Terms and Conditions of Sale

1. DEFINITIONS

  1. Seller means Torqit Pty Ltd and any of it’s brands or divisions (ABN 27 615 019 559).
  2. Buyer means the Buyer whose order for the purchase of goods is accepted by the Seller, and/or whose name is specified on the invoice. The buyer could be an end user (consumer)-organisation or individual; a dealer or a re-seller.

2. BUYER AUTHORISATION

The Buyer authorises the Seller to obtain trade references and other credit worthiness information and to assess and exchange and disclose such information.

3. ACCEPTANCE OF BUYER’S ORDER

  1. These Terms and Conditions of Trade shall apply to every sales contract and sale of goods or services between Seller and Buyer hereafter.
  2. Any terms and conditions of Buyer’s order deviating from or inconsistent with these Terms and Conditions Trade are expressly rejected by the Seller. This rejection also extends to any statement by the Buyer that the Buyer’s terms and conditions shall prevail and to any stipulation by the Buyer as to the manner of declaring such rejection.
  3. A contract shall only be or be deemed to have been entered into between Seller and Buyer for the supply of goods and services when, upon an order having been placed upon the Seller for goods and services, that order has been accepted by the Seller. (Such acceptance of order may be made and communicated by the Seller in writing or by overt act of acceptance.)
  4. The provisions of this Clause shall apply to every quotation or offer by the Seller to the Buyer for the supply of goods and services.

4. PRICES

  1. Quotations are to be treated as estimates only and subject to withdrawal, correction or alteration at any time before acceptance of Buyer’s order by the Seller.
  2. Prices are ex Seller’s warehouse unless otherwise agreed in writing. Additional costs such as delivery, assembly etc will be quoted as separate items.

5. PAYMENT

  1. If the Seller extends credit to the Buyer, the Buyer is to make payment for all goods sold to it by the Seller within (30) days from the last day of the month in which each delivery was made by the Seller.
  2. Payment of any amount by the Buyer must be treated as being received in the following order:
    1. First, in relation to obligations that are not secured under the Personal Property Securities Act 2009 (“PPSA”), in the order in which those obligations were incurred;
    2. Second, in relation to obligations that are secured, but not by purchase money security interests, in the order in which those obligations were incurred; then,
    3. Third, in relation to obligations that are secured by purchase money security interests, in the order in which those obligations were incurred.
  3. If the Buyer fails to comply with clause 5(a) of these Terms and Conditions of Trade, the account is deemed to be an Overdue Account.

6. OVERDUE ACCOUNTS AND DEFAULT BY THE BUYER

  1. A Default Event arises if:
    1. The Buyer is an individual and commits an act of bankruptcy or is declared bankrupt;
    2. The Buyer is a company and:
      1. A petition is made to wind up the Buyer, the Buyer is wound up, or otherwise becomes insolvent; or
      2. The Buyer is placed in receivership or voluntary administration;
    3. The Buyer enters into a formal or informal arrangement with creditors;
    4. A cheque presented by the Buyer for payment is not honoured;
    5. An account becomes overdue;
    6. The Buyer ceases to do business; or
    7. The Buyer is in breach of any of these Terms and Conditions of Trade.
  2. If a Default Event occurs then:
    1. The Seller may cease to deliver any goods to the Buyer;
    2. All Overdue Accounts become payable immediately and Interest shall be payable by the Buyer on any Overdue Account to the Seller at the rate of two and a half (2.5) per centum per month;
    3. All costs and disbursements incurred by the Seller (including legal fees and debt collection agency fees) incidental to or arising from recovery of any unpaid amount shall be added to the balance of the Overdue Account and attract interest charges pursuant to Clause 6(b)(ii) of these Terms and Conditions of Trade; or
    4. The Seller may repossess any goods delivered and dispose of them in any way it sees fit in accordance with clause 12 of these Terms and Conditions of Trade.

7. SECURITY

  1. To secure payment of all monies owed to the Seller by the Buyer, the Buyer hereby gives the Seller:
    1. A fixed charge over all real property currently owned or later acquired by the Buyer and consents to the Seller registering a caveat in this regard; and
    2. A security interest over the whole of the Circulating Assets and Non-circulating Assets of the Buyer as defined in the PPSA.
  2. If the Buyer is a trustee, the Buyer represents to the Seller that the Buyer has authority under the relevant trust instrument to trade with the Seller and to give the Seller a charge and security interest pursuant to Clause 7(a) of these Terms and Conditions of Trade in its capacity as trustee.
  3. The Buyer hereby irrevocably appoints the Credit Manager from time to time of the Seller as its attorney to do all things necessary to create and register each caveat and/ or security interest.

