Terms & Conditions

IT IS AGREED:
1. TERMS AND CONDITIONS TO APPLY
1.1 Unless otherwise expressly agreed in writing with Us, these Conditions apply to the sale of Goods and Services to You.
1.2 If You proceed with any Order or Quotation, then You will be deemed to have accepted these Conditions.
1.3 In the event that You issue any subsequent purchase order or the like, these terms and conditions will prevail to the extent of any inconsistency.
2. ORDERS AND SPECIFICATIONS
2.1 The quantity, quality, description and specifications of the Goods and Services will be set out in the applicable Quotation or Your Order.
2.2 Unless specifically described in the Quotation or Your Order, any other Goods and Services or a variation to an existing Order or Quotation will only be provided at Our discretion and at an additional cost.
2.3 Nothing in these Conditions requires Us to accept any Order for Goods or to provide You with a Quotation.
3. RETURNS POLICY
3.1 We only accept Goods for return at Our absolute discretion and only if the Goods and their packaging are in original condition, and free from damage and blemishes. We reserve the right to charge You a minimum handling charge of 15% of the price of the returned Goods, or $50, whichever is greater.
4. PRICE
4.1 The price of the Goods and Services will be set out in the applicable Quotation or Order (Price) and, subject to condition 4.3, will remain valid for 30 days from the date on which the Price was quoted by Us.
4.2 All Prices are expressed in Australian dollars.
4.3 We reserve the right, by giving notice to You at any time before delivery, to increase the Price of the Goods where our costs of supplying those Goods has increased for any reason whatsoever, including without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture.
4.4 If We notify You that the overall Price increases by more than 20%, then You may elect to (only within 7 days of receiving Our notice under condition 4.3) terminate this agreement by written notice. If this agreement is terminated under this condition, then You must pay for any Goods or Services provided.
5. PAYMENT TERMS
5.1 Unless the Quotation or Order specifies otherwise, You must pay in full for Goods prior to dispatch or collection (as the case may be) and for Services prior to them being performed. Where specified otherwise, payment must be made at the latest by the date which is 30 days from the issue of any invoice by Us.
5.2 A deposit may be payable by You at the time We accept the Order or You accept the Quotation, as applicable.
5.3 Any expenses incurred by us in recovery of debts are to be met by You, including legal expenses on a full indemnity basis.
5.4 You must pay interest at the rate of 10% per annum on all outstanding monies owing to Us calculated on a daily basis from the due date for payment until the actual date of payment.
5.5 You may not withhold payment or make any deduction from the price in respect of any alleged set off, counterclaim or dispute.
6. DELIVERY OF GOODS
6.1 The rate and manner of delivery of the Goods is at Our sole discretion.
6.2 All charges in connection with delivery including statutory charges, taxes, fees, levies and other charges for transport, special packing and for insurance of the Goods in transit are payable by You in addition to the quoted Price.
6.3 We will not be liable for any loss, damage or other liability (whether in contract, tort or otherwise) and whether direct or indirect arising out of delay in delivery.
6.4 If delivery is prevented for reasons attributable to Your actions or inactions, then we are entitled to terminate the supply of Good and You must pay the costs which have accrued to that time. Any advance payments will be non-refundable.
7. SUPPLY OF SERVICES
7.1 Any dates or timescales quoted by Us for the performance and completion of the Services are indicative, and we will not be liable for any loss or damage suffered or caused by any delay or alleged delay in performing and completing the Services.
7.2 Where any part of the Services are to be performed at any location other than our own premises, You will procure that we and our employees, agents or contractors are:
(a) granted access to the relevant location at the appointed time, or if there is no appointed time, during normal business hours at the relevant location;
(b) provided with access to basic utilities and amenities, such as electricity, water or gas supplies and telecommunications line; and
(c) provided with all necessary lighting, power sources, personal protective equipment relevant to the work environment and any other things.
7.3 If we are unable to perform the Services completely or in part for reasons attributable to Your actions or inactions, including because You fail to fulfil Your obligations under condition 7.2, we are entitled to terminate the supply of Good or Services and You must pay the costs which have accrued to that time. Any advance payments will be non-refundable.
8. LIMITATION OF LIABILITY
8.1 We acknowledge that, in some circumstances, You will have rights under the Australian Consumer Law or other laws which cannot be excluded, modified or restricted. These rights may relate to conditions, warranties, undertakings and guarantees which apply in relation to the Goods or Services. Any part of these Conditions which is illegal or rendered void by the provisions of any statute shall be invalid and void to the extent that it is so prohibited or rendered void and shall be severed from these Conditions and shall not affect the enforceability of the remaining terms and conditions.
8.2 Nothing in these terms and conditions shall be construed or interpreted as an attempt to exclude or limit our liability for any matter that cannot be limited or excluded by law.
8.3 Where You are a consumer under the Australian Consumer Law, Our liability is limited to our obligations to you under the Australian Consumer Law.
8.4 Without prejudice to the foregoing, we shall not have any liability for indirect, special or consequential losses or any of the following losses, regardless of whether the same may be classified as direct or indirect losses: (a) loss of profit; loss of revenue; loss of use; loss of goodwill or reputation; (b) loss of anticipated savings and loss of production.
