Apex Signage Standard Terms and Conditions
From our Northern Beaches headquarters in NSW, Apex Signage design, print, create and install outstanding signage solutions for both major brands and small businesses across Australia. These Terms and Conditions have been prepared to assist our customers, staff and contractors develop a better understand the most efficient and rewarding ways of conducting business.
Their objective is to eliminate ambiguity, reduce avoidable anomalies and define the most rewarding commercial terms for all involved with Apex Signage Pty. Ltd.
To best simplify these terms they are divided logically into 12 sections:
1. Interpretation: Identifies common words used within these Terms & Conditions.
2. Basis of the contract: Defines the purpose of the commercial contract entered into.
3. Orders and specifications: Covers documented instructions and intellectual property rights.
4. Price of the goods: Specifies applicable charges, variance terms and GST liability.
5. Terms of payment: Covers deposits required, balance settlements and transfer of property.
6. Risk and property: Defines situations effecting property in the goods passing to the customer.
7. Warranties and liability: Defines quality assurance types and where liability is limited.
8. Indemnity: Customer responsibility ensuring Apex Signage never infringe another’s rights.
9. Delivery: Unless otherwise agreed is determined to be ex Apex Signage works.
10. Installation: Determines responsibilities where installation is an addition under the contract.
11. Contract termination: Explains breach of contract provisions and cancelation rights.
12. General: A collective of related contract provisions not requiring a collective heading.
The preceding introductory statement has no bearing on the application or interpretation of the following trading terms & conditions.
1.1 In these conditions:
‘Customer’ means the person or company whose order for the purchase of the goods or installation is accepted by Apex Signage;
‘Conditions’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing by a duly authorised signatory of Apex Signage;
‘Contract’ means the contract for the purchase and sale of the goods, and/or installation;
‘Goods’ means the goods (including any instalment of the goods or any parts for them) which Apex Signage is to supply in accordance with these conditions;
“Installation” means the installation of the goods by Apex Signage at the premises;
“Premises” the premises at which the goods are to be installed by Apex Signage;
“Business Day” means any day which is not a Saturday or a Sunday, nor a public holiday in Australia.
‘Apex Signage’ means Apex Signage Pty Ltd (ABN 73 158 273 726) whose principal place of business is at Unit 12, 36 Campbell Avenue, Cromer New South Wales 2099.
‘Writing’ includes email, letter, facsimile and comparable means of direct communication.
1.2 Any reference in these conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these conditions are for convenience only and shall not affect their interpretation.
1.4 In these conditions, references to the masculine include the feminine and references to the singular include the plural and vice versa as the context admits or requires.
2. Basis of the contract
2.1 Apex Signage shall sell and the customer shall purchase the goods, and/or (if relevant) installation shall be carried out in accordance with any written estimate of Apex Signage which is accepted by the customer, and subsequently confirmed by Apex Signage or any written order of the customer which is accepted by Apex Signage, subject in either case to these conditions, which shall govern the contract to the exclusion of all other terms and conditions whether of the customer or otherwise.
These conditions apply to all Apex Signage sales, or installations. Where the customer has requested that Apex Signage carry out the installation, then Clause 10 (Installation) shall also apply to the contract.
If no installation is to take place, clause 10 shall not apply to the contract.
2.2 No variation to these conditions shall be binding unless agreed in writing between the authorised representatives of the customer and Apex Signage.
2.3 Apex Signage employees or agents are not authorised to make any representations, warranties or undertakings (verbal or otherwise) concerning the goods, or the installation or otherwise unless confirmed by an authorised representative of Apex Signage in writing.
In entering into the contract the customer acknowledges that it does not rely on any such representations, warranties or undertakings which are not so confirmed.
2.4 Any advice or recommendation given by Apex Signage or its employees or agents to the customer or its employees or agents as to the storage, application or use of the goods and which is not confirmed in writing by Apex Signage is followed or acted upon entirely at the customer’s own risk, and accordingly Apex Signage shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of the offer, invoice or other document or information issued by Apex Signage shall be subject to correction without any liability on the part of Apex Signage.
