Legal Terms & Conditions
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Eco Concepts Australia Pty Ltd T/A Eco Outdoor Terms & Conditions of Trade © Copyright – EC Credit Control Pty Ltd 1999 – 2011
Eco Outdoor Legal Terms & Conditions
1.1 “Agreement” means these Terms of Trade, which are incorporated into and form part of each sales order.
1.2 “Coastal Exposure” means installation within environments subject to salt-laden air or marine influence, including but not limited to locations within approximately one (1) mile of a marine coastline, tidal waterway, or other environment recognized as marine exposure under applicable ASTM, TCNA, or comparable industry standards.
1.3 “Company” means Eco Outdoor CA, Inc., its successors, assignees and any person acting on behalf of Eco Outdoor CA, Inc., and who has the actual authority of Eco Outdoor CA, Inc.
1.4 “Conforming Goods” means Goods that:
(a) conform to the product description, specification, and quantity set out in the accepted sales order;
(b) are of the general type, appearance, and material composition indicated by any sample or model provided, it being acknowledged that natural variation in color, shade, texture, veining, markings, and surface characteristics is inherent in natural stone, clay, timber, porcelain, glass, terrazzo, and similar materials and does not constitute Non-Conformity; and
(c) are delivered without Defects.
1.5 “Customer” means a person who buys or contracts to buy goods with the Company. If there is more than one Customer, the term “Customer” is a reference to each Customer, jointly and severally.
1.6 “Defect” means a defect in the Goods as supplied by the Company that causes the Goods to fail to conform to the Company’s published material specifications for the relevant product. A Defect does not include:
(a) variations in color, shade, texture, veining, markings, surface finish, or other aesthetic characteristics that are inherent in natural stone, clay, timber, porcelain, glass, terrazzo, or similar materials; (b) changes in the appearance or condition of the Goods resulting from normal wear and tear, aging, or weathering; or (c) damage or deterioration caused by improper installation, inadequate maintenance, environmental conditions, or any other cause beyond the control of Eco Outdoor.
1.7 “Goods” means all Goods and Services sold, delivered, or supplied by the Company to the Customer.
1.8 “Non-conforming” or “Non-Conformity” includes but is not limited to Goods that contain any defect, damage, shortage in quantity or which fails to comply with the obligations under the sales order.
1.9 “Price” means the amount indicated on the accepted sales order that is provided by the Company to the Customer.
1.10 “Residential Project” means an individual private residential dwelling used solely for domestic living purposes by the original purchaser as their primary or secondary residence. A Residential Project excludes: multi-residential developments, mixed-use developments, hospitality, retail, commercial, institutional, or public projects, and any property used as a short-term rental, vacation rental, or home-sharing property (including but not limited to properties listed on platforms such as Airbnb, VRBO, or similar services), whether on a full-time or part-time basis.
1.11 “Warranty” means the Eco Outdoor Architectural Surfaces Warranty applicable to certain Goods, as published by the Company from time to time and in effect at the date of the Customer’s purchase. The Warranty constitutes a limited product warranty only and does not create any warranty obligation beyond the express terms set out therein. The Warranty is subject to and governed by these Terms of Trade. In the event of any conflict between the Warranty and these Terms of Trade, these Terms of Trade shall prevail to the fullest extent permitted by applicable law.
1.12 “Warranty Exclusions” means the disclaimers set forth in Section 8.1 and the acknowledgements set forth in Section 8.2.
2.1 Terms of Trade Agreement. Please ensure your sales order is correct. Upon acceptance of your order pursuant to Section 2.2 of this Agreement, a binding contract between the Customer and the Company shall be formed. The Customer and the Company are immediately bound, jointly and severally by the terms of the sales order and the terms of trade incorporated therein.
2.2 Acceptance of Order. Acceptance of order shall be upon:
(1) the Customer’s receipt of the sales order with the Terms of Trade incorporated therein; and (2) the Company’s receipt of fifty percent (50%) of the purchase price (Deposit).
