Terms and Conditions

TERMS AND CONDITIONS OF SALE


Unless the Company agrees in writing to any alteration or other condition, the Purchaser’s order is accepted subject to the following terms and conditions which apply to the whole or any executed part of an order.


OPERATIVE PART:

In these Terms and Conditions:-
“Company” means Three Balls Red Pty Ltd ABN 21603320627 of 2 / 85 Ashmore Rd Bundall Ashmore Qld, 4217.

“Company premises” means any location from which the Company conducts business.

“Purchaser” means the buyer or customer.

“Goods” means the tiles, lighting, or any related products together with any containers, packaging or pallets supplied by or on behalf of the Company.

1- QUOTATIONS AND ORDERS


Unless previously withdrawn, a quotation issued by the Company is valid for 30 days or such other period as stated in writing. Quotes provided during sale events are only valid during the sales period. A quotation is an invitation to the Purchaser to place orders with the Company, not to be construed as an obligation to sell and the Company reserves the right to withdraw the quotation at any time. The Company reserves the right to accept or reject in whole or in part any order of goods submitted to it by the Purchaser. Unless otherwise agreed in writing, all sales are made by the Company, at the Company’s ruling price for goods of that description at the time of purchase, any prior quotation shall be subject to alteration accordingly.


2- ORDER CANCELLATION

All cancellations must be notified in writing to the Company. All cancellations will attract a 20% cancellation fee. No cancellation of an order will be accepted after the dispatch of the Goods from the wholesaler’s warehouse. Orders for products which are not stock standard may not be cancelled. The Company may cancel any order which it cannot fulfill for any reason.


3- PRICE AND PAYMENT

a) All prices are net ex bulk warehouse, unless otherwise stated. The prices do not include freight costs for part or whole shipment to any destination. For imported goods, the prices quoted or invoiced for the supply or manufacture of Goods are based on prices quoted to the Company by its suppliers and the rates of freight, exchange, insurance premiums, customs duties and other costs of importation known to the Company at the time of quotation. Unless otherwise stated, in the event of any increase in these rates or in the price of goods quoted to the Company by its suppliers before acceptance of an order or prior to delivery of the Goods to the Purchaser, then the cost to the Company entailed by such increases shall be added to and form part of the purchase price and be payable by the Purchaser accordingly.

(a) Unless specifically agreed by the Company in writing before dispatch of the Goods, no deduction is to be made from payment for retention monies to guarantee performance of a contract.

(b) All deposits, partial payments or payments in full made prior to dispatch or collection of goods are non-refundable, unless the Company has agreed to a cancellation of an order as per condition (2.) above.

(c) Progressive Payments (layby) orders must be paid within 60 days from the date of the order and prior to delivery.

4- ACCEPTANCE AND DELIVERY

Unless otherwise specified by the Company the point of delivery of the Goods shall be at the Company premises. The Company may however elect to deliver Goods in accordance with delivery instructions provided by the Purchaser in which case the Purchaser is deemed to have accepted the Goods at the time of dispatch from the Company premises. Claims for damages or short deliveries must be lodged in writing to the Company within 48 hours from delivery or collection. These Goods and their packaging must be retained and produced for the Company’s inspection. If it is found to the reasonable satisfaction of the Company that the Goods were defective at the time of delivery, the Company reserves the right to either replace or issue a credit for the Goods.

5- DELAY IN DELIVERY

Delivery and availability dates are estimates only and although the Company will use its best endeavours to maintain these estimates, no liability is accepted for delay from any cause whatsoever. The time of delivery in any quotation represents the time at which the Goods are to be ready for dispatch from the Company premises and the Company is to be allowed the further time necessary to cover transit to points of delivery where stated in the Purchaser’s delivery instructions. The Company does not accept orders under penalty for late delivery. The Company reserves the right to ship orders in whole or by instalment and each instalment shall be deemed to be sold under a separate contract. Any failure on the part of the Company to deliver within the time stated shall not entitle the Purchaser to repudiate the contract in whole or in part, or to sue for damages including liquidated damages.

