Terms & Conditions

STANDARD TERMS AND CONDITIONS OF SALE

Toro Construction Group Pty Ltd (ABN 71 647 261 818)

1. Definitions and Interpretation

1.1           In these Terms, unless the context requires otherwise:

ACL  means Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law).

Bull Board  means the surface and floor protection board sold under the registered trade mark BULL BOARD, being a non-structural temporary protection product.

Business Day  means a day other than a Saturday, Sunday or public holiday in Sydney, New South Wales.

Contract  means the contract for the supply of Goods formed between Toro and the Customer in accordance with clause 2.

Customer  means the person, firm or company identified as the customer in the Quotation, or who places an Order with Toro.

Goods  means the goods, products and materials supplied or to be supplied by Toro to the Customer, including Bull Board, plastic honeycomb board, cloth and gaffer tape, PVC entry matting, and any other goods identified in a Quotation or Order.

GST  has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Order  means any order for Goods placed by the Customer (including by acceptance of a Quotation, issue of a purchase order, payment of a deposit, or by any electronic means).

PPSA  means the Personal Property Securities Act 2009 (Cth).

Price  means the price of the Goods as set out in the Quotation, or otherwise notified to the Customer.

Quotation  means the written quotation issued by Toro to which these Terms are attached or which incorporates these Terms by reference.

Terms  means these Standard Terms and Conditions of Sale.

Toro  means Toro Construction Group Pty Ltd (ABN 71 647 261 818) of 151 Coogee Bay Road, Coogee NSW 2034, Australia, and includes its successors and assigns.

Toro IP  means the trade marks BULL BOARD and the TORO BULL LOGO device, and all other trade marks, trade names, get-up, branding, labels, markings, designs, copyright works and other intellectual property rights of Toro, whether registered or unregistered, in any jurisdiction.

1.2           Headings are for convenience only and do not affect interpretation. A reference to a statute includes any amendment or replacement of it. The singular includes the plural and vice versa.

2. Application of Terms

2.1           These Terms apply to all supply of Goods by Toro to the Customer and prevail over any inconsistent terms in any purchase order, acknowledgement, correspondence or other document of the Customer, even if signed or accepted by Toro.

2.2           A Contract is formed on the earliest to occur of: (a) the Customer signing and returning the Quotation; (b) the Customer paying the deposit or the Price (or any part of it) referred to in the Quotation; (c) the Customer issuing a purchase order referencing the Quotation; or (d) the Customer otherwise accepting Goods supplied by Toro.

2.3           Any conduct described in clause 2.2 constitutes irrevocable acceptance by the Customer of these Terms.

2.4           Each Order is a separate Contract. Toro may, in its absolute discretion, refuse to accept any Order.

3. Quotations and Pricing

3.1           A Quotation is valid for 7 days from the Date Issued unless withdrawn earlier in writing. After that period, Toro may amend or withdraw the Quotation without notice.

3.2           All prices are quoted in Australian dollars and, unless expressly stated, exclude GST, freight, insurance, installation and any other taxes, duties or charges.

3.3           Prices may be varied by Toro at any time prior to acceptance and, in respect of Orders not yet delivered, by reasonable written notice, to reflect: (a) movements in foreign exchange rates; (b) increases in supplier, manufacturing, importation, freight or fuel costs; (c) the imposition of any new tax, duty or tariff; or (d) other market conditions affecting the supply of the Goods.

3.4           If the Customer does not agree to a price variation under clause 3.3, the Customer may, within 5 Business Days of the notice, cancel the affected portion of the Order in writing, in which case Toro will refund any amounts paid for the cancelled Goods (less any costs actually incurred). Failure to cancel within that period constitutes acceptance of the varied price.

4. Orders

4.1           All Orders are subject to acceptance by Toro and to availability of stock. Toro does not guarantee continuous availability of any Goods.

4.2           Stock is allocated on a first-paid, first-served basis. Payment of a deposit does not reserve stock until the Order is confirmed by Toro in writing.

5. Payment, Deposits and Default

5.1           The basis on which the Price is payable is as specified in the Quotation. Unless the Quotation specifies a deposit, or Toro has granted the Customer written trade-account terms, the whole of the Price is payable in cleared funds before the Goods are delivered or made available for collection, and the Order is not confirmed (and no delivery or collection date is reserved) until payment has been received in full in cleared funds.

5.2           Where the Quotation specifies a deposit (which Toro generally requires for Goods made or imported to order, and may require for any Order), the Customer must pay that deposit on acceptance and the balance of the Price in cleared funds before the Goods are delivered or made available for collection. The Order is not confirmed until the deposit has been received in cleared funds. Any deposit is non-refundable except where required by law or where Toro is unable to supply the Goods.

