1. Definitions
    1. “Company” shall mean The Tile Mob Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of The Tile Mob Pty Ltd.
    2. “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation, invoice, sales order, order confirmation, tile enquiry, tiles estimate, authority to hire or other form as provided by the Company to the Customer.
    3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
    4. “Equipment” shall mean all Equipment including any accessories supplied on hire by the Company to the Customer (and where the context so permits shall include any supply of services). The Equipment shall be as described on the invoices, quotations, sales orders, order confirmations, tile enquiries, tile estimates, authority to hire or any other work authorisations form provided by the Company to the Customer.
    5. “Goods” shall mean Goods supplied by the Company to the Customer including but not limited to: ceramic tiles, porcelain tiles, natural stone tiles, mosaic tiles, glass tiles, adhesives, sealers and Goods incidental to installation of tiles (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotations, sales orders, order confirmations, tile enquiries, tile estimates, authority to hire or any other work authorisations form as provided by the Company to the Customer.
    6. “Services” shall mean all Services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
    7. “Price” shall mean the Price payable for the Goods as agreed between the Company and the Customer in accordance with clause 4 of this contract.
  1. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
    1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
  1. Acceptance
    1. Any instructions received by the Company from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
    2. The Customer acknowledges and agrees that Prices quoted are structured on a per piece basis and where applicable a covered square meter price is given to take into account industry accepted norms for jointing requirements.
    3. Where the Company gives advice, recommendations, information, assistance or service to the Customer or the Customers agent, regarding the Goods or Services then it is given in good faith and the Company shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on the same.
    4. Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
    5. Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Company.
    6. Where the Customer is a debtor of the Company, the Customer shall give the Company 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, telephone number, facsimile number, e-mail address, ABN number, business practice, trading style or structure). Where the Customer has an approved credit facility with the Company, the Customer agrees to notify the Company of any pending legal action against the Customer by another creditor. The Customer shall be liable for any loss incurred by the Company as a result of the Customer’s failure to comply with this clause.
    7. Goods are supplied by the Company only on the terms and conditions of trade herein 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 and conditions of trade, unless such terms and conditions have been agreed to in writing in advance by the Company.
  1. Price and Payment
    1. At the Company’s sole discretion the Price shall be either:
      1. as indicated on invoices, sales orders, order confirmations (all of which are always issued on an E&OE basis) provided by the Company to the Customer in respect of Goods supplied; or
      2. the Company’s Price at the date of delivery of the Goods according to the Company’s current pricelists (which are always issued on an E&OE basis); or
      3. the Company’s quoted Price (subject to clause 4.3) which shall be binding upon the Company provided that the Customer shall accept the Company’s quotation in writing within thirty (30) days.
    2. All pricelists:
      1. are issued on an E&OE basis; and
      2. supersede all previous pricelists which have an earlier issue date; and
      3. are subject to change without notice; and
      4. are not to be construed as an offer; and any item not included on a pricelist should be considered unavailable, deleted or discontinued.
    3. The Company reserves the right to change the Price in the event of a variation to the Company’s quotation. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation due to unforeseen circumstances, or as a result of fluctuations in the currency exchange rate, government charges, or due to ocean freight charges being incurred, or as a result of increases to the Company in the cost of finished goods, materials and labour) will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
    4. At the Company’s sole discretion a deposit may be required for an order to be confirmed.
    5. At the Company’s sole discretion:
      1. payment shall be due before delivery of the Goods.
      2. payment for approved account holder’s shall be due thirty (30) days following the end of the month in which a statement/invoice is posted, faxed or emailed to the Customer’s address or address for notices (e.g. October purchases are payable on/before 30 November).
    6. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due before delivery of the Goods.
    7. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and the Company.
    8. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
  1. Delivery of Goods
    1. All Goods, unless specifically noted, are sold “ex store” on a “freight forward” basis and are transported at the Customer’s risk and expense. The Customer is responsible for arranging insurance for the Goods. The Company’s responsibility for damage to, or shortage of, the Goods ceases upon dispatch or pickup from the Company’s premises.
    2. The Company reserves the right to subcontract commercial carriers to deliver Goods on the Customer’s behalf and at the Customer’s risk.
    3. At the Company’s sole discretion delivery of the Goods shall take place when the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Company or the Company’s nominated carrier).
    4. At the Company’s sole discretion the costs of delivery are in addition to the Price and, where applicable, charged to the Customer’s account.
    5. The Customer shall 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 then the Company shall be entitled to charge a reasonable fee for redelivery.
    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 this agreement.
