TERMS AND CONDITIONS OF SUPPLY OF GOODS AND SERVICES
1. Application
Unless expressly stated by Apex ETG in writing, only these T&Cs will apply to any order for and any supply of Goods and/or Services by APEX Engineering Technology Group Pty Ltd (“Apex ETG”) to the Customer
2. Order for Goods / Services
2.1 Any quotation by Apex ETG does not constitute an offer to supply. Any services not specified in the quotation supplied by Apex ETG are not included in the offer to supply goods or services.
2.2 Unless otherwise stated by Apex ETG, any quotation by Apex ETG will remain valid for 30 days from the date of the quotation provided that Apex ETG may withdraw or vary a quotation at any time prior to Apex ETG’s acceptance of an Order.
2.3 Any Order by the Customer to Apex ETG and/or any acceptance of any Goods and/or Services by the Customer will constitute agreement to these T&Cs by the Customer.
2.4 No Order by the Customer will be binding on Apex ETG unless Apex ETG accepts the Order.
2.5 If Apex ETG accepts an Order, the parties will have created a binding Contract and Apex ETG will supply the Goods and/or Services to the Customer, and the Customer will pay the Price to Apex ETG in accordance with the terms of the Contract (which will include these T&Cs), but the Contract will be subject to: (a) the availability of the materials necessary to supply the Goods; and (b) the Customer completing Apex ETG’s application for commercial credit and Apex ETG agreeing to grant credit to the Customer (if the Customer is seeking credit terms).
2.6 The Customer is not entitled to cancel any Order or Contract and must pay to Apex ETG any costs associated with the Customer purporting to cancel any Order or Contract as specified on the Pricing Quotation: “Cancellation of an order in process will be subject to 10% processing fee and 20% cancellation and re-stocking charge.”
2.7 The Customer must provide to Apex ETG all information, instructions, reports, drawings, plans, specifications, properties and facts relevant to the Goods and/or Services and performance of Apex ETG’s obligations, at the time the Customer requests any quotation from Apex ETG and prior to providing any Order to Apex ETG.
2.8 If at any time Apex ETG considers that any information, instructions, reports, drawings, plans, specifications, properties or facts provided by the Customer to Apex ETG are not sufficient to enable Apex ETG to supply the Goods and/or Services to the Customer in accordance with the Contract, the Customer must, at the Customer’s cost, provide such further information, documents or assistance as Apex ETG considers reasonably necessary.
2.9 Apex ETG will be entitled to rely on the accuracy of any information, instructions, reports, drawings, plans, specifications, properties and facts provided by the Customer.
2.10 If there are any errors in any information, instructions, reports, drawings, plans, specifications, properties or facts provided by the Customer to Apex ETG, Apex ETG will, in addition to Apex ETG’s other rights under these T&Cs or at law, be entitled to vary the Price.
2.11 The Customer must ensure the specifications and properties of Goods and/or Services stated in any Order by the Customer will be fit for the intended purpose of the Goods and/or Services.
2.12 The Customer will be responsible for the quantity of any Goods and/or Services in any Order and Apex ETG will not have any liability to the Customer if there is any excess or shortfall of the Goods and/or Services for the intended purpose.
2.13 Apex ETG may cancel any Contract at any time prior to delivery of the Goods and/or Services with no liability other than to repay any amount of the Price paid in advance of the cancellation.
3. Price
3.1 Unless otherwise agreed by Apex ETG in writing, the Price will be Apex ETG’s quoted price on the date of despatch of the Goods and/or Services and is subject to variation (whether before or after the acceptance of an Order or before or after the formation of a Contract or during the term of a Contract).
3.2 Unless otherwise agreed by Apex ETG in writing, Apex ETG may invoice the Customer for Goods and/or Services on the date of despatch of the Goods and/or Services.
3.3 Unless otherwise stated by Apex ETG in writing, the Price is in Australian dollars.
3.4 Unless otherwise stated by Apex ETG in writing, the Price is exclusive of any delivery charges and exclusive of GST.
3.5 The Customer must not withhold, make deductions from, or setoff, payment of any money owed to Apex ETG for any reason.