2.6 Apex Signage catalogues, technical circulars, sales literature, price lists and other such documents are for the customer’s general guidance only and the particulars contained in such documents shall not constitute representations by Apex Signage and Apex Signage shall not be bound thereby, nor shall they form part of the contract.
2.7 Where technically possible and within the tolerance of materials used the customer’s colour balance requirements will be taken into account. In the absence of specific instructions in regard to Pantone numbers or the customer’s supplied match samples colour balance will be at the discretion of Apex Signage.
2.8.When Apex Signage utilising either customer supplied artwork, proofs, photography or typographical design components the customer takes sole responsibility for the supplied components’ accuracy and technical suitability for purposes of completing the contract. Where Apex Signage determines that any customer supplied design component is, for any reason, unsuitable for its contracted purpose Apex Signage may recreate it at the expense of the customer.
2.9 Where the customer requests alterations to any signage specification alterations to suit the revised specifications will be undertaken by Apex Signage as a variation to the contract. Contract variations requested or mandated by the customer of any third party will incur additional Apex Signage design costs.
2.10 Artist impressions and design renderings created for the purpose of illustrating how proposed signage may appear in-situ are not to be considered either accurate or permissible under the terms of the contract.
2.11 Apex Signage designs and proofs are two dimensional and presented on a flat surface to be viewed by the customer at a relatively small size. Traditional signage installation is made onto a far larger flat two dimensional surface. In an event when the signage application surface is neither flat nor two dimensional (as in the case of a vehicle wrap), there may be minor variations between the two dimensional design and proof and the three dimensional curved installation. On curved and uneven surfaces Apex Signage at their own discretion may make minor adjustments to optimise readability or alignment.
2.12 All Apex Signage quotations exclude the following unless expressly stated and agreed in writing:
(i) Transportation of equipment, goods and Apex Signage personnel to and from the installation premises
(ii) Packing the goods for transportation to the customers installation premises
(iv) Insurance of the goods or any hire equipment whilst in transit storage or at the customers premises.
(vi) Power supply; fees and charges associated with the power supply or connection of power supply.
(vii) Any fees and charges associated with traffic control or third party property access to site.
(viii) Any required special permits or engineer calculations including Dial Before You Dig locator service.
2.13 Any estimate or quotation is given by Apex Signage on the basis that no contract will come into existence until Apex Signage dispatches an acknowledgement of order (whether in writing or by phone by an authorised representative of Apex Signage) to the Customer.
3. Orders and specifications
3.1 No order submitted by the customer shall be deemed to be accepted by Apex Signage unless and until confirmed in writing by Apex Signage authorised representative.
3.2 The customer shall be responsible to Apex Signage for ensuring the accuracy of the terms of any order (including any applicable specification) which the customer is responsible for ensuring is submitted by the customer, and for giving Apex Signage any necessary information relating to the goods or installation within a sufficient time to enable Apex Signage to perform the contract in accordance with its terms. Where artwork proofs are submitted to the customer for the customer’s approval, Apex Signage shall incur no liability for errors which should reasonably be identified by the customer which are not so identified.
3.3 The quantity, quality and description of and any specification shall be those set out in Apex Signage estimate (if accepted by the customer) or the customer’s order (if accepted by Apex Signage). Unless confirmed in writing by Apex Signage, all specifications, drawings and particulars of weights, dimensions and performance issued by Apex Signage are approximate only and Apex Signage gives no warranty or representation that the goods will conform to such specification.
3.4 If the goods are to be manufactured or any process is to be applied to the goods in accordance with a specification submitted by the customer, the customer warrants to Apex Signage that the intellectual property rights in such specification belong to the customer or that the customer is licensed or otherwise authorised to use such specification by the actual owner.
