TERMS AND CONDITIONS
1. ACCEPTANCE
1.1. Marcthom Trading Pty Ltd (ABN 32 650 583 458) trading as Thomas and Hurley (“T&H,” “we”) owns the website www.thomasandhurley.com.au (Website). These Terms and Conditions given use of the (Terms).
1.2. If you are purchasing furniture, homewares, accessories or any other goods or services (“Item/s”) from T&H through the Website, over the phone, in person or via email, you represent and acknowledge that you are over 18 years old and that you have read and understood them and agree to be bound by these Terms. If you are entering into these Terms on behalf of another entity, you do so representing that you have the authority to bind that entity to these Terms.
1.3. If you do not have the authority or do not agree to these Terms, you are not permitted to use the Website or proceed with any purchases.
1.4. The Terms may be updated by T&H from time to time without prior notice to you. Your continued use of the Website and/or purchase will amount to acceptance of any updated Terms.
1.5. All users are responsible and legally liable for their activity, behaviour, use of and conduct on the Website.
2. PLACING AN ORDER
2.1. An invoice is a contract of sale, consisting of an offer, acceptance and consideration, which protects both parties from default. Consideration occurs when you make payment on the acceptance of an offer. Consideration means acceptance of all Terms.
2.2. All Item/s remain the property of T&H until payment in full in cleared funds has been received and confirmed. Cleared full payment is required prior to dispatch.
2.3. T&H reserves the right to decline and refund orders (or part-thereof), even after Consideration, and to perform additional payment security checks and/or nominate a payment method.
2.4. Occasionally, certain Item/s may be out of stock or be subject to lead times (e.g. Pre-orders). The estimated lead-times are an approximation only, subject to change and delays.
2.5. Once an order is ready, subject to cleared funds, Item/s must be dispatched within 14 days (or as otherwise noted on invoice).
2.6. Delivery, assembly and/or installation fees are not included unless expressly stated on Invoice.
2.7. Dispatch is within Australia only. We do not service all locations within Australia.
2.8. In rare instances, an item may be sold out or unavailable after an order is placed, despite showing as in stock. We will promptly notify you and offer the options to wait for restocking, choose an alternative, or receive a full refund.
2.9. For pre-order items where a 50% deposit option is chosen, the final invoice amount will reflect 50% of the total cost. A supplementary invoice will be issued closer to the dispatch date, requiring payment of the remaining 50% balance prior to dispatch.
3. DELIVERY
3.1. Delivery is available within Sydney (some areas not included) via third party carriers;
3.2. If you are located outside of our delivery and service zone, see “Pick Up”.
3.3. All deliveries are ground floor/easy access/no stairs/short distance from truck (unless otherwise quoted/detailed in writing by T&H).
3.4. Delivery, assembly and/or installation fees are not included unless expressly stated on Invoice.
3.5. T&H reserves the right to nominate the day and time of delivery of the Item/s. Unforeseeable circumstances may impact delivery within the agreed timeframe;
3.6. You will be contacted when Item/s are available for dispatch to arrange any outstanding payments and a dispatch date. If you are unable to accept delivery within 14 days (or as otherwise noted on invoice), storage charges apply (see Storage Charges below);
3.7. You are responsible for the cost of failed deliveries. If you cannot accept delivery when the carriers arrive (e.g. you are not home, insufficient or difficult access), T&H may agree to accept the return of the Item/s, strictly at its discretion. The cost of return will be charged to you which may be more than the original delivery charge (as many delivery costs are subsidised) and additional costs may be added by the carrier as time charges. Re-stocking fees apply (See “Returns, Refunds & Cancellations”);
3.8. Cancellations or changes to deliveries by you within forty-eight (48) hours prior to the arranged delivery will incur a minimum cancellation fee of ninety-nine dollars ($99) inclusive of GST.
3.9. T&H uses third party carriers and takes no responsibility for their actions or for damage caused to private or public property during delivery and cannot be held liable for any indirect, special or consequential loss or damage arising in any way in relation to delivery.
3.10. Delivery does not include assembly, installation, moving existing furniture, fixing Item/s to walls, levelling out Item/s on floors, or the removal of cardboard & other packaging materials from your premises. For all non-standard deliveries (e.g. specific delivery time), a quotation can be obtained.
3.11. As Item/s are quality controlled prior to dispatch, some Item/s may be dispatched un-boxed/un-wrapped/un-packaged.
4. ACCESS
4.1. You must ensure that the Item/s ordered will fit and are capable of safe and reasonable delivery and access. Access is always your responsibility.
4.2. You must inform T&H of any delivery constraints (including lift, stairs, doorways, landings, tight corners etc) prior to dispatch to assist in delivery pricing and with the carrier’s schedule. Additional costs may be involved.
