1: Definition of Terms
1.1 The terminology used within these Sales and Service Terms and Conditions (“Sales Conditions”) are defined as follows:
(a) “Australian Consumer Law” refers to the Competition and Consumer Act of 2010, along with any relevant state or territory statutes;
(b) “Torque Lab” represents Torque Lab Pty Ltd, inclusive of its representatives, staff, and workers;
(c) “Customer” denotes the individual or corporate entity to whom a proposal is extended, encompassing any individual or business entity proposing to engage in a contractual agreement with Torque Lab as per these Sales Conditions;
(d) “Goods” describes any products consented to be provided to the Customer by Torque Lab pursuant to these Sales Conditions;
(e) “PPSA” is an acronym for the Personal Property Securities Act of 2009, embracing any subsequent modifications or re-issuances thereof; and
(f) “Services” entails any activities, including rental services, to be carried out on behalf of the Customer by Torque Lab in accordance with these Sales Conditions.
2: Implementation of Sales Terms
2.1 Torque Lab commits to providing the Products and/or Services requested by the Client on an ongoing basis, adhering strictly to the stipulated Sales Terms outlined here. These Sales Terms govern all product sales and/or service provisions by Torque Lab to the Client. It is important to note that Torque Lab unambiguously rejects any alternate terms or conditions that the Client may propose or include in any document or order, especially if they contradict or are incompatible with these Sales Terms. This clause ensures the preclusion of any such conflicting terms.
2.2 Please be aware that any quotation presented by Torque Lab does not constitute a binding offer for product sales or service delivery. Moreover, no order placed in response to a quotation will obligate Torque Lab, unless it is formally acknowledged through written confirmation or marked by initiating product supply and/or service execution.
3: Goods Shipment
3.1 The anticipated date provided for the shipment of goods or completion of services is purely provisional. Torque Lab does not assume responsibility for any loss or damage incurred due to shipment or service completion delays by the stipulated date. A formal notification to the client stating the readiness of goods for shipment (either in full or part) will be regarded as the completion of delivery, activating the payment conditions described in clause 4 below.
3.2 The goods shall be shipped to the client’s business premises or another specified address, as notified to Torque Lab when placing the order. The client will be accountable for all expenses related to shipping and handling during the delivery process.
3.3 In situations where the client’s legal rights or remedies under the Australian Consumer Law cannot be nullified, Torque Lab will not be held responsible for any direct, indirect, or consequential damages or losses experienced due to delays in the shipment of goods or service execution, whether caused by Torque Lab’s negligence, strikes, other industrial actions, or any other factors.
3.4 The client is obliged to facilitate smooth access to the delivery site and provide the necessary equipment and workforce to aid in the swift unloading and delivery of the goods.
3.5 Torque Lab retains the authority to dispatch the goods in multiple batches. The client does not have the privilege to:
(a) Annul the order; or
(b) File claims for losses or damages incurred due to any delays in the shipment of any batch by the specified date.
3.6 If the delivery cannot be completed due to the client’s non-compliance with the Sales Terms, Torque Lab will store the goods at the client’s risk. The client must cover or repay any costs associated with storage, insurance, or handling of the goods as demanded by Torque Lab.
4. Payment Conditions
4.1 Unless specified otherwise through a written agreement, payments for goods and services should be completed within 14 days from the date of the invoice issued by Torque Lab.
4.2 At its discretion, Torque Lab can:
a) Request partial or full payment before the delivery of goods or initiation of services.
b) Postpone the delivery of goods or the offering of services if the payment isn’t made by the stipulated deadline; and
c) Mandate staggered payments for goods or services valued at or above AUD$20,000 with a delivery or supply timeframe exceeding 3 months.
4.3 In the case of instalment deliveries, the customer must settle all amounts due to Torque Lab for each dispatched instalment.
4.4 The customer cannot cancel or refrain from accepting and paying for goods that are pending dispatch or have been dispatched in instalments.
4.5 Should Torque Lab not receive detailed forwarding instructions to facilitate the dispatch of goods within 7 days of indicating their readiness, the customer will be considered to have accepted the delivery. Payment terms will thus be enforced from that date. The customer will also be accountable for monthly storage, insurance, and handling fees, payable upon request, with the storage being at the customer’s risk.
