1.1 “Tile Rescue” shall mean Tile Rescue Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Tile Rescue 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, work authorisation or other form as provided by Tile Rescue to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied by Tile Rescue to the Client (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 Tile Rescue to the Client.
1.5 “Services” shall mean all Services supplied by Tile Rescue to the Client and includes all work carried out while on site which will be outlined in the final quote. It will also include 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 Tile Rescue and the Client in accordance with clause 4 of this contract.
2. The Competition and Consumer Act 2010 (“CCA”) 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 CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
2.2 Where the Client buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
3.1 Any instructions received by Tile Rescue from the Client for the supply of Goods/Services the Client’s acceptance of Goods/Services supplied by Tile Rescue shall constitute acceptance of the terms and conditions contained herein.
3.2 The Client expressly acknowledges and agrees that it has not relied upon any verbal communication by Tile Rescue representative, of work being completed that is not in the written quote.
3.3 Any additional work requested by the Client at the time of the Service that is not included in the written quotation will be charged for on the basis of Tile Rescue’s quotation.
3.4 Tile Rescue reserves the right to refuse to carry out any work that is not included in the written quotation.
3.5 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.6 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 Tile Rescue.
3.7 The Client shall give Tile Rescue 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 Tile Rescue as a result of the Client’s failure to comply with this clause.
3.8 Goods/Services are supplied by Tile Rescue 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.
4. Price and Payment
4.1 At Tile Rescue’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Tile Rescue to the Client in respect of Goods/Services supplied; or
(b) Tile Rescue’s quoted Price (subject to clause 4.2) which shall be binding upon Tile Rescue provided that the Client shall accept Tile Rescue’s quotation in writing within thirty (30) days.
4.2 Any variation from the plan of scheduled works/written quotation will be charged for on the basis of Tile Rescue’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.
4.3 Tile Rescue may submit detailed deposit/progress payment claims in accordance with Tile Rescue’s specified payment schedule.
4.4 At Tile Rescue’s sole discretion a non-refundable deposit may be required.
4.5 The Client authorises Tile Rescue to deduct all expenses incurred from any funds held by Tile Rescue in relation to work done up to the date of completion/termination.
4.6 If there are any delays due to the failure of the Client or their agent(s) to provide access to the site or the correct information to enable Tile Rescue to carry out the Services then the Client shall be charged for the delays at Tile Rescue quoted rate. The Client shall also be responsible for all other expenses and costs incurred by Tile Rescue due to delays caused by the Client or their agent(s).
4.7 Time for payment for the Goods shall be of the essence and will be stated on the quotation, invoice, correspondence or any other order forms. If no time is stated then payment shall be due on delivery of the Goods/completion of the Services.
4.8 At Tile Rescue sole discretion, for certain approved Clients, payment will be due either seven (7) or thirty (30) days following the date of the invoice.
4.9 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to one and a half percent (1.5%) may be applicable), or by direct credit, or by any other method as agreed to between the Client and Tile Rescue.
4.10 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 The failure of Tile Rescue to deliver shall not entitle either party to treat this contract as repudiated.
5.2 Tile Rescue shall not be liable for any loss or damage whatsoever due to failure by Tile Rescue to deliver the Goods (in part or at all) promptly or at all, where due to circumstances beyond the control of Tile Rescue.
6.1 If Tile Rescue retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Tile Rescue is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Tile Rescue is sufficient evidence of Tile Rescue’s rights to receive the insurance proceeds without the need for any person dealing with Tile Rescue to make further enquiries.
6.3 Tiles are not guaranteed against crazing, cracking, chipping or scratching.
6.4 Tiling heights will be as close as possible to the original tiles unless specifically requested otherwise.
6.5 Tile Rescue will not be obligated to repair any existing parts of the room that are not structurally sound or have been affected in any way by termites, wet or dry rot, water damage or the general deterioration of age unless this has been agreed to in writing by both parties.
6.6 The Client acknowledges and agrees that the Price does not include rectifying any existing drainage and if required shall be charged separately.
6.7 Tile Rescue shall not be held liable if a moulded shower base or moulded bath moves away from the wall or walls.
6.8 The Client agrees Tile Rescue shall not be held responsible for any faults and or deterioration that are existing on the Client’s premises but not visible to Tile Rescue at the time of the quote.
6.9 Tile Rescue shall not be held liable for any loss or damage caused to the property or caused by or contributed to by structural movement or as a result of normal settling, seepage, shrinkage or expansion in building or foundations, walls, by acts of God, or structural improvements.
7. Client’s Responsibility
7.1 The Client agrees to remove any furniture, furnishings or personal goods from the vicinity of the works and agrees that Tile Rescue shall not be liable for any damage caused to those items through the Clients failure to comply with this clause.
7.2 The Client undertakes to provide Tile Rescue with any relevant information and reasonable knowledge of all matters directly or indirectly affecting the works.