5.3           Where trade-account terms have been granted, payment is due strictly within the period stated on Toro's invoice (failing which, within 14 days of the invoice date).

5.4           Time for payment is of the essence. Without limiting any other right of Toro, if the Customer fails to pay any amount on or before the due date, Toro may:

(a)     charge interest on the overdue amount at the rate of 5% per annum above the Reserve Bank of Australia cash rate, accruing daily and compounding monthly;

(b)     suspend or cancel any further deliveries (including under any other Order or Contract) and withhold supply of Goods;

(c)     recover possession of any Goods to which title has not yet passed under clause 7;

(d)     enter the premises where the Goods are located (with such force and assistance as is reasonably necessary) to recover possession of those Goods, and the Customer irrevocably licenses Toro to do so;

(e)     recover all costs of collection (including legal costs on a full indemnity basis and any commercial agent fees) from the Customer as a debt due and payable; and

(f)      set off any amount owed by Toro to the Customer against any amount owed by the Customer to Toro.

5.5           The Customer must not withhold, set off or deduct any amount from any payment due to Toro for any reason.

6. Delivery and Risk

6.1           Any delivery date stated by Toro is an estimate only. Toro will use reasonable endeavours to deliver by the requested date but is not liable for late delivery and late delivery does not entitle the Customer to cancel the Order or claim damages.

6.2           The Customer must ensure that the delivery site is accessible, that adequate unloading equipment and personnel are available, and that all directions in the Quotation regarding access are accurate. Any costs or losses arising from inaccurate or inadequate site information are payable by the Customer.

6.3           Risk in the Goods passes to the Customer on delivery to the delivery address (or on collection if the Customer collects the Goods). The Customer must insure the Goods from that time.

6.4           If the Customer fails to take delivery, Toro may (without limiting its other rights) store the Goods at the Customer's cost and risk, and the Customer must reimburse Toro for all storage, handling and re-delivery charges.

7. Retention of Title and PPSA

7.1           Notwithstanding delivery and the passing of risk, legal and equitable title in the Goods does not pass to the Customer until Toro has received payment in cleared funds of all amounts owing by the Customer to Toro on any account.

7.2           Until title passes, the Customer:

(a)    holds the Goods as bailee for Toro;

(b)  must store the Goods separately and in a manner that clearly identifies them as the property of Toro;

(c)  must not encumber or grant any security interest over the Goods; and

(d)  may sell the Goods in the ordinary course of business as fiduciary for Toro, but must hold the proceeds of sale on trust for Toro in a separate account.

7.3           The Customer acknowledges that these Terms constitute a security agreement for the purposes of the PPSA and create a purchase money security interest in favour of Toro in all Goods previously supplied and to be supplied by Toro to the Customer.

7.4           The Customer must do all things reasonably required by Toro to enable Toro to register, perfect, maintain and enforce its security interest under the PPSA, and must not register any financing change statement without Toro's prior written consent.

7.5           To the extent permitted by section 115 of the PPSA, the parties contract out of sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA, and the Customer waives any right to receive any notice or statement that would otherwise be required under the PPSA.

7.6           The Customer waives its right to receive a verification statement under section 157 of the PPSA.

8. Inspection, Short Delivery and Defects

8.1           The Customer must inspect the Goods immediately on delivery and notify Toro in writing of any short delivery, damage in transit, or apparent defect within 24 hours of delivery. Failing such notice, the Goods are deemed to have been accepted in good order and condition.

8.2           Any claim in respect of a latent defect must be notified in writing within 7 days of the defect becoming apparent and in any event within 30 days of delivery.

8.3           No Goods may be returned without Toro's prior written authorisation. Authorised returns must be in original, unopened and resaleable condition and freight prepaid by the Customer.

9. Returns, Refunds and Credits

9.1           Subject to the consumer guarantees under the ACL (where they apply), Toro does not offer refunds for change of mind, incorrect ordering by the Customer, or for Goods that the Customer no longer requires.

9.2           Where Toro accepts a return at its discretion, a store credit (and not a cash refund) will be issued, less a restocking fee of up to 20% of the original Price.

9.3           Cut-to-size Goods and Goods made or imported to order are not returnable in any circumstance other than as required by law.

