Terms and Conditions

Supply Terms and Conditions – Orders of less than AUD $1,000.00

1. Online Store
(a) These terms and conditions apply to the purchase of Goods from the Online Store which from part of an order with a total Price of less than AUD $1,000.00, are available for immediate delivery and which do not require APS to provide a quote to the Customer.
(b) APS reserves the right to withdraw products from sale from the Online Store, and to amend the price and description of products listed on the Online Store, without prior notice to the Customer. Subject to clause 1(c), any such changes will not affect any prior Purchase Order which has been submitted by a Customer.
(c) While APS will use reasonable endeavours to ensure the description of Goods in the Online Store are accurate in terms of Price, description and availability, APS cannot guarantee that this is always the case. In circumstances where a particular listing contains materially erroneous details, APS reserves the right, after a Purchase Order in relation to that listing has been submitted by a Customer and before the supply of the relevant Goods, to cancel a Supply Agreement and refund the full Price paid by the Customer. Should APS make this election, it will use reasonable endeavours to notify the Customer of the error and refund the Customer in relation to any Price (or part Price) which has been paid, as soon as practicable following submission of the relevant Purchase Order.

2. Purchase Order
(a) A Customer is deemed to have agreed to these terms and conditions and to have entered into a Supply Agreement if they submit a Purchase Order to APS through the Online Store. These terms and conditions apply to any such purchase of Goods.
(b) A Supply Agreement will constitute a binding contract between the Customer and APS which is constituted by the Purchase Order and these terms and conditions.
(c) In consideration of APS supplying the Goods the subject of an online store purchase, the Customer must pay to APS the Price in full at the time it submits a Purchase Order through the Online Store.
(d) Pursuant to the entry into a Supply Agreement, the Customer appoints APS to supply the Goods the subject of the Purchase Order, and the Customer agrees to purchase those Goods for the Price calculated by reference to the details listed on the Online Store, in accordance with the terms and conditions of the Supply Agreement.
(e) If there is any inconsistency between any of the terms and conditions of a Purchase Order and these terms and conditions, the following order of precedence will apply to the extent of the inconsistency: these terms and conditions; and the Purchase Order.

3. Cancellation and defects
The Customer acknowledges and agrees that following entry into a Supply Agreement, it is legally binding and the Customer cannot cancel the Supply Agreement (i.e. for change of mind or any other changed circumstances relating to the Customer) other than with the written consent of APS (which APS may decline to provide in its sole and absolute discretion). Should the Customer believe that any Good is defective, it may notify APS in accordance with APS’s warranty statement, and APS will respond to any such claim in accordance with its warranty statement and all applicable laws.

4. Damage in transit
If APS agrees to deliver Goods to the Customer, any damage to the Goods occurring in transit must be notified in writing to APS (along with reasonable supporting evidence such as photos of the damage) within 7 days following delivery, or such longer period as is reasonable in the particular circumstances of the Supply Agreement. The Customer acknowledges and agrees APS will not be responsible for remedying damage to Goods in transit which is notified to it after this timeframe.

5. APS obligations
Pursuant to a Supply Agreement, APS will:
(a) supply the Goods to the Customer; and
(b) if expressly agreed by APS, ship the Goods to the Customer by delivery to the Site.

6. Site
If APS has expressly agreed to ship the Goods to a Site, the Customer must:
(a) in relation to the Site, comply with all applicable laws, including all employment, anti-discrimination, anti-bullying and work health and safety legislation; and
(b) ensure that the Site is, so far as reasonably practicable, safe and free from risks to health and safety.

7. Risk
Risk in the Goods passes to the Customer on delivery of the Goods. Delivery of Goods will be at APS’ premises on collection of the Goods by the Customer, its employees, agent or contractors. If APS has expressly agreed to ship the Goods, risk in the Goods passes immediately on delivery of the Goods to the Site by APS or its agent.