    7. The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    8. The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
    9. The Company shall not be liable for any loss or damage whatsoever due to failure by the Company to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Company.
    10. The delivery records of the Company shall be prima facie proof of delivery of the Goods to the Customer of the quantity and description stated therein, in good order and condition, and the Customer’s receipt thereof in the same condition.
  1. Risk
    1. If the Company retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
    2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
    3. Where the Customer expressly requests the Company to leave Goods outside the Company’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
    4. If delivery is delayed as a consequence of the Customer’s instructions, or lack thereof, then the Company may at its sole discretion, store the Goods for the Customer (at the Customer’s risk) and the Customer shall be liable for all storage costs charged or incurred by the Company and in the event that the Goods are stored elsewhere all cartage charges incurred by the Company.
    5. The Customer acknowledges:
      1. and agrees that:
        1. pallet, container and indent prices, where given, are not to be construed as quotations and the Company reserves the right to withdraw or vary such prices; and
        2. the Company recommends that immediately after installing or applying the Goods, suitable protective measures be taken to avoid unnecessary damage to the Goods. The Company shall not be held liable for any loss, damages, or costs however resulting from tile and other goods becoming scratched by foreign abrasive material, stained or contaminated with foreign substances during or after installation or application; and
        3. any boards, stands, samples or promotional hardware provided by the Contractor to the Customer are on a loan only basis and will remain the property of the Company and must be available for return upon request. The Customer shall be liable for any loss, damages or costs however resulting to the promotional hardware while on loan in the Customer’s possession
      2. samples of Goods are supplied as a guide only; and
      3. that shade and size variation is inherent in all kiln-fired products including ceramic, glass, porcelain and terracotta tiles and may be evident between shipments of particular Goods, or even among Goods of one type from the same shipment; and
      4. that ceramic glazes are not guaranteed against crazing.
    6. The Customer acknowledges that:
      1. Goods supplied may exhibit variations in shade, colour, durability, texture, size, weight, dimensions, surface and finish, and may fade or change colour over time. The Company will make every effort to match batches of product supplied, or to match batches of product to sales samples, catalogues, marketing literature or website images in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur; and
      2. all Goods made from natural products including but not limited to: terracotta, wood, stone, slate, marble, sandstone and granite are sold on the basis that they are man-manipulated (but not man-made) and are therefore sold with no guarantee or warranty whatsoever. Such Goods may exhibit significant variations in colour, physical dimensions, density, surface texture, slip-resistance and markings, veining and pattern from one piece to the next; and
      3. any Goods produced through polishing, grinding or honing processes may, with varying light sources and at differing angles, display optical effects such as hazing or smudging as an inherent characteristic. These are visual effects only and do not affect the performance or life span of the Goods and is not considered a defect by the relevant Australian Standard; and
      4. all natural stone, terracotta and other porous tiles and Goods may be subject to salt attack and must be kept properly sealed at all times – including any bullnosed or exposed edges. As a rule-of-thumb, when water no longer “beads” on the surface of porous tiles and Goods, they then require re-sealing. Porous tiles and Goods must have an effective, working sealer barrier present at all times to be properly sealed and inhibit salt infiltration.
    7. The Company shall not be held liable for any loss, damages, or costs however resulting from any acids, chemical compounds, abrasives or solvents used in the cleaning or installation of any Goods. This is irrespective of whether or not the cleaning is conducted by the Company, the Customer, or a third party (provided that it was conducted as a result of the Customer’s direct request). Hydrochloric acid in particular, should never be used on the surface of any type of tile, natural stone or terracotta.
    8. In the event the Customer requires tradesman or contractors to complete the works or installation of the Goods supplied by the Company, or other goods held by the Customer, the Company can supply other contractors’ names or details, however this does not imply that the Company guarantees their workmanship or professional conduct, and shall not be held liable for any loss, damages or costs however resulting from the Customer using the names or details supplied by the Company.
    9. The Company, its employees, agents and subcontractors are not liable for any expense or injury arising from the use, misuse, storage or transport of any Goods supplied.
