Terms & Conditions
GENERAL TERMS AND CONDITIONS FOR SALE OF PRODUCTS AND SERVICES
- Definitions & Interpretation
In the following Terms and Conditions of sale, unless the context requires otherwise
(a) "TECS" means TECS Pty Ltd ABN 88 104 228 999;
(b) "Customer" means the person or corporation placing an order for the purchase of goods or services from TECS;
(c) "Products" means any goods, materials, equipment or services provided to the Customer by TECS;
(d) if the Customer comprises more than one person, each of those person’s liability is joint and several;
(e) references to a party or a person includes any form of entity and their respective successors, assigns and representatives;
(f) for all periods and times specified in clauses 5 and 11, time is of the essence; and
(g) all references to currency are references to Australian dollars.
By ordering the Products and/or accepting delivery of the Products from TECS, the Customer agrees that it is bound by these Terms and Conditions of sale. Customer orders, including orders placed via the internet, are subject to acceptance by TECS. The acceptance of the Customer's order by TECS is expressly made conditional upon the Customer's assent to these Terms and Conditions which will prevail notwithstanding anything that may be stated to the contrary on the Customer's order. TECS reserves the right to vary any of these terms at any time and any subsequent orders placed by the Customer will constitute an acceptance of the terms as varied. Once a Customer order has been placed and accepted by TECS, the Customer agrees that the Customer has no right to cancel or vary the order at any time, unless agreed upon in writing by both parties.
Any quotation by TECS to the Customer will be open for acceptance by the Customer within the period stated in the quotation or, where no period is stated, within seven (7) days from the date of the quotation. Thereafter, prices stated in the quotation may be varied by TECS without notice to the Customer.
- Prices / Taxes
The prices charged by and payable to TECS will be the ruling prices applicable at the time of order placement, provided that the Products are accepted for delivery within a reasonable time. Prices are subject to change without notice. Recommended retail prices are provided for indicative purposes only and there is no obligation for TECS to comply with that recommendation. It as agreed that should the Customer fail for any reason to acquire the quantity of Products sold then without limiting TECS' other rights and remedies the unit price charged for the goods sold may be amended to take into account any variation in the total quantity purchased by the Customer. Prices include GST, but do not include any other tax or duty, which is in addition to the price and is to be paid by the Customer at the time of payment for the Products.
- Terms of Payment
- Credit Card Payments may attract a surcharge, and TECS will inform the Customer if this is to be the case before processing the transaction.
Unless otherwise agreed in writing by TECS, where TECS has not agreed in writing to provide commercial credit to the Customer, the total purchase price for Products supplied will be due for payment in cash prior to delivery.
Where TECS has agreed in writing to provide commercial credit to the Customer, the Customer must make payments in accordance with the payment terms provided by TECS.
Where TECS has approved the provision of a commercial credit arrangement with the Customer but has not provided notice of the payment terms to the Customer, the Customer must pay the total purchase price for Products supplied within seven days of the statement date.
Credit Card Payment at an Invoice or transaction level may also be offered to the Customer as a stand-alone payment method, or in conjunction with Credit Card Direct Debit Authorisation.
- Credit Accounts
Any commercial credit arrangements that are provided to the Customer by TECS will continue until terminated by TECS at it sole discretion. In the event that TECS terminates the Customer's commercial credit arrangement, the Customer will be notified in writing and termination will take effect upon receipt of that notification by the Customer.
- Change of Ownership
Trading accounts are approved by TECS based on the information supplied and the representations made by the Customer. In the event that there is a change in ownership of the Customer, whether total or partial, the Customer must immediately provide written notice to TECS informing TECS of these changes. Until TECS receives written notice from the Customer of a change in ownership, the Customer (including where it is a company or trustee, each of the Directors thereof) holds TECS indemnified against any and all losses, unpaid accounts, interest, damages, costs, charges, fees and expenses incurred or suffered by TECS in trading with any person, company (including the same company but with a different shareholder or shareholders) or other entity (including a trust) which may have purchased the Customer's business or any interest in the Customer's business or any of the shares in the Customer and used the Customer's previously approved account for trading.
