314
www.aapindustries.com.au
[24] TERMS AND CONDITIONS
TERMS AND CONDITIONS OF SALE - AAP INDUSTRIES PTY LIMITED
1. INTERPRETATION
In these Terms and Conditions and in any Contract to which these Terms and Conditions apply,
unless inconsistent with the context:
a) AAP means AAP Industries Pty Limited (ACN 000 402 826) or such other company related
to AAP which accepts the Purchase Order;
b) Act means the Competition & Consumer Act 2010;
c) Cash Rate Target means the percentage specified by the Reserve Bank of Australia as cash
rate target.
d) Claim means any claim, demand, action or proceeding;
e) Collateral has the meaning given under the PPSA and in particular for the purposes of
this Contract, the personal property that is not used predominantly for personal, domestic
or household purposes as identified in clause 8 hereof to which the Security Interest has
attached;
f) Conditions means these Terms and Conditions;
g) Contract means the contract between AAP and the Purchaser for or in relation to the sale
and purchase of Goods and/or Services;
h) Goods means any item of whatsoever nature which is sold or to be sold by AAP to the
Purchaser;
i) Intellectual Property means all trade marks, patents, registered designs, copyright, logos,
designs, drawings and software;
j) PPSA means the Personal Property Securities Act 2009 as amended;
k) PPS Register means the personal property securities register established under section 146
of the PPSA;
l) Prescribed Terms means any terms, conditions, guarantees and warranties which the Act
and any other law expressly provides may not in respect of the Contract be excluded,
restricted or modified, or may be excluded, restricted or modified only to a limited extent.
The following statement only applies to a Consumer Sale of Goods or Services as defined in
the Act:
“AAP’s Goods come with guarantees that cannot be excluded under the Australian
Consumer Law. You are entitled to a replacement or refund for a major failure and for
compensation for any other reasonable foreseeable loss or damage. You are also entitled
to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the
failure does not amount to a major failure”;
m) Price means the price of the Goods and/or Services as agreed by the Purchaser and AAP at
the time the Contract is formed pursuant to clause 2 below;
n) Purchaser means the Purchaser on the Purchase Order;
o) Purchase Order means an offer by the Purchaser for the purchase of Goods and/or
Services;
p) Security Interest has the meaning given under the PPSA;
q) Services means all or any part of the services to be provided by AAP pursuant to the
Contract;
r) Standard Specifications means AAP’s standard specification for the Goods current at the
time the Goods are delivered to the Purchaser. Copies of the Standard Specifications are
available upon request from AAP;
s) Words importing the singular number shall be deemed to include the plural and vice versa.
Words importing the male gender shall be deemed to include the female and neuter gender
and vice versa; and
t) The headings in these Conditions are provided for convenience only and do not effect the
interpretation thereof.
2. GENERAL
a) The Contract is formed by AAP’s acceptance of the Purchase Order. Written acceptance
of the Purchase Order by AAP or commencement of performance of any work or services
pursuant to the Purchase Order by AAP shall constitute acceptance of the Purchase Order.
b) All Purchase Orders supplied by the Purchaser are subject to acceptance by AAP and no
Contract between AAP and the Purchaser comes into existence until AAP accepts the
Purchase Order.
c) These Conditions apply to all Contracts entered into between AAP and the Purchaser.
d) Subject to any Prescribed Terms, these Conditions embody the sole Terms and Conditions
of the Contract between AAP and the Purchaser and supersede all other conditions and
agreements between the parties, unless expressly amended in writing by AAP.
e) These Conditions shall without further notice apply to all future transactions between AAP
and the Purchaser in relation to the sale and purchase of Goods and/or Services, whether
or not this document is delivered or executed in the course of the transaction.
f) For the avoidance of doubt, none of the terms and conditions contained in any document
or other instrument supplied by or on behalf of the Purchaser (including without limiting the
foregoing those included in a Purchase Order or like document from the Purchaser) shall
apply to or form part of the Contract and any such terms and conditions by the Purchaser
are expressly rejected by AAP, except and to the extent otherwise agreed in writing by AAP.
g) No variation or abrogation of these Conditions shall be effective unless it is evidenced in
writing signed on behalf of AAP.
h) These Conditions supersede all terms and conditions of sale previously issued by AAP.