8. CANCELLATION

  1. Orders accepted by the Seller cannot be countermanded or delivery deferred or goods returned except with the written consent of the Seller and upon terms that reimburse and indemnify the Seller against all loss including cartage, bank charges and other incidental expenses on any part of that order that is cancelled.
  2. Where the Seller agrees to accept goods for return, a re-stocking charge of 20% of the price of the goods returned may be made at the Seller’s discretion.

9. ACCEPTANCE AND CLAIMS

Acceptance of the goods delivered shall be deemed for all purposes to have taken place at the expiration of seven (7) days from the date of each delivery. Any claim in respect to the goods must be made within seven days.

10. DELIVERY AND RISK

  1. All deliveries made by the Seller are to be at an additional cost to the Buyer unless otherwise stated.
  2. Delivery times quoted are estimates only and subject at all times to factors outside the Seller’s control (inclusive but not limited to: holidays, fire, strikes, lockouts, other contingencies) and in all cases are subject to confirmation or alteration (if and when offered by the Seller) when an order is accepted by the Seller.
  3. Unless the buyer has requested the Seller to make special delivery arrangements, the risk in respect of the goods shall pass to the Buyer upon delivery to the Buyer’s premises, to its agent or to its nominated carrier’s depot. The Buyer shall provide or cause to be provided full and clear access for delivery and will at its expense provide all necessary assistance in unloading the goods at the nominated place of delivery.
  4. Where the Buyer has requested special delivery arrangements (i.e. other than the Seller delivering to the premises of the Buyer), risk in respect of the goods shall pass to the Buyer upon the goods leaving the premises of the Seller. The Seller will not in any circumstances accept liability for damage, shortage or loss during transit.

11. INSURANCE

The Buyer is responsible to effect whatever insurance cover it requires at its expense to cover them for any risk in accordance with clause 10(c) and 10(d) of these Terms and Conditions of Trade.

12. RETENTION OF TITLE

  1. All goods delivered by the Seller pursuant to these Terms and Conditions of Trade remain the property of the Seller until the Buyer pays the Seller in full.
  2. Payment in full occurs at the time when all cheques presented by the Buyer and/or direct deposits made by the Buyer in payment of the goods have cleared.
  3. If the Buyer has not paid in full, then the Seller may repossess any goods delivered and dispose of them in any way it sees fit.
  4. If the Seller exercises its rights under Clause 6 of these Terms and Conditions of Trade, the Buyer gives permission to the Seller in the name of the Buyer to enter upon its premises or wherever the goods may be situated, whether or not the goods have been sold, and to use such force as may be reasonable and necessary to inspect or repossess the goods.
  5. Until payment is received in full, the Buyer agrees:
    1. To hold the goods as a fiduciary and bailee for the Seller and to store them in a manner showing the Seller as the true owner of them;
    2. Only to sell the goods in the ordinary course of business.
    3. To hold any proceeds received from the disposal of the goods in the ordinary course of business on trust for the Seller;
    4. That sale on terms or for less than cost shall not be “in the usual course of business”.
    5. To insure all goods in the Buyer’s possession; and
    6. That a certificate purporting to be signed by an officer of the Seller identifying the goods as unpaid for shall be conclusive evidence of non payment and the Seller’s title to the goods.

13. SECURITY INTEREST UNDER THE PPSA

  1. The Buyer agrees that:
    1. each order accepted by the Seller, being an order accepted under these Terms and Conditions of Trade, creates a registrable security interest under the PPSA in any goods supplied under it;
    2. the Buyer acknowledges the right of the Seller to register a financing statement under the PPSA with respect to the security interest created by these Terms and Conditions of Trade;
    3. if the Seller registers a security interest under the PPSA, the Seller may exercise any or all remedies afforded to the Seller as a secured party under it without prejudice to any other rights or remedies arising out of a breach by the Buyer of any agreement with the Seller; and
    4. the goods are collateral for the purposes of the PPSA.
  2. The Buyer waives any right the Buyer has under the PPSA to receive notice in relation to registration events.
  3. The Buyer and the Seller agree that neither will disclose information of the kind specified in Section 275 (1) of the PPSA.
  4. At the election of the Seller to be exercised at any time in its absolute discretion, any section of the PPSA specified in Section 115 will not apply to the extent permitted by Section 115.