6- FORCE MAJEURE

If for any cause beyond the Company’s control, including but without limiting any act of God, war, strike, lock out, industrial dispute, governmental or semi-governmental award, enactment, priority or restriction, fire, flood, storm or tempest, delay in obtaining licenses, transport, labour or materials, accidents, damage to the Company’s works or business or those of its suppliers, the Company is prevented from making delivery or performance at the time stipulated, the Company shall be entitled at its option either to extend the time for delivery or performance for a reasonable period or to terminate the contract and the Purchaser shall not in consequence in either case have any claim for damages and shall pay for all deliveries made or services performed, prior to the date of such a termination and all expenses incurred and monies paid by the Company in connection with the contract.

7- DESCRIPTION

Any presentation, promise, statement or description by the Company or any employee, agent or dealer of the Company is expressly excluded and the Purchaser acknowledges that it has relied solely upon its own inspection and skill and judgment and not by reason of any such representation, promise, statement or description. All photographs, weights, illustrations, shade descriptions, nominal sizes and any other particulars given in or accompanying a quotation, on display in any Company store, provided as a sample or contained in descriptive literature are approximate and indicative only and deviations there-from shall not vitiate the contract or be made the basis of any claim made against the Company. Colour, shade and features are subject to some variation. Fixing of the product constitutes acceptance of the product. No claims in respect of variation or noticeable defects will be accepted after tiles have been fixed.

8- WARRANTIES

Goods supplied by the Company are guaranteed to be free from defects in materials and workmanship in accordance with the manufacturer’s warranty. This warranty does not cover the replacement of any defective goods without prior written consent from the Company. Notwithstanding anything herein contained the Company shall continue to be subject to any implied warranty provided by the Competition and Consumer Act 2010 and any similar state laws that may apply.

9- LIMITATION OF LIABILITY

a) The Company and the Purchaser hereby agree that, to the extent permitted by law, in the event of any loss, damage or claim arising out of a breach of the manufacturer’s warranty or from any cause whatsoever, the liability of the Company is limited to the replacement or re-supply of the Goods or the cost of such replacement or re-supply.

b) The Purchaser’s property under the Company’s custody or control will be entirely at the Purchaser’s risk as regards loss or damage from whatever cause arising.

c) The Company shall not be liable for and the Purchaser hereby releases the Company from any claim, action or liability for consequential loss or damage to persons or property arising by reason of delays, non-delivery, incorrect delivery, defective materials or workmanship, negligence or any act, matter, conduct or thing done, permitted or omitted by the Company.

d) All rejected or defective parts in any Goods shall be the property of the Company to dispose of as it sees fit.

e) The Company accepts no responsibility whatsoever for errors in dimensions, quantities, shade variations, specifications or otherwise where orders for any
Goods are placed with the Company by the Purchaser otherwise than in writing. It is the Purchasers responsibility to ensure the entire product supplied is consistent with that ordered prior to any installation taking place. This includes checking for any batch variations. No claims will be accepted for variations in colour, shade, pattern or veining in natural stone as these are all characteristics of the product.

f) The Company accepts no responsibility for optical hazing. Polished porcelain is prone to optical hazing which appears as a hazy / smoky effect in certain light conditions. The Purchaser is advised to lay a sample of the tile loose on site and view the tile at different times over 24 hours to satisfy themselves with the tile appearance prior to installation.

g) The Company accepts no responsibility for loss of or damage to or maintenance of secrecy with respect to any plan, drawings, samples, or other material supplied by the Purchaser to the Company.

h) Where sealing is recommended, no liability will be accepted by the Company where this is not carried out as recommended. Three Balls Red recommends all stone tile products be sealed as protection against everyday spills and soiling. An impregnating sealer will not protect calcium based stones (marble, limestone, travertine, bluestone) against etching or surface degradation by acidic, strong alkaline solutions, corrosive or abrasive products. An impregnating sealer will not protect against surface abrasion or regular wear and tear

