Suregrip Ceramics Pty Ltd trading as TILE junket – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd – 2008
1.1 “Seller” shall mean Suregrip Ceramics Pty Ltd its successors and assigns or any person acting on behalf of and
with the authority of Suregrip Ceramics Pty Ltd.
1.2 “Buyer” shall mean the Buyer (or any person acting on behalf of and with the authority of the Buyer) as described
on any quotation, work authorisation or other form as provided by the Seller to the Buyer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Buyer on a
principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any
supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or
any other forms as provided by the Seller to the Buyer.
1.5 “Services” shall mean all Services supplied by the Seller to the Buyer and includes any advice or recommendations
(and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between the Seller and the Buyer in accordance with
clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 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
3.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s acceptance of
Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are binding and can only be
amended with the written consent of the Seller.
3.4 The Buyer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Buyer or any change in the Buyer’s name and/or any other change in the Buyer’s details
(including but not limited to, changes in the Buyer’s address, facsimile number, or business practice). The Buyer
shall be liable for any loss incurred by the Seller as a result of the Buyer’s failure to comply with this clause.
3.5 Goods are supplied by the Seller only on the terms and conditions of trade herein to the exclusion of anything to
the contrary in the terms of the Buyer’s order notwithstanding that any such order is placed on terms that purport to
override these terms and conditions of trade.
4. Price And Payment
4.1 At the Seller’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
(b) the Seller’s current price at the date of delivery of the Goods according to the Seller’s current Price list; or
(c) the Seller’s quoted Price (subject to clause 4.2) which shall be binding upon the Seller provided that the Buyer
shall accept the Seller’s quotation in writing within thirty (30) days.
4.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.
4.3 At the Seller’s sole discretion a deposit may be required.
4.4 At the Seller’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment (for Services) for approved Buyers shall be due seven (7) days following the date of the invoice; or
(c) payment (for Goods) for approved Buyers shall be due twenty-five (25) days following the end of the month in
which the Goods are invoiced.
4.5 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 one half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the
Buyer and the Seller.
4.6 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.
5. Delivery Of Goods
5.1 At the Seller’s sole discretion delivery of the Goods shall take place when:
(a) the Buyer takes possession of the Goods at the Seller’s address; or
(b) the Buyer takes possession of the Goods at the Buyer’s nominated address (in the event that the Goods are
delivered by the Seller or the Seller’s nominated carrier); or
(c) the Buyer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be
the Buyer’s agent.
5.2 At the Seller’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Buyer’s account.
5.3 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for
delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then the Seller shall be
entitled to charge a reasonable fee for re-delivery.
5.4 Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the
purposes of this agreement.
5.5 The Seller may deliver the Goods by separate installments. Each separate installment shall be invoiced and paid in
accordance with the provisions in these terms and conditions.
5.6 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or
any of them) promptly or at all, where due to circumstances beyond the control of the Seller.
6.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Buyer, the
Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and
conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the
need for any person dealing with the Seller to make further enquiries.
6.3 The Buyer acknowledges that variations of colour, shade and grain are inherent in all kiln fired products and natural
stone. While every effort will be taken by the Seller to match colour, shade or grain of product, the Seller shall not
be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain
between batches of product or sale samples and the final product supplied.
6.4 The Buyer acknowledges that it is the Buyer’s responsibility to check quantities, with an on-site measurement
before commencing fixing. Measurements taken off plans or the Buyer’s figures by the Seller are approximate only
and no responsibility is taken for their accuracy.
6.5 If the Buyer orders an insufficient number of tiles, then the Seller will take no responsibility for any variation of
colour in further batches supplied to the Buyer or the inability to supply Goods at all.
6.6 Tiles are not guaranteed against crazing, cracking, chipping or scratching.
7.1 The Seller and Buyer agree that ownership of the Goods shall not pass until:
(a) the Buyer has paid the Seller all amounts owing for the particular Goods; and
(b) the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the
Seller and the Buyer.
7.2 Receipt by the Seller 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 Seller’s ownership or rights in respect of the
Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment
and all other obligations of the Buyer are met; and
(b) until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in
writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to
obtain ownership or any other interest in the Goods shall cease; and
(c) the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into
land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where
the Goods are situated and take possession of the Goods; and
(e) the Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full for the
Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods, up to and including the
amount the Buyer owes to the Seller for the Goods, on trust for the Seller; and
(f) the Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller; and
(g) the Buyer 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 Seller; and
(h) the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the
Goods may not have passed to the Buyer; and
(i) until such time that ownership in the Goods passes to the Buyer, if the Goods are converted into other products,
the parties agree that the Seller will be the owner of the end products.