3.4.1 Copyright in all artistic and literary works authored by Apex Signage shall remain the property of Apex Signage unless there is a written agreement with the customer to the contrary.
3.4.2 The customer shall indemnify Apex Signage on demand against all loss, damages, costs and expenses awarded against or incurred by Apex Signage in connection with or paid or agreed to be paid by Apex Signage in settlement of any claim arising out of:-
(i) infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from Apex Signage use of the customer’s specification; and/or
(ii) any impracticality, inefficiency or lack of safety or other defect in the goods where such defect is due (whether in whole or in part) to faults or omissions in information, drawings, designs, instructions, or specifications of the customer.
3.5 Apex Signage reserves the right to make any changes in the specification of the goods which are (in Apex Signage opinion) required to conform to any applicable statutory or signage compliance requirements or, where the goods and/or hire equipment are to be supplied to Apex Signage specification that does not materially affect their quality or performance.
3.6 No order which has been accepted by Apex Signage may be cancelled by the customer except with the agreement in writing of Apex Signage and on terms that the customer shall indemnify Apex Signage in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Apex Signage as a result of cancellation.
3.7 Apex Signage shall not be required to process any order which in its opinion is or may be of an illegal or defamatory nature and the customer shall indemnify Apex Signage on demand against any loss, damages, costs and expenses awarded against or incurred by Apex Signage in connection therewith.
3.8 The customer hereby gives such consent and permission to Apex Signage as may be required to enable Apex Signage to use copies of the goods supplied to the customer for the purposes of Apex Signage own marketing requirements, including consenting to the reproduction of any name, logo, trademark or other intellectual property right included in the goods. This is without prejudice to Apex Signage other rights under these conditions.
4. Price of the goods
4.1 Unless otherwise agreed between the parties in writing the price of the goods (“the price”) shall be Apex Signage quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in Apex Signage price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only (or until earlier acceptance by the customer or earlier withdrawal by Apex Signage before the customer’s acceptance), after which time they may be altered by Apex Signage without giving notice to the customer.
Where installation is to occur the price for such installation shall (in the absence of manifest error) be included in the price quoted for the goods or Apex Signage separate list price for the installation.
4.2 Apex Signage reserves the right, by giving notice to the customer at any time before delivery, to increase the price to reflect any increase in the cost to Apex Signage which is due to any factor beyond the control of Apex Signage (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the goods which is requested by the customer, or any delay caused by any instructions of the customer or failure of the customer to give Apex Signage adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of Apex Signage, and unless otherwise agreed in writing between the customer and Apex Signage, all prices are given by Apex Signage on an ex works basis, and where Apex Signage agrees to deliver the goods otherwise than at Apex Signage premises, the customer shall be liable to pay Apex Signage charges for transport, packaging and insurance.
4.4 Unless specifically stated all prices are exclusive of any applicable Goods and Services Tax (GST), which the customer shall be additionally liable to pay to Apex Signage.
4.5 The cost of pallets and returnable containers will be charged to the customer in addition to the price, but credit will be given to the customer provided they are returned undamaged to Apex Signage before the due payment date.
5. Terms of payment
5.1 For new customers, Apex Signage reserves the right to require that a sum equal to the price be paid in advance by the customer on commencement of the contract, unless otherwise agreed in writing by an authorised representative of Apex Signage if the price is $10,000 or more, an advance payment representing 50% of the price is required on acceptance of the customer’s order and prior to commencement of any work or services by Apex Signage.
Any monies agreed to be paid by the customer to Apex Signage on account of any price or fee payable under the contract prior to the commencement of the contract, or prior to delivery of the goods, the sum paid may be applied by Apex Signage against any invoice rendered by Apex Signage under the contract in Apex Signage discretion, not necessarily in chronological order of invoice rendered.
The sum will not be refunded to the customer unless the goods are majorly faulty, in which case a replacement or refund will be offered to the customer. In cases of a minor fault, a repair will be offered to the customer.
Apex Signage may also apply such sum to any other amount owing to Apex Signage by the customer whether under the contract or otherwise.
