Copyright © 2012 by Auskay International
INTERNATIONAL MANUFACTURING & TRADE PTY LTD
Terms and Conditions for Sale of Equipment and the Provision of Services
1. GENERAL: Auskay International terms and conditions shall apply to all contracts made by Auskay International Manufacturing & Trade P/L with customers for the sale of equipment supplied by Auskay International. Each sale is regarded as a contract between Auskay International and the customer. Auskay International terms shall be binding on the parties to the contract and no variation shall be effective unless reduced to writing and signed by Auskay International. Customers printed terms and conditions of business at variance with Auskay International terms and conditions shall not be binding on Auskay International, except to the extent that should a specific and separate contract exist between the customer Auskay International any expressly included terms and conditions in the contract will take precedence over Auskay International terms and conditions if a conflict should exist.
2. QUOTATIONS: Auskay International reserve the right to vary quotations without notice, in accordance with any variation in currency exchange rates, government charges, changes in tax rates (including Goods and Services Tax), import duties and transportation costs. Any quotation made by Auskay International will expire at 5.00p.m on the 30th day following the date of the quotation and will not have any force of effect upon expiration. Where an order is placed by the purchaser for goods which are not the subject of a valid quotation, or after the relevant quotation has been withdrawn or expired, and that order is accepted by Auskay International, the price of those goods shall be the then price charged by Auskay International as at the date of delivery of the goods, subject to any increases in accordance with the terms of this clause. For export purposes, the prices as quoted by Auskay International are F.O.B Melbourne, Australia. The customer is responsible for all additional charges by Government or other Authorities required for importation of the products.
3. PAYMENT: The customer must pay for goods in full with its order unless credit terms have been previously arranged in writing in which case the customer shall be liable to pay for the goods by the end of the month following the month of invoice. If payment is by cheque, payment shall be deemed to have been paid when, and only when, the cheque is cleared by the bank on which it is drawn. The granting of credit is conditional upon the purchaser accepting the terms and conditions of sale of Auskay International, the submission of trade references and when necessary a signed personal guarantee. Auskay International reserves the right to refuse credit facilities to any purchaser. Time shall be of the essence in respect of the payment of amounts due. The customer shall pay interest on overdue amounts at the rate of 1.5% per month from the date the payment is due to the date on which payment is received by Auskay International. If the customer fails to pay as herein provided Auskay International may suspend deliveries, terminate contracts in relation to undelivered goods, terminate all credit facilities, and institute legal action for recovery of outstanding amounts and costs incurred. The customer shall pay to Auskay International on demand all costs and expenses including legal costs incurred by Auskay International in the collection of any overdue account and the recovery of the goods pursuant to powers herein contained.
4. CANCELLATION: An order accepted by Auskay International shall not be cancelled by the customer without the written consent of Auskay International. Where a cancellation is so accepted by Auskay International, the customer shall pay to Auskay International all costs incurred by Auskay International in performing the contract up to the date of Auskay International acceptance of such cancellation.
5. DELIVERY: In the event of the customer returning goods, or failing to accept any delivery of the goods tendered, in accordance with the contract, Auskay International shall be entitled to invoice the customer for the goods so tendered and to treat the remainder of the contract (if any) as cancelled by the customer under Condition 4 hereof. Auskay International shall be entitled to store at the risk of the customer, any goods which the customer refuses or fails to take delivery of. The customer shall in addition to the invoice prices therefore, and without prejudice to any other damaged goods for which it may be liable, pay all costs of such storage and any additional costs for carriage or whatsoever costs incurred as a result of failure to take delivery which the seller may incur within 60 days of such refusal or failure. Small deviations or variation from particular goods shall not give rise to any claims. Auskay International will not be liable for any failure to deliver goods by any specified date and the purchaser will not be entitled to terminate or cancel the contract for goods by reason of any failure by Auskay International to deliver by any specified time.
6. SPECIFICATIONS BY THE CUSTOMERS: The customer indemnifies Auskay International against all claims, costs, damages and expenses incurred by Auskay International or for which Auskay International may become liable as a direct result of the carrying out of work on or to the goods in accordance with the requirements of specifications the customer requires, including any infringement or alleged infringement of any patent or other industrial or intellectual property or right vested in any person, firm, company or body.
7. VARIATION OF DESIGN: Auskay International hereby reserve the right at any time to make such alterations to the specifications, design or construction to the goods as Auskay International shall in it's own discretion deem fit to, provided always that goods shall remain of merchantable quality.
8. LICENCES OF CONSENT: If any license or consent of any Government or other authority shall be required for the importation, acquisition or use of goods, the customer shall obtain the same at its own expense and, if necessary or so required produce evidence of the same to Auskay International on demand.
9. PROPRIETORY INFORMATION: The supply of goods hereunder, shall not confer any right upon the customer to use any Auskay International trade mark, and at all times such trade mark shall remain the property of Auskay International. The purchaser acknowledges any intellectual property rights relating to goods and services, including but not limited to design details, specifications, documentations, drawings and other information is owned or asserted by Auskay International and agrees not to infringe those intellectual property rights or challenge the validity thereof.
10. TITLE: Property in the goods supplied by Auskay International to the customer will not pass to the customer until such time as all goods supplied by Auskay International to the customer have been paid in full.