8. Invoicing and payment
(a) APS will issue the Customer with a tax invoice for the Price.
(b) The Customer is not entitled to set off any amount owed to APS against any amount payable by APS to the Customer at any time.
(c) If the Customer does not pay an amount due under a Supply Agreement on time, the Customer must pay to APS interest on the overdue amount:

9. GST
If APS has any liability to pay goods and services tax (GST) on the supply of goods or services to the Customer, the Customer must pay to APS an amount equivalent to the GST liability of APS at the same time as the consideration is paid for the goods or services (unless the consideration for that supply is expressed specifically to be GST inclusive).

10. Limited and excluded liability
(a) Subject to clauses 7(b) and 7(c) and to the extent permitted by all other applicable laws, APS’ liability for damages to the Customer under, or in connection with, a Supply Agreement (excluding in relation to APS’ failure to comply with a Consumer Guarantee), will not exceed the Liability Cap.
(b) Subject to clause 7(c), and to the extent permitted by all applicable laws, APS will not be liable to the Customer for damages under, or in connection with, a Supply Agreement, in respect of any Consequential Loss (other than where such Consequential Loss arises due to APS’ failure to comply with a Consumer Guarantee).
(c) The limits on and exclusions of liability in clauses 7(a) and 7(b) do not apply in relation to the liability of APS in connection with any personal injury, death or APS’ grossly negligent or fraudulent acts or omissions.
(d) Excluding any Goods which are of a kind ordinarily acquired for personal, domestic or household use or consumption, APS’ liability for damages to the Customer for any failure to comply with a Consumer Guarantee in relation to Goods is limited to: (e) If a party’s performance of its obligations under a Supply Agreement is impacted by a Force Majeure Event, it is not liable (to the extent permitted by all applicable laws, including the Consumer Guarantees) for any failure or delay in obligations, to the extent the failure or delay is caused by the Force Majeure Event.

11. Termination
(a) The Customer may terminate a Supply Agreement by notice in writing to APS if: (b) APS may terminate a Supply Agreement by notice in writing to the Customer if: (c) Following the termination of a Supply Agreement: (d) Clauses 5, 7, 8, 9, 10 and 12 and any other provisions which expressly or by implication are intended to survive termination or expiry, survives the termination or expiry of a Supply Agreement.

12. General
(a) APS may amend these terms and conditions upon the provision of at least one month’s written notice to the Customer. The Customer will be deemed to have accepted such amendments (in relation to future Supply Agreements) if the Customer makes a further request for APS to supply Goods to the Customer after this period of notice.
(b) If any provision of a Supply Agreement is void, voidable by a party, unenforceable or illegal it is to be read down so as to be valid and enforceable or, if it cannot be read down, the provision is or, where possible, the offending words are to be severed from the Supply Agreement without affecting the validity or enforceability of the remaining provisions (or parts of those provisions) of the Supply Agreement.
(c) A Supply Agreement constitutes the entire agreement between the parties about its subject matter and supersedes all previous communications, representations or agreements between the parties on the subject matter.
(d) No failure to exercise or delay in exercising any right given by or under a Supply Agreement to a party constitutes a waiver and the party may still exercise that right in the future. No single or partial exercise of any right precludes any other or further exercise of that or any other right.
(e) Any waiver of any provision of a Supply Agreement or a right created under it must be in writing signed by the party giving the waiver and is only effective to the extent set out in that written waiver.
(f) APS may assign or novate a Supply Agreement to a third party without the consent of the Customer, providing that third party has the necessary resources to comply with its obligations under that Supply Agreement.
(g) A Supply Agreement is governed by the law in force in the State of Victoria and the Commonwealth of Australia.
(h) The parties submit to the non-exclusive jurisdiction of courts of the State of Victoria and the Commonwealth of Australia including the Federal Court and any courts that may hear appeals from those courts about any proceedings in connection with a Supply Agreement.

