1. 1.1 1.2 1.3 1.4 2. 2.1 2.2 3. 3.1 4. 4.1 4.2 4.3 4.4 4.5 4.6 Definitions VDV means Van Demons Vans Pty Ltd (ABN 46 604 965 504), its successors and assigns or any person acting on behalf of and with authority of Van V Demons Vans Pty Ltd. Customer means person/s ordering Goods as specified in any invoice, document or order, and if re is more than one Customer is a reference to each Customer jointly and severally. Goods means all Works, Vans, Services or Goods supplied by VDV to Customer at Customer s request from time to time (where context soo permits e terms Vans, Goods, Services or Works shall be interchangeable for or). Price means Price payable for Goods as agreed between VDV and Customer in accordance with clause 4 below. Acceptance The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by se terms and conditions if Customer places an orderr for or accepts delivery of Goods. These terms and conditions may only be amended with VDVV s consent inn writing and shall prevail to extent of any inconsistency with any or document or agreement between Customer and VDV. Change in Control The Customer shall give VDV not lesss than fourteen (14) days prior written notice of any proposed change of ownership of Customer and/or any or o changee in Customer s details (including but not limited to, changes in Customer s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by VDV as a result of Customer s failure to comply with this clause. Price and Payment At VDV s sole discretion Price shall be eir: as indicated on any invoice providedd by VDV to Customer; or VDV s quoted price (subject to clause 4.2) whichh will be validd for period stated in quotation or orwise for f a period of sixty (60) days. VDV reserves right to change e Price if a variation to VDV s quotation is requested. Any variation from plan of scheduled Goods or specifications (including, but not limited to, any variation as a result of additional Goods required duee to hidden or unidentifiable difficulties or as a result of increasess to VDV in cost of materials and labour) will be charged for on basis of VDV s quotation and will be shown as variations on invoice. Payment for all variations must be made in full at ir time of completion. At VDV s sole discretion a non refundable deposit may be equired. Time for payment for Goods being of essence, Price will be payable by Customer on date/s determined by VDV, which may be: on delivery/ /completion of Goods; by way of instalments/progress payments in accordance with VDV s payment schedule; thirty (30) days following end of month in which a statement is posted to Customer s address or address for notices; date specified on any invoice or or form as being date for payment; or failing any notice to contrary, e date whichh is seven (7)) days following date of any invoice given to Customer by VDV. Payment may be made by cheque, bank cheque, electronic/ on line banking, or by any or method as agreed to between Customer and VDV. Unless orwise stated Price does not include GST. In addition to Price Customer must pay to VDV an amount equal to any GST VDVV must pay for any supply by Page 1 of 7
VDV under this or any or agreement for sale of Goods. G The Customer must pay GST, without deduction or set off of any or amounts, at same time and on same basis as Customer pays Price. In addition Customer must payy any or taxes and duties that may be applicable in addition to Price except where y are expressly included in Price. 5. 6. 7. 7.1 7.2 7.3 8. 8.1 8.2 Dimensions, Plans and Specification ns All customary engineering building industry tolerances shall apply to dimensions and measurements of Goods unless VDV and Customer agree a orwise in writing. VDV shall be entitled to rely on accuracy of any plans, specifications and or information provided by Customer. If giving of an estimate or quotation for supply of Goods involvess VDV estimating measurements and quantities, it shall be responsibility of o Customer to verify accuracy of VDV s estimated measurements and quantities, before Customer places an order based on such estimate or accepts such quotation. Should Customer require any changes to VDV s estimated measurements and quantities, Customer shall request such changes in writing, in case of an estimate beforee placing an order based on that estimate andd in case of a quotation before acceptance off that quotation. Limitation of Liability VDV shall be under no liability whatsoever to Customer for f any indirect loss and/ /or expense (including loss of profit or goodwill) suffered by Customer or any third party arising out of a breach by VDV of se terms and conditions. In event of any breach of this contract by VDV remedies of Customer shall be limited to damages and VDV s liability (if any) wher in contract, tort or orwise in respect of any defect in Goods, Materials, Services, or for any breachh of se terms and conditions, or of any duty owed to Customer in connection with mm shall be limited to amount of Price.. Delivery of Goods Delivery ( Delivery ) of t Goods is taken to occur at time that: Customer or Customer s nominated carrier takes possession of Goods at VDV s address; or VDV (or VDV s nominated carrier) delivers Goods to Customer s nominated address even if Customer is not present at address. At VDV s sole discretion cost of delivery is included in Price and shall be confirmed in quotation. Any time or date given by VDV to Customer is an estimate only. The Customer must still accept delivery of Goods even if late and VDV will not bee liable for any loss or damage incurred by Customer as a resultt of delivery being late. Risk Risk of damage to or loss of Goods passes to Customer on Delivery and Customer must insure Goods on or before Delivery. If any of Goods are damaged or destroyed following delivery but prior to ownership passing to Customer, VDV is entitled to receive all insurance proceeds payable for Goods. The production of terms andd conditions by VDV is sufficient evidence of VDVV s rights to receive insurance proceeds without need for any person dealing with VDVV to make furr enquiries. Page 2 of 7