3. PRICE
a) The Price will be fixed from the date the Contract is formed.
4. GOODS AND SERVICES TAX
In this clause:
a) GST refers to Goods and Services Tax under a New Tax System (Goods and Services) Act
1999 (GST Act) and the terms used have the meaning as defined in the GST Act.
b) The Price and all other amounts agreed to be paid by the Purchaser to AAP, is exclusive of
GST.
5. PAYMENT
a) Unless otherwise agreed in writing by AAP, payment by the Purchaser to AAP will be made
on or before the last day of the month following the month in which the invoice was issued
by AAP to the Purchaser.
b) Time for payment of the Price for the Goods and/or Services shall be of the essence of the
Contract and if the Purchaser fails to pay the Price when due AAP may treat the Contract as
repudiated by the Purchaser or may, unless payment in full is made, suspend delivery of the
Goods the subject of the Contract and any Goods the subject of any other Contract with
the Purchaser without incurring any liability whatsoever to the Purchaser in respect thereof.
In addition, without prejudice to such other rights of AAP, the Purchaser shall (if so required
by AAP) pay interest to AAP on the outstanding amount of the Price at the rate equal to the
Cash Rate Target as at the date invoice was issued by AAP to the Purchaser increased by
two (2) percentage points until the Price is paid in full.
c) Notwithstanding any rights of lien to which AAP may otherwise be entitled, AAP shall have
a specific lien (including a right of sale) over the Goods the subject of the Contract and any
Goods the subject of any other contract with the Purchaser until the Price of the Goods has
been paid in full. The Purchaser shall not be entitled to make any deduction from the Price
of the Goods in respect of any off set or counter claims.
d) If the Purchaser defaults in payment or breaches these Conditions then it will be liable for
all costs incurred by AAP and will indemnify AAP against any loss, liability, charge, expense,
outgoings or payment which AAP suffers, incurs or is liable for in respect of the recovery of
moneys owing by the Purchaser to AAP.
6. DELIVERY
a) Any time or date named and accepted by AAP for completion, delivery, despatch, shipment
or arrival of the Goods or for tender of any documents is an estimate only and does not
constitute a condition of the Contract or part of the description of the Goods and is not of
the essence of the Contract.
b) Unless otherwise stated in writing AAP may make partial deliveries or deliveries by
instalments in any amount it may determine and each such partial delivery or delivery by
instalments shall be deemed to be a separate Contract and these Conditions shall apply to
each partial delivery or delivery by instalments.
c) The Purchaser shall notify AAP within 7 days of delivery of any shortfall in or loss or damage
to Goods delivered. Failure to so notify shall, subject to the requirements of any Prescribed
Terms, disentitle the Purchaser to any remedy in respect to the shortage, loss or damage.
7. RISK AND TITLE
a) Except where AAP is storing the Goods on behalf of the Purchaser, AAP will bear all risks
for the Goods until the earlier of delivery to the Purchaser’s address or collection by the
Purchaser from AAP’s premises. The Purchaser will bear all risks for the Goods where AAP
stores the Goods on behalf of the Purchaser.
b) Property and title in the Goods supplied by AAP to the Purchaser will not pass to the
Purchaser until such time as the Goods the subject of the Contract and all other Goods
supplied by AAP to the Purchaser have been paid for in full. Until that time, the Purchaser
shall store the Goods, including Goods into which the supplied Goods have been mixed, in
such a manner as to show clearly that they are the property of AAP and shall upon AAP’s
demand deliver up such Goods to AAP. In default of such delivery AAP may by its servants
and agents enter the Purchaser’s premises at any time without notice to repossess the
Goods.
c) Subject to the PPSA, until such time as the Goods have been paid for in full the Purchaser
is at liberty to sell the Goods, in the ordinary course of its business, and the Purchaser shall
hold the proceeds thereof in trust for AAP and promptly account to AAP for those proceeds
in payment of the Price for the Goods.
d) The Purchaser and AAP agree that the provisions of this clause apply notwithstanding any
agreement between the parties under which AAP grants the Purchaser credit.
