TESTO PTY LTD – TERMS AND CONDITIONS OF SALE

1. INTERPRETATION
 

1.1 In these terms and conditions:

(a) “Testo” means Testo Pty Ltd A.C.N. 007 249 603) and any related body corporate as defined in the Corporations Act 2001 (Cth) and its successors and assigns.

(b) “Goods” means any Goods supplied by Testo.

(c) “Services” means any services provided by Testo.

 

2. PRIVACY POLICY

2.1 We at Testo are happy you choose to visit our website and for your interest in our company and products. We take the protection of your privacy and data very seriously. The information given to us during your visit to our website is handled with the greatest confidentiality and in accordance with legal regulations.

2.2 We only collect personal information that is voluntarily given. Personal information is used only when you have expressly stated your agreement. Personal information is only used to fulfil your requests and requirements, e.g. within the context of an online order for a product or a service, a survey, a contest, or an inquiry.

2.3 You can retract your consent to the use and storage of your personal information at any time.

2.4 All data that you disclose is stored and handled exclusively within our company. Under no circumstance will any of your personal information be shared with a third party without your consent. Furthermore, we have taken precautionary measures to block unwanted access by third parties to stored data.

2.5 Should you wish to have data corrected or removed, or have any additional questions or suggestions, please feel free to contact us.

 

3. COPYRIGHT

3.1 The contents of this website are protected by copyright, and all rights belong exclusively to Testo. Reproduction of the contents for commercial purposes, or any other commercial use of the contents and information, particularly of graphic material or images, is not permitted without the written permission of Testo.

 

4. SALES PRICES

4.1 Prices of sale are determined by Testo as listed and quoted.

4.2 Prices are quoted in Australian Dollars and are inclusive of import duties, inward freight and clearance costs.

4.3 Prices are exclusive of GST. They are ex our Melbourne store. Packing & outward freight is not included unless previously agreed in writing. Prices are calculated from current rates of exchange and may be varied without prior notice.

4.4 All invoices issued will attract GST at 10% of the total amount including delivery and packing charges. All service, repair and calibration charges are subject to GST at 10%.

 

5. TERMS OF PAYMENT

The Purchaser agrees to pay all amounts due in clear funds within Testo’s agreed timeframe but in any event, no later than 30 days from the date of invoice (“due date”).

5.1 The Purchaser agrees that if it fails to pay by the due date in accordance with this clause, Testo is entitled to :

(a) charge a late payment administration fee being the higher of $100 or 2% on all outstanding amounts as at the due date;

(b) charge interest at the rate set under the Penalty Interest Rate Act plus 2% calculated on the monies due and unpaid during the period of default;

(c) and recover all collections costs including legal costs and expenses on a full indemnity basis whatsoever arising from the collection of any overdue monies. Such interest, costs and commissions and legal expenses may be recovered as a liquidated debt;

(d) withhold or cease supply; and

(e) sue for the money owing on the Goods or services provided.

5.2 In the event where this agreement has been entered into by more than one party each party shall be jointly and severely liable for any amounts overdue.

5.3 Testo reserves the right to change such payment terms at any time when, in the opinion of Testo the financial status of the Purchaser so warrants.

 

6. PAYMENT PROVIDER

6.1 All payments in our online shop are handled by our payment provider PayPal Australia Pty Limited. You transfer your payment data via a secure https connection to the servers of PayPal. This transfer is solely for the settlement of your payment. Please refer to the privacy policy of PayPal (https://www.paypal.com/au/webapps/mpp/ua/privacy-full).

 

7. DELIVERY DATES

7.1 The delivery times made known to the Purchaser are estimates only and Testo is not liable for late delivery or non-delivery.

7.2 Testo shall make every effort to meet quoted delivery dates but shall not be liable for any failure in this regard. Such failure shall not be ground for cancellation.

7.3 Testo is not liable for any loss, damage or delay occasioned to the Purchasers or its Purchasers arising from late or non-delivery of the Goods or Services.

7.4 Testo may at its option deliver the Goods or Services to the Purchaser in any number of instalments.

 

8. SHIPMENT, RISK, PASSAGE OF TITLE, PACKING*

8.1 Testo shall ship in accordance with purchaser’s written instruction, in the absence of which Testo shall ship at its discretion in the most appropriate manner.

8.2 Unless otherwise agreed in writing, the Goods are at the purchaser’s risk upon the earliest to occur of them leaving Testo’s premises or being delivered to carrier or collected from Testo by the Purchaser or their authorised representative.