8.3 9. 9.1 9.2 9.3 (f) (g) 10. 10.1 10.2 10.3 (i) (ii) (iii) If Customer requestss VDV to leave Goods outside VDV ss premises for collection or to deliver Goods to an unattended location n such Goods shall be left at Customer s sole risk. Title VDV and Customer agree that ownership of Goods shall not passs until: Customer has paid VDV all amounts owing to VDV ; and Customer has met all of its orr obligations to VDV. Receipt by VDV of any form of payment or than cash shall not be deemed to be payment until that form of payment has beenn honoured, cleared or recognised. It is furr agreed that: until ownership of Goods passess to Customer in accordance withh clause 9.1 that t Customer is only a baileee of Goods and must return Goods G to VDV on request. Customer holds benefit of Customer s insurance of Goods on trust for VDV and must pay to VDV proceeds of any insurance in event of Goods being lost, damaged or destroyed. d Customer must not sell, s dispose,, or orwise part with possession of Goodss or than in ordinary course of business and for market value. If Customer sells, disposes or parts with possession of Goods n Customer must hold proceeds of any such act on trust for VDVV and must pay or deliver proceeds to VDV on demand. Customer should not convert or process Goods or intermix mm with or goods but if Customer doess so n e Customer holds resulting product on trust for f benefit of VDV and must sell, dispose of or return resulting product to VDV as itt so directs. Customer irrevocably authorisess VDV to enter any premises where VDV believes Goods are kept and recover possession of Goods. VDV may recover possession of any Goods in transit wher or not delivery has occurred. Customer shall not charge c or grant an encumbrance over Goods nor grant nor orwise give away any interest in Goods while y remain property of VDV. VDV may commence proceedings too recover Price of e Goods sold notwithstanding that ownership of Goods has nott passed to Customer. Personal Property Securities Act 2009 ( PPSA ) In this clause financing statement, s financing change statement, security agreement, and security interest has meaning given to it by PPSA. Upon assenting to see terms and conditions in writing Customer acknowledgess and agrees that se terms and conditions constitute a security agreement for purposes of PPSA and creates a security s interest in all Goods that have previouslyy been supplied and that will be supplied in future byy VDV to Customer. The Customer undertakes to: promptly sign any furr documents and/or provide any furr information (such information to be complete, accurate and up to date change statement in relation to a security interest on Personal Property Securities Register; register any or document required to be registered by PPSA; or in all respects) which VDV may reasonably require to; register a financing statement or financing correct a defect in a statement referred to in clause 10.3( a) or 10.3 (ii); indemnify, and upon demand reimburse, VDV for all expenses incurred in registering a financing statement or financing f change statement on Personal Property Securities Register established by t PPSA or releasing any Goods charged reby; not register a financing change c statement in respect of a security interest without prior written consent of VDV ; Page 3 of 7
10.4 10.5 10.6 10.7 10.8 10.9 11. 11.1 11.2 11.3 12. 12.1 12.2 12.3 12.4 12.5 12.6 12.7 not register, or permit to be registered, a financing statement or a financing change statement in relation to Goods inn favour of a third party without prior written consent of VDV ; immediately advise VDVV of any material change in its business practicess of selling Goods which would result in a change c in nature of proceeds derived from such sales. VDV and Customer agree that sections 96, 115 and 125 of PPSA do not apply to security agreement created by see terms and conditions. The Customer waives ir rights to receive notices under sections 95, 118, 121(4), 130, 132(3) and 132(4) of t PPSA. The Customer waives ir rights as a grantor and/or a debtor under sections 142 and 143 of PPSA. Unless orwise agreed to in writing by VDV, Customerr waives ir right to receive a verification statement in accordancee with section 157 of PPSA. The Customer must unconditionally ratify any actions taken by VDV under clauses 10.3 to 10.5. Subject to any express provisions to contrary nothing in se t terms and conditions is intended to have effect of contracting out of any of provisions p PPSA. Security and Charge In consideration of VDV agreeing too supply Goods, Customer C charges all of its rights, title and interest (wher joint or several) in any land, realtyy or or assets capable of being charged, owned by Customer eir now or in future, to secure