1. Application
(a) These Terms and Conditions (Terms) will apply to the supply of products and/or services by VInet Solutions SA Pty Ltd ABN 39 146 028 355 of Level 1, 371 King William Street, Adelaide SA 5000 (VInet).
(b) These Terms and any Sales Quote, Sales Order, and/or Sales Invoice (collectively, Documentation) issued by VInet to you will form the Agreement.
(c) You, the Customer, acknowledge and agree that the supply by VInet of any products or services will be subject to the terms of the Agreement.
2. Provision of services
(a) VInet will provide the services outlined in the Documentation.
(b) VInet will perform the services using appropriate methods and practices, with the skill, prudence and foresight reasonably to be expected of skilled, experienced suppliers of services similar to the services.
(c) The Customer acknowledges and agrees that any timeframes relating to the provision of services outlined in the Documentation (or otherwise discussed) are estimates only. VInet will use reasonable endeavours to provide the services in a timely manner, however, the Customer acknowledges and agrees that failure by VInet to meet any timeframes (whether specified in the Documentation, or otherwise) will not be a breach of the Agreement.
3. Delivery of products
(a) VInet will supply the products outlined in the Documentation.
(b) The Customer must comply with any collection or delivery requirements specified in the Documentation or otherwise notified by VInet.
(c) VInet reserves the right to arrange for collection or delivery of any order by instalments.
(d) You acknowledge and agree that any person who receives the products is authorised by you to receive your order.
(e) If, due to any act, matter or thing beyond the control of VInet, including (without limitation):
(i) the Customer will not or does not accept collection or delivery when the products are ready for collection or delivery (as the case may be); or
(ii) VInet or its agent cannot effect delivery because VInet or its agent considers at the time of collection or delivery that collection or delivery would be hazardous or would be contrary to their policies, industry practice or statutory requirements; or
(iii) because the Customer has not provided VInet with appropriate instructions, documents, licences or authorisations to properly, legally and safely effect collection or delivery of the products,
risk in the products passes to the Customer, the products will be deemed collected or delivered, and VInet may store the products (or organise storage of the products) until actual collection or delivery, in which case, the Customer will be liable to VInet for all related costs, such as re-delivery charges, storage and insurance.
(f) The Customer acknowledges and agrees that any collection or delivery times and/or dates specified in the Documentation are estimates only. VInet will use reasonable endeavours to organise collection or delivery (as the case may be) by the times and/or dates specified in the Documentation, however, the Customer acknowledges and agrees that failure by VInet to meet any such collection or delivery times and/or date will not be a breach of the Agreement.
4. Title and risk
(a) Risk in the products passes to the Customer on collection or delivery of the products or on dispatch of the relevant invoice whichever is the earlier and from that time the Customer assumes all risk of loss and damage to the products.
(b) Notwithstanding any other provisions in the Agreement and notwithstanding that the Customer may have possession of the products, title to any and all products supplied by VInet will remain with VInet and no legal or equitable interest or property in the products whatsoever will pass to the Customer until the Customer has paid the full invoice price for all products supplied by VInet under all invoices.
(c) Until title passes from VInet to the Customer, the Customer must:
(i) refrain from encumbering the products;
(ii) store, mark and keep appropriate records for the products so that they can at all times be identified and distinguished as the property of VInet; and
(iii) allow VInet full and free access to the Customer’s premises where the products are located to retake possession of such products if the Customer is in any way in breach of the Agreement.
(d) In the event the Customer has not fully paid for the products and on-sells the products, or otherwise disposes of them, whether in the same form as supplied or incorporated into other products, the sale proceeds and/or the monies received in respect of disposal will immediately on receipt by the Customer be held by the Customer on trust for the benefit of VInet, until the Customer has fully paid VInet for the products.
(e) The Customer indemnifies VInet against any claim, action, damage, loss, liability, cost, expense, or
payment which VInet suffers, incurs or is liable for in respect of VInet’s exercise of its rights under this clause 4.
5. Charges, invoicing and payment
(a) The fees payable for the provision of products or services are outlined on the Documentation.
(b) Prices in the Agreement exclude GST unless stated otherwise. You will pay GST and any other government charges, duties, or taxes in connection with supply of products or services under this Agreement.
