TERMS & CONDITIONS for THE APEX COMPANIES (Revised 09/24/2025)
NOTE: For Equipment Maintenance Contracts ONLY: TERMS AND CONDITIONS OF MASTER CONTRACT MAINTENANCE AGREEMENT
1. SELLER AND BUYER. As used herein, the term “Seller” shall refer to the applicable member of the Apex Companies in the sales quotation submitted to Buyer (the “Quote”), which may include, without limitation, Apex Material Handling Corporation, Apex Storage, LLC d/b/a Apex Storage & Automation, LLC, Apex Installation Services, LLC and/or any affiliates of the foregoing. As used herein, “Buyer” shall refer to the buyer named in the Quote.
2. SCOPE OF TERMS. These Terms and Conditions (these “Terms”) apply to any Quote or order acknowledgment from Seller and such Quote or order acknowledgement is an offer subject to and expressly conditioned upon Buyer’s assent to these Terms and any terms included on Seller’s Quote or order acknowledgment, whether assent is in writing or by conduct. Acceptance of (including Seller commencing performance under a Quote with Buyer’s knowledge) or payment for any products or services shall constitute such assent. Any contrary provision, term, or condition, other than those stated in the Quote and these Terms, including, without limitation, in any purchase order, acknowledgement or other document submitted by Buyer to Seller (it being acknowledged that unless otherwise set forth in a Quote, any such Buyer purchase order, acknowledgement or other document should be delivered to either 814 Commerce Drive, Oak Brook, IL 60523 or (630) 293-8612 (fax)), whether before or after the date of the Quote, or any course of dealing or course of performance between the parties, or any trade practices, are hereby rejected by Seller, and of no force and effect. Except as otherwise provided herein, in the event of any inconsistency between the Quote and these Terms, these Terms shall control and take priority.
3. SHIPMENT. Unless otherwise specifically agreed in writing, all prices are for products packed for domestic shipment and for delivery F.O.B. shipping point. All shipping dates are approximate and based on prompt receipt of all necessary information from Buyer. All risk of loss shall be upon Buyer from point of shipment. Buyer shall pay all transportation and delivery charges to final destination. Title to products shall pass to Buyer only upon payment in full by Buyer. Buyer shall be deemed to have accepted any products delivered to Buyer (including, without limitation, as to the quality and quantity of products delivered) unless Buyer delivers a written rejection notice to Seller within 72 hours of products being received by Buyer.
4. PRICES; TAXES. The quantity and price of products and the scope, fees and charges for any services shall be set forth in the Quote. All prices, fees and charges are stated in USD. Unless otherwise expressly stated in the Quote, all prices for products exclude shipping and taxes, and such shipping and taxes shall be Buyer’s responsibility. Unless otherwise expressly stated in the Quote, permits are not included and shall be Buyer’s responsibility. Prices stated in the Quote or in Buyer's order are based on present costs. Such prices are subject to increase by Seller at any time in respect of all or any portion of the products on order to the extent necessary to cover Seller's increased costs applicable thereto (including, without limitation, increased costs to Seller related to increased material costs from its suppliers, tariffs, duties or similar government imposed charges, force majeure events described herein below, or industry wide supply chain disruptions). Such prices do not include reasonable and normal local preparation and delivery charges which Buyer will pay upon receipt of Seller's invoice therefore. The amount of taxes, if any, is approximate only. Buyer is liable for the full amount of all taxes applicable to or as a result of the transactions in a Quote, exclusive of franchise taxes and taxes measured by Seller’s net income. Buyer shall pay the amount of all such taxes at any time requested by Seller as if originally added to the price. If Seller pays such taxes, Buyer shall reimburse Seller therefore upon Seller’s demand.
5. PAYMENT TERMS. Partial shipments may be made and payments therefore shall become due in accordance with these Terms. Finance charges are subject to rates in effect at time of delivery of equipment herein described. Any financing terms are subject to credit approval and Seller may at any time prior to delivery modify the terms of payment originally specified to assure prompt payment for the equipment ordered. Unless otherwise stated in the Quote, payment terms are Net 10 calendar days from the date of Seller’s invoice. Buyer shall pay interest on any late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer may not deduct or setoff any amounts from any payment due to Seller without Seller’s prior written consent. Unless otherwise set forth in a Quote or an invoice from Seller, payment should be remitted to Seller at P.O. Box 7857, Carol Stream, IL 60197-7857. A 3% Administrative Fee will be added to all credit card payments.
