Terms of service

AUSKEY INDUSTRIAL PTY LTD 
A.C.N. 129 579 933 
 
TERMS AND CONDITIONS OF SALE 
 
 
1.  Contracts of Sale 
1.1 These Terms and Conditions of Sale (Terms) shall apply to and form part of any contracts of sale for the supply of any or all goods, products, 
materials and related services (Goods) by the Purchaser from Auskey Industrial Pty Ltd ACN129 579 933(Auskey) and any related body 
corporate of Auskey within the meaning of Section 50 of the Corporations Law. 
 
 
2.  Quotations, Prices, Orders and Specifications  
2.1  Any quotation(s) given by Auskey to the Purchaser shall constitute an offer to sell Goods to the Purchaser. 
 
2.2 Prices given in any quotation by Auskeyare applicable to that quotation only and will not apply in other instance and will not include the cost of 
the delivery of the Goods, including but not limited to costs incurred by Auskey arising out of a late notification by the Purchaser of a change 
to an agreed delivery point, unless otherwise specified in the quotation.  
 
2.3 Quotations and prices are valid for a period of thirty (30) days from the date of issue by Auskey or as otherwise specified in the quotation. 
  
2.4 The price of the Goods will be the current price determined by Auskey at the time of delivery and may be subject to a variation due to changes 
in rates for ocean freight and exchange rates. The price will be exclusive of all applicable taxes and  charges, unless otherwise stated 
or agreed between Auskey and the Purchaser. The Purchaser shall be liable for all excise, sales, Goods and Services Tax (GST) or any other 
tax, charge or government impost(domestic or foreign) imposed upon the Goods or any part of the Goods, or upon the manufacture, use, sale 
or delivery of the Goods which shall be in addition to the purchase price. The Purchaser must pay the GST at the same time as payment for 
the goods is made. 
 
2.5 Any order(s) must be clearly communicated by the Purchaser to Auskey quoting an order number, full description of the Goods to be 
purchased (including, as the case requires, lengths, weights and dimensions using conventional units of measurements) and the delivery time 
and address. Reference to a Auskey quotation number to the Purchaser must be made if a quotation was provided by Auskey. 
 
2.6 These Terms apply to the Purchaser and Auskey in respect of Goods ordered by the Purchaser and any terms and conditions set out in the 
Purchaser’s order deviating from or are inconsistent with these Terms will not bind Auskey including any statement by the Purchaser in its 
order that its terms and conditions shall prevail over these Terms. 
 
2.7 If the Purchaser’s order refers to a specification of the Purchaser then the Purchaser must deliver such specification to Auskey without charge. 
The Purchaser represents and warrants to Auskey that any such specification does not, and any Goods produced by Auskey pursuant to such 
specification, will not breach or in any way infringe upon the rights or intellectual property of any third party including, without limitation, 
patent, design, copyright or other intellectual property rights.  
 
2.8 The Purchaser may not cancel an order for Goods without the prior consent of Auskey. 
 
2.9 If the Purchaser repudiates a contract in force between Auskey and the Purchaser on the terms of these Terms or refuses to accept delivery for 
any or all of the Goods other than on circumstances permitted under these Terms or if Auskey terminates any contract in force between it and 
the Purchaser on the Terms pursuant to Clause 11 then the Purchaser will be liable for any loss or damage suffered by Auskey whether directly 
or indirectly in relation to the repudiation by the Purchaser. In the case of Goods produced to the Purchaser’s specification or which are in the 
process of being produced the Purchaser must pay to Auskey as liquidated damages the full contract price and any costs included by Auskey 
less the current scrap value of the Goods (if applicable) as determined by Auskey. 
 
 
3.  Payment 
3.1 The extension of credit to the Purchaser by Auskey shall be at its sole discretion and, where extended, unless otherwise advised in writing by 
Auskey, the Purchaser must make payment in full within thirty (30) days at the end of the month in which the delivery of the Goods occurs or 
as otherwise specified in Auskey invoice. 
 
3.2 Without in any way limiting the right of Auskey to require payment in full by the due date, Auskey may in its sole discretion charge interest on 
overdue accounts at the rate of 1.5% per month on amounts in excess of 60 days. Auskey may also charge for debt collection costs and legal 
collection costs incurred by external parties in pursuit of outstanding debts. 
 
3.3 Payments made by credit card may be subject to a surcharge. 
 
3.4 In order to assess the Purchaser’s credit worthiness, the Purchaser agrees that Auskey shall be entitled to use the services of a credit agency 
from time to time to obtain information concerning the Purchaser. 
 
