1.1 “VPS” means Vital Peripheral Supplies Pty Ltd, its successors and assigns or any person acting on behalf of, and with the authority of, Vital Peripheral Supplies Pty Ltd.
1.2 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting VPS to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.3 “Parties” shall mean the person/s or entities as defined in clauses 1.1 and 1.2 who are to enter into a contract or any other business transactions, thereby forming a legally binding contract between the two Parties. For the sake of clarity where the definition of “Parties” is used it shall refer to VPS and the Client.
1.4 “Services” means all Goods (which includes any hardware or software, and/or accessories whether supplied from a third party or where custom developed or programmed for the Client, accessories or parts, etc.) and/or Services (which includes any advice or recommendations, installation of Goods, product support, etc.) provided by VPS to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
1.6 “Sub-contractor” means any third party Sub-contractor engaged by VPS to assist and carry out services to complete the Services.
1.7 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.8 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Goods via the website.
1.9 “Price” means the cost of the Services (plus any GST where applicable) as agreed between VPS and the Client in accordance with clause 4 below.
1.10 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts, Services provided by VPS.
2.2 These terms and conditions:
(a) sets forth the entire and final understanding of the Client and VPS pertaining to the subject matter hereof and supersedes all prior arrangement, whether oral or written; and
(b) may only be amended with both parties consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and VPS, unless subject to conditions as defined in clause 21.8.
2.3 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.4 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.5 The Client shall as soon as practicable make available to VPS all information, documents, software, hardware, and other particulars required by VPS for the provision of Services.
2.6 None of VPS’ agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Directors of VPS in writing nor is VPS bound by any such unauthorised statements.
2.7 Any advice, recommendations, information, assistance or service provided by VPS in relation to the Services provided is given in good faith, is based on information provided to VPS, and VPS’ own industry knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and VPS shall make all effort to offer the best solution to the Client.
2.8 The Client acknowledges and agrees where the Client does not elect to control their purchases by a purchase order and/or a letter of authority, then all purchases made by Client and/or any other third party acting on behalf of the Client to which the Goods are charged to the Client’s credit account, shall remain at all times payable by the Client. All said notices of restrictions pertaining to purchases must be writing and will remain in place until such time as the Client revokes.
2.9 The Client agrees to notify VPS in writing immediately upon of the departure of the Client’s employee if an authorised account user. Failure to advise VPS of such departures, then the Client acknowledges they will be bound by all purchase orders made by that account user.
2.10 Provided VPS acts reasonably, they are entitled to assume that any request in connection with the Services that VPS receives from the Client (or the Client’s agents, employees or contractors) or from the premises where the Services are being provided or accessed, is authorised by the Client.
2.11 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.12 The commencement date shall be the date of the first delivery of the Services, or from the date of signing, whichever, is the earlier. Fixed Price Contracts for Service Contracts shall be for the period (‘initial term”) as agreed between both parties and shall be reviewed automatically, thereafter, as a roll over month by month basis, unless agreed otherwise until terminated by either party by giving at least one (1) months required notice as defined in the Contract prior to the expiration date of the initial term or any additional term.
2.13 The Client acknowledges and accepts that:
(a) the Price stated will remain fixed for an initial period as stated from the date of this contract and will then be subject to revision on the basis of the movement in the Consumer Price Index (CPI);
(b) these terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on VPS’ Web Site (https://www.vps.com.au/terms-and-conditions.html). If there are any inconsistencies between these documents then the terms and conditions posted on the Web Site shall prevail.
(c) VPS is recognised as an authorised Apple Service Provider, warranty conditions are subject to special conditions in accordance with Apple, such conditions are available on request and are displayed on VPS’s website, as per the following link http://www.vps.com.au/apple-authorised-service-provider-warriewood-northern-beaches/service-terms-and-conditions-en.html;
(d) the supply of Goods on credit shall not take effect until the Client has completed a credit application with VPS and it has been approved with a credit limit established for the account;
(e) the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, VPS reserves the right to:
(i) vary the Price with alternative Goods as per clause 4.2; or
(ii) cancel the order in its entirety or part thereof.
(f) in the event that the supply of Goods request exceeds the Clients credit limit and/or the account exceeds the payment terms, VPS reserves the right to refuse delivery; and
(g) additional fees may apply where the Client cancels an order (including but not limited to, restocking fees, as per clause 12.11 or 15.3).
3. Change in Control
3.1 The Client shall give VPS not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by VPS as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At VPS’ sole discretion the Price shall be either:
(a) as indicated on any invoice provided by VPS to the Client; or
(b) the Price as at the date of delivery of Services according to VPS’ current Price schedule; or
(c) VPS’ quoted price (subject to clause 4.2) which will be valid for the period stated in this Contract or otherwise for a period of five (5) business days.