3.6 The Customer must pay Apex ETG on demand interest at the rate of 15% per annum on all overdue amounts owed by the Customer to Apex ETG, calculated daily.
3.7 Apex ETG may charge, in addition to the Price, any other fees, charges and surcharges that Apex ETG notifies to the Customer from time to time, provided such notification was given prior to the Customer issuing an Order and Apex ETG’s acceptance of that Order.
4. Delivery of Goods
4.1 If Apex ETG agrees to deliver Goods: (a) Apex ETG will charge delivery charges, demurrage, waiting time and other charges in Apex ETG’s quote or otherwise nominated rate by Apex ETG from time to time; (b) Apex ETG will endeavour to deliver the Goods to the Delivery Address on the Delivery Date; and (c) Apex ETG may charge further delivery charges if the Customer is unable to receive delivery of the Goods at the Delivery Address or on the Delivery Date or in accordance with any other delivery arrangements that are notified to the Customer prior to despatch of the Goods.
4.2 Apex ETG will only deliver Goods during Apex ETG’s usual business hours unless Apex ETG agrees otherwise in writing.
4.3 Apex ETG will not be liable for any delay in the delivery of Goods to the Delivery Address.
4.4 Apex ETG may deliver Goods in separate instalments.
4.5 The Customer will ensure a member of the Customer’s Personnel will be at the Delivery Address on the Delivery Date to sign the delivery docket on the Customer’s behalf.
4.6 Apex ETG may deliver Goods to the Delivery Address regardless of whether there is anyone at the Delivery Address at the time of delivery.
4.7 The Customer agrees: (a) Apex ETG’s responsibility for delivery of Goods will cease at the kerbside or public roadway frontage of the Delivery Address; (b) the Customer must provide safe access for delivery of Goods including but not limited to providing safety measures such as traffic control; and (c) Apex ETG may refuse to deliver Goods, and return the Goods at the Customer’s cost, if Apex ETG or a member of Apex ETG’s Personnel considers it would be unsafe to deliver the Goods.
4.8 The signature of a member of the Customer’s Personnel on the delivery docket will represent the Customer’s acknowledgement that the Goods comply with the Contract and these T&Cs.
4.9 A certificate signed by a director or secretary of Apex ETG in relation to delivery of the Goods will be prima facie evidence of the fact and the Customer will not object to the admissibility of such a certificate in any legal proceedings.
4.10 The Customer must inspect any Goods immediately on collection or delivery of the Goods.
4.11 The Customer may not return any Goods or any part of the Goods to Apex ETG unless the Customer notifies Apex ETG within 14 days of delivery of the reason for seeking return and Apex ETG authorises the return in writing. Any approved return shall be at the Customer’s sole cost and Apex ETG may decline any refund after examination of the returned goods in Apex ETG’s absolute discretion. Any redelivery of the returned goods to the Customer will be at the Customer’s sole cost
5. Risk
5.1 If Apex ETG agrees to deliver Goods, the risk in the Goods will pass to the Customer, and the Customer will be deemed to have accepted the Goods, immediately when the Goods are delivered to the Delivery Address regardless of whether there is anyone at the Delivery Address at the time of delivery.
5.2 If the Customer agrees to collect the Goods, the risk in the Goods will pass to the Customer, and the Customer will be deemed to have accepted the Goods, immediately when the Goods are placed on any vehicle or means of conveyance.
6. Title
6.1 The Customer will not receive title to Goods until the Customer makes full payment of the Price and any other amounts payable to Apex ETG.
6.2 Until title in the Goods passes to the Customer in accordance with these T&Cs, the Customer will: (a) be only a bailee of the Goods; (b) ensure the Goods are kept separate and identifiable from other goods; (c) not grant any charge over, or interest in, the Goods to any third party; (d) return any Goods to Apex ETG immediately on request; (e) authorise Apex ETG or any agent of Apex ETG to enter any land and premises owned, occupied or controlled by the Customer where the Goods are located and take possession of the Goods; and (f) hold the proceeds from any sale or disposal of the Goods on trust for Apex ETG, and Apex ETG may repossess, retain, deal with and/or sell the Goods as Apex ETG determines in Apex ETG’s absolute discretion.