6. SECURITY INTEREST AND DEFAULT. As collateral security for the full payment of the purchase price, Seller shall retain, and Buyer hereby grants to Seller, a lien on and security interest in the products and equipment delivered, wherever located, and whether now existing or hereafter arising or acquired from time to time, all proceeds and insurance proceeds thereof, if any, and all increases, substitutions, replacements, additions and accessions thereto, until the total selling price including taxes, delivery and other charges is paid in full by Buyer. The security interest granted under this provision constitutes a purchase money security interest under the Illinois Uniform Commercial Code (“UCC”). Buyer further agrees to execute any other documents to perfect said security interest at the request of Seller and hereby appoints Seller its agent to execute all documents and do all things on its behalf in order to perfect and give full effect to the security interests of Seller herein and to maintain such rights or interests enforceable against third parties in all jurisdictions where the goods may be situated (including, without limitation, filing UCC-1 Financing Statements in all appropriate jurisdictions). If Buyer shall fail or refuse to accept delivery of the products or equipment ordered hereunder or shall default in the performance of any of the terms, covenants and conditions of this agreement, Seller may retain the cash deposited or paid to it and the equipment accepted by it on account of the sale price, if any, and apply the same toward payment of its damages. If products or equipment ordered has been delivered to Buyer by Seller at the time of default, Seller may declare the full amount due and payable without notice or demand and may repossess the equipment. The remedies provided herein in favor of Seller shall not be deemed exclusive but shall be cumulative and shall be in addition to all other remedies in existing at law or equity.
7. DISCLAIMER OF WARRANTIES; THIRD PARTY PRODUCTS. SELLER HEREBY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Products or materials manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, products or materials sold, obtained, or furnished by Seller. TO THE EXTENT ANY THIRD-PARTY PRODUCTS ARE SOLD, OBTAINED OR OTHERWISE FURNISHED BY SELLER, BUYER ACKNOWLEDGES AND AGREES THAT (I) SELLER IS ACTING AS A RESELLER OR DISTRIBUTOR OF SUCH PRODUCTS AND IS NOT A MANUFACTURER OF SUCH PRODUCTS, (II) ANY WARRANTIES ON SUCH PRODUCTS ARE THE MANUFACTURERS’ WARRANTIES, AND (III) ALL THIRD PARTY PRODUCTS SOLD, OBTAINED OR FURNISHED BY SELLER SHALL CARRY WHATEVER WARRANTY, IF ANY, SUCH MANUFACTURERS HAVE CONVEYED TO SELLER AND WHICH CAN BE PASSED ON TO BUYER. ALL THIRD-PARTY PRODUCTS ARE SOLD BY SELLER “AS IS” AND SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES BASED UPON LOSS OF USE, LOST PROFIT OR REVENUE, LOST GOODWILL, WORK STOPPAGE, BUSINESS INTERRUPTION, OR IMPAIRMENT OF OTHER PRODUCTS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY QUOTE, THESE TERMS OR THE SALE OF PRODUCTS OR THE PERFORMANCE OF WORK THEREUNDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER FOR THE PRODUCTS SOLD OR SERVICES PROVIDED UNDER SUCH QUOTE. BUYER SHALL HAVE NO RIGHT TO MAKE ANY CLAIM AGAINST SELLER IN CONNECTION WITH THE PERFORMANCE OF ANY THIRD-PARTY PRODUCT, IT BEING ACKNOWLEDGED BY BUYER THAT BUYER’S SOLE REMEDY FOR SUCH WILL BE AGAINST THE MANUFACTURER OF SUCH THIRD-PARTY PRODUCT.
9. DELAYS; FORCE MAJEURE. Seller shall not be liable for loss or damage due to delay in delivery or manufacture, resulting from any cause beyond Seller's reasonable control, without limitation, compliance with any regulations, orders, or instructions of any federal, state or municipal government or department or agency thereof, tariff impositions, acts of God, epidemic, pandemic or disease, acts of civil or military authority, fires, strikes, factory shutdowns or alterations, embargoes, war, riot, delays in transportation, acts or omissions of the Buyer, or inability due to causes beyond Seller's reasonable control to obtain necessary labor, manufacturing facilities or materials from the Seller's usual sources, and any delays resulting from such cause shall constitute cause for extending delivery dates and receipt of goods shall constitute a waiver of all claims for damages.
