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Terms and Conditions of Sale

Terms and Conditions of contract and trade

1. Definitions

  1. Auroz means Auroz Pty Ltd its successors and assigns or any person and/or entity acting on behalf of and with authority of Auroz Pty Ltd.
  2. Client means the person/s and/or entity purchasing goods and/or services.
  3. Price means the price for the Goods and/or Services provided by Auroz as agreed between Auroz and the Client.
  4. Goods and/or Services means all Goods and Services supplied by Auroz at the Client’s request to the Client or to any third party designated by the Client to accept goods and/or services from Auroz on the Client’s behalf (where the context so permits the terms Goods or Services shall be interchangeable for the other).

2. Application of provisions

  1. These conditions supersede all previously agreed terms for the supply of goods and/or services by Auroz and may only be altered by written agreement signed by both Auroz and the Client.
  2. The placing of an order for goods and/or services, after these conditions have been made available to the Client, will constitute acceptance by the Client Jointly and severally of these terms and conditions as the terms and conditions upon which goods and/or services are rendered to the Client.

3. Pricing

  1.  A price as stated in the Auroz Quotation remains in effect for the period stipulated in the quotation. Upon expiration of the quote validity period the Client must obtain a new quotation from Auroz prior to compiling the client’s purchase order.
  2. Unless otherwise stipulated and agreed by both the Client and Auroz in writing all money denominations shall be in Australian Dollars.
    • When the Client and Auroz have agreed in writing that the currency denomination shall be other than Australian Dollars, any and all currency exchange risk shall be at the Client’s care. Auroz shall be held blameless for any and all losses incurred by the Client for currency exchange risk.
    • Auroz shall be held blameless for any and all losses incurred by the Client for currency exchange risk in the event that dispatch and/or shipment is delayed due to circumstances beyond Auroz’s control causing the clients exchange cover to expire. Auroz will notify the Client of any such delays as soon as Auroz has been made aware, in order for the Client to update the Client’s exchange risk.
  3. The Client must pay the price for the goods (including any GST) quoted by Auroz; where no price is quoted, the current price (including any GST) charged by Auroz at that time.
  4.  Estimated prices are subject to change. A Purchase Order from a client will not be accepted based on an Estimate. A Purchase Order from a client must be matched to an Auroz Quotation.
  5. Auroz reserves the right to amend the price in the event that:
    • the Client requests a variation to the Goods and/or Services originally quoted and/or any special instruction or modifications to specifications from the Client. Any and all such changes shall require a separate purchase order from the Client and a revised quotation from Auroz. In the event that Auroz has already procured the goods from Auroz’s supplier against the Client’s original order, then the Client shall be liable to make payment to Auroz for all components no longer required from the original order.
    • in the event of increases to Auroz which are beyond Auroz control in the cost of taxes, levies, freight and insurances, labour and materials.

4. Payment methods and term of payment

  1. At Auroz’s sole discretion a non-refundable deposit may be required upon acceptance of Auroz’s quotation of an amount equal to no less than ten percent (10%) of the quoted price.
  2. Payment terms shall be as shown in Auroz’s quotation and may be as follows:
    • on delivery of goods.
    • by way of instalments /progress payments in accordance with Auroz payments schedule as detailed on Auroz quotation.
    • the date specified on any invoice as being the due date for payment.
    • net against invoice.
  3. Payment may be made by electronic funds transfer (on-line banking), or by any other method as agreed in writing, between the Client and Auroz. Credit card payments (American Express, Visa and MasterCard) are subject to surcharges, due to market fluctuations surcharges will be notified on the Client’s request.
  4. Unless otherwise stated the price is ex GST. In addition to the price the Client must pay an amount equal to any GST Auroz must pay for the supply by Auroz under this or any other agreement for the sale of Goods and/or Services. The Client must pay GST, without deduction or set off of any other amounts at the same time and on the same basis as the Client pays the Price. The Client must in addition pay any other taxes, duties or levies that may be applicable in addition to the Price except where they are expressly included in the price.

5. Delivery of Goods

  1. Delivery of the goods is taken as to have occurred at the time:
    • the Client or its nominated carrier takes possession of the Goods at Auroz premises, or
    • Auroz or Auroz’s nominated carrier delivers the Goods to the Client’s nominated delivery address even if the Client is not present at the address.

    The cost of delivery at Auroz sole discretion is either included in the Price or is in addition to the Price.

