TERMS OF SALE
TERMS AND CONDITIONS OF CONTRACT AND SALE
TSS’ quotation is valid for thirty (30) days unless withdrawn or varied prior to acceptance of order.
TSS’ quotation is not an offer and no order given in pursuance of any quotation shall bind TSS until accepted by TSS. These terms and conditions shall be deemed to be incorporated in any agreement between TSS and the customer. Any terms and conditions contained in any order, offer, acceptance or invoice of the customer and all representations statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied herein and expressly excluded to the fullest extent permitted by law.
3. Foreign Sourced Componentry:
It is expressly agreed that TSS’ cost of manufacture or supply may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges. Where such variations occur between the time of quotation and the date of delivery, the customer shall pay any increased price of the goods / product resulting there from.
(a) Freight charges are additional.
(b) Any data quoted for delivery is an estimate only and TSS shall not be liable to the customer for any loss or damage howsoever arising for failure to deliver on or before the quoted date.
(c) TSS reserves the right to deliver by installments. If delivery is made by instalments the customer shall not be entitled:
(i) to terminate or cancel the contract; or
(ii) to any claim for loss or damages howsoever arising.
(d) The customer shall inspect the goods/product immediately on delivery and shall, within forty eight (48) hours, give written notice to TSS of any matter or thing by reason whereof the customer alleges that the goods / products do not conform with the contract.
Any order may only be cancelled by mutual agreement and in the event of such cancellation the customer undertakes to reimburse and indemnity TSS for any costs, expenses or changes incurred by TSS in preparation for and in the execution of an order which sum in any case shall not be less than 30% of the order value.
6. Description and Specifications:
(a) Whilst every effort is made to ensure their accuracy, the descriptions, illustrations and material contained in any descriptive matter provided by or on behalf of TSS represents the general nature of the items described therein and shall not form a part of any order agreement or amount to any representation or warranty. TSS reserves the right to modify the design of items without notice.
(b) TSS does not warrant or guarantee and it shall not be a term of any agreement between TSS and the customer that any items manufactured or supplied by TSS which are based in whole or in part upon any designs, drawings or specifications supplied to TSS by or on behalf of the customer will achieve any standard or performance or any capacity whatsoever.
All equipment quoted is guaranteed under manufacturer warranty for a period of twelve (12) months from date of delivery to be free from defects in labour and materials. The warranty covers on-site rectification within the metropolitan area carried out during normal business hours of authorised manufacturer’s service agents. Charges will apply for out of hours work required by a customer. TSS will not be liable for damages to the goods/products due to normal wear and tear. Swill be relieved of any liability during the warranty period should the customer, without authority, make any attempt to repair, adjust, improve or otherwise interfere with the goods/product or the working thereof. Any such action will cause all warranties in respect of the goods/products to become null and void. Any goods/products not manufactured by TSS are sold under such warranty only as the makers give. TSS will not be responsible for dismantling or reassembling any part repaired or replaced by TSS or any charge in connection therewith.
8. Limitation of Liability:
(a) To the extent permitted by relevant law, representations/promises/statement/ warranties and conditions regarding any goods/products supplied by or on behalf of TSS which without limiting the generality of the foregoing shall include conditions or warranties as to quality or fitness for any particular purposes are expressly excluded. TSS shall not be liable for any lessor damage whatsoever and howsoever arising whether direct, indirect or consequential or in respect of any claim whenever and however made for any loss, damage, deterioration, deficiency or other fault or harm in the items manufactured work executed or services provided by or on behalf of or in any arrangement with TSS or occasioned to the customer or any third or other party or to his or their property or interest and whether or not due to the negligence of TSS, its servants or agents.
(b) The customer acknowledges and agrees that the purchase price for the goods/product which TSS is charging hereunder does not include any consideration for assumption by TSS of the risk of the customer’s consequential damages which may arise in connection with the customer’s use and/or resale of the items the subject hereof and it is expressly agreed that TSS shall not be responsible for any conditions or terms of sale other than those herein contained nor for any representations, specifications or promises of any kind or description other than those expressly contained in this agreement and any expressor implied condition/term/statement or warranty, statutory or otherwise, not stated herein, is to the maximum extent permitted by law hereby excluded. Accordingly the customer agrees that TSS shall not be responsible to the customer for any direct or indirect loss of profit incidental, special or consequential damages arising out of the use or resale of the items even if TSS has been informed of the possibility of such damages. It is expressly agreed that subject to any statutory provision to the contrary TSS’ liability in connection with the items or this agreement shall not exceed amounts paid to TSS by the customer hereunder. These limitations apply to all causes of action in the aggregate including without limitation, breach of contract, breach of warranty, TSS’ negligence strict liability product, liability fraud misrepresentation and other torts. No action may be brought by or on behalf of the customer at any time more than twelve (12) months after the cause of action arose and to the extent that same does not conflict with relevant law TSS shall not be liable in any circumstances for any:
(i) defect or damage caused in whole or part by misuse, abuse or neglect.