5.2 Subject to any special terms agreed in writing between the customer and Apex Signage, Apex Signage shall be entitled to invoice the customer for the price (or where an advance payment on account of the price has been paid, the balance of the price) on or at any time after delivery of the goods, unless the goods are to be collected by the customer or the customer wrongfully fails to take delivery of the goods, in which event Apex Signage shall be entitled to invoice the customer for the price at any time after Apex Signage has notified the customer that the goods are ready for collection or (as the case may be) Apex Signage has tendered delivery of the goods. Apex Signage reserves the right to submit interim invoices if, in Apex Signage discretion, the circumstances in respect of a particular order mean that it would be unreasonable for Apex Signage to await invoicing at the time of delivery or when notifying the customer that the goods are available for collection or otherwise.
5.3 The customer shall pay the price (or where an advance payment on account of the price has been paid, the balance of the price) due under the contract (less any discount to which the customer is entitled, but without any other set off deduction, counterclaim, abatement or otherwise) within 7 business days of the date of Apex Signage invoice, and Apex Signage shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the goods has not passed to the customer.
The time of payment of the price shall be of the essence of the contract. Receipts for payment will be issued only upon request.
No payment shall be deemed to have been received by Apex Signage until Apex Signage has received cleared funds.
5.4 Where Apex Signage agree in writing with the customer to any rebate or reduction on the fees or price payable under the contract in return for the customer paying invoices rendered by Apex Signage within agreed timescales, where such timescales are not adhered to by the customer, Apex Signage shall be entitled to withdraw any such rebate or reduction arrangement without notice to the customer and the customer shall pay the full amount of the relevant invoice as increased to take into account the loss of the agreed rebate or reduction, with Apex Signage having the benefit of such other rights set out in these conditions (including the right to charge interest) in respect of any sum so unpaid by the customer.
5.5 If the customer fails to make any payment in full on the relevant due date then, without prejudice to any other right or remedy available to Apex Signage, Apex Signage shall be entitled to:
5.5.1 Cancel the contract or suspend any further deliveries or services (including installation if relevant) to the customer;
5.5.2 The immediate payment of all payments outstanding in respect of the goods and of any other goods, works or services provided by Apex Signage to the customer under any other contract notwithstanding the fact that the date for payment may not yet have fallen due;
5.5.3 Appropriate any payment made by the customer to such of the goods, and/or installation (or the goods supplied under any other contract between the customer and Apex Signage) as Apex Signage may think fit (notwithstanding any purported appropriation by the customer);
5.5.4 Charge the customer interest (both before and after any judgement) on the amount unpaid, at the rate of 3 per cent per annum above The Commonwealth Bank of Australia’s base rate at the time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest). Apex Signage reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Bill 2003; and
5.5.5 Charge the customer the cost of recovery of any unpaid amount including any legal costs, disbursements and bank charges incurred.
5.6 Apex Signage reserves the right (in its entire discretion) at any time by notice in writing to the customer to set off any monies owed by Apex Signage to the customer against any monies owed to Apex Signage by the Customer under the contract.
6. Risk and property
6.1 Risk of damage to or loss of the goods shall pass to the customer:
6.1.1 In the case of goods to be delivered at Apex Signage premises, at the time when Apex Signage notifies the customer that the goods are available for collection; or
6.1.2 In the case of goods to be delivered otherwise than at Apex Signage premises, at the time of delivery or, if the customer wrongfully fails to take delivery of the goods, the time when Apex Signage has tendered delivery of the goods. Where title/property in the goods has not passed to the customer but risk has passed to the customer, the customer shall ensure that the goods are adequately insured with a reputable insurer and that Apex Signage interest in the goods is noted on the said insurance policy.
6.2 Notwithstanding delivery and the passing of risk in the goods, or any other provision of these conditions, the property in the goods shall not pass to the customer until Apex Signage has received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by Apex Signage to the customer for which payment is then due.