4.3. Informing T&H of any access or delivery constraints does not absolve your responsibility of access.
5. DAMAGED ITEM/S
5.1. When Item/s are delivered it is required that the Item/s are inspected by you. Any visible damage to the Item/s needs to be identified to the carrier at time of delivery. If the Item/s are received boxed/packaged whereby they are unable to be inspected by you at time of delivery, if any damage is noted, this needs to be reported to T&H within 24 hours of delivery. If T&H is not notified within the required 24 hours of delivery, then Item/s shall be deemed to have been accepted by you as being in good condition and T&H is not able to take any responsibility for damage or any claims.
6. PICK UP
6.1. You will be contacted when Item/s are available for dispatch to arrange any outstanding payments and a dispatch date. If you are unable to pick up within 14 days (or as otherwise noted on invoice), storage charges apply (see Storage Charges below);
6.2. Pick up by you (or your agent/carrier) is available by prior appointment only.
6.3. T&H bears no responsibility for damaged Item/s during transit and under no circumstances is T&H responsible for any shipping charges or associated costs.
6.4. Inspection of Item/s upon pick up is your (your agent’s/carrier’s) responsibility and must occur by you (your agent/carrier) before loading/hand-over/pickup/dispatch, this includes if Item/s are wrapped/boxed.
6.5. Once Item/s are released, T&H takes no responsibility for any damage to Item/s, products, property or vehicle/s, including, but not limited to, transport or mishandling.
6.6. As Item/s are quality controlled prior to dispatch, some Item/s may be dispatched un-boxed/un-wrapped/un-packaged.
6.7. If you are located outside of Sydney or live in an area (within Sydney) that we do not service, you are considered a Pick Up and must nominate and pay for your own carrier and associated costs.
7. STORAGE CHARGES
7.1. All Item/s must be dispatched within 14 days of availability (or as otherwise noted on the invoice), after which storage charges at a rate of 10% of invoice total per week will apply after this period. Storage fees will be incurred on a weekly basis until dispatch, which will not occur unless any outstanding storage fees are paid.
8. PRICING
8.1. All prices are in Australian Dollars, include all applicable taxes unless otherwise specified, and are subject to change without notice.
8.2. Sale/discount pricing cannot be applied retrospectively to confirmed orders.
9. WARRANTIES
9.1. Our Item/s come with Consumer Guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
9.2. Item/s purchased from T&H also come with Warranties, a voluntary promise from T&H to you. T&H’s pricing structure includes a 12-month structural warranty against core defects in production or materials.
9.3. Warranties apply:
9.3.1. from the date of Invoice. If you are offered a replacement Item/s as part of your warranty claim, the original warranty period still stands;
9.3.2. to the original purchaser and delivery location only (non-transferrable);
9.3.3. for Item/s used for reasonable domestic purposes, excluding Item/s used for commercial reasons;
9.3.4. for Australian residents/companies only within Australia, and servicing within T&H delivery locations only;
9.3.5. in the event of a warranty claim, it is the responsibility of the customer to return the component or Item/s back to T&H for assessment and or remedy, at customer’s cost in all directions at T&H’s discretion;
9.3.6. for pick-ups, all shipping charges (both directions) or associated costs, including any warranty/fault claims, must be organised by you, at your cost, with no exceptions. If you do not agree, do not proceed with order;
9.3.7. T&H does not give any warranty that the Item/s are fit for any particular purpose (unless explicitly noted on Invoice).
10. EXCLUSIONS
10.1. This warranty does not cover:
10.1.1. normal or fair wear and tear;
10.1.2. issues arising from abnormal use, negligence or abuse, including (but not limited to) inadequate or improper maintenance, exposure to water, direct sunlight, salt air, chemicals, accidents, any use for which the Item/s was not designed nor does it cover ordinary wear-and-tear;
10.1.3. levelling and packing out Item/s on floor after dispatch;
10.1.4. anchoring Item/s to walls;
10.1.5. any surface, decoration, fabric, cracks or finish of an Item/s;
10.1.6. colour variations caused by exposure to the local environment for Item/s including but not limited to fabrics, leathers, stones, finishes and timbers;
10.1.7. fabric, leather, cane, wicker, rattan Item/s (unless the terms of sale expressly say so);
10.1.8. freight, call-out fees, labour and other Item/s associated with making a claim under this Warranty where the claim is an invalid warranty claim;
10.1.9. any failure by you to maintain the Item/s and components in accordance with the care recommendations for the relevant Item/s;
10.1.10. any Item/s which have been exposed to extreme use such as chemical, acid, solvent, dies, corrosive materials, ink, body fluids, moisture of any kind, incorrect cleaning techniques, placing Item/s outdoors, close proximity to heat (e.g. heaters, fireplaces), cold (e.g. air-conditioning), humidity (e.g. wet areas), or in direct sunlight;
10.1.11. any work, assembly or installation carried out by a contractor or third party not approved in writing by T&H;
10.1.12. commercial use or consumption (e.g. for business, commercial, industrial, hospitality or any non-residential purpose or use);
10.1.13. floor-stock, ex display and clearance Item/s which are purchased in “as is” condition.
