ACCEPTANCE OF TERMS AND CONDITIONS OF SALE
At the time of placing this order you have accepted that you are legally bound by our Terms and Conditions of Sale as previously provided to you by email and online at our website.
By placing an order for the ordered items, you agree and acknowledge that you are on notice of and continually bound by our Terms and Conditions of Sale.- Definitions
1.1 “Rocky point Tiles” shall mean Rocky point Tiles Pty Ltd at Sans Souci its successors and assigns or any person acng on
behalf of and with the authority of Rocky point Tiles Pty Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on
any quotation, invoice or other form as provided by Rocky point Tiles to the Client.
1.3 ‘Guarantor’ means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal
debtor basis.
1.4 Materials shall mean Materials:
Supplied by Rocky point Tiles to the Client
1.5 Price shall mean the Price payable for the supply of tiles as agreed between Rocky point Tiles and the Client in
accordance with clause 4 of this contract. - The Australian Consumer Law (ACL)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the ACL in
each of the States and Territories of Australia, except to the extend permitted by those Acts where applicable. - Acceptance
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of Rocky point Tiles.
3.4 The Client shall give Rocky point Tiles not less than fourteen (14) days prior written notice of any proposed change of
ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but
not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss
incurred by Rocky point Tiles as a result of the Client’s failure to comply with this cause.
3.5 Supply by Rocky point Tiles only on the terms and conditions of trade herein to the exclusion of anything to the
contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override
these terms and conditions of trade. - Price and Payment
4.1 At Rocky Point Tile’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Rocky point Tiles to the Client in respect of tiles supplied.
(b) Rocky Point Tiles quoted Price (subject to clause 4.2) which shall be binding upon Rocky point Tiles provided that the
Client shall accept Rocky point Tiles quotation in writing within thirty (30) days.
4.2 Rocky point Tiles reserves the right to change the Price in the event of a variation to the original quotation.
4.3 Payment in full for supply shall occur prior to pick up. In the event of a prearranged delivery of goods, payments will be
required before delivery date.
4.4 Payment will be made by cash, EFTPOS, PayPal, bank transfer or by credit card or any other method as agreed to
between the Client and Rocky point Tiles.
4.5 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
5.1 Rocky point Tiles will bear no responsibility where delay by supplier occurs.
5.2 Rocky point Tiles shall not be liable for any loss or damage whatsoever in the delivery process. - Risk
6.1 Where the Client expressly requests Rocky point Tiles to deliver the Materials to an unattended location then such
Materials shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Materials are insured
adequately or at all.
6.2 The Client acknowledges that variations of colour, shade and grain are inherent in all kin fired products and natural
stone. While every effort will be taken by Rocky point Tiles to match colour, shade or grain of products, Rocky point Tiles
shall not be liable for any loss, damages or costs howsoever arising resulting from any variation in colour, shading or grain
between batches of products or sale samples and the final product supplied.
6.3 Tiles are not guaranteed against crazing, cracking, chipping or scratching. - Title
7.1 Rocky point Tiles and the Client agrees that ownership of the Materials shall not pass until:
(a) the Client has paid Rocky point Tiles all amounts owning for the particular Materials; and
(b) the Client has met all other obligations due by the Client to Rocky point Tiles in respect of all contracts between Rocky
point Tiles and the Client.
