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TERMS & CONDITIONS OF SALE
APP means any member, agent or assigns of Associated Panel Products.
Customer means the business identified on the Trade Credit Application and includes the Customer's agents and permitted assigns.
Goods means any goods supplied by APP, including those supplied in the course of providing services.
Services means the services to be provided by APP to the Customer in accordance with a Quote and these terms and conditions.
PPS Law means the Personal Property Securities Act 2009 (Cth) ('PPS Act') and any regulation made at any time under the PPS Act (each as amended from time to time), and any amendment made at any time to any other legislation as a consequence of a PPS Law.
Quote means a written description of the Goods or Services to be provided.
Additional Charge means fees or charges for additional work performed at the Customer's request or reasonably required as a result of the Customer's conduct, calculated in accorance with APP's then current prices, and expenses incurred by APP, at the Customer's request or reasonably required as a result of the Customer's conduct.
Order means a purchase order for Goods or Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties.
Act means the Competition and Consumer Act 2010 (Cth).
General:
These terms and conditions apply to all transactions between the Customer and APP relating to the provision of Goods and Services. This includes all quotations, contracts and variations.
These terms and conditions take precedence over terms and conditions contained in any document of the Customer or elsewhere.
A variation or waiver of a provision of these terms and conditions or a party's consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
APP may amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
Quotes:
APP may provide the Customer with a Quote. Any Quote issued by APP is valid for 30 days from the date of issue.
Unless otherwise expressly agreed in writing, a Quote does not include delivery or installation of the Goods.
Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to APP.
Following provision of a Quote to the Customer, APP is not obliged to commence work until the Quote has been accepted by the Customer. This occurs by the Customer completing an Order form and returning the form to APP.
APP reserves the right the amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. APP will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote to these terms of trade.
An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Act, this estimate is not binding upon APP.
Orders:
Every Order by the Customer for the provision of Goods or Services must be submitted in writing on APP's standard Order form (unless otherwise agreed).
An Order will only be deemed to be placed by the Customer if the Order clearly identifies the Goods or Services ordered and/ or APP's Quote. Any costs incurred by APP in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.
Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
Placement of an Order by the Customer signifies acceptance by the Customer of these terms and conditions and the most recent Quote provided by APP relating to that Order.
APP may in its absolute discretion refuse to provide Goods or Services where:
(i) Goods are unavailable for any reason whatsoever;
(ii) credit limits cannot be agreed upon or have been exceeded; or
(iii) payment for Goods or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of APP, associated with the Customer under the same or another supply contract, has not been received by APP.
An Order cannot be cancelled without the prior written consent of APP. Where an Order is cancelled, the Customer indemnifies APP against any Losses incurred by APP as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
Variations:
The Customer may request that its Order be varied by providing a request in writing to APP. A request for a variation must be agreed to in writing by APP in order to have effect.
If the Customer wishes to vary its requirements after a Quote has been prepared by APP or after the placement of an Order, APP reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by APP in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.
APP has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.
Terms of payment:
APP will issue invoices to the Customer monthly for the provided Goods or Services.
The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
(a) the amount for the Goods or Services (or both) as set out in the Quote and any Additional Charges; or
(b) where no Quote has been provided by APP, APP’s usual charges for the Goods or Services (or both) as described in the Order.
The Customer must pay an invoice Payment for delivered goods is due by the last day of the month following invoice date (the ‘Due Date’).
Payments received from the Customer will be appropriated to the settlement of outstanding accounts in the date order that they were rendered.
Any acquiescence by APP to the failure of the Customer to pay for goods on the Due Date will in no circumstance constitute a waiver by APP of its right to payment on the Due Date nor will it be construed as an agreement to provide credit otherwise than in accordance with these terms.
If any invoice is due but unpaid, APP may withhold the provision of any further Goods or Services until overdue amounts are paid in full.
The Customer is not entitled to retain any money owing to APP regardless of any default or alleged default by APP of these terms and conditions, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the Act.