4.6 If the payment for any goods and services is not made to Torque Lab by the due date outlined in these Sales Conditions:
(a) All due amounts will accrue interest on daily balances until settled, with an annual interest rate that is 1% higher than the rate National Australia Bank (NAB) charges for overdraft accounts up to $50,000; and
(b) Torque Lab has the right to claim the cost of goods or services along with any accrued interest from the customer as a settled debt in a competent court or tribunal, disregarding any counterclaims the customer may have against Torque Lab pertaining to the goods or services. In case Torque Lab undertakes any measures or actions to reclaim the owed amount, the customer shall bear all costs and disbursements incurred by Torque Lab during the recovery process.
5: Obligations Regarding Duties and Taxes
5.1 The Customer is responsible for covering all costs pertaining to duties, taxes, imposts, fees, or any charges levied by governmental, statutory, or regulatory bodies in relation to the order or the supply of Goods and/or Services facilitated by Torque Lab. This includes but is not limited to, relevant GST, which will be appended to the final invoice for the Goods and/or Services. Torque Lab shall be held harmless by the Customer against any claims pertaining to these charges. Furthermore, Torque Lab reserves the right to:
(a) Request partial or full payment upfront before the delivery of Goods or the initiation of Services;
(b)Pause the delivery of Goods or offering of Services in instances where payment is not received by the stipulated due date;
(c) Implement a system of incremental payments for Goods or Services valued at or above AUD$20,000, particularly when the delivery or supply schedule extends beyond a 3-month period.
6: Terms for Equipment Rental
6.1 The Customer is required to adhere to the following conditions:
(a) Utilise the Equipment in a safe manner, adhering strictly to all applicable laws, using it solely for its intended purpose, and following the guidelines outlined in the manufacturer’s manual;
(b) Ensure individuals handling the Equipment have received appropriate training on its safe and proper usage, and are attired in the necessary protective gear while operating it;
(c) Maintain the Equipment’s cleanliness and uphold its good condition, as per the guidelines provided by both the manufacturer and Torque Lab;
(d) Refrain from modifying the Equipment in any manner, including altering or removing any identification marks or plates found on it;
(e) Ensure the Equipment is stored in a secure and safe manner throughout the rental period;
(f) Return the Equipment in the same clean and functioning state it was received in, excluding normal wear and tear. In the event that this condition is not met, Torque Lab retains the right to levy a cleaning fee;
(g) Assume responsibility for any costs arising from damages, loss, or theft of the Equipment during the rental period.
7: On-Site Installation and Support
7.1 In the event that the Customer requests Torque Lab to install any products or conduct any services at a location other than Torque Lab’s facilities, the Customer must formally inform Torque Lab within an appropriate timeframe stating that:
(a) The intended site of installation, which might be the Customer’s establishment or any other designated place, is suitable for the installation of the products or the execution of the services; and
(b) The customer has received the products and wishes Torque Lab to proceed with the installation.
7.2 The Customer is required to facilitate the preparation of the installation site at its own cost, following guidance from Torque Lab, in order to assist Torque Lab in installing the products or executing the services efficiently. The expected cooperation includes, but is not limited to:
(a) arranging the necessary workforce, lifting equipment, structural steel support, power sources, and other requisite amenities to facilitate installation or service execution;
(b) ensuring all stationary electrical wiring that connects the products to the main power supply is in place;
(c) undertaking the renovation or upgrading of any pre-existing machinery, plant, or equipment that might be integrated with the products and/or services; and
(d) securing all essential permits and licenses from the appropriate government or local bodies or agencies.
7.3 Torque Lab does not assume any liability for the status of any pre-existing machinery, plant, or equipment that might be utilised alongside the products, nor for any potential impact that such machinery, plant, or equipment may impart on the products.
7.4 In the case where the Customer does not fulfil the necessary support obligations as delineated in section 7, Torque Lab reserves the right to postpone the installation or service execution until the Customer meets its responsibilities. Additionally, Torque Lab may adjust the pricing for the installation or service provision to account for any subsequent increase in costs incurred by Torque Lab.
8: Ownership of Goods
8.1 Until the full payment of the purchase price for all Goods and the settlement of any other outstanding balances by the customer to Torque Lab (“outstanding balances”) are completed:
(a) The Goods are provisionally entrusted to the Customer, who acts as a fiduciary custodian for Torque Lab. Torque Lab retains both legal and beneficial ownership of the Goods, possessing the unrestricted authority to resell and reclaim possession of the Goods in cases where the Customer fails to clear any outstanding balances.
(b) The Customer is required to segregate the Goods in a distinct area within their premises, clearly demonstrating that the ownership of the Goods resides with Torque Lab and not the Customer.
(c) The Customer is prohibited from altering or removing any identifiers, tags, or labels from the Goods that signify that they are the property of Torque Lab. If the Goods are to be used in line with the Customer’s business operations, the Customer is obligated to inform any prospective clients, buyers, or other third parties, in writing, that the Goods are owned by Torque Lab.
