Terms and Conditions

THE TILE SUPPLY PTY LTD ACN 657 134 784

TERMS AND CONDITIONS

The terms and conditions set out below will apply to any Goods ordered/purchased by a Customer from The Tile Supply Pty Ltd ACN 657 134 784 (Tile Supply) (Terms & Conditions) and the order of such Goods will be evidence of the Customer’s agreement to these Terms & Conditions.

1.           DEFINITIONS

1.1       ACL means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) as amended;

1.2       Application means any application for credit completed and signed by the Customer and accepted by Tile Supply including the terms of any guarantee;

1.3       Customer means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any Application or other form as provided by Tile Supply to the Customer;

1.4       Guarantor means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis as set out in any Application;

1.5       Goods mean all goods supplied by Tile Supply to the Customer and are as described on the invoices, quotations, orders or any other forms as provided by Tile Supply to the Customer;

1.6       parties means the Customer, Tile Supply or the Guarantor and party means any of them;

1.7       PPSA means the Personal Property Securities Act 2009 (Cth) as amended;

1.8       PPSR means the Personal Property Securities Register;

1.9       Price means the Price payable for the Goods as agreed between Tile Supply and the Customer and otherwise in accordance with these Terms & Conditions;

1.10    Quotation or Quote means any estimate, quote or quotation for the Goods provided by Tile Supply to the Customer in accordance with these Terms & Conditions or otherwise; and

1.11    Tile Supply means The Tile Supply Pty Ltd ACN 657 134 784 its successors and assigns or any person acting on behalf of and with the authority of Tile Supply.

2.1       Goods are supplied by Tile Supply to the Customer on these Terms & Conditions to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these Terms & Conditions.

2.2       Any instructions received by Tile Supply from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Tile Supply will constitute acceptance of the Terms & Conditions.

2.3       Where the Customer has signed an Application:

2.3.1               The Customer acknowledges that any supply of Goods on credit will not take effect until the Customer has completed the Application with Tile Supply and it has been approved with a credit limit established for the account.

2.3.2               In the event that the supply of Goods request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, Tile Supply reserves the right to refuse delivery.

2.4       Where more than one (1) Customer has ordered Goods and agrees to these Terms & Conditions, each Customer will be jointly and severally liable for all payments of the Price and any other monies payable pursuant to the Terms & Conditions.

2.5       The Customer will give Tile Supply not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer will be liable for any loss incurred by Tile Supply as a result of the Customer’s failure to comply with this clause.

3.1       Any Quotation provided by Tile Supply is not an offer or obligation to sell but an invitation to treat only.

3.2       A Quotation is open for acceptance in the manner and within the period stated in the quotation or within thirty (30) days of the date of the Quotation if no period is stated.

3.3       Any order received by Tile Supply from the Customer must be in writing and contain such information as reasonably required by Tile Supply from time to time.

3.4       Tile Supply reserves the right to accept or reject any order it receives. Until Tile Supply accepts in writing any order submitted, Tile Supply is not obliged to provide any Goods.

3.5       The Customer acknowledges and agrees that it has satisfied itself with the suitability and fitness for purpose of the Goods prior to making any order and Tile Supply makes no representation and gives no guarantee or warranty that the Goods ordered are suitable for the Customer’s intended purpose.

3.6       Any order placed by the Customer cannot be varied or withdrawn without prior written consent from Tile Supply.

3.7       If an order is accepted by Tile Supply and the Customer cancels the order after the date that the order was accepted by Tile Supply, the Customer will forfeit any deposit paid for that order.

3.8       Tile Supply may order specific Goods from overseas suppliers or have Goods made to the Customer’s specification (indent orders).  Such orders cannot be cancelled, and any deposit paid will be non-refundable in all respects.

4.1       At Tile Supply’s sole discretion, the Price will be either:

4.1.1               as indicated on invoices provided by Tile Supply to the Customer in respect of Goods supplied; or

4.1.2               Tile Supply’s current price at the date of delivery of the Goods according to Tile Supply’s current price list.

4.2       Where Tile Supply provides a copy of its price list for the Goods, all prices published in the price list are subject to alteration or withdrawal without notice.

4.3       Tile Supply may request payment by the Customer of a non-refundable deposit of up to fifty percent (50%) of the price prior to the supply or delivery of the Goods.