(c) VInet is permitted to charge for all costs and expenses incurred in supplying the products and/or performing the services, including (but not limited to) travelling, photocopying, courier services, postage or as otherwise listed in the Documentation.
(d) In the event that some of the products that were ordered are not provided and/or part of the services that were ordered are not completed, for whatever reason, VInet will be entitled to charge pro rata for so much of the products that were provided and/or the services that are completed (as the case may be).
(e) Fees must be paid in accordance with the payment terms specified in the Documentation. Where no payment terms are specified in the Documentation, then unless otherwise agreed in writing, all fees must be paid within 30 days from the date of receipt of the Documentation.
(f) The preferred method of payment is by direct debit. If you do not use this method, you may be charged an administration fee for the extra cost of processing. If any merchant or dishonour fees are charged as a result of your method of payment, you agree that VInet may recover those fees from you.
(g) If any amounts are overdue VInet may, in addition to any other rights it may have, in its sole discretion, suspend or cancel the supply of products and/or services that have been ordered by you. If VInet takes debt recovery action against you, you must pay VInet’s administrative and legal costs and may be liable to pay charges and interest in accordance with the applicable Court interest rate at the time.
(h) If the invoice price is not paid by the due date, then interest will accrue on that amount from the date of delivery of the products until the price is paid in full. Interest will be paid at a rate of 10% per annum. Interest will accrue on a daily basis and be payable on demand.
(i) If the Customer defaults in payment or breaches the Agreement then it will be liable for all costs incurred by VInet and will indemnify VInet against any loss, liability, charge, expense, outgoing or payment which VInet suffers, incurs or is liable for in respect of the recovery of monies owing by the Customer to VInet.
(j) In the event that finance is required, please advise VInet prior to your ordering of goods an services. Pre-approval must be in place preceding VInet establishing works or ordering products that are intended to be financed. Quotes from VInet include an expiry date if pre-approval is received after this date the quote will need to be reviewed and the price may differ.
6. Your obligations
Without limiting any other rights outlined in the Agreement or under law, you agree to cooperate with VInet as reasonably required to allow VInet to carry out its duties and rights under the Agreement, including (without limitation):
(a) comply with all laws, regulations, codes, ordinances, industry standards relevant to the supply of the products and/or provision of the services;
(b) co-operate with VInet as VInet reasonably requires;
(c) provide all equipment, facilities, materials, information and data that VInet reasonably requires in order to effectively supply the products and/or services;
(d) provide adequate and safe access to premises and facilities and provide any utilities and labour that may be reasonably required for effective receipt of the products and/or services (including labour for loading and unloading of products);
(e) not on-sell, distribute or otherwise transfer any products, without the written consent of VInet;
(f) only use the products in accordance with any directions, guidelines or manuals provided by VInet or the manufacturer of the products;
(g) ensure that all sites, equipment, and materials for which you are responsible and which is relevant to this Agreement, comply with current industry standards and all legal and statutory requirements, and with any specifications provided by VInet;
(h) obtain and maintain all necessary licences, permits, authorisations, approvals and consents relevant to this Agreement; and
(i) only use the products in accordance with any directions, guidelines or manual provided by VInet or the manufacturer of the products.
If the Customer fails to cooperate with VInet as reasonably required (and within a reasonable time period), the Customer will be liable for any additional costs and expenses which are reasonably incurred by VInet as a result of the Customer’s failure.
7. Cancellation of orders for products or services
An order accepted by VInet cannot be cancelled without VInet’s prior written consent (in its sole discretion). No application for cancellation or delay in delivery will be considered unless made by the Customer in writing to VInet. VInet will consider an application for cancellation or delay in delivery in its sole discretion.
8. Returns of products
(a) To the fullest extent permitted by law, no products will be returned unless:
(i) prior authorisation has been given by VInet;
(ii) the correct invoice number is quoted on the Customer’s return docket;
(iii) the returns are initiated within five (5) business days after delivery; and
(iv) the reason for return is clearly stated on the Customer’s return docket.
(b) Products returned may be subject to a handling charge of 20% of the invoice price of the products and the Customer will pay all return freight costs.