8. PERSONAL PROPERTY SECURITIES ACT 2009
a) The terms “Collateral”, “Debtor”, “Financing Statement”, “Financing Change Statement”,
“Grantor”, “Proceeds”, “Secured Party”, “Security Agreement” and “Security Interest” have
the meanings given in the PPSA.
b) The Purchaser acknowledges and agrees that by accepting these Conditions which form
part of the Contract and constitute a Security Agreement that covers the Collateral for the
purposes of the PPSA:
i) AAP holds (as Secured Party) a Security Interest over all of the Goods and all other
present and after acquired Goods supplied by AAP to the Purchaser (Goods) and any
Proceeds of the sale of those Goods (“Collateral”);
ii) that any purchase by the Purchaser on credit terms from AAP will constitute a purchase
money security interest as defined under section 14 of the PPSA (“PMSI”);
iii) the PMSI granted herein will continue to apply to any Goods coming into existence or
proceeds of sale of Goods coming into existence;
iv) AAP will continue to hold a Security Interest in the Goods in accordance with and
subject to the PPSA, notwithstanding that the goods may be processed, commingled or
become an accession with other goods;
v) any AAP Security Interest will be a continuing and subsisting interest in the Collateral
with priority to the fullest extent permitted by law over all other registered or unregistered
Security Interest;
vi) until title in the Goods pass to the Purchaser, it will keep all Goods supplied by AAP
free and ensure all such Goods are kept free of any charge, lien or Security Interest and
not otherwise deal with the Goods in a way that will or may prejudice any rights of AAP
under the Contract or the PPSA; and
vii) in addition to any other rights under these Conditions or otherwise arising, AAP may
exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the
PPSA including, without limitation, entry into any building or premises owned, occupied
or used by the Purchaser, to search for and seize, dispose of or retain those Goods in
respect to which the Purchaser has granted a Security Interest to AAP.
c) The parties acknowledge that AAP is entitled to register its interest in the goods supplied or
to be supplied to the Purchaser under these Conditions on the PPSA Register as Collateral.
d) The Purchaser undertakes to:
i) sign any further documents and provide such information which AAP may reasonable
require to register, amend or update a Financing Statement or Financing Change
Statement in relation to a Security Interest on the PPS Register;
ii) indemnify and upon demand reimburse AAP for all expenses incurred in registering a
Financing Statement or Financing Change Statement on the PPS Register or releasing
any Security Interests;
iii) not register or permit to be registered a Financing Change Statement in the Collateral
without the prior written consent of AAP; and
iv) provide AAP not less than 7 days prior written notice of any proposed change in the
Purchaser’s name, address, contact numbers, business practice or such other change
in the Purchaser’s details registered on the PPS Register to enable AAP to register a
Financing Change Statement if required.
e) AAP and the Purchaser agree that sections 96, 125 and 132(3)(d) and 132(4) of the PPSA
do not apply to the Security Agreement created under this Contract.
f) The Purchaser hereby waives its rights to receive notices under sections 95, 118, 121(4),
130, 132(3)(d) and 132(4) of the PPSA.
g) The Purchaser waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of
the PPSA.
h) Unless otherwise agreed in writing by AAP, the Purchaser waives its right to receive a
verification statement in accordance with section 157 of the PPSA.
i) The Purchaser shall unconditionally ratify any actions taken by AAP under this clause 8.
j) This clause 8 will survive the termination of the Contract to the extent permitted by law.
1 3