10. CANCELLATION. Buyer may not cancel an order, reduce quantities, revise specifications, or extend schedules without Seller’s prior written consent. Any such consent shall only be given based on mutual agreement as to reasonable and proper cancellation charges which shall take into account expenses already incurred and commitments made by Seller, and Buyer shall indemnify Seller against any loss resulting therefrom. A cancellation charge/restocking fee shall apply to any cancelled or changed order and shall not be less than the greater of (a) 25% of the total purchase price set forth in the Quote or (b) an amount equal to the sum of (i) the unpaid portion of the fees and expenses for products or services provided by Seller through the effective date of cancellation; (ii) the actual cost for work-in-process (including incurred costs and committed costs) that has been performed by Seller through the date of termination; and (iii) an equitable adjustment for Seller’s reasonable expected contract profit.
11. COMPLIANCE WITH LAWS; OSHA TRAINING. Buyer shall comply with all applicable laws, regulations, and ordinances, and shall maintain in effect all licenses, permissions, authorizations, consents, and permits that are required for Buyer to carry out its obligations under the Quote or these Terms and as otherwise required to allow Seller to perform any on-site services, as applicable. Buyer acknowledges and understands that it is Buyer’s sole responsibility to ensure that Buyer’s industrial vehicle and aerial equipment operators are trained in accordance with the applicable provisions enumerated under the Occupational Safety and Health Act (OSHA) or any other legal requirements.
12. ON-SITE SERVICES; INDEMNIFICATION. Services to be provided by Seller may include inspection and installation services to be performed on-site at Buyer’s location, and from time to time, Buyer may require that Seller personnel (whether employees or contractors) use property provided by Buyer, which may include, without limitation, tools, forklifts, scissor lifts and other equipment or machinery. Unless otherwise stated, any installation services quoted are for services to be performed during regular business hours, under ambient conditions. Buyer shall maintain a safe on-site working environment and keep the installation area and staging area free and clear of all debris and hazards. Unloading of products for on-site services is to be performed by Buyer, unless otherwise stated in a Quote. If Seller uses any property provided by Buyer, then Buyer agrees to indemnify, defend, and hold Seller, its affiliates, and their respective owners, managers, directors, officers, agents, employees and subcontractors (collectively, “Seller Indemnified Parties”) harmless from and against all claims, actions, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees, expenses and costs), including, without limitation, claims related to personal injury or property damage (collectively, “Losses”), arising from or related to the use of such property provided by Buyer (including, without limitation, claims related to product liability or product malfunction). Buyer further agrees to indemnify, defend and hold the Seller Indemnified Parties harmless from all Losses arising from or relating to Buyer’s negligence, willful misconduct or breach of these Terms.