(c) VInet and the Customer agree that, to the fullest extent permitted by law, the Customer will not be entitled in any circumstances to return products which:
(i) specifically state that they cannot be returned (including on the Documentation, manuals, packaging, etc);
(ii) are not in original saleable condition and packaging;
(iii) are custom made products for the Customer; or
(iv) VInet has acquired specifically for and at the request of the Customer.
(d) VInet is not responsible for any shipping and handling charges associated with a returned product(s), except where the return relates to a defective product or an incomplete or incorrect order (where VInet is at fault).
9. Third party manufacturers
(a) Where products or services are manufactured, developed and/or supplied by a third party (including, but not limited to software), you acknowledge and agree that your use of such products and services will be subject to any additional terms and conditions that are provided to you by VInet or the relevant third party.
(b) Where any products (or any part of any products) supplied by VInet, or materials or equipment used in providing services, have not been manufactured by VInet, to the extent VInet is able to do so, VInet will pass through to the Customer the benefit of any manufacturer’s warranty where it is available, except in the event of user damage and disposable and perishable items. All other liability is excluded in accordance with this Agreement.
10. Subcontracting
VInet may subcontract its obligations under the Agreement without the Customer’s prior written consent, provided that VInet remains principally liable for the performance of any subcontracted obligations under the Agreement and is responsible for the acts, omissions, defaults and/or negligence of its subcontractors.
11. Intellectual Property
11.1 Assignment of IP
Nothing in this Agreement shall constitute an assignment or transfer of any intellectual property rights from VInet to the Customer.
11.2 VInet’s IP
(a) VInet represents and warrants that it is the absolute legal and beneficial owner of, or that it holds a valid licence to use, all intellectual property rights used by VInet in the supply of the products and/or services (VInet IP).
(b) The Customer acknowledges and agrees that VInet’s IP remains the property of VInet.
(c) Unless stated otherwise in the Documentation, VInet grants to the Customer a perpetual, non-exclusive, worldwide licence to exercise all rights in VInet’s IP as is necessary for the Customer to receive the benefit of the products and/or services in accordance with the Agreement.
11.3 Developed IP
(a) Any intellectual property rights developed, created or otherwise brought into existence by VInet in the course of supplying the products and/or services shall vest in VInet upon creation (Developed IP).
(b) Unless stated otherwise in the Documentation, VInet grants to the Customer a perpetual, non-exclusive, worldwide licence to exercise all rights in the Developed IP as is necessary for the Customer to receive the benefit of the products and/or services in accordance with the Agreement.
11.4 Third Party IP Rights
The Customer acknowledges that the products may contain Intellectual Property rights that are owned by third parties (Third Party IP Rights). The Customer must comply with any terms and conditions that are applicable to Third Party IP Rights, including (without limitation) any licensing terms, irrespective of whether VInet expressly notified the Customer of terms and conditions applicable to Third Party IP Rights.
11.5 Customer’s IP
(a) Subject to clause 12.4(b), VInet acknowledges and agrees that:
(i) the Customer’s IP remains the property of the Customer; and
(ii) the Agreement does not confer on VInet any proprietary right or title to any of the Customer’s IP.
(b) Subject to clause 12.4(c), the Customer grants VInet a non-exclusive, royalty-free licence during the term of the Agreement to use and reproduce the Customer’s IP for the sole purpose of performing its obligations under the Agreement.
12. Confidentiality
12.1 Confidential Information
Confidential Information of a party is all technical, financial, commercial and other information (in whatever medium) of or relating to it or its business affairs, which is disclosed or available to, or observed or accessible by, the other party in connection with the Agreement which:
(a) is marked as ‘confidential’, ‘sensitive’, ‘private’ or any other similar description; or
(b) a reasonable person would (given its nature) consider confidential,
but excluding information that:
(c) is readily available in the public domain without breach of confidentiality; or
(d) the receiving party can establish by written records is or has been legally known to, developed by, or acquired by, that receiving party, independently of the Agreement.