4.4       Tile Supply may, in its sole discretion, require payment of the Price by the Customer either prior to or on delivery of the Goods.

4.5       Time for payment for the Goods will be of the essence and will be stated on the invoice (or sales order) for the supply of the Goods by Tile Supply to the Customer.  If no time is stated then payment of an invoice will be due prior to delivery of the Goods.

4.6       Payment of the Price must be made by cash, credit card, direct credit, or by any other method as agreed to between the Customer and Tile Supply.  Any payment of the Price by credit card may incur a surcharge of up to three percent (3%) of the Price.

4.7       Tile Supply reserves the right to vary the Price where the Customer requests a variation to the Goods (including but not limited to the quantity, number, style or delivery address).

4.8       Unless otherwise stated, GST and other taxes and duties that may be applicable will be added to the Price except when they are expressly included in the Price.

5.1       At Tile Supply’s sole discretion delivery of the Goods will take place when:

5.1.1               the Customer takes possession of the Goods at Tile Supply’s address; or

5.1.2               the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Tile Supply or Tile Supply’s nominated carrier); or

5.1.3               the Customer’s nominated carrier takes possession of the Goods in which event the carrier will be deemed to be the Customer’s agent.

5.2       Any date of delivery advised by Tile Supply is an estimate only and subject to change and delay.

5.3       At Tile Supply’s sole discretion, the costs of delivery are:

5.3.1               in addition to the Price; or

5.3.2               included in the Price; or

5.3.3               for the Customer’s account,

and Tile Supply will advise the Customer of the costs of delivery.

5.4       The Customer will make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged, Tile Supply will be entitled to charge a reasonable fee for storage and/or redelivery.

5.5       Where the Customer (or its nominated carrier or agent) collects the Goods, the Customer:

5.5.1               will collect Goods at the Tile Supply’s nominated pick up area and comply with all site requirements and directions of Tile Supply;

5.5.2               is responsible in all respects for the loading, unloading and securing of the Goods and compliance with the laws regarding the transit of such Goods;

5.5.3               indemnifies Tile Supply for any loss, damage or claim that may occur to its people, property or invitees as a result of the Customer’s collection of the Goods.

5.6       Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these Terms & Conditions.

5.7       Where the Customer expressly requests Tile Supply to either:

5.7.1               leave Goods outside Tile Supply’s nominated business premises for collection; or

5.7.2               to deliver the Goods to an unattended location,

such Goods will be left at the nominated location at the Customer’s sole risk.

5.8       Tile Supply may, in its sole discretion, deliver the Goods by separate instalments. Each separate instalment will be invoiced by Tile Supply and paid by the Customer in accordance with these Terms & Conditions.

5.9       The Customer will take delivery of the Goods tendered notwithstanding that the quantity so delivered will be either greater or lesser than the quantity purchased provided that the Price will be adjusted pro rata to the discrepancy.  Tile Supply will advise the Customer where the Goods tendered in any one unit are greater than a five percent (5%) discrepancy.

5.10    The failure of Tile Supply to deliver Goods by a certain date will not entitle either party to treat these Terms & Conditions as repudiated.

5.11    Tile Supply will not be liable for any loss or damage whatsoever due to failure by Tile Supply to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Tile Supply. 

5.12    The Customer acknowledges and agrees that lead times for the supply of certain Goods vary between suppliers and type of Good and delays can occur which are out of the control of Tile Supply.  Tile Supply will not be liable in any respect for any delays on delivery of any Good.

6.1       Tile Supply will only store Goods for an on behalf of a Customer with prior written agreement and otherwise on the following terms and conditions:

6.1.1               Tile Supply may impose a storage fee for storage of Goods and will issue a separate invoice to the Customer for such fees;

6.1.2               Tile Supply will not store Goods for any period in excess of three (3) months from the date of invoice for the Goods to the Customer;

6.1.3               In the event the Customer fails to collect the Goods before the expiry of the three (3) month period, the Goods will be deemed abandoned and Tile Supply may elect to sell or dispose of the Goods as it deems fit;

6.1.4               Notwithstanding clause 9, risk in the Goods during storage with Tile Supply remains with the Customer and Tile Supply makes not representation or gives no warranty as to the location or the manner in which in the Goods will be stored.

