The Trustee for TDP Investment Trust - Terms and Conditions of Sale

Our standard Terms and Conditions of Sale appear below ("Conditions"). The definitions which follow form part of and will apply to these Terms and Conditions and shall be incorporated in any agreement between TDP and the customer.

1. Definitions and Interpretations

"TDP" and “TDP On-site Services” and "Us" and "the Company" means The Trustee for TDP Investment Trust. "Customer" means any natural person or persons, partnership, corporation, joint venture or association (whether or not incorporated) to whom TDP provides services pursuant to this agreement and in addition to any purchaser of goods and services which may include anyperson requesting same to be manufactured or supplied as agent for the ultimate recipient of the goods and services, a consignor or consignee of goods. "Consignor" means and includes any natural person, partnership, corporation, joint venture or association (whether or not incorporated) which sends goods on behalf of the customer or has a claim, entitlement or interest of any kind in the goods and any person signing a request for authorisation for carriage of goods is deemed to be the authorised agent of the consignor. "Consignee" mutatis mutandis has a corresponding meaning to the word “consignor”. "Goods" includes any manufactured or processed thing of any description whatsoever and specifically includes any device, machine, receptacle, container, packing material, pallet or other item attached to or delivered with the goods. "Services" means anything done or to be done by TDP in its capacity as vendor, servicer, or installer including the whole operation by TDP. "Clear Funds" means cash or bank cheque or the receipt of clear funds to TDP’s bank account which has been verified by TDP’s bank as being clear funds or an order for payment or negotiable instrument which has been approved by TDP’s bankers as one upon which TDP can immediately draw as cash without further recourse.

2. General

These Terms and Conditions (which may be subject to change or variation without notice) apply to all goods submitted to TDP for repair or to the manufacture or supply of goods requested of TDP and prevail over any conflicting or inconsistent work order, request or condition submitted by the customer and apply to the exclusion of any terms or conditions (whether written, verbal or to be implied) provided by the customer. The giving by the customer of any instructions to manufacture, repair or deliver goods and the acceptance by the customer of delivery of goods (whether in part or whole) and any payment or promise to pay by the customer subsequent to TDP’s acceptance of the work order request constitutes an unqualified acceptance by the customer of these Terms and Conditions and unless expressly acknowledged by TDP in writing no variation to these Conditions will be accepted or bind TDP in any manner whatsoever.

3. Quotations

Any quotation or tender is open for acceptance by the customer provided such acceptance is communicated in writing to TDP within thirty (30) days after the date of the quotation or tender or within such other period of time as TDP may agree to in writing. If not accepted in writing by the customer within thirty (30) days the quotation or tender will be deemed to have been withdrawn. Any contract arising from the acceptance by a customer of a quotation or tender is subject to approval by TDP (whose decision is final) and any contract arising following approval by TDP is subject to these Terms and Conditions.

4. Price Variations

Invoice prices quoted are for delivery of the goods from TDP premises unless otherwise agreed in writing. Any price quoted does not include any of the following items which (if incurred by TDP) will be paid by the customer to TDP upon demand and are in addition to the price quoted: freight, insurance, and other charges borne by TDP or for which TDP is liable by reason of or arising out of TDP compliance with any request by the customer or which results in delivery other than to the place specified or initially contemplated; storage and packing costs; and all increases in direct and indirect costs to TDP after the date of the quotation without limitation and including rates of exchange, taxes, levies and imposts, license fees and the like, and expenses incurred as a result of any delay by the customer or the customer’s obligation to obtain any license, permit, authority or other document required by law, any insurer, or good commercial practice. A certificate in writing by a person duly authorised by TDP will be conclusive evidence of any increase in the contract price.

5. No Cancellation

Orders cannot be countermanded, terminated or cancelled under any circumstances except with TDP’s prior written consent and only upon terms that the customer guarantees and indemnifies TDP against all loss and damage of whatsoever nature and howsoever caused. TDP may cancel any order, agreement or the like or suspend manufacture or completion at TDP’s sole discretion and TDP reserves all rights to recover any loss or damage consequent upon any such cancellation or suspension due to any of the following circumstances or events: in the case of death, incapacity, bankruptcy, administration or liquidation of the customer; in the event that the customer suspends or delays payment including any part payment, progress payment or instalment payment required pursuant to the agreement; in the event that the customer makes any agreement with creditors of the customer in circumstances where the customer is unable to pay its debts as and when those debts fall due; or in the event the customer fails to make any payment in respect of any licence, permit, authority, sales tax, tax of any other nature, levy, charge or fee, storage, handling, packing, freight or insurance fee or charge of and incidental to the manufacture or onsite installation.