11. VARIATIONS
11.1. As all Item/s and hand made, variations exist between each Item/s. Colours/finishes between Item/s may vary slightly from each shipment and to photographs on website.
11.2. Item/s from different shipments, photographed in different lighting and viewed on different device screens may all cause variation in colour.
12. AS IS CONDITION
12.1. Floor stock, ex-display and clearance Item/s are purchased in “as is” condition, are unable to be cancelled or restocked, are non-refundable, with a structural warranty relating only to the frame or internal structure of Item/s (and excludes any surface, decoration, fabric, cracks or finish of Item/s.
12.2. It is your responsibility to inspect Item/s prior to purchase. Acceptance or cancelling of “As Is” purchases is at the discretion of T&H.
13. RETURNS, REFUND AND CANCELLATIONS
13.1. Item/s come with guarantees that cannot be excluded under the Australian Consumer Law and T&H will process all returns and refunds in line with these laws.
13.2. Please choose carefully as T&H does not accept cancellations or returns for change of mind or if you make a wrong selection. Once consideration is made, you agree to the Terms herewith, which include that an order cannot be cancelled, modified or deferred without the prior written consent of T&H, and at T&H’s sole discretion.
13.3. If your order is cancelled, modified or deferred with T&H’s written consent, you agree to the following:
13.3.1. A 25% restocking fee to cover administrative costs and expenses incurred in taking, handling and processing the order (which also includes orders with deposits and lay-by payments);
13.3.2. In the case of custom Item/s, which includes any Item/s that have been tailored, altered or ordered specifically for you, you will forfeit the full Invoice amount;
13.3.3. You will have no further claim to the cancelled Item/s;
13.4. No returns, cancellations, refunds or exchanges on floor-stock, ex display and clearance Item/s which are purchased in “as is” condition.
14. TRADE/WHOLESALE/B2B
14.1. For Trade, Wholesale or Business to Business (B2B) (“Trade Customer”), discounts (“Trade Pricing”) may be offered at the discretion of T&H.
14.2. Orders must be in writing or via the Website.
14.3. Payment by Bank Transfer Only.
14.4. As the Trade Customer, T&H relationship is with you, not your client/customer. All invoicing and correspondence (both pre and post-sale) must occur through you.
14.5. Trade Customers are responsible for payment of Item/s, (not their client/customer or any other third party).
14.6. Trade Pricing is unable to be extended to third parties/clients/customers and cannot be offered retrospectively.
14.7. It is the responsibility of the “Trade Customer” to ensure that Item/s are suitable for requirements/purpose (e.g. size, finish, access etc), and is responsible and liable for any additional/associated costs that may be incurred (including cancellation/re-stocking fees).
14.8. Due to the pricing structure and Trade Pricing discounts offered to Trade Customers, it is expected that you have the knowledge, experience and resources to:
14.8.1. Accompany your customers/clients at all times, including the research, discussion, ordering and pick up/delivery/dispatch and warranty process, including all communications (Trade customer is T&H’s client).
14.8.2. solve any minor issues that may arise. (You are expected to have some/relevant industry experience)
14.8.3. Return the Item/s, at your cost, for any service/Warranty claims (strictly ‘back to base’ at your shipping cost).
14.9. If the Trade Customer in the opinion of T&H, breaches any of the above terms, T&H reserves the right to withdraw any trade discount already provided/invoiced, without voiding the contract of sale or releasing the trade customer or T&H of their contractual obligations. The Trade Customer agrees to pay any balance outstanding if discount is so withdrawn, which can occur at any time after consideration, including for any guarantee or warranty claims.
15. REMEDIES AND LIABILITY
15.1. To the extent which T&H is entitled to do so, its liability shall be limited at its option and discretion to:
15.1.1. repair or replace goods;
15.1.2. fix a problem with services;
15.1.3. provide reimbursement or refund.