2.3 Acceptance of Goods. Customer will have accepted Goods when the Goods are delivered to the Customer (pursuant to Section 4.2 of this Agreement) and the Customer:
(1) signifies to the Company the Goods are conforming or the Customer will take them despite the Goods Non-conformity; or (2) if the Customer fails to comply with Section 5.1 of this Agreement. Installation, cutting, modification, or incorporation of the Goods into any project constitutes irrevocable acceptance of the Goods and a waiver of any claim that such Goods are Non-Conforming on grounds that could reasonably have been discovered by visual inspection prior to installation.
3.1 Price. The price of the Goods as stated on the sales order does not include delivery costs, sales, use excise or any other taxes or assessments levied by any federal, state, municipal or other governmental authority, unless the Company agrees otherwise, in writing, on the sales order.
3.2 Storage and Storage Fees. The Company will store Goods, ordered for this Agreement, for 30 days after arrival at the Company’s warehouse. After which storage fees will be payable at a rate of $150 per week per crate. For stocked items, the Company will hold Goods for 30 days after your original proposed delivery date, after which the sales order will be reallocated to a later shipment of Goods.
3.3 Time of Payment. Full or balance payments for Goods shall be due no later than seven (7) days prior to your preferred delivery date, delivery will not be scheduled until cleared funds have been received.
3.4 Payment Method. The Customer must make payments to the Company in U.S. dollars. Payment may be made by check, money order, cashier’s check, credit card (plus a surcharge of up to 3.1%), or wire transfers directly to the Company’s bank. Checks must be made payable to Eco Outdoor CA, Inc. All payment methods must reference the Company’s quote or sales order reference.
3.5 Past Due Invoice Penalties. Overdue invoices will accrue interest daily until the date of payment, at a rate of one and a half percent (1.5%) per calendar month.
3.6 Title of Goods. Title of goods shall not pass to the Customer until the Company has received payment for the Goods in full.
4.1 Delivery of Goods. Delivery of Goods shall be when:
(i) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Company’s address; or
(ii) when the Company or the Company’s nominated carrier delivers the Goods to the Customer’s nominated address (even if the Customer is not present at the address), whichever occurs first.
4.2 Delivery Date. Lead times given by the Company to the Customer are estimated times only. Although the Company will endeavor to meet the shipping date specified by the Customer, it is understood by the Customer that in this industry it is not unusual for a delay in delivery to occur.
4.3 Delays in Delivery of Goods. Delays in delivery of Goods, in it of itself is not grounds for refusal of acceptance of Goods and the Customer does not have claims for damages resulting therefrom.
4.4 Installments. The Company reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve the Customer of its obligation to accept remaining deliveries.
4.5 Tender. The Customer must furnish facilities reasonably suitable for the receipt of Goods and must take delivery by receipt or collection of the Goods when they are tendered for delivery. If at the time of delivery of the Goods, the Customer is unable to take possession of the Goods, the Customer must pay for redelivery and/or storage of the Goods.
5.1 Return of Non-Conforming Goods. In the event the Customer receives Non-conforming Goods, the Customer must:
(1) notify the Company, in writing, within 5 business days of delivery of the Non-Conforming Goods;
(2) permit the Company to inspect the Goods for its Non-Conformity;
(3) stop use of the Non-Conforming Goods; and
(4) properly maintain and store the Goods.
5.2 Limitations for Return of Goods. The Company is not obligated to accept a return of Goods related to or arising from any Warranty Exclusions.
5.3 Limitations of Liability for Delays or Non-Delivery. The Company shall not be liable for non-delivery or delays in delivery caused by strikes, lockouts, fires, inability to obtain materials or shipping space, breakdowns, delays of carriers or suppliers, governmental acts and regulations or any other event that has made performance by the Company impracticable and is beyond the Company’s control. The Company will notify the Customer within ten (10) business days that there will be a delay or non-delivery of the Goods.
6.1 Return of Conforming Goods. It is in the Company’s sole discretion to accept returns of Conforming Goods. If the Company accepts return of Conforming Goods, the Customer must:
(1) return full, unopened and undamaged crates only;
(2) return the Goods within 60 days of delivery;
(3) pay the Company’s handling fees, being the greater of thirty-percent (30%) of the value of the returned Goods or one-hundred and fifty dollars ($150.00);
(4) pay freight costs; and
(5) be in good standing with the Company.