(d) The Customer should prevent any other customer, buyer, or third party from obtaining or claiming any security interest in the Goods, as per the provisions of the PPSA.
(e) The Customer is obliged to insure the Goods for their complete insurable or replacement value (whichever is greater) through a recognised insurer.
8.2 Besides any lien Torque Lab may be legally entitled to, if the Customer defaults in settling any outstanding balances, or experiences insolvency, bankruptcy, or liquidation, Torque Lab has the right to retrieve the Goods from the Customer’s premises or any other location where the Goods are housed, without prior notice or accountability to the Customer. To facilitate this, the Customer grants Torque Lab irrevocable permission to access these locations and agrees to secure any necessary permissions to enter any other properties. In instances where the Goods have been sold, utilised, integrated with other products, disposed of, or stored in a way that makes them irrecoverable or unidentifiable as per the orders placed by the Customer, the purchase amount for the Goods, along with any applicable interest under the terms of Sale, can be pursued from the Customer as a settled debt in a competent court or tribunal.
9: Modification and Termination of Orders
9.1 Customers are required to notify Torque Lab in writing regarding any alterations to the specifications of Goods or Services that are necessary, for orders that have already been placed.
9.2 Order cancellations are only permissible with prior written approval from Torque Lab, under conditions that ensure Torque Lab is compensated for any reasonable losses, damages, or expenditures incurred due to the cancellation.
9.3 The standard charge for order cancellations is a 20% fee of the net contract price, accompanied by any extra fees associated with the provision of the cancelled Goods. All non-standard, custom-made, outsourced, or specialised Goods are non-returnable and cannot be cancelled unless a mutual agreement is reached between Torque Lab and the Customer, documented in writing.
9.4 Torque Lab is not obliged to accept Goods returned by the Customer and will only do so under specific terms agreed upon between the parties.
10: Warranty for Goods and Services
10.1 Under the stipulation mentioned in clause 17, Torque Lab provides assurance that:
(a) The products furnished by Torque Lab, upon proper installation, maintenance, and utilisation in alignment with the specifications outlined by Torque Lab, shall remain devoid of manufacturing and material flaws for a span of 1 year starting from the earliest of the final invoice date for the products or their dispatch to the customer by Torque Lab (hereinafter referred to as “Goods Warranty Period”); and
(b) All services shall be conducted competently and in harmony with the standards delineated by Torque Lab, an assurance that extends for 30 days post the completion of the service by Torque Lab (“Service Warranty Period”).
10.2 Throughout the Goods Warranty Period, Torque Lab restricts its accountability (at its own discretion) to either the mending or substitution of the products or covering the expenses for the said repairs or replacements. During the Service Warranty Period, Torque Lab’s responsibility is confined to (at Torque Lab’s discretion) reiterating the service that fails to satisfy the service warranty within the preceding 30-day span or providing credit for the inadequate segment of the service. This provision is contingent upon the customer consenting to bear the rational service, housing, sustenance, and transportation expenses for Torque Lab’s technician in instances where the goods are delivered to distant or overseas regions relative to Australia.
10.3 Claims pertaining to warranties as described in clause 14 cannot be initiated by the customer unless Torque Lab is duly notified in written form of the details constituting the claim within a 7-day timeframe from when the customer discerned the issues, and grants Torque Lab the chance to scrutinise and evaluate the alleged defective goods or services.
10.4 The preceding warranty does not encompass the tuning of weight or measurement tools, which will be considered devoid of any anomalies at the earliest of:
(a) The client endorsing the certification and examination at the installation phase; or
(b) 28 days succeeding the installation.
10.5 The warranty mentioned above is inapplicable to software or pre-owned items.
10.6 Concerning any imperfections in products manufactured by an entity other than Torque Lab, the customer’s entitlements are to be adjudicated based on the guarantee provided by the respective producer.
11: Software Warranty
11.1 In the event that the customer identifies a significant defect or a notable operational failure in the software within 14 days post-delivery and notifies Torque Lab in writing, Torque Lab limits its liability (at its discretion) to either:
(a) remedying the identified defect or malfunction;
(b) refunding the amount paid for the purchase; or
(c) furnishing a replacement for the software.
12: Disclaimer of Warranties
12.1 In accordance with permissible legislation, including the Australian Consumer Law, and apart from what is stipulated in these Sales Terms, Torque Lab neither implies nor provides any warranty, guarantee, or representation. Any prior discussions or written communications between parties or their representatives do not imply any warranty, whether statutory or otherwise, pertaining to the condition, quality, or suitability of the Goods or Services, which is hereby categorically disclaimed.