6. Customer’s Property and Risk

Goods, vehicles or equipment serviced or repaired by TDP, whether at the customer’s site or at TDP’s premises, are at the customer’s sole risk at all times. Vehicles left at TDP’s premises must be covered by comprehensive insurance that protects against all forms of damage, theft, fire, storm, or other risks. TDP is not obliged to insure such goods or vehicles and the customer indemnifies TDP against all loss or damage. Property or parts supplied remain the property of TDP until full payment is made. Until payment is received in full, the customer holds goods as bailee and at the customer’s risk.

6A. Workplace Health and Safety

The Customer must ensure that all work areas where TDP employees, agents or contractors are required to perform services are safe, comply with all applicable workplace health and safety legislation, and are free from hazards. TDP staff may refuse to commence or continue work where, in their opinion, conditions are unsafe. Any resulting delays, costs or charges will be borne by the Customer.

7. Return of Goods

The customer acknowledges that it is responsible for examining the goods supplied and/or manufactured by TDP at the time of their delivery and satisfying itself about them, including but not limited to their compliance with their description, and their condition, suitability and fitness for purpose. Any claims for credit and/or refund must be made within fourteen (14) days of delivery. TDP reserves the right to charge a return and restocking fee of twenty-five percent (25%) of the costs of goods returned together with all transport charges paid or incurred by TDP as a result of the returns. If TDP has manufactured goods in accordance with the customer’s specification, TDP reserves the right to reject any claim for refund and/or credit. TDP’s liability is limited to any repairs necessary to ensure the goods are in good condition and fit for their purpose.

8. Payment

Payment is to be made strictly cash on delivery (COD) unless otherwise agreed in writing by TDP. Terms of trade may vary depending on the customer’s account status with TDP. Should payment remain outstanding beyond the agreed terms, the customer is liable for all costs including legal costs (on a solicitor/own cost basis), and mercantile fees incurred by TDP in recovering the outstanding amount. TDP reserves the right to also charge a late payment fee of one percent (1%) of the amount outstanding for each month, or part thereof, during which it is overdue until payment has been made in full. TDP further reserves the right to suspend or remove any account status or trading terms without prior notice in the event of overdue payments. The customer acknowledges that overdue payments may result in TDP being unable to attend breakdowns or provide urgent services when required.

9. GST

All prices quoted by TDP exclude goods and services tax, which the customer will pay to TDP in addition to and at the same time as the price of the goods.

10. On-Site Installation and Services

In addition to the provisions, if any, in the quotation or tender relating to on-site installation or services by TDP, the following provisions apply. The customer will at its sole expense be responsible for securing any necessary permits and approvals of work to be performed by TDP pursuant thereto. The customer must ensure the site is safe, compliant with work health and safety requirements, and available for installation or service prior to the arrival of TDP’s employees, agents, or contractors. If delays in installation or service are encountered through no fault of TDP, its employees, agents, or contractors, including travel to site where access is denied or works cannot proceed, any extra costs involved will be borne by the customer. If the contract cannot be finalised because of any delays by the customer in making available the site area for installation, or arranging for the completion of any necessary preliminary works, or providing any other materials or equipment necessary for the completion of the installation this does not affect TDP’s right to payment as if the delays had not occurred. The customer together with its agents and representatives will indemnify TDP and keep TDP indemnified against all claims and proceedings arising from injury to persons, or damage to property, or resulting in loss of profits or economic loss arising from any accident, incident, defective, or incomplete works occurring during on-site installation or services at any site whether or not involving any employee, agent, or subcontractor of TDP to whom this indemnity extends.

10A. Call-Out and Travel Charges

Where TDP attends site for a booked job, breakdown or inspection and cannot proceed due to site inaccessibility, unsafe conditions, customer unavailability, or other reasons outside TDP’s control, travel charges including any applicable call-out and on-site fees will be charged. Additional time spent waiting on site may also be charged at TDP’s prevailing rates.

11. Time for Performance

All reasonable efforts will be made by TDP to complete manufacture, and provide services, but in respect of TDP performance time is not of the essence. The customer agrees and warrants that TDP is not liable for any penalty or damages for late manufacture, delivery, or failure to provide goods and/or services, or any part thereof, due to acts of god, lock outs, strikes, or any other industrial disputes, fire, break downs, inability to obtain goods, materials, or services, interruption of transport, inclement weather, government action policy or direction, or any cause outside TDP’s control, or any acts, omissions, neglect, or default of the customer, its servants, or agents, or any breach by the customer, its servants, or agents of any term of these Terms and Conditions. Job bookings provided by TDP are approximate only and may be rescheduled at TDP’s discretion, including where required due to emergency call-outs, compliance obligations, or other operational requirements.