10- MONIES OUTSTANDING UNDER AGREEMENT

As long as any moneys are owing by the Purchaser to the Company under this agreement:

a) the Purchaser acknowledges that it is in possession of the Goods solely as Bailee for the Company;

b) the Purchaser shall store the Goods separately from its own goods or those of any other person and in a manner which clearly renders them identifiable as Goods of the Company;

c) the Company may (without prejudice to any other rights) without previous notice retake and resume possession of as much of the Goods as is equal to the value of the amount then owing by the Purchaser to the Company and by its servants and agents may enter upon the Purchaser’s premises or any other place where the Goods may be for the purpose of retaking and resuming possession of the Goods.

11- RETURN OF GOODS

It is a condition of the sale of the Goods that the Company is not obligated to accept in any case the return of Goods for credit. Where the Company accepts returns of Goods for credit the following conditions apply to all Goods returned for this purpose with the prior approval of the Company.

a) No returns after 30 days from delivery will be accepted, (or 90 days from order date, whichever is less) and must be in saleable condition. Prior arrangements must be made for all Goods to be returned for any reason. Authorisation must be obtained from the Company for such return.

b) Where Goods were originally supplied in a special manufacturer’s carton, any return shall be made in that original carton and the Goods shall be returned in their original and unmarked condition, complete with any instruction sheets supplied, and in full carton lots only.

c) Unless agreed in writing to the contrary, all costs associated with the return of Goods including outward and inward freight are the responsibility of the Purchaser.

d) A handling charge of 20% of the price will be deducted on all returns.

e) A freight fee applicable to the quantity of the Goods being returned will be deducted on all returns

f) Any goods altered or damaged by the Purchaser cannot be returned for credit under any conditions.

g) Any ‘Custom Ordered’ items will not be accepted for return.

h) Any ‘Indent’ items will not be accepted for return.

12- GENERAL

a) The Company may amend these Terms and Conditions of Sale at any time and without notice in which event such amended conditions shall apply to all future dealings between the Company and the Purchaser.

b) Quantities may be estimated as a service, however we recommend a final on-site check by your tiler or builder prior to placing an order as some goods are non-returnable.

c) The above terms and conditions may change from time to time. The latest version will be available on the Company’s website at threeballsred.com.au

13- ADDITIONAL TERMS AND CONDITIONS SPECIFIC TO CREDIT ACCOUNT CUSTOMERS

a) The Purchaser shall, unless the Company otherwise agrees in writing, pay to the Company not later than thirty (30) days from the date of each statement of account issued by the Company, the cost of goods purchased upon credit, disclosed by that statement of account. The Company may without notice suspend sale of goods on credit to the Purchaser when any account rendered by the Company or part thereof is unpaid more than thirty (30) days after the date of the statement of account. The Company may charge interest at a rate of 15% per annum calculated daily plus on-charge any collection costs incurred on any monies owing that remain unpaid for more than thirty (30) days, and the Purchaser will hold the Company indemnified against any claim or liability or injury to, or by, the Goods in the meantime.

b) The Company reserves the right to refuse to accept, or to proceed with, any order at any time should the Purchaser’s credit trade reference be unsatisfactory to the Company or to demand payment for Goods supplied or produced upon such credit reference becoming unsatisfactory to the Company.

c) The Company may require immediate payment of the price of goods obtained on credit by the Purchaser in excess of the Purchaser’s credit limit. The Company may agree to vary the credit limit granted to the Purchaser at its discretion.

d) The Company may terminate this credit agreement at any time. The Purchaser may terminate this agreement by sufficient notice in writing at any time providing all outstanding debts have been satisfied.


Website Terms of Use

This document sets out the legal terms and conditions that apply to your use of this website, including our online ordering functionality.

IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE OUR WEBSITE

1- APPLICATION OF TERMS OF USE

(a) Your access to and use of our website, and your placement of any order or offer to purchase goods and/or services (each a “Product”) through our website, is subject to these Terms of Use. By using our website, you agree to be bound by and comply with these Terms of Use and they form a legally binding contract between you and Three Balls Red.

(b) We may change these Terms of Use at any time, and such modifications will be effective as soon as they are posted on our website. By continuing to use our website after these Terms of Use have been modified you agree to be bound by and comply with these Terms of Use as modified.

2- USE OF THIS WEBSITE

You may only use our website for lawful purposes and in good faith to explore a potential transaction with Three Balls Red. You may only download, print or use content on our website for this purpose. Otherwise, unless you have our prior consent in writing, you must not copy, reproduce, modify, republish, extract or commercially exploit any content on our website. You must not use our website other than in accordance with these Terms of Use, including, without limitation:

(a) using our website for any activities that breach any laws, infringe a third party’s rights or are contrary to any relevant standards or codes;

(b) accessing or using our website in a manner or way, or posting to or transmitting to or via our website any material, which interferes with, defames, harasses, threatens, menaces or offends any person or their access, use or enjoyment of our website;

(c) making bad faith, non-genuine, or fraudulent enquiries, offers to purchase or requests through our website;

(d) posting or transmitting any obscene, indecent, inflammatory or pornographic material or any other material that may give rise to civil suit or civil or criminal prosecution;

(e) tampering with or hindering the operation of our website;

(f) knowingly transmitting any viruses, worms, defects, trojan horses or similar disabling or malicious code to or via our website;

(g) using any robot, spider, website search and retrieval application or other mechanism to retrieve or index any portion of our website;

(h) modifying, adapting, translating or reverse engineering any portion of our website;

(i) removing any copyright, trade mark or other proprietary rights notices contained in or on our website;

(j) reformatting or framing any portion of the web pages that are part of our website;

(k) commercialising any information, products or services on our website, except with Three Balls Red’s prior written consent;

(l) using our website to violate the security of any computer or other network or engage in illegal conduct;

(m) taking any action that imposes or that would, in Three Balls Red’s reasonable opinion, result in an unreasonable or disproportionately large load on Three Balls Red’s infrastructure; or

(n) attempting any of the above acts or engage or permitting another person to do any of the above acts.

4- PLACING AN ORDER ONLINE

(a) You acknowledge and agree that any order you place online via our website is placed in accordance with our Terms of Sale, available on our website. Your placement of that offer is an offer to enter into a separate binding agreement between you and Three Balls Red for the supply of the Products specified in that order on the Terms of Sale.

(b) You agree to hold that offer open to be accepted by Three Balls Red unless and until you notify us otherwise in writing. An offer is open for acceptance by Three Balls Red in writing or in such manner as Three Balls Red, in its sole discretion, determines.

(c) Three Balls Red may refuse to accept an order or cancel an order that Three Balls Red has previously accepted without any liability to you for that cancellation at any time if:

(i) the Products that you order are not available;

(ii) there is an error in the price or Product description posted on our website for that Product in that order; or

(iii) Three Balls Red (acting reasonably) suspects that the order has been placed in breach, or you are otherwise in breach, of these Terms of Use or the Terms of Sale.

(d) If Three Balls Red does not accept or cancels an order under clause 4(c)(i) or 4(c)(ii), Three Balls Red will not charge you any fees or charges for that order.
(e) To the extent that there is any inconsistency between: (i) these Terms of Use; and (ii) the Terms of Sale, then these Terms of Use prevail to the extent of the inconsistency.

5-OTHER WEBSITE CHANGES

(a) All content on our website are provided on an “as is” basis and may contain errors or omissions (including typographical errors). We do not provide any warranty or guarantee as to the completeness or accuracy of information on our website; and suitability of the website or any product and/or service referred to on our website for your purpose.

