Terms & Conditions of Trade
1. Definitions
1.1 “APC” means Australian Permeable Concrete Pty. Ltd., its successors and assigns or any person acting on its behalf of and with the authority of Australian Permeable Concrete Pty. Ltd.
1.2 “Customer” means the person or company buying Materials or Works as specified in any invoice, document or order, (“Order”) and if there is more than one Customer is reference to the Customer jointly and severally.
1.3 “Materials” or “Works” means all concrete materials or works supplied by APC to the Customer at the Customer’s request from time to time (and where the context so permits the terms ‘Materials’ or ‘Works’ shall be interchangeable for the other).
1.4 “Equipment” means all equipment including any accessories supplied by APC to the Customer (and where the context so permits shall include any supply of ‘Works’). The equipment shall be described on the invoices, quotation, authority to hire, or any other work authorisation form provided by APC to the Customer (“Invoice” or “Order”).
1.5 “Price” means the price payable for the Materials and/or Works as agreed between APC and the Customer in accordance with Clause 4 below.
2. Acceptance
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an Order for or accepts delivery of the Materials/Works.
2.2 These terms and conditions may only be amended with APC’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and APC.
3. Change in Control
3.1 The Customer shall give APC not less than fourteen (14) days prior written notice of any proposed change in the Customer’s details or circumstances (including but not limited to a changes in the Customer’s name, ownership, contact/s, address, phone, email or fax numbers, or business practice). The Customer shall be liable for any loss incurred by APC as a result of the Customer’s failure to comply with this clause.
4. Price & Payment
4.1 The ‘Price’ for the Works shall be as indicated on the Invoice or Order signed and provided by APC to the Customer. APC’s quoted Price will be valid for the period stated in the Invoice or otherwise for a period of not more than thirty (30) days.
4.2 APC reserves the right to change or increase the ‘Price’ if any variation or extension is requested to the Works (“Variation”). Any Variation from the plan of scheduled works or specifications (including but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties such as site access, weather, hard rock barriers below the surface or iron reinforcing rods in concrete or as a result of increases to APC in the cost of materials & labour will be charged for separately on the basis of APC’s supplementary quotation and will be shown as Variations on the invoice. Payment for all Variations must be made in full before completion of the Works.
4.3 At APC’s sole discretion a non-refundable deposit may be required prior to starting the Works.
4.4 Time for payment for the Works being of the essence, the ‘Price’ will be payable by the Customer in one lump sum or by agreed instalments on the date/s specified by APC in the Order and, failing that, by no later than the first day of commencement of the Works.
4.5 Payment may be made by electronic funds transfer (EFT), cheque, bank cheque, credit card (plus a surcharge of three per cent (3%) of the ‘Price’), or by any other method as agreed between the Customer and APC.
4.6 Unless otherwise stated the ‘Price’ does not include GST. In addition to the ‘Price’ the Customer must pay to APC an amount equal to any GST charged by APC under this or any other agreement for the sale of the Works. The Customer must pay GST, without deduction or set off of any amounts, at the same time and on the same basis as the Customer pays the ‘Price’. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the ‘Price’ except where they are expressly included in the Price.
5. Delivery of Materials/Works
5.1 Delivery of the Works is taken to occur at the time APC (or APC’s nominated carrier) delivers the Materials to the Customer’s nominated address, even if the Customer is not present at the address.
5.2 Any costs of delivery are in addition to the ‘Price’.
5.3 The Customer must take delivery by receipt or collection of the Works whenever tendered for delivery. In the event that the Customer is unable to take delivery of the Works as arranged then APC shall be entitled to charge a reasonable fee for the storage and the redelivery of the Materials.
5.4 APC may deliver the Materials or the Works in separate instalments. Costs under this clause shall be invoiced and paid in accordance with the provisions of these Terms.
5.5 Any time or date given by APC to the Customer is an estimate only. The Customer agrees to accept delivery of the Materials and Works even if late and APC will not be liable for any loss or damage incurred by the Customer as a result of delivery being late.
6. Risk
6.1 Risk of damage to or loss of the Materials passes to the Customer on delivery, and the Customer must insure the Materials on or before delivery.
6.2 If any of the materials are damaged or destroyed following delivery but prior to ownership passing to the Customer, APC is entitled to receive the insurance proceeds without the need for any person dealing with APC to make further enquiries.
6.3 If the Customer requests APC to leave Materials outside APC’s premises for collection or to deliver the Materials to an unattended location, then such Materials shall be left at the Customer’s sole risk.