12.2 The Customer acknowledges their responsibility to ensure the Goods and Services acquired align with their needs and anticipates the advantages resulting from their acquisition. Torque Lab disclaims any guarantees or representations concerning the Goods or Services fulfilling any specific Customer requirements.
12.3 Torque Lab holds no responsibility for any voluntary advice or assistance given to the Customer in the context of supplying and/or installing Goods or Services.
12.4 Any assurances concerning potential defects in the Goods detailed in these Sales Terms are nullified and specifically dismissed if the defect is due to or triggered by:
(a) Misuse, mishandling or, unless installed by Torque Lab, improper installation of the Goods.
(b) Unusual or excessive temperatures outside the Goods’ designated operational range, or disruptions in power supply.
(c) Unusual circumstances including exposure to dirt, water, or corrosive materials.
(d) Operating the Goods beyond their specified capacity or other inappropriate or unsuitable usage.
(e) Interference with the Goods.
(f) Unauthorised alterations to the Goods.
(g) Unauthorised integration or use of the Goods with other equipment or software not provided by Torque Lab.
(h) Damage incurred during Goods transportation.
(i) The Customer’s neglect in ensuring appropriate storage, operation, and upkeep of Goods or any other negligence on the part of the Customer.
12.5 Torque Lab shall not be accountable under any warranty for costs associated with transport, installation, removal, labour, or other expenditures.
12.6 Torque Lab does not guarantee the performance standards or capacity of any Goods or Services supplied based on designs, drawings, or specifications provided by or on behalf of the Customer. The Customer confirms that they do not depend on Torque Lab’s expertise or judgment concerning the suitability of the Goods or Services for the Customer’s intended use.
13: Liability Restriction
13.1 Beyond the warranties outlined here, Torque Lab shall not be held liable for any substantial, direct or indirect, consequential, or specific damages experienced by the Customer, encompassing but not limited to:
(a) Profit losses, business contract losses, revenue losses, savings losses, financial or economic losses, or lost opportunities.
(b) Harm to the Customer’s reputation or goodwill.
(c) Loss or damage to the buyer’s records or data.
(d) Any losses arising from claims initiated by a third party.
13.2 Torque Lab’s liability towards any claim brought forth by the Customer concerning these Sales Terms is restricted to the maximum extent permitted by law. It encompasses only the segment of the purchase price pertinent to the Goods or Services that precipitated the claim, including losses or damages stemming from negligence or linked with, resulting from these Sales Terms, or due to the violation or fulfilment thereof, or connected to the design, production, sale, delivery, resale, installation, technical direction of installation, examination, repair, testing, modification, operation, or utilisation of any materials or components involved or provided under these Sales Terms.
14: Software Utilisation
14.1 The Customer recognises that the software provided is protected by copyright laws.
14.2 Torque Lab bestows upon the Customer a restricted, non-exclusive, royalty-free, end-user license, permitting the utilisation of the software exclusively for the intended operation of the products with which the software is provided, and for no other objective.
14.3 The Customer understands that the software’s content embodies confidential data of Torque Lab. Except where the confidential material becomes publicly known through means other than the Customer’s non-compliance, the Customer is obliged to maintain the secrecy of the confidential data and is prohibited from revealing it to any third parties.
14.4 In the event of a violation of any provision within this section, the Customer is required to promptly return the software along with any copies to Torque Lab upon request.
15: Liability Shield
15.1 The Customer holds Torque Lab harmless, continually and comprehensively, against all potential liabilities, losses, costs, expenditures (inclusive of legal fees), or demands stemming from:
(a) Any inaccurate, deceptive, or false statements or representations made by the Customer regarding the Products or Services to a third party.
(b) Any infringement of the Sales Terms and Conditions by the Customer.
(c) Any harm, destruction, casualty, or fatality inflicted upon an individual due to the Customer’s actions, failures, negligence, or other conduct, including those of the Customer’s staff, aides, and representatives, in association with the delivery of Products or the execution of Services.
(d) Any type or form of loss or damage experienced by the Customer or the Customer’s assets, regardless of whether it is a consequence of Torque Lab’s actions, negligence, or otherwise.
16: Protection of Intellectual Property
16.1 All apparatus, blueprints, specifications, templates, dies, moulds or other materials utilised in the creation of the Products or in the delivery of the Services remain the exclusive property of Torque Lab. The Customer is forbidden from utilising or allowing the use of such materials by third parties, and from divulging any technical, dimensional, or design details or any additional information concerning such materials at any juncture.
