1 ENGAGEMENT
1.1 These Ts&Cs govern the supply of all services by VLR to Client, including all:
(a) services to be provided by VLR to Client as described in the Quote given by or placed on VLR by Client, or any activity comprised in or forming part of those services (Services); and
(b) future arrangements or Services delivered under an additional quote,
unless specified otherwise in that documentation and will be incorporated into all dealings between the parties.
1.2 These Ts&Cs may be amended from time to time. If amended, they will apply to every offer to provide Services, order, quote or offer (Quote), agreed by the parties after written notice of the change has been provided to Client.
1.3 To the maximum extent permitted by law, these Ts&Cs supersede and exclude all prior and other discussions, dealings, representations (contractual or otherwise) and arrangements relating to the provision of Services by VLR including those relating to the performance of the Services or the results that ought to be expected from using the Services, including any Client terms and conditions.
2 SCOPE OF WORKS
2.1 Client agrees that on:
(a) signing this document.
(b) paying any money to VLR; or
(c) their willing participation through oral, written or electronic communication,
(Acceptance), the Agreement will govern the provision of all Services by VLR to Client (including all future Quotes given by or placed on VLR) and accepted by it.
2.2 VLR will not provide any Services unless they are included in the Quote. All Quotes expire 21 days after their date of delivery to Client if not disputed. All prices quoted by VLR are based on the taxes and charges applicable at the time of the Quote. Should the taxes and charges vary from the date of the Quote to the date of the Invoice, Client will also be liable to VLR for the difference.
3 SUPPLY and timing
3.1 VLR will provide Client with the Services as agreed between the parties, and will exercise all reasonable care, skill and ability when performing its obligations under the Agreement, as modified from time to time.
3.2 Where there is any inconsistency between the Quote and the Ts&Cs, the Quote will prevail to the extent of that inconsistency.
4 Ordering
4.1 All Quotes are deemed to be an offer by Client to engage VLR pursuant to the Agreement.
4.2 VLR has the sole discretion to accept or reject any Quote or any variation, modification or cancellation of the Agreement requested by Client.
4.3 If a cancellation request is accepted by VLR (Cancellation Date), Client will:
(a) subject to clause 4.3(b), be liable for any direct loss or expense reasonably incurred by VLR in respect of any costs expended in connection with the provision of Services in accordance with that Quote prior to and including the Cancellation Date and the reasonable costs of VLR to end the Agreement. VLR has the right to retain all amounts paid by Client to VLR provided up to and including the Cancellation Date; and
(b) not be entitled to a refund of the Deposit paid to VLR if Client cancels the Agreement after 30 days before commencement of the Services.
4.4 Where the Services ordered by Client are not available for any reason, VLR will notify Client and give Client the option to either wait until the Services are available or cancel the Agreement and receive a full refund within 30 days in full and final satisfaction of their rights.
5 PRICES and DELIVERY
5.1 VLR’s fees for providing the Services (Fees) are specified in the Quote.
5.2 VLR may vary the Fees in the event it accepts a request for a variation of the Agreement by Client under clause 4.2. If the Fees are varied in accordance with this clause, the new Fees will apply on and from the date that VLR accepts the request.
5.3 VLR will use reasonable endeavours to supply Services in accordance with the Quote.
5.4 Client agrees to pay each Invoice on or before its due date.
5.5 Client must give VLR access to the Site Address in order to perform the Services.
5.6 Client is responsible to ensure that the Site Address specified is correct and access and use of it complies with the relevant occupational health and safety regulations. Shipments of goods that are undeliverable due to incorrect or incomplete addresses may be subject to re-delivery and storage costs payable by Client at VLR’s discretion.
5.7 VLR reserves the right to access, and Client will procure access to, the Site Address to permit VLR (or its agent) to collect any and all equipment and materials used by VLR to conduct the Services prior to the end of the Agreement.
5.8 Where Client specifically requests VLR to take extra measures outside the usual requirements in the Agreement, VLR has the right to pass on and charge for any out-of-pocket costs incurred.
6 PAYMENT
6.1 Unless otherwise agreed in writing by VLR (including where otherwise identified on the Quote), all Invoices are payable by Client within 7 days from the date the Invoice was issued to Client. VLR reserves the right to invoice Client (in whole or in part) either:
(a) before the supply of Services;
(b) during the supply of Services; or
(c) after the supply of Services,
in accordance with the Agreement.