8.3 Unless otherwise agreed in writing suitable packing for outward freight is included in the sales price.

8.4 Title to the goods does not transfer to the Purchaser until the invoice has been paid in full in accordance with clause 2 above and the amount has been credited to Testo’s nominated account

8.5 The Purchaser must inspect the Goods immediately on delivery and within five (5) business days of delivery give notice to Testo of any defect or allegation that the Goods are not in accordance with the Purchaser’s order. Unless a notice is given by the Purchaser pursuant to this clause, the Goods will be deemed to be satisfactory and the Purchaser must then pay for them. No claims will be accepted after the duration of the said five (5) business day period.

8.6 Goods that are not received, missing in transit, and given the wrong product, should notify Testo within five (5) working days.

8.7 Testo will provide the Purchaser with such assistance as may be necessary to press claims on carriers so long as the Purchaser:

(a) has notified Testo and the carriers in writing immediately after loss or damage is discovered on receipt of Goods; and

(b) lodges a claim for compensation against the carrier within five (5) business days of the date of receipt of the Goods or the scheduled date of receipt of the Goods is lost.

 

9. OWNERSHIP OF GOODS

9.1 Title to the Goods supplied to the Purchaser from time to time by Testo remains with Testo at all times until such time as those Goods have been paid in full. Where Goods are supplied by Testo to the Purchaser without payment in full, the Purchaser is a bailee of the Goods until property in them passes to the Purchaser.

9.2 Until payment in full of the purchase price and all other amounts which the Purchaser owes Testo have been paid in full, the Client undertakes that it will store the Goods on its premises separately from its own goods, or those of any other person, and in a manner which makes the Goods readily identifiable as Testo’s goods.

9.3 The Purchaser must not mingle the Goods with any other goods regardless of whether or not the other goods belong to Testo without the prior written consent of Testo. In the event that Testo gives its consent under this provision, the Purchaser must ensure that the Purchaser has full and unencumbered title to the other goods. All intermingled goods including those with Testo’s prior consent must remain the property of Testo unless those goods have been paid in full by the Purchaser to Testo.

9.4 Until payment in full of the purchase price and all other amounts which the Purchaser owes Testo have been paid in full, Testo may (without affecting any of its rights or remedies) recover possession of, or resell the Goods or both and may enter upon the Purchaser’s premises or any other premises at which the Goods are situated for that purpose.

9.5 In the event that Testo takes steps to recover and repossess the Goods under this provision, the Purchaser authorises Testo to enter any premises owned or occupied by the Purchaser, or where necessary, and the Purchaser agrees to make all reasonable efforts to obtain the right for Testo to enter any premises in order to recover and repossess the Goods.

9.6 The Purchaser must reimburse Testo for its reasonable costs of recovering or repossessing the Goods where such costs are a consequence of the Purchaser’s default under these general trading terms.

9.7 Except to the extent that Testo is at fault, the Purchaser indemnifies Testo against any claim made by any third party resulting from Testo’s recovery or repossession of the Goods.

9.8 The Purchaser is responsible for and bears all risk in Testo’s goods in its possession or control.

9.9 If the Goods are resold, or products manufactured using the Goods are sold, by the Purchaser, the Purchaser shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of Testo and shall pay such amount to Testo upon request.

9.10 Notwithstanding the provisions above Testo shall be entitled to maintain an action against the Purchaser for the purchase.

 

10. PERSONAL PROPERTY SECURITIES ACT 2009 ("PPSA")

10.1 In this clause:

(a) Financing statement has the meaning given to it by the PPSA;

(b) Financing change statement has the meaning given to it by the PPSA;

(c) Security Agreement means the Security Agreement under the PPSA created between the Purchaser and Testo by these terms and conditions;

(d) Security Interest has the meaning given to it by the PPSA; and

(e) Purchase Money Security Interest has the meaning given to it by the PPSA.

10.2 Upon assenting to these terms and conditions in writing or by adoption the Purchaser acknowledges and agrees that these terms and conditions:

(a) Constitute a Security Agreement for the purposes of the PPSA; and

(b) Create a Security Interest and/or a Purchase Money Security Interest in:

(i) All goods previously supplied by Testo to the Purchaser (if any); and
(ii) All goods that will be supplied in the future by Testo to the Purchaser.