7.1       The Customer acknowledges and agrees that any quantities of Goods calculated by Tile Supply at the request of the Customer:

7.1.1               from specifications, designs or other information provided by the Customer; or

7.1.2               from specifications, designs or other information provided by another party on behalf of the Customer (including but not limited to the Customer’s employee, builder or tiler),

are approximate only and Tile Supply accepts no responsibility for their accuracy.

7.2       The Customer acknowledges and agrees that:

7.2.1               it is the Customer’s responsibility to check quantities, including any quantities calculated by Tile Supply or any third party, by completing an on-site measurement before commencing the laying, installing or use of the Goods;

7.2.2               if an insufficient or excess of quantity of Goods has been ordered for any reason, including but not limited to:

(i)                the incorrect measurement of plans by any party;

(ii)                the incorrect calculation of quantities by any party;

(iii)            changes to the plan or design; or

(iv)            excess tile cutting wastage,

then:

(v)                    The Tile Supply accepts no responsibility or liability for the future availability of the same type of Goods, any variation of colour, shading or pattern in further batches of tiles supplied to the Customer or the inability to return or supply more of the Goods at all; and

(vi)                   the Customer must pay the Price for the supply of any additional Goods required to complete the work where insufficient quantity has been supplied.  

8.1       Tile Supply and the Customer agree that ownership of the Goods will not pass until:

8.1.1               the Customer has paid Tile Supply all amounts owing for the particular Goods; and

8.1.2               the Customer has met all other obligations due by the Customer to Tile Supply in respect of all contracts between Tile Supply and the Customer.

8.2       Tile Supply’s title or rights in the Goods will continue until any form of payment by a Customer has been received, honoured, cleared or acknowledged by Tile Supply

8.3       The parties acknowledge and agree as follows:

8.3.1               where practicable the Goods will be kept separate and identifiable until Tile Supply has received payment and all other obligations of the Customer are met;

8.3.2               until such time as ownership of the Goods passes from Tile Supply to the Customer, Tile Supply may give notice in writing to the Customer to return the Goods or any of them to Tile Supply Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods will cease;

8.3.3               Tile Supply will have the right of stopping the Goods in transit whether or not delivery has been made;

8.3.4               if the Customer fails to return the Goods to Tile Supply then Tile Supply or Tile Supply’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods;

8.3.5               the Customer is only a bailee of the Goods and until such time as Tile Supply has received payment in full for the Goods then the Customer will hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Tile Supply for the Goods, on trust for Tile Supply;

8.3.6               the Customer will not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Tile Supply;

8.3.7               Tile Supply may issue proceedings to recover the Price of the Goods sold notwithstanding that title to the Goods may not have passed to the Customer; and

8.3.8               until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Tile Supply will be the owner of the end products.

9.1       Notwithstanding clause 8, all risk for the Goods passes to the Customer on delivery of the Goods in accordance with these Terms & Conditions.

9.2       If any of the Goods are damaged or destroyed following delivery but prior to title passing to the Customer, Tile Supply is entitled to receive all insurance proceeds payable for the Goods. The Customer will be liable for any claim processing fee.

9.3       The production of these Terms & Conditions by Tile Supply is sufficient evidence of Tile Supply’s rights to receive the insurance proceeds without the need for any person dealing with Tile Supply to make further enquiries.

10.1    The Customer shall inspect the Goods on delivery and shall within two (2) days of delivery (time being of the essence) notify Tile Supply of any alleged defect, shortage in quantity, damage or failure to comply with the description or quotation.

10.2    The Customer shall afford Tile Supply an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way.

10.3    If the Customer shall fail to comply with this clause the Goods shall be presumed to be free from any defect or damage.

10.4    For defective Goods, which Tile Supply has agreed in writing that the Customer is entitled to reject, Tile Supply’s liability is limited to either (at Tile Supply’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the ACL or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.

