services subject to these Terms and Conditions.
1.2. You will be bound by these Terms and Conditions upon:
(i) signing this document; and/or
(ii) placing a written or oral purchase order for our Goods and/or Services which we accept.
1.3. All invoices in respect of goods delivered shall be deemed to be accepted as a correct charge if, after seven days from the date of receipt of the invoice, you raise no objection to the invoice.
1.4. A minimum order value may be implemented and varied from time to time at Tarkett’s sole discretion.
1.5. If you place an order for indent product, once your order is confirmed the order and/or quantities cannot be cancelled or reduced. Special productions may be subject to a minimum order quantity and a tolerance on quantity which is up to 10% that will be supplied and invoiced to you.
1.6. If you place a back order with us, including a Powerbond back order, once the colours and quantities have been entered into our system, the full value of the order is payable by you, irrespective of whether you wish to cancel or reduce that order.
1.7. For Powerbond back orders, all products are supplied to the nearest roll size, which will be no more that 5% of the total quantity ordered.
1.8. If you are ordering air-freight stock, once the colours and quantities have been entered into our system, the full value of the order is payable by you, irrespective of whether you wish to cancel or reduce that order.
1.9. Air-freight and indent stock are forwarded on arrival into Australia to meet customers’ delivery date.
2.1. We may provide you with a Quote for the supply of Goods and/or Services.
2.2. If we provide you with a Quote, we are not obliged to supply the Goods and/or Services until the Quote has been accepted by you either orally or in writing.
3. Extension of Credit
3.1. Upon completion by you of an Application for Credit Account and Guarantee, we may, at our sole discretion, extend credit to you. You are not entitled to any extension of credit, nor the provision of Goods and/or Services, until you receive written notice from us stating that the credit facility has been granted.
4.1. Tarkett will deliver the Goods to the delivery address agreed with the Purchaser.
4.2. All orders will be delivered within 3 months of receipt by Tarkett of your order.
4.3. If you cannot take delivery of stock you may be invoiced storage fees. You must pay such storage fees within 7 days of receipt of that invoice.
4.4. A bailing fee will be charged as per Tarkett’s price list, including any packing and handling fee which will be applied to all sales per invoice/dispatch as per price list.
4.5. Delivery of Goods outside the metropolitan area will be:
(i) at the Purchaser's expense; and
(ii) to a carrier selected by Tarkett unless otherwise agreed between the parties.
4.6. The Purchaser agrees to accept, and / or that its carrier will accept delivery of the Goods during Business Hours.
4.7. To the extent permitted by law, Tarkett disclaims any and all liability for the acts, omissions and conduct (willful or otherwise), including negligence of the carrier.
4.8. Where the Purchaser requires the Goods to be delivered or available for delivery on a specified date, the Purchaser must clearly specify such date in both the ordering document and the Purchaser's confirmation order.
4.9. Tarkett will make all reasonable efforts to have the Goods delivered to the Purchaser on the date agreed between the parties. To the extent permitted by law, Tarkett excludes all liability should any or all of the Goods be delivered late.
4.10. Late delivery will not entitle the Purchaser to rescind the Agreement.
5.1. Payment of the Amount Due must be made at or prior to delivery, subject to clause 5.2.
5.2. At our absolute discretion, we may permit in writing payment of the Amount Due to us in full within 30 days of the statement of account.
5.3. You are required to pay the Amount Due for purchases with no deduction or set-off, subject to clause 5.4.
5.4. In the event of a dispute, the complete undisputed portion of the account must be paid to us in full within 30 days of the end of each month and the Dispute Resolution clause will apply.
5.5. In the event of non-payment of any amount, we may suspend further deliveries, require payment in advance for future deliveries or terminate this agreement in writing, with immediate effect.