6.2 Client must pay Invoices in full without set off, deduction or counterclaim and acknowledges that this clause may be relied on in bar of any proceeding for recovery of the Fees.
6.3 VLR reserves the right to charge interest on any overdue amount, compounded monthly, at the Statutory Rate from the due date until payment is received by VLR in full.
6.4 Client agrees to bear all reasonable costs incurred by VLR in collecting any overdue amounts including but not limited to collector agency fees, commissions, legal fees and costs.
6.5 No amount owing whether present or future, actual, contingent or prospective and on any account whatsoever by Client to VLR may be offset against any amount owing whether present, future, actual, contingent or prospective by VLR to Client on any other account whatsoever.
7 ACCEPTANCE
7.1 Client is deemed to have accepted the Services (including any claimed damage or defect) unless within 2 Business Days (time being of the essence), Client provides to VLR notice, by email, of the deficiency, damage or defect, accompanied by relevant high-resolution photographs.
7.2 VLR reserves the right to, and Client will procure access to, the Site Address to permit VLR (or its agent) to inspect the claimed damage or defect and make its own assessment of any notice under clause 7.1. Despite clause 7.1, if Client does not procure access for VLR when reasonably required, Client will be deemed to have accepted the Services.
8 BREACH AND TERMINATION
8.1 If VLR gives a notice to Client that it has:
(a) failed to pay any Invoice when due or Client reverses a payment made;
(b) failed to follow VLR’s recommendations/advice provided in respect of the operation of the Services;
(c) contravened any other obligations of the Agreement; or
(d) disparaged VLR (in VLR’s reasonable opinion) in any way, including on social media, forums, reviews or websites or otherwise fails to act in a professional manner,
(each a Breach), and Client fails to resolve the Breach to VLR’s satisfaction in the period specified in the notice (which will be no less than 14 days), VLR may by notice:
(e) terminate the Agreement (without prejudice to any accrued rights); and
(f) subject to a genuine dispute between the parties:
(i) suspend the operation of any and all Services until the Invoice is paid in full;
(ii) if payment is not made within 14 days of the due date, commence debt collection action without further notice; and
(iii) terminate supply of any and all Services.
8.2 Either party may terminate the Agreement by written notice if the other party commits a breach of the Agreement where the breach is:
(a) incapable of remedy; or
(b) insolvency of the other party.
8.3 Notwithstanding the suspension of the Services under this clause, Client must continue to pay invoices which fall due during that suspension.
9 WARRANTIES, INDEMNITIES AND LIMITATION OF LIABILITY
9.1 Each party warrants that:
(a) it has properly authorised execution of, and has full power to execute, deliver and perform its obligations under, the Agreement; and
(b) the Agreement constitutes a legal, valid and binding obligation on it enforceable in accordance with its provisions.
9.2 Subject to the ACL, the Services come with guarantees that cannot be excluded. For major failures with the Services, Client is entitled to cancel any remaining Services and to a refund for the unused portion, or to compensation for its reduced value. Client is also entitled to be compensated for any other reasonably foreseeable Loss or damage. If the failure does not amount to a major failure, Client is entitled to have the Service rectified in a reasonable time and, if this is not done, to cancel the Agreement and obtain a refund for the remaining Services.
9.3 To the maximum extent permitted by law:
(a) the Agreement excludes all implied conditions and warranties and any liability to Client for any Loss arising under or in connection with the Agreement (including any consequential, special, incidental, indirect, punitive or consequential damages (including, lost profits, injury to goodwill arising out of or in connection with the provision of the Services));
(b) no party will be liable for damage to persons or property resulting from the Services;
(c) each party releases the other from any other Loss not expressly stated in the Agreement;
(d) no party will be liable to another party to the extent that the other party or its officers, employees, subcontractors or agents has caused or contributed to the Loss claimed;
(e) VLR’s liability is limited at VLR’s option to the re-supply of a replacement or equivalent Service, the rectification of the Service, payment of the costs of having the Service replaced or rectified and the value of the Services as stated in the Quote;
(f) if Client has failed to pay any Invoice within 6 months from the date the Invoice was issued to Client (Final Date), VLR will:
(i) notify Client of its intention to sell or dispose of the Goods (Unclaimed Goods) on or after 10 Business Days after the Final Date; and
(ii) deduct from the proceeds of sale from reduction of the Unclaimed Goods the costs of the sale, any further storage costs incurred from the date of the notice and the outstanding Fees. If there is a surplus, this amount will be paid to Client; however, if there is a deficit, this amount will form part of VLR’s Loss claimed; and
(g) subject to clause 9.3(f), all risk in any Goods will remain with Client during the duration of the Agreement, including loading the Goods onto any nominated carrier (if that is Client’s preferred delivery).