performancee by Customer of its obligations under se terms and conditions (including, but not limited to, payment of any money). The Customer indemnifies VDV from and against all VDV s costs c and disbursementss including legal costs on a solicitor and own Customer basis incurred in exercising VDVV s rights under this clause. The Customer irrevocably appoints VDV and each director of o VDV as e Customer s true and lawful attorney/s to perform all necessary acts to give effect to provisions off this clause 11 including, but not limited to, signing any document on Customer s behalf. Defects, Warranties and Returns Competition and Consumer Act 2010 (CCA) The Customer must inspect Goods on delivery and must within fourteen (14) days of delivery notify VDV in writing of anyy evident defect/damage, shortage inn quantity, or failure to comply with description or quote. The Customer mustt notify any or alleged defect in Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification Customer mustt allow VDV to inspect Goods. Under applicable State, Territory andd Commonwealth Law (including, without limitation CCA), certain statutory implied guarantees and warranties (including, without limitation statutory guarantees under CCA) may be implied into se terms and conditions (Non exclude Non Excluded Guarantees. Except as expressly set out in se terms and conditions or in respect off Non Excluded Guarantees, VDV makess no warranties or or representations under se terms and conditions ncluding but not limited to quality or suitability of Goods. VDV s liability Excluded Guarantees). VDV acknowledges thatt nothing in se terms and conditions purports to modify or in respect of se warranties is limited to fullest extent permitted by law. If Customer is a consumer withinn meaning of CCA, VDV s liability is limited to extent permitted by section 64A of Schedule 2. If VDV is required to replace Goods under this clause or CCA, butt is unable to do so, VDV may refund any money Customer has paid for Goods. G If Customer is not a consumer within meaning of e CCA, VDV ss liability for any defect or damage in Goods is: Page 4 of 7
12.8 12.9 13. 13.1 13.2 13.3 13.4 13.5 14. 14.1 Copyright PPSR P limited to value of any express warranty or warranty card provided to Customer by VDV in VDVV s sole discretion; limited to any warranty to which VDV is entitled, if VDV did not manufacture Goods; orwise negated absolutely. Subject to this clause 12, returns will only be accepted provided that: Customer has complied with e provisions of clause 12. 1; and VDV has agreed that Goods are defective; and Goods are returned within a reasonable time at Customer s cost (if that cost is not significant); and Goods are returned in as close a condition to that in which y weree delivered as is possible. Notwithstanding clausess 12.1 to 12.88 but subject to CCA,, VDV shall not be liable for any defect or damage which may be caused or partly caused by or o arise as a result of: Customer failing to properly maintain or store any Goods; Customer using Goods for any purpose or than that for whichh y were designed; Customer continuing use of any Goods after any defect became apparent or should have become apparent to t a reasonably prudent operator or user; Customer failing to follow f any instructions or guidelines provided by y VDV ; fair wear and tear, any accident, or act of God. PROTECTION 2015 Default and Consequences of Default Interest on overdue invoices shall accrue daily from datee when payment becomes due, until date of payment, at a rate of five percent (5%) per calendar c month (and at VDV s sole discretion such interest shall compound monthly at suchh a rate) after as well as before any judgment. If Customer owes VDV any money Customer shall indemnify VDVV from and against all costs and disbursements incurredd by VDV in recovering debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, VDV s collection agency costs, and bank dishonour fees). Without prejudice to any or remedies VDV may have, if at a any time Customer is in breach of any obligation (including those relating to payment) under se terms and conditions VDV may suspend or terminate supply of Goods to Customer. VDV will not be liable to Customer for any loss or damage Customer suffers because VDV has exercised its rights under this clause. Without prejudice to VDV s or remedies at law VDV shall be entitledd to cancel all or any part of any order of Customer which remains unfulfilled and all amounts owing to t VDV shall, wher or not due for payment, become immediatelyy payable if: any money payable to VDV becomes overdue, or in VDV s opinion o Customer will be unable to make a payment when it falls due; Customer becomes insolvent, i convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for benefit of its creditors; or a receiver, manager, liquidator (provisional or orwise) or similar person is appointed in respect of Customerr or any assett of Customer. Cancellationn VDV may cancel any contract to which se terms and conditions applyy or cancel delivery of Goods at any time before Goods are delivered by giving written notice to Customer. On giving such notice VDVV shall repay to Customer any money paid by Customer for Goods. VDV shall not be liable for any loss or damage whatsoever arising from such cancellation. Page 5 of 7
