Toro Standard Terms and Conditions of Sale

Effective 17th November 2008

In this document ("Terms and Conditions"):

"Application" means the application, if any, by the Customer to Toro for commercial credit;
"Contract" means the contract formed between Toro and the Customer, by an Order accepted by Toro as set out in clause 1(c) and it consists of the documents set out in clause 2(a);
"Current Quotation" means a quotation no older than 30 days as at the date the Order is received by Toro:
"Customer" means the person placing the Order with Toro;
"Delivery" means delivery of any goods to the Customer, or to a carrier arranged by the Customer, or to a carrier arranged by Toro at the request of the Customer;
"Goods" means any goods, products, services or materials to be supplied by Toro;
"Order" is defined in clause 1(a);
"Toro" means the related bodies corporate (within the meaning of the Corporations Act 2001) of Toro Australia Group Sales Pty Limited (ABN 39 111 042 301) and for each Contract means the company in the relevant business division that issues an Order Acknowledgement;
"Transaction Tax" includes the Goods and Services Tax as well as any identified or new transaction tax that comes into existence after the effective date of these Terms and Conditions:
Unless otherwise stated, an expression used or defined in the Corporations Act 2001 has the same meaning in these Terms and Conditions.

Orders and Order Acknowledgments
1. An Order is an offer to purchase Goods, which must be made by the Customer in writing, unless Toro agrees otherwise.
2. An Order must be in multiples of standard pack quantities when Goods are supplied in packs
3. An Order is accepted when the Customer receives from Toro an order acknowledgment in writing, or if writing is not received, acknowledgment verbally, or delivery, whichever first occurs.
4. Toro may accept or refuse an Order in its absolute discretion and it may make its acceptance of an Order conditional on its satisfactory credit assessment of the Customer.
Contract
1. When Toro accepts an Order, the Contract will be wholly documented by (in descending order of precedence)-any specific term(s) agreed in writing; the Order, the terms of the acceptance, and these Terms and Conditions or any later terms and conditions issued under clause 22.
2. The Customer acknowledges and agrees that it has not entered into the Contract in reliance on, or as a result of, any statements, representations or conduct of any kind (including but not limited to , any representation, warranty, advice or undertaking);
3. Previous dealings between Toro and the Customer shall not have any effect on the Contract.
4. Trade custom and/or trade usage is superseded by the Contract and shall not be applicable in the interpretation of the Contract.
5. A Contract constitutes the entire agreement between Toro and the Customer with respect to the Goods supplied under the Contract. All prior negotiations, proposals and correspondence are superseded by that Contract and these Terms and Conditions will in all circumstances prevail over the Customer's terms and conditions of purchase (if any).
6. Toro may perform any of the obligations imposed on it and exercise any rights granted to it under the Contract through any other company which at the relevant time is its holding company or subsidiary company or the subsidiary of any such holding company and any act of any such company will for the purposes of the Contract be deemed to be the act of Toro.
7. Toro's policy is one of constant improvement and therefore changes of specifications and performance data may be made by Toro without notice and without incurring liability to the Customer.
Price
1. Prices charged for Goods will be according to a Current Quotation for those Goods; but if there is no quotation the price will be determined by Toro, by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the Order). Toro will use its best endeavours to notify the Customer of price changes but it bears no liability in this regard.
2. Unless specifically indicated by Toro, the price in any quotation or price list does not include insurance costs, special packaging costs, delivery costs or transaction taxes (including GST) and Toro has the right to charge those costs to the Customer in addition to the price.
3. Where a transaction tax (including GST) applies to any supply made under an Order, Toro may charge and recover from the Customer that transaction tax in addition to the price.
4. A delivery charge will be payable in addition to the price of the Goods. The delivery charge will be at the rate set out in the Delivery Charges link at the foot of Toro's website ( www.toro.com.au) at the rates applicable at the time an Order is received by Toro.
5. Any references to resale prices contained in Toro's price lists or other documents, if any, are recommended resale prices only and there is no obligation on the Customer to comply with those recommendations.
Delivery, Packing and Insurance
1. Unless otherwise agreed, delivery of the Goods sold to the Customer takes place immediately those goods leave the premises of Toro, and the Goods are wholly at the risk of the Customer from that time. The Customer acknowledges that it is their responsibility to insure the goods from that point in time;
2. Toro will make all reasonable efforts to have the Goods delivered to the Customer or their designated agent as agreed between the parties (or if there is no specific agreement then at Toro's reasonable discretion), but Toro shall not be liable for
  1. any failure to deliver or delay in delivery for any reason;
  2. any damage or loss due to unloading or packaging; or
  3. damage to property caused upon entering premises to deliver the Goods; and any costs incurred by Toro due to any failure by the Customer to accept the Goods at the time of delivery must be reimbursed by the Customer to Toro.