6.3 Until such time as the property in the goods passes to the customer, the Customer shall hold the goods as Apex Signage fiduciary agent and bailee, and shall keep the goods separate from those of the customer and third parties and properly stored, protected and insured and identified as Apex Signage property, but shall be entitled to resell or use the goods in the ordinary course of its business.
6.4 Until such time as the property in the goods passes to the customer (and provided the goods are still in existence and have not been resold), Apex Signage shall be entitled at any time to require the customer to deliver up the goods to Apex Signage and, if the customer fails to do so forthwith, to enter upon any premises of the customer or any third party where the goods are stored and repossess the goods.
6.5 The customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of Apex Signage, but if the customer does so all moneys owing by the customer to Apex Signage shall (without prejudice to any other right or remedy of Apex Signage) forthwith become due and payable.
6.6 The customer’s right to possession of the goods prior to payment of all sums due to Apex Signage in full shall terminate immediately if:
6.6.1 The customer has a bankruptcy order made against the customer or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to the court for the winding up of the customer or for the granting of an administration order in respect of the customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the customer; or
6.6.2 The customer suffers or allows an execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe/perform any of its obligations under the contract or any other contract between Apex Signage and the customer, or is unable to pay its debts within the meaning of the Insolvency Law Reform Act 2016 or the customer ceases to trade; or
6.6.3 The customer encumbers pledges or in any way charges any of the goods.
6.7 The customer grants Apex Signage, its agents and employees an irrevocable license at any time to enter any premises where the goods are or may be stored in order to inspect them, or, where the customer’s right to possession and/or power of sale has terminated, to recover them in either of which case the customer shall place the goods at the disposal of Apex Signage.
7. Warranties and liability
7.1 Subject to the conditions set out below Apex Signage warrants that the goods will be free from defects in material and workmanship for a period where Apex Signage manufactured the goods, or 12 months from delivery.
In all other cases, Apex Signage shall endeavour to pass on to the customer such manufacturer’s warranty or guarantees as may be afforded to Apex Signage Pty Ltd (and is capable of being passed on to the customer (without involving Apex Signage paying any extra premium or fee to any party) by the manufacturer or supplier of the goods to Apex Signage when such items were purchased by Apex Signage itself.
7.2 The above warranty is given by Apex Signage subject to the following conditions:
7.2.1 For the avoidance of doubt, the warranty does not apply to the installation.
7.2.2 Apex Signage shall be under no liability in respect of any defect in the goods arising from any information, drawing, design, instruction or specification supplied by the customer;
7.2.3 Apex Signage shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Apex Signage instructions (whether oral or in writing), improper installation (other than by Apex Signage) misuse or alteration or repair of the goods without Apex Signage approval;
7.2.4 Apex Signage shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the goods (and/or the installation) has not been paid by the due date for payment or if the customer is otherwise in breach of this contract or any other contract with Apex Signage Pty Ltd;
7.2.5 The above warranty does not extend to parts, materials or equipment not manufactured by Apex Signage, in respect of which the customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Apex Signage; and
7.2.6 The warranty shall be invalidated if the customer attempts to effect repairs to the goods itself or through a third party during the warranty period.
7.3 Subject as expressly provided in these conditions, and except where the goods are sold to a person dealing as a consumer (within the meaning of the Australian Competition & Consumer Commission’s Unfair Contract Terms), all warranties, conditions or other terms implied by statute or common law are excluded in the contract to the fullest extent permitted by law.
7.4 Apex Signage shall not be liable to the customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Apex Signage, its employees or agents or otherwise) which arise out of or in connection with the supply of the goods or their use or resale by the customer the installation, and the entire liability of Apex Signage under or in connection with the contract shall not exceed 125% of the price payable under the contract, except as expressly provided in these conditions.