8.5 Without prejudice to the foregoing, Our entire liability under or in connection with any Goods or Services provided to You by Us (whether under contract, in tort, under statute or otherwise) shall be limited to, at out election, supplying, replacing, or repairing the Goods for which Loss has occurred at out office, provided that you have delivered the Goods to us for inspection.
8.6 Nothing in these Conditions shall be construed as releasing You from any duty You have at law to mitigate Your losses.
8.7 Except where expressly stated in these Conditions and any Quotation or Order, all conditions, warranties, terms, undertakings, representations and obligations, whether expressed or implied, and whether arising under statute, common law, equity, custom, trade usage or otherwise, whether made known or not and Our liability (if any) to compensate or indemnify any person or persons in respect of these Conditions, are expressly excluded or limited to the fullest extent permitted by law.
9. WARRANTIES
9.1 With respect to the supply of Good, You acknowledge that We are the distribution agent for the manufacturer of the Goods, and that each product from each manufacturer has different warranty conditions which apply. We will use our reasonable endeavours to pass on the benefit of any warranties to You.
9.2 The manufacturer’s warranty is limited to repair or replacement of defective equipment. All other costs, including, but not limited to; inspection, removal, cartage, re-installation, re-testing, costs of delay to work of contractors, consultancies gathered, cleaning up and loss of production and profits, are not covered by this warranty.
9.3 Subject to this condition 9, we warrant that the Services will be free from defects in workmanship for a period of 12 months from completion of the Services.
9.4 Where a warranty claim is successful, we will, at our option, either:
(a) in the case of Goods, do any one of the following:
(i) repair such Goods so as to make them non-defective or conformant (as the case may be); or
(ii) replace such Goods with non-defective or conformant Goods; or
(iii) pay you the amount of the original purchase price for the defective Goods; and
(b) in the case of Services, do any one of the following:
(i) reperform the Services; or
(ii) pay the cost of having the Services performed again by a third party; or
(iii) refund the payment received by You with respect to the specific Services which were in breach the warranty.
9.5 Our obligations under condition 9.3, and any warranties provided by law, are (to the extent permitted by law) conditional upon:
(a) You notifying Us of the defect or non-conformity within 30 days of becoming aware of same;
(b) You completing a warranty claim form in the format provided to You by Us on request;
(c) You providing Us with accurate documentation showing the operating time for the Goods and that proper installation, maintenance and services have been performed by a suitably qualified person;
(d) You providing Us with a reasonable opportunity to perform all appropriate tests on allegedly defective or non-conformant Goods or Services (as the case may be); and
(e) if we request that You do so, You returning the allegedly defective or non- conformant Goods to Us within 14 days of our request.
9.6 Subject to clause 8, We will not be responsible for the costs of removal or reinstallation of Goods.
9.7 The warranties will not apply where:
(a) any maintenance, repair, overhaul, installation, storage, operation or use has not been performed in accordance with the manufacturer’s recommendations;
(b) the Goods have been used in racing or competition vehicles or in a manner other than for automotive purposes (such as aerospace use, marine use, or for any other use exceeding the manufacturer’s recommended limitations), except where explicitly approved by Us;
(c) any alteration or modification has been performed by someone other than an authorised representative of Us or the manufacturer;
(d) the Goods have been subject to any accident, misuse, neglect or negligence after delivery;
(e) the Goods have been mounted in a manner where they come into contact with water, spray, mud, or other liquid or viscous substance.
9.8 Any defective or non-conformant Goods which we replace will become our property upon delivery of the replacement Goods.
9.9 If we choose to repair defective or non-conformant Goods, or to re-perform defective Services, we may elect to do so either at one of our designated service centres or in situ. If we elect to repair such Goods or re-perform such Services in situ, we shall arrange a repair appointment with You and You shall procure that we and our servants are granted access to the location at which the Goods are situated at the appointed time. You acknowledge that several repair appointments may be required to implement a successful repair or re-performance.
10. FORCE MAJEURE
10.1 We shall not be liable for any failure or delay in performing our obligations under these Conditions to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond our reasonable control, including strikes, lock-outs or other industrial disputes (whether involving our own workforce or a third party’s), failure of energy sources or transport networks, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics, pandemics or similar events, natural disasters or extreme adverse weather conditions, or default of our suppliers or subcontractors.
11. NO WAIVER
11.1 No failure or delay by Us in exercising any right, power or privilege to which we are entitled shall operate as a waiver nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise. The terms of these Conditions and obligations and acknowledgments hereunder may only be waived or modified by Us by an agreement in writing between the parties hereto.
12. RISK AND TITLE
12.1 You acknowledge and agree that all risk in the Goods passes to You upon the earlier of Goods being supplied to You or Goods being supplied to any carrier or bailee, whether named by You or not, for the purpose of transmission to You.
12.2 Until payment of the Price is made in full and without deduction:
(a) You acknowledge and agree that we retain full title to the Goods; and
(b) You will not lease, hire, lend, encumber or part with possession of the Goods without Our express written consent, which we will provide in Our absolute discretion.