7.2 Receipt by Rocky point Tiles 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 Rocky point Tiles ownership or rights in respect of
the Materials shall continue
7.3 It is further agreed that:
(a) where practicable the Materials shall be kept separate and identifiable until Rocky point Tiles shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Materials shall pass from Rocky point Tiles to the Client Rocky point Tiles may give
notice in writing to the Client to return the Materials or any of them to Rocky point Tiles. Upon such notice the rights of the
Client to obtain ownership or any other interest in the Materials shall cease; and
(c) Rocky point Tiles shall have the right of stopping the Materials in transit whether or not delivery has been made; and
(d) if the Client fails to return the Materials to Rocky point Tiles then Rocky point Tiles or Rocky point Tile’s agent may enter
upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where
the Materials are situated and take possession of the Materials; and
(e) the Client is only a baille of the Materials and until such time as Rocky point Tiles has received payment in full for the
Materials then the Client shall hold any proceeds from the sale or disposal of the Materials, up to and including the amount
the Client owes to Rocky point Tiles for the Materials on trust for Rocky point Tiles and
(f) the Client shall not deal with the money of Rocky point Tiles in any way which may be adverse to Rocky point Tiles; and
(g) the Client shall not charge the Materials in any way nor grant nor otherwise give any interest in the Materials while they
remain the property of Rocky point Tiles and
(h) Rocky point Tiles can issue proceedings to recover the Price of the Materials sold notwithstanding that ownership of the
Materials may not have passed to the Client; and
(i) until such time that ownership in the Materials passes to the Client, if the Materials are converted into other products,
the parties agree that Rocky point Tiles will be the owner of the end products. - Defects, Errors and Omissions
8.1 The Client shall inspect the Materials on delivery and within seven (7) day notify Rocky point Tiles of any alleged
defects, errors or omission, shortage on quantity, damage or failure to comply with the description on invoice. Client shall
afford Rocky point Tiles an opportunity to inspect the Materials within a reasonable time following such notification, if the
Client fails to comply with these provisions the Materials shall be presumed to be free from any defects or damage or
wrong Materials/ quantity. - Returns
9.1 Rocky point Tiles may (at their side discretion) accept the return of Materials for credit, but this will incur a handling fee
of thirty percent (30%) of the value of the returned Materials plus any freight costs. Returns will only be accepted provided
that:
(a) the Client has compiled with provisions of clause 8.1; and
(b) Rocky point Tiles has agreed in writing to accepts the return of the Materials;
(c) the Materials are returned at the Client’s cost within seven (7) days of the delivery date; and
(d) Products is in saleable condition. Tiles will only be acceptable in unopened original cases & sheeted mosaic’s in
complete undamaged sheets. - Warranty
10.1 To the extend permitted by statue no warranty is given by Rocky point Tiles as to the quality or suitability of the goods
for any purpose and any implied warranty, is expressly excluded. Rocky point Tiles shall not be responsible for any loss or
damage to the goods, or any part thereof however arising. - Intellectual Property
11.1 The Client warrants that all designs or instructions to Rocky point Tiles will not cause Rocky point Tiles to infringe any
patent, registered design or trademark in the execution of the Client’s order and the Client’s agrees to indemnify Rocky
point Tiles against any action taken by a third party against Rocky point Tiles in respect of any such infringement. - Default and consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due until date of payment, at a
rate of two and a half percent (2.5%) per calendar month (and at Rocky point Tiles sole discretion such interest shall
compound monthly at such a rate) after as well as before any judgement.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees
incurred by Rocky point Tiles.
12.3 If the Client defaults in payments of any invoice when due, the Client shall indemnify Rocky point Tiles in pursuing the
debt including legal costs on a solicitor and own client basis and Rocky point Tiles collection agency costs.
12.4 Without prejudice to any other remedies Rocky point Tiles may have, if at any time the Client is in breach of any
obligation (including those relating to payment) Rocky point Tiles may suspend or terminate the supply of Materials to the
Client and any of its other obligations under the terms and conditions. Rocky point Tiles will not be liable to the Client for
any loss or damage the Client suffers because Rocky point Tiles has exercised its rights under the clause.
12.5 If any account remains overdue after thirty (30) days than 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 sums shall become immediately due and payable.