12.2 Ownership of Confidential Information
Each party (a Recipient) acknowledges that the other’s (Discloser’s) Confidential Information is, and remains, the property of the Discloser. The Agreement does not convey any proprietary or other interest in one party’s Confidential Information to the other. The Recipient must keep the Discloser’s Confidential Information strictly confidential and not disclose it or allow it to become available to any third party, except as provided for in the Agreement. This obligation survives the termination of the Agreement and will continue until the information no longer constitutes Confidential Information of the Discloser.
12.3 Authorised use and disclosure of Confidential Information
(a) The Recipient may only access and use the Discloser’s Confidential Information to perform its obligations or exercise its rights under the Agreement (including, in the case of the Customer, exploiting products and/or services), or with the Discloser’s prior consent. The Recipient must comply with any reasonable restraint on such use stipulated by the Discloser.
(b) The Recipient may disclose the Discloser’s Confidential Information to:
(i) its directors, officers, employees, professional advisers, agents and contractors (each an Authorised Disclosee); and
(ii) the extent required to comply with any law, regulatory requirement or stock exchange rule, provided that the Recipient must (to the extent possible) minimise the extent of disclosure and give the Discloser prior notice with reasonable details of the proposed disclosure and the relevant Confidential Information to be disclosed.
12.4 Reasonable precautions to maintain confidentiality
The Recipient must take all reasonable precautions to maintain confidentiality of the Confidential Information and protect it from unauthorised access, use and disclosure, including:
(a) restricting access to, and use of, that information to a strictly need to know basis for any specific purpose for which that information was disclosed by the Discloser and complying with any reasonable security and safety procedures notified to the Recipient by Discloser;
(b) notifying each of its Authorised Disclosees that has access to the Confidential Information, of the Recipient’s obligations under the Agreement;
(c) immediately notifying the Discloser of any actual or potential breach of confidentiality or any unauthorised access, disclosure or use of the Confidential Information; and
(d) making every effort to cooperate with the Discloser in any investigation, prosecution or remedial action taken by the Discloser for protection of that Confidential Information
13. Privacy
(a) Each party must comply (and ensure that its Personnel are aware of and comply) with the Privacy Act 1988 (Cth) and other applicable laws or codes governing “personal information” (as defined in the Privacy Act 1988 (Cth)) in doing any act or engaging in any practice pursuant to the Agreement.
(b) VInet collects your information in order to determine whether to supply products or services to you and, in ordering products or services from VInet, you agree that VInet may:
(i) use the personal information about you which you or others have provided at any time to VInet in order to manage VInet’s relationship with you and, where required, to comply with legislative and regulatory requirements; and
(ii) may, as appropriate, disclose that information to VInet’s related bodies corporate, regulatory and law enforcement bodies, debt collection agencies, any organisation proposing to fund the acquisition of, or acquire, any interest in any obligation you may owe VInet, and to any person to the extent necessary, in VInet’s view, to carry out any instruction you give to VInet or to enforce any rights of VInet against you.
14. Warranties
(a) Nothing in the Agreement excludes, restricts, or modifies any terms, conditions, warranties, or liabilities which are imposed or implied by any statute, including but not limited to the Competition and Consumer Act 2010 (Cth), and which by statute cannot be excluded, restricted, or modified. Limitations and exclusions are made only to the maximum extent permitted by law.
(b) To the maximum extent permitted by law, VInet gives no warranties regarding any products supplied and all other implied or imposed conditions, warranties and rights are excluded, including (without limitation) warranties in relation to fitness for purpose or merchantability. Where any condition, warranty or right is implied or imposed by law and cannot be excluded, VInet limits its liability for breach of that implied or imposed condition, warranty or right to the fullest extent permitted by law.
15. Limitation of liability
(a) Subject to clauses 10(b) and 14(b) and to the maximum extent permitted by law, where any condition, warranty or right is implied or imposed by law and cannot be excluded, the sole liability of VInet for loss or damage incurred in respect of products and/or services supplied (or agreed to be supplied) shall be limited to:
(i) in the case of products, at VInet’s option:
A. the replacement of the products or the supply of equivalent products;
B. the repair of the products;
C. the payment of the cost of replacing the products or of acquiring equivalent products; or
D. the payment of the cost of having the products repaired; and
(ii) in the case of services, at VInet’s option:
A. supplying the services again; or
B. paying the cost of having the services supplied again.
(b) Notwithstanding any other provision in this Agreement and to the maximum extent permitted by law, VInet’s liability for any kind of loss or damage suffered by you in connection with this Agreement, whether in contract, negligence or other tort, misrepresentation, breach of any statutory or equitable duty, or otherwise, will be limited to an amount equal to the fees paid by the Customer to VInet with respect to the supply of the products and/or services giving rise to the liability.