Where a Customer has been authorised by TECS to make payments through Credit Card Direct Debit, the Customer must provide notice in writing at least five (5) days prior to any change in ownership of the business to allow TECS sufficient time to contact the new owner to obtain and confirm new Credit Card information if applicable.
- Information on the Products supplied
All descriptive specifications, illustrations, drawings, data, dimensions and weights furnished by TECS or otherwise contained in catalogues or other advertising material are approximate only and are intended to be merely a general description of the goods, are not incorporated within this agreement and no not form part of the description of the goods sold under this or any other agreement unless otherwise agreed to in writing by TECS in which case such information will be subject to recognised trade tolerances.
The means of delivering the Products to the Customer will be at TECS' discretion. TECS reserves the right to deliver Products in part deliveries. In the event that TECS incurs additional costs for meeting special (i.e. Tasmania / Northern Territory Deliveries) or urgent delivery arrangements, these additional costs may be charged to the Customer and may include the cost of airfreight where it is not the normal method of delivery. The Customer agrees to accept delivery of the Products sold at any time during normal business hours.
TECS will not be liable for any loss or damage resulting from any late delivery of the Products and late delivery will not entitle the Customer to rescind or repudiate the Customer's order for the Products.
The Customer must inspect the Products immediately upon delivery and must within 7 days from the date of delivery give written notice to TECS of any claim that the Products delivered are not in accordance with the Products that were ordered.
If the Customer fails to give notice of any such claim in accordance with this clause 11, then to the maximum extent permitted by law, the Products delivered shall be deemed to have been delivered to the Customer in accordance with these Terms and Conditions and the Customer waives any rights which the Customer may have in claiming that the Products delivered were not in accordance with the Products that were ordered.
Providing notice of a claim to TECS does not excuse the Customer’s obligation to make payment for the Products.
Products must not be returned without the prior written consent of TECS. Any Products returned must be returned at the Customers cost and must be in their original and saleable condition. A re-stocking fee may be charged to the customer for returned Products.
- Storage and Labelling
The Customer acknowledges being informed by TECS that:
(a) sensitised goods require proper storage, handling and display conditions to maintain quality;
(b) films, plates, papers and packed chemicals may deteriorate if not stored and handled in original sealed packages;
(c) TECS products are packaged for sale to Customers in their original packages on which are set out marks, numbers, references and other information. Consumers may be disadvantaged or even misled if these packages are covered, defaced, altered, erased or otherwise misused, and
(d) any trademarks and trade dress or get-up that are located on or provided with the Products are protected by law from misuse.
- Title & Risk
Risk in the Products passes to the Customer when the goods are delivered or collected by the Customer, as the case may be.
Title in the Products only passes to the Customer, free of encumbrances and all other adverse interests, when payment by the Customer for the Products supplied is received in full by TECS.
Until payment for the Products is received in full by TECS, the Customer acknowledges that it holds the Products as a fiduciary bailee for TECS and owes TECS the duties and liabilities of a bailee. The Customer further agrees that this bailment continues until all monies owing to TECS for the Products supplied have been received in full by TECS.
If the Products are sold or otherwise disposed of by the Customer prior to payment being received by TECS in full, the Customer will be deemed to have done so as agent for TECS and must hold the proceeds of such sale in a separate fund from its own money.
TECS reserves the following rights in relation to the Products until all monies owed by the Customer to TECS for the Products are paid in full:
(a) ownership of, and title to, the Products;
(b) the right to enter the Customer’s premises (or the premises of any associated company or agent of the Customer where the Products are located) without liability for trespass or any resulting damage and retake possession of the Products; and
(c) to keep or resell any Products repossessed pursuant to 14(b).
(a) the Customer breaches any of its obligations under these Terms and Conditions of sale including failing to make payments when due;
(b) being a natural person, the Customer dies, convenes a meeting of its creditors or becomes bankrupt; or
(c) being a company, the Customer calls a meeting of its creditors, has a receiver or other administrator appointed over all or any part of its assets, enters into liquidation, becomes subject to a winding up order of the court, makes any arrangement or composition with its creditors, permits any judgement against it to remain unsatisfied for at least seven (7) days or has any distress, execution or other legal process levied against it,
TECS may, at its option and without prejudice to any of its other rights and remedies, do any one or more of the following:
(a) delay delivery or settlement of any goods until the matter is resolved to TECS’s satisfaction;
(b) suspend or cancel (in whole or in part) this contract by written notice to the Customer; and/or
(c) recover from the Customer, or deduct from or set-off against any amount TECS may owe the Customer, amounts for any damage, loss or cost (including legal costs) to TECS relating to the non-performance by the Customer.