(b) We reserve the right to amend the content of our website at any time without notice. If any products and/or services are displayed on our website, we reserve the right to discontinue or change the products and/or services, their prices, colours, specifications and any other details about them at any time without notice.

6- GENERAL

6.1 Should Three Balls Red be delayed, hindered, or otherwise prevented from complying with these Terms of Use by reason of events or circumstances beyond the reasonable control of Three Balls Red (including, but not limited to, acts of God, wars, terrorism, riots, strikes, lockouts, trade disputes or labour disturbances, breakdown of plant or machinery, cyber attacks, accident, storm, fire, flood, difficulties in obtaining materials, transport or labour or any other circumstances affecting the supply of goods or services), then Three Balls Red will not be liable to any person for any loss or damage which may be suffered by that person, whether as a direct or indirect result of any such occurrences.

6.2 Subject to clauses 6.3 and 6.4, Three Balls Red's liability to any person for any reason, including by way of indemnity, breach of contract, an action in tort or any other legal grounds, is limited to compensation of that person's losses solely to the extent caused or contributed to by Three Balls Red's breach of these Terms of Use or any other contract between Three Balls Red and that person, or by its negligent or wrongful act or omission.

6.3 Notwithstanding any other provision of these Terms of Use:

(a) Three Balls Red's liability to any person in connection with or arising out of these Terms of Use will be reduced proportionately to the extent that an act or omission of that person or any third party (other than Three Balls Red's employees, agents or subcontractors) contributes to that person's losses;

(b) to the maximum extent permitted by law, Three Balls Red's maximum cumulative liability to any person in connection with or arising out of these Terms of Use (including by way of indemnity, breach of contract, an action in tort or any other legal grounds) is limited to, in aggregate with Three Balls Red’s liability under any other contract with that person, the total price of Products sold to that person; and

(c) to the maximum extent permitted by law, Three Balls Red excludes any liability in any circumstance, in connection with or arising out of these Terms of Use, for any special, indirect or consequential loss, or for loss of profits, loss of revenue, loss of contract, loss of productivity, loss of opportunity, loss of goodwill, loss of business reputation, loss of use, increased cost of working capital, or business interruption, however arising, including without limitation by way of indemnity, breach contract, an action in tort or any other legal grounds, in connection with or arising out of the performance of these Terms of Use.

6.4 Nothing in these Terms of Use has the effect of limiting, excluding or modifying any rights that cannot by law be excluded, including any statutory consumer guarantees provided by the Australian Consumer Law under the Competition and Consumer Act 2010 (Cth) or similar consumer protection laws. Where any law implies a warranty into these Terms of Use or a provides a guarantee which may not lawfully be excluded, then to the maximum extent permitted by law, Three Balls Red’s liability for breach of the warranty or guarantee will (at Three Balls Red’s option) be limited to the supply of the goods or services again, or the payment of the cost of having them supplied again.

6.5 Each provision of these Terms of Use is severable and independent. If all or any part of a provision of these Terms of Use is invalid or unenforceable in any jurisdiction, that part or provision will be deemed to be severed for the purposes of that jurisdiction and will not affect the validity or enforceability of the remaining provisions or that provision in any other jurisdiction.

6.6 Our website may contain links or connections to websites operated by, or display the content of, third parties ("Third Party Content"). Any such links or connections are provided for convenience only. Third Party Content is not under our control. Three Balls Red does not endorse, approve or accept any responsibility for Third Party Content. If you use or rely upon Third Party Content, you do so entirely at your own risk.

6.7 Failure by Three Balls Red to enforce any of its rights at any time does not constitute a waiver of those rights. Any waiver by Three Balls Red of strict compliance with these Terms of Use must be in writing and signed by an authorised officer of Three Balls Red and shall not prejudice the rights of Three Balls Red in respect of any breach of these Terms of Use to which such waiver does not specifically relate.

6.8 These Terms of Use shall be governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of that State and the courts of the Commonwealth of Australia having jurisdiction therein.