6.4 Where the Customer has supplied Materials for APC to complete the Works, the Customer acknowledges that he accepts responsibility for the suitability of purpose, quality and any faults inherent in the Materials. APC shall not be responsible for any defects in the Works, any loss or damage to the Materials (or any part thereof), however arising from the use of Materials supplied by the Customer.
6.5 The Customer acknowledges that variations of colour and texture are inherent in concrete. APC shall not be liable for any loss, damages, or costs howsoever arising resulting from any variation of the colour or texture of the Materials or the Works between different batches of product.
6.6 Detailed drawings of any Works that will be embedded in the concrete are to be provided to APC prior to commencement of any Works. Whilst all due care will be taken, no liability will be accepted by APC for damage to the Works or any other element embedded in the concrete.
6.7 The Customer acknowledges that the curing time for concrete can be affected by elements such as temperature or the weather, as such APC offers no guarantee as to the length of time the curing process for the Works will take.
6.8 APC offers no guarantee against cracking of concrete Materials or Works.
6.9 Where APC gives advice or recommendations to the Customer or the Customer’s agent, regarding the suitability of the worksite for the laying or installation of the concrete and such advice or recommendations are not acted upon then APC shall require the Customer or their agent to authorise the commencement of the Works in writing. APC shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of Works.
6.10 At the completion of the Works the Customer or the representative of the Customer shall be in attendance and the Works shall then be duly inspected. In the absence of either the Customer or their representative APC shall carry out the necessary inspection and forward a completion report to the Customer. If the Customer does not respond within seven (7) days of receipt of same, then the Customer’s acceptance that the Works have been duly completed shall thenceforth be deemed.
7. Access
7.1 The Customer shall ensure that APC has clear, safe and free access to the site at all times to enable them to undertake the Works. APC shall not be liable for any loss or damage to the site (including without limitation, damage to pathways, driveways, concreted, paved or grassed areas) unless due to the negligence of APC.
8. Underground Locations
8.1 Prior to APC commencing the Works, the Customer must advise APC of the precise location of all underground and above ground utility services at the site and clearly mark out the same. This must include but is not limited to electrical services, gas services, sewer services, pumping services, sewer connections & sludge mains, water mains, irrigation pipes, telephone & data cables and any other services that may be on site.
8.2 Whilst APC will take all care to avoid damage to underground services the Customer agrees to indemnify APC in respect of all and any liability claims, losses, damage, costs and fines as a result of damage to services not precisely located and notified as per clause 8.1.
9. Title to Materials
9.1 APC and the Customer agree that ownership of the Materials shall not pass until:
(a) the Customer has paid APC all amounts owing to APC; and
(b) the Customer has met all of its other obligations to APC.
9.2 Receipt by APC of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
9.3 It is further agreed that:
(a) until ownership of the Materials passes to the Customer in acceptance with clause 9.1, that the Customer is only a bailee of the Materials and absent payment in full must return the Materials to APC on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Materials on trust for APC and must pay to APC the proceeds of any insurance in the event of the Materials being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Materials other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Materials then the Customer must hold the proceeds of any such act on trust for APC and must pay or deliver the proceeds to APC on demand.
(d) the Customer should not convert or process the Materials or intermix them at all, but if the Customer does so then the Customer holds the resulting product on trust for the benefit of APC and must sell, dispose of or return the resulting product to APC as it so directs.
(e) the Customer irrevocably authorises APC to enter any premises where APC believes the Materials are kept and recover possession of the Materials.
(f) APC may recover possession of any Materials in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Materials, nor grant nor otherwise give away any interest in the Materials while they remain the property of APC.
(h) APC may commence proceedings to recover the price of the Materials sold notwithstanding that ownership of the Materials has not passed to the Customer.
10. Personal Property Securities Act 2009 (PPSA)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon accepting these terms and conditions in writing the Customer acknowledges and agrees that these term and conditions constitutes a security agreement for the purposes of the PPSA and creates a security interest in all materials/works that has previously been supplied and that will be supplied in the future by APC to the Customer.
10.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which APC may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA, or
(iii) correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii).
(b) indemnify, and upon demand reimburse, APC for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any materials charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of APC;
(d) not register, or permit to be registered, a financing statement or financing change statement in relation to the materials in favour of a third party without the prior written consent of APC;
(e) immediately advise APC of any material change in its business practices of selling materials which would result in a change in the nature of proceeds derived from such sales.