13. Definitions
In these terms and conditions:
APS means Australian Art Enterprises Pty Ltd (ACN 673 779 201) trading as Australian Pottery Supplies (ABN 75 673 779 201).
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria.
Consequential Loss means:
(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
(b) any loss beyond the normal measure of damages.
Consumer Guarantees mean the consumer guarantees contained in Subdivision B of Division 1 of Part 3-2 of the Australian Consumer law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and which also apply as a law of Victoria pursuant to section 8 of the Australian Consumer law and Fair Trading Act 2012 (Vic).
Corporations Act means the Corporations Act 2001 (Cth).
Credit Agreement means an agreement between APS and the Customer pursuant to which APS may extend credit to the Customer in connection with one or more Supply Agreements.
Customer means the person or entity which engages APS to supply it with Goods under a Supply Agreement.
Goods means goods to be supplied by APS to the Customer pursuant to a Supply Agreement, including pottery equipment and supplies.
Force Majeure Event means any act, event or cause, other than lack of funds, affecting a party that is outside that party’s reasonable control, including, but not limited to:
(a) war, acts or threats of terrorism, riots, revolutions, civil war, acts or threats of sabotage, national emergency (whether in fact or law), imposition of martial law, government requisition or any unlawful act against public order or authority;
(b) adverse weather conditions, acts of God and destruction by natural disasters including landslides, earthquakes, tsunamis, fires, storms, cyclones and floods; or
(c) epidemics, pandemic, quarantines.
Insolvency Event means:
(a) in relation to a body corporate, a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the entering into a scheme or arrangement with creditors or the occurrence of any event that has a substantially similar effect to any of these events;
(b) in relation to an individual, becoming bankrupt or entering into a scheme or arrangement with creditors or the occurrence of any event that has a substantially similar effect to any of these events; or
(c) in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control or the occurrence of any event that has a substantially similar effect to any of these events.
Liability Cap means the total Price under the relevant Supply Agreement.
Online Store means the online store conducted by APS
Price means the price payable by the Customer to APS for the Goods, as specified in (or calculated pursuant to) the listings of products contained in the Online Store, as consideration for APS supplying Goods the subject of a Purchase Order to the Customer and performing any ancillary services. A reference to “Price” in a Supply Agreement includes any applicable delivery fees or other costs and expenses payable to APS as stated in the Online Store.
Purchase Order means the Customer’s commitment to purchase Goods from the Online Store, and completion of all required details (including but not limited to quantity, name and delivery address) in order to formalise the Purchase Order.
Supply Agreement means an agreement between APS and the Customer pursuant to which APS agrees to supply Goods to the Customer, as constituted by a Purchase Order and these terms and conditions.
Site means the Customer’s designated place of delivery for the Goods, as specified in a Purchase Order or otherwise agreed between APS and the Customer.

14. Interpretation
In these terms and conditions, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’ or ‘such as’ or similar expressions;
(d) no provision of these terms and conditions will be construed to the disadvantage of a party merely because that party was responsible for the preparation of these terms and conditions or the inclusion of the provision in these terms and conditions;
(e) unless otherwise stated, a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and
(f) when counting a period of days before or after a given day or the day of a particular act or event, the given day or day of the particular act or event, as applicable, is excluded and the last day of the period is included.