12. Workmanship

The work will be executed in a proper and workmanlike manner and in accordance with the details, plans and specifications set out in the work order request, quotation or tender except that where such details, plans or specifications are of a type which appear to TDP to be inadequate or incorrect, TDP may, but is under no obligation to, make minor amendments thereto. TDP will not be responsible for any defects or inaccuracies resulting from inadequate or incorrect details, plans or specifications provided by the customer or prepared by a third party on the customer’s behalf.

12A. Customer’s Equipment Condition

TDP accepts no responsibility for failure of existing equipment, parts or systems that are outside the scope of the quoted or agreed works. Any additional repairs or parts required as a result of pre-existing faults, poor maintenance, or fair wear and tear will be charged separately to the Customer.

13. Warranty

TDP hereby warrants that all goods supplied and/or manufactured by it, and all services provided by it, are suitable and fit for their purpose at the time of delivery. In the event that a defect in the material, workmanship, or labour relating to the supply and/or manufacture of the goods or the performance of the services arises within a period of three (3) months from the date of delivery or completion, or for such other period as may be expressly specified in a quotation, invoice, or other written document issued by TDP, TDP will repair or at its option replace, or pay the cost of repairing or replacing, the goods or services. Defective goods and replaced parts become the property of TDP upon replacement. This warranty does not cover defects or damage caused by the customer’s improper installation of the goods, negligent, accidental or intentional misuse, inadequate maintenance, or transport of the goods, repairs, service, alterations or damage to the goods or any part thereof performed by anyone other than TDP personnel, or fair wear and tear.

14. Delivery or Completion

Unless expressly agreed in writing all deliveries are from TDP’s premises and in the event that the delivery is to take place other than from TDP’s premises, TDP accepts no responsibility for any loss or damage howsoever arising during the course of loading, transit, unloading and during the course of any installation period.

15. Limitation of Liability

The customer agrees that it has not relied on any inducement, representation or statement made by or on behalf of TDP, its employees or agents in respect of the goods or services supplied by TDP. Notwithstanding any other provision of these Terms and Conditions, TDP is not liable for any claim for defective goods or services, or for any loss or damage to property (whether to property belonging to the client or another) or for death or personal injury (whether sustained by personnel of the client, a member of the public or another) caused or contributed to by any act or omission (negligent or otherwise) by TDP, its employees or agents. To the extent that any such liability cannot lawfully be wholly excluded, the liability of TDP is limited to supplying the relevant goods or services again or (at TDP’s option) paying the cost of replacing the relevant goods or supplying the relevant services again. The client will indemnify TDP and save TDP harmless in respect of all claims of liability of the kinds mentioned above brought against TDP or any TDP employee or agent.

16. Design and Drawings (Intellectual Property and Confidential Information)

TDP gives no undertaking or warranty that its specifications are exact and final and the customer acknowledges that variations may occur from time to time in the course of concept design, improvement, product development, implementation and manufacture which may result in a change from any initial or concept design in the ultimate construction of the goods. All plans, drawings, specifications, technical information, testing procedure, test results, data, training materials, operating procedures, and other documentation created or provided by TDP is confidential and the sole property of TDP and may not be disclosed, reproduced or communicated to any person or used in a manner inconsistent with TDP’s rights of ownership, use or licence and commercial interests generally unless prior written authority is provided by a duly authorised officer of TDP.

17A. Storage of Vehicles and Equipment

Vehicles or equipment left at TDP’s premises must be collected within fourteen(14) days of notification of completion unless otherwise agreed in writing. Storage charges may apply after this period and TDP reserves the right to retain possession of the vehicle or equipment until all outstanding charges, including storage fees, have been paid in full.

18. Entire Agreement

These Terms and Conditions constitute the entire agreement between TDP and the Customer in relation to the supply of goods and services and supersede any prior discussions or representations to the extent permitted by law. The Customer acknowledges that no verbal agreement, promise or representation made by any TDP employee, agent or contractor is valid or binding unless confirmed in writing by an authorised officer of TDP.

19. Applicable Law

These terms and conditions are in all respects governed by and construed in accordance with the laws in force in the State of South Australia and the parties to these terms and conditions submit to the non-exclusive jurisdiction of the Courts of the State of South Australia in respect of any dispute whatsoever arising out of these terms and conditions.