Interest Payable on Overdue Accounts:
Where the Customer fails to pay an account or part thereof on the Due Date, interest shall be payable to APP on the amount that is overdue during the period that it is overdue at the rate of 2% per month.
All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of APP, are to be paid by the Customer as a debt due and payable under these terms and conditions.
Default by Customer:
Each of the following occurrences constitutes an event of default:
(a) the Customer breaches or is alleged to have breached these terms and conditions for any reason (including, but not limited to, defaulting on any payment due under these terms and conditions) and fails to remedy that breach within 14 days of being given notice by APP to do so;
(b) the Customer, being a natural person, commits an act of bankruptcy;
(c) the Customer, being a corporation, is subject to:
(i) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
(ii) a receiver, receiver and manager or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer's property and undertaking;
(iii) the entering of a scheme of arrangement (other than for the purpose of restructuring); and
(iv) any assignment for the benefit of creditors;
(d) the Customer purports to assign its rights under these terms and conditions without APP's prior written consent; or
(e) the Customer ceases or threatens to cease conduct of its business in the normal manner.
Where an event of default occurs, except where payment in full has been received by APP, APP may:
(a) terminate these terms and conditions;
(b) terminate any or all Orders and credit arrangements (if any) with the Customer;
(c) refuse to deliver Goods or provide further Services;
(d) repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
(e) retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.
In addition to any action permitted to be taken by APP under these terms and conditions, on the occurrence of an event of default all invoices will become immediately due and payable.
Intellectual property Rights:
The Customer warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or Services or has a licence to authorise APP to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Customer to APP for the purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified APP against all losses incurred by APP in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Customer.
Unless specifically agreed in writing between APP and the Customer, all Intellectual Property Rights in any works created by APP on behalf of the Customer vest in and remain the property of APP.
Subject to payment of all invoices due in respect of the Goods or Services, APP grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by APP in connection with the provision of Goods or Services under these terms of trade for the purposes contemplated by the Order.
Dispute:
If the Customer forms the view that the Goods provided do not accord with the order placed: it shall notify APP of this view as soon as practicable; the notification is to be in writing; and the notification shall detail the way in which the Goods provided do no accord with the order placed.
If the Customer fails to advise APP in writing of any fault in Goods or failure of Goods to accord with the Customer's Order within 7 days of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer's Order. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the Act.
The Customer shall be deemed to have accepted the Goods provided if it fails to keep the Goods delivered in the condition they were in when delivered or declines a reasonable request of APP to inspect the Goods.
Risk:
The responsibility for loss of or damage to the goods shall pass to the Customer upon delivery of the Goods to the Customer or its agent or to a destination nominated by the Customer or to a carrier nominated by the Customer.
Advice:
Any advice, recommendation, information, assistance or service provided by APP in relation to the performance, application or appropriateness of use of the goods is given in good faith but is given without liability or responsibility on APP’s part unless the provisions of the ActTrade Practices Act 1974 (‘the Act’) provide otherwise.
Warranties:
APP warrants that: upon payment for the goods in full it will give good title to the goods, the goods delivered are those specified in the invoice, and the goods delivered are free from defects in material and workmanship, except such defects as are normally regarded as being commercially acceptable. All other warranties which would be imported into these terms by statute are negated unless such negation is specifically forbidden by statute.
Exclusions and limitations of liability:
The Customer expressly agrees that use of the Goods and Services is at the Customer's risk. To the full extent allowed by law, APP's liability for breach of any term implied into these terms of trade by any law is excluded.
All information, specifications and samples provided by APP in relation to the Goods or Services are approximations only and, subject to any guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Customer's use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery or to make any claim in respect of them.
APP gives no warranty in relation to the Services provided or supplied. Under no circumstances is APP or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
(a) any Goods or Services supplied to the Customer;
(b) any delay in supply of the Goods or Services; or
(c) any failure to supply the Goods or Services.