  1. Customer’s Responsibilities
    1. The Customer acknowledges and agrees that it is their responsibility to:
      1. Upon delivery and before laying, installation or use, to check and inspect all Goods for correctness of type, quantity, quality, aesthetics / appearance and suitability of purpose before installation. In the case of tiles and items sold by the square metre, or designed to cover a surface, these Goods should be laid out to dry (without adhesive) in final situ with adequate lighting for inspection and approval of the Goods. In cases where the Customer is a re-seller or trade contractor procuring the Goods and arranging their installation for a client, or on-selling the Goods, the final intended owner(s) of the Goods should always conduct and be present for this inspection of the Goods prior to approving laying, installation or use of the same. NOTE: The act of laying, installing and using the Goods constitutes the Customer’s full and unconditional acceptance and approval of all the characteristics of the Goods in all regards. No claims whatsoever will be accepted in regard to correctness of type, quantity, quality, aesthetics / appearance, and suitability of purpose after laying, installation or use; and
      2. ensure that the method by which the Customer, or their subcontractor, proposes to install or apply the Goods are in accordance with accepted industry standards (e.g. AS3958.1-2007 or its successor Standards), are satisfactory for the purpose intended, and that all instructions issued by the manufacturer of the Goods, adhesive, grout and other incidental materials used are precisely followed (and safe-work practices) are followed during installation, including but not limited to: use of eye and hearing protection, observation of electrical safety; and
      3. ensure that a receipt note is obtained from the Company on delivery. Goods shall not be accepted for return or as a defect if no receipt note can be shown by the Customer; and
      4. ensure that sufficient Goods are purchased to complete the works. The Company cannot guarantee the ongoing or future supply of any Goods. Quantity estimates of Goods required, and provided to the Customer by the Company, their employees or associates are purely estimates, and as such, the Company will not accept any liability for any shortfall or oversupply of Goods; and
      5. maintain the Goods after laying, installation or use in ways including but not limited to: observing a proper cleaning regimen, keeping abrasive materials (e.g. sand) away from the Goods, protecting Goods from impact damage by foreign objects, and keeping natural stone tiles, marble tiles, slate, terracotta tiles, porcelain tiles or other porous Goods properly sealed at all times so that water “beads” on the surface at all times and does not penetrate any porous tile varieties.
  1. Title
    1. The Company and the Customer agree that ownership of the Goods shall not pass until:
      1. the Customer has paid the Company all amounts owing for the particular Goods; and
      2. the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.
    2. Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership or rights in respect of the Goods shall continue.
    3. It is further agreed that:
      1. where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Customer are met; and
      2. until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
      3. the Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and
      4. if the Customer fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
      5. the Customer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Company for the Goods, on trust for the Company; and
      6. the Customer shall not deal with the money of the Company in any way which may be adverse to the Company; and
      7. the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company; and
      8. the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
      9. until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products.
  1. Personal Property Securities Act 2009 (“PPSA”)
    1. In this clause:
      1. financing statement has the meaning given to it by the PPSA;
      2. financing change statement has the meaning given to it by the PPSA;
      3. security agreement means the security agreement under the PPSA created between the Customer and the Company by these terms and conditions; and
      4. security interest has the meaning given to it by the PPSA.
    2. Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions:
      1. constitute a security agreement for the purposes of the PPSA; and
      2. create a security interest in:
        1. all Goods previously supplied by the Company to the Customer (if any);
        2. all Goods that will be supplied in the future by the Company to the Customer.
    3. The Customer undertakes to:
      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 the Company may reasonably require to:
        1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        2. register any other document required to be registered by the PPSA; or
        3. correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
      2. indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
      3. not register a financing change statement in respect of a security interest without the prior written consent of the Company;
      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 the Company; and
      5. immediately advise the Company 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.
    4. The Company and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    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.
    6. The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    7. Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
    8. The Customer shall unconditionally ratify any actions taken by the Company under clauses 9.3 to 9.5.
  2. Security and Charge
    1. Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:
      1. where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
      2. should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own Customer basis.
      3. the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 10.1.
  1. Defects
    1. The Customer shall inspect the Goods on delivery (before laying, installation or use) by checking and inspecting all Goods for correctness of type, quantity, quality, aesthetics / appearance and suitability of purpose prior to installation. The act of laying, installing or use the Goods constitutes the Customer’s full and unconditional acceptance and approval of all the characteristics of the Goods in all regards.
    2. The Customer shall within two (2) days of delivery (time being of the essence) notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description, quote or sample. The Customer shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s absolute discretion) re-delivering the Goods or equivalent Goods (no installation, re-installation, removal or labour charges of any kind are payable) or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) 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 re-delivery of the Goods or equivalent Goods (no installation, re-installation, removal or labour charges of any kind are payable). No further damages in respect of any defect claim are applicable.