10.4 APC and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed in writing by APC, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Customer must unconditionally ratify any actions taken by APC under clauses 10.3 to 10.5.
10.9 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.
11. Security and Charge
11.1 To secure the performance by the Customer of its obligations under these Terms and Conditions (including but not limited to the payment all monies):
(a) The Customer, or their directors and each of them, charges, as beneficial owner and as trustee of any Trust, in favour of APC, all the Customer’s right, title and interest in land (held now or in the future, wherever located).
The Customer irrevocably acknowledges that APC may register a caveat over the Customer’s land in respect of this charge. The Customer agrees that immediately upon request by APC the Customer will execute and give to APC a mortgage in registrable form in favour of APC over the Customer’s land and by reason of this agreement to give a mortgage in favour of APC the Customer acknowledges that APC is an equitable mortgagee in respect of the Customer’s or their director’s land.
(b) Where the Customer is a company, the Customer charges the total assets of the company being all present and future property of the company in favour of APC. The Customer irrevocably acknowledges that APC may register a charge over the company in respect of this charge. The Customer agrees that immediately upon request by APC, the Customer will execute and give to APC an instrument of charge in registrable form and all other documents required to effect the charge in favour of APC over the Customer company and by reason of this agreement to give a charge in favour of APC the Customer acknowledges that APC is a charge in respect of the Customer company.
11.2 If the Customer is a trustee of any Trust:
(a) It is bound by these terms and charges the Customer’s land as trustee;
(b) Warrants that it is a proper exercise of the Customer’s authority and power under the trust instrument and at law to trade with APC and to charge the Customer’s land in accordance with these Terms.
11.3 The Customer indemnifies APC from and against all APC’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising APC’s obligations under this clause.
11.4 The Customer irrevocably appoints APC and each Director of APC as the Customer’s true and lawful attorney’s to perform all necessary acts to give effect to the provisions of this clause 11, including but not limited to, signing any document on the Customer’s behalf.
12. Intellectual Property
12.1 Where APC has designed, drawn or developed materials/works for the Customer, then the copyright in any designs, drawings and documents shall remain the property of APC.
12.2 The Customer warrants that all designs, specifications or instructions given to APC will not cause APC to infringe any patent, registered design, copyright or trademark in the execution of the Customer’s order and the Customer agrees to indemnify APC against any action taken by a third party against APC in respect of any such infringement.
12.3 The Customer agrees that APC may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or materials which APC has created for the Customer.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due until the date of payment, at a rate of two and a half per cent (2.5%) per calendar month (and at APC’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement.
13.2 If the Customer owes APC any money the Customer shall indemnify APC from and against all costs and disbursements incurred by APC in recovering the debt (including but not limited to internal administration fees, legal costs, APC’s collection agency fees and bank dishonour fees).
13.3 Without prejudice to any other remedies APC may have, if at any time the Customer is in breach of any obligation (including those related to payment) under these terms and conditions APC may suspend or terminate the supply of materials/works to the Customer. APC will not be liable to the Customer for any loss or damage the Customer suffers because APC has exercised its rights under this clause.
13.4 Without prejudice to APC’s other remedies at law, APC shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to APC shall, whether or not due for payment, become immediately payable if:
(a) any money payable to APC becomes overdue, or in APC’s opinion the Customer will be unable to make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting of its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors, or
(c) a receiver, manager, liquidator (provisional or otherwise) or a similar person is appointed in respect of the Customer or any asset of the Customer.
14. Cancellation
14.1 APC may cancel any contract to which these terms and conditions apply or cancel delivery of Materials or the Works at any time before they are due to be delivered/undertaken by giving written notification to the Customer. On giving such notice APC shall repay to the Customer any money paid by the Customer for the Materials or Works. APC shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of the Materials or Works, the Customer shall be liable for any and all loss incurred (whether direct or indirect) by APC as a direct result of the cancellation (including, but not limited to, any loss of profits).
14.3 Cancellation of orders of Materials/Works made/undertaken to the Customer’s specifications will definitely not be accepted once production has commenced or an order has been placed.
15. Compliance with Laws
15.1 The Customer and APC shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the works.
15.2 The Customer shall obtain (at its own expense) all licences, permits and approvals that may be required for the supply of the Materials and the Works to the Customer’s premises.
15.3 The Customer agrees that the site of the Works will comply with all Workplace Health and Safety rules for building and construction sites and any other relevant standards or legislation.