Any advice, recommendation, information, assistance or service given by APP in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. APP does not accept any liability or responsibility for any Loss suffered as a result of the Customer's reliance on such advice, recommendation, information, assistance or service.
To the fullest extent permissible at law, APP is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if APP has been advised of the possibility of damages.
The Customer acknowledges that the Goods or Services are not for personal, domestic or household purposes.
The ACL may give to the Customer certain consumer guarantees, which cannot be restricted, limited or varied.
Property:
Property and title in the goods shall remain with APP until such time as: full payment is received for the goods and all other goods supplied by APP including money owing in respect of other transactions between APP and the Customer; or the Customer sells the goods to its customers in the ordinary course of its business. If the Customer fails or if APP believes the Customer may fail to pay for the goods when payment is due APP may re-take possession of the goods.
Where Goods are supplied by APP to the Customer without payment in full, the Customer:
(a) is a bailee of the Goods until property in them passes to the Customer;
(b) irrevocably appoints APP to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of APP with respect to the Goods under applicable law;
(c) must be able upon demand by APP to separate and identify as belonging to APP the Goods supplied by APP from other goods which are held by the Customer;
(d) must not allow any person to have or acquire any security interest in the Goods;
(e) agrees that APP may repossess the Goods if payment is not made within 30 days (or such longer time as APP may, in its complete discretion, approve in writing) of the supply of the Goods; and
(f) the Customer grants an irrevocable licence to APP or its agent to enter the Customer's premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies APP for any damage to property or personal injury which occurs as a result of APP entering the Customer's premises.
Where goods are supplied by APP to the Customer without payment in full of all moneys payable in respect of the goods, and any services provided by APP in respect of those goods, the Customer acknowledges that APP has a right to register and perfect a personal property security interest.
If a PPS Law applies or commences to apply to these terms and conditions or any transaction contemplated by them, or APP determines (based on legal advice) that this is the case, and in APP’s opinion, the PPS Law:
(a) does or will adversely affect APP's security position or obligations; or
(b) enables or would enable APP’s security position to be improved without adversely affecting the Customer,
APP may give notice to the Customer requiring the Customer to do anything (including amending these terms and conditions or execute any new terms and conditions) that in APP's opinion is necessary, to the maximum possible extent, to overcome the circumstances or improve the security position.
The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in APP's opinion APP's security position or obligations under or in connection with these terms and conditions have been or will be materially adversely affected, APP may by further notice to the Customer cancel these terms and conditions. If this occurs, the Customer must pay to APP any money owed to APP by the Customer immediately.
Agency and assignment:
The Customer agrees that APP may at any time appoint or engage an agent to perform an obligation of APP arising out of or pursuant to these terms and conditions. APP has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms and conditions provided that the assignee agrees to assume any duties and obligations of APP owed to the Customer under these terms and conditions.
The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms and conditions without the prior written consent of APP.
Delivery:
Any advice given as to the date of intended delivery is given subject to the goods ordered being available and APP having the capacity to effect delivery on that date.
Delivery by instalments:
An agreement to deliver goods in instalments shall be deemed a separate agreement for sale subject hereto for each instalment.
Product return:
For excess stock or over-ordering, product may be returned to APP within 30 days of taking delivery of the order, if it is in original condition, with proof of purchase. There will be a 15% restocking fee for this service. NB: No return on products that are Made to Order, special orders, or project priced order due to change of mind, with the exception of where returns are made in accordance with consumer guarantees, or otherwise as required by law.
Force majeure:
If circumstances beyond APP's control prevent or hinder its provision of the Goods or Services, APP is free from any obligation to provide the Goods or Services while those circumstances continue. APP may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
Circumstances beyond APP's control include, but are not limited to, unavailability of materials or components, strikes, lockouts, lockdowns, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
Additional Charges:
APP may require the Customer to pay Additional Charges in respect of Costs incurred by APP as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by APP in order for it to provide the Goods or Services within the specified time frame (if any).