3. Unless otherwise indicated or agreed, prices include standard packing by Toro and any special packing will be an extra cost payable by the Customer; and i f packing is charged for and it is returnable, allowance will only be made for packing which has been received back by Toro in good condition.
4. Ownership of pallets used for Delivery remains with Toro at all times and the Customer agrees to pay Toro for any pallets not returned in good order and condition to Toro within 14 days of delivery of the Goods.
Payment and Trading Terms
1. Toro will provide a Tax Invoice to the Customer for each supply of goods or services under a Contract.
2. Payment for the Goods must be made in full (without any set off, deduction or counter-claim) and be received by Toro in exchange for the goods. However for Customers who fulfil Toro's credit requirements where credit facilities have been applied for and approved, payment must be made by the last business day of the month following the month in which the Tax Invoice is dated, or as otherwise agreed in writing. Payment is only received by Toro when it receives cash, or when the proceeds of any other method of payment are credited and cleared to Toro's bank account.
3. Toro shall be entitled to offset against any money it owes to the Customer, any amounts owed by the Customer to Toro under the Contract or any other contract.
Title and related matters
1. Notwithstanding that the risk in the Goods may pass to the Customer, Toro retains the right to claim payment for the Goods in accordance with the Contract. Toro and the Customer also agree that:
  1. the Goods must be stored by the Customer (the “ Inventoried Goods ”) and they must be clearly identifiable at all times as belonging to Toro, including without limitation by retaining the manufacturer's packaging intact,
  2. the Inventoried Goods shall be stored in a specifically designated and clearly identifiable storage area at the Customer's premises and shall be stored separately by the Customer at such premises;
  3. the Customer may move, sell or otherwise use the Goods in the ordinary course of business as agent for Toro and will hold any and all proceeds of sale of the goods in a separate account on trust for Toro and account to Toro for the proceeds;
  4. in the event that the Customer uses any Goods in some manufacturing or construction process, or process of combination with other goods or products, of its own or in conjunction with any 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 Toro and account to Toro for those proceeds. Such part of the proceeds shall be deemed to equal in dollar terms the amount owing by the Customer at the time of receipt of such proceeds. Where the said proceeds are not actually received by the Customer this clause shall remain operative as against the book debt which is consequently created.
2. Toro and the Customer agree that notwithstanding clause 6(a) of this Agreement:
  1. the Customer does not hold the goods as bailee for Toro, and this clause 6 does not give rise to any relationship of bailment between the parties.
  2. on delivery of the Goods to the Customer, Toro (A) is not entitled to direct the disposition of the Goods; (B) cannot rescind the transaction; (C) cannot prohibit the Customer from moving, selling, or otherwise using the Goods in the ordinary course of business; and (D) otherwise has no rights that rest with a titleholder of property that is subject to a lien under the U.S. Uniform Commercial Code; and
  3. If the Customer breaches the Contract, including any obligation regarding payment, Toro may, without notice to the Customer, repossess the Inventoried Products and, if necessary, enter upon any premises at which the Inventoried Products are or may be stored for the purpose of repossessing the Inventoried Goods.
3. When requested by Toro the Customer shall cooperate with Toro to create and perfect a security interest over any of the Goods which remain unpaid by the Customer.
Default
1. The Customer will be in default if:
  1. the Customer breaches the Terms and Conditions;
  2. payment for the Goods has not been received by Toro by the due date of the payment;
  3. the Customer being an individual commits an act of bankruptcy or becomes insolvent under administration;
  4. the Customer being a body corporate becomes an externally-administered body corporate or has an application for winding up filed against it;
  5. Toro forms the opinion that the Customer's credit worthiness or credit standing has adversely altered from that indicated in its Application.
2. If the Customer defaults, Toro may:
  1. treat the whole of the Contract and any other Contract with the Customer as repudiated and sue for breach of contract; and/or
  2. refuse to supply any Goods to the Customer; and/or
  3. claim the return of any Goods in the Customer's possession where title has not passed to the Customer; and/or
  4. without notice to the Customer withdraw or vary any credit Toro has provided to the Customer; and/or
  5. without notice to the Customer make all monies owing by the Customer to Toro on any account immediately due and payable; and/or
  6. charge interest on the overdue amount at the rate of 12% pa calculated from the date payment was due to the date of full and final payment.