4.2 VPS reserves the right to vary the Price:
(a) if a variation to the plan of scheduled Services, or Client specifications is requested (including, but not limited to, additional work required due to hidden or unidentifiable difficulties not evident prior to commencement of the Services, any request to investigate and/or repair any faults or defects outside VPS’ normal business hours);
(b) if during the course of the Services, the Goods cease to be available from VPS’s third party suppliers, then VPS reserves the right to provide alternative Goods, subject to prior confirmation and agreement of both parties; or
(c) as a result of increases beyond VPS’ reasonable control in the cost of materials or labour, prior to delivery and/or installation (e.g. third-party component or supplier costs, etc.).
4.3 Variations will be charged for on the basis of VPS’ quotation, and will be detailed in writing, and shown as variations on VPS’ invoice. The Client shall be required to respond to any variation submitted by VPS within ten (10) working days. Failure to do so will entitle VPS to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
4.4 At VPS’ sole discretion, a non-refundable deposit may be required.
4.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by VPS, which may be:
(a) on provision of the Services; or
(b) the date specified on any invoice or other form as being the date for payment; or
(c) fifteen (15) days from the end of the month in which the statement is issued (posted and/or emailed to the Client’s email address or address for notices;
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by VPS.
4.6 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 VPS nor to withhold payment of any invoice because part of that invoice is in dispute.
4.7 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and VPS.
4.8 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to VPS an amount equal to any GST VPS must pay for any provision of Services by VPS under this Contract or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price, except where they are expressly included in the Price.
4.9 The Client acknowledges and agrees that the Client’s obligations to VPS for the provision of the Services shall not cease, and ownership of the Goods (if applicable) shall not pass, until:
(a) the Client has paid VPS all amounts owing thereto for the particular Services; and
(b) the Client has met all other obligations due by the Client to VPS in respect of all agreements between VPS and the Client.
4.10 Receipt by VPS 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 VPS’ ownership or rights in respect of the Services, and this Contract, shall continue.
5. Provision of the Services
5.1 The Services are provided on the basis of specifications, information and instructions provided by the Client to VPS (whether written or verbal). The Client acknowledges that it is their responsibility to ensure that such are detailed sufficiently to satisfy VPS’ requirements of interpretation and understanding, as once accepted by the Client, VPS’ quotation shall be deemed to interpret correctly those specifications, information and instructions. Therefore, VPS shall not accept any liability for the supply of Services contrary to the Client’s intention, or errors or omissions in the Services, due to insufficient or inadequate provision of detailed specifications, information and instructions by the Client or oversight or misinterpretation thereof, and VPS may charge the Client additional costs incurred thereby in remedying the Services, and if reasonably practical, will notify the Client of such costs before they are incurred and the Client agrees to them.
5.2 Where the performance of any Contract with the Client requires VPS to obtain products and/or services from a third party, the Contract between VPS and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to VPS, and the Client shall be liable for the cost in full including VPS’ margin of such products and/or services.
5.3 VPS may supply Goods to the Client where it is required for the provision of Services, and
(a) delivery of the Goods is taken to occur at the time that VPS (or VPS’ nominated carrier) delivers the Goods to the Client’s nominated address, even if the Client is not present at the address; and
(b) at VPS’ sole discretion, any costs of delivery shall be in addition to the Price; and
(c) VPS may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions; and
(d) risk of damage to, or loss of, the Goods passes to the Client on delivery, and the Client must insure the Goods on, or before, delivery.
5.4 Whilst VPS shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties (subject to VPS’ normal service hours of 8.30am to 5:30pm on business days), the Client acknowledges that any time specified thereby for provision of the Services is an estimate only and VPS will not be liable for any loss or damage incurred by the Client as a result of any delay. In the event that VPS is unable to provide the Services as agreed solely due to any action or inaction of the Client then VPS shall be indemnified from any liability for any resulting failure to provide the Services and/or entitled to charge a reasonable fee for re-providing the Services at a later time and date.
5.5 Normal Working Hours:
(a) Services may be requested outside of the hours of 8.30am to 5:30pm Monday through Friday, and including all public holidays by prior arrangement, but may be subject to additional charges.
