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TSS' quotation is valid for thirty (30) days unless withdrawn or varied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
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;
(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
(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
(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
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
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.