7.3 The Client agrees to advise Tile Rescue immediately of any further leakage after the service date.
8.1 The Client shall ensure that Tile Rescue has clear and free access to the work site at all times to enable them to undertake the works.
8.2 Tile Rescue reserves the right to refuse to enter the site to undertake the Services in the event that the Company believes the site to be unsafe. In this event, the Customer agrees that it is their responsibility to ensure the site is made safe before the Company will enter the site, the Company shall not be liable for any delays caused, loss, damages, or costs however resulting from an unsafe site.
9.1 Tile Rescue and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Tile Rescue all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Tile Rescue in respect of all contracts between Tile Rescue and the Client.
9.2 Receipt by Tile Rescue 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 Tile Rescue’s ownership or rights in respect of the Goods shall continue.
9.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Tile Rescue shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Tile Rescue to the Client Tile Rescue may give notice in writing to the Client to return the Goods or any of them to Tile Rescue. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Tile Rescue shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Tile Rescue then Tile Rescue or Tile Rescue’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Tile Rescue has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Tile Rescue for the Goods, on trust for Tile Rescue; and
(f) the Client shall not deal with the money of Tile Rescue in any way which may be adverse to Tile Rescue; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Tile Rescue; and
(h) Tile Rescue can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Tile Rescue will be the owner of the end products.
10. Security and Charge
10.1 Despite anything to the contrary contained herein or any other rights which Tile Rescue 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 of their joint and/or several interest in the said land, realty or any other asset to Tile Rescue or Tile Rescue’s 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 Tile Rescue (or Tile Rescue’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 Tile Rescue elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Tile Rescue from and against all Tile Rescue’s 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 Tile Rescue or Tile Rescue’s nominee 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 10.1.
11.1 The Client shall inspect the Goods on delivery/Services after completion and shall within seven (7) days of delivery/completion (time being of the essence) notify Tile Rescue of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Tile Rescue an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Tile Rescue has agreed in writing that the Client is entitled to reject, Tile Rescue’s liability is limited to either (at Tile Rescue’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Competition and Consumer Act 2010 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and may therefore also be entitled to, either Tile Rescue repairing the Goods, or replacing the Goods, or a refund.
11.2 Goods will not be accepted for return other than in accordance with 11.1 above.
12.1 The warranty conditions set out below are void unless all monies due and payable to Tile Rescue have been paid under the conditions set out in clause 4.7 and all cheques paid have been honoured on presentation.
12.2 Tile Rescue will guarantee it’s;
(a) ‘Leaking Shower Repair’ workmanship and products against leakage for a period up to twelve (12) years or at technicians discretion from the date of completion of the original service.
(b) ‘Leaking Balcony Repair’ workmanship and products against leakage for a period up to twelve (12) years or at technicians discretion from the date of completion of the original service
(c) ‘Tile Rescue Colourseal’ workmanship and products against leakage for a period up to five (5) years or at technicians discretion from the date of completion of the original service.
(d) ‘Shower Guard’ workmanship and products against adhesion of soap scum for a period up to five (5) years or at technician’s discretion from the date of completion of the original service.
(e) any other services provided by Tile Rescue, not limited to but including, any existing loose tiles, grouting, plumbing, shower screen problems, structural damages and /or any damages that may occur after treatment or service shall not be the responsibility of Tile Rescue.
12.3 Subject to the conditions of warranty set out in clause 12.4 Tile Rescue warrants that if any product defect becomes apparent and is reported to Tile Rescue within time period specified on the Warranty Certificate of the date of the original service (time being of the essence),
Tile Rescue will either (at Tile Rescue’s sole discretion) replace or remedy the workmanship.
12.4 The conditions applicable to the warranty given by clause 12.3 are:
(a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by Tile Rescue including the use of Tile Rescue recommended products; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent person; or
(v) fair wear and tear, any accident or act of God.
(b) The warranty shall cease and Tile Rescue shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is tampered with, repaired or altered without Tile Rescue consent.
(d) In respect of all claims Tile Rescue shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship/Product or in properly assessing the Client’s claim. Any claims investigated by Tile Rescue and found not to be covered by the warranty in clause 12.3 then the Client may be charged at a rate of $80.00 + GST per hour. The Client shall also be responsible for all other expenses and costs incurred by Tile Rescue due to access delays caused by the Client or agent(s) in investigating such allegation, faults or warranty claims which shall be charged at a rate of $60.00 + GST per hour on-site waiting time.
12.5 The warranty does not apply if:
(a) the shower is affected by any structural movement however caused;
(b) the shower is affected by any substrate movement however caused;
(c) any damage is caused to the area treated or surrounding area that may affect the Service;
(d) there are latent defects within the premises in reasonable proximity to the treated area at the time of, or which become apparent subsequent to the Service.