Risk
Risk of damage to, or loss of, or deterioration of, the goods passes to the Customer upon delivery (including all risks associated with unloading), or after 7 days from the date of notification by Toro to the Customer that the goods are ready for collection (“the Notice Expiry Date”), or upon title in the Goods passing to the Customer, whichever is the earlier.
Credit
1. Toro may grant the Customer credit on the basis of the Application and such other documents and information as may be required by Toro.
2. Until Toro grants the Customer credit by notice in writing. Toro will only supply Goods to the Customer on the basis of cash in advance.
3. The granting of credit does not oblige Toro to extend any particular amount of credit to the Customer.
4. The Customer must notify Toro in writing if there is any change in the shareholding or ownership of the Customer or any material adverse change in the Customer's financial position.
5. The Customer agrees that if requested by Toro the Customer will:
  1. charge in favour of Toro all beneficial interests (freehold and leasehold) in real estate held now or in the future by it as security for payment of all and any moneys payable by the Customer to Toro.
  2. execute a mortgage or other instrument of security in the form requested by Toro.
Intellectual Property
1. The Customer licenses the use by Toro of any copyright material, patent, registered designs or trademarks where this is necessary or desirable for the execution of the Contract.
2. The sale to and purchase by the Customer of any goods does not confer on the Customer any licence or right under any copyright, patent, registered design or trademark which is the property of Toro, or which Toro has a licence to use, and the Customer will conform to all reasonable requirements imposed by Toro with respect to trademarks or identification marks in respect of the goods.
3. The Customer warrants to Toro that all documents provided by the Customer to Toro (if any) are accurate and that Toro is entitled to use all such documents for the purposes of the Contract and/or assessing the credit worthiness of the Customer, and that such use does not infringe any third party's intellectual property rights.
4. The Customer indemnifies Toro against all claims and all losses and damages incurred by Toro as a result of documents provided by the Customer to Toro for the purposes of or in the course of the supply of the Goods breaching a third party's intellectual property rights.
5. If the Customer receives any confidential information from Toro the Customer may not use or disclose such information unless it receives the prior written consent of Toro, such information enters the public domain (other than as a result of a breach of this paragraph), or the use or disclosure is required by law.
Force Majeure
1. Toro is not liable for failure to perform the Contract to the extent and for so long as its performance is prevented or delayed because of:
  1. circumstances outside Toro's control;
  2. failure of Toro's machinery; or
  3. failure of a supplier to Toro.
2. if Toro's ability to fulfil an accepted order is affected by circumstance or event beyond its control Toro may:
  1. extend the date for delivery;
  2. with the Customer's approval, alter the specifications for the goods to allow the substitution of equivalent goods; or
  3. cancel the order without liability for the breach.
Representations and Fitness for Purpose
1. Subject to these Terms and Conditions Toro warrants to the Customer that all goods manufactured or supplied by Toro are fit for the purpose for which they were manufactured or supplied.
2. Except as expressly provided to the contrary in the Contract, all representations, warranties, terms and conditions in relation to the Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
3. The Customer agrees that if it is aware (or should be aware) that the Goods, the subject of an Order, are for a particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics, the Customer will clearly specify that purpose or those characteristics in any such Order.
Limitation of Liability
1. Subject to clause 12(b), Toro's liability to the Customer (and any party claiming through the Customer against Toro) for any claim for loss or damages (including legal expenses) made in connection with the Contract, for breach of contract, tort (including negligence), under statute, in equity or otherwise shall be as follows:
  1. if Toro is in breach of a Contract Toro's liability is strictly limited to: (A) for goods, products or materials - the cost of replacement of the defective Goods as soon as reasonably practicable, or the repair of the defective Goods or the repayment (or allowance) of the invoice price of the defective Goods at the option of Toro; (B) for services - to the provision of the services again, or payment of the cost of having the relevant services provided again, or the repayment (or allowance) of the invoice price of the services, at the option of Toro;
  2. Toro's liability for breach of a Contract does not extend beyond the defective Goods to any other Goods that are part of an Order or otherwise;
  3. where loss or damage is not covered by subparagraph 13(a)(i), Toro is not liable to the Customer under statute or in equity or in tort (including negligence or otherwise) for any loss or damage to person or property arising from or caused in any way by the Goods;
  4. To the fullest extent permitted by law, Toro shall not be liable to the Customer for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods or any breach of warranty or contract, or any common law duty (including negligence) by Toro, its agents or employees;
  5. “indirect, special or consequential loss or damage” includes but is not limited to: (A) any loss of income, profit or business; (B) any loss of goodwill or reputation; (C) any loss of value of intellectual property.