10.3 The Purchaser undertakes to:

(a) Promptly sign any further documents and / or provide any further information (such information to be complete, accurate and up to date in all aspects) which Testo may reasonably require to:

(i) Register a financing statement or financing change statement in relation to a security interest and/or purchase money security interest on the Personal Property Securities Register;
(ii) Register any other document required to be registered by the PPSA; or
(iii) Correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii).

(b) Indemnify, and upon demand reimburse, Testo for all expenses incurred in registering a financing statement or financing change statement on the Personal Properties Securities Register established by the PPSA or releasing any goods charged thereby;

(c) Not register a financing change statement in respect of a security interest without prior written consent of Testo;

(d) Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Testo; and

(e) Immediately advise Testo of any material change in it's business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

10.4 Exclusion of PPSA provisions

(a) To the extent the law permits, the Purchaser waives:

(i) its rights to receive any notice that is required by:

(A) Any provision of the PPSA (including a notice of a verification statement); or

(B) Any other law before a secured party or Receiver exercises a right, power or remedy; and

(ii) Any time period that must otherwise lapse under any law before a secured party or Receiver exercises a right, power or remedy.

(b) If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period of lapse is one day or the minimum period the law allows to be agreed (whichever is the longer).

(c) However, nothing in this clause prohibits Testo or any Receiver from giving a notice under the PPSA or any other law.
(d) For the avoidance of doubt, to the extent the law permits and for the purposes of sections 115(1) and 115(7) of the PPSA:

(i) Testo need not comply with sections 95(Notice of Removal of Accession), 118 (Security Interest in accordance with Land Law Decision), 121(4) (Enforcement of Liquid Assets – Notice to Grantor), 125 (Obligation to Dispose of or Retain Collateral), 130 (Notice of Disposal), 132(3)(d) (Contents of Statement of Account after Disposal) or 132(4) (Statement of Account if no Disposal); and

(ii) sections 142 (Redemption of Collateral) and 143 (Reinstatement of Security Agreement) are excluded.

(e) Unless otherwise agreed to in writing by Testo, the Purchaser waives its rights to receive a verification statement in accordance with section 157(3) of the PPSA.

(f) If the PPSA is amended after the date of this document to permit the Purchaser and Testo to agree to not comply with or to exclude other provisions of the PPSA, Testo may notify the Purchaser that any of these provisions is excluded, or that Testo need not comply with any of these provisions, as notified to the Purchaser by Testo.

(g) The Purchaser agrees not to exercise its rights to make any request of Testo under section 275 of the PPSA, to authorize the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.

10.5 The Purchaser shall unconditionally ratify any actions taken by Testo under this clause.

 

11. PERSONAL PROPERTY SECURITIES ACT 2009 – ACCESSION

11.1 This clause shall, in addition to other provisions, apply if the goods is or will become an accession.

11.2 Accession has the meaning given to it by the PPSA.

11.3 The Purchaser must, at least 2 business days before the scheduled delivery of the accession by Testo, provide to Testo the written statement of the person who has an interest in the other goods at the time when the Goods become an accession –

(a) consenting to Testo’s security interest in the accession; and

(b) confirming he has not entered into any agreement under which another person is entitled to remove the accession.

 

12. PRECEDENCE OF TERMS

These Terms and Conditions shall take precedence over Purchaser's terms and conditions of order to which notice of object is hereby given.

 

13. CHANGES, CANCELLATIONS, CREDIT RETURNS

13.1 Subject to clause 13.2 or unless otherwise agreed in writing by Testo, Testo will not accept the return of any Goods for any reasons including where the Goods are opened, not in their original packaging or were specially manufactured or prepared for the particular order.

13.2 Goods which are damaged, faulty, defective, spoilt, expired are only acceptable for return to the extent required by law provided that conditions set out in clause 13.3 are met.

13.3 All Goods returned pursuant to clause 13.2–

(a) must be returned to Testo at Testo’s place of business and at the Purchaser’s sole cost and expense; and

(b) must be received by Testo within 14 days from the date on which the Goods are first delivered to the Purchaser.

13.4 Changes to and/or cancellations of any order made by the Purchaser are accepted by Testo only in respect of goods, which are normally held in local stocks. Such changes and or cancellations must be made in writing within 15 days of receipt by Testo of Purchaser's order.

13.5 Goods accepted into stock may be subject to a cancellation fee of 15% of the net value of the goods original invoice. Calibrations cannot be credited.

13.6 Purchaser’s request for returns must be made in writing within 15 days of date of the original invoice and must receive prior written authorization from Testo.