3.5 Time is of the essence for payment. 
 
 
4.  Delivery 
4.1  Unless otherwise agreed in writing, Auskey shall arrange for delivery of the Goods to the Purchasers nominated delivery point during working 
hours. 
 
4.2  Auskey reserves the right to arrange transport of the Goods by any means in its absolute discretion. 
 
4.3 At all times the Purchaser must sign the delivery docket as confirmation of receipt of goods and provide the signed delivery docket to the 
carrier representing Auskey. 
 
4.4 Auskey is deemed to have affected delivery of the Goods when they are made available for unloading at the Purchaser’s nominated delivery 
point.  
 
4.5  The Purchaser is responsible for unloading the Goods from Auskey delivery vehicle or the vehicle procured by Auskey for delivery. 
 
4.6 If the Goods are to be collected by the Purchaser from the premises of Auskey, delivery occurs when the Goods are loaded on the Purchaser’s 
vehicle. 
 
4.7 Auskey is not liable for any claims for non-fulfillment or late delivery of Goods or of any loss or damage (including consequential loss or 
damage suffered by the Purchaser arising whether directly or indirectly out of delay in delivery or failure to deliver due to circumstances 
beyond reasonable control of Auskey and the Purchaser shall accept and pay for the Goods notwithstanding late delivery. 
 
4.8  The Purchaser shall in its purchase order, advise Auskey of the nominated delivery point and required delivery time. 
                                              Page 2 of 4 
 
4.9 Unless otherwise agreed by the Purchaser and Auskey, Auskey shall be entitled to deliver the Goods in one or more lots. Where delivery of 
the Goods is effected by way of part delivery, Auskey shall be entitled to invoice the Purchaser for pro-rata progress in respect thereof. 
4.10 Where the Purchaser’s order requires the Goods to be delivered by instalments then a separate contract arises on the subject to the 
provisions of these Terms in relation to each instalment. If Auskey fails to deliver an instalment of Goods on time, or at all, the Purchaser 
must not and is not entitled to terminate any other contract in force between Auskey and the Purchaser for the sale or supply of Goods. 
4.11 In the event the Purchaser is unable to accept the Delivery of Goods, Auskey shall be deemed to have delivered the Goods in accordance with 
these Terms and the Goods shall be at the Purchaser’s risk from the time when the Goods have been loaded onto the Purchaser’s collecting 
vehicle or made available for unloading at the Purchaser’s nominated delivery point or as the case may require. 
 
 
5.  Additional Charges 
5.1 Auskey reserves the right to charge for any costs, charges or expenses whatsoever that it may incur as a result of vehicle or wagon detention 
of the Goods, but only to the extent the same is not caused or materially contributed to by Auskey; demurrage on ships as a consequence of 
any act or omission of the Purchaser; any special requirements or stipulation’s of the Purchaser accepted by Auskey in writing but not 
provided for in the Terms; and any increase in duties, taxes, freight, insurance or other charges or expenses from the date of acceptance of 
the Purchaser’s order by Auskey to the date of Delivery. 
 
 
6.   Storage 
6.1 If in the event Auskey notifies the Purchaser that the Goods are ready for delivery and the Purchaser requests either orally or in writing for 
Auskey to hold the Goods on its behalf, such Goods will be held by Auskey at the Purchaser’s risk and Auskey shall be entitled to charge 
storage fees in respect of the Goods stored. 
 
 
7.  Indemnity 
7.1   Without prejudice to any other rights Auskey may have against the Purchaser, and to the extent permitted by law, the Purchaser indemnifies 
Auskey and will hold it harmless from and against any loss, damage, liability or expenses, including, without limitation, costs, whether or not 
the subject of a court order, suffered or incurred by it arising out of the breach by the Purchaser of these Terms including, without limitation 
arising out of the cancellation by the Purchaser of any order or part thereof for the Goods after acceptance by Auskey; and 
(i) in relation to any fault, defect, state of being or thing in relation to or in respect of Goods made pursuant to the 
Purchaser’s specifications arising, whether directly or indirectly, out of the terms of the specification provided by the 
Purchaser to Auskey;  
(ii) where Auskey or its agents enters the Purchaser’s premises or the premises of a third party nominated by the Purchaser 
as a delivery point in respect of damage occasioned to the Purchaser’s premises or injury to persons arising out of the 
delivery by Auskey or its agents in respect of damage occasioned to the third party’s premises or injury to persons 
arising out of the delivery by Auskey or its agents of Goods to the premises of the third party to the extent that such 
loss, damage or liability suffered by Auskey does not arise out of the negligence or carelessness of Auskey or its agents. 
 
