Terms and conditions.

Terms and conditions for the supply of goods by TuffStuff Pty Ltd

1. Definition and Interpretation

In these Terms and Conditions:

1.1 “Customer” means the purchaser of the Goods specified on Tuffstuff invoice. The Customer shall upon application and for any use of the Tuffstuff website be given a Tuffstuff Customer ID. The Customer shall at all relevant times have one login/account Administrator (“Account Administrator”). The Account Administrator shall have the sole responsibility for any and all purchases made by the Customer or it’s officers and / or employees with Tuffstuff and for any and all dealings by the Customer on the Tuffstuff website conducted using the Tuffstuff Customer ID.

1.2 “Goods” means the Goods specified in Tuffstuff invoice;

1.3 “Price” means the price specified on Tuffstuff invoice;

1.4 Words importing singular include the plural and vice versa;

1.5 Words importing natural persons include corporations and vice versa;

1.6 Nothing in these terms and conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding restricting or modifying any condition, warranty, guarantee right or remedy implied by law and which by law cannot be excluded, restricted or modified;

2. Terms of sale

By confirming acceptance of these terms in the space provided on the Tuffstuff website at the time of placing an order for goods the Customer accepts that the within terms and conditions apply to all sales between it and Tuffstuff.

2.1 Non website purchases

These Terms and Conditions shall apply to and be terms and conditions of any contract formed as a result of acceptance by Tuffstuff of an offer made by the Customer and shall in the event and to the extent of any inconsistencies prevail over all terms and conditions contained in any offer, order or other document submitted to Tuffstuff by the Customer.

3. Delivery

3.1 Tuffstuff shall use reasonable endeavours to comply with any reasonable time requested/specified for the delivery of the Goods by the Customer.

3.2 The Customer acknowledges that any delivery times are estimated delivery times only and that Tuffstuff shall not be liable to the Customer for any loss, damage or delay whatsoever occasioned to the Customer or any other person as a direct or indirect result of late delivery or non-delivery of the Goods or any part of the Goods.

3.3 The Customer agrees to pay the delivery charge as charged by Tuffstuff for delivering goods.

4. Price

4.1 Unless otherwise stated in writing, all prices quoted by Tuffstuff shall be in Australian Dollars.

4.2 If the cost to Tuffstuff of any Goods increases for any reason whatsoever before the Price is paid to Tuffstuff by the Customer, then Tuffstuff may increase the Price to cover the increased cost and the Customer shall pay to Tuffstuff the increased Price.

5. Payment / Retention of Title

5.1 Unless other credit terms have been agreed in writing, the Customer shall pay Tuffstuff the Price of the Goods in full prior to dispatch of the Goods.

5.2 Where payment is not made by the Customer in accordance with Clause 5.1, or any other payment terms agreed in writing between Tuffstuff and the Customer, then notwithstanding and without prejudice to any of its other rights, Tuffstuff may do any one or more of the following;

5.2.1 charge interest on the daily outstanding balance of all amounts due and payable at the rate of 1.5% per month from the due date until the payment is received by Tuffstuff, such interest to be paid by the Customer forthwith on demand or failing demand contemporaneously with the payment of such outstanding balances;

5.2.2 withhold delivery of the Goods or any part of the Goods not delivered to the Customer;

5.2.3 where Tuffstuff has dispatched the Goods, stop the Goods in transit;

5.2.4 where the Goods have been delivered to the Customer, enter the premises of the Customer (where the Goods are located) without liability for trespass or any resulting damage and take possession of the Goods;

5.2.5 keep or re-sell any Goods repossessed pursuant to Clause 5.2.4.

5.3 Until payment is made by the Customer in full, the Customer;

5.3.1 must not sell, charge, dispose of or otherwise deal with the Goods in any manner whatsoever save with the express consent in writing of Tuffstuff;

5.3.2 must hold the Goods in a dry and safe location as the fiduciary agent and bailee of Tuffstuff but at the Customer’s own risk;

5.3.3 must keep the Goods so that they can be clearly identified as belonging to the Tuffstuff;

5.3.4 must deliver up the Goods to Tuffstuff as and when required;

5.3.5 must so long as Tuffstuff is entitled to the property in the Goods, store the Goods so that they are clearly identifiable as the property of Tuffstuff.

5.3.6 must not use the Goods in any manufacturing process or otherwise change their character or incorporate them in any item without the prior written consent of Tuffstuff;

5.3.7 in the event that the Customer has used the Goods in some manufacturing or construction process of its own or that of some third party, then the Customer shall hold such part of the proceeds of such manufacturing or construction process as relates to the Goods in trust for Tuffstuff. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to Tuffstuff at the time of the receipt of such proceeds;

5.3.8 until payment has been made by the Customer in full, Tuffstuff may at any time, on reasonable notice to the Customer, either by its own officers or employees, or by contractors or agents, carry out an inspection of all premises, inventory, accounts and documentation to ensure compliance with the obligation of the Customer to keep separate accounts, records and storage of the Goods.