13.7 At the time of placing an order for special production items that are outside of the usually ‘stocked’ items (‘Special Order’), the Purchaser must pay a deposit equivalent of 50% of the full price of the order and the balance must be paid in accordance with the Testo’s usual payment terms.

13.8 Goods that are not normally held in local stocks, goods that have been obtained especially or manufactured especially by Testo shall not be subject to change or cancellation except with the prior written agreement of Testo.

13.9 If the Purchaser cancels the Special Order before Testo commences manufacturing, the deposit will be forfeited as the absolute property of Testo.

13.10 The Purchaser must not cancel the Special Order or refuse to accept delivery of any Special Order once Testo commences manufacturing.

13.11 No exchange, credit or refund on replacement of software or services.

14. LOAN
 

Demo or stock goods loaned by Testo to potential Purchasers are subject to a signed agreement known as a loan form. Goods loaned are on a specified loan time period, which is to be adhered to. Goods must be returned in original packaging & condition. Goods that are lost or damaged, will incur the total invoice amount stated on the loan form. No discounts will be given for goods out on loan. All requests for the extension of a loan period are to be cleared with Testo management.

15. REPAIRS, CALIBRATIONS
 

Goods returned by the Purchaser for repairs and/or calibrations will be accepted by Testo, freight paid by Purchaser, correctly packed and accompanied by Purchaser's documentation giving details of the service required. If a detailed repair is needed, a formal quotation will be made describing the nature of the repair and the estimated cost. Detailed repairs shall not be proceeded without Purchaser's written order. Calibrations shall be made in accordance with Testo prices schedule. Repairs not claimed within 3 months will be considered abandoned and then become the property of Testo. An applicable minimum service fee will be charged for all non-warranty repairs.

 

16. WARRANTY

16.1 Testo SE & Co. KGaA issues a worldwide warranty with a time limit on all its products in accordance with the following listed warranty conditions.

16.2 Testo issues the warranty from the date of the first purchase. The warranty covers all material and manufacturer faults.

16.3 Faults occurring during the warranty time will be rectified by Testo SE & Co. KGaA, its authorized sales subsidiaries or authorized dealers in accordance with the following conditions and without charge for labour and material costs.

16.4 Either the defective components will be replaced with new spare parts or the entire product will be replaced according to Testo estimation.

16.5 The following are excluded from the manufactures warranty:

(a) wear parts (e.g. rechargeable batteries/ batteries, measuring cells, printing mechanisms) and consumables (e.g. printer paper);

(b) damage caused by:

(i) use contrary to the intended purpose or failure to observe the instruction manual and/or the safety instructions;

(ii) lack of care, accidents or normal wear;

(iii) external influences (e.g. damage during transport, damage caused by vibration, excess heat, water, moisture or acids);

(iv) use of unsuitable accessories.

16.6 This warranty expires if:

(a) The type or serial number of the product is changed, deleted, removed or made illegible;

(b) Repairs or modifications are undertaken by third parties or unauthorized persons.

16.7 The warranty covers none of the following items:

(a) Regular maintenance and repairs or the replacement of parts due to normal wear;

(b) The costs of packaging and transport;

(c) The costs of repairs, adjustments or similar measures taken beyond the extent of this warranty.

16.8 In the case of a warranty claim, the Purchaser needs to consult its dealer or the sales subsidiary responsible for its country. The addresses can be seen at www.testo.com.au.

16.9 The Purchaser should enclose a brief description of the fault and the purchase receipt, indicating the delivery and purchase dates, together with the product. They should also give provide their telephone number for any inquiries.

16.10 Warranty repairs do not extend the period of warranty.

16.11 Further claims of any kind against Testo such as commercial transformation, price reduction or compensation will not be processed.

16.12 This warranty is provided in addition to other rights and remedies the Purchaser has under law. Our goods come with guarantees which cannot be excluded under Australian consumer law. You are entitled to replacement or refund for a major failure and to compensation for other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

16.13 The following time limits apply to instruments and accessories in Australia:

(a) Instrument – a period of 24 months beginning the date on which risk passes to the Purchaser;

(b) Probes - a period of 12 months beginning the date on which risk passes to the Purchaser;

(c) Accessories - a period of 6 months beginning the date on which risk passes to the Purchaser;

 

17. LIMITATION OF REMEDIES
 

(a) The information in this website is reviewed and updated on a regular basis, however the information provided is not legally binding and Testo reserves the right to modify and or make amendments to the information provided. Therefore, any responsibility for the accuracy and completeness is excluded.

(b) Testo assumes no responsibility for the contents of websites operated by third parties, to which this website may refer.