 
8.  Claims 
8.1 The Purchaser shall inspect the Goods immediately upon delivery and, if the Goods are damaged or not otherwise in conformity with the 
order by the Purchaser, the Purchaser shall give written notice to Auskey of the details within seven days of the date of delivery. 
 
8.2 In the event the Purchaser fails to give notice to Auskey within seven days the Purchaser shall be deemed to waive and release Auskey l from 
any claim it may have had it in relation to the Goods and must pay the purchase price for the Goods to Auskey. 
 
 
8.3 Any Goods the subject of a notice given pursuant to clause 8.1 shall be left in the state and condition in which they were delivered until such 
time as Auskey or its duly authorised agent had inspected the Goods, such inspection to be carried out within a reasonable time after 
notification by the purchaser. If the goods are not so left in the state and condition in which they were delivered, the Purchaser shall be 
deemed to waive and release Auskey from any claim it may have had against it but for this release in relation to the Goods and must pay the 
purchase price for the Goods to Auskey. 
 
8.4 No Goods will be accepted for return by Auskey unless it agrees in writing prior to such return and then only upon conditions acceptable to 
Auskey and at the Purchaser’s entire risk as to loss or damage. Where Auskey agrees to accept Goods for return, its current restocking 
charge will be charged to the Purchaser and shall be immediately due and payable. 
 
 
9.  Retention of Title 
9.1 Whilst the risk in the Goods passes on delivery, legal and equitable title remains with Auskey until payment is made to it in full for those 
goods and all other goods and services supplied to the Purchaser by Auskey at any time. Prior to title in the Goods passing to the Purchaser, 
the Purchaser must: 
 
(i)  hold the Goods as bailee and fiduciary agent of Auskey; 
(ii) where feasible store the Goods within the business premises of the Purchaser and separate from its own Goods and 
those of any other third party, or alternatively, in such a way as to clearly identify at all times that the Goods are 
owned by Auskey; and 
(iii)  ensure that, at all times, the Goods are properly stored, protected, readily identifiable and insured. 
 
9.2 With the prior written consent of Auskey, the Purchaser may sell or deal in the ordinary course of business with the Goods provided that any 
such sale or dealing is at arms’ length and on market terms and any such sale is held on trust for Auskey in a separate account. 
 
9.3  Auskey however reserves the following rights in relation to the Goods until all amounts owed by the Purchaser are fully paid: 
 
   (i) legal and equitable ownership of the Goods; 
   (ii) to retake possession of the Goods; and 
   (iii) to keep or resell any of the Goods repossessed pursuant to clause 9.2b above. 
 
9.4 Where the Purchaser processes the Goods either by using the Goods to manufacture other goods or by incorporating the Goods in or with any 
other goods, before title in the Goods has passed to the Purchaser, the Purchaser: 
 
(i) holds such part of the new goods (processed goods) on trust for Auskey as bailee and fiduciary agent of Auskey; 
(ii) Must store such part of the processed goods separately from the Purchaser’s own goods and those of any other third 
party in such a way  as to clearly indicate at all times that the processed goods are owned by Auskey and; 
   (iii) Must ensure that such part of the processed goods are properly stored, protected, readily identifiable and insured. 
 
  
9.5 For purpose of this clause 9, “such part” means an amount equal in dollar terms to the amount owing by the Purchaser to Auskey at the time 
the Goods are used in the manufacture of, or incorporated into, the processed goods. 
 
9.6  The Purchaser may sell or deal with the processed goods provided that: 
 
   (i) any such sale or dealing is at arms length and on market terms; and 
(ii) the Purchaser holds on trust such part of the proceeds of any sale of or dealing in the processed goods that is equal in 
dollar terms to the amount owing by the Purchaser to Auskey  at the time the Goods are used in the manufacture of, or 
                                              Page 3 of 4 
incorporated into, the processed goods, in a separate identifiable account as the beneficial property of Auskey and must 
pay  such amount to it upon request. 
 
9.7 Without prejudice to the rights of Auskey in clause 9.3 above, in the event of a  breach of this contract by the Purchaser including, without 
limitation, failure by the Purchaser to make payment for the Goods by the date specified by Auskey to the Purchaser, the Purchaser must 
return the Goods to Auskey on demand. If the Purchaser does not return the Goods to Auskey within 48 hours of receipt of the demand, 
Auskey shall be entitled without notice to enter the Purchaser’s premises at any time to do all things necessary to recover the Goods. 
 