11. GUARANTEE: Auskay International guarantee the quality of goods supplied for a period of twelve months from the date of delivery to the customer, except for VCR heads which are guaranteed in accordance with the manufacturers warranty. Auskay International will, at its discretion, replace free of charge or repair defective goods so delivered, save that Auskay International shall not be liable in the event of direct or indirect defects arising from fair wear and tear in use of the goods or from misuse, or from use from purposes other than which was intended, of the goods by the customer, Return of product to Auskay International under warranty is at the expense of the customer.
12. LIABILITY: The goods as set out in Auskay International specification, are only intended to reduce the risk of loss and damage to property and injury to persons in, or on, or near the premises of the customer to the extent that is reasonably practical by use of such goods. Auskay International gives no understanding to the customer that any particular loss, damage or injury can and will be prevented by the use of the goods.
13. COMPLAINT: Any complaints regarding the quality of goods supplied must be made in writing to Auskay International within 7 days of delivery of the goods. Any goods subject to a customers claim shall be preserved intact and made available for inspection by Auskay International. Whether or not products are inspected by Auskay International the return of goods to Auskay International shall be at the customers expense except where Auskay International has agreed in writing to their return, provided always that goods returned to Auskay International are in the same order and condition as that in which they were delivered. If Auskay International is satisfied that the goods are of inadequate quality Auskay International may replace them, or reimburse the customer to the extent of the amount originally charged. The quantum of any claims made by the customer for product of defective workmanship supplied by Auskay International or any other losses or damages incurred by the customer as a result of any act or omission of Auskay International shall be limited to the lesser of the price charged for the goods or the actual amount of the loss or damage incurred.
14. CREDITS: Return of goods for credit shall be made in writing within seven days of receipt of delivered goods. Acceptance of goods is at the sole discretion of Auskay International and goods shall only be accepted if in 'as new' condition. The goods shall be subject to a restocking fee of at least 10%. No credits will be accepted unless supplied with a copy of the original invoice. All goods held by Auskay International at the request of the purchaser shall be subject to a storage fee of 2% per month or part thereof.
15. PRICE BOX: The prices listed inclusive of tax and exclusive of tax have no relationship. They have been provided only as a guide. Auskay International prices may vary at any time without notice.
16. DELAY-FORCE MAJEURE: Auskay International shall not be liable for any loss sustained by the customer through delay in delivering the goods ordered where such delay shall have been caused by or arise from force majeure (strikes, shortages of labour or materials, riots, civil commotion, fire, flood, drought, loss, delay at sea, break-out of war).
17. TERMINATION: If the customer enters into a deed of arrangement or commits an act of bankruptcy or compounds with his creditors or, if a receiving order is made against him or (being a company) it passes a resolution for voluntary winding up (other than for the purpose of amalgamation or reconstruction ) or shall have a petition for winding up presented against it, or if a receiver shall be appointed for the whole or any part of its undertaking, or if circumstances shall make or suffer any similar action in consequence of debt or shall commit breach of any part of the contract terms and conditions or is in breach of payment by more than 14 days, then Auskay International may stop any goods or equipment in transit and suspend deliveries and any further performance of the contact and without prejudice to the generality of the foregoing any notice in writing to the customer forthwith determine the contact without prejudice to any existing claims at the time of such termination.
18. WAIVER: The failure by either party to the contract, to exercise or enforce any rights conferred by the contract, shall not be deemed to be in waiver of any such right to operate so as to bar the exercise or enforcement thereof at any time or rimes thereafter.
19. CONSEQUENTIAL LOSS: Auskay International liability to the customer for defective goods, shall be limited to and will not exceed that set out in paragraph 11 above. Auskay International shall not be liable for consequential loss however arising from such defects.
20. NOTICE: Any notice required to be given hereunder in writing shall be deemed to have been duly given, if sent by pre-paid first class post of facsimile addressed to the party concerned at his principle place of business or last known address.
21. GOVERNING LAW: The contract shall, in all aspects, be governed by and constructed and interpreted in accordance with the laws of the Commonwealth of Australia and any dispute or legal action for the recovery of monies may be taken out under the jurisdiction of a court in a State or Territory at the discretion of Auskay International.
22. INTRPRETATION: Where herein, words importing the singular number are used, they shall include the plural number and singular number respectively, and where herein are words used importing the masculine gender, they shall include feminine or neuter gender respectively.
23. FREIGHT: Unless Auskay International make other arrangements with the purchaser, the purchaser shall be responsible to arrange and pay for freight from Auskay International place of business. If the purchaser requests Auskay International to arrange transport on his behalf, the freight costs involved will be charged as a separate item.
24. RISK IN GOODS TO PASS TO BUYER: The purchaser shall be responsible for all loss, damage or deterioration to the goods from any cause whatsoever once they leave Auskay International place of business, notwithstanding that title to the goods may not have passed to the customer and the customer and the customer shall be solely responsible for any charge or expense incurred. Purchasers should obtain insurance to cover this risk.
25. ENTRY TO PREMISES TO RETAKE GOODS: Until full payment is received Auskay International are irrevocably authorized to enter any premises where the goods are kept and to use the name of the customer and to act on its behalf to recover possession in the goods.
26. CLAIM TO PROCEEDS OF SALE OF GOODS SOLD BY THE CUSTOMER: On the sale by the customer to a sub-purchaser of any goods supplied by Auskay International (whether incorporated into another product or not) the proceeds of such sale shall be held on trust for Auskay International, until such time as all goods supplied by Auskay International to the customer have been paid in full.
27. EXCHANGE RATES AND CUSTOMS: Prices of imported goods are based upon the rates of exchange and customs duty rulings at the date of quotation. The quoted prices may be varied if Auskay International rates change.