12.6 Without prejudice to Rocky point Tiles other remedies at law Rocky point Tiles shall be entitled to cancel all or any
part of any order of the Client which remains unfulfilled and all amounts owing to Rocky point Tiles shall, whether or not
due for payment, become immediately payable in the event that:
(a) any money payable to Rocky point Tiles becomes overdue, or in Rocky point Tiles opinion the Client will be unable to
meet its payment as they fall due; or
(b) the Client 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 Client or any
asset of the Client. - Security and Change
13.1 Despite anything to the contrary contained herein or any other rights which Rocky point Tiles may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged,
both the Client and/or the Guarantor agree to mortgage and/or charge all their joint and/ or several interest in the said
land, realty or any other asset to Rocky point Tiles nominee to secure all amounts and other monetary obligations payable
under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Rocky point Tiles 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 Rocky point Tiles elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client
and/or the Guarantor shall indemnify Rocky point Tiles from and against all Rocky point Tiles costs and disbursements
including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Rocky point Tiles as the
Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this
clause. - Cancellation
14.2 In the event that the Client cancels the delivery of Materials, the Client shall be liable for any loss incurred by Rocky
point Tiles (including, but not limited to, any amounts owing for goods and any loss of profits) up to the time of
cancellation. - Privacy Act 1988
15.1 The Client and/or the Guarantor/s agree for Rocky point Tiles to obtain from a credit reporting agency a credit report
containing personal credit information about the Client and Guarantor/s in relation to credit provided by Rocky point Tiles.
15.2 The Client and/or the Guarantor/s agree that Rocky point Tiles may exchange information about the Client and the
Guarantor/s with those credits providers either named as trade referees by the Client or named in consumer credit report
issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default
with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
15.3 The Client consents to Rocky point Tiles between a consumer credit report to collect overdue payment on commercial
credit (Section 18K (1) (h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Rocky point Tiles for the
following purposes and for other purposes as shall be agreed between the Client and Rocky point Tiles for required by law
from time to time:
(a) analysing, verifying and/ or checking the Client’s credit
(b) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(c) enabling the daily operation of Client’s account and /or the collection of amounts outstanding
15.5 Rocky point Tiles may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit, report about the Client and/or
(b) allow the credit to reporting agency to create or maintain a credit information file containing informaon about the
Client. - Unpaid Rocky point Tiles Rights
16.1 Where the Client has left any item with Rocky point Tiles for, modification, exchange or for Rocky point Tiles to
perform any other Service in relation to the item and Rocky point Tiles has not received or been tendered the whole of the
Price, or the payment has been dishonoured, Rocky point Tiles shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while Rocky point Tiles is in possession of the item;
(c) a right to sell the item.
16.2 The lien of Rocky point Tiles shall connue despite commencement of proceeding, or judgement for the Price having
been obtained. - Building and Construction Industry Security of Payments Act 1999 (Applicable to NSW Clients only)
17.1 At Rocky point Tiles sole discretion, if there are any disputes or claims for unpaid goods then the provisions of the
Building and Construction industry Security of Payments Act 1999 may apply.
17.2 Nothing in this agreement is intended to have the affect of the contracting out of any applicable provisions of the
Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extend permitted by
the Act where applicable. - At Rocky point Tiles sole discretion, if there are any disputes or claims for unpaid goods then the provisions of the
Construction Contracts (Security of Payments) Act 2008 may apply. - At Rocky point Tiles sole discretion, if there are any disputes or claims for unpaid goods then the provisions of the
Construction Contracts (Security of Payments) Act 2008 may apply.
19.2 Nothing in this agreement is intended to have the affect of contracting out of any provisions of the Construction
Contracts (Security of Payments) Act 2008 of the Northern Territory of Australia, except to the extent permitted by the Act
where applicable - General
20.1 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 effected, prejudiced or impaired.
20.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales
and are subject to the jurisdiction of the Local court of North Sydney.
20.3 Rocky point Tiles shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or
expense (including loss of profit) suffered by the Client arising out of a breach by Rocky point Tiles of these terms and
conditions.
20.4 In the event of any breach of this contract by Rocky point Tiles the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the goods.
20.5 The Client shall not be entitled to set off against, or deduct from the Price, any sum owed or claimed to be owed to
the Client by Rocky point Tiles nor to withhold payment of any invoice because part of that invoice is in dispute.
20.6 Rocky point Tiles may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
20.7 The Client agrees that Rocky point Tiles may review these terms and conditions at anytime, 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
Rocky point Tiles notifies the Client of such change.
20.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial actions,
fire, flood, storm or other event beyond the reasonable control of either party.
20.9 The failure by Rocky point Tiles to enforce any provision of these terms and conditions shall not be treated as a waiver
of that provision.