14. SPECIAL ORDERS

  1. The Buyer will place an order in writing to the Seller for non-stock items.
  2. The Seller will not accept the return of non-stock items unless the Manufacturer agrees to accept return of the non-stock items from the Seller.
  3. The Seller may deduct transport costs, handling costs and restocking charges (being 20% of the return price of the goods sold to the Buyer) from the credit due to the Buyer and may also deduct therefrom reasonable labour costs associated with the restoration of non-stock items to the condition as supplied by the Manufacturer.
  4. Special manufactured goods or cut lengths are not returnable to the Seller.

15. DELIVERY TIME

  1. The Seller may deliver the goods by instalments or partial shipments to the Buyer, its agent or nominated Carrier and the Buyer will accept each delivery.
  2. Requirements of the Buyer shall not be a condition or of the essence of the contract.
  3. The Seller shall be under no liability for direct or consequential loss or damage to the Buyer arising from delay or postponement in delivery.

16. WARRANTY AND USE

  1. All express or implied terms, guarantees, conditions, warranties and representations are hereby expressly negated and excluded except to the extent that any implied guarantee, condition or warranty may not be excluded by law.
  2. In the event of any breach of an implied guarantee, warranty or condition which is not expressly excluded from these Terms and Conditions of Trade, the Seller’s liability shall at the Seller’s option be limited to:
  3. the repair or replacement of the goods or the supply of equivalent goods; or b. the cost of such repair, replacement or supply.
  4. In no event shall the Seller be liable for any indirect, incidental or consequential damages including for economic loss, loss of profits or damage to goodwill.
  5. In no event shall the Seller be responsible for the use or misuse of the goods or the installation thereof by the Buyer or third party.

17. EXCLUSIONS AND ACKNOWLEDGMENTS

The Buyer acknowledges and agrees that;

  1. The goods are of a size, design and capacity selected by the Buyer.
  2. The Buyer is satisfied that the goods and/or plans and specifications for such installation is suitable for the Buyer’s purpose.
  3. The Buyer in ordering the goods and/or installation of such goods has relied entirely on the Buyer’s own judgment and not on any statements made by the Seller or its servants.
  4. The Seller shall not be liable to the Buyer for any liability, loss, damage, or expense of any kind caused directly or indirectly by the goods or any inadequacy thereof for any purpose or any defect therein or by the use thereof.
  5. The Seller shall not be liable for any contingent, consequential or resulting loss or damage or any sum being or representing loss of profits or earnings or amounts payable in respect of any accident resulting from the use or condition of the goods.

18. DISCLAIMER AND INDEMNITY

  1. The Seller shall not be liable in contract or in tort or otherwise for any loss whatsoever arising from any information or assistance given to the Buyer whether by way of advice, instruction or demonstration or otherwise.
  2. The Buyer must indemnify and keep indemnified the Seller from all loss or damage to the property or loss with respect to any person occasioned either directly or indirectly from the hire, sale, or use by the Buyer of the goods supplied by the Seller.

19. VARIATION BY BUYER

Should there be any variation in details, sizes and quantities, delivery instructions or any other matter on which the quotation or invoice is based, the Seller reserves the right to revise and amend the contract price accordingly.

20. CLERICAL ERRORS

Clerical errors in computations, typing or otherwise of catalogue, quotation, acceptance, offer, invoice, delivery advice, adjustment note or specification of the Seller, shall be subject to correction.

21. MODIFICATIONS

All modifications and amendments to these Terms and Conditions of Trade shall be in writing and if otherwise shall not be binding upon the Seller.

22. WAIVER AND SEVERANCE

If any of the provisions of this contract are unlawful or invalid by reason of any applicable statute or rule of Law, then such provision shall be severed form the rest of this contract which shall remain valid and binding on the parties. Any waiver of any clause of these Terms and Conditions of Trade by the Seller does not negate the rest of the contract.

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