The return will result in a credit on account for use against future purchases.
7.1 Risk of Loss. The risk of loss passes to the Customer when the Goods are delivered pursuant to Section 4.1 of this Agreement. The Customer shall have adequate insurance for the Goods no later than the time at which the Goods are delivered (pursuant to Section 4.1 of this Agreement).
7.2 Insurance Proceeds. If the Goods are damaged following delivery to the Customer but prior to title passing to the Customer, the Company shall receive all insurance proceeds payable for the Goods.
8.1 Except as expressly provided in Section 8.3, the Goods are sold “AS IS” and “WITH ALL FAULTS”, and the Company expressly disclaims all warranties, express or implied, including without limitation any implied warranty of merchantability, fitness for a particular purpose, or fitness for a specific application, other than the Limited Warranty expressly provided in Section 8.3, to the fullest extent permitted by applicable law.
SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES FOR CONSUMER GOODS. IN THOSE STATES, THE FOREGOING DISCLAIMER APPLIES TO THE FULLEST EXTENT PERMITTED BY THE LAW OF THAT STATE.
8.2 By acceptance of these Terms of Trade, the Customer acknowledges and agrees that the Goods may:
(1) exhibit variation in shade, color, texture, markings, and surface characteristics;
(2) contain natural fissures, veins, occlusions, indentations, or similar features;
(3) weather, patinate, or change appearance over time;
(4) expand, contract, or distort due to environmental conditions including heat, cold, moisture, or structural movement; and
(5) mark, stain, or react to exposure to certain substances.
Such characteristics are inherent in the materials and do not constitute defects or Defects under these Terms of Trade or the Warranty.
The Customer further acknowledges and agrees that:
(6) the performance and lifespan of the Goods are materially dependent on proper site assessment, substrate preparation, design, installation, and ongoing maintenance, all of which are outside the Company's control and remain the sole responsibility of the Customer and its contractors and project professionals; and
(7) the Company has made no representation that the Goods are suitable for any specific application, site condition, or environmental exposure beyond the rated specifications published in the Company's product data sheets.
The Customer further acknowledges and agrees that the Company has no liability for any defect or damage resulting from:
(8) open crates;
(9) dirty or damaged stock resulting from post-delivery handling, storage, or site conditions;
(10) customized Goods unless such Goods contain a Defect;
(11) ordinary wear and tear;
(12) the Customer's failure to comply with Section 5.1 of this Agreement;
(13) the Customer's use of Goods for any purpose other than that for which the Goods were designed or rated in the Company's published product testing data;
(14) damage caused by structural movement, settlement, subsidence, or defects in the substrate, sub-base, or supporting structure;
(15) damage caused by impact, abrasion, improper handling, point loads, or contact with sharp objects that exceed the Goods' rated load and impact specifications;
(16) efflorescence, staining, or discoloration caused by external sources including grout, adhesives, sealants, or environmental pollutants, except where such staining results from a Defect;
(17) damage caused by environmental conditions that exceed the Goods' rated performance specifications as published in the Company's product testing data sheets; or
(18) Coastal Exposure.
The Customer further acknowledges and agrees that:
(19) samples or models are provided only to indicate the general type and appearance of the Goods, and variations between samples and delivered Goods are inherent and expected and shall not constitute a Defect or Non-Conformity under these Terms of Trade or under the Warranty; and
(20) the Customer's obligation to engage appropriately qualified installation and design professionals is not discharged by reference to the Company's installation guidelines or maintenance guidelines, which may be provided as general guidance only and do not constitute project-specific advice.
8.3 Limited Warranty. The Warranty is the sole and exclusive warranty provided by the Company with respect to its Goods. A copy of the Warranty applicable to the Customer's purchase will be provided upon request. Any Warranty applies only to Residential Projects and only to the original purchaser identified in the sales order. The Warranty is non-transferable.