15.2. T&H cannot give an exact timeframe for resolutions, but will do so within a reasonable timeframe.
15.3. To be entitled to make a Warranty claim within the Warranty period/timeframe, you must stop using the Item/s and notify T&H in writing (via email) of the Warranty claim and provide proof of purchase, details of what you consider the fault to be and the circumstances in which the fault appeared and all other relevant communications in respect of the Warranty claim;
15.4. T&H will then determine whether the Item/s is faulty and if, acting reasonably, agree the Item/s is faulty, T&H will provide the remedies (as above).
15.5. T&H will not be liable for any loss or damage suffered and consumer’s rights are limited to those set out in these Terms.
15.6. T&H’s total liability shall not exceed the total price paid for the purchase of Item/s under these Terms.
15.7. You indemnify T&H against any loss of or damage to any property, injury or death of any persons caused by any negligent act, omission, wilful misconduct or by any breach of its obligations arising out of these Terms.
15.8. T&H will not be liable for Item/s not being available for use, or for any incidental, indirect, special or consequential damages (use, performance or services) even if T&H has been advised of their possibility.
15.9. Error or omission, including but not limited to typographical, clerical, product information, quotation, prices, acceptance of offer, invoice or other documents, information or correspondence from or by T&H shall be subject to correction without any liability on the part of T&H.
16. FORCE MAJEURE
16.1. T&H shall not be liable for any delay in performing any of its obligations under these Terms if such delay is caused by circumstances beyond its reasonable control and shall be entitled to a reasonable extension of time for the performance of such obligations.
17. PRIVACY
17.1. T&H uses standard encryption to keep your personal information secure throughout the communication, payment and ordering process. T&H does not store your credit card or bank informationand will not be liable for any damages or losses caused if your details are used fraudulently.
17.2. T&H needs to collect, use and store some personal information using the Website, communicating or making a purchase. View Privacy Policy for more information.
18. CONSENT
18.1. If you take/upload photographs, audio or video recordings, reviews, comments or testimonials (“Content”) that include any of our Item/s or services, and use them, their image or likeness, on a website or tag, mention or refer to T&H via social media, you consent to give T&H the right to use this Content in the production of the Website or social media use.
18.2. T&H reserves the right to remove/have you remove any Content (including on any third party sites) and to pursue costs and/or other legal avenues, at its discretion if it feels that you have not acted in good faith, have breached copyright, trademark, intellectual property or other rights (including any associated third party rights) or not complied with any relevant laws or regulations. If you upload Content you do so with relevant permissions and indemnify T&H against all liability claims or proceedings whatsoever arising from the publication of such Content.
18.3. T&H reserves the right to remove/have you remove any incorrect, inaccurate or misleading Content, including Contentbelieved to be solicited by others if they have not directly experienced T&H’s goods or services.
18.4. The Website or correspondence may link to third party websites which are not owned or operated by T&H. T&H is not responsible for the content on, and the terms and conditions pertaining to, these external sites. T&H recommends that you investigate these sites own terms and conditions.
18.5. T&H has the right (in its sole discretion) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from the Website and/or social media. Please contact T&H if you find any content that is objectionable.
19. COPYRIGHT AND TRADEMARK
19.1. All material contained within the Website, communications and print from T&H, is the copyright of T&H except where credit is noted to other parties. Permission may be sought from T&H to publish material.
19.2. Under Australian and international law, the material on the Website, including all pages, graphics and services, is subject to copyright. You must not:
19.2.1. use any of the copyright Content or material, such as images or Content unlawfully or without written approval;
19.2.2. pass off or re-use Content as your own;
19.2.3. use the T&H name or Trademark without prior written consent from T&H.
20. UNACCEPTABLE CONTENT
20.1. You are prohibited from posting or uploading any Content on the Website (or any other website or social media platform associated with T&H) that:
20.1.1. violates any laws or is false or misleading;
20.1.2. is threatening, abusive, defamatory, obscene or indecent;
20.1.3. interferes with the proper working of the Website;
20.1.4. uses any robot, spider, scraper or other automated means to access the Website and collect content for any purpose without express written permission from T&H;
20.1.5. copies, modifies, distributes, harvests or otherwise collects information about others, including email addresses, without their consent;
20.1.6. infringes any third-party rights including copyright, trademarks or other intellectual property rights;
20.1.7. distributes viruses or any other technologies that may harm the Website, the interests or property of T&H users;
20.1.8. bypasses measures used to prevent or restrict access to the Website.
21. GOVERNING LAW
21.1. These Terms shall be governed by and construed in accordance with the laws of New South Wales and shall be subject to the non-exclusive jurisdiction of the courts of New South Wales.
21.2. If a provision of these Terms is invalid, illegal or unenforceable, then to the extent of the invalidity, illegality or unenforceability, that provision must be ignored in the interpretation of these Terms. All other provisions of these Terms remain in full force and effect.