Terms and Conditions of Sale
1. Sole Terms
These Terms and Conditions apply to all transactions between the customer (Customer) and Tyrolit Australia Pty Ltd (ABN 40 002 794 434) (Tyrolit Australia), including all quotations, offers and orders in relation to the industrial diamond tool products manufactured and sold by Tyrolit Australia (Goods). These Terms and Conditions (which will only be waived or varied in writing signed by Tyrolit Australia) will prevail over all conditions of the Customer to the extent of any inconsistency.
The price at which the Goods will be invoiced to the Customer will be based upon the published prices of Tyrolit Australia current at the time of invoicing as shown in its price lists and other publications, copies of which will from time to time be made available to the Customer by Tyrolit Australia. Tyrolit Australia has the right to vary its prices by giving written notice to the Customer. Such variation will operate from the date of receipt by the Customer of particulars of the increase. All prices are in Australian dollars, excluding GST. Prices are “ex works” from Tyrolit Australia’s manufacturing or delivery site. Unless otherwise agreed by the parties in writing, insurance, freight costs, any applicable customs duties and taxes that may be levied by reason of importation and additional costs for express delivery (Transport Costs) will be to the Customer’s account. To the extent that the parties agree that the Transport Costs are to be borne by Tyrolit Australia the amount of the invoice will be reduced by an amount equal to the amount to be borne by Tyrolit Australia, and in the event that the Transport Costs increase between the time of the placement of the order and the date on which the Transport Costs are incurred by Tyrolit Australia, the increase in Transport Costs will be borne by the Customer and will be added by Tyrolit Australia to the invoice.
3. Orders and Quotations
Except for orders relating to spare parts, orders must be for Goods with a total value of a minimum amount as specified by Tyrolit from time to time. Unless previously withdrawn, a quotation given by Tyrolit Australia (Quotation) is valid for 30 days or such other period as stated in that Quotation. A Quotation is not to be construed as an obligation on the part of Tyrolit Australia to sell but merely an invitation to treat and no contractual relationship will arise until the order has been received from the Customer and an order acknowledgement communicated by Tyrolit Australia to the Customer. Prices specified in a Quotation are subject to alteration without notice and are provided on a supply only basis unless otherwise stated.
Delivery is “ex works” from Tyrolit Australia’s manufacturing or delivery site. While Tyrolit Australia endeavours to keep delivery dates, any delay of delivery, for any reason whatsoever, will not entitle the Customer to claim for any consequential loss or damages or to cancel, rescind or terminate the agreement. Should circumstances beyond the control of Tyrolit Australia prevent or hinder delivery, Tyrolit Australia will be free from any obligation to deliver Goods while such circumstances continue. For as long as such circumstances exist, Tyrolit Australia may, at its option, cancel, rescind or terminate all or any part of the contract or keep the contract on foot until such circumstances have ceased. Such circumstances beyond the control of Tyrolit Australia include, but are not limited to: strikes, lockouts, rebellions; fire; acts of God; shortages of materials; Government decrees, proclamations or orders; transport difficulties; and failures or malfunctions of computers or other information technology systems. Tyrolit Australia reserves the right to over-supply or under-supply any order within reasonable limits. The Customer will pay for any such over-supply at the unit price for the delivered Goods.
5. Instalment Deliveries
Deliveries by instalments during an agreed period (Delivery Period) must be agreed by the parties at the time the order is accepted by Tyrolit Australia. If the parties agree a specific quantity of Goods is to be delivered by way of instalments during the Delivery Period, the Customer must make the individual requests for the delivery of each instalment of the Goods at regular intervals during the term of the Delivery Period on the relevant dates agreed by the parties. Where the Customer fails to request or accept instalment deliveries in accordance with these Terms and Conditions Tyrolit Australia may store the Goods at the risk and cost of the Customer and the Customer will be deemed to be in default of payment for the delivery.
Where Goods are ordered for delivery by instalments, each instalment is deemed to be a separate order and a separate contract performed by Tyrolit Australia upon delivery of that instalment.
6. Inspection and Rejection
The Customer must inspect the Goods on delivery. Any claims that the Goods are faulty must be made to Tyrolit Australia in writing within 10 business days of delivery and must be supported by a copy of the invoice, full details of the reason for the claim and, where appropriate, the return of the Goods. If such a claim is not made within 10 business days of delivery, the Goods are deemed accepted by the Customer and cannot be rejected. The Customer will not carry out any remedial work to the alleged defective Goods without first obtaining the written consent of Tyrolit Australia to do so.
7. Return of Goods
Tyrolit Australia will accept Goods returned by the Customer (Returned Goods) subject to:
- the Customer returning the Returned Goods no later than 90 days from the date of invoice,
- the Customer paying a restocking fee in the amount of 15% of the invoiced price of the Returned Goods where the Returned Goods are returned more than 30 days after the date of invoice;
- the Returned Goods must not be Goods specially made, modified or imported for the Customer, and
- the Returned Goods must not have been altered or damaged by the Customer.