6.3 Apex ETG may, for the purposes of exercising Apex ETG’s rights under clause 6.2, enter any premises owned, occupied or controlled by the Customer and remove the Goods including but not limited to by detaching or unfixing the Goods from any goods or land to which the Goods are attached or fixed.
7. Credit and Personal Property Securities
7.1 The Customer must make full payment of the Price and any other amounts payable to Apex ETG before Apex ETG supplies Goods and/or Services to the Customer unless Apex ETG has granted credit terms to the Customer in which case the Customer must make full payment of the Price and any other amounts payable to Apex ETG within 30 days of the date of the invoice from Apex ETG to the Customer (or such alternative period agreed by Apex ETG in writing).
7.2 If Apex ETG grants credit terms to the Customer, then to secure the punctual payment of all amounts owed by the Customer to Apex ETG, the Customer grants to Apex ETG: (a) a security interest (as defined under the PPSA) over all present and after acquired property of the Customer in relation to which the Customer can be a grantor of a security interest under the PPSA, whether or not the Customer has title to the property, including but not limited to all PPSA retention of title property (as defined under section 51F of the Corporations Act); and (b) a fixed charge over all present and afteracquired property of the Customer in relation to which the Customer cannot be a grantor of a security interest under the PPSA.
7.3 The Customer agrees and acknowledges Apex ETG may (without limiting Apex ETG’s other rights under these T&Cs, at law or otherwise) lodge caveats over the Customer’s property and take any other action to secure and enforce Apex ETG’s security under clause 7.2.
7.4 The Customer must reimburse Apex ETG for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expenses incurred by Apex ETG associated with any action by Apex ETG to recover money from the Customer.
7.5 The Customer: (a) agrees with Apex ETG that neither the Customer, nor Apex ETG, will disclose information of the kind specified in section 275(1) of the PPSA (except in the circumstances required by sections 275(7)(b) to (e) of the PPSA); (b) agrees that, to the extent permitted under section 115(1) of the PPSA, the following provisions of the PPSA do not apply: sections 95, 118, 121(4), 125, 130, 132(3)(d), 135, 138B(4), 142 and 143; (c) agrees that, to the extent permitted under section 115(7) of the PPSA, the following provisions of the PPSA do not apply: sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137; (d) acknowledges that Apex ETG may, at the Customer’s cost, register one or more financing statements in relation to any security; (e) waives, if permitted under the PPSA, the Customer’s right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any financing statement or any related financing change statement; and (f) will not, without prior written notice to Apex ETG, change the Customer’s name or initiate any change to any documentation registered under the PPSA.
8. Force Majeure
Apex ETG will not be liable to the Customer for any failure to perform, or delay in performing, Apex ETG’s obligations under these T&Cs if the failure or delay is due to any cause beyond Apex ETG’s reasonable control and if any such failure or delay continues for a period of 14 days Apex ETG may terminate any affected Contract.
9. Confidential Information and Intellectual Property
9.1 The Customer will not use, or disclose, any Confidential Information disclosed to the Customer, except as permitted by Apex ETG’s Confidentiality and Non-Disclosure Agreement.
9.2 All Intellectual Property Rights in all designs, drawings, technical information and documents created by Apex ETG in relation to the Goods and/or Services will remain with Apex ETG and will not be assigned to the Customer and no supply of Goods and/or Services to the Customer will grant to the Customer any Intellectual Property Rights in respect of the Goods and/or Services or such designs, drawings, technical information or documents.
9.3 If Apex ETG supplies any designs, drawings, technical information or documents to the Customer as part of the Goods and/or Services, Apex ETG grants the Customer a non-exclusive, non-transferrable, right to use the designs, drawings, technical information and documents strictly and only for the purposes of the Customer’s use of the Goods and/or Services.