NOTE: For Equipment Maintenance Contracts ONLY: TERMS AND CONDITIONS OF MASTER CONTRACT MAINTENANCE AGREEMENT
13. MISCELLANEOUS. The Quote and these Terms shall be governed by, construed, and enforced in accordance with the laws of the State of Illinois, without reference to conflicts of law principles. Any lawsuit, action or proceeding arising out of or relating to the Quote or these Terms shall be brought in a federal or state court in the jurisdiction where Seller maintains its then-current corporate headquarters, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. The provisions hereof are intended by Buyer and Seller as a final expression of their agreement and are intended also as a complete and exclusive statement of all the terms applicable to Buyer's order. No waiver, modification, or addition to any of the terms hereof shall be binding on Seller's unless made in writing by Buyer and Seller. In the event of conflict between Buyer's purchase order and the terms hereof, these Terms shall control. Any notice sent pursuant to the Quote or these Terms shall be in writing and sent by certified mail, proper postage prepaid, return receipt requested, or by properly paid overnight mail, to the addresses on the Quote, or to such address as either party may in the future designate in writing. Notices sent by certified mail shall be effective two (2) business days after being placed in the United States mail, and if sent by recognized overnight carrier, upon delivery. If and to the extent any provision of a Quote or these Terms is held invalid or unenforceable at law, such provision will be deemed stricken from the Quote or these Terms and the remainder of the Quote or these Terms will continue in effect and be valid and enforceable to the fullest extent permitted by law. Seller shall be entitled to recover from Buyer all of Seller’s reasonable fees and expenses (including without limitation attorneys’ fees, expenses and costs) incurred in connection with collecting any late payments and/or for any suit, action or proceeding arising out of or related to Buyer’s purchase of products or services, the collection of any sums past due from Buyer to Seller, the Quote or these Terms. Failure by Seller to demand compliance or performance of any term or condition of any Quote or these Terms shall not constitute a waiver of Seller’s rights hereunder. The Quote and these Terms shall be binding upon and inure to the benefit of the parties, and their respective successors and permitted assigns. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Buyer may not assign its rights, interests or obligations under the Quote or these Terms without Seller’s express prior written consent. The Quote or these Terms may not be amended, supplemented, changed, or modified, except in writing signed by the parties. Facsimile, pdf and other electronic signatures shall be deemed and accepted as originals. In the event of execution in one or more counterparts, each shall be deemed an original, and all of them together will constitute one and the same instrument.
APX-1000
TERMS AND CONDITIONS OF MASTER CONTRACT MAINTENANCE AGREEMENT
This Master Agreement, made and entered into by and between the client, herein after called the “Customer” and Apex Material Handling Corporation herein after called the “Vendor”.
WITNESSETH: That, in consideration of the premises, the Customer and the Vendor do hereby covenant and agree in these presents as follows: Vendor will perform maintenance subject to the terms of this Master Contract Maintenance Agreement and associated Maintenance Schedules. The terms of each Maintenance Schedule shall be incorporated into this agreement as though written in full herein. In the event of conflict between associated Maintenance Schedules, the terms and conditions or such schedule shall take precedence over the Master Agreement herewith.
1. Excess Hours: The maintenance rates specified in the associated schedules are based on a study of duty cycles, use factors and other survey data on the customer’s operation. The estimated operating hours developed from this study should be ample for the present rate of activity. If for any reason, the actual operating hours should exceed such estimated operating hours, the excess hours shall be billed at the excess hour rates specified on the associated schedules. Operating hours shall be determined from meter readings and each unit of equipment shall be equipped with a meter for that purpose. In the event that any such meter fails to function, thereby making a meter reading unavailable, the operating hours shall be ascertained by using the average for the previous two (2) months of record usage.
2. Survey Reports: The maintenance rates specified in the associated schedules are based on the current operating conditions surveyed by employees of vendor. Any material deviation can result in a change in rate applicable with a more severe operating environment.
3. Care of Equipment by Customer: Customer agrees to take good care of the equipment and, without limiting the foregoing, to use and operate the same within its rated capacity, to restrict the use and operation thereof to careful and competent personnel selected, employed and controlled by Customer. Under certain circumstances, Vendor, upon signing this document, agrees to authorize qualified Customer personnel to make necessary minor emergency repairs to the units covered by this Agreement. Minor repairs in this instance entail such matters as changing light bulbs, fuses and other related items. The Customer will notify Vendor promptly of any accident, disability, or failure of equipment and furnish Vendor in writing with all the pertinent facts in connection with any loss due to damage to or destruction of equipment, excepting normal wear and tear. If Vendor notes certain practices by Customer not related to maintaining Customer operations, which are totally uncalled for and abuse to the equipment, Vendor agrees to notify Customer prior to the commencement of repairs.
If agreement cannot be reached between the Vendor repairman and the Customer representative on whether or not the malfunction of the equipment was caused by abuse, Vendor agrees to proceed with the repairs and to contact the customer plant purchasing/accounting manager for discussion and satisfaction of the abuse repair charges.
Customer shall supply all necessary fuel, water and other normal needs of equipment in its daily operation in accordance with the “Operators Daily & Weekly Inspection Report” form SA165 & SA120 as furnished by Vendor and in accordance to the equipment manufacturer’s recommendations for each type of equipment in the Customer’s possession. Customer shall perform the daily operator’s checks at the beginning of each shift and shall also maintain proper level of water in batteries, LP gas cylinders and crank case levels, as required, in accordance with the manufacturer’s recommendations as furnished by Vendor and will make these records available to Vendor on a monthly basis.