(c) Notwithstanding any other provision in this Agreement and to the maximum extent permitted by law, neither party will be liable to the other party in respect of any debt, obligation, cost, expense, loss, damage, compensation, charge or liability of any kind which at law is of a consequential, indirect or incidental nature, including (without limitation): loss or damage to data; loss of revenues or profits; loss or interruption of business, contracts or commercial opportunities; damage to goodwill or reputation; etc.
16. Indemnity
(a) You indemnify VInet and hold VInet harmless against all loss, damage, proceedings, claims, costs and expenses howsoever caused arising directly or indirectly:
(i) any breach by you of the terms of the Agreement;
(ii) any fraud or fraudulent misrepresentation;
(iii) any negligent act or omission by you;
(iv) any information supplied by you to VInet (whether within or outside the scope of the Agreement); and
(v) from any unauthorised use of VInet’s intellectual property,
except to the extent that it is caused by an act or omission of VInet.
17. Termination
(a) Without prejudice to any of its other rights, powers or remedies, VInet may terminate this Agreement (with immediate effect) or cancel any order for the delivery of products if:
(i) the terms of payment for any products delivered to the Customer by VInet have not been strictly adhered to by the Customer;
(ii) the Customer defaults under any of its obligations under the Agreement; or
(iii) the Customers becomes an entity:
A. being insolvent (under section 95A of the Corporations Act (Cth));
B. having an administrator, controller (per section 9 of the Corporations Act) or similar officer appointed to all or any of its property;
C. having taken (or had taken against it) any step for its winding up, deregistration or dissolution or for it to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors; or
D. suffering any event or similar event to those set out in this clause 16(a)(iii) which would restrict its business operations or cause those operations to be placed under the control of a person other than its directors under the laws of its place of incorporation.
(b) Termination or expiration of this Agreement will not affect accrued rights, indemnities, existing commitments or any contractual provision that by their nature are intended to survive termination or expiration of this Agreement.
18. Default
If the Customer defaults on any of its obligations under the Agreement, in addition to any other rights at law VInet may have, VInet may take one or more of the following actions at its election:
(a) treat the Agreement as repudiated and sue the Customer for any loss and damage;
(b) repossess any products in the Customer’s possession in respect of which title has not yet passed to the Customer; or
(c) require the immediate payment by the Customer of all monies owing by the Customer to VInet under any account.
19. Enforcement action
The Customer must pay VInet all costs and expenses incurred by VInet in seeking to enforce and in enforcing VInet’s rights under these Terms and Conditions, including any legal expenses (on a full indemnity basis), debt recovery agents’ fees and commissions, process server fees, company and business search fees and any other investigation fees, charges and the internal administration costs of VInet.
20. Force Majeure
VInet may suspend delivery or reduce the quantity of products to be delivered if VInet is unable to deliver any or all of the products by reason of circumstances beyond its reasonable control, including without limitation, a failure of the distributor, strikes, accidents, war, fire, flood, explosion, equipment malfunction and failure, shortage of power, breakdown of plant or machinery, shortage of raw materials, act of God, an epidemic or pandemic, or any order or direction of any government, government authority or instrumentality. If the effects of any such force majeure event continue for more than three (3) calendar months, VInet may in its absolute discretion, cancel the order by notice in writing to the Customer. The Customer will have no claim against VInet for any damages, loss, costs or expenses arising from any delay or termination authorised by this clause.
21. Dispute Resolution
(a) Any dispute, difference or disagreement under this Agreement (Dispute) must be handled under this clause. However, nothing in this clause prevents a party seeking urgent interim or interlocutory relief from a court of law to preserve property or prevent irreparable harm. Further, if a party fails to comply with this clause, the other party need not comply with it before commencing proceedings in any court or tribunal of competent jurisdiction. The Parties will continue to perform the Agreement despite any Dispute, provided that either party may exercise any of its rights under this Agreement at any time.