  2. The Client must take delivery either by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Client is unable to accept delivery as arranged then Auroz shall be entitled to charge a reasonable fee for redelivery and/or storage. The storage fee shall be an amount equal to no less than twenty five dollars ($25.00) per pallet.
  3. Any and all delivery schedules given by Auroz to the Client are estimates only. The Client must still accept delivery of the Goods even if late and Auroz will not be held liable for any loss or damage incurred by the Client as a result of the delivery being late. Auroz cannot be bound by lead times decreed by the Client if the supply of selected materials are delayed and as such Auroz shall not be liable to compensate the Client for such delay caused by the suppliers delivery time frame.
  4. Force Majeure ; neither party shall be held responsible for any delay or failure in performance of any part of any transaction between Auroz and the Client to the extent such delay or failure is caused by events beyond such party’s reasonable control, including, but not limited to such as fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, terrorism, insurrection, sabotage, epidemic, quarantine restriction, labour dispute Labour shortage, inability to secure materials, transportation embargo or failure or delay in transport, act or omission (including laws, regulations, Disapprovals or failures to approve) of any third person (including but not limited to, subcontractors, customers, government or government agencies). Each party will endeavour to give the other party reasonable notice of delay.

6. Risk

  1. The risk of damage or loss of the Goods passes to the Client on delivery and as such the Client must insure the Goods on or prior to delivery.
  2. In the event that the Client requests Auroz to leave the Goods at an unattended location or outside Auroz premises for later collection then such Goods shall be left at the Client’s sole risk.

7. Compliance to Laws

  1. The Client and Auroz shall comply with the provisions of all regulations, statutes and bylaws of government, local and other public authorities that may be applicable to the Goods and/or Services.

8. Title

  1. It is agreed by Auroz and the Client that ownership of the Goods shall not pass until:
    • the Client has paid all monies owing to Auroz, and
    • the Client has met all of its other obligations to Auroz.
  2. Payments shall not be deemed to have been received until that form of payment has been honoured, cleared or recognized by Auroz.
  3. it is further agreed by the Client and Auroz that:
    • until ownership of the Goods passes to the Client in accordance with clause 9.1 the client is only a Bailee of the Goods and must return the Goods to
      Auroz on request.
    • the client holds the benefit of the insurance of the Goods in trust for Auroz and in the event the of the Goods being lost, damaged or stolen, the Client
      must pay to Auroz the proceeds of any insurance.
    • the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. In
      the event that the Client disposes, sells or parts with possession of the Goods then the Client must hold the proceeds of any and/all such action in trust
      for Auroz and must pay or deliver the proceeds to Auroz on demand.
    • the Client irrevocably authorizes Auroz without impediment to enter any premises where Auroz believes the Goods are located and recover
      possession of the Goods.
    • Auroz reserves the right to recover possession of any Goods in Transit regardless of whether delivery has occurred or not.
    • the Client shall not charge or grant an encumbrance over the Goods nor grant or give away any interest in the Goods while they remain the property of Auroz..
    • Auroz may commence proceedings to recover the Price of the Goods sold not withstanding that ownership has not passed to the Client.

9. Personal Property securities Act 2009 (“PPSA”)

  1. In this clause financing statement, financing change statement, security agreement and security interest has the meaning designated to it by the PPSA.
  2. By agreeing to these terms and conditions in writing the Client agrees and acknowledges that these terms and conditions constitute a security agreement for the purpose of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by Auroz to the Client.
  3. The Client commits to:
    • sign and complete any further documents promptly and/or provide additional information that Auroz may reasonably require to:
      • register a financing statement or financing changes statement in relation to a security interest on the Personal Property Securities Register.
      • register any other documents that may be required to be registered by the Personal Property Securities Register.
    • Indemnify, and on demand by Auroz, reimburse Auroz for all expenses incurred in registering a financing statement or financing change statement on
      the Personal Property Securities Register established by the PPSA 2009 or releasing any Goods change thereby.
    • not register a financing change statement in respect of a security interest without the prior written consent of Auroz.
    • not register, or permit to be registered, a financing statement or a financing change in relation to the Goods in favour of a third party without the prior
      written consent of Auroz.
    • immediately advise Auroz of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds
      derived from such sales.
  4. Both Auroz and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions
  5. The Client waives their right to receive notices under section 95, 118, 121(4), 130, 132(3) (d) and 132 (4) of the PPSA.
  6. The Client waives their rights as a grantor and/or debtor under sections 142 and 143 of the PPSA.
  7. Unless otherwise agreed in writing by Auroz, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
  8. The Client must unconditionally ratify any actions taken by Auroz under clauses11.3 to 11.5.
  9. subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

10. Charge and Security

  1. In consideration of Auroz agreeing to supply the Goods and/or services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either currently or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
  2. The Client indemnifies Auroz from and against all Auroz‘s costs and disbursements including legal cost on a solicitor and own client basis incurred in exercising Auroz rights under this clause.
  3. The Client irrevocably appoints Auroz and each director of Auroz as the Clients true and lawful attorneys to perform all necessary acts to give effect to the provisions of this Clause11 including, but not limited to, signing any documents on the Client’s behalf.

