Terms & Conditions - ExpressApps Pty Ltd

ACN 091 887 160

1.       General: The Customer accepts these terms by placing an order with ExpressApps.   If ExpressApps confirms acceptance of the order, there is a binding contract for the order on these terms.  The Customer cannot then cancel the order in whole or part (except where these terms allow it).  ExpressApps can confirm acceptance in writing, verbally, by email, or by starting to deliver under the order.

2.       Price: All prices quoted are in Australian Dollars and are subject to change without notice. Unless otherwise stated, quotes are provided exclusive of any GST and do not include any other taxes, excise, duties or imposts imposed by any Government, delivery costs or delivery insurance. Tax invoices will be issued, in accordance with the GST law and any GST will be shown as a separate line on a tax invoice when issued.

3.       Payment: Unless the Customer is an approved credit account customer, payment shall be made in advance of shipment by bank cheque, telegraphic transfer, B Pay or directly into A/C No. 083 421 483992824 NAB Ltd, or as ExpressApps directs from time to time.

4.       ExpressApps may at its absolute discretion, approve the granting of credit to the Customer.   If ExpressApps allows credit:

4.1.     The Customer must pay each invoice in full without deduction, set off or withholding, within 14 days of the date of the invoice.

4.2.     No dispute by the Customer in respect of one order entitles it to withhold payment for any other order.

If:

4.3.     the Customer has defaulted on due payment of an invoice; and

4.4.     the Customer has not raised a bona fide dispute in respect of that invoice within 7 days of receiving it –

then:

4.5.     ExpressApps may charge interest at the rate of 1.5% per month on monies under that invoice that are overdue; and

4.6.     invoices for any other orders shall become payable on demand by ExpressApps;

4.7.     ExpressApps may suspend any other orders without liability to the Customer; and

4.8.     the Customer will indemnify ExpressApps for all reasonable costs incurred as a result of the default.

5.       Passing of Property / Risk:  Title and property in goods supplied to the Customer by way of sale shall not pass to the Customer until ExpressApps has received payment in full.  The Customer grants an irrevocable licence to ExpressApps, its employees or agents, to enter the premises where the goods are situated and using reasonable force where necessary, remove the goods. The Customer indemnifies ExpressApps from any liability in respect of any damage arising therefrom.  The risk in goods will pass to the Customer immediately upon delivery of the goods to the Customer.

6.       Shipping, Freight & Delivery:  All costs of freight, delivery and unloading goods on arrival shall be borne by the Customer including all required insurances.

7.       On-Site Work: When ExpressApps makes a General Supply of Services on-site:

7.1.     by signing the ExpressApps service docket, the Customer approves all the work undertaken by ExpressApps and agrees to the number of hours on site, travel time and all parts or material used;

7.2.     any work requested on-site that is not covered by an order is deemed to be an extra service and will be charged at ExpressApps’ standard rate; and

7.3.     where the time spent is likely to exceed any budget provided ExpressApps will use reasonable endeavours to inform the Customer and seek approval prior to spending further time.

8.       Reasonable Endeavours: ExpressApps will use reasonable endeavours to supply the goods and services in accordance with an accepted order, but is never liable for failure to supply caused directly or indirectly by any act or omission of any third party or by reason of an event beyond its reasonable control.

9.       Express Warranties: ExpressApps warrants that all supplies of:

9.1.     goods – shall be subject to the manufacturer’s standard warranty; and

9.2.     services – shall be free from defects in materials and workmanship for a period of 30 days from the date of delivery –

provided that:

9.3.     the Customer must promptly (and always within 7 days of discovering the defect or 14 days of the supply – whichever is earlier) provide ExpressApps with written details of any defect and allow ExpressApps all necessary access to remedy the defect or claim the manufacturer’s warranty; and

9.4.     clauses 9.1 and 9.2 do not apply where:

9.5.     the defect arises from misuse, neglect, accident or normal wear and tear, or anything that voids a manufacturer’s warranty; or

9.6.     goods or services were used for a purpose other than that intended; or

9.7.     the Customer or any other third party has attempted to modify goods or services from the state in which ExpressApps supplied them; or

9.8.     the supply is made in accordance with a specific Customer direction.

