Terms & Conditions

Definitions
“ST” shall mean Beninati Group  P/L - T/A Southern TILE its successors and assigns or any person acting on behalf of and with the authority of Beninati Group T/A Southern Tile.
“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 or other form as provided by ST to the Customer.
“Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
“Goods” shall mean Goods supplied by ST to the Customer (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 ST to the Customer.
“Services” shall mean all Services supplied by ST to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
“Price” shall mean the price payable for the Goods as agreed between ST and the Customer in accordance with clause  REF _Ref142793213 \r \h  \* MERGEFORMAT 4 of this contract.

The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
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.

 

Acceptance
Any instructions received by ST from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by ST shall constitute acceptance of the terms and conditions contained herein.
Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
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 ST.
The Customer shall give ST 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 shall be liable for any loss incurred by ST as a result of the Customer’s failure to comply with this clause.
Goods are supplied by ST 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.

 

Price And Payment
At ST’s sole discretion the Price shall be either:
as indicated on invoices provided by ST to the Customer in respect of Goods supplied; or
ST’s quoted Price, valid for 30 days unless otherwise stated (subject to clause  REF _Ref142792390 \r \h  \* MERGEFORMAT 4.2) which shall be binding provided that the Customer shall accept ST’s quotation in writing and or deposit within thirty (30) days.
ST reserves the right to change the Price in the event of a variation to ST’s quotation (including, but not limited to, fluctuations in exchange rates, increased labour rates due to industry awards, and an increase in the costs of materials).
ST discretion of percentage of deposit that may be required, Accepting Quotation and all terms.
ST may submit a detailed payment claim at intervals not less than one (1) month for work performed up to the end of each month. The value of work so performed shall include the reasonable value of authorized variations and the value of materials delivered to the site but not yet installed.

 

At ST’s sole discretion:
payment shall be due on delivery of the Goods; or
payment shall be due before delivery of the Goods; or
payment for approved Customers shall be made by instalments in accordance with ST’s payment schedule; or
payment for approved Customers shall be due twenty-one (21) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
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 seven (7) days following the date of the invoice.
Payment will be made by cash, or by bank cheque, or by credit card (plus a surcharge of up to five percent (5.0%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and ST.
The Customer agrees that ST may, in their discretion, debit the Customer’s credit card for any outstanding invoices that remain unpaid after sixty (60) days. 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.

 

Delivery Of Goods
At ST’s sole discretion delivery of the Goods shall take place when:
the Customer takes possession of the Goods at ST’s address; or
the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by ST or ST’s nominated carrier); or the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
At ST’s sole discretion the costs of delivery are:
in addition to the Price; or for the Customer’s account.
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 ST shall be entitled to charge a reasonable fee for storage or redelivery.
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.
ST 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.
The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
such discrepancy in quantity shall not exceed five percent (5%); and
the Price shall be adjusted pro rata to the discrepancy.
Goods will be delivered to kerb side only.  The Customer takes all responsibility for transfer to site from kerb side.
The failure of ST to deliver shall not entitle either party to treat this contract as repudiated.
ST shall not be liable for any loss or damage whatever due to failure by ST to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of ST.
ST shall be entitled to charge the Customer for additional labour where any delays to the works are caused by outside agents, by a minimum call out rate.
ST will NOT accept any liability for accidental damage caused to property during delivery or installation.

 

Risk
If ST retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, ST is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by ST is sufficient evidence of ST’s rights to receive the insurance proceeds without the need for any person dealing with ST to make further enquiries.
The Customer acknowledges that variations of colour, shade and grain are inherent in all metals, glass, kiln fired and natural stone products. While every effort will be taken by ST to match colour, shade or grain of product, ST 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.
The Customer acknowledges that it is the Customer’s responsibility to check quantities, with an on-site measurement before commencing fixing. Measurements taken off plans or the Customer’s figures by ST are approximate only and no responsibility is taken for their accuracy.
If the Customer orders an insufficient number of tiles, then ST will take no responsibility for any variation of colour in further batches supplied to the Customer or the inability to supply Goods at all.
ST will accept no responsibility for tiles that have been fixed.
Tiles are not guaranteed against crazing, cracking, chipping or scratching.
All customary building industry tolerances shall apply to the dimensions and measurements of the Goods unless ST and the Customer agree otherwise in writing.

Installation Of Light And Green Coloured Marble
Green marble includes a certain degree of copper which undergoes a chemical reaction when exposed to a strong alkaline solution (such as cement and water).  Cement based adhesives must not be used when fixing light coloured or green marble as this would cause burning or blistering to the surface of the polished marble tile.  ST accepts no responsibility where any product that is not a pure epoxy adhesive or laticrete has been used for the fixing of the Goods or in the case of grouting, where other than a pure epoxy grout has been used.
Acid or acidic based cleaners must not be applied to any marble or granite or natural stone product.