9.4 Subject to clauses 9.2 and 9.3, Client assumes all risks and liability in respect of the Services, whether used alone or in conjunction with other goods or services.
9.5 Where Client specifically requests VLR to leave the Goods at a nominated premises, including the Site Address, or an unattended location for collection or to deliver the Goods to the Site Address or an unattended location, Client will bear the full risk of VLR’s compliance with that request.
9.6 Client warrants that the Goods explicitly exclude any:
(a) prohibited or stolen goods, drugs, pornographic material, potentially dangerous, damaging or explosive items including gas bottles, aerosols, paints, firearms and ammunition;
(b) plants or goods likely to encourage vermin or other pests or to cause infestation or contamination;
(c) perishable items and/or those requiring a controlled environment;
(d) animals, birds, reptiles or fish;
(e) goods which require special licence or government permission for export or import.
9.7 Client will be responsible for any costs and charges applied by Client’s financial institution for each unsuccessful debit attempt, any failed payment charge and with any collection charge, including any debt recovery agency or legal charges, incurred by VLR. Client authorises VLR to attempt to re-process any unsuccessful payments after 3 Business Days. If the payment remains unsuccessful after 5 Business Days, Client authorises VLR to suspend all Services, pending full payment.
9.8 VLR is not responsible for any failure to perform any Service due to fire, lightning, explosion, flood, earthquake, storm, hurricane, action of the elements, riots, civil commotion, malicious damage, armed conflicts, acts of terrorism, war (declared or undeclared), health intervention or pandemic, blockade, revolution, sabotage, radioactive contamination, toxic or dangerous chemical contamination, natural catastrophes or any other events beyond the reasonable control of VLR (each a Force Majeure Event).
9.9 If by reason of a Force Majeure Event, the delay or non-performance of Services continues for more than 90 consecutive days, then Client may terminate the Agreement on written notice to VLR and no one will be deemed by that notice to be in default.
10 SECURITY
10.1 For the purposes of this clause, the terms defined in the PPSA, have the same meaning in the Agreement.
10.2 Client agrees and acknowledges that, for the purposes of the PPSA, VLR has a security interest in the Goods and in any right in relation to or derived from the Goods and such other undertaking, property and assets of Client.
10.3 VLR may register its security interests under this clause, including as a purchase money security interest.
10.4 Client waives the right to receive a verification statement under the PPSA.
10.5 Client agrees that, if Chapter 4 of the PPSA applies to the enforcement of VLR’s security interests, the following provisions of the PPSA will not apply to that enforcement:
(a) section 95 to the extent that it requires VLR to give a notice to Client;
(b) section 96;
(c) section 130, to the extent that it requires VLR to give a notice to Client;
(d) subsection 132(3)(d);
(e) subsection 132(4);
(f) section 135;
(g) section 142; and
(h) section 143.
10.6 Client agrees that VLR may allocate any payment that it receives from Client in any manner VLR determines (despite any purported allocation or appropriation by Client) including to satisfy obligations that are not secured; then to satisfy obligations that are secured, but are not secured by a purchase money security interest, in the order in which those obligations were incurred and then to satisfy any obligations secured by a purchase money security interest in the order in which those obligations were incurred.
10.7 Subject to subsection 275(7) of the PPSA, neither party may disclose information of the kind referred to in subsection 275(1) of the PPSA.
10.8 Client charges all of their interest in real property in favour of VLR to secure all amounts arising and performance of all obligations to VLR under the Agreement.
11 GENERAL
11.1 Interpretation
(a) In the Agreement reference to:
(i) one gender applies to all genders;
(ii) a party includes its personal representatives, successors, permitted assigns, executors and trustees;
(iii) a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation;
(iv) “include” and similar language will not be construed as a word of limitation; and
(v) writing or written includes emails.
(b) Any order provided by Client to VLR after receiving the Agreement will constitute acceptance of the Agreement.
11.2 Jurisdiction
The parties acknowledge and agree that the Agreement will be governed by and construed in accordance with the laws of the State in which the Services are supplied, and the parties submit to the non-exclusive jurisdiction of the Courts of that State.