9.4 The Customer warrants that Apex ETG’s use of any designs, instructions or documents provided by the Customer to Apex ETG will not infringe the Intellectual Property Rights of any other party.
10. Approvals
The Customer must, at the Customer’s expense, obtain all Approvals necessary for and incidental to the supply of the Goods and/or Services.
11. Security
Apex ETG will not be required to provide a bank guarantee or any other form of security and the Customer will not be entitled to retain any retention money from the Price for any reason.
12. Warranty
12.1 Apex ETG does not warrant the Goods and/or Services are fit for any purpose whether or not made known to Apex ETG or any member of Apex ETG’s Personnel.
12.2 Apex ETG excludes all express and implied conditions and warranties in relation to the Goods and/or Services except in relation to those goods assembled, manufactured or modified by Apex ETG and those conditions or warranties that cannot be excluded by law. Apex ETG’s liability under any such conditions or warranties is limited to, at Apex ETG’s option, arranging to replace or repair the Goods and/or the outcome of the Services or resupplying the Goods and/or Services and in relation to goods assembled, manufactured or modified by Apex ETG this liability is limited to 30 days from the date of delivery.
12.3 Any fault due to abuse, misuse or improper installation is excluded from warranty. 12.4 Nothing in these T&Cs are intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or any Fair Trading Act except to the extent permitted by such Acts.
13. Liability
13.1 Apex ETG’s liability for any Liability or Claim in relation to these T&Cs, any Contract, and any supply of Goods and/or Services(whether under statute, contract, tort, negligence or otherwise) will be limited to the amount of the Price paid by the Customer to Apex ETG. 13.2 Apex ETG will not be liable to the Customer for any Liability or Claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use, or for any consequential or similar loss whether or not in the reasonable contemplation of the parties.
14. Release and Indemnity
The Customer indemnifies Apex ETG and each member of Apex ETG’s Personnel from and against any Liability or Claim arising directly or indirectly in relation to:
(a) the accuracy of all information provided by the Customer to Apex ETG in relation to the Services, the Delivery Address or any other matters;
(b) the Customer’s breach of these T&Cs or any Contract;
(c) the negligence or wilful misconduct of the Customer or any member of the Customer’s Personnel;
(d) Apex ETG or any member of Apex ETG’s Personnel delivering the Goods in accordance with the Customer’s instructions;
(e) Apex ETG or any member of Apex ETG’s Personnel entering the Delivery Address;
(f) damage to the property of the Customer or any third party during any delivery of Goods in accordance with the Customer’s instructions;
(g) any spillage, breakage or contamination of Goods during any transport or delivery by the Customer or someone other than Apex ETG (or Apex ETG’s agent);
(h) the Goods and/or Services not being fit for any particular purpose;
(i) any tests in relation to Goods and/or Services;
(j) the Customer or any member of the Customer’s Personnel directly or indirectly causing any delay in the supply of any Goods and/or Services;
(k) Apex ETG having to resupply the Goods and/or Services, or undertake any rework, as a result of the actions or omissions of the Customer or any third party;
(l) the Customer or any member of the Customer’s Personnel refusing to accept any delivery; (m) the Customer or any member of the Customer’s Personnel purporting to cancel any Order or Contract; and (n) any proceedings, claims and demands in relation to any secured property.
15. Termination
15.1 Apex ETG may immediately terminate, or suspend the performance of, any Contract and the Customer must immediately pay any money owed to Apex ETG if:
(a) the Customer breaches a term of these T&Cs or any Contract and does not remedy the breach within 7 days of receiving a notice from Apex ETG requiring the Customer to do so;
(b) the Customer breaches a term of these T&Cs or any Contract which is not capable of remedy;
(c) there is any change in the Control of the Customer; or
(d) an Insolvency Event arises in relation to the Customer.