9.8 The Purchaser hereby grants full leave and irrevocable license to Auskey and any person it authorizes to enter upon any premises where the 
Goods may for the time being be placed or stored for the purpose of retaking possession of the Goods. In that event the Purchaser hereby 
agrees it; 
 
(i) shall be liable for all costs, losses, damages, expenses or any other sums of money incurred or suffered by Auskey, 
including consequential losses and damages as a result of Auskey retaking possession of the Goods or otherwise 
exercising its rights under this clause 9; and 
(ii) shall indemnify Auskey for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or 
suffered as a result of any and all prosecution, actions, demands, claims or proceedings brought by or against Auskey 
in connection with the retaking possession of the Goods or the exercise by Auskey of its rights under this clause 9, and 
the Purchaser shall repay all such fees, costs, losses, damages expenses or any other sums of money on demand.  
 
9.9 The parties agree that this clause 9 is not intended to create a charge or any other form of security interest and to the extent, as a matter of 
law, this clause creates a charge or any other form of security interest, the offending words shall be deleted.  
 
 
10.  Application of the Personal Property Securities Act 2009(PPSA) 
10.1 This clause 10 applies to the interest in any goods of Auskey as a security interest for registration in the PPSA Register. 
 
10.2 The Goods are all goods and services sold by Auskey 
 
10.3 The Purchaser acknowledges and agrees that Auskey may register its security interest in the Goods at any time before and after delivery. 
 
10.4 The Purchaser acknowledges and agrees to waive its rights under section 157 of the PPSA to receive verification of the registration. 
 
10.5 Auskey may apply amounts it receives from the Purchaser towards amounts owing to it as Auskey may choose. 
 
10.6 In the event of any default by the Purchaser of any obligation owed to Auskey under these terms or any other agreement for the supply of 
the Goods, Auskey is at liberty to enforce its security interest in any goods by exercising all or any of its rights pursuant to these terms 
and/or the PPSA. 
 
10.7 The parties agree to the maximum extent permitted by law sections 95,118,121(4), 125,130,132(3) (d), 132(4), 135,142 and 143 of the 
PPSA do not apply to the enforcement by Auskey of its security interest in the Goods. 
 
10.8 The parties agree not to disclose information of the kind referred to in section 275(1),except in circumstances required by sections 
275(7)(b)-(e) , of the PPSA. 
 
10.9 The Purchaser must do anything requested by Auskey to ensure that its security interest is a perfected security interest and has priority over 
all other security interests in the Goods. 
 
10.10 Nothing in this clause 10 is limited by any provision of these terms or any other agreement between the parties.  
 
10.11 If a term used in this clause 10 has a particular meaning in the PPSA, it has the same meaning as in this clause. 
 
 
11.  Default  
11.1 If the Purchaser fails to perform or observe any obligation or agreement expressed or implied in or given in relation to these Terms including, 
without limitation, the payment of money, or if the Purchaser including a Purchaser under a Consumer Contract, is the subject of any 
personal insolvency even including, without limitation, arising out of an act of bankruptcy or, has a receiver, receiver and manager, official 
manager, trustee, administrator, other controller (as defined in the Corporations Law) or similar official appointed or steps are taken for such 
appointment over any of the assets or undertaking of the Purchaser or if the Purchaser suspends payment of its debts generally or is or 
becomes unable to pay its debts when they are due or is presumed to be insolvent under the Corporations Law or if the Purchaser ceases or 
threatens to cease to carry on business then Auskey may, without limiting any other rights it may have, do any or all of the following things: 
 
(i) withdraw any credit facilities which may have been extended to the Purchaser and require immediate payment of all 
monies owed to Auskey by the Purchaser. 
(ii) suspend or terminate any contract in force between Auskey and the Purchaser and, without limitation, withhold any 
deliveries of Goods or performance of services pursuant to any purchase order accepted by Auskey. 
   (iii) in respect of Goods already delivered, enter premises of the Purchaser to recover and resell same for its benefit.  
 
 
12.  Warranties 
12.1 To the extent permitted by Legislation, all implied conditions, warranties and undertakings are expressly excluded from these Terms. 
 
12.2 No statement or recommendation made or advice, supervision or assistance given by Auskey, its employees, agents, or representatives 
whether oral or written must be constructed as or constitutes a warranty or representation by Auskey or a waiver of any clause in these 
Terms. Auskey is not liable for loss or damage arising directly or indirectly from any act or omission to act arising directly or indirectly from 
any such statements, recommendations, advice, supervision or assistance. 
 
12.3 Except as provided in the clause, Auskey shall not be liable for any loss or damage, whether direct or indirect, including consequential losses 
or damage, arising out of any breach of these Terms by Auskey, or any negligence of its employees or agents in respect of matters in any 
way connected with the subject matter of these Terms. 
 