 

Title
ST and the Customer agree that ownership of the Goods shall not pass until:
the Customer has paid ST all amounts owing for the particular Goods; and
the Customer has met all other obligations due by the Customer to ST in respect of all contracts between ST and the Customer.
Receipt by ST 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 ST’s ownership or rights in respect of the Goods shall continue.
It is further agreed that:
where practicable the Goods shall be kept separate and identifiable until ST shall have received payment and all other obligations of the Customer are met; and
until such time as ownership of the Goods shall pass from ST to the Customer ST may give notice in writing to the Customer to return the Goods or any of them to ST.  Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
ST shall have the right of stopping the Goods in transit whether or not delivery has been made; and
if the Customer fails to return the Goods to ST then ST or ST’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
the Customer is only a bailee of the Goods and until such time as ST 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 ST for the Goods, on trust for ST; and
the Customer shall not deal with the money of ST in any way which may be adverse to ST; and
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 ST; and ST 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 until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that ST will be the owner of the end products.

 

Defects
The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify ST of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford ST 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 ST has agreed in writing that the Customer is entitled to reject, ST’s liability is limited to either (at ST’s discretion) replacing the Goods 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 replacement of the Goods.

 

Returns
ST may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of twenty-five percent (25%) of the value of the returned Goods plus any freight. Returns will only be accepted provided that 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.
Special Orders, Custom made goods and Natural Stone will not be accepted for return, under any circumstances.

 

Warranty
For Goods not manufactured by ST, the warranty shall be the current warranty provided by the manufacturer of the Goods. ST shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the

Goods.

 

Default & Consequences of Default
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 ST’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

 

In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by ST.
If the Customer defaults in payment of any invoice when due, the Customer shall indemnify ST from and against all costs and disbursements incurred by ST in pursuing the debt including legal costs on a solicitor and own client basis and ST’s collection agency costs.
Without prejudice to any other remedies ST may have, if at any time the Customer is in breach of any obligation (including those relating to payment), ST may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. ST will not be liable to the Customer for any loss or damage the Customer suffers because ST has exercised its rights under this clause.
If any account remains overdue after thirty (30) 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.

 

Without prejudice to ST’s other remedies at law ST shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to ST shall, whether or not due for payment, become immediately payable in the event that:
any money payable to ST becomes overdue, or in ST’s opinion the Customer will be unable to meet its payments as they fall due; or
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 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

 

Security And Charge
Despite anything to the contrary contained herein or any other rights which ST may have howsoever:
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 ST or ST’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 ST (or ST’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.
should ST elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify ST from and against all ST’s costs and disbursements including legal costs on a solicitor and own client basis.
the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint ST or ST’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  REF _Ref142792633 \r \h  \*

 

MERGEFORMAT 13.1.

 

Cancellation
ST 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 ST shall repay to the Customer any sums paid in respect of the Price. ST shall not be liable for any loss or damage whatever arising from such cancellation.
In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by ST (including, but not limited to, any loss of profits) up to the time of cancellation. No Cancellation after 7 days is Accepted, Customer Accepts Forfeit of Deposit, plus any other costs incurred by ST, or full amount owing.
Goods made to special order, Customer specification or non-catalogue items are under no circumstances acceptable for credit or return. Cancellation of orders for special or non-catalogue items will definitely not be accepted, once these orders are in production. Full Amount  of Invoice may be Deemed Liable.

 

Privacy Act 1988
The Customer and/or the Guarantor/s agree for ST to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by ST.
The Customer and/or the Guarantor/s agree that ST may exchange information about the Customer and the Guarantor/s 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: to assess an application by Customer; and/or
to notify other credit providers of a default by the Customer; and/or
to exchange information with other credit providers as to Status of this credit account, where the Customer is in default with other credit providers; and/or to assess the credit worthiness of Customer and/or Guarantor/s.
The Customer consents to ST being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

 

The Customer agrees that personal credit information provided may be used and retained by ST for the following purposes and for other purposes as shall be agreed between the Customer and ST or required by law from time to time:
provision of Goods; and/or marketing of Goods by ST, its agents or distributors in relation to the Goods; and/or
analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
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.
ST may give information about the Customer to a credit reporting agency for the following purposes:
to obtain a consumer credit report about the Customer; and/or allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

 

Building and Construction Industry Security of Payment Act 2002
At ST’s sole discretion, if there are 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.
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.

 

General
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.
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.

 

ST shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by ST of these terms and conditions.
In the event of any breach of this contract by ST the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

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 ST. No Retention to be held by Customer, any claims or costs to be lodged to ST.
ST may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
The Customer agrees that ST 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 ST notifies the Customer of such change.
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 ST to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect ST’s right to subsequently enforce that provision.


Southern TILE: Terms & Conditions of Trade REV 4.10.10

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