(c) Subject to clause 9 above remedies granted to Purchaser expressly exclude any liability or consequential damages (including loss of profit) whether based on contract, tort or other legal theory.

 

18. DEFAULT

18.1 If the Purchaser:

(a) fails to pay for any Goods or Services on the due date; or

(b) otherwise breached this agreement and failed to rectify such breach within seven days’ notice; or

(c) cancel or refuse to accept delivery of Goods or Services; or

(d) commits an act of bankruptcy or allows a trustee in bankruptcy or receiver and manager to be appointed to the Purchaser or any of its property; or

(e) Allow a judgment or order to be enforced or become enforceable against the Purchaser’s property; or

(f) Permits proceedings to be commenced to wind the Purchaser up or controller, receiver, administrator, liquidator or similar officers appointed to the Purchaser in respect of any part of its property;then Testo may –

(a) immediately cease or withhold supply and the agreement contained herein shall be voidable at the option of Testo;

(b) terminate any or all orders and credit arrangements (if any) with the Purchaser;

(c) refuse to deliver Goods or provide further Goods;

(d) retain (where applicable) all money paid by the Purchaser on account of Goods or otherwise; and/or

(e) enter upon the Purchaser’s premises (doing all that is necessary to gain access) where Goods or Services supplied under this contract are situated at any time and re-take possession of any or all of the Goods and/or the Services Testo has supplied to the Purchaser and may:

(a) resell the recovered Goods and/or Services; and

(b) sue for any monies owing.

18.2 The Purchaser authorises Testo to engage in the exchange of information with a credit reporting agency or with other such parties as are necessary to give effect to the contract and to the ongoing relationship between the parties hereto.

18.3 Testo reserves the right to report a Purchaser's delinquent account to a credit reporting agency should payment remain outstanding for more than 60 days. In addition Testo may refer the outstanding account for debt collection or issue legal proceedings to recover any outstanding invoices. Should an account be referred for debt collection the Purchaser acknowledges and agrees to pay debt collection charges to be calculated at not less than 20% of the outstanding debt plus GST and will be incurred on the day Testo refers the matter to their nominated debt collection agency. The Purchaser shall also be liable for interest and all legal recovery costs associated with such action on a solicitor and own client or indemnity cost basis.

 

19. RIGHT TO AMEND TERMS AND CONDITIONS
 

19.1 The Purchaser agrees that Testo may amend the terms and conditions of this agreement from time to time (“Amended Terms”) by either giving the Purchaser notice in writing of such amendments or publishing the Amended Terms on Testo’s website (“Notice”) .

19.2 The parties agree that the Amended Terms shall apply to orders placed by the Purchaser from the date of the Notice.

 

20. SET-OFF
 

20.1 The Purchaser agrees that:

(a) Testo may set-off any credit amount that Testo owes to the Purchaser against any debt due by the Purchaser to Testo at Testo’s sole discretion;

(b) The Purchaser is not entitled to withhold payment of any money in respect of any alleged set-off or claim the Purchaser might have against Testo.

 

21. SEVERANCE AND WAIVER
 

21.1 If any part of this agreement is found to be void, unlawful, or unenforceable then that part will be deemed to be severed from the agreement and the severed part will not affect the validity and enforceability of any remaining provisions.

21.2 Any waiver of Testo’s right under this agreement must be in writing and signed by an authorised representative of Testo.

21.3 Failure by Testo to insist upon compliance with any provisions of the terms does not constitute a waiver of that provision and Testo shall be entitled to insist upon compliance with all provisions of these terms at any time.

 

22. JURISDICTION
 

22.1 The agreement shall be deemed to have been made in Victoria and shall be interpreted in accordance with the Laws of Victoria, Australia, and the parties submit to the exclusive jurisdiction of the Victoria Courts.

 

23. MISCELLANEOUS

23.1 Should Purchaser become insolvent or otherwise unable to pay due debts, declare bankruptcy or have a reliever manager appointed Testo may cancel any unfulfilled and obligations and take possessions of goods of its supply to the value of outstanding monies due to Testo.

23.2 The Purchaser must not assign any rights under these Terms and conditions of sale.

23.3 No Purchaser may advertise Testo products without the prior written agreement of Testo.

23.4 No reseller/wholesaler or distributor may infer any exclusivity of representation.

23.5 Any dispute regarding the interpretation or validity of these Terms and Conditions of Sale shall be governed by the laws of the State of Victoria.

Amended November 2020.