(Definitions)In these Standard Terms and Conditions, “the Seller” means TorcStark and “the Buyer” means the person described as the customer in any Quotation or Order. Any reference to a “person” includes a corporation. Any reference to “Goods” is to the Goods sold by the Seller to the Buyer pursuant to an acceptance by the Buyer of an Order or Quotation such Goods being as described therein. A reference to an “Order” is a reference to an Order placed by the Buyer with the Seller for the purchase of the Goods. A reference to a “Quotation” is to a Quotation made by the Seller setting out the description and quantities of the Goods and the price it will sell those Goods in those quantities to the Buyer. A reference to the “Sellers Specifications” is a reference to the specific instruction manual applicable to any particular item of the Goods. A reference to “Standard Terms and Conditions” is a reference to these Standard Terms and Conditions.
(Entire Contract)These Standard Terms and Conditions contain the complete agreement between the Seller and the Buyer. No change or modification of any of the terms or conditions contained herein will be binding unless in writing signed by each of the parties.
(Limitation of Liability)The Seller makes no representations and gives no warranties express or implied in respect of the Goods except as contained in these Standard Terms and Conditions, or in any legislation (where such warranties cannot be excluded) or Seller’s Specifications for those Goods. In particular, but without limiting the generality of the foregoing, the Seller does not warrant that the Goods are fit for any particular purpose, other than as set out herein or in the specification for those Goods. This applies irrespective of whether or not any such purpose has been communicated to the Seller by the Buyer.
(Implied Terms Excluded)All implied terms including warranties in respect to the Goods under any legislation which the parties can by agreement lawfully exclude are hereby excluded. Subject to any implied warranties that cannot be excluded or limited, the Buyer agrees that the Seller is and will not be liable for any damages or loss of any kind whatsoever (including, without limitation, any liability for consequential loss) arising out of the sale of the Goods or their use and whether arising from any act, omission or failure (including any negligent act or omission) of the Seller.
(Implied Terms Limited)If any implied terms cannot be excluded, the Seller’s liability is limited to the extent permitted by the Trade Practices Act. In this respect; the Seller may at its sole discretion in the case of Goods replace the Goods or supply equivalent Goods, repair the Goods or pay to the Buyer the cost of replacing the Goods or acquiring equivalent Goods or pay to the Buyer the cost of having the Goods repaired.
(Claims for Breach)Subject to clause 8 any claim for breach of contract must be commenced by the Buyer within one year from the date of delivery of the Goods.
(Place of Delivery)Unless otherwise specified; delivery of the Goods shall take place at the Seller’s warehouse where the Goods are stored.
(Warranty)The Seller warrants that the Goods that it sells under the brand name “TorcStark” shall be free of manufacturing and material defects for a period of three years from the date of sale. In the case of all other Goods, the Seller warrants that the Goods shall be free of manufacturing and material defects for a period of one year from the date of sale. This warranty does not apply to any defect, damage or repair to the Goods where such defect, damage or repair is a direct or indirect consequence of any modification to the Goods, misuse of the Goods or accident in which the Goods are damaged. A misuse of the Goods shall include but not be limited to any use of the Goods outside of the Seller’s Specifications. This warranty shall only oblige the Seller, at the Seller’s absolute discretion to repair the Goods, replace the Goods or provide to the Buyer the parts required in order to repair the Goods. All transport costs to and from the Seller’s designated workshop shall be borne by the Buyer.
(Excluded Goods)The Seller gives no warranties to the Buyer in respect to the Excluded Goods. Both parties acknowledge that these are consumable items that require periodic replacement, the frequency of which depends on usage.
(Quotations)All prices quoted by the Seller are for immediate acceptance by the Buyer and shall automatically lapse if not accepted within thirty days of the Quotation being made, and are subject to any specific terms as set out in the Quotation. Upon the acceptance of a Quotation by the Buyer, there is a binding contract between the Seller and the Buyer for the sale of those Goods the subject of the Quotation and these Standard Terms and Conditions shall apply to that contract. Any acceptance of a Quotation can be made by email, facsimile or by post and shall be deemed communicated upon the sending of the email, the facsimile or on posting.
(Orders) If an Order is placed by the Buyer on the Seller for Goods identified in that Order and that Order is accepted by the Seller, there is a binding contract between the Seller and the Buyer for the sale and purchase of those Goods and these Standard Terms and Conditions shall apply to that contract. The applicable price shall be the price contained in any current price list then published by the Seller for those Goods. If there is no current price list for those Goods, the price shall be the price nominated by the Seller in its acceptance of the Order. Any acceptance can be made by email, facsimile or by post and shall be deemed communicated upon the sending of the email, the facsimile or on posting.
(Price and payment)The Buyer must pay for the Goods in accordance with the terms for payment set forth in the Seller’s tax invoice and within the time specified therein for payment (the due date). Unless otherwise specified in the Tax Invoice, all Goods must be paid for within thirty (30) days from the date of Tax Invoice. If the Goods are not paid for by the due date, the Seller may suspend all other deliveries until such payment is made. The Seller may also change the terms of payment in respect to all other deliveries of Goods including requiring payment before delivery.