10.    Limitation of Liability:  (a) Some laws, such as the Trade Practices Act 1974 (‘TPA’) and corresponding State laws, may create rights or remedies that cannot be excluded, restricted, modified or limited.  (b) ‘Non-Excludable Term’ means any warranty or condition that is implied in this agreement by the TPA or otherwise, to the extent to which (i) it may not lawfully be excluded, restricted, modified or limited or (ii) any exclusion, restriction, modification or limitation of it is void. (c) ‘Non-Excludable Right’ means: (i) a Non-Excludable Term; and (ii) any law or its application, and any right or exercise of a right conferred by any law, (including but not limited to the TPA) to the extent to which (A) it may not lawfully be excluded, restricted, modified or limited or (B) any exclusion, restriction, modification or limitation of it is void. (d) ‘Non-Excludable Liability’ means any liability to the extent to which (a) it may not lawfully be excluded, restricted, modified or limited or (b) any exclusion, restriction, modification or limitation of it is void.

10.1. This agreement: (a) includes all Non-Excludable Rights; and (b) does not exclude, restrict, modify or limit any Non-Excludable Right or Non-Excludable Liability.

10.2. To the fullest extent permitted by law, ExpressApps’ liability for breach of any Non-Excludable Term is limited at its option to the following: (a) in the case of goods: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; (iv) the payment of the cost of having the goods repaired; or (b) in the case of services: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.

10.3. Except for Non-Excludable Terms and express warranties and conditions: (a) this agreement excludes, and ExpressApps disclaims, all conditions and warranties of any kind including but not limited to implied warranties of merchantability and fitness for a particular purpose, whether such conditions or warranties are implied by custom, law or statute; and (b) ExpressApps supplies all goods and services ‘as is’ and without warranties of any kind.

10.4. ExpressApps is not liable for any indirect, special, economic or consequential loss or damage or loss of revenue, profits, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings that the Customer incurs or suffers in any way, whether: (a) ExpressApps caused it by its negligence; or (b) ExpressApps knew or should have known of the possibility of such loss or damage.

10.5. ExpressApps’s maximum aggregate liability, whether for breach of an accepted order or in negligence or in any other tort or for any other common law or statutory cause of action or otherwise is the amount the Customer has paid to ExpressApps under the order (but this does not apply in the case of a claim that ExpressApps has caused personal injury or death).

11.    No cancellations:  All supplies are firm sales, and not subject to returns except where (a) ExpressApps otherwise agrees or (b) these terms expressly permit. If ExpressApps agrees to a return based on the Customer’s claim of a defect, and the defect is not verified on return:  (a) the Customer must re-accept the goods;  (b) the Customer must pay costs of re-delivery of the goods; and (c) ExpressApps may charge a reasonable fee for examining and testing the goods.

12.    Jurisdiction: These terms are subject to the laws that apply in Victoria, Australia.  Legal proceedings relating to these terms or any order or any dispute about them must be brought in the courts of Victoria, Australia.

13.    Notices: Any notice under these terms shall be in writing and may be served (a) by pre-paid mail or facsimile to either party at its last notified address or (b) in any other way permitted by law.  A notice is deemed to have been received at the time it would normally have been received in the usual course of its method of delivery, except that a notice that is received or is deemed to be received outside business hours is taken to be received at 9 a.m. on the next business day.

14.    Severance: Anything in these terms that is unenforceable must be read down, to the point of severance if necessary.  The rest of these terms then continue in full force.

15.    Non-waiver: If ExpressApps overlooks a breach of these terms by the Customer on one or more occasions, it is not taken to have agreed to any future breach.