(e) an alteration or replacement of any fixture or fittings is undertaken after the original Service which in any way detrimentally affects the treated area;
(f) any plumbing, works or moisture have subsequently detrimentally affected the treated area;
(g) any flooring, sheeting, substrate, materials or tile bonding arises which in any way detrimentally affects the treated area;
(h) any pre-existing or subsequent tiling problem, relating either to the adherence of the tiles or the inherent quality of the tiles, arises which detrimentally affects the treated area;
(i) a moulded shower or bath moves away from the walls;
(j) a moulded shower or bath is affected by any twisting or deflection however caused;
(k) the shower has been used within twenty-four (24) hours after the Service or as stated on the after service notification;
12.6 The warranty does not cover;
(a) existing tiling work, growth of mould, mildew and bacteria, periodic cleaning or maintaining grout integrity;
(b) calcification formation or secondary formation;
(c) any accidental chipping, scratching or cracking of existing tiles in the re grouting process. (All due care will be taken to avoid this occurring);
(d) the appearance of the shower including product and grout colour matching;
(e) staining, discolouration or degrading over time directly or indirectly as a result of using non-approved cleaning products or personal care products, or secondary mould growth.
12.7 For Goods not manufactured by Tile Rescue, the warranty shall be the current warranty provided by the manufacturer of the Goods. Tile Rescue 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. This includes but is not limited to shower screens, vanities etc.
12.8 With all warranty claims the onus will be on the Client to provide proof of purchase.
13. Existing, Unseen or Resulting Damage
13.1 Any area that has been affected in any way by termites, wet or dry rot, water damage, seepage or the general deterioration of age, Tile Rescue will not be liable for any repair work or any repair work will be paid at the Client’s expense. This includes any damages that may occur after the Service and shall not be the responsibility of Tile Rescue.
14. Intellectual Property
14.1 Where Tile Rescue has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Tile Rescue, and shall only be used by the Client at Tile Rescue’s discretion.
14.2 The Client warrants that all designs or instructions to Tile Rescue will not cause Tile Rescue to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Tile Rescue against any action taken by a third party against Tile Rescue in respect of any such infringement.
14.3 The Client agrees that Tile Rescue may use any documents, designs, drawings, videos, photos or Goods created by Tile Rescue for the purposes of advertising, marketing, or entry into any competition.
15. Default and Consequences of Default
15.1 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 Tile Rescue’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
15.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Tile Rescue.
15.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify Tile Rescue from and against all costs and disbursements incurred by Tile Rescue in pursuing the debt including legal costs on a solicitor and own client basis and Tile Rescue’s collection agency costs.
15.4 Without prejudice to any other remedies Tile Rescue may have, if at any time the Client is in breach of any obligation (including those relating to payment) Tile Rescue may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Tile Rescue will not be liable to the Client for any loss or damage the Client suffers because Tile Rescue has exercised its rights under this clause.
15.5 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.
15.6 Without prejudice to Tile Rescue’s other remedies at law Tile Rescue shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Tile Rescue shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Tile Rescue becomes overdue, or in Tile Rescue’s opinion the Client will be unable to meet its payments 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.
16.1 Tile Rescue 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 Client. On giving such notice Tile Rescue shall repay to the Client any sums paid in respect of the Price. Tile Rescue shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Tile Rescue (including, but not limited to, any loss of profits) up to the time of cancellation.
16.3 Cancellation of orders for Goods made to the Client’s specifications or non-stocklist items will definitely not be accepted, once production has commenced. In particular, but not limited to, shower screens and vanities.
17. Privacy Act 1988
17.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Tile Rescue to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Tile Rescue.
17.2 The Client agrees that Tile Rescue may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the 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 creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.3 The Client consents to Tile Rescue being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by Tile Rescue for the following purposes (and for other purposes as shall be agreed between the Client and Tile Rescue or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by Tile Rescue, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
17.5 Tile Rescue 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;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Tile Rescue is a current credit provider to the Client;
(d) 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;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Tile Rescue, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Tile Rescue has been paid or otherwise discharged.
18. Building and Construction Industry (Security of Payment) Act 2009 ACT
18.1 At Tile Rescue’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 2009 ACT may apply.
18.2 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 2009 ACT, except to the extent permitted by the Act where applicable.
19.1 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.
19.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
19.3 These terms and conditions and any contract to which they apply shall be governed by the laws of Australian Capital Territory (ACT) and are subject to the jurisdiction of the courts of ACT.
19.4 Tile Rescue 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 Tile Rescue of these terms and conditions.
19.5 In the event of any breach of this contract by Tile Rescue the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
19.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Tile Rescue nor to withhold payment of any invoice because part of that invoice is in dispute.
19.7 Tile Rescue may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.8 The Client agrees that Tile Rescue 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 Tile Rescue notifies the Client of such change. The Client shall be under no obligation to accept such changes except where Tile Rescue supplies further Goods to the Client and the Client accepts such Goods.
19.9 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
19.10 The failure by Tile Rescue to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Tile Rescue’s right to subsequently enforce that provision.