The supply of goods or services by Wallpaper Trader Pty Ltd ACN 615 762 804 ('us', 'our' or 'we') to the Person named in the Order made via the website know as www.wallpapertrader.com (Website) ('you') is made on the following terms and conditions (Conditions).
Defined terms used in these Conditions have the meaning given to them in clause 17.
2.1 We may provide you with quotations for the Goods from time to time. Subject to clause 4.3, a quotation is valid for 7 days or such other period as stated in the quotation. No contract arises from a quotation until we accept your Order.
3.1 If you do not accept these Conditions, then we may not process your Order.
3.2 Any special conditions specified in an Order will take precedence over these Conditions to the extent that they are inconsistent with these Conditions.
3.3 Each Order is subject to and conditional on obtaining any necessary import, export or other licence. If we cannot obtain any such licence, we reserve the right to cancel the Order, without liability to you, except we will promptly return to you any amount you have paid us under an Order.
3.4 It is your responsibility to calculate and confirm that the quantity of the Goods in your Order is accurate and appropriate for your requirements. Any guide provided us (for example, using the roll calculator or quantity estimation tool available at the Website) is a guide only.
3.5 If you order Goods that are the same as goods that you have ordered in a previous order, then we will attempt to supply those additional Goods from the original batch of goods. However if that original batch is not available, or Goods from a different batch are supplied, we take no responsibility for any colour variances between the Goods and the goods from the original batch.
3.6 The actual colour of the Goods that are displayed on the Website or in samples that we provide you may not be identical to the Goods you receive. We take no responsibility for any colour variances between the colour of the Goods and the goods that are displayed on the Website.
3.7 No other terms and conditions apart from any Express Warranties applicable under the ACL will apply to these Conditions.
4. Prices and quotes
4.1 The Price for the Goods is set out in the Order.
4.2 Unless a quotation provides otherwise, prices quoted by us:
(a) exclude Goods and Services Tax, unless otherwise stated;
(b) are applicable to that quotation only and will not apply in any other instance; and
(c) do not include cost of delivery of the Goods to you.
4.3 Despite clause 2, we may vary:
(a) the quoted price for the Goods at any time prior to you submitting your Order; and
(b) the quoted price for imported Goods at any time prior to you submitting your Order if the currency used to quote has shifted by more than 2.5% between the date quoted and the date of invoice.
5.1 You must pay us in Australian dollars according to the payment terms set out in the Order.
5.2 If you do not pay us in accordance with the payment terms set out in the Order, without prejudice to our other rights, we may:
(a) suspend any outstanding delivery;
(b) cancel the Order and seek damages for breach of contract and our costs of recovery; and/or
(c) charge interest on the outstanding amount at 2% above the average of the most recent prime rate, indicator rate, or reference rate (however described) for business overdrafts published by Commonwealth Bank of Australia each day from the date for payment in accordance with the payment terms set out in the Order until the date of payment, both before and after any judgment.
5.3 You must not make any set off, deduction or withholding of any type from any payment due to us.
5.4 We accept payment by Visa, MasterCard, American Express and direct bank deposit. All American Express payments incur a surcharge of 3% at the time of payment.
6. Delivery and Completion
6.1 Delivery of the Goods will be conducted in accordance with our Shipping Policy.
6.2 We will endeavour to complete the Order within the time agreed (or within a reasonable time in the absence of an agreed time). We will notify you of any variation to the agreed time for completion. You must pay the delivery fees set out in the Order in addition to the Price.
6.3 If the items in the Order are on back-order, then:
(a) we will endeavour to provide you with notice of this within a reasonable period; and
(b) you have the right to cancel the Order within 2 Business Days of receiving notice from us.
6.4 We reserve the right to make partial delivery of an Order.
6.5 Subject to the ACL, we shall not be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any delay or failure to deliver, supply or complete (whether in whole or part) in accordance with the time agreed.
6.6 We may suspend completion and/or terminate the Order where any delay or failure to complete is caused by any fact, circumstance, matter or thing beyond our reasonable control.
6.7 Subject to the ACL, our delivery sheets shall be conclusive evidence of the Goods delivered unless you provide written notice of any shortfall in or damage to Goods delivered within 2 Business Days of delivery.
6.8 If for any reason you do not accept delivery of the Goods when they are ready for delivery (including where there is no one available to accept delivery on the pre-arranged delivery date), or we cannot deliver the Goods on time because you have not provided us with appropriate instructions, documents, licences or authorisations, we will be entitled to charge you for reasonable additional transport costs and subsequent delivery fees.
7.1 You will be solely responsible for the installation costs of the Goods.
8. Title and Risk
8.1 Title to the Goods shall not pass to you until the purchase price for the Goods and all other sums due by you to us have been paid in full.
8.2 Risk in the Goods shall pass to you immediately upon delivery of the Goods.
9. Inspection and Acceptance
9.1 You must inspect all Goods on delivery. You are solely responsible for ensuring that the Goods are consistent with the goods that you have ordered including, but not limited to, design, colour, quantity and quality of the Goods.
9.2 You must notify us if the Goods are not in accordance with the Order within 7 days after delivery or performance.
10. Cancellations and Returns
10.1 Subject to the ACL, we will not accept the cancellation of an Order or return of Goods, unless we choose to do so in our sole discretion and otherwise in accordance with our Returns and Exchanges Policy.
10.2 If we do accept a cancellation of the Order prior to delivery, you will be responsible for any compensating us for loss which we incur in relation to that cancellation, including forfeiting any amounts paid to us up to that date of cancellation. If such amounts are less than the loss which we have incurred, you must pay to us any additional amount which in our reasonable view reflects the loss that we will suffer as a consequence of the cancellation (including but not limited to storage fees and any mark down). For any cancellation charges over and above what has already been paid to us, you must pay such amounts to us within 7 days after our request to pay.