(Interest)The Seller may charge interest on all amounts not paid by the Buyer in accordance with the Seller’s Tax Invoice. Interest will be calculated daily from the due date for payment until the date payment is received at the rate of 1% per month.
(Lien)Until the Goods are paid for, the Seller shall have a lien over all of the Buyer’s property then in the possession of the Seller.
(Property in Goods)The Buyer acknowledges that title in the Goods delivered by the Seller to the Buyer does not and will not pass to the Buyer until the Seller has received full payment for those Goods. Notwithstanding that title in the Goods has not passed to the Seller, risk of any damage to or destruction of the Goods passes to the Buyer upon delivery of the Goods to the Buyer or the Buyer’s nominated carrier. The Buyer undertakes to keep the Goods clearly identified as the property of the Seller and separate from any other goods until they are paid for. The Buyer may deal, sell or trade with the Goods in the normal course of its business provided the Buyer continues to comply with these Standard Terms and Conditions.
If the Buyer fails to pay the Seller for the Goods by the due date then in addition to all other remedies which the Seller may have, the Seller may retake possession of the Goods and for that purpose, the Seller and its representatives are irrevocably authorised by the Buyer to enter upon any premises where the Goods may be stored or located to retake possession of them and remove them from such premises. The Buyer indemnifies the Seller against any loss, liability or damage it might directly or indirectly sustain as a consequence of taking possession of the Goods.
(Carriage and Transportation)The price of the Goods includes all costs of usual packaging but does not include carriage and transportation of the Goods from the Seller’s warehouse to the Buyer’s nominated place of delivery. If the Buyer requires any particular packaging to be used, the Buyer must bear the costs of such packaging.
(Urgent delivery)If urgent delivery of the Goods is required, the Buyer must bear all the costs involved in facilitating the urgent delivery, including (without limitation) all urgent courier and transportation costs and all overtime costs (if any) incurred by the Seller.
(Delay)Whilst the Seller will use its best endeavours to deliver the Goods by any particular date or time in the Quotation or Order, the Seller is not and will not be liable to pay any compensation or damages to the Buyer or any other person caused by any delay in delivering the Goods by any particular date or time stated in the Quotation or Order which date or time the Buyer acknowledges is an estimate only. The Buyer may not cancel this contract because of any delay in delivery of the Goods if the Goods are delivered within forty-five days of the date for delivery stated in the Quotation or Order or where the delay in delivery is caused by any circumstances that is beyond the reasonable control of the Seller.
(Claims for Defects)The Buyer shall be deemed to have inspected the Goods and satisfied itself as to their type, quality, quantity, merchantability and fitness for purpose and all claims for defects in quality, fitness for purpose or merchantability or shortages shall be deemed waived by the Buyer unless notified to the Seller in writing within fourteen days from the date of delivery of the Goods.
(Taxes and Charges)The Buyer must pay to the Seller when it pays for the Goods all Goods and Services Tax on the Goods as shown on the Seller’s tax invoice.
(Cancellation of uncompleted orders)If the Buyer fails to make any payment by the due date the Seller may, irrespective of any other rights or remedies which the Seller may have, suspend delivery on any uncompleted Orders from the Buyer and unilaterally cancel any obligation of the Seller to later perform any unperformed obligations under any contract with the Buyer. The Buyer expressly waives any right or cause of action against the Seller in contract, tort or otherwise for any special, direct or indirect or consequential damages incurred as a result of the cancellation or suspension by the Seller of any of its obligations. Refusal to deliver any Goods in accordance with this clause will not be considered a breach of any contract by the Seller.
(Force Majeure and Acts of God)If through the happening of any event beyond the control of the Seller or through any natural disaster or other similar circumstance the Seller is unable to deliver the Goods or any part thereof the Seller shall not be liable to the Buyer in any way for any non delivery of the Goods or any part thereof.
(Conflicts with the Buyer’s Terms and Conditions of Sale)If the Buyer has any special terms and conditions in its purchase orders issued by the Buyer, those special terms and conditions will be subordinate to these Standard Terms and Conditions and to the extent of any inconsistency be deemed waived by the Buyer and shall not in any circumstances be construed as terms of the contract for the sale of the Goods. Acceptance of a Quotation, the placement of an Order by the Buyer, or, in any other instance (where there is no Quotation or Order) the acceptance of delivery of the Goods by the Buyer shall constitute acknowledgement by the Buyer that these Standard Terms and Conditions contained prevail over any other terms and conditions of the Buyer, but only to the extent that they are inconsistent with these Standard Terms and Conditions.
(Notices)Any notice under this Agreement must be:
in writing, signed and delivered to the party to whom it is addressed at the address of that party set out in this agreement or at such other address as may be notified by that party in writing from time to time;
may be served personally on the party to whom it is addressed or may be delivered by post or sent by facsimile transmission to that person.