5.4 Tuffstuff shall charge and the Customer agrees to pay to Tuffstuff a two percent (2%) surcharge calculated on the value of all payments made by credit card by the Customer for the Goods.

5.5 In the event that the Customer is a sole trader or trustee of a trading trust, Tuffstuff reserves the right in addition to its reliance upon the retention of title provisions referred to herein, in it’s sole discretion, to register a security interest in respect of any goods provided on credit in accordance with it’s rights pursuant to The Personal Property Securities Act 2009 and the Customer agrees to execute any and all documents to assist with the registration of the relevant security interest.

6. Title and Risk

6.1 Title of the Goods shall not pass to the Customer until payment in full of the Price to Tuffstuff.

6.2 The Customer shall in the meantime take custody of the Goods and retain them as the fiduciary agent and bailee of Tuffstuff.

6.2.1 The Customer may resell the Goods but only as a fiduciary agent of Tuffstuff.

6.2.2 Pending resale or utilisation in any manufacturing or construction process, is to be kept separate on its own, properly stored, protected and insured.

6.2.3 The Customer will receive all proceeds whether tangible or intangible, direct or indirect of any dealing with the Goods in trust for Tuffstuff and will keep such proceeds in a separate account until the liability to Tuffstuff has been discharged.

6.3 Risk of loss or damage to the Goods passes to the Customer upon despatch of the Goods to the Customer.

6.4 Tuffstuff shall not be liable to the Customer or any other person for any loss, deterioration of or damage to Goods in transit.

7. Limitation of Liability / Indemnity by TuffStuff

7.1 Goods come with guarantees that cannot be excluded under the Australian consumer law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonable foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

7.2 Tuffstuff does not exclude or limit the application of any provision of any statute (including the Trade Practices Act) where to do so would;

7.2.1 contravene that statute; or

7.2.2 cause any part of this Clause to be void.

7.3 Subject to clause 7.4, and to the extent permitted by the Trade Practices Act and all relevant State legislation, the sole obligation of Tuffstuff under this Agreement is to use its best endeavours to provide the Goods or to repair the Goods or replace (at Tuffstuff discretion) any part of the Goods which is found to be defective during the period of one year from the date of the supply of the Goods. In no event shall Tuffstuff be liable for any other claims or damages including, but not limited to, claims for faulty design, negligent or misleading advice, damages arising from any loss of use of the products and any indirect, special or consequential damages or injury to any person, corporation or other entity where the product is faulty and or where the product has filed. Tuffstuff shall be under no obligation to repair or replace the Goods as provided by this clause in the event that the failure arises as a result of any incorrect installation of the Goods or usage of the Goods contrary to any and all specifications and directions given to the Customer.

7.4 If any of the Goods are supplied to the Customer as a “consumer” of Goods and Services within the meaning of that term in the Trade Practices Act 1974 as amended or similar State legislation, the Customer will have the benefit of certain non-excludable rights and remedies in respect of the Goods or Services and nothing in these Terms and Conditions excludes or restricts or modifies any condition, warranty, right or remedy which, pursuant to the Trade Practices Act or similar legislation is so conferred. However, if the product is not a product ordinarily acquired for personal, domestic or household use or consumption pursuant to section 68A of the Trade Practices Act and similar provisions of State legislation, Tuffstuff limits its liability to payment of an amount equal to the lowest of: –

7.4.1 The cost of replacing the Goods;

7.4.2 The cost of repair of the Goods;

7.4.3 The cost of having the Goods repaired or replaced.

7.5 Where Goods are subject to a warranty supplied by a manufacturer or supplier other than Tuffstuff, the obligation of Tuffstuff under this agreement to repair or replace the Goods shall, notwithstanding the provisions of clause 7.3, be limited to the terms of the applicable manufacturer’s warranty subject to clause 7.4 which preserves certain non-excludable rights and remedies under the Trade Practices Act 1974 in the appropriate circumstances.

7.6 Tuffstuff shall indemnify the Customer and save the Customer harmless from any loss, damage or expense (including, without limitation costs, whether or not the subject of a Court order) incurred by the Customer in respect of direct loss suffered by the Customer arising solely from the failure of the Goods. Tuffstuff shall not indemnify the Customer in respect of any loss, damage or expense incurred or suffered by the Customer in respect of the failure of the Goods arising from any incorrect installation of the Goods or incorrect usage of the Goods contrary to the terms and specifications relevant to those Goods. 7.7 It is acknowledged and agreed by the parties that the extent of the indemnity provided by Tuffstuff its Customers pursuant to these terms and conditions shall only extend directly to the Customer and any and such indemnity shall only extend to any and all damage based solely on an assessment and proof of the failure of the Goods supplied by Tuffstuff  to the Customer and only any and all direct loss and or damage associated with the Goods failure and no consequential damage whatsoever.