10. Use of Goods and Customer Responsibility

10.1         The Customer acknowledges that:

(a)    Bull Board and the other surface protection Goods supplied by Toro are temporary protection products only and are not structural products;

(b) the Goods are designed to provide protection against incidental surface scratches and superficial damage during construction, and not against impact, heavy loads, dropped or falling objects, sharp objects, or any other significant force;

(c)    the Goods are made of plastic and are not breathable; moisture, condensation or humidity may accumulate beneath them;

(d)  the suitability, selection, installation, use, maintenance and removal of the Goods is the sole responsibility of the Customer, who must (i) read and follow all product information supplied by Toro, (ii) assess site conditions, the surface being protected, the activities to be undertaken over the Goods, and ambient conditions, and (iii) take all necessary precautions including the use of additional or alternative protection where appropriate; and

(e)  tape products (including cloth and gaffer tape) contain adhesives that may react to heat, cold, UV exposure, moisture or extended contact, and may leave residue, lift finishes, or fail to adhere if used in unsuitable conditions; the Customer must test the tape in an inconspicuous area before full application.

10.2         The Customer must not misrepresent the nature, performance, certification or rating of the Goods, and must not on-sell, advertise or describe the Goods as anything other than Bull Board or as a Toro product (as applicable).

11. Warranties, Performance and Disclaimers

11.1         To the maximum extent permitted by law, Toro:

(a) makes no representation or warranty (express or implied) as to the suitability, fitness for purpose, durability or performance of the Goods for any particular project, surface, environment or use;

(b) does not warrant that the Goods will prevent damage to, or staining, marking, discolouration or moisture-related effects on, the surface or substrate being protected;

(c)     is not liable for any slip, trip or fall, or any fire, smoke, ignition or flame-spread event, involving or in any way relating to the Goods, even where the Goods have been tested or certified to a particular standard; the Customer acknowledges that test results are indicative only and that variations between production runs and individual sheets may occur;

(d)    is not liable for any moisture, condensation, mould, mildew, blooming, hazing or similar effect arising from the use of the Goods (whether on, under, around or behind them);

(e)  does not warrant uniformity of colour, finish, dimensions, weight or performance between batches or individual sheets within a batch; and

(f)     does not warrant continuous availability of stock.

11.2         Any technical advice, recommendation or assistance provided by Toro is given in good faith but is the Customer's responsibility to verify. Toro accepts no liability for any such advice.

12. Australian Consumer Law and Limitation of Liability

12.1         Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the ACL or any other applicable law that cannot lawfully be excluded, restricted or modified.

12.2         Where the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Toro's liability for any failure to comply with a consumer guarantee under the ACL is, to the maximum extent permitted by section 64A of the ACL, limited at Toro's option to:

(a)    the replacement of the Goods or the supply of equivalent Goods;

(b)    the repair of the Goods;

(c)  the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or

(d)    the payment of the cost of having the Goods repaired.

12.3         Subject to clause 12.1 and to the maximum extent permitted by law:

(a) Toro's total aggregate liability to the Customer in respect of any Contract or any Goods (whether in contract, tort (including negligence), under statute or otherwise) is limited to the Price paid by the Customer for the Goods giving rise to the claim;

(b) Toro is not liable for any indirect, consequential, special or punitive loss or damage, or for any loss of profit, revenue, anticipated savings, business opportunity, goodwill, data, production time, contract or use, however arising;

(c)  Toro is not liable for any damage to, defect in, or loss of value of any finished surface, substrate, fixture, fitting, structure or other property of the Customer or any third party, including any scratching, marking, staining, denting, cracking, breakage, moisture damage or impact damage, however caused (and the Customer acknowledges that the Goods do not provide protection against such damage); and

(d)  Toro is not liable for any loss or damage to the extent caused or contributed to by the Customer's (or any third party's) negligence, misuse, incorrect installation, failure to follow instructions, failure to inspect, or use of the Goods in unsuitable conditions.

12.4         The Customer indemnifies Toro against all claims, losses, damages, costs and expenses (including legal costs on a full indemnity basis) suffered or incurred by Toro arising out of or in connection with: (a) the Customer's use, on-sale, installation, removal or disposal of the Goods; (b) any breach of these Terms by the Customer; or (c) any misrepresentation by the Customer regarding the Goods.

13. Intellectual Property and Trade Marks

13.1         All Toro IP is, and remains, the exclusive property of Toro. The Customer acquires no right, title, interest or licence in any Toro IP by reason of the supply of any Goods, save as expressly set out in these Terms. The Customer acknowledges the validity of, and Toro's exclusive rights in, the BULL BOARD word mark and the TORO BULL LOGO device mark, and must not, directly or indirectly, do anything that challenges, disputes, dilutes or jeopardises those rights.