11. Competition and Consumer Act 2010 (“CCA”) Defects, Warranties and Returns.

  1. Inspection of the Goods by the Client must be performed on delivery, and the Client must within ten (10) days of delivery notify Auroz in writing of any evident defect/ damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification The Client must allow Auroz to inspect the Goods.
  2. Under applicable State, territory and Commonwealth Law (including without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
  3. Auroz acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
  4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Auroz makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Auroz liability in respect of these warranties is limited to the fullest extent permitted by law.
  5. In the event that the Client is a consumer within the meaning of the CCA, Auroz liability is limited to the extent permitted by section 64A of Schedule 2.
  6. If Auroz is required to replace the Goods under this clause or the CCA, but is unable to do so, Auroz may refund any money the Client has paid for the Goods.
  7. If the Client is not a consumer within the meaning of CCA, Auroz’s liability for any defects or damage in the Goods is:
    • limited to the value of any express warranty or Warranty card provided to the Client by Auroz at Auroz’s sole discretion.
    • limited to any warranty to which Auroz is entitled, if Auroz did not manufacture the Goods.
    • otherwise negated absolutely.
  8. Subject to this Clause 11, returns will only be accepted provided that:
    • the Client has complied with the provisions of Clause 11.1, and
    • Auroz has agreed that the Goods are defective, and
    • the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant), and
    • the Goods are returned in as close a condition to that in which they were delivered as is possible
    • the Client has obtained a Return Authority Number (RAN) from Auroz. This number must appear on all documentation in relation to the returned goods.
    • where goods are returned to Auroz as a result of being supplied by Auroz to the Client in error, damaged, faulty or otherwise subject to warranty claim:
      • goods so returned will be exempt from a restocking fee.
      • the cost of transporting the returned goods shall be at Auroz expense through Auroz’s carrier or, if arranged by the Client, Auroz will cover reasonable
        cost incurred by the Client.
  9. Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, Auroz shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
    • The Client:
      • failing to properly maintain or store the Goods.
      • using the Goods for any purpose other than that for which they were designed.
      • continuing the use of any Goods after any defect becomes apparent or should have become apparent to a reasonably prudent operator or user.
      • failing to follow any instructions or guidelines provided by Auroz.
    • fair wear and tear, any accident, or act of God.
  10. Where goods that have been ordered by the Client and the Client has taken delivery of the ordered goods but the Client then request to return the goods as unwanted to Auroz the following shall apply:
    • goods must be in as new resalable condition, complete with original packaging and accessories.
    • goods so returned will attract a restocking fee of not more than Twenty (20) percent of the original invoice value for the returned item and/or items.
      Auroz will invoice the Client for this restocking fee and as such this restocking fee shall become immediately due and payable by the Client to Auroz.
  11. Notwithstanding anything contained in this clause if Auroz is required by a law to accept a return then Auroz will only accept a return on the conditions imposed by that law

12. Intellectual Property

  1. Where Auroz has designed, drawn or developed goods and/or services for the Client, then the copyright in any designs, drawings and documents relating to the said goods and/or services shall remain the property of Auroz without exception.
  2. The Client warrants that all designs, specifications or instructions given to Auroz will not cause Auroz to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Auroz against any action taken by a third party against Auroz in respect of any such infringement.
  3. The Client agrees that Auroz may (at no cost) use for the purpose of marketing or entry into any completion, any documents, designs, drawings or Goods which Auroz has created for the Client.
  4. The illegal use of Auroz designs and drawings (intellectual property) by the Client will result in a fee being charged by Auroz to the Client of not less than twenty thousand Australian dollars ($20,000.00) for each and every illegal use of Auroz intellectual property.

13. Default and Consequences of Default

  1. interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at the rate of two and a half percent (2.5%) per calendar month (and at Auroz’s sole discretion such interest shall compound monthly at such rate) after as well as before any judgment.
  2. If the Client owes Auroz any money the Client shall indemnify Auroz from and against all cost and disbursements incurred by Auroz in recovering the debt (including but not limited to internal administration fees, Debt recovery agency fees, legal cost on a solicitor and own client basis, Auroz contract default fee, and Bank dishonor fees).
  3. Without prejudice to any other remedies Auroz may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Auroz may suspends or terminate the supply of Goods, support and/or services; including the suspension and/or cancelation of any and all licensing agreements to the Client. Auroz will not be liable to the Client for any loss or damage the Client suffers because Auroz has exercised its rights under this clause.
  4. Without Prejudice to Auroz’s other remedies at law Auroz shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled; and all amounts owing to Auroz shall, whether or not otherwise due for payment, become immediately payable if:
    • any money payable to Auroz becomes overdue, or in Auroz opinion the Client will be unable to make a payment when it falls due.
    • the Client becomes insolvent, convenes a meeting with its creditors, or makes an assignment for benefit of its creditors, or
    • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