12.3 If any payment from You to Us is overdue, then we may retake possession of the Goods, and You irrevocably licence and authorise Us to enter upon any premises where the Goods are situated or where we reasonably believe the Goods may be situated. When retaking possession of the Goods, we are not required to distinguish between goods which have been paid for and goods which have not been paid for. You indemnify and will keep indemnified Us from any damage caused by Us retaking possession of the Goods under this clause.
13. PERSONAL PROPERTY SECURITIES ACT
13.1 All capitalised terms in this condition 13 have the same meaning as in the PPSA, unless otherwise defined in these Conditions.
13.2 We may effect and maintain registration of a Security Interest in the Goods.
13.3 You must do all things necessary, such as obtaining consents and signing documents which we require, for the purpose of:
(a) creating and registering Our Security Interest including (but not limited to) providing details of any item of collateral sufficient to complete registration of the security interest in accordance with the PPSA;
(b) ensuring that Our Security Interest is and remains enforceable, Perfected and otherwise effective under the PPSA;
(c) enabling Us to gain first priority (or any other priority agreed to by Us in writing for Our Security Interest); and
(d) enabling Us to exercise Our rights in connection with the Security Interest or the PPSA.
13.4 Our rights under these Conditions are in addition to and not in substitution for Our rights under any other law (including the PPSA) and we may choose whether to exercise rights under these Conditions, and/or under such other law, in Our discretion.
13.5 To the extent that Chapter 4 of the PPSA applies to any Security Interest under these Conditions, the following provisions of the PPSA are contracted out of in accordance with section 115 of the PPSA and shall not apply: sections 95, 96, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143.
13.6 In addition to any rights conferred upon Us under the PPSA, You acknowledge and agree that we shall, if You are in default of these Conditions, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods (including the Goods), not only under those provisions of the PPSA but also, as additional and independent rights under these Conditions. You agree that we may exercise any of Our rights under this condition 13.6 in any way we deem fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
13.7 Pursuant to section 157(3) of the PPSA, You waive Your rights to receive a verification statement in relation to registration events under section 157(1) of the PPSA.
13.8 You must not dispose or purpose to dispose of, or create or purpose to create or permit to be created any Security Interest in the Goods without Our express written consent.
13.9 You acknowledge that we may recover from You the cost of doing anything under this condition 13 on a full indemnity basis, including any registration fees and legal costs.
14. INDEMNITY
14.1 Without limiting any other indemnity given by You under these Conditions, You shall indemnify (and keep indemnified) Us (including Our officers, employees and Related Entities (as that term is defined in the Corporations Act 2001 (Cth)) from and against any and all Loss (including all legal costs on a full indemnity basis) which may be incurred or suffered by Us, either directly or indirectly, arising from or in connection with any one or more of the following:
(a) the breach by You of any of Your obligations under these Conditions;
(b) the recovery of any amount owing by You to Us;
(c) the exercise or attempted exercise of any right, power, privilege, authority or remedy by Us under or by virtue of these Conditions, including all amounts incurred in preparation and service of a notice and enforcing these Conditions generally.
15. GST
15.1 Any expressions used in this clause, and which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), have the same meaning in this clause.
15.2 Unless otherwise expressly stated, all amounts payable by You to Us in connection with these Conditions are exclusive of GST.
15.3 If GST is imposed on any supply made by Us to You in connection with these Conditions, You must pay to Us an additional amount equal to the GST payable on or for the taxable supply. The additional amount must be paid at the same time as the payment for the taxable supply under these Conditions.
16. GENERAL
16.1 Governing Law: These Conditions are governed by and are to be construed in accordance with the law in forces in the State of Western Australia. The Parties agree to submit to the nonexclusive jurisdiction of the courts of that State.
16.2 No Assignment: You may not assign any of Your rights or obligations under these Conditions without Our prior written consent, which we may withhold in Our absolute discretion.
16.3 Severable Provisions: If any provision of these Conditions is held to be invalid, unenforceable or illegal for any reason, then that provision will be severed & the remainder of the provisions contained in these Conditions will remain in full force & effect.
16.4 Variations: No variation or amendment to these Conditions is effective unless it is in writing & signed by the Parties.
17. DEFINED TERMS
Conditions mean these terms & conditions, which apply to the provision of Goods and Services by Us to You.
Goods mean goods which we offer for sale and which are identified in the relevant Quotation or Order.
Loss means any claim, action, damage, loss, liability, cost, charge or expense.
Order means an order submitted by the Customer for the purchase of Goods or Services.
PPSA means the Personal Property Securities Act 2009 (Cth).
PMSI means Purchase Monies Securities Interest.

Quotation means a quotation or invoice provided by Us to You in connections with Goods or Services.

Services means services which we offer for sale, and which are identified in the relevant Quotation or Order. 

We, Us, Our means Starbay Holdings Pty Ltd (ACN 009 414 528) as trustee for the JS Hallam Family Trust (ABN 27 082 443 361) trading as Turbotech.

You or Your (as the case requires) means the person, company or other legal entity on whose behalf these Conditions are accepted and includes Your executors, administrators, successors and permitted transferees and assigns.