16.2 The Customer pledges to actively assist Torque Lab in processes required to safeguard the copyright, patent, trademark or other intellectual property rights pertaining to the Products delivered or Services rendered by Torque Lab under these Sales Conditions, and, upon request from Torque Lab, will sign documents affirming Torque Lab’s proprietorship of such rights.
16.3 The Customer is mandated to alert Torque Lab swiftly about any claims suggesting that the production, distribution, or utilisation of any Products or execution of any Services violates the intellectual property rights of a third entity, and will liaise with Torque Lab to ascertain the appropriate response to such claims. While not obligated, Torque Lab retains the right to oppose any lawsuit initiated by, or infringement claims from, any third party.
16.4 In situations where the Customer is compelled to counter any legal action concerning the infringement of intellectual property rights of a third party, Torque Lab commits to compensating or indemnifying the Customer for reasonable expenses associated with the legal defence and any resultant damages.
Section 17: Pricing Guidelines
17.1 Unless indicated otherwise, prices quoted are valid for 30 days from the date of issuance. Torque Lab retains the discretion to alter or withdraw these prices at any moment. Furthermore, Torque Lab may extend the validity of the quoted prices for up to 6 months from the initial issuance date.
17.2 Unless otherwise mentioned, the prices quoted by Torque Lab encompass:
a) Standard packaging costs, although any additional packaging requested or necessitated by the customer, or deemed essential by Torque Lab, will incur extra charges.
b) Exclusions of allowances for installation and final on-site adjustments.
c) Adjustment potential based on fluctuating exchange rates before product delivery, unless a different agreement is documented in writing. The applicable exchange rate will be detailed in the respective quotation.
d) Service and calibration prices are adaptable, as delineated in clause 17.3.
e) Torque Lab assumes no liability for any bank fees incurred during invoice payment.
17.3 The following scenarios constitute variations:
a) Modifications, additions, or changes to the equipment or goods as described in the quotation or mutually agreed upon in writing.
b) During a calibration service, Torque Lab finds that the equipment needs repair services.
c) Calibration services identify the necessity for adjustments beyond minor tweaks to meet specifications.
d) In response to the above variations, Torque Lab reserves the right to amend the pricing or provide a new quotation for the goods or services.
Section 18: Merger
18.1 The ongoing validity of these Sales Terms remains unaffected by any breach or termination of contracts or transactions pertaining to goods or services between Torque Lab and the customer.
Section 19: Non-waiver Clause
19.1 Any neglect by Torque Lab in enforcing any provision of these Sales Terms or in utilising any rights outlined herein shall not be construed as a waiver of said provisions or rights. It doesn’t impair the contractual agreement between Torque Lab and the customer.
19.2 The enforcement of any rights under these Sales Terms by Torque Lab does not hinder or restrict Torque Lab from exercising any other rights, regardless of any prior actions undertaken by Torque Lab.
Section 20: Force Majeure
20.1 Torque Lab shall not be held accountable for any inability to meet the terms of transactions guided by these Sales Terms, in the event of delays or hindrances caused by unforeseeable and uncontrollable events, including but not confined to acts of God, labour disturbances, wars, civil unrest, carrier delays, supply chain disruptions, and governmental actions.
20.2 In instances where Torque Lab can fulfil partial demands for goods and/or services, it retains the discretion to equitably allocate available supplies and resources amongst its clientele as deemed fair by Torque Lab.
Section 21: Set-Off Prohibition
21.1 The customer is prohibited from initiating or executing any set-offs against liabilities owed by Torque Lab to the customer against obligations owed or potentially owed by the customer to Torque Lab, and vice versa.
Section 22: Miscellaneous Provisions
22.1 The agreement established between Torque Lab and the customer through these Sales Terms is non-transferable without Torque Lab’s prior written approval.
22.2 The governing law of these Sales Terms is the law of the State of Victoria, and the parties agree to the exclusive jurisdiction of its courts.
22.3 Should any provision of these Sales Terms be rendered unenforceable, it should be interpreted minimally to avoid this outcome. If necessary, it will be removed without affecting the remaining provisions’ validity and enforceability.
22.4 These Sales Terms encapsulate the complete agreement between the parties. Except as explicitly outlined in these Sales Terms, no modifications or variations shall bind Torque Lab unless documented in writing and authenticated by Torque Lab.
22.5 These Sales Terms replace all preceding terms imposed by Torque Lab and are subject to modifications by Torque Lab, with a notice period of 30 days.