Changing attachments, reinforcing or modifying any equipment without the Vendors expressed, written permission is prohibited.
4. Maintenance of Equipment by Vendor: The equipment will be serviced and maintained in proper working condition by Vendor, and Customer agrees to make the equipment available for servicing by the Vendors personnel, at reasonable times during Vendors business hours. Customer shall, upon request of Vendor, provide an adequate, separate area within Customers premises in which Vendor may service equipment, providing Vendor personnel with heat, lights, power, local storage area for stock of frequently used parts owned by Vendor, and facilities for disposing of used oils and water. In the event that any unit of equipment shall be out of service for needed repairs, resulting from normal wear and tear, Vendor will arrange to repair such equipment promptly after notice by Customer. Vendor shall use all reasonable means to accomplish needed repairs of such equipment promptly.
All maintenance repairs will be made during Vendors normal working hours of 7:00 a.m. to 3:30 p.m. Monday through Friday, which may be amended by Vendor from time to time. However, from time to time, it may be necessary for Vendor to perform emergency repairs before and after Vendors normal working hours, at Customers request and/or because Vendor encounters delays due to the extent of repairs being performed. This includes Saturday and Sunday service calls and all other repairs.
Any repairs requested by Customer after Vendors normal working hours or on Vendor holidays will be billed hourly at 1.5 times the established labor rate.
In the event that Customers future collective bargaining contracts during the term of this Agreement place limitations upon the Vendor performing repair services on the Customer’s premises, rates would have to be renegotiated.
Vendor will be paid at his regular or premium hourly rate for any time the Vendor’s serviceman is compelled to wait for access to the equipment of one-half hour or more.
5. Vendor Obligations: Vendor is obligated under the provisions of this maintenance contract to furnish Customer with the following specific services:
A. Maintenance Rates: All repair work specified herein pertains to scheduled maintenance work and repair work initiated due to normal wear and tear of the equipment. Maintenance rates designated in associated schedule cover all maintenance work and schedule maintenance for the period so designated in such schedule, as indicated on schedule except for vendor holidays which will be billed at the rates listed in section 4.
B. Maintenance To Be Performed: All maintenance work to be performed on the equipment and associated equipment under the terms of this agreement is to be performed by authorized personnel of Apex Material Handling Corporation, or their designated representative, and repair materials and parts are to be genuine and factory replacement parts and/or equivalent as recommended by the manufacturer and agreed to by customer. Vendor will be obligated to maintain a parts inventory sufficient to keep all trucks in operating mode at all times.
C. Schedule Maintenance Documentation: Vendor to furnish a copy of all SM sheets to Customer and must have it signed by Customer upon completion of work to verify correct and timely procedures. Scheduled Maintenance work performed by Vendor is to be accordance to the equipment manufacturer’s guidelines.
D. Vendor shall indemnify and hold harmless Customer from any claims or losses arising out of or in the course of the performance of the services ordered hereby. Vendor agrees to indemnify and hold harmless Customer only to the extent of the intentional, gross misconduct, or negligence of Vendor. Vendor agrees to carry in its own name, workman’s compensation and occupational disease coverage to protect itself against liability under the workman’s and occupational disease laws of the state or states in which the services hereunder are being performed.
Vendor will carry in its name public and automobile liability insurance (including contractual liability insurance) with limits for bodily injury of not less than $500,000 for each person and $1,000,000 for each occurrence, and not less than $1,000,000 for property damages, providing coverage for vendor operations and contractual liability hereunder. Vendor will maintain such insurance in force during the term hereof.
E. Nothing in this document shall be interpreted to impose any responsibility on Vendor for any liability due to the fault of Customer, its agents or employees. Customer hereby agrees to indemnify and hold harmless Vendor from all claims, losses, damages and liabilities due solely to the intentional, gross misconduct, or negligence of Customer, its agents or employees because of or incident to the use, possession, operation, maintenance or condition of the equipment maintained or repaired under this agreement.
F. Vendor as defined herein, shall furnish Customer with current insurance certificate of Workman’s Compensation Coverage for vendor employed individuals to enter and/or work at Customer premises.