16. Privacy Act 1988
16.1 The Customer agrees to APC to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit terms provided by APC.
16.2 The Customer agrees that APC may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer, and/or
(b) to notify other credit providers of a default by the Customer, and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers, and/or
(d) to assess the creditworthiness of the Customer.
16.3 The Customer understands that the information exchanged can include anything about the Customer’s credit worthiness, credit standing, credit history or credit capacity that credit providers are permitted to exchange under the Privacy Act 1988.
16.4 The Customer consents to APC being given a consumer credit report to collect overdue payment on commercial credit under section 18K(1)(h).
16.5 The Customer agrees that the personal credit information provided may be used and retained by APC for the following purposes (and for other purposes as shall be agreed between the Customer and APC or required by law from time to time):
(a) the provision of Materials/Work, and/or
(b) the marketing of Materials/Work by APC, its agents or distributors, and/or
(c) analysing, verifying and/or checking the Customer’s credit payment and/or status in relation to the provision of Materials/Works, and/or
(d) the processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer, and/or
(e) enabling the daily operation of the Customer’s account and/or the collection of outstanding amounts in the Customer’s account in relation to Materials/Works.
16.6 APC may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
16.7 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and drivers licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that APC is a current credit provider to the Customer;
(d) advice on any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been commenced;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that in the opinion of APC the Customer has committed a serious credit infringement (that is fraudulent or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more have been dishonoured more than once;
(h) that the credit provided to the Customer by APC has been part or otherwise discharged.
17. Building & Construction Industry Security of Payment Act 2002
17.1 At APC’s sole discretion, if there are any disputes or claims for unpaid Materials or Works then the provisions of the Building & Construction Industry Security of Payment Act 2002 may apply.
17.2 Nothing in this standard terms and conditions agreement is intended to have the effect of contracting out of any of the provisions of the Building & Construction Industry Security of Payment Act 2002 or its related regulations, except to the extent permitted by the Act where applicable.
18. Defects and Warranties
18.1 Subject to clause 18.3 APC will replace, if deemed necessary in its reasonable discretion for falling short of current industry standards, any Materials or Works that do not meet the standard specified in the Materials or Works Order, provided that the Materials/Works may have an acceptable variance.
18.2 Provision of the warranty is subject to:
(a) payment in full in accordance with this Agreement, and
(b) written notice from the Customer within seven (7) days of completion of the Works where it believes the Materials or Works do not meet the Order, with
(c) independent evidence supplied by the Customer to prove that the Materials or Works do not meet the specifications; or
(d) not having use of the Materials or Works in accordance with its intended purpose.
(e) the soil sub-base has a Californian Bearing Ratio (CBR) of greater than 10% and this is verified by an independent Geotechnical Engineer.
18.3 The warranty excludes damage or alteration to Materials or Works arising from circumstances outside APC’s control.
18.4 The Customer warrants to use the Materials in accordance with any instructions provided by APC from time to time.
18.5 To the extent that the law permits, APC excludes all other liability whatsoever to the Customer arising out of or in any way connected with a contract including any liability for consequential losses of any kind howsoever and whether caused by breach of statute, breach of contract, negligence or other tort. Consequential or indirect losses will be taken to include but not limited to:
(a) any loss of income, profit or business;
(b) any loss in the nature of overhead costs; and
(c) any loss of goodwill or reputation.
19. General
19.1 The failure by APC to embrace any provision of the terms and conditions shall not be treated as a waiver of that provision, nor shall it affect APC’s right to subsequently embrace that provision. If any 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.
19.2 These terms and conditions and any contract to which they may apply shall be governed by the laws of Victoria in which APC has its principle place of business and are subject to the jurisdiction of the Courts of that state.
19.3 Subject to clause 18 APC shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by APC of these terms and conditions (alternatively APC’s liability shall be limited to damages which under no circumstances shall exceed the ‘Price’ of the Materials or Works).
19.4 The Customer shall not be entitled to set off against or deduct from the ‘Price’ any sums owed or claimed to be owed to the Customer by APC, nor withhold payment of any invoice because part of that invoice is in dispute.
19.5 APC may license or sub-contract any part of its rights and obligations without the Customer’s consent.
19.6 The Customer agrees that APC may amend these terms and conditions at any time. If APC makes a change to these terms and conditions, then that change will take effect from the date on which APC notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for APC to provide materials/works to the Customer.
19.7 Neither party shall be liable for any default due to an act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or act of nature beyond the reasonable control of either party.
19.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent & that this agreement creates binding & legal obligations on it.