The imposition of Additional Charges may also occur as a result of:
(a) cancellation by the Customer of an Order where cancellation results in Loss to APP;
(b) storage costs for Goods not collected from APP within one week of the date on which the Goods are manufactured, fabricated, created or formed;
(c) photocopying, courier, packing or handling charges not included in the Quote;
(d) Government or council taxes or charges not included in the Quote; or
(e) additional work required by the Customer or any other occurrence which causes APP to incur costs in respect of the Customer's Order additional to the quoted cost.
Termination:
APP’s agreement to continue to provide Goods and/or Services shall always be conditional upon it being satisfied of the Customer’s ability to pay and comply with these terms and conditions.
If APP ceases to be so satisfied it may suspend and/or terminate deliveries and shall not be liable in any way for any claim, damage, expense or cost arising therefrom and all monies then outstanding by the Customer shall immediately become due and payable and recoverable. In addition to the express rights of termination provided in these terms and conditions, a party may terminate this agreement by giving 30 days written notice to the other party.
Notices:
A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on the Trade Credit Application or a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee; sent by fax to the fax number of the addressee, with acknowledgment of receipt from the facsimile machine of the addressee; or sent by email to the email address of the addressee.
A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the fifth business day after posting; or if sent by fax or email before 5pm one business day, on the day it is sent and otherwise on the next business day.
A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.
Indemnity:
The Customer indemnifies and keeps indemnified APP, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against APP or, for which APP is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these terms and conditions.
This includes, but is not limited to, any legal costs incurred by APP in relation to meeting any claim or demand or any party or party legal costs for which APP is liable in connection with any such claim or demand.
This provision remains in force after the termination of these terms and conditions.
The Customer indemnifies APP against any claim for damage arising from the entry of its delivery vehicles on to the property nominated for the delivery of the goods.
Jurisdiction:
This contract shall be governed by the laws of the state or territory in which the office of APP specified on this form is located, and APP and the Customer hereby agree to submit to the non-exclusive jurisdiction of the courts of that state or territory.
Costs:
Subject to any relevant legislation, the Customer will pay all expenses (including legal solicitor/client costs) which are incurred, or will be incurred, by APP in recovering outstanding monies from the Customer, any such amounts shall be recoverable by APP from the Customer as liquidated damages.
GST:
The Customer and APP agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
Sales tax:
The Customer is liable to pay any sales tax ultimately held to by payable where it has incorrectly furnished a Certificate of Conditional Exemption or written quotation of the Sales Tax Certificate number.
Severance:
If any provision of these terms and conditions at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
In the event that it is held that one or more of these terms are not enforceable, the remaining terms shall apply between the Buyer and APP.
Non-Waiver of rights:
A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
Agreement:
These terms and conditions represent the entire agreement between APP and the Customer, and any alterations or additions must be in writing signed by APP and the Customer.
These terms and conditions supersede all oral and written negotiations and communications by and on behalf of either of the parties.
In entering into this agreement, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by APP or any of its employees or agents relating to or in connection with the subject matter of these terms and conditions.
WARNING!
APP's products contain combinations of processed wood, formaldehyde resin and wax. Exposure to wood dust and formaldehyde may cause irritation to eyes, respiratory system and skin, and may cause sensitization by inhalation and skin contact (eg: asthma and dermatitis). Inhalation of wood dust and formaldehyde may cause cancer.
Work and storage areas must be well ventilated and kept clean. Sawing, sanding and routing equipment must be fitted with dust extractors. Levels of wood dust and formaldehyde must be kept below the Exposure Standards recommended by WorkSafe Australia. When handling, working or cleaning up, wear protective clothing and gloves. Wash skin and clothing afterwards. A dust mask conforming with Australian Standards AS1715 and AS1716 and eye protection conforming with AS1337 are recommended and must be word if the levels of wood dust or formaldehyde exceed WorkSafe Australia Exposure Standards.