Supply Terms and Conditions – Orders of AUD $1,000.00 or more

1. Quote and engagement
(a) These terms and conditions apply to orders of Goods with a total Price of AUD $1,000 or more and which may require APS to provide a Quote to the Customer. Such Goods may not be available for immediate delivery. Such orders will ordinarily require APS to provide a Quote to the Customer in relation to such Goods, which may then be accepted by the Customer in order to form a binding Supply Agreement.
(b) APS may issue the Customer with a Quote, including following receipt of an enquiry by the Customer. A Quote is valid and may be accepted for 14 days after its issue date unless this requirement is waived in writing by APS.
(c) A Quote will constitute the basis of (and the parties will be deemed to have entered into) a Supply Agreement if the Customer provides APS with a purchase order referring to that Quote, accepts the Quote in writing or through any other conduct by the Customer whereby it may be reasonably inferred by APS that the the Customer has determined to proceed with the purchase of the Goods the subject of the Quote. However, no binding Supply Agreement can be formed where APS marks a Quote as being non-binding or subject to further conditions (or words to that effect).
(d) In consideration of APS supplying the Goods, the Customer must pay to APS a Deposit of 50% of total invoice, or Price in full at the time it accepts the Quote. APS is not obligated to supply the Goods to the Customer unless and until the Customer pays to APS the relevant Price in full (unless the Customer is a party to a Credit Agreement).
(e) Pursuant to the entry into a Supply Agreement, the Customer appoints APS to supply the Goods the subject of the Quote, and the Customer agrees to purchase the Goods for the Price stated in the Quote, in accordance with the terms and conditions of the Supply Agreement.
(f) A Supply Agreement will constitute a binding contract between the Customer and APS which is constituted by the Quote and these terms and conditions.
(g) If there is any inconsistency between any of the terms and conditions of the Quote and these terms and conditions, the following order of precedence will apply to the extent of the inconsistency:
2. Estimates forming part of a Quote
In relation to Goods the subject of a Quote, the Price, delivery timeframe(s) and any other details forming part of the Quote are estimates only. This is necessary as APS may not be able to confirm these details until such time as the Goods the subject of the Supply Agreement are in the possession of APS, for example following importation. APS may, acting reasonably and fairly, unilaterally amend the details contained in a Quote prior to supply of Goods to a Customer. The Customer acknowledges and agrees it will remain bound by the Supply Agreement in these circumstances. However, if the total Price is increased by more than 15% or a delivery timeframe is increased by more than 3 months, the Customer may cancel the Supply Agreement by written notice to APS within 7 days following notification of one or more of these changes by APS. If the Customer takes such action, APS will refund in full any Deposit paid under the Supply Agreement.

3. Cancellation and defects
The Customer acknowledges and agrees that following entry into a Supply Agreement, it is legally binding and the Customer cannot cancel the Supply Agreement (i.e. for change of mind or any other changed circumstances relating to the Customer) other than with the written consent of APS (which APS may decline to provide in its sole and absolute discretion. Should the Customer believe that any Good is defective, it may notify APS in accordance with APS’s warranty statement, and APS will respond to any such claim in accordance with its warranty statement and all applicable laws.

4. Damage in transit
If APS agrees to deliver Goods to the Customer, any damage to the Goods occurring in transit must be notified in writing to APS (along with reasonable supporting evidence such as photos of the damage) within 7 days following delivery, or such longer period as is reasonable in the particular circumstances of the Supply Agreement. The Customer acknowledges and agrees APS will not be responsible for remedying damage to Goods in transit which is notified to it after this timeframe.

5. Installation
As part of a Quote, APS may agree to engage a third party contractor to install and/or commission Goods following supply to the Customer. If this is agreed, the Customer must provide reasonable assistance to enable APS and the third party contractor to carry out the installation and/or commission, including by making the Site generally available and free from obstructions. The Customer acknowledges and agrees that is responsible for the adequate connection of utilities at the Site. Should APS determine, acting reasonably, that the condition of the Site is unsafe or unsuitable for commissioning and/or installation of Goods, APS may refuse to carry out such works unless and until the Site is put in a position by the Customer to enable commissioning and/or installation of Goods in a safe and suitable manner.

6. APS obligations
Pursuant to a Supply Agreement, APS will:
(a) supply the Goods to the Customer;
(b) if expressly agreed by APS, ship the Goods to the Customer by delivery to the Site; and
(c) if expressly agreed by APS, install and/or commission the Goods at the Site.

7. Site
If APS has expressly agreed to ship and/or install or commission the Goods to or on a Site, the Customer must:
(a) in relation to the Site, comply with all applicable laws, including all employment, anti-discrimination, anti-bullying and work health and safety legislation; and
(b) ensure that the Site is, so far as reasonably practicable, safe and free from risks to health and safety.