- Limitation of Liability
To the maximum extent permitted by law, TECS's liability to the Customer in any way connected with the supply of the Products under these Terms and Conditions and for any damage caused to any person or property by the Products is limited to, at TECS’ election
(a) the replacement of the Products or the supply of equivalent Products;
(b) the repair of the Products;
(c) the cost of replacing the Products or of acquiring equivalent Products;
(d) the payment of the cost of having the Products repaired.
To the maximum extent permitted by law, TECS is not liable to the Customer or any other person for any physical or financial injury, loss or damage or for indirect or consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Products or arising out of TECS’ negligence or in any way whatsoever.
To the maximum extent permitted by law, TECS is not liable to the Customer or any other person for any loss of data in any form.
TECS warrants to the Customer that clear title to the goods passes to the Customer when ownership passes in accordance with clause 14. The only conditions and warranties which are binding on TECS in respect of the state, quality or conditions of the goods sold or anything else in respect of the goods sold are those provisions which cannot be excluded pursuant to the Trade Practices Act 1974 (as amended). Otherwise all other conditions and warranties whether expressed or implied by law in respect of the state, quality or conditions of goods sold which may be binding on TECS apart from this clause, are hereby expressly excluded and negatived.
To the maximum extent permissible by law, TECS provides the same product warranty to the Customer that the manufacture or supplier of the product in question offer. If a manufacturer of a product deems a product to be of merchantable quality, TECS asserts the same position, and to the maximum extent permissible by law the Customer must accept this.
The Customer must indemnify and keep indemnified TECS against all claims, actions, demands, liabilities, loss, damage, costs, charges and expenses of whatsoever nature which may be brought against TECS or which TECS must pay, sustain or incur by reason of or in any way connected with:
(a) any delay or failure by the Customer to pay moneys in accordance with these Terms and Conditions of sale;
(b) any other breach by the Customer of any warranties or obligations set out in these Terms and Conditions of sale;
(c) any breach by the Customer of any representations, warranties or obligations set out in the terms and conditions applicable to any credit arrangement between TECS and the Customer; and
(d) any act, default or omission of or any representation made by the Customer or a servant or agent of the Customer.
- Force Majeure
Where TECS is unable, wholly or in part, by reason of an act of God, strike, lockout or other interference with work, war declared or undeclared, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi-governmental restraint, unavailability or delay in availability of the Products or transport, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences, authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of TECS ("force majeure") and the force majeure affects TECS’ ability to carry out any obligation under these terms and conditions, TECS will be excused from performing that obligation so far as it is affected by force majeure during the continuance thereof.
- Governing Law
These Terms and Conditions and any agreement made between TECS and the Customer hereunder is governed by and must be construed in accordance with the laws in force in Victoria.
The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to these Terms and Conditions, its performance or subject matter.
A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by these Terms and Conditions does not operate as a waiver of the power or right. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under these Terms and Conditions. A waiver of a breach is not a waiver of any other breach.
- No Authority
The Customer agrees and acknowledges that it has no authority to pledge the credit of TECS or represent to any party that TECS has an interest in the Customer’s business.
- No Assignment
No delegation or assignment by the Customer of any of its rights or obligations under these Terms and Conditions must be made without the express written permission of TECS and any attempt at such assignment or delegation is void.
If any provision of these Terms and Conditions offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then:
(a) where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature, it must be read down to the minimum extent necessary to achieve that result; and
(b) in any other case the offending provision must be severed from these Terms and Conditions, in which event the remaining provisions of these Terms and Conditions operate as if the severed provision had not been included.
TECS is committed to the protection of your personal information and will only use personal information provided to it in accordance with the National Privacy Principles set out in the Privacy Act 1988 (Cth).