    3. ISO13006-1998 and AS4662-2003 (Ceramic tiles – definitions, classification, characteristics and marking) allow that ninety-five percent (95%) of tiles packed as first quality to actually be firsts. This requirement is less than one hundred percent (100%) to allow for a margin of human error. Defects which render tiles second quality may include but are not limited to: minor chips, glaze faults, shading variation, specks and spots (etc); and are all aesthetic rather than structural, and hence a second quality tile will have the same physical performance as first quality tiles without the same appearance characteristics. It should be noted that with some surface blemishes such as spots and specks, the actual size of the spot or speck which is acceptable as either a first or second quality will vary from tile type to tile type, depending on colour, pattern, surface treatment and intended application.
    4. EN1469 (Natural Stone Products for Cladding) allows for specific + / – variations in tolerances and dimensions between pieces for natural stone cut to specific sizes. Depending on size format, allowable size and thickness variation can be up to + / – 10% or as much as + / – 5mm.
  1. Returns
    1. Returns will only be accepted provided that:
      1. the Customer has complied with the provisions of clause 11.1; and
      2. the Company has agreed in writing to accept the return of the Goods; and
      3. the Goods are returned at the Customer’s cost within twenty-one (21) days of the delivery date; and
      4. the Company will not be liable for Goods which have not been stored or used in a proper manner; and
      5. the Goods are returned with the invoice or receipt note that was issued upon delivery; and
      6. the Goods are returned in the condition in which they were delivered, remain in original unopened boxes and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances, and be from current, general stock presently held in store by the Company.
    2. The Company may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to twenty-five percent (25%) of the value of the returned Goods plus any freight costs.
    3. Goods sold in pallet or container lots, or sold at wholesale or discount Prices, or sold as run of kiln or second quality, or Goods specifically sourced, bought-in, ordered or indented, are under no circumstances acceptable for credit or return.
    4. Non-stocklist items, discontinued items, Goods which are no longer current batches / shades / calibres or Goods made to the Customer’s specifications are under no circumstances acceptable for credit or return.
    5. A goods receipt must be obtained by the Customer from the Company as proof of return of Goods. No responsibility or liability is accepted for Goods returned or left without a receipt having been issued by the Company.
    6. The Company reserves the right to refuse to accept any Goods for credit at its sole discretion.
  1. Warranty
    1. Subject to the conditions of warranty set out in clause 13.2, the Company warrants that if any defect in the Goods as judged by the prevailing Australian Standard (if applicable) for those Goods, becomes apparent and is reported to the Company within six (6) months of the date of delivery (time being of the essence) then the Company will in its absolute discretion attempt to repair the Goods, or in the event that the Goods cannot be repaired, re-deliver the Goods with the same or equivalent Goods, or refund the purchase price of the Goods. No installation, re-installation, materials removal or labour charges, or further damages of any kind are payable or form part of this warranty.
    2. The conditions applicable to the warranty given by clause 13.1 are:
      1. the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
        1. failure on the part of the Customer, or their subcontractor, to properly maintain any Goods (including but not limited to: observing a proper cleaning regimen or failing to keep natural stone tiles, marble tiles, slate, sandstone, granite, terracotta tiles, porcelain tiles or other porous goods properly sealed at all times so that water “beads” on the surface at all times and does not penetrate any porous tile varieties); or
        2. failure on the part of the Customer, or their subcontractor, to precisely follow any instructions or guidelines provided by the Company; or
        3. any use of any Goods otherwise than for any application specified on a quote or order form or manufacturer’s recommendation; or
        4. the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
        5. fair wear and tear, natural occurrence, any accident or act of God; or
        6. failure on the part of the Customer, or their subcontractor, to report to the Company prior to laying, installation or use any pre-existing issue relating to the Goods, including but not limited to those of an aesthetic or visual nature which were present prior to the laying, installation or use of the Goods, and subsequently forms the basis of a claim by the Customer; or
        7. failure by the Customer to adequately inform the Company before delivery of any special site-situational requirements and special characteristics or physical properties required of the Goods for the Customer’s proposed application. This may include but is not limited to requirements for: high impact resistance, a particular slip-resistance requirement, suitability for immersion in water and suitability for heavy traffic areas; or
        8. failure by the Customer, or their subcontractor, to install the Goods in accordance with the prevailing Australian Standard (e.g. AS3958.1-2007 or its successor Standard); or
        9. failure by the Customer, or their subcontractor, to precisely follow installation, use, maintenance or other instructions as they may appear on the manufacturer’s packaging, literature or internet website; or
        10. failure by the Customer, or their subcontractor, to precisely follow all instructions issued by the manufacturer of the adhesive, grout and other incidental materials used as they may appear on their packaging, literature or internet website.
      2. the warranty shall cease and the Company shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Company’s consent.