11.3 Severability
Any provision of the Agreement which is prohibited or unenforceable will be ineffective to the extent of the prohibition or unenforceability and severed from the Agreement. The severance of the prohibited or unenforceable term, or part of a term, will not invalidate the remaining provisions or affect the validity or enforceability of the severed term, or part term.
11.4 Assignment
No party may assign or transfer any of its rights or obligations under the Agreement without the prior written consent of the other party, which shall not be unreasonably withheld (and will be deemed to be given when VLR sells its business as a going concern).
11.5 Agreement
Upon execution, the Agreement is binding and can only be amended in writing by the parties.
11.6 Costs
Client will be liable for all costs validly incurred due to this failure to comply with the Agreement associated with the exercise of VLR’s rights under the Agreement, including costs/commission of a law firm and/or debt collection agency on a solicitor and own client basis.
11.7 Waiver
Any rights under the Agreement may not be waived or varied except in writing signed by the party to be bound.
11.8 Insurance
(a) Client must take out and keep current an insurance cover for the Goods in the name of Client for all risks for goods of that kind during the duration of the Agreement.
(b) Client must produce satisfactory evidence of insurance cover on written request by VLR.
12 Goods and Services Tax (GST)
12.1 For the purposes of this clause, the terms defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth), have the same meaning in the Agreement.
12.2 Unless the contrary intention appears, any published or advertised price and/or Invoice is exclusive of GST.
12.3 If GST has any application to any supply made under or in connection with the Agreement, the party making the supply (for the purposes of this clause only, Supplier) may in addition to any amount or consideration expressed as payable elsewhere in the Agreement, recover from the recipient of the supply (for the purposes of this clause only, Recipient) an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Recipient for the relevant supply by the prevailing GST rate.
12.4 Any additional amount on account of GST recoverable from the Recipient under this clause shall be calculated without any deduction or set-off of any amount, and is payable by the Recipient at the same time and in the same manner as paying the amount or consideration for the relevant supply under the Agreement.
12.5 The Supplier must issue to the Recipient a tax invoice, and must do anything else which may be reasonably required to enable or assist the Recipient to claim or verify any input tax credit, set off, rebate or refund in relation to any GST payable under the Agreement or in respect of any supply under the Agreement.
12.6 Where an adjustment event in relation to a supply under the Agreement has occurred, the Supplier must issue an adjustment note to the Recipient no later than 10 Business Days after that adjustment event.
13 NOTICES
13.1 All notices must be in writing and may only be given by personal delivery, post or email.
13.2 A notice is deemed to be received if:
(a) by personal delivery, on the Business Day after delivery;
(b) sent by post, on 5 Business Days after the day of posting; or
(c) sent by email, on the Business Day after sending (unless within 12 hours of sending, the sender receives an automated delivery failure notification).
14 DEFINITIONS
In the Agreement:
(a) Acceptance is as specified in clause 2.1;
(b) ACL means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
(c) Act is as specified in clause Error! Reference source not found.;
(d) Business Day means a day that the banks are open for business in Melbourne that is not a weekend or public holiday;
(e) Client includes any person, firm or corporation including successors, administrators and assignors of the party who has requested the supply of Services by VLR as specified in the Quote;
(f) Deposit means the amount described as such in the Quote or its equivalent meaning (if any);
(g) Fees are as specified in clause 5.1;
(h) Force Majeure Event is as specified in clause 9.8;
(i) Goods means any goods and/or materials forming part of the Services or as described as such in the Quote or its equivalent meaning (if any);
(j) G&I is as specified in clause 10.1;
(k) Invoice means the tax invoice supplied to Client by VLR for Services supplied;
(l) Loss means any liability, claim, damages, costs and includes any loss (imposed by contract, tort (including negligence) and under statute), loss of profits, anticipated savings or consequential loss or cost (including legal costs on a solicitor and own client basis);
(m) party means each of VLR and Client unless specified otherwise;
(n) PPSA means the Personal Property Securities Act 2009 (Cth);
(o) Quote is as specified in clause 1.1;
(p) Recipient is as specified in clause 12.3;
(q) Services is as specified in clause 1.1;
(r) Site Address means the address provided to VLR by Client;
(s) Statutory Rate means the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) as at the date of the default;
(t) Supplier is as specified in clause 12.3; and
(u) Term means the period of provision of the Services.