10.5    The Customer acknowledges and agrees to the following and that the below do not constitute defects and are common occurrences for such products:

10.5.1             due to the nature of the Goods being sold, the colour, nature and size of Goods may vary from batch to batch (or from any sample provided) due to manufacturing processes and the Customer will make no claim against Tile Supply in the event of such variations;

10.5.2             Goods which are natural stone may contain, display or be subject to microchipping on its edges, shelling, variations in colour, size, pattern, veining, markings, grain structure, texture, porosity, weight, surface and finish and fading or changing of colour over time;

10.5.3             Goods which are engineered may contain, display or be subject to slight variations in colour, shade, pattern, marking, texture and finish and may fade or change colour over time, variations in calibration or optical effects such as hazing or smudging at varying light sources and at differing angles.

11.1    Returns of a Good will only be accepted provided that:

11.1.1             the Customer has complied with these Terms & Conditions; and

11.1.2             Tile Supply has agreed in writing to accept the return of the Goods; and

11.1.3             the Goods are returned at the Customer’s cost within seven (7) days of the delivery date;

11.1.4             a Customer pays Tile Supply’s current restocking/handling fee and any charges incurred by Tile Supply for the return of the Goods (including but not limited to freight costs of return of Goods to suppliers and supplier handling fees); and

11.1.5             the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

11.2    Tile Supply will not be liable for defects or the deterioration of Goods which, in the opinion of Tile Supply have been caused by careless or improper handling, negligence, misuse or non-adherence to storage and handling requirements.

11.3    Tile Supply will not accept the return of Goods for credit. 

11.4    Tile Supply will not accept return or credit for:

11.4.1             non-stocklist items

11.4.2             Goods ordered from overseas;

11.4.3             Goods made to the Customer’s specifications; and/or

11.4.4             Goods that are used, unpackaged or installed.

12.1    Subject to Tile Supply’s statutory obligations under the ACL the following provisions apply:

12.1.1             Tile Supply’s liability for a breach of a condition or warranty implied by Pt 3–2 Div 1 of the ACL is limited to:

(i)                     In the case of goods, any one (1) or more of the following:

(A)              the replacement of the Goods or the supply of equivalent goods

(B)         the repair of the Goods;

(C)         the payment of the cost of replacing the Goods or of acquiring equivalent goods

(D)         the payment of the cost of having the Goods repaired; or

(ii)                    In the case of services:

          (A)              the supplying of the services again; or

          (B)              the payment of the cost of having the services supplied again.

12.1.2             Subject to Tile Supply’s statutory obligations under the ACL and except as provided in these Terms & Conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. 

12.1.3             Tile Supply is not liable in any respect to the Customer for any claim, physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out:

(i)                     the selection of Goods by the Customer;

(ii)                    the suitability of the Goods for the Customer or the Customer’s purpose;

(iii)                   the supply, layout, assembly, installation or operation of the Goods;

(iv)                   the products used in the assembly or installation of the Goods;

(v)                    the sealing or not sealing of the Goods; and/or

(vi)                   the products used in the care of the Goods once they are installed,

howsoever arising.

12.1.4             Tile Supply’s liability under S274 of the ACL is expressly limited to a liability to pay the Customer an amount equal to:

(i)                     the cost of replacing the Goods;

(ii)                    the cost of obtaining equivalent Goods; or

(iii)                   the cost of having the Goods repaired, 

whichever is the lowest amount.

12.2    Mandatory: Our goods come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.

13.1    In this clause:

13.1.1             financing statement has the meaning given to it by the PPSA;

13.1.2             financing change statement has the meaning given to it by the PPSA;

13.1.3             security agreement means the security agreement under the PPSA created between the Customer and Tile Supply by these Terms & Conditions; and

13.1.4             security interest has the meaning given to it by the PPSA.

13.2    Upon assenting to these Terms & Conditions in writing the Customer acknowledges and agrees that these Terms & Conditions:

13.2.1             constitute a security agreement for the purposes of the PPSA; and

13.2.2             create a security interest in:

(i)                     all Goods previously supplied by Tile Supply to the Customer (if any);

(ii)                    all Goods that will be supplied in the future by Tile Supply to the Customer.