7.5 Apex Signage shall not be liable to the customer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of Apex Signage obligations in relation to the contract, if the delay or failure was due to any cause beyond Apex Signage reasonable control and such failure or delay shall entitle either party to terminate the contract if it persists for more than three months but the customer shall remain liable to pay the price under the contract in respect of items delivered prior to the date of such cancellation.
Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Apex Signage reasonable control:
7.6.1 Act of God, explosion, flood, tempest, fire or accident;
7.6.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
7.6.3 Treaties, directives, acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any Commonwealth, State or Territory governmental or local authority or other body or competent authority;
7.6.4 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Apex Signage or of a third party);
7.6.5 Difficulties in obtaining raw materials, labour, fuel, parts or machinery; and/or
7.6.6 Power failure or breakdown in machinery;
7.6.7 Import or export regulations or embargoes.
7.7 Notwithstanding the other provisions of this Clause 7, Apex Signage may in its entire discretion once notice of any defect or fault in the goods has been notified in writing to Apex Signage and accepted by Apex Signage, elect to repair and/or replace the goods and if so, the replacement of the goods shall be the full extent of Apex Signage liability to the customer under the contract. Alternatively, the customer can request a refund.
If the goods are unavailable or not in stock, and the replacement option is elected by Apex Signage, Apex Signage may provide an identical replacement to the goods even if made by a different manufacturer.
7.8 Nothing in this Clause 8 shall restrict Apex Signage liability for death or personal injury caused by Apex Signage negligence or fraudulent misrepresentation.
7.9 Without prejudice to the other rights of Apex Signage under the contract, any claim made against Apex Signage under the contract must be brought within 3 months of the date on which the cause of action on the party of the customer arose.
7.10 Where applicable, the limitations of Apex Signage liability set out in this Clause 7 and elsewhere in these conditions apply mutatis mutandis to any liability of Apex Signage under the contract in respect of the installation.
8.1 Delivery of the goods shall be made by the customer collecting the goods at Apex Signage premises at any time after Apex Signage has notified the customer that the goods are ready for collection or, if some other place for delivery is agreed in writing by Apex Signage, by Apex Signage delivering the goods to that place.
Where Apex Signage agrees to deliver the goods at a location other than at Apex Signage premises, Apex Signage shall be under no obligation under Section 32(2) of the NSW Sale of Goods Act 1923.
8.2 Any dates quoted for delivery of the goods are approximate only and Apex Signage shall not be liable for any delay in delivery of the goods howsoever caused.
Time for delivery shall not be of the essence of the contract unless previously agreed by Apex Signage in writing by an authorised signatory of Apex Signage. The goods may be delivered by Apex Signage in advance of the quoted delivery date upon giving reasonable notice to the customer.
8.3 Where the goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Apex Signage to deliver any one or more of the instalments in accordance with these conditions or any claim by the customer in respect of any one or more instalments shall not entitle the customer to treat the contract as a whole as repudiated.
8.4 If Apex Signage fails to deliver the goods (or any instalment) for any reason other than any cause beyond Apex Signage reasonable control or the customer’s fault, and Apex Signage is accordingly liable to the customer, Apex Signage liability shall be limited to the excess (if any) of the cost to the customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the goods.
In no circumstances shall Apex Signage be responsible for any other loss (including loss of profit) whether direct or indirect or consequential costs, damages, charges or expenses arising out of such late delivery.
8.5 If the customer fails to take delivery of the goods or fails to give Apex Signage adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of Apex Signage fault) then, without prejudice to any other right or remedy available to Apex Signage, Apex Signage may:
8.5.1 Elect that the goods are deemed delivered; or
8.5.2 Store the goods until actual delivery and charge the customer for the reasonable costs (including insurance) of storage; or
8.5.3 Sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the customer for the excess over the price under the contract or charge the customer for any shortfall below the price under the contract.