8. Risk
Risk in the Goods passes to the Customer on delivery of the Goods. Delivery of Goods will be at APS’ premises on collection of the Goods by the Customer, its employees, agent or contractors. If APS has expressly agreed to ship the Goods, risk in the Goods passes immediately on delivery of the Goods to the Site by APS or its agent.

9. Invoicing and payment
(a) APS will issue the Customer with a tax invoice for the Price.
(b) The Customer is not entitled to set off any amount owed to APS against any amount payable by APS to the Customer at any time.
(c) If the Customer does not pay an amount due under a Supply Agreement on time, the Customer must pay to APS interest on the overdue amount:

10. GST
If APS has any liability to pay goods and services tax (GST) on the supply of goods or services to the Customer, the Customer must pay to APS an amount equivalent to the GST liability of APS at the same time as the consideration is paid for the goods or services (unless the consideration for that supply is expressed specifically to be GST inclusive).

11. Limited and excluded liability
(a) Subject to clauses 7(b) and 7(c) and to the extent permitted by all other applicable laws, APS’ liability for damages to the Customer under, or in connection with, a Supply Agreement (excluding in relation to APS’ failure to comply with a Consumer Guarantee), will not exceed the Liability Cap.
(b) Subject to clause 7(c), and to the extent permitted by all applicable laws, APS will not be liable to the Customer for damages under, or in connection with, a Supply Agreement, in respect of any Consequential Loss (other than where such Consequential Loss arises due to APS’ failure to comply with a Consumer Guarantee).
(c) The limits on and exclusions of liability in clauses 7(a) and 7(b) do not apply in relation to the liability of APS in connection with any personal injury, death or APS’ grossly negligent or fraudulent acts or omissions.
(d) Excluding any Goods which are of a kind ordinarily acquired for personal, domestic or household use or consumption, APS’ liability for damages to the Customer for any failure to comply with a Consumer Guarantee in relation to Goods is limited to:
(e) If a party’s performance of its obligations under a Supply Agreement is impacted by a Force Majeure Event, it is not liable (to the extent permitted by all applicable laws, including the Consumer Guarantees) for any failure or delay in performing any impacted obligations, to the extent the failure or delay is caused by the Force Majeure Event.

12. Termination
(a) The Customer may terminate a Supply Agreement by notice in writing to APS if:
(b) APS may terminate a Supply Agreement by notice in writing to the Customer if:
(c) Following the termination of a Supply Agreement:
(d) Clauses 4, 6, 7, 8, 9 and 11 and any other provisions which expressly or by implication are intended to survive termination or expiry, survives the termination or expiry of a Supply Agreement.

13. General
(a) APS may amend these terms and conditions upon the provision of at least one month’s written notice to the Customer. The Customer will be deemed to have accepted such amendments (in relation to future Supply Agreements) if the Customer makes a further request for APS to supply Goods to the Customer after this period of notice.
(b) If any provision of a Supply Agreement is void, voidable by a party, unenforceable or illegal it is to be read down so as to be valid and enforceable or, if it cannot be read down, the provision is or, where possible, the offending words are to be severed from the Supply Agreement without affecting the validity or enforceability of the remaining provisions (or parts of those provisions) of the Supply Agreement.
(c) A Supply Agreement constitutes the entire agreement between the parties about its subject matter and supersedes all previous communications, representations or agreements between the parties on the subject matter.
(d) No failure to exercise or delay in exercising any right given by or under a Supply Agreement to a party constitutes a waiver and the party may still exercise that right in the future. No single or partial exercise of any right precludes any other or further exercise of that or any other right.
(e) Any waiver of any provision of a Supply Agreement or a right created under it must be in writing signed by the party giving the waiver and is only effective to the extent set out in that written waiver.
(f) APS may assign or novate a Supply Agreement to a third party without the consent of the Customer, providing that third party has the necessary resources to comply with its obligations under that Supply Agreement.
(g) A Supply Agreement is governed by the law in force in the State of Victoria and the Commonwealth of Australia.
(h) The parties submit to the non-exclusive jurisdiction of courts of the State of Victoria and the Commonwealth of Australia including the Federal Court and any courts that may hear appeals from those courts about any proceedings in connection with a Supply Agreement.