(b) A party wishing to resolve a Dispute must notify the other party describing the Dispute in sufficient detail for the other party to adequately evaluate it (the Dispute Notice). The Parties must hold discussions in order to attempt to resolve any Dispute in good faith.
(c) Those discussions (and any documentation tendered in connection with them) will be solely to resolve the Dispute on a “without prejudice” basis (whether or not expressly designated).
(d) If those discussions fail to resolve the Dispute, a mediator will be selected by agreement of the Parties, or failing agreement within 10 Business Days, by The Australian Disputes Centre (ADC) under its “Commercial Mediation Guidelines” (on the request of either party). The Parties will then use their reasonable efforts to resolve the dispute by mediation under ADC’s “Commercial Mediation Guidelines”.
(e) Either party may terminate the mediation at any time on notice to the other party and the mediator.
22. PPSA
(a) Unless the context requires otherwise, terms and expressions used in this clause have the meanings given to them in, or by virtue of, the Personal Property Securities Act 2009 (Cth) (PPSA).
(b) The Customer grants VInet a security interest in all products to which Customer retains title under these Conditions.
(c) The Customer must:
(i) promptly sign any documents and provide all information reasonably required by VInet to register a financing statement or financing change statement on the Personal Property Securities Register or that VInet may require in connection with such registrations;
(ii) notify VInet in writing of any proposed change to its name or address at least 7 days before the change takes effect;
(iii) indemnify, and upon demand reimburse, VInet for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register, releasing any products from a security interest perfected by such registration or any other action taken by VInet to comply with the PPSA (including complying with a demand given under section 178 of the PPSA) or to protect its position under the PPSA;
(iv) not register a financing change statement in respect of a security interest without the prior written consent of VInet; and
(v) immediately notify VInet of any material change in its business practices of selling the products which would result in a change in the nature of proceeds derived from such sales.
23. General
(a) If you purchase products and/or services from VInet through its website or other e-commerce process, then (without limiting the Agreement) you agree to also be bound by the applicable terms and conditions set out or referred to in that site or relating to that process.
(b) Nothing in this Agreement will be interpreted or implied as constituting either VInet or you as having the relationship of employee and employer or as agent and principal.
(c) This Agreement takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in the State or Territory of Australia referenced in the Documentation (and where no State or Territory is referenced in the Documentation, then the State or Territory in which the products or services are provided).
(d) The Parties submit to the non-exclusive jurisdiction of the courts in the State or Territory of Australia referenced in the Documentation (and where no State or Territory is referenced in the Documentation, then the State or Territory in which the products or services are provided).
(e) The Agreement applies only to the supply of products and/or services outlined in the Documentation and supersedes any previous agreements, terms and conditions, negotiations, and representations, whether oral or written, for the same products and/or services.
(f) VInet may amend the Agreement from time to time, subject to the provisions of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) and of the Personal Properties Securities Act 2009 (Cth) (PPSA).
(g) No variation or waiver of this Agreement and no terms and conditions put forward by you or printed on your purchase order or other document you give to Us for the supply of products and/or services will have any effect unless expressly agreed in writing by both parties. Failure to exercise any right or remedy under this Agreement in a timely manner will not constitute acceptance of the matter which gave rise to the right or remedy, nor a waiver of such right or remedy.
(h) If any provision of this Agreement is invalid, illegal, or unenforceable, it will be read down to the extent necessary and reasonable to ensure that it is not invalid, illegal, or unenforceable. If it or part of it cannot be so read down, it or the relevant part of it will be void and severable and the remaining provisions will not in any way be affected or impaired.
(i) For the avoidance of doubt, all warranties, releases, exclusions of liability and indemnities will remain valid and binding following termination.
(j) In interpreting this Agreement no rules of construction shall apply to disadvantage a party on the basis that party put forward the Agreement, or any part of it. Headings are for convenience only and do not affect interpretation.
(k) If the Customer comprises two or more persons or entities, each of you is jointly and severally liable for all obligations and liabilities under this Agreement.
(l) A reference to legislation includes any subordinate legislation made under it and any legislation amending, consolidating, or replacing it.