Subject to the above, Tyrolit Australia will refund the purchase price at which the Returned Goods were invoiced to the Customer. Transport Costs are the responsibility of the Customer unless otherwise agreed by Tyrolit Australia. If not prepaid by the Customer, they will be deducted from any credit.
Subject to the terms of this clause 0, risk in the Goods will pass to the Customer upon delivery of those Goods to the Customer in accordance with these Terms and Conditions.
If delivery of the Goods is delayed upon request by the Customer, or where such delay is caused by the Customer, risk passes to the Customer upon the Goods being made available for collection by Tyrolit Australia or freight forwarder (as the case may be). In the event that the Customer is in default in taking delivery, the risk of accidental destruction or deterioration of the Goods passes to the Customer at the time the Customer is in default. Subject to clause 0, where, in accordance with these Terms and Conditions, Tyrolit Australia accepts return of any Goods, risk in those Goods will revert to Tyrolit Australia upon delivery of the Goods to Tyrolit Australia or upon collection of the Goods by Tyrolit Australia’s agent or courier as the case may be. Any property of the Customer under Tyrolit Australia’s custody or control will be entirely at the Customer’s risk as regards loss or damage caused to the property or by it.
9. Retention of Title
Notwithstanding that risk passes to the Customer under clause 0, until the Customer has effected full payment for the Goods and any other Goods previously supplied by Tyrolit Australia:
- legal title to the Goods will remain with Tyrolit Australia;
- the risk in the Goods will pass to the Customer on delivery to the Customer or its agent;
- the relationship between Tyrolit Australia and the Customer will be fiduciary;
- the Customer will hold the Goods as bailee for Tyrolit Australia, keep these Goods separate from other goods, and able the Goods so that they are identifiable as the goods of Tyrolit Australia;
- with Tyrolit Australia’s consent (which is given on the following conditions), the Customer is at liberty to sell the Goods, in the ordinary course of the Customer’s business, provided that the money resulting from the sale will:
- be held in a separate account in trust for Tyrolit Australia, not be mingled with other money; and not be placed into an overdrawn account; and in the event that the Customer uses the Goods in some manufacturing process of its own or of some third party then the Customer will hold such part of the proceeds of such manufacturing process as relates to the Goods in trust for Tyrolit Australia. Such part will be deemed to equal in dollar terms the amount owing by the Customer to Tyrolit Australia at the time of receipt of such proceeds.
The Customer is not an agent of Tyrolit Australia in any sale of the Goods by the Customer. If:
- the Customer breaches these Terms and Conditions;
- the Customer defaults on any payment due under these Terms and Conditions;
- Tyrolit Australia forms the opinion that the Customer’s credit worthiness or credit standing alters from that indicated in its credit application;
- the Customer being a natural person, commits an act of bankruptcy;
- he Customer being a corporation, is subject to a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved, a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking, the entering of a scheme of arrangement (other than for the purpose of restructuring);, any assignment for the benefit of creditors; or Tyrolit Australia has reasonable grounds to believe that the Goods have been or will be destroyed, damaged, endangered or removed from the Customer’s normal place of business or its normal location;
Tyrolit Australia may at its absolute discretion:
- require payment in advance;
- require payment of all monies payable by the Customer whether due then or later;
- charge interest on outstanding amounts as provided for under clause 0;
- treat any contract between the Customer and Tyrolit Australia as repudiated and sue for breach of contract;
- terminate any contract by written notice to the Customer;
- withhold delivering further Goods;
- without notice to the Customer withdraw or vary any credit Tyrolit Australia has provided to the Customer;
- seek reimbursement for payments made by Tyrolit Australia for its full cost of recovering or attempting to recover amounts not paid by the Customer when due including, but not limited to, fees paid to a collection agency or legal fees and expenses of a lawyer; and/or
- without demand retake possession of the Goods and may without notice sell the Goods on such terms and in such manner as it determines and will be entitled to deduct all expenses incurred. For the purposes of recovering possession and without limiting the generality of the foregoing, the Customer irrevocably authorises and licenses Tyrolit Australia and its servants and agents to enter any premises where any goods may be stored and to take possession of the Goods. Tyrolit Australia is not liable for any damage or injury to any premises caused by Tyrolit Australia exercising its rights this clause unless such damage is solely caused by wilful negligence of Tyrolit Australia, its servants or agents.
The Customer may not assert or exercise any right of set-off against monies payable by the Customer to Tyrolit Australia under these Terms and Conditions.