8.6 Save where the customer signs a delivery note accepting delivery of the goods in satisfactory condition, in which case the customer will be deemed to have accepted the goods as being free of all defects or faults, all defects in the goods must be notified in writing (giving full details of the alleged defects and affording Apex Signage a reasonable opportunity to inspect the alleged defects, failing which the notice shall be deemed to be invalid) by the customer to Apex Signage within 7 days of delivery of the goods otherwise the goods will have been deemed to have been accepted and to have been delivered to the customer free of all defects or faults and the customer shall have no further right to reject the goods or recover any compensation.
8.7 Notwithstanding any other clause in the conditions, if any goods are used after delivery or installation by the customer, then the customer shall be deemed to have accepted the goods as being in all respects in accordance with the contract.
9.1 It is the customer’s responsibility to ensure that the goods do not infringe or that their use or resale does not infringe the patent copyright design trademark or other industrial or intellectual property rights of any other person and the customer shall indemnify Apex Signage against all loss, damages, costs and expenses awarded against or incurred by Apex Signage in connection with any claim paid or agreed to be paid by Apex Signage in settlement of any claim.
10.1 Installation at a fixed site
10.2 Where installation is required pursuant to the contract, Apex Signage shall install the goods on the terms and conditions set out in this Clause and the contract generally.
10.3 Apex Signage is not responsible for any delay in installation directly or indirectly arising out of the actions or omissions of the customer (including any employee, officer or contractor of the customer) or any third party.
10.4 The customer shall: –
10.4.1 Make any necessary agreement with relevant regulatory, governmental or other authorities or other relevant third parties and obtain any consent or authorisation required in respect of the installation;
10.4.2 Provide any information Apex Signage may reasonably require in connection with the installation;
10.4.3 Pay for any relevant approval or permission;
10.4.4 Meet the requirements of any of these authorities at all times to maintain their approval;
10.4.5 Tell Apex Signage if any information the customer has given to Apex Signage changes; and
10.4.6 If any approval, consent or authorisation is amended or ends, the customer must advise Apex Signage in writing as soon as the customer learns of any amened or terminated approval, consent or authorisation.
10.5 The customer must during installation: –
10.5.1 Give Apex Signage access to the premises so that Apex Signage may perform the installation and provide all such assistance as may be reasonably requested by Apex Signage promptly and without cost to Apex Signage. The customer shall move any materials, and other objects obstructing or preventing installation in advance of the agreed installation date;
10.5.2 Use best efforts to make sure that the premises and any equipment provided are safe and without risk for Apex Signage employees and agents. The customer must tell the Apex Signage the location of any concealed pipes and wires which may affect the installation and about any known risks and any hazardous materials at the premises, provided that Apex Signage may decline to carry out the installation if it considers that the installation in accordance with the customer’s instructions nevertheless presents a risk to Apex Signage employees and agents (without prejudice to any remedy that Apex Signage may have in this regard).
10.5.3 The customer warrants that they have unencumbered title to any materials (such as old signs) to be removed from any location at which goods are delivered or to be installed, and that the customer is properly authorised to dispose of them without the consent of any third party. The customer also warrants that said materials are safe to remove, that are not contaminated or contain dangerous components.
10.5.4 Provide information about the customer, the premises and any other relevant information so that Apex Signage can perform the installation. The customer must write to Apex Signage to tell them of any changes to this information;
10.5.5 Ensure that Apex Signage staff and contractors have adequate welfare facilities (toilet and washing facilities).
10.6 References in these conditions to the goods shall (unless the contract otherwise requires and include where relevant and applicable) reference to the installation and the relevant provisions of the Agreement shall accordingly apply once the necessary changes having been made to the installation.
10.7 Vehicle Wrap Installation
10.7.1 It is the customer’s responsibility to ensure vehicle suitability and that the existing surface to be vinyl wrapped are clean, dry and free from grease, dirt, wax, oil, and free from any existing graphics and decals upon delivery to Apex Signage premises. An exterior vehicle detailing charge will be applied in addition to the installation fee when, in the opinion of Apex Signage, any vehicle is not in a satisfactory condition suitable for a quality wrap installation.