6. On-Line Ordering
6.1 The Client acknowledges and agrees that:
(a) VPS does not guarantee the website’s performance;
(b) display on the website does not guarantee the availability of any particular Goods; therefore, all orders placed through the website shall be subject to confirmation of acceptance by VPS
(c) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
(d) there are inherent hazards in electronic distribution, and as such VPS cannot warrant against delays or errors in transmitting data between the Client and VPS including orders, and you agree that to the maximum extent permitted by law, VPS will not be liable for any losses which the Client suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
(e) when making a transaction through the website, the Client’s information will pass through a secure server using SSL (secure sockets layer) encryption technology. The encryption process ensures that the Client’s information cannot be read by or altered by outside influences;
(f) if the Client is not the cardholder for any credit card being used to pay for the Goods, VPS shall be entitled to reasonably assume that the Client has received permission from the cardholder for use of the credit card for the transaction.
6.2 VPS reserves the right to terminate the Client’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of VPS’s business, or violated these terms and conditions.
7. Repair Notice
7.1 If the Client is a consumer within the meaning of the CCA, this clause constitutes a Repair Notice given under the Australian Consumer Law (“ACL”), and the Client acknowledges that:
(a) the repair of equipment may result in the loss of any files stored on the hard drive, etc. (“User-Generated Data”). It is the sole responsibility of the Client to back-up any User-Generated Data which they believe to be important, valuable, or irreplaceable prior to submitting the equipment for repair; and
(b) equipment presented for repair may be replaced by, or repaired with, refurbished Goods of the same type rather than being repaired.
8. Client’s Obligations
8.1 The Client shall:
(a) co-operate with VPS in connection with the provision of the Services, and shall ensure that the work area is free from hazards and all other objects (including but not limited to, cabling or items that are likely to break) that may limit such access to the Client’s premises, equipment and adequate working space and facilities, such as electrical outlets, within a reasonable distance from the equipment. VPS shall not be liable for any loss or damage to any property, or injury to any person, that may be caused by the Client’s failure to comply with this clause 8.1(a);
(b) obtain, keeps and make available to VPS, machine readable copies of all programs, operating systems, drivers and data files relating to the equipment. VPS does not assume any liability as a consequence of the Client’s inability to use its machine readable data;
(c) not modify, create any derivative work of, or incorporate any other goods into the network or any portion thereof. VPS shall not be responsible for the maintenance of, or the repair of problems or malfunctions caused by any modifications of enhancements made by the Client or by anyone else other than VPS.
8.2 The Client accepts and acknowledges that during the course of the Services:
(a) existing plastics or connections may be broken to access a repair area and/or carry out general maintenance, which is beyond VPS control. Any additional cost associated with replacement items shall be borne by the Client; and
(b) where the Client chooses to deliver their laptop, computer or any other digital device to VPS business premises for repair, all risk to such items remains with the Client in the first instance, any damage to the Goods or any personal injury experienced during this delivery method, shall be the Client responsibility; and
(c) the Client shall provide content to VPS, in such form as reasonably prescribed by VPS from time to time, and hereby grants VPS a non-exclusive, worldwide, irrevocable licence to use such content for incorporation in the Services; and
(d) ensure that such content supplied to VPS is not Prohibited Content, or contains any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the Services; and
(e) the Client will ensure that VPS is given such information and assistance (including remote access (where required) to any computer systems plus usernames and passwords or any other locations) as VPS reasonably requires to enable VPS to complete any necessary Services. Failure to provide these prior to the provision of the Services by VPS, may incur additional time delay and surcharge added to the initial quoted cost or estimate.
9. Client’s Property and Materials
9.1 In the case of property and materials left with VPS without specific instructions, VPS shall be free to dispose of them at the end of three (3) months after VPS receiving them and to accept and retain the proceeds (such sale is to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods), if any, and/or charge the Client in addition to the Price to cover VPS’ own costs in storing, handling and/or disposing of such property which shall be charged at a rate that is solely determined by VPS.
9.2 The lien of VPS shall continue despite the commencement of proceedings, or judgment for any moneys owing to VPS having been obtained against the Client.
9.3 Where materials or equipment are supplied by the Client, VPS accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
10.1 The Client is responsible for maintaining their own backups (including but not limited to, e-mail and software) on their own systems, unless otherwise agreed in writing; VPS does not provide any sort of compensation for lost or incomplete data in the event that backups do not function properly.
10.2 If the Client requires assistance in creating backups, please contact VPS, an additional fee will apply in accordance with clause 4.2.
10.3 Where VPS is instructed to execute back-ups on behalf the Client, VPS will use their best endeavours to ensure complete and accurate backups of the Client’s data, but assume no responsibility for this duty. It is recommended by VPS that the Client always keeps a backup of their computer and website whenever possible. VPS makes no guarantees about the availability of backups.