14. Cancellations

  1. Auroz may cancel any contract to which these terms and conditions apply or cancel any delivery at any time before the Goods are delivered by giving written notice to the Client. On giving notice Auroz shall repay to The Client any Money paid by the Client for the Goods. Auroz shall not be liable for any loss or damage whatsoever arising from such cancellation.
  2. In the event that the Client cancels and/or postpones delivery of the Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by Auroz as a direct result of the cancellation and /or postponement (including, but not limited to, any loss of profits).
  3. In the event the Client issues a purchase order for a special and/or customized product and/or service then the said purchase order shall be non-cancellable
  4. Cancellation of orders for Goods made explicitly to the Client’s specifications are non-cancellable without exception.

15. Privacy Act 1988

  1. The Client agrees for Auroz to obtain from a credit reporting agency credit report containing personal credit information about the Client in relation to credit provided by Auroz.
  2. The Client agrees that Auroz may exchange information about the Client with those credit providers either named as a trade referees by the Client or named in a consumer credit reporting agency for following purposes:
    • to assess an application by the Client, and/or
    • to notify other credit providers of a default by the Client, and/or
    • to exchange information with other credit providers as to the status of this credit account, where the Client is in Default with other Credit providers, and/or
    • to assess the creditworthiness of the Client.
  3. The Client understands that the information exchanged can include anything about the Client’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
  4. The Client consents to Auroz being given a consumer credit report to collect overdue payment on Commercial credit (Section 18K(1)(h) Privacy Act 1988.
  5. The Client agrees that personal credit information provided may be used and retained by Auroz for the following purposes (and for other purposes as shall be agreed between the Client and Auroz or required by law from time to time):
  6. cont
    • the provision of Goods, and/or
    • the marketing of Goods by Auroz its agents or distributors, and/or status in relation to the provision of the Goods, and/or
    • analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods, and/or
    • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client, and/or
    • enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
  7. Auroz may give information about the Client to a credit reporting agency for the following purposes:
    • to obtain a consumer credit report about the Client,
    • to allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
  8. The information given to the credit reporting agency may include:
    • personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number),
    • details concerning the Client’s application for credit or commercial credit and the amount requested,
    • advice that Auroz is a current credit provider to the Client,
    • advice of any overdue accounts, loans repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for
      which debt recovery action has been commenced,
    • details of the Client’s overdue accounts, loan repayments and/or any outstanding monies in respect of any default that has been listed,
    • information that, in the opinion of Auroz the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to
      comply with the Client’s credit obligations),
    • advice that cheques drawn by the Client for one hundred dollars ($100) or more have been dishonored more than once,
    • that credit provided to the Client by Auroz has been paid or otherwise discharged.

16. General

  1. The failure by Auroz to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Auroz right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
  2. Auroz complies fully with all government acts stated in these terms and conditions and shall comply with all subsequent amendments, alterations, additions and deletions in relation to those acts in the future.
  3. Subject to clause 11 Auroz shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit suffered by the Client arising out of a breach by Auroz of these terms and conditions (alternatively Auroz liability shall be limited to damages which under no circumstances shall exceed the price of the Goods).
  4. The Client shall not be entitled to offset against, or deduct from the price, any sums owed or claimed to be owed to the Client by Auroz nor to withhold payment of any invoice because part of that invoice is in dispute.
  5. Auroz may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
  6. The Client agrees that Auroz may amend these terms and conditions at any time; If Auroz makes a change to these terms and conditions, that change will take effect from the date on which Auroz notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Auroz to provide Goods to the Client.
  7. The Client acknowledges that Auroz is entitled to presume that any person forwarding instructions from the Client’s office and/or place of business purporting to have the authority to bind the Client to a contract for the supply and delivery of goods and/or Services from Auroz has the authority they claim.
  8. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorizations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
  9. If the Clients are a Trustee, the Directors warrant that they have the authority and power to enter into transactions on behalf of the Trust and personally guarantee the performance of all of the trust’s obligations.
  10. The Client shall give Auroz not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact Phone, Facsimile number email address, or business practice). The Client shall be liable for any loss by Auroz as a result of the Client’s failure to comply with this clause.
  11. these terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales in which Auroz has its principal place of business, and are subject to the jurisdiction of the Parramatta courts in New South Wales.
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