10.7.2 Apex Signage vehicle preparation does not include paint chip repairs or the removal of dents, scrapes and paintwork scuffs.
10.7.3 Should badges need to be removed Apex Signage will at all times use the very best care. Any resulting damage to the badge or marks on the paintwork surface may require remedial work when the Signage is removed at a later date
Apex Signage holds no liability for any future remedial work following removal of the badge.
10.7.4 In the event that a customer requests that Apex Signage remove a pre-installed vinyl wrap, applied by a company other than Apex Signage, Apex Signage will make every effort to remove the existing vinyl, but will not be held responsible for any damage they may occur to the vehicle surface during the wrap removal.
10.7.5 Apex Signage prefers to use our premises for installation. If the customer elects to have vinyl wrap installation performed at non Apex Signage premises, Apex Signage will not be held liable for any issues related to improper installation conditions.
10.7.6 Vehicle delivery to and retrieval from an appointed installation premises is the customers responsibility and must be undertaken in good time what advised by Apex Signage.
10.7.7 All applied vinyl wrap remains the property of Apex Signage until paid for in full. Pending payment for goods supplied, the customer holds the goods as the property of Apex Signage and the goods must be kept identified as belonging Apex Signage. In the event that the customer fails to make payment, the customer irrevocably authorizes Apex Signage to remove the vinyl wrap.
10.7.8 Vehicles Storage Fee: Vehicles or trailers left at Apex Signage premises will be charged a daily storage fee. Fee will be assessed three days after the installation has been completed. Vehicle or trailers left at Apex Signage premises in excess of thirty days will be subject to a lien sale.
11. Contract termination
11.1 This clause applies if:
11.1.1 The customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
11.1.2 An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the customer; or
188.8.131.52 The customer ceases, or threatens to cease, to carry on business; or
11.1.4 Apex Signage reasonably understand or perceives that any of the events mentioned above is about to occur in relation to the customer and notifies the customer accordingly.
11.1.5 The customer is in breach of the provisions of the contract and fails to remedy the same (if capable of remedy) within 5 Business days of Apex Signage notifying the customer of such breach.
11.2 If this clause applies then, without prejudice to any other right or remedy available to Apex Signage, Apex Signage shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the customer, and if the price has not been paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12.1 Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.2 No waiver by Apex Signage of any breach of the contract by the customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected.
12.4 Each right or remedy of Apex Signage under the contract is without prejudice to any other right or remedy of Apex Signage whether under the contract or not.
12.5 Failure or delay by Apex Signage in enforcing or partially enforcing any provision of the contract will not be construed as a waiver of any of its rights under the contract and any waiver by Apex Signage of any breach of, or any default under any provision of the contract by the customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the contract.
12.6 The contract and any documents referred to in it constitute the entire agreement between the parties.
12.7 The customer must keep confidential and must not (without Apex Signage’s written consent) use any ideas, systems or processes communicated or made available by Apex Signage to the customer.
12.8 All electronic media (other than the media supplied by the customer) used by Apex Signage to store data for the purposes of completing the contract remain the sole property of Apex Signage. The customer cannot require Apex Signage to supply to the customer any such data. Apex Signage may charge the customer for supplying such data where it chooses to supply such data to the customer.
12.9 Apex Signage may assign and/or subcontract the contract or any part of it to any person, firm or company. The customer shall not be entitled to assign the contract or any party of it without the prior written consent of Apex Signage.
12.10 A person who is not a party to the contract or any other contract between Apex Signage and the customer shall have no rights under the contracts (Privity of Contract) to enforce any of its terms. Any rescission, variation, amendment or waiver to or of this contract or any other contract between Apex Signage and the customer shall not require the consent or approval of any person who is not a party to such a contract.
12.11 Words in the singular include the plural and in the plural include the singular. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
12.12 The contract shall be governed by and construed in accordance with the laws of New South Wales and the customer agrees to submit to the exclusive jurisdiction of the Australian courts.