14. Definitions
In these terms and conditions:
APS means Australian Art Enterprises Pty Ltd (ACN 673 779 201) trading as APS (ABN 75 673 779 201).
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria.
Consequential Loss means:
(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and
(b) any loss beyond the normal measure of damages.
Consumer Guarantees mean the consumer guarantees contained in Subdivision B of Division 1 of Part 3-2 of the Australian Consumer law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and which also apply as a law of Victoria pursuant to section 8 of the Australian Consumer law and Fair Trading Act 2012 (Vic).
Corporations Act means the Corporations Act 2001 (Cth).
Credit Agreement means an agreement between APS and the Customer pursuant to which APS may extend credit to the Customer in connection with one or more Supply Agreements.
Customer means the person or entity which engages APS to supply it with Goods under a Supply Agreement.
Deposit means the amount payable by the Customer to APS, payable by the Customer, at the time the Customer enters into a Supply Agreement. The required deposit amount is a minimum of 50% of the total invoice cost.

Goods means the goods to be supplied by APS to the Customer pursuant to a Supply Agreement, including pottery equipment and supplies.
Force Majeure Event means any act, event or cause, other than lack of funds, affecting a party that is outside that party’s reasonable control, including, but not limited to:
(a) war, acts or threats of terrorism, riots, revolutions, civil war, acts or threats of sabotage, national emergency (whether in fact or law), imposition of martial law, government requisition or any unlawful act against public order or authority;
(b) adverse weather conditions, acts of God and destruction by natural disasters including landslides, earthquakes, tsunamis, fires, storms, cyclones and floods; or
(c) epidemics, pandemic, quarantines.
Insolvency Event means:
(a) in relation to a body corporate, a liquidation or winding up, the appointment of a controller, administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets or the entering into a scheme or arrangement with creditors or the occurrence of any event that has a substantially similar effect to any of these events;
(b) in relation to an individual, becoming bankrupt or entering into a scheme or arrangement with creditors or the occurrence of any event that has a substantially similar effect to any of these events; or
(c) in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control or the occurrence of any event that has a substantially similar effect to any of these events.
Liability Cap means the total Price under the relevant Supply Agreement.
Price means the price payable by the Customer to APS for the Goods, as specified or outlined in a Quote, as consideration for APS supplying Goods to the Customer and performing any ancillary services. A reference to “Price” in a Supply Agreement includes any applicable delivery fees, commissioning and installation fees and any other costs and expenses payable to APS as stated in a Quote.
Quote means a quote, invoice, email or any other document or communication in writing issued by APS to the Customer setting out the particulars of a Supply Agreement, which may include the particulars of the Goods to be supplied, the Price, delivery costs, delivery timeframes, installation costs and any other special conditions.
Supply Agreement means an agreement between APS and the Customer pursuant to which APS agrees to supply Goods to the Customer, as constituted by a Quote and these terms and conditions.
Site means the Customer’s designated place of delivery for the Goods, whether specified in a Quote or otherwise agreed between APS and the Customer.

15. Interpretation
In these terms and conditions, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’ or ‘such as’ or similar expressions;
(d) no provision of these terms and conditions will be construed to the disadvantage of a party merely because that party was responsible for the preparation of these terms and conditions or the inclusion of the provision in these terms and conditions;
(e) unless otherwise stated, a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; and
(f) when counting a period of days before or after a given day or the day of a particular act or event, the given day or day of the particular act or event, as applicable, is excluded and the last day of the period is included.