8. Expiration of Provision of Credit

Any agreement for the provision of credit to the Customer agreed to by Tuffstuff shall expire if any of the following events occur:-

8.1 Any money owing by the Customer to Tuffstuff is not paid on or before its due date;

8.2 The Customer being a company – any application is made for the winding up or the appointment of a receiver and/or administrator and/or controller to the Customer;

8.3 The Customer being an individual – enters into a composition of its creditors or any execution on a judgment is not satisfied in full;

8.4 The Customer does anything that is a fundamental breech of the agreement between the parties.

Upon the happening of any of the above events, any and all credit granted by Tuffstuff to the Customer will automatically expire and any and all monies due by the Customer to Tuffstuff at that time shall become immediately due and payable.

9. Warranties

Tuffstuff liability shall extend only to the repair or replacement of goods under warranty consistent with clause 7.1 above.

Tuffstuff shall not be liable in any manner whatsoever either to repair or replace goods if the goods purchased by the Customer from Tuffstuff  have been used incorrectly or misused.

Tuffstuff  liability under any warranty will be automatically discharged if the static sensitive devices in the goods supplied have been tampered with, whether by the Customer or any third party and it is Tuffstuff opinion that any and all failure of the goods supplied has occurred as a result of the static sensitive device having been tampered with.

Any warranty in relation to the anti-static nature of the goods will be automatically discharged if goods previously supplied in anti-static protection and packaging and the subject of a warranty claim are not returned to Tuffstuff in their packaging.

10. Insurance

Tuffstuff warrants that it has and will maintain with a reputable insurance company and keep in effect at all times during the term of this agreement, insurance with a reputable insurer to cover every event giving rise to any liability or obligation imposed upon or arising from any breach of these terms and conditions by Tuffstuff.

11. Cancellation of Orders

Upon cancellation of a written order, the Customer must put same in writing and forward to Tuffstuff immediately.

12. Returns

Returns for credit of goods supplied will be accepted at the sole discretion of Tuffstuff and must be received within 7 days.

In certain circumstances, a restocking charge may apply for returned goods or should goods be returned for repair and are found to be non-faulty, a AU$40 per half hour service fee may be charged.

To be entitled to a return for credit, the returned goods must be in a complete format with unmarked packaging and manuals.

Note: All requests for repair and credit are to be made via www.tuffstufftradesolutions.com.au

Payment of monies due is not to be withheld in expectation of credits.

13. Complaints – Time limits (wholesale)

Any complaint as to the goods supplied must be made in writing to Tuffstuff within 48 hours of delivery of the goods. Any complaint made after the expiry of 48 hours will not be accepted by Tuffstuff.

If the complaint by the Customer is accepted by Tuffstuff, Tuffstuff has the sole discretion as to whether to replace the goods the subject of the claim or to credit the appropriate proportion of the purchase price of the goods relevant to the complaint.

14. Goods on evaluation

Goods may be supplied “on approval” at the sole discretion of Tuffstuff. Any and all goods supplied on approval will be done so only on the provision of a Customer order number. Any and all goods supplied on approval shall be returned to within 14 days failing which the invoice rendered at the time of the supply of the goods on approval will become payable in accordance with the invoice account terms referred to above. Any and all goods supplied on approval shall be subject to the conditions as to risk referred to above.

15. Force Majeure

Tuffstuff shall not be liable to the Customer for any delay or failure to perform all or part of Tuffstuff obligations to the Customer under the contract where such a delay or failure is due to any cause whatsoever beyond reasonable control of Tuffstuff including but not limited to, acts of God or public enemy, insurrection or riot, war or military operation, national or local emergency, act or omissions of government, industrial disputes of any kind (whether or not involving Tuffstuff employees), fire, lightning, explosion, flood subsidence, inclement weather, quarantine, epidemic, regulation or order affecting materials, act or omissions of third persons (including any supplier of the goods or parts of the Goods and any supplier of services) or any other cause whether similar or dissimilar outside of Tuffstuff reasonable control.

16. Applicable Law

These terms and conditions shall be governed by and construed in accordance with South Australian law and the Customer hereby submits to the exclusive jurisdiction of the courts of South Australia.

17. Variation

These Terms and Conditions may be varied by Tuffstuff by notice in writing to the Customer. Notice will be deemed to have been given to the Customer 48 hours after any varied Terms and Conditions posted on the Tuffstuff website.

18. Severance

If any part of these Terms and Conditions is invalid or unenforceable the remaining valid and enforceable Terms and Conditions shall remain in full force and effect.

20. Indemnity by Customer

Without prejudice to any other rights Tuffstuff may have against the Customer, and to the extent permitted by the law, the Customer shall indemnify Tuffstuff for, and save it harmless from, any loss, damage or expense (including, without limitation costs, whether or not the subject of a Court order) incurred by Tuffstuff should the Customer breach any of these Terms and Conditions.

21. Goods and Services Tax

Should any Goods and Services Tax as levied under the A New Tax System (Goods and Services Tax) Act 1999 and any other tax, fee, levy or duty imposed by any competent authority be payable on any of the Goods supplied by Tuffstuff, such tax, fee, levy or duty will be to the Customer’s account and shall be calculated using the rates and methods of assessment in force at the time of delivery. The Customer is liable for any other applicable tax, including, without limitation, withholding tax.

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