16. Definitions
In these T&Cs:
“Approvals” means all approvals, authorisations, permits, consents, determinations and licences which are issued, or required to be issued, by any Authority to permit the full and proper performance of Apex ETG’s obligations under these T&Cs;
“Authority” means any government or governmental, semigovernmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, statutory corporation, instrumentality or entity;
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
“Confidential Information” means information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to Apex ETG or any related entity of Apex ETG including but not limited to any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;
“Contract” means a contract formed as a result of the acceptance of an Order by Apex ETG;
“Control” has the meaning set out in the Corporations Act;
“Corporations Act” means the Corporations Act 2001 (Cth);
“Customer” means the customer set out in any quotation, offer or other document provided by Apex ETG (or, in the absence of such information, the customer who placed the Order);
“Delivery Address” means the address for the delivery of the Goods and/or Services in a Contract;
“Delivery Date” means the date for the delivery of the Goods and/or Services in a Contract;
“Goods” means the goods in a Contract;
“Insolvency Event” means any of the following, or any analogous, events:
(a) the Customer disposes of the whole or any part of the Customer’s assets, operations or business other than in the ordinary course of business;
(b) the Customer ceases, or threatens to cease, carrying on business;
(c) the Customer is unable to pay the Customer’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Customer’s assets, operations or business;
(e) any step is taken for the Customer to enter into any arrangement or compromise with, or assignment for the benefit of, the Customer’s creditors or any class of the Customer’s creditors; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Customer’s assets, operations or business;
“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
“Order” means any written or verbal order by the Customer to Apex ETG for Goods and/or Services;
“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party;
“PPSA” means Personal Property Securities Act 2009 (Cth);
“Price” means the price of the Goods and/or Services as nominated by Apex ETG from time to time;
“Services” means the services in a Contract and any services associated with the Goods; “Supplier” means the entity that accepts the Order to supply Goods and/or Services to the Customer; and “T&Cs” means these Terms and Conditions of Supply.
17. Miscellaneous
17.1 The parties agree:
(a) no Contract will create any partnership, joint venture, agency or relationship of employment between the parties;
(b) these T&Cs or any Contract may only be amended with Apex ETG’s express written agreement;
(c) any waiver by Apex ETG must be express and in writing;
(d) Apex ETG’s rights under these T&Cs or any Contract do not exclude any other rights of Apex ETG;
(e) no Contract will be a sale by sample;
(f) in the event of any dispute, Apex ETG’s records will be prima facie evidence;
(g) the actions of any director, officer, employee, contractor or agent of the Customer claiming to have the Customer’s authority will bind the Customer to the extent permitted by law;
(h) if any provision of these T&Cs or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply;
(i) the Customer must immediately provide written notice to Apex ETG if there is any change in the Control of the Customer;
(j) Apex ETG may assign any rights or benefits under any Contract or these T&Cs or any Contract to any third party;
(k) the Customer may only assign any rights or benefits under any Contract or these T&Cs or any Contract with Apex ETG’s prior written consent;
(l) any dispute, controversy or claim arising out of, relating to or in connection with this agreement, including any questions regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Australian Disputes Centre (ADC). The arbitration shall be conducted in the domicile of Apex ETG in accordance with the ADC Rules for Domestic Arbitration operating at the time the dispute is referred to ADC; and
(m) these T&Cs and any Contract will be governed by the laws of, and the parties submit to the jurisdiction of the courts of, the state in which the Goods and/or Services are delivered. 17.2 In these T&Cs:
(a) the headings will not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) any other grammatical form of a word or expression defined in these T&Cs has a corresponding meaning;
(d) a reference to a document includes the document as novated, altered, supplemented or replaced;
(e) a reference to a party includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;
(f) a reference to a person includes a natural person, body corporate, partnership, trust, association or any other entity;
(g) a reference to a statute, ordinance, code or law includes regulations, rules and other instruments under the statute, ordinance, code or law and any consolidations, amendments, reenactments or replacements;
(h) a word or expression defined in the Corporations Act has the meaning given to the word or expression in the Corporations Act;
(i) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
(j) any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;
(k) any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;
(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these T&Cs; and
(m) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.