13.3    The Customer undertakes to:

13.3.1             promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Tile Supply may reasonably require to:

(i)                     register a financing statement or financing change statement in relation to a security interest on the PPSR;

(ii)                    register any other document required to be registered by the PPSA; or

(iii)                   correct a defect in a statement referred to in clause (i) or clause (ii);

13.3.2             indemnify, and upon demand reimburse, Tile Supply for all expenses incurred in registering a financing statement or financing change statement on the PPSR or releasing any Goods charged thereby;

13.3.3             not register a financing change statement in respect of a security interest without the prior written consent of Tile Supply;

13.3.4             not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Tile Supply; and

13.3.5             immediately advise Tile Supply of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

13.4    Tile Supply and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms & Conditions.

13.5    The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

13.6    The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

13.7    Unless otherwise agreed to in writing by Tile Supply the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

13.8    The Customer will unconditionally ratify any actions taken by Tile Supply under clause 13.3 , clause 13.4 and clause 13.5.

14.1    Interest on overdue invoices will accrue daily from the date when payment becomes due, until the date of payment, at a rate of fifteen percent (15%) per annum (and at Tile Supply’s sole discretion such interest will compound monthly) after as well as before any judgment.

14.2    In the event that the Customer’s payment is dishonoured for any reason, the Customer will be liable for any dishonour fees incurred by Tile Supply.

14.3    If the Customer defaults in payment of any invoice when due, the Customer will indemnify Tile Supply from and against all costs and disbursements incurred by Tile Supply in pursuing the debt including legal costs on a solicitor and own Customer basis and Tile Supply’s collection agency costs (to the extent permitted by law).

14.4    Without prejudice to any other remedies Tile Supply may have, if at any time the Customer is in breach of any obligation (including those relating to payment) Tile Supply may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the Terms & Conditions. Tile Supply will not be liable to the Customer for any loss or damage the Customer suffers because Tile Supply has exercised its rights under this clause and these Terms & Conditions.

14.5    Without prejudice to Tile Supply’s other remedies at law, Tile Supply will be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Tile Supply will, whether or not due for payment, become immediately payable in the event that:

14.5.1             any money payable by the Customer to Tile Supply becomes overdue or, in Tile Supply’s opinion, the Customer will be unable to meet its payments as they fall due; or

14.5.2             the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

14.5.3             a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

15.1    Tile Supply may cancel any order to which these Terms & Conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Tile Supply will repay to the Customer any sums paid in respect of the Price. Tile Supply will not be liable for any loss or damage whatsoever arising from such cancellation.

15.2    In the event that the Customer cancels delivery of Goods, the Customer will be liable for any loss incurred by Tile Supply (including, but not limited to, any loss of profits) up to the time of cancellation.

15.3    Cancellation of orders for Goods made to the Customer’s specifications, non-stocklist items or ordered from overseas will definitely not be accepted.

16.1    The Customer and/or the Guarantors acknowledge and agree that:

16.1.1             the Tile Supply’s Privacy Policy and Credit Reporting Policy (as may be amended from time to time) is as set out on Tile Supply’s website located at thetilesupply.com.au; and

16.1.2             the Customer and the Guarantors have familiarised themselves with the terms of these policies.

17.1     If:

17.1.1             any provision of these Terms & Conditions will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired;

17.1.2             any provisions of these Terms & Conditions are inconsistent with the PPSA, the PPSA will prevail to the extent of that inconsistency.

17.2    These Terms & Conditions and any contract to which they apply will be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.

17.3    To the extent permitted by law:

17.3.1             Tile Supply will be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Tile Supply of these Terms & Conditions;

17.3.2             In the event of any breach of this contract by Tile Supply the remedies of the Customer will be limited to damages which under no circumstances will exceed the Price of the Goods.

17.4    Tile Supply may communicate with the Customer by way of email, text message, website, post or otherwise as it shall determine in its sole discretion and the Customer will ensure it provides update contact detail to Tile Supply at all times.

17.5    The Customer will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Tile Supply nor to withhold payment of any invoice because part of that invoice is in dispute.

17.6    Tile Supply may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

17.7    The Customer agrees that Tile Supply may review these Terms & Conditions at any time. If, following any such review, there is to be any change to these Terms & Conditions, then that change will take effect from the date on which Tile Supply notifies the Customer of such change. The Customer will be under no obligation to accept such changes except where Tile Supply supplies further Goods to the Customer and the Customer accepts such Goods.

17.8    Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

17.9    The failure by Tile Supply to enforce any provision of these Terms & Conditions will not be treated as a waiver of that provision, nor will it affect Tile Supply’s right to subsequently enforce that provision.