6. Payment methods
6.1. All payments must be paid by credit card, electronic funds transfer or cheque.
6.2. Payments must be made without any deduction for fees or charges imposed by your bank and or any third parties.
6.3. Where Tarkett accepts payment from you by means of a credit card, Tarkett may charge an additional surcharge fee.
7.1. You agree to pay any GST applicable to any Goods and Services.
7.2. We will provide you with a Tax Invoice for the Amount Due if GST applies to any Goods and Services.
8.1. If you do not pay the Amount Due in full in accordance with these Terms and Conditions, then you must pay to us interest charged at National Australia Bank’s Benchmark Business Lending Indicator Rate, as published from time to time, plus 3% per annum on the balance of the Amount Due for the period from and including the due date for payment until the date that payment of the Amount Due is made in full.
8.2. You agree to pay any costs and expenses incurred by us in connection with exercising our rights for the recovery of the Amount Due under these Terms and Conditions, including but not limited to debt collection agent fees and commission and legal costs on an indemnity basis in bringing debt recovery proceedings or a claim for breach of these Terms and Conditions.
8.3. You agree that in the event of your failure to comply with your payment obligations under these Terms and Conditions, Tarkett is authorised to notify on-forwarders or contractors to hold supply. This notification will be reversed once you have brought the account back within the scope of these Terms and Conditions.
8.4. You agree to make good any loss incurred or suffered by Tarkett as a result of your failure to pay the Amount Due in full or your breach of these Terms and Conditions.
9. Retention of Title
9.1. Property in and ownership of the Goods shall not pass to you until payment of the Amount Due and any other amounts owing to Tarkett by you from time to time have been paid in full.
9.2. Tarkett retains equitable and legal title in the Goods until such title has passed.
9.3. Until title has passed, you take custody of the Goods and retain them as fiduciary agent of Tarkett (storing them separately in a manner which clearly identifies the Goods as the property of Tarkett). You must not affix or secure onto any premises the Goods or any part of them.
9.4. Upon demand you will immediately deliver the Goods to Tarkett and/or allow Tarkett, its employees or agents to enter upon any premises where the Goods have been stored (or where Tarkett suspects the Goods have been stored) to recover them.
9.5. You hereby indemnify Tarkett from and against any liability to any third party in respect of any claims, actions, proceedings, demands, costs, damages and loss arising from Tarkett exercising its rights under this clause.
9.6. If you sell the Goods prior to paying the Amount Due in full, you will hold all proceeds of sale from such Goods on trust for Tarkett and will keep such proceeds in a separate account until your liability to Tarkett is discharged.
10. Risk in the Goods
10.1. The risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods passes to you
(i) immediately upon delivery of the Goods to the agreed delivery address if such address is in the metropolitan area; and
(ii) upon delivery to the carrier if such address is outside the metropolitan area.
10.2. Until property in and ownership of the Goods passes to you, you must keep the Goods insured and produce to us, upon demand, evidence of such insurance. If you fail to insure the Goods, we may do so and the cost of such insurance shall be payable by you to us upon demand.
10.3. The Goods will be packaged for delivery and dispatched in good order. To the extent permitted by law, Tarkett excludes liability for any damage to the Goods sustained in transit.
11. Return of Goods
11.1. Returns within 7 days of purchase will be considered for credit at the discretion of Tarkett only if such returns are based on damaged or faulty stock or a Tarkett supply error.
11.2. The Purchaser may, at the Purchaser's own cost, return non-compliant Goods to Tarkett only:
(i) where Tarkett is obliged to accept them under the Australian Consumer Law; or
(ii) if the Goods were returned within 30 days of the date of delivery, and Tarkett authorises their return. If the Goods were returned more than 30 days from the date of delivery, the return will not be accepted.
11.3. Tarkett will only be obliged to accept such returned Goods, if they are:
(i) packaged in a manner which will ensure that the Goods are not damaged in transit;
(ii) clearly labelled, identifying the 'Permission to Return' number provided by Tarkett;
(iii) returned to Tarkett's receiving point in the Purchaser's state or territory, as set out on the relevant invoice; and
(iv) returned in the condition in which they left Tarkett's premises.