12.4 Should Auskey be liable for a breach of a condition or warranty pursuant to Legislation then its liability for a breach of any such condition or 
warranty express or implied shall be limited to the extent permitted by law, as its option to any one or more of the following: 
 
(i) in the case of Goods; 
(ii) the replacement of the Goods or the supply of equivalent Goods; 
(iii) the repair of Goods; 
(iv) the payment of the cost of replacing the Goods or acquiring equivalent Goods; 
(v) the payment of the cost of having the Goods repaired; 
(vi) in the case of services; 
(vii) the supply of the services again; 
(viii) the payment of the cost of having the service supplied again; 
 
12.5 Auskey will not be liable under any implied warranty for the costs of recovery of the Goods from the field, loss of use of the Goods, loss of 
time, inconvenience, incidental or consequential loss or damage, not for any other loss or damage other than as stated above, whether 
ordinary or exemplary caused either directly or indirectly by the use of the Goods. No implied warranty may be invoked in respect of any 
                                              Page 4 of 4 
defects to  other malfunctions insofar as such defects or malfunctions are caused to Goods by accident, neglect, vandalism, misuse, 
alteration, modification or unusual physical, environment or electrical stress. 
 
 
13.          Fitness of Goods 
13.1       Subject to the rights pursuant to Legislation and unless the Goods have been supplied to the Purchaser by Auskey under a Consumer 
Contract the Purchaser agrees that it does not rely on the skill or judgment of Auskey in relation to the suitability of any of the Goods for a 
particular purpose unless it has indicated that purpose in writing to Auskey and it has acknowledged in writing that the Goods will fit the 
particular purpose.  
 
 
14  Force Majeure 
14.1 Auskey shall not be liable to the Purchaser where an event of Force Majeure prevents or delays Auskey from performing any obligation under 
these Terms. 
 
 
15.          Miscellaneous  
15.1 These Terms set out the entire agreement between the parties in relation to their subject matter.  
 
15.2 Auskey reserves the right to review and amend these Terms from time to time. Written notification forwarded to the Purchaser by ordinary 
mail shall be deemed sufficient notification to bind the Purchaser to any revised or amended Terms for all orders placed by the Purchaser and 
accepted by Auskey after receipt of such notification. 
 
15.3 The laws of Victoria are applicable to the agreement between Auskey and the Purchaser and each party submits to the non-exclusive 
jurisdiction of the courts exercising jurisdiction in Victoria and any court that may hear appeals from any of those courts and the parties 
waive any right it might have to claim that those courts are an inconvenient forum. 
 
15.4  A party waives a right under these Terms only if it does so in writing. A party does not waive a right simply because it fails to exercise a 
right, delays exercising the right, or only exercises part of the right. A waiver of one breach of any of the Terms does not constitute as a 
waiver of another breach of the same term or of any other term. 
 
15.5 Auskey may assign or otherwise deal with the benefit of any contract made pursuant to these Terms without the consent of the Purchaser. 
 
15.6 The parties may conduct business by Electronic Data Interchange (IDI) and in accordance with the terms of any Electronic Trading Partner 
Agreement to which they are parties and into which these terms are incorporated. 
 
15.7 Any provisions of these Terms which are unenforceable or partly unenforceable is where possible to be severed to the extent necessary to 
make these Terms enforceable unless this would materially change the intended effect of the Terms. 
 
 
16.  Interpretation 
  In these terms: 
 
16.1 Consumer means a person who acquires Goods from Auskey where the (a) amount paid or payable for the Goods did not exceed $40,000; 
or (b) Goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; unless the Goods were acquired for 
the purpose of re-supply or the purpose of using the Goods up or transforming them in trade or commerce. 
 
16.2 Dollar terms means a reference to Australian currency; 
 
16.3 Force Majeure means an act of God, war, government restraint, industrial dispute or other event not within the control of Auskey acting 
reasonably; 
 
16.4 GST means the tax payable on Taxable Supplies within the meaning of the GST Act; 
 
16.5 GST Act means the A New Tax System (Goods and Services Tax) Act 1999 and any related legislation imposing such tax or legislation that is 
enacted to validate, recapture or recoup such tax; 
 
16.6 Legislation (including subordinate legislation) means that legislation as amended, re-enacted or replaced and includes any subordinate 
legislation issued under it; 
 
16.7 Purchaser means a person, being an incorporated or unincorporated business or an individual, who acquires Goods from Auskey and 
includes a Consumer; 
 
16.8 Working Hours means between 8.00am and 5.00pm, Monday to Friday (inclusive) excluding public holidays. 
 
Date of Issue: February 2016