8.4 Exclusive Remedy. Where a valid warranty claim is established in accordance with the claims procedure set out in Section 8.10 of this Agreement, the Company may, at its election, repair, replace, or refund the purchase price of the affected Goods in accordance with the terms of the Warranty.
Where the Company elects to replace affected Goods and the identical product is no longer available, the Company may substitute a reasonably comparable product having regard to material composition, technical specifications, and visual and aesthetic character.
Where a California consumer reasonably determines that a proposed replacement product is not substantially identical to the original product and no further suitable alternative is available, the Company will provide a full refund of the original purchase price of the affected Goods.
These remedies constitute the Customer's complete and exclusive remedy for any Defect or warranty claim with respect to the Goods, to the fullest extent permitted by applicable law.
8.5 Limitation of Liability. Subject to Section 8.7 and to the fullest extent permitted by applicable law, the Company's total aggregate liability arising from or relating to the Goods, whether in contract, tort, warranty, or otherwise, including under any warranty, shall not exceed the original purchase price paid by the Customer for the specific Goods giving rise to the claim.
This limitation applies cumulatively to all claims arising from the same product purchase, regardless of the number of claims or the theory of liability asserted.
8.6 Excluded Costs. To the fullest extent permitted by applicable law, the Company shall not be liable for labor, installation, removal, reinstallation, freight, contractor costs, project delay, design costs, inspection costs, testing costs, temporary accommodation costs, or any other associated expenses, whether arising under contract, warranty, tort, or any other theory of liability.
For California consumers, this exclusion does not apply to costs that the Company is required to bear under Cal. Civ. Code § 1793.2 in connection with a warranty repair or replacement accepted by the Company.
8.7 CONSEQUENTIAL DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE GOODS OR ANY WARRANTY CLAIM, INCLUDING WITHOUT LIMITATION LOSS OF USE, LOSS OF ENJOYMENT OF PROPERTY, LOSS OF PROFITS, PROJECT DELAY, COSTS OF SUBSTITUTE ACCOMMODATION, OR DAMAGE TO OTHER PROPERTY, REGARDLESS OF WHETHER THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY ASSERTED.
THIS EXCLUSION DOES NOT APPLY TO CALIFORNIA CONSUMERS TO THE EXTENT THAT THE SONG-BEVERLY CONSUMER WARRANTY ACT (CAL. CIV. CODE § 1790 ET SEQ.) ENTITLES THE CONSUMER TO CONSEQUENTIAL OR INCIDENTAL DAMAGES.
THIS EXCLUSION ALSO DOES NOT APPLY IN ANY OTHER STATE WHERE APPLICABLE LAW PROHIBITS THE EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES IN CONSUMER TRANSACTIONS.
8.8 Burden of Proof. In any warranty claim, the burden of proof rests with the Customer. To satisfy that burden, the Customer must demonstrate, through written documentation and professional evidence from suitably qualified professionals:
(a) that the Goods were installed in accordance with any Company guidelines and recognized industry standards applicable to the product type;
(b) that the Goods were maintained in accordance with the Company's general guidance and recognized industry standards applicable to the product type;
(c) the nature, location, and extent of the alleged Defect; and
(d) that the alleged defect is a Defect and not a result of normal wear and tear, aesthetic variation inherent in natural materials, improper installation, inadequate maintenance, or any other excluded cause.
The Company may engage an independent inspector to assess any warranty claim.
8.9 Claim Procedure and Inspection. As a condition of any warranty claim, the Customer must provide documentation reasonably requested by the Company including proof of purchase, installation methodology, and maintenance history (including information requested through the Company’s Project Discovery Form or similar process), and must allow the Company a reasonable opportunity to inspect the Goods before removal, alteration, repair or replacement.
If the information is not provided, the Company will be unable to assess the claim and the warranty terms will not be satisfied.
9.1 Company’s Right to Cancellation. The Company may stop delivery of Goods and cancel the contract if:
(1) the Company has reason to believe the Customer is insolvent;
(2) the Customer is not in good standing with the Company;
(3) the Customer is adjudicated bankrupt;
(4) any reason arising under Section 5.3 of this Agreement; and
(5) the Company gives reasonable notification to the Customer of such cancellation.