11. Limitation of Liability
11.1 Clauses 11.2 and 11.3 shall not apply in respect of any Consumer Guarantee claims made by a Consumer, with the exception that these provisions will apply to such claims where the Goods are acquired by a Consumer at a price not exceeding $40,000 and the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption.
11.2 To the extent permitted by law, our liability for any non-compliance with a Consumer Guarantee or loss or damage arising out of or in connection with the supply of the Goods under these Conditions is limited to:
(a) in the case of Goods:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(iv) the payment of the cost of having the Goods repaired; or
(b) in the case of services which are ancillary to the Goods:
(i) the resupply of the services; or
(ii) the payment of the cost of resupply of the services.
11.3 To the extent permitted by law, we exclude all liability whatsoever to you arising out of or in any way connected with these Conditions for any loss of profits, loss of business revenue, failure to realise expected profits or savings, overhead costs, loss of goodwill, loss of reputation, loss of value in any intellectual property, damages or liquidated sums payable pursuant to other agreements, other economic losses, or any consequential or indirect losses of any kind howsoever arising and whether caused by breach of statute, breach of contract, negligence or other tort.
11.4 To the extent permitted by law, all warranties and terms implied by statute, the common law, equity, trade, custom or usage or otherwise, in relation to the supply of the Goods, are expressly excluded.
11.5 You agree and declare for our benefit that you have relied on your own skill and judgment in entering into these Conditions, and you have not relied on any statement or representation given by any person on behalf of us.
12. Your default
12.1 If you default by non-payment or non-performance of any obligation under these Conditions or if any proceedings under any bankruptcy, liquidation or insolvency laws are started by or against you, we will have the right to exercise any one of the following remedies:
(a) declare all unpaid amounts of the Order to be immediately due and payable;
(b) terminate the Order and these Conditions in whole or in part; and/or
(c) pursue any other remedies existing at law or in equity.
12.2 In addition to any other payment obligations under these Conditions, you agree to pay to us all costs and expenses, including reasonable legal fees and costs incurred by us, in exercising any of our rights and remedies we are entitled to.
13. Intellectual Property
13.1 You acknowledge and agree that nothing in these Conditions grants you any intellectual property rights (including copyright, trade marks, patents and designs) owned by, or licenced to, us.
13.2 You agree to indemnify us, and keep us indemnified, in respect of any claim, liability, loss, damage, cost (including legal cost) or expense which we may suffer or incur as a direct or indirect result of your wilful or negligent act or omission with respect to a violation of these Conditions by you, or the infringement by you, of any intellectual property or other right of any person or entity.
13.3 If any Goods are supplied according to specifications or design provided by you, you shall indemnify and keep us indemnified from and against all actions, suits, claims, proceedings, accounts, demands, judgments, costs and expenses (including legal costs on an indemnity client basis) and any liability whatsoever which we may suffer or incur directly or indirectly in relation to:
(a) any infringement of third party intellectual property rights: and
(b) any defect in, or unsuitability of the Goods directly or indirectly resulting from our compliance with those specifications.
14. Force majeure
14.1 We shall not be held responsible for any delay in, or failure to, perform an obligation under these Conditions for any reason beyond our control, such as a Force Majeure Event. If we are affected by a Force Majeure Event, we will inform you in writing of any anticipated delay or failure as soon as possible.
16.1 These Conditions, together with any Express Warranties under the ACL, constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
16.2 Failure by us to enforce any of these Conditions shall not be construed as a waiver of any of our rights hereunder or a waiver of the continuing breach.
16.3 If we merge, sell or otherwise change control of our business to a third-party, you consent to the transfer or assignment of any personal information, content and rights that we have collected from you and any agreement we have made with you
16.4 We may give another notice by electronic mail, conventional mail, facsimile or personal service at our respective addresses set out in the Order.
16.5 To the extent that any part of these Conditions is or is found to be unenforceable, that part is to be read down or construed so as to preserve those parts that are enforceable.16.6 These Conditions shall be governed by the laws of the State of Victoria, and you submit to the non exclusive jurisdiction of the Courts of that State.
Defined terms in these Conditions have the following meaning:
(a) ACL means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any other equivalent legislation (such as the Fair Trading Acts (or equivalent legislation) in each State and Territory);
(b) Business Day means a day on which banks are open for business in Melbourne or Sydney other than a Saturday, Sunday or public holiday in Melbourne or Sydney;
(c) Conditions means these terms and conditions;
(d) Consumer means:
(i) an Individual acquiring Goods for personal, domestic or household use or consumption; or
(ii) a Person acquiring Goods at a price not exceeding $40,000; or
(iii) a Person acquiring Goods of a kind ordinarily acquired for personal, domestic or household use or consumption,
but excludes a Person acquiring the Goods, or holding himself or herself out as acquiring the Goods for commercial purpose including for the purpose of:
(iv) resupply; or
(v) using them up or transforming them, in trade or commerce in the course of repairing or treating other goods or fixtures on land;
(e) Consumer Guarantees means any consumer or statutory guarantees applicable to the Consumers under the ACL;
(f) Express Warranty means an express warranty for the purposes of section 59 of the ACL.
(g) Force Majeure Event means an act of God, government order or restriction, or any other event which could not be predicted at the time of the conclusion of the Order and cannot be controlled, avoided or overcome by the parties;
(h) Goods means the goods and includes any ancillary services to be supplied by us to you as set out in the Order;
(i) Individual means a natural person;
(j) Order means the order with which these Conditions are included; and
(k) Person means an Individual and a corporation.