11. Risk and Limitation of Liability
11.1 The Client acknowledges and agrees that VPS shall not be held responsible or liable for:
(a) any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by VPS. Whilst VPS will endeavour to restore files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data as per clause 7.1(a). The Client accepts full responsibility for the Client’s software and data and VPS is not required to advise or remind the Client of appropriate backup procedures;
(b) loss or damage caused by any component failure, notwithstanding any rights the Client has under the CCA, or the Client’s software or hardware caused by any ‘updates’ provided for that software;
(c) any unlicensed software, data loss or problems arising caused by the user or software.
11.2 If during the provision of the Services VPS is required to perform a backup or transfer of any data as it sees fit in order to repair computers/devices and whilst VPS will take all possible precaution to protect the Client’s data it may be required in some circumstances to view personal data, VPS will treat such information as confidential and shall not disclose any or part thereof of said information, unless it falls under the umbrella as detailed in clause 11.5.
11.3 VPS, its directors, agents, or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of Services by VPS to the Client.
11.4 The Client agrees to defend, hold harmless and indemnify VPS for any and all claims, causes of action, damages, demands, fines, liabilities and penalties arising out of the Clients breach of any warranty made by the Client pursuant to this Contract. The Client further agrees to defend, hold harmless and indemnify VPS for any and all claims, causes of action, damages, demands, fines, liabilities and penalties arising out of the Client’s negligent or reckless acts or omissions arising out of this Contract.
11.5 The Client acknowledges that it is the policy of VPS to report all findings of illegal material (including, but not limited to, images and software) to the relevant authorities.
11.6 Public Access:
(a) The Client understands that by placing information on the Web Site, such information may be accessible to all internet users. VPS does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by VPS, or on the internet generally.
12. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect VPS’ Services on completion (or Goods on delivery) and must within forty-eight (48) hours notify VPS in writing of any evident defect, error or omission in the Services provided (including VPS’ workmanship) or of any other failure by VPS to comply with the description of, or quotation for, the Services which VPS was to provide. The Client must notify any other alleged defect in VPS’ Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow VPS to review the Services that were provided.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).
12.3 VPS acknowledge that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, VPS makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. VPS’ liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, VPS’ liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If VPS is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then VPS may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
12.7 If the Client is not a consumer within the meaning of the CCA, VPS’ liability for any defective Services is:
(a) limited to the value of any express warranty or warranty documentation provided to the Client by VPS at VPS’ sole discretion;
(b) limited to any warranty to which VPS is entitled, if VPS did not manufacture the Goods (including but not limited to, Apple Goods-
hardware warranty only applies to Apple’s hardware and only warrants against defects in materials and workmanship when used normally in accordance with Apple's published guidelines provided with the products at the time of sale and/or as displayed on vps website www.vps.com.au. Apple's hardware warranty does not apply to any software, even if packaged or sold with Apple hardware);
(c) otherwise negated absolutely.
12.8 Subject to this clause 12, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 12.1; and
(b) VPS has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time (within five (5) business days) at the Client’s cost; and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1 to 12.7 but subject to the CCA, VPS shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store the Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Goods by the Client or any third party without VPS’ prior approval;
(e) the Client failing to follow any instructions or guidelines provided by VPS;
(f) fair wear and tear, any accident, or act of God.
12.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by VPS as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that VPS has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 12.10.
12.11 VPS may in its absolute discretion accept non-defective Goods for return in which case VPS may require the Client to pay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
12.12 Notwithstanding anything contained in this clause if VPS is required by a law to accept a return then VPS will only accept a return on the conditions imposed by that law.
13.1 The Client acknowledges and agrees that, until ownership of the Goods passes to the Client in accordance with clause 4.9:
(a) the Client is only a bailee of the Goods and must return the Goods to VPS on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for VPS and must pay to VPS the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for VPS and must pay or deliver the proceeds to VPS on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of VPS and must sell, dispose of or return the resulting product to VPS as it so directs.
(e) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of VPS.
(f) VPS may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.
13.2 If the Client fails to return the Goods, or refuses to allow VPS to recover the Goods, the Client irrevocably authorises VPS (as the invitee of the Client) to enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated, or VPS believes the Goods are kept, and take/recover possession of the Goods, without being responsible for any damage thereby caused. Furthermore, provided VPS acts with reasonable care, the Client must reimburse VPS for any loss and/or costs incurred thereby.