Unless otherwise agreed by the parties in writing, the Customer will pay the full price of each order to Tyrolit Australia on or before 30 days from end of month after the date of issue of the invoice (Due Date). Payment is only received when Tyrolit Australia receives cash or when the proceeds of other methods of payment are credited and cleared to Tyrolit Australia’s bank account. In the event that the Customer fails to pay an invoice by the Due Date, then, in addition to any other rights which may be conferred upon Tyrolit Australia by law or equity, Tyrolit Australia will be entitled to be paid interest by the Customer on the outstanding amount at the rate prescribed in Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) from the date of such default until payment is received by Tyrolit Australia.
11. Good and Services Tax
If GST is imposed on a Taxable Supply made by Tyrolit Australia to the Customer under or in connection with these Terms and Conditions the price of the Taxable Supply shall be equal to the GST-exclusive consideration that the Customer must pay to Tyrolit Australia for the Taxable Supply under this Agreement increased by an amount (the GST Amount) equal to the amount of GST payable by Tyrolit Australia on that Taxable Supply; and
the GST Amount is, subject to Tyrolit Australia issuing a Tax Invoice to the Customer, payable at the same time and in the same manner as the consideration to which it relates.
In this clause GST means the goods and services tax or similar value added tax levied or imposed in Australia under the GST Act and includes any replacement or subsequent similar tax; GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth); Taxable Supply has the same meaning as in the GST Act; Tax Invoice has the same meaning as in the GST Act.
12. Advice and Information
Any advice, recommendation, information, assistance or service given by Tyrolit Australia in relation to Goods sold or manufactured by Tyrolit Australia or their use or application is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty of accuracy, appropriateness or reliability and Tyrolit Australia does not accept any liability or responsibility for any loss suffered from the Customer’s reliance on such advice, recommendation, information, assistance or service. Any and all statements made by Tyrolit Australia as to the weight, length, quantity, dimension or performance characteristics of the Goods are approximate and should be construed as such by the Customer.
13. Limitation of liability
To the extent permitted by law, Tyrolit Australia excludes all terms, conditions, warranties, undertakings, inducements or representations relating in any way to the Goods not contained in these Terms and Conditions. Tyrolit Australia shall not be liable to the Customer in any circumstances for any loss, damage, cost, loss of profits, anticipated savings, wasted expenditure, loss of contracts with third parties, goodwill or any type of special, indirect or consequential loss whether suffered by the Customer or by any third party and whether or not Tyrolit Australia was aware that such loss was possible or such loss was otherwise foreseeable, whether such loss arises from the use of the Goods or the failure by Tyrolit Australia to observe and fulfil its obligations under these Terms and Conditions or otherwise. To the extent permitted by law, Tyrolit Australia’s liability for any breach of a condition or warranty implied by the Trade Practices Act 1974 (and which cannot be excluded) shall be limited to any one or more of the following (as determined by Tyrolit Australia in its absolute discretion):
- replacing the Goods or supplying equivalent goods: or
- repairing the Goods: or
- paying the cost of replacing the Goods or acquiring equivalent goods: or
- paying the cost of repairing the Goods.
Without limiting the generality of the foregoing, Tyrolit Australia is not liable to the Customer or any other person for any consequential or other loss caused by Tyrolit Australia’s failure to perform its obligations under these Terms and Conditions of Sale if such failure is caused by anything beyond Tyrolit Australia’s reasonable control including, but not limited to, war, act of God, strike, lock out, shortened hours of labour, transport delays, inability to obtain supplies, accidents, destruction of or damage to offices or factories, interference by any government or other authority, fire, flood, tempest, or breakdown in machinery (including computer equipment).
14. Law and Jurisdiction
These Terms and Conditions are governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of that State.
If any clause or part of a clause of these Terms and Conditions is invalid, illegal, unlawful or otherwise being incapable of enforcement, that clause or part of a clause will be deemed to be severed from these Terms and Conditions and of no force and effect but all other clauses and parts of clauses of these Terms and Conditions will nevertheless prevail and remain in full force and effect and be valid and fully enforceable and no clause or part of a clause of these Terms and Conditions will be construed to be dependent upon any other clause or part of a clause unless so expressed.
The Customer may not directly or indirectly (including by way of sub-contract, security, reconstruction or amalgamation) assign, transfer or otherwise dispose of any of its rights under or interest in, or any of its obligations or liabilities under, or in connection with, or arising out of, any of these Terms and Conditions, except with the prior written consent of Tyrolit Australia. Tyrolit Australia may at any time assign, licence or novate any of its rights under or interest in, or any of its obligations or liabilities under, or in connection with, or arising out of, these Terms and Conditions.
Tyrolit Australia Pty Ltd
9 Tarlington Place
Smithfield NSW 2164
ABN 40 002 794 434
Phone 02 9316 6600