8.1 The Buyer shall inspect the Goods on delivery and shall within two (2) days of delivery (time being of the essence)
notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or
quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following
delivery if the Buyer believes the Goods are defective in any way. If the Buyer 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
Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s
discretion) replacing the Goods or repairing the Goods except where the Buyer 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 replacement of the Goods.
9.1 TILEjunket will not accept returns for credit of any materials, nor will accept any responsibility
for quantity calculations. Should a return be granted for any reason returns will only be accepted provided that:
(a) the Buyer has complied with the provisions of clause 8.1; and
(b) the Seller has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date; and
(d) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and
(e) 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.
9.2 Goods from discontinued lines or carrying/belonging to expired batch/product numbers/lines will not be accepted
for return for credit.
9.3 The Seller may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of thirty
percent (30%) of the value of the returned Goods plus any freight.
10.1 The conditions applicable to the warranty given on Goods supplied by the Seller are contained on the “Warranty
Card” that will be supplied with the Goods.
11. Intellectual Property
11.1 Where the Seller has designed, drawn or written Goods for the Buyer, then the copyright in those designs and
drawings and documents shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s
11.2 The Seller may photograph the work during construction (and upon completion) and reserves the right to feature
this material in the Seller’s marketing/promotional material and publications. Copyright in these images shall remain
vested in the Seller.
11.3 The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent,
registered design or trademark in the execution of the Buyer’s order and the Buyer agrees to indemnify the Seller
against any action taken by a third party against the Seller in respect of any such infringement.
12. Default & Consequences of Default
12.1 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 one half percent (2.5%) per calendar month (and at the Seller’s sole discretion such
interest shall compound monthly at such a rate) after as well as before any judgment.
12.2 In the event that the Buyer’s payment is dishonoured for any reason the Buyer shall be liable for any dishonour
fees incurred by the Seller.
12.3 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all
costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own
client basis and the Seller’s collection agency costs.
12.4 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation
(including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer and
any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or
damage the Buyer suffers because the Seller has exercised its rights under this clause.
12.5 If any account remains overdue after twenty-five (25) days then an amount of the greater of twenty dollars ($20.00)
or ten percent (10.00%) 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.
12.6 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any
order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for
payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its
payments as they fall due; or
(b) the Buyer 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer
or any asset of the Buyer.
13. Security And Charge
13.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Buyer 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 Seller or the Seller’s nominee to secure all amounts and
other monetary obligations payable under these terms and conditions. The Buyer and/or the Guarantor
acknowledge and agree that the Seller (or the Seller’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.
(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements
including legal costs on a solicitor and own client basis.
(c) the Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the
Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give
effect to the provisions of this clause 13.1.
14.1 The Seller 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 Buyer. On giving such notice the Seller shall
repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage
whatever arising from such cancellation.
14.2 In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any loss incurred by the Seller
(including, but not limited to, any loss of profits) up to the time of cancellation.
15. Privacy Act 1988
15.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report
containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.
15.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about the Buyer and the
Guarantor/s with those credit providers either named as trade referees by the Buyer or named in a consumer credit
report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Buyer; and/or
(b) to notify other credit providers of a default by the Buyer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Buyer is in
default with other credit providers; and/or
(d) to assess the credit worthiness of Buyer and/or Guarantor/s.
15.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial
credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Buyer agrees that personal credit information provided may be used and retained by the Seller for the following
purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to
(a) provision of Goods; and/or
(b) marketing of Goods by the Seller, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and/or
(e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the Buyer’s
account in relation to the Goods.
15.5 The Seller may give information about the Buyer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Buyer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
16. Building and Construction Industry Security of Payment Act 2002
16.1 At the Seller’s sole discretion, if there any disputes or claims for unpaid Goods and/or Services then the provisions
of the Building and Construction Industry Security of Payment Act 2002 may apply.
16.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the
Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the
Act where applicable.
17.1 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.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are
subject to the jurisdiction of the courts of Victoria.
17.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of
profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
17.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to
the Buyer by the Seller.
17.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
17.7 The Buyer agrees that the Seller 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 Seller notifies the Buyer of such change.
17.8 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.
17.9 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of
that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.