11.4. Where Goods are returned otherwise under clause 11.2, a fee of not less than 50% of the list price of the returned Goods applies to all returns.
11.5. To the extent permitted by law, Goods manufactured or produced to specifications may not be returned by the Purchaser. Tarkett will not accept them for credit.
13. Personal Property Securities Act 2009 (Cth) (“PPSA”)
13.1. In this clause, capitalised expressions have the meaning given to them in the PPSA.
13.2. You hereby:
(i) Acknowledge and agree that these Terms and Conditions constitute a Security Agreement for the purposes of the PPSA;
(ii) Grant a Security Interest to Tarkett in the Goods and any proceeds of sale in respect of those Goods;
(iii) Acknowledge and agree that each supply of Goods on credit terms is subject to this Security Agreement for the purposes of the PPSA and that Tarkett may register its Security Interest in the Goods and in the proceeds of sale of the Goods as a Purchase Money Security Interest on the Register.
13.3. You and Tarkett acknowledge and agree for the purposes of satisfying s 20(1)(iii) of the PPSA that the description of the Goods the subject of the Security Interest created under this Security Agreement is as set out in these Terms and Conditions and any invoice in relation to those Goods and the description of the Goods in any invoice is expressly incorporated into these Terms and Conditions.
13.4. You consent to Tarkett registering any one or more Financing Statement or Financing Change Statement in respect of any Security Interest created by or contemplated under these Terms and Conditions and undertake to do all things reasonably required by Tarkett to facilitate this.
13.5. You agree to pay, on demand by Tarkett, all costs incurred in connection with registering any Financing Statement or any Financing Change Statement and hereby indemnify Tarkett (and its agents) in respect of all such costs incurred.
13.6. You agree not to cause (directly or indirectly) the registration of a Financing Change Statement in respect of the Goods without Tarkett’s prior written consent.
13.7. You agree that the following provisions of the PPSA will not apply to these Terms and Conditions: section 95 (notice of removal of accession) to the extent that it requires the secured party to give a notice to the grantor; section 96 (when person with an interest in the whole may retain accession); section 121(4) (notice under section 120(2)); section 125 (obligation to dispose of or retain collateral); section 129 (disposal by purchase); section 130 (notice of disposal) to the extent that it requires the secured party to give a notice to the grantor; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
13.8. For the purposes of section 157 of the PPSA, you waive your right to receive notice of any verification statement in relation to the registration of a Financing Statement or a Financing Change Statement.
13.9. For the purposes of s 275(6) of the PPSA, Tarkett and you agree that neither party will, or is entitled to, disclose information of the kind specified in s 275(1) of the PPSA.
13.10. You agree that you will not enter into any agreement or arrangement which permits any other person to register any Security Interest in respect of the Goods, the proceeds of sale of the Goods, or any amounts owed in respect of the Goods without Tarkett’s prior written consent.
13.11. You agree to provide us with immediate written notice upon a change of your corporate details, such as organisation name, ABN, principal place of business, directors or a material change in shareholders.
14. Limitation of Liability
14.1. To the extent permissible under the Competition and Consumer Act 2010 (Cth), our liability for any breach of guarantee in relation to the supply of Goods arising under that Act is limited to, at our discretion:
(i) providing you with a refund; or
(ii) repairing or replacing the Goods.
14.2. To the extent permissible under the Competition and Consumer Act 2010 (Cth), our liability for any breach of guarantee in relation to the supply of Services arising under that Act is limited to supplying the Service to you again.
14.3. The maximum amount of refund that is payable to you in accordance with this clause is the amount which you have paid to us for the Goods.
15. Updating Terms and Conditions
15.1. We may update our Terms and Conditions from time to time and notify you by email.
15.2. If no email address is given or an email is returned unread, we will send you by ordinary mail either a copy of the updated Terms and Conditions or written notice of the change and a link to our website.