9.2 Customer’s Refund for Company’s Cancellation. Pursuant to Section 9.1 of this Agreement, if the Company cancels the contract or stops delivery of the Goods, the Company will repay the Customer for any money the Customer paid to the Company for such Goods the Customer has not received.
9.3 Company’s Limitation of Liability. The Company shall not be liable for any incidental or consequential damages arising from the Company’s cancellation of the contract or stopped delivery of Goods pursuant to Section 9.1 of this Agreement.
9.4 Customer’s Right of Cancellation. The Customer may cancel orders for stocked Goods within 30 days of sales order activation for:
(a) a credit on account with no penalty (if delivery or pick up has not been arranged); or
(b) a refund subject to a 30% restocking fee.
For Goods made to order for this Agreement, after activation of the Sales Order the order cannot be cancelled. If the Customer defaults on this Agreement, any Deposits paid will be forfeited.
10.1 Where the Company has designed, drawn, or developed Goods for the Customer, the copyright in those designs, drawings, and documents shall remain the property of the Company.
10.2 The Customer permits and releases any claims against the Company for the Company’s use of the Customer’s documents, designs, drawings, or Goods that the Customer has created for the Company, for the purpose of marketing or entry into any competition.
11.1 Customers Representations and Warranties. The Customer represents and warrants that all designs, specifications, or instructions given to the Company for the Customers Goods and/or Services will not cause the Company to infringe any patent, registered design, or trademark.
11.2 Customers Indemnification. The Customer shall indemnify the Company against any action taken by a third party against the Company in respect to any such infringement pursuant to Section 11.1 of this Agreement.
11.3 Company’s Representations and Warranties. The Company represents and warrants that the Customer is granted a single use license for the Company’s design pursuant to the Customer’s sales order.
12.1 Amendments. The parties shall not amend this Agreement, except by a writing, signed by both parties sought to be bound.
12.2 Governing Law. This Agreement is to be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles, except to the extent that the mandatory consumer protection laws of the Customer's state of residence provide rights to the Customer that cannot be waived by contract, in which case those mandatory provisions apply to the extent of that greater right.
12.3 Mediation. In the event any controversy arising under the sales order is not resolved through negotiations between the parties, the parties agree to participate in a non-binding mediation by an agreed upon neutral third party.
This mediation must be conducted and completed before any party may commence a civil action or arbitration.
Each side shall split the fees equally unless otherwise agreed upon by the parties, in writing.
If the parties cannot agree on a Mediator within 45 days of requesting mediation, Judicate West will provide 7 names of Mediators based on substantive and procedural knowledge, availability, and location.
12.4 Arbitration. Any controversy arising out of or pertaining to this contract, or its scope, interpretation, application, enforcement, or alleged breach that is not resolved through mediation shall be resolved through binding arbitration.
Each side shall bear the expense of the arbitration proceeding equally unless otherwise agreed upon.
The arbitration proceedings shall be governed by Judicate West Arbitration Rules of Procedure or any other rules the parties mutually agree upon in writing.
12.5 Attorney’s Fees. In the event of litigation relating to the sales order, the prevailing party is entitled to reasonable attorneys’ fees and costs.
12.6 Electronic Copies. Electronic copies of the sales order may be treated as originals.
12.7 Entire Agreement and Consistency with Warranty. These Terms of Trade, together with the applicable Warranty and the accepted sales order, constitute the entire agreement between the Company and the Customer with respect to the supply of Goods and supersede all prior representations, statements, or agreements, whether oral or written, relating to the same subject matter.
In the event of any inconsistency between these Terms of Trade and the Warranty, these Terms of Trade shall prevail.
In the event of any inconsistency between these Terms of Trade or the Warranty and any mandatory provision of applicable federal or state law, the applicable law shall prevail to the minimum extent necessary to make the Agreement compliant.
In the event of any conflict between these Terms of Trade and the terms of any sales order, these Terms of Trade shall prevail unless the sales order expressly states otherwise in writing signed by an authorized officer of the Company.