14.2 14.3 15. 15.1 15.2 15.3 15.4 15.5 15.6 In event that Customer cancels delivery of Goods e Customer shall be liable for any and all loss incurred (wher directt or indirect) by VDV as a direct result of cancellation (including, but not limited to, any loss of profits) ). Cancellationn of orders for Goods made to Customer s specifications, or for non stock list items, will definitely nott be acceptedd once production has commenced, or an order has been placed. Privacy Act 1988 The Customer agrees for VDV to obtain from a credit reporting agency a credit report containing personal credit information about Customer in i relation too credit provided by VDV. The Customer agrees that VDV mayy exchange information about a Customer with those credit providers eir named as trade referees by Customer or named in a consumer credit report issued by a credit reporting agency for following purposes: to assess an application by Customer; and/or to notify or credit providers of a default by Customer; and/or to exchangee informationn with or credit providers as to status of this credit account, where Customer is in default with or credit providers; and/or to assess creditworthiness of e Customer. The Customer understands that information exchanged can include anything about Customer s creditworthiness, credit standing, credit history or o credit capacity that credit providers are allowed to exchange under Privacy Act 1988. The Customer consents to VDV beingg given a consumer credit report to collect overdue payment on commerciall credit (Section 18K(1)(h) Privacy Actt 1988). The Customer agrees that personal credit information provided may be used and retained by VDV for following purposes (andd for or purposes as shall s be agreed between Customer and Joiner or required by law from time to time): provision of Goods; and/or marketing of Goods by VDV, its agents or distributors; and/or analysing, verifying and/ /or checking Customer s credit, payment p and/or status in relation to provision of Goods; and/or processing of any payment instructions, direct debit facilitiess and/or credit facilities requested by Customer; and/or enabling daily operation of Customer s account and/or t collection of amounts outstanding in Customer s account in relation to Goods. VDV may give information about e Customer to a credit reporting agency for following f purposes: to obtain a consumer credit report about Customer; allow credit reporting agency to create or maintain a credit information file containing information about Customer. The information given to credit reporting agency may include: personal particulars ( Customer ss name, sex, address, previous addresses, date of birth, name of employer and driver s licence number); details concerning Customer s application for credit or commercial credit and amount requested; advice that VDV is a current credit provider to Customer; advice of any overdue accounts, loann repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started; that Customer s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed; Page 6 of 7
(f) (g) (h) information that, in opinion of VDV, Customer has committed a serious credit infringement (that is, fraudulently orr shown an intention nott to comply with Customer s credit obligations); advice that cheques drawn by Customer for one hundredd dollars ($100) or more,, have been dishonoured more than once; that credit provided to Customer by VDV has been paid or orwisee discharged. 16. 16.1 16.2 16.3 16.4 16.5 16.6 16.7 16.8 General The failure by VDV to enforce any provision of se terms and conditions shall not be treated as a waiver of that provision, nor shall it affect VDV s right to subsequently enforce that provision. If any provision of se terms and conditionss shall be invalid, void, illegal or unenforceable validity, existence, legality and enforceability of remaining provisions shall not be affected, prejudiced or impaired. These terms and conditions and anyy contract to which y apply a shall be governed by laws of state in which VDV has its principal place of business, and are subject to jurisdiction of courtss in that state. Subject to clause 12. VDV shall be under no liability whatsoever to Customer forr any indirect and/or consequential loss and/or expense (includingg loss of profit) suffered by Customer arising out of a breach by VDV of se terms andd conditions (alternatively VDV s liability shall be limited to t damages which under no circumstances shall exceed Price of Goods). The Customer shall not be entitled to set off against, or deduct from Price, any sums owed or claimed to be owed to Customer by VDV nor too withhold payment of any invoice because part of that t invoice is in dispute. VDV may license or sub contracconsent. all or any part of its rights and a obligations without t Customer s The Customer agrees that VDV mayy amend se terms andd conditions at any time. If VDV makes a change to see terms and conditions, n that change will take effect from date on which VDV notifies Customer of such change. The Customerr will be taken to have accepted such changes if Customer makes a furr request forr VDV to provide Goods to Customer. Neir party shall be liable for any default due to any act off God, war, terrorism, strike, lock out, industrial action, fire, flood, storm or or event beyond b reasonable control of eir party. The Customer warrants that it has power to enter into this agreement and has obtained all necessary authorisations to alloww it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it. Page 7 of 7