(ii) transport, installation, removal, labour or other costs
(iii) technical advice or assistance given or tendered by it to the customer, whether or not on connection with the manufacture or supply of goods for or to the customer.
9. Insolvency and Default:
This agreement may be terminated by TSS at any time after the occurrence of a credit event with respect to the customer. A credit event shall be deemed to have occurred with respect to the customer if:
(a) The customer shall;
(i) Generally not pay its’ debts as such debts become due or shall admit in writing its inability to pay its debts generally; or
(ii) make a general assignment for the benefit of creditors; or
(iii) institute any proceeding seeking to adjudicate it a bankrupt or insolvent or seeking liquidation winding up reorganisation arrangement, adjustment protection relief or composition of it or its debts under any law relating to bankruptcy insolvency or reorganisation of relief of debtors or seeking the entry of an order for relief or the appointment of a receiver trustee or other similar official for it or for any substantial part of its property; or
(b) There shall be commenced against such party any proceeding of the type described in clause (a) (i) (ii) or (iii) hereof which:
(i) results in an order for relief; or
(ii) shall not have been vacated, discharged or stayed or bonded pending appeal for a period of thirty (30) days from the entry thereof.
10. Effect of Termination:
From and after any cancellation pursuant to clause 9 above:(a)The customer may continue to market the goods/products in its possession for which it has paid in its customary manner having reference to the terms and conditions of this agreement and in the ordinary course of business; and
(b)Payment and indemnification obligations arising prior to termination will remain in force; and
(c)The due date for all invoices for the items shall automatically be accelerated so that they shall immediately become due and payable on the effective date of termination even if longer terms had been provided previously. Termination of this agreement shall automatically cancel all unshipped orders.
(a)It is expressly agreed and declared that the title of the subject goods/products shall not pass to the customer until payment in full of the purchase price. The customer shall in the meantime take custody of the goods/products and retain them as the fiduciary agent and bailee of TSS.
(b)The customer may resell but only as a fiduciary agent to TSS. Any right to bind TSS to any liability to any third party by contract or otherwise is however expressly negated. Any such resale is to be at arms length and on market terms and pending resale or utilisation in any project or construction process is to be kept separate from its own properly stored protected and insured.
(c)The customer will receive all proceeds, whether tangible or intangible, direct or indirect of any dealing with such goods/products held in trust for TSS and will keep such proceeds in a separate account until the liability to TSS shall have been discharged.
(d)TSS is to have power to appropriate payments to such goods and accounts as it thinks fit notwithstanding any appropriation by the customer to the customer to the contrary.
(e)In the event that the customer shall hold such part of the proceeds of such project or construction process as relates to the goods/products held in trust for TSS. Such part shall be deemed to equal in dollar terms the amount owing by the customer to TSS at the time of the receipt of such proceeds.
Unless stated to the contrary on the face of this document, the whole of the purchase price is due immediately upon delivery of the items to the customer or the customer’s agent and is payable on demand or if no demand is made within thirty (30) days after the end of the month in which the items are so delivered. TSS reserves the right to charge interest at the set rate from time to time pursuant to section 2 of the Penalty Interest Rates Act 1983 (Vic) per annum calculated daily on any overdue amounts.
13. Order Deposit:
A deposit to the amount of thirty (30) percent of the order value shall apply to orders received for equipment of non standard manufacture or equipment of overseas manufacture unless documentary credit or bankers guarantee applies.
14. Goods and Services Tax:
If any GST is payable by TSS in respect of the supply of any goods/products to the customer then unless the amount in any quotation is expressed or described to be inclusive of GST same shall be increased so that TSS receives an amount which after subtracting the GST liability results in TSS retaining the amount of the quotation after deduction of that GST liability.
15. Force Majeure:
Neither party shall be liable or deemed in default hereunder for any delay or failure in performance resulting directly or indirectly from acts of God, of any government war or natural emergency accidents, fires, strikes or labour disputes provided that the delaying or non-performing party has taken all commercially reasonable actions that are available to avoid such delay or non-performance; provided however that if such delays continue for one hundred and twenty (120) days then the other party shall have the option exercisable by written notice to the party affected by such force majeure event to cancel all or any portion of orders place hereunder and to terminate this agreement.
Failure by TSS to insist upon strict performance of any item or condition hereof shall not be deemed a waiver thereof or of any rights TSS may have and shall not and nor shall any express waiver be deemed to be a waiver of any subsequent breach of any term or condition.
If any provision of this contract is held by a court of competent jurisdiction to contrary to law the remaining provisions hereof shall remain in full force and effect.
18. Governing Law:
This contract shall be governed by construed and enforced in accordance with the laws in the state of Victoria – Australia.