1.2. Client shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Velflex to the Client.
1.3. Guarantor means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4. Goods shall mean Goods supplied by Velflex to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Velflex to the Client.
1.5. Services shall mean all Services supplied by Velflex to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6. Price shall mean the Price payable for the Goods as agreed between Velflex and the Client in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (TPA) and Fair Trading Acts (FTA)
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1. Any instructions received by Velflex from the Client for the supply of Goods and/or the Clients acceptance of Goods supplied by Velflex shall constitute acceptance of the terms and conditions contained herein.
3.2. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3. Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Velflex.
3.4. The Client shall give Velflex not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Clients name and/or any other change in the Clients details (including but not limited to, changes in the Clients address, facsimile number, or business practice). The Client shall be liable for any loss incurred by Velflex as a result of the Clients failure to comply with this clause.
3.5. Goods are supplied by Velflex only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Clients order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price and Payment
4.1. At Velflex’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Velflex to the Client in respect of Goods supplied; or
(b) Velflex’s current price at the date of delivery of the Goods according to Velflex's current Price list; or
(c) Velflex’s quoted Price (subject to clause 4.2) which shall be binding upon Velflex provided that the Client shall accept Velflex's quotation in writing within thirty (30) days.
4.2. Velflex reserves the right to change the Price in the event of a variation to Velflex's quotation.
4.3. At Velflex's sole discretion a non refundable deposit may be required.
4.4. At Velflex's sole discretion payment shall be due on delivery of the Goods.
4.5. Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days from the end of the month.
4.6. Any discounts applicable to the Price shall become null and void if payment is not made by the due date stated on the invoice and/or statement.
4.7. Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two percent (2%) of the Price), or by direct credit, or by any other method as agreed to between the Client and Velflex.
4.8. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery of Goods
5.1. At Velflex's sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Velflex's address; or
(b) the Client takes possession of the Goods at the Clients nominated address (in the event that the Goods are delivered by Velflex or Velflex's nominated carrier).
5.2. At Velflex's sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Clients account.
5.3. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Velflex shall be entitled to charge a reasonable fee for redelivery.
5.4. Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement. Velflex Imports Pty Ltd Terms & Conditions of Trade Copyright EC Credit Control Pty Ltd - 2009
5.5. Velflex may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6. The failure of Velflex to deliver shall not entitle either party to treat this contract as repudiated.
5.7. Velflex shall not be liable for any loss or damage whatsoever due to failure by Velflex to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Velflex.
6.1. If Velflex retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2. If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Velflex is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Velflex is sufficient evidence of Velflex's rights to receive the insurance proceeds without the need for any person dealing with Velflex to make further enquiries.
6.3. Where the Client expressly requests Velflex to leave Goods outside Velflex's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Clients sole risk and it shall be the Clients responsibility to ensure the Goods are insured adequately or at all.
7.1. Velflex and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid Velflex all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Velflex in respect of all contracts between Velflex and the Client.
7.2. Receipt by Velflex of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Velflex's ownership or rights in respect of the Goods shall continue.
7.3. It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Velflex shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Velflex to the Client Velflex may give notice in writing to the Client to return the Goods or any of them to Velflex. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Velflex shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Velflex then Velflex or Velflex's agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and (e) the Client is only a bailee of the Goods and until such time as Velflex has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to Velflex for the Goods, on trust for Velflex; and
(e) the Client shall not deal with the money of Velflex in any way which may be adverse to Velflex; and
(f) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Velflex; and
(g) Velflex can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(h) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Velflex will be the owner of the end products.
8.1. The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Velflex of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Velflex an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Velflex has agreed in writing that the Client is entitled to reject, Velflex's liability is limited to either (at Velflex's discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumers discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.2. Goods will not be accepted for return other than in accordance with 8.1 above.
9.1. Returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 8.1; and
(b) Velflex has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Clients cost within seven (7) days of the delivery date; and
(d) Velflex will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2. Velflex may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
9.3. Non-stocklist items or Goods made to the Clients specifications are under no circumstances acceptable for credit or return.
10.1. To the extent permitted by statute, no warranty is given by Velflex as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Velflex shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11. Intellectual Property
11.1. Where Velflex has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in Velflex, and shall only be used by the Client at Velflex's discretion.
11.2. The Client warrants that all designs or instructions to Velflex will not cause Velflex to infringe any patent, registered design or trademark in the execution of the Clients order and the Client agrees to indemnify Velflex against any action taken by a third party against Velflex in respect of any such infringement.
11.3. The Client hereby authorises Velflex to utilise images of the Goods designed or drawn by Velflex in advertising, marketing, or competition material by Velflex.
12. Default and Consequences of Default
12.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Velflex?s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
12.2. In the event that the Clients payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by Velflex.
12.3. If the Client defaults in payment of any invoice when due, the Client shall indemnify Velflex from and against all costs and disbursements incurred by Velflex in pursuing the debt including legal costs on a solicitor and own client basis and Velflex's collection agency costs.
12.4. Without prejudice to any other remedies Velflex may have, if at any time the Client is in breach of any obligation (including those relating to payment) Velflex may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Velflex will not be liable to the Client for any loss or damage the Client suffers because Velflex has exercised its rights under this clause.
12.5. If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
12.6. Without prejudice to Velflex's other remedies at law Velflex shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Velflex shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Velflex becomes overdue, or in Velflex's opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13. Security and Charge
13.1. Despite anything to the contrary contained herein or any other rights which Velflex may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Velflex or Velflex's nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that Velflex (or Velflex's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Velflex elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify Velflex from and against all Velflex's costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Velflex or Velflex's nominee as the Clients and/or Guarantors true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1. Velflex may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Velflex shall repay to the Client any sums paid in respect of the Price. Velflex shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2. In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Velflex (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3. Cancellation of orders for Goods made to the Clients specifications or non-stocklist items will definitely not be accepted, once production has commenced.
15. Privacy Act 1988
15.1. The Client and/or the Guarantor/s agree for Velflex to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Velflex.
15.2. The Client and/or the Guarantor/s agree that Velflex may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
15.3. The Client consents to Velflex being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4. The Client agrees that personal credit information provided may be used and retained by Velflex for the following purposes and for other purposes as shall be agreed between the Client and Velflex or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Velflex, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Clients credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Clients account and/or the collection of amounts outstanding in the Clients account in relation to the Goods.
15.5. Velflex may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16.1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.2. These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
16.3. Velflex shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Velflex of these terms and conditions.
16.4. In the event of any breach of this contract by Velflex the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
16.5. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Velflex nor to withhold payment of any invoice because part of that invoice is in dispute.
16.6. Velflex may license or sub-contract all or any part of its rights and obligations without the Clients consent.
16.7. The Client agrees that Velflex may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Velflex notifies the Client of such change.
16.8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
16.9. The failure by Velflex to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Velflex's right to subsequently enforce that provision.