13.1. APT’s Goods come with guarantees that cannot be excluded under the ACL.
To the extent that the Customer is a ‘consumer’ within the meaning of the ACL, the following applies:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law.
You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.
You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
13.2. APT warrants that all Goods supplied are of merchantable quality, reasonably fit for purpose, and match the sample and any description provided on the Website.
13.3. Should any Goods not be of merchantable quality, APT will replace the Goods at no cost to the Customer or provide the Customer with a full refund at the Customer’s preference. Please contact our online customer service team via email at firstname.lastname@example.org.
The Customer will indemnify and keep indemnified and hold APT harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by APT, and from and against all actions, proceedings, claims or demands made against APT, arising from one or more of the following:
(a) the Customer’s failure to comply with any laws, rules, standards, regulations or instructions applicable in relation to the Goods or the use of the Goods; and
(b) any negligence or breach of duty by the Customer and its employees, agents or contractors in relation to the Goods or the use of the Goods.
15.1. Any provision of these Terms that excludes any terms, conditions or warranties, or limits the liability of a party will apply only to the extent permitted by law and these Terms will be construed subject to such terms, conditions, warranties and limitations.
15.2. To the extent permitted by law, APT excludes all implied terms, conditions and warranties.
15.3. Except as expressly provided in these Terms, to the extent permitted by law, APT will have no liability to the Customer, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity.
16. FORCE MAJEURE
16.1. Neither party will be liable for any delay or failure to perform its obligations under these Terms (other than payment obligations) if such delay is due to Force Majeure.
16.2. If a delay of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended for the duration of the Force Majeure.
16.3. If the Force Majeure has lasted for more than one(1) month, either party may cancel all or part of these Terms. In the event of Force Majeure, the Customer does not have the right to any compensation or payment even if APT has enjoyed any benefit as a result of the Force Majeure.
16.4. APT will inform the Customer as soon as possible of any potential or actual Force Majeure.
17. INTELLECTUAL PROPERTY RIGHTS
All confidential information, material and IPR supplied by APT belong to APT.
The Customer agrees to notify APT in writing within five (5) Business Days of any change whatsoever in ownership structure and, further, indemnifies APT against any loss or damage that may result from the Customer’s failure to notify APT of any such change.
20.1. Either Party may terminate the Terms at any time with immediate effect by giving the other Party written notice of termination if:
(a) the other Party commits a material breach of the Terms which is not remediable; or
(b) the other Party, having breached a term of the Terms which is remediable and having been given a notice which specifies the breach that has occurred and requires rectification, fails to remedy the breach within the time specified.
20.2. Notwithstanding the provisions in clause 20.1, either party may terminate the Terms upon giving twenty (20) Business Days’ written notice of termination to the other.
20.3. Upon termination of these Terms under clause
20.1 or 20.2, the Customer must immediately pay all invoices in full.
21. DISCLOSURE OF INFORMATION
APT may disclose the information in this application and any default in payment in excess of sixty (60) days to a credit reporting agency in accordance with the Privacy Act 1988 and may obtain a report regarding the Applicant’s credit worthiness from a credit reporting agency or any credit provider named on this Application or disclosed by a credit reporting agency of which APT regularly deal with.
22. PROVISIONS SEVERABLE
The Parties acknowledge and agree that if any provision or part of any provision of these Terms is unenforceable, it will be read down to be enforceable or, if it cannot be read down, the term will be severed from the Terms without affecting the enforceability of any part of such provision or any other provision.
23. DISPUTE RESOLUTION
23.1. This clause 23 applies if the Customer has a Credit Account.
23.2. Before instituting legal proceedings, any dispute between APT and the Customer in relation to the Terms will be referred to mediation administered by the Australian Commercial Disputes Centre (ACDC) and held in Melbourne, Victoria.
23.3. If the dispute has not been resolved within 28 days of the appointment of a mediator, APT or the Customer may commence legal proceedings.
23.4. Nothing prevents either APT or the Customer from seeking urgent injunctive relief from a court of appropriate jurisdiction.
24. CUSTOMER TRADING THROUGH TRUST
24.1. The Customer agrees that even though it enters into the Terms as trustee of a trust, the Customer will also be liable personally for the performance and observance of every term or covenant to be observed and performed by the Customer, whether express or implied in these Terms.
24.2. The Customer warrants that it has complete, valid and unfettered power to enter into these Terms pursuant to the provisions of a trust where applicable and warrants that the Customer’s entry into these Terms is in the due administration of the trust.
24.3. The Customer covenants it has an unrestricted and unlimited right of indemnity against the property of the trust.
24.4. The Customer warrants that all information provided to APT is true and correct and acknowledges that APT has relied on and has been induced on this basis to grant credit and/or deal with the Customer.
24.5. The Customer indemnifies and will keep APT indemnified against all loss incurred by APT as a result of the failure to disclose the existence of any trust or trustee relationship, including any loss incurred as a result of registering a PPS registration against the wrong entity or with the wrong identifiers.
25.1. All rights under these Terms are in addition to and do not abrogate, limit or reduce any other rights that APT may have.
25.2. These terms are governed by the laws of Victoria, Australia and the parties submit to the non-exclusive courts exercising jurisdiction in that state.
25.3. APT’s failure to enforce any of these Terms will not be construed as a waiver of any of APT’s rights.
25.4. APT is not bound by any agreement purporting to waive or vary these Terms unless such agreement is in writing and signed by a duly authorised representative.
25.5. APT accepts no responsibility for changes in any law which may affect the supply of Goods.
25.6. Clerical errors are subject to correction and do not bind APT.
25.7. In placing any order with APT, the Customer expressly represents that the Customer:
(a) is solvent; and
(b) has not committed an Insolvency Event; and
(c) knows of no circumstances which would entitle any secured creditor to appoint a receiver or which would entitle any creditor or shareholder to apply to the Court to liquidate the Customer or exercise any other rights over or against the Customer’s assets.
25.8. A notice must be in writing and handed personally or sent by email or prepaid mail to the addressee. Notices sent by mail are deemed to be received three (3) days after posting. Notices sent by fax or email are deemed received on confirmation of transmission or otherwise in accordance with applicable Laws.
25.9. Where a person uses or authorises the use of his or her signature in whatever form, including approving an authorised person (including any employee) to apply his or her signature to a
document, leaving an authorised person with his
25.10. or her email address and password, that person agrees that they:
(a) have full knowledge of these Terms and all material circumstances related to or as stated in the relevant document;
(b) have provided the requisite authority in whatever form for the use of their signature for the express purpose of entering into legally binding arrangements;
(c) acknowledge that APT has relied on this clause and any signature as being applied with full and complete authority (express, implied or ostensible) by person whose signature is used; and
(d) understand the nature and effect of these Terms.
25.11. APT and the Customer consent to the Terms being produced, signed and retained solely in an electronic form, provided that the production, signing and retention complies with the requirements of the relevant Electronic Transactions Acts.
25.12. The rights and obligations of APT and the Customer under the Terms will be binding on, and will be of benefit to, each of the party’s successors, permitted assigns, heirs, executors and administrators.