      3. in respect of all claims the Company shall not be liable to compensate the Customer for any delay in either re-delivering or remedying the workmanship or in properly assessing the Customer’s claim.
      4. the warranty is limited to replacement value of the Goods only (no installation, re-installation, removal or labour charges or further damages of any kind are payable) and the Company shall not be liable for any consequential loss or damage that may arise from the defective Goods.
    3. For Goods under warranty from the original supplier to the Company, the warranty shall be the current warranty provided by the supplier of the Goods. The Company shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the supplier or manufacturer of the Goods.
    4. Goods made from natural products including but not limited to: terracotta, wood, stone, slate, marble, sandstone and granite are sold on the basis that they are man-manipulated (but not man-made) and are therefore sold with no guarantee or warranty whatsoever.
    5. Any agents, resellers or distributors of the Company are agents for sale only and are not authorised to extend or vary this warranty.
    6. In the event of a claim, the Company reserves the right to delegate representation on its behalf in relation to the matter to third parties including but not limited to the Company’s liability insurer.
  1. Intellectual Property
    1. Where the Company has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in the Company, and shall only be used by the Customer at the Company’s discretion.
    2. The Customer warrants that all designs or instructions to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Company against any action taken by a third party against the Company in respect of any such infringement.
    3. The Customer hereby authorises the Company to utilise images of the Goods designed or drawn by the Company in advertising, marketing, or competition material by the Company.
  1. Default and Consequences of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Company’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Company.
    3. If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
    4. Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
    5. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
    6. Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:
      1. any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due; or
      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
      3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
  1. Cancellation
    1. The Company may cancel any contract to which these terms and 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 the Company shall repay to the Customer any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatsoever arising from such cancellation.
    2. In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits or forfeiture of deposits paid) up to the time of cancellation.
    3. Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.
  1. Privacy Act 1988
    1. The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Company.
    2. The Customer agrees that the Company may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
      1. to assess an application by the Customer; and/or
      2. to notify other credit providers of a default by the Customer; and/or
      3. to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
      4. to assess the creditworthiness of the Customer.

The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

    1. The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
    2. The Customer agrees that personal credit information provided may be used and retained by the Company for the following purposes (and for other purposes as shall be agreed between the Customer and Company or required by law from time to time):
      1. the provision of Goods; and/or
      2. the marketing of Goods by the Company, its agents or distributors; and/or
      3. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
      4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
      5. enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
    3. The Company may give information about the Customer to a credit reporting agency for the following purposes:
      1. to obtain a consumer credit report about the Customer;
      2. allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
    4. The information given to the credit reporting agency may include:
      1. personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
      2. details concerning the Customer’s application for credit or commercial credit and the amount requested;
      3. advice that the Company is a current credit provider to the Customer;
      4. advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
      5. that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
      6. information that, in the opinion of the Company, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);
      7. advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
      8. that credit provided to the Customer by the Company has been paid or otherwise discharged.
  1. Unpaid Company’s Rights
    1. Where the Customer has left any item with the Company for repair, modification, exchange or for the Company to perform any other Service in relation to the item and the Company has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Company shall have:
      1. a lien on the item;
      2. the right to retain the item for the Price while the Company is in possession of the item;
      3. a right to sell the item.
    2. The lien of the Company shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
  1. Equipment Hire
    1. The Equipment shall at all times remain the property of the Company and is returnable on demand by the Company. In the event that the Equipment is not returned to the Company in the condition in which it was delivered the Company retains the right to charge the Price of repair or replacement of the Equipment.
    2. The Customer shall:
      1. keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to lien over the Equipment.
      2. not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
      3. keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by the Company to the Customer.
    3. The Customer accepts full responsibility for the safekeeping of the Equipment and the Customer agrees to insure, or self insure, the Company’s interest in the Equipment and agrees to indemnify the Company against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
  1. General
    1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
    3. The Company shall 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 the Company of these terms and conditions.
    4. In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
    5. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
    6. The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
    7. The Customer agrees that the Company may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company publishes such change(s) at www.tilemob.com.au/conditions.
    8. Neither party shall 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. The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision. The Company’s internet website www.tilemob.com.au is for information purposes only and provided in good faith. Neither the Company or its agents take responsibility for any errors or omissions.
    9. Clerical errors, typing errors or other errors in computation, quotation, invoice, delivery docket, credit note or on other documents issued by the Company shall be excepted and subject to correction by the Company. The Company in its absolute discretion, may at any time, and from time to time, add to, delete, edit and modify any of these terms and conditions.
    10. In these Terms and Conditions of Trade, headings are for convenience only and do not affect their interpretation.