13.2         The Customer must not, and must not permit or assist any other person to:

(a) copy, reproduce, replicate, manufacture, source or reverse engineer the Goods or any part of them, whether in Australia or any other jurisdiction;

(b)  apply for, register or seek to register any trade mark, design, patent, business name, company name, domain name or social media handle that is the same as, deceptively or substantially similar to, or that incorporates, any Toro IP;

(c) remove, alter, modify, obscure, cover, conceal, deface, cut, crop, resize, recolour, overprint or in any way interfere with the appearance, position, prominence, proportions, colour or integrity of any Toro IP, branding, label, marking, get-up or notice applied to the Goods or their packaging — all of which must be left intact and displayed exactly as supplied by Toro, including at the point of any on-sale or supply by the Customer;

(d)     display, reproduce, apply or use any Toro IP on any goods, packaging, signage, vehicle, uniform, website, social media, advertising, marketing material, e-catalogue, brochure, invoice or any other medium, except (i) as it appears on Goods supplied by Toro in their original form, or (ii) with the prior written authorisation of Toro specifying the form, location and manner of use;

(e)     market, advertise, promote, on-sell, describe or refer to the Goods other than as Bull Board or as Toro products (as applicable); or

(f)      use the Toro IP in any manner that is misleading, deceptive, derogatory, or that brings the Toro IP or Toro into disrepute.

13.3         The Customer must promptly notify Toro of any actual, threatened or suspected infringement, passing off, misuse or unauthorised use of any Toro IP of which it becomes aware, and must provide Toro with all reasonable assistance (at Toro's cost) in investigating and enforcing Toro's rights.

13.4         This clause 13 survives termination or completion of any Contract.

14. Cancellation, Suspension and Removal of Goods

14.1         If the Customer fails to pay any amount when due, becomes insolvent, has an administrator, liquidator, receiver or controller appointed, commits any act of bankruptcy, or commits any material breach of these Terms, Toro may by written notice immediately suspend further deliveries, cancel any Order or Contract and/or take possession of any unpaid Goods under clause 7, without prejudice to any other right or remedy.

14.2         Cancellation by the Customer is permitted only with Toro's written consent and on payment of all costs incurred by Toro up to the date of cancellation, including a cancellation fee of up to 25% of the Price for standard Goods and 100% of the Price for Goods made or imported to order.

15. Force Majeure

15.1         Toro is not liable for any delay or failure to perform any obligation under these Terms (other than an obligation to pay money) to the extent caused by any event beyond Toro's reasonable control, including act of God, fire, flood, storm, pandemic, war, civil unrest, strike, lockout, supplier failure, shipping or container shortage, customs delay, government action, or supply-chain disruption. Toro may, by notice, suspend its obligations for the duration of the event and may cancel any affected Order if the event continues for more than 30 days.

16. Confidentiality

16.1         The Customer must keep confidential, and must not disclose to any third party, all pricing, designs, artwork, product specifications, processes and other non-public information provided by Toro, and must not use such information other than for the purposes of the Contract.

17. Privacy and Promotional Use

17.1         Toro collects, holds, uses and discloses personal information in accordance with the Privacy Act 1988 (Cth) and Toro's privacy policy (available on request). By placing an Order, the Customer consents to Toro using the Customer's information to assess credit, supply Goods, recover debts, and market related products to the Customer.

17.2         The Customer consents to Toro identifying the Customer as a customer of Toro and to Toro referring to the Customer (including by business name, trading name and business logo) in Toro's marketing, advertising, promotional, sales and tender materials, on Toro's website and social media, in case studies, and in client and reference lists, in each case without further notice to or consent from the Customer and without payment. This clause does not apply to personal information of natural persons (which is dealt with in clause 17.1 and in accordance with the Privacy Act 1988 (Cth)) and survives completion or termination of any Contract.

18.           General

18.1         Variation.  No variation of these Terms is binding unless in writing and signed by Toro.

18.2         Waiver.  No waiver by Toro is effective unless in writing. A waiver of one breach does not waive any other breach.

18.3         Assignment.  The Customer must not assign or transfer its rights or obligations under any Contract without Toro's prior written consent. Toro may assign its rights at any time.

18.4         Severance.  If any provision of these Terms is held to be invalid or unenforceable, it is severed and the remaining provisions continue in force.

18.5         Entire agreement.  The Quotation, any Order accepted by Toro, and these Terms constitute the entire agreement between the parties and supersede all prior representations, negotiations and understandings.

18.6         Notices.  Notices must be in writing and may be served by hand, post or email to the most recent address notified by the recipient. Notices by email are taken to be received when the email leaves the sender's outgoing mail server.

18.7         Governing law and jurisdiction.  These Terms and each Contract are governed by the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales and the courts competent to hear appeals from them.

18.8         Electronic execution.  The Quotation may be executed by electronic signature.

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