2. Toro's liability under paragraph 13(a) does not apply in respect of defects specifically drawn to the Customer's attention or defects arising from incorrect or negligent handling, disregard of operating and/or maintenance instructions, overloading or unsuitable operating conditions, defective civil or building work, lightning, accident, neglect, faulty erection or installation (unless carried out by Toro), unauthorised repairs or alterations, acts of God or other causes beyond Toro's control.
3. Toro's obligations in the event of paragraph 13(a) applying do not include:
  1. the cost of removal of defective Goods whether installed or otherwise;
  2. the cost of installation of replacements for defective Goods.
Measures
1. Any and all statements made by Toro as to weight, length, quantity or other characteristics of Goods are approximate and Toro may supply Goods on an actual or calculated basis.
2. A calculated basis will be in accordance with the applicable Australian standards.
3. Toro's statements as to weight, length, quantity or other characteristics are final and Toro is not liable for any errors in such statements unless the Customer gives Toro:
  1. written notice of any error within 14 days of delivery; and
  2. a reasonable opportunity to examine and re-test the Goods before they are used or dealt with.
Claims, Returns and Shortages
1. Any claim by the Customer for incorrect orders, shortages, overcharges and the like will only be recognised by Toro if made in writing and received by the Company within 7 days of the date of the invoice and such claim must be sent to Toro's claims department.
2. Any claim by the Customer in respect of defective Goods and/or damaged Goods must be made in writing within 7 days of the delivery of the Goods.
3. Any claims by the Customer for goods lost or damaged in transit following Delivery should be made to the relevant carrier or transport authority and unless otherwise agreed Toro is not responsible for such loss or damage.
4. Except as required by law, Toro will be under no obligation to accept Goods returned for any reason.
5. Return of goods to Toro by the Customer may only be made if Toro has agreed to that return and all such returns maybe subject to a 15% handling charge with freight costs and risk remaining the responsibility of the Customer, subject always to paragraph 6.
6. Toro will endeavour to rectify any shortages as soon as practicable after receiving notice but Toro will not suffer any liability from or in respect of such shortage or its rectification.
Waiver
Toro may waive a right under a Contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
Severance
If a provision of the Terms and Conditions would, but for this clause, be held to be unenforceable by a court having jurisdiction under the law of any jurisdiction:
1. the provision must be read down to the extent necessary to avoid that result; and
2. if the provision cannot be read down to that extent it must be severed without altering the validity and enforceability of the remainder of the Contract.
3. the reading down or severance does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.
4. the parties agree to use all reasonable endeavours to replace the invalid or unenforceable provision with a valid and enforceable substitute provision the effect of which is as close as possible to the intended effect of the invalid or unenforceable provision.
Variation
Toro may vary the Terms and Conditions without notice to the Customer under paragraph 22.
Toro may Assign
Without notice to the Customer, Toro may assign to any person any Contract.
Costs
The Customer must pay Toro all costs and expenses incurred by Toro in connection with the Contract and/or any breach of the Contract including collection cost, legal expenses (on a solicitor-client basis), stamp duty and any other costs incurred in the recovery of monies owing by the Customer to Toro or in otherwise enforcing Toro's rights against the Customer under the Contract.
Applicable Law
The Contract is governed by the law of the State or Territory in which the Order is accepted by Toro, and the courts of that State or Territory have non-exclusive jurisdiction in connection with the Contract.
Amendment of Terms and Conditions
This edition of the Terms and Conditions can be amended by Toro at any time and the Customer acknowledges and agrees that for the purpose of bringing any new terms and Conditions to its attention Toro may:
1. send a copy of the new Terms and Conditions to the Customer; and/or
2. display the new Terms and Conditions on Toro's website (www.toro.com.au).
Privacy Act
The Customer hereby acknowledges and agrees that Toro is entitled to undertake all necessary enquiries, investigations and assessments to ensure the accuracy of the information provided to Toro by the Customer in support of any application for credit or otherwise provided as part of or under the Contract; and further, that such information, as verified, maybe used by Toro and any authorized agent, employee, or subcontractor engaged by Toro, for the purpose of reviewing, vetting, monitoring, and if necessary, actioning the Customer's use and performance in the operation of the Customer's Account/Credit facility, including recovery of any outstanding account balance.
Trusts
1. Where the Customer is acting as trustee of a trust the Customer warrants to Toro that it has the power to enter into the contract and that there are sufficient assets in the Trust to pay for the Goods in the Order.
2. If the Customer breaches the warranty in paragraph 24(a) then the Customer is personally liable to Toro for any amounts unpaid under the Order.