15.3. By placing a written or oral purchase order for our Goods and / or Services after we have updated our Terms and Conditions you accept such terms and conditions.
16.1. You agree that use of the Goods and Services is at your risk. To the full extent allowed by law, our liability for breach of any term implied into these Terms and Conditions is excluded.
16.2. All information, specifications and samples provided by us in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect your use of the Goods or Services will not entitle you to reject the Goods upon delivery, or to make any claim in respect of them.
16.3. Any advice, recommendation, information, assistance or service given by us in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty as to accuracy, appropriateness or reliability. We do not accept any liability or responsibility for any loss suffered as a result of your reliance on such advice, recommendation, information, assistance or service.
16.4. To the fullest extent permissible at law, we are not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms and conditions of trade, negligence, strict liability or otherwise, even if we have been advised of the possibility of damages.
17.1. If any party is entering into these Terms and Conditions as the Trustee of a trust, that party warrants and represents to the other party that:
(i) You are liable to us personally as well as in your capacity as Trustee;
(ii) all of the powers and discretions conferred by the deed establishing such trust are capable of being validly exercised by the party as trustee and have not been varied or revoked and the relevant trust is a valid and subsisting trust;
(iii) the party is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into these Terms and Conditions and that these Terms and Conditions are being executed and entered into as part of the due and proper administration of the trust for the benefit of the beneficiaries of the trust; and
(iv) there no restrictions on the party’s right of indemnity out of or lien over the trust’s assets exist or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trust’s assets.
18.1. Tarkett may terminate an agreement on 10 Business Days notice in writing if the Purchaser has not paid an invoice within 20 Business Days of its due date and has not disputed the invoice in good faith.
18.2. Either party may terminate an agreement on 10 Business Days notice in writing to the other if the other party commits a breach of an agreement and does not rectify the breach within 5 Business Days of issue of a notice of the breach.
19. Dispute resolution
19.1. Apart from legal action to recover a debt, if a dispute arises between you and us, one party must give the other party written notice of the dispute and the parties must endeavor to resolve the dispute immediately and in a co-operative manner prior to commencing legal or administrative proceedings.
20. Jurisdiction & governing law
20.1. These Terms and Conditions are governed by the laws New South Wales.
20.2. Notwithstanding the above clause, Tarkett shall have the exclusive right to nominate another jurisdiction in which any legal action is to be commenced and conducted.
21.1. Our records are conclusive about the Amount Due;
21.2. You may not assign any of your rights under these terms;
21.3. A waiver by us of any rights arising due to any breach, default or omission is only effective if it is in writing and shall not be deemed to be a waiver of any other unspecified rights.
22.1. Headings do not affect interpretation.
22.2. All references to the singular includes the plural and vice versa.
22.3. Person includes a firm or body corporate, an incorporated body, association or authority.
22.4. A reference to a person includes its executors, administrators, successors and permitted assigns.
22.5. And where two or more persons are a party, they are bound jointly and severally.
In these Terms and Conditions:
(i) “Amount Due” means the amount stated on any Invoice issued to you or the sum of all such Invoices;
(ii) “Goods” means any Goods we have supplied to you or will supply to you in the future;
(iii) “GST” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999;
(iv) “Nominated Account” means the bank account nominated by you in the direct debit request form;
(v) “Quote” means a verbal or written estimate of the amount to be charged by us;
(vi) “Services” means any Services we are to supply or have supplied to you;
(vii) “Tax Invoice” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999;
(viii) “Terms and Conditions” means these Terms and Conditions and any amendments to these Terms and Conditions made from time to time;
(ix) “We”/ “us”/ “our” means Tarkett Australia Pty Ltd; and
(x) “You” means the entity identified or intended to be identified on page 1 of these Terms and Conditions – Your Details.