14. Intellectual Property
14.1 Any coding and other supplied code (if any) remains the intellectual property of VPS. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
14.2 Where VPS has provided software (and associated documentation) and/or for any of VPS’ source code, VPS retains ownership thereof, but grants the Client a non-exclusive and non-transferable licence for its use (solely in relation to the operation of the Client’s own business). The Client will use any third-party software and/or source code supplied by VPS, and identified as such, strictly in terms of the licence (or any other conditions imposed by VPS) under which it is supplied. The Client further agrees that they shall not without VPS’ prior written consent:
(a) copy the software and/or source code; or
(b) allow any third party to have access to the software and/or source code; or
(c) where VPS’ phone configuration details are used such details are confidential and access to such is strictly prohibited unless the Client is to (upon written advice) carry out a factory reset for the phone system to be configured again from inception; or
(d) alter, modify, tamper with, or reverse engineer the software and/or source code; or
(e) combine the Software and/or source code with any other software and/or item, etc.
14.3 Subject to Australian copyright laws (and/or any other applicable copyright laws) and the conditions therein, the Client agrees that they shall not in any way sell, reproduce, adapt, distribute, transmit, publish, or create derivative works from, any part of the software (if supplied by VPS) without VPS’ prior consent in writing.
14.4 The Client hereby authorises VPS to utilise images of the Services created by VPS in advertising, marketing, or competition material by VPS.
15.1 VPS may cancel any contract to which these terms and conditions apply or cancel provision of the Services at any time before the Services have commenced by giving written notice to the Client. On giving such notice VPS shall repay to the Client any money paid by the Client for the Services. VPS shall not be liable for any loss or damage whatsoever arising from such cancellation.
15.2 In the event that the Client cancels provision of the Services, the Client shall be required to give VPS at least twenty-four (24) hours’ notice prior to the scheduled appointment or the Client shall be liable for a cancellation fee equal to one (1) hour at the applicable rate for the schedule Services, plus any and all loss incurred (whether direct or indirect) by VPS as a direct result of the cancellation (including, but not limited to, any loss of profits).
15.3 Cancellation of orders for Goods made to the Client’s specifications, change of mind or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed, unless at VPS’s sole discretion, it is agreed to accept such items, a restocking fee of thirty percent (30%) will apply.
15.4 Further to clause 15.2, where cancellation by the Client includes the return on non-defective Goods, a restocking fee may be applicable as per clause 12.11.
16. Suspension and Termination
16.1 In the event the Client is in material breach of this agreement (including by non-payment of the Price when due) VPS has the right to suspend performance of any or all of their obligations under this agreement if the Client fails to comply with VPS’s written notice requiring the remedy of such breach by the date specified therein.
16.2 Either party may terminate the Services on written notice where:
(a) the other party has materially breached this agreement as it relates to the Services and, if that breach is capable of remedy, has failed to remedy the breach within twenty (20) business days of receipt of written notice from the non-defaulting party requiring the breach to be remedied; or
(b) the other party suffers an insolvency event, where an administrator, liquidator, receiver, manager and receiver or any other administrator is appointed over the assets of the business of the entity, or if the entity enters into any composition with its creditors.
16.3 VPS may terminate any agreement to which these terms and conditions apply, or cancel provision of Services at any time by giving written notice to the Client:
(a) either in whole or in part, if the Client materially breach this agreement and, if that breach is capable of remedy, the Client has failed to remedy such breach within twenty (20) business days of receipt of written notice requiring the breach to be remedied; or
(b) if VPS is required to do so by law; and
(c) on giving such notice VPS shall repay to the Client any money paid thereby for the Services, less any amount owing to VPS by the Client for Services already provided. VPS shall not be liable for any loss or damage whatsoever arising from such termination.
16.4 In the event that the Client terminates this agreement (excluding where terminated as per clause 16.2), the Client must provide VPS with thirty (30) days prior written notification. The Client shall be liable for any and all loss incurred (whether direct or indirect) by VPS as a direct result of the termination (including, but not limited to, any loss of profits) and the Client shall be liable for the payment of a cancellation fee in the event the Client cancels all or part of the Services, or this agreement, without providing VPS with proper notification (as specified herein).
17. Personal Property Securities Act 2009 (“PPSA”)
17.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
17.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
(a) all Goods previously provided, or that will be provided in the future, by VPS to the Client;
(b) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to VPS for Services – that have previously been provided and that will be provided in the future by VPS to the Client.
17.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which VPS may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 17.2(a)(i) or 17.2(a)(ii);
(b) indemnify, and upon demand reimburse, VPS for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of VPS;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of VPS.
17.4 VPS and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
17.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
17.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
17.7 Unless otherwise agreed to in writing by VPS, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
17.8 The Client must unconditionally ratify any actions taken by VPS under clauses 17.2 to 17.5.
17.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
18. Security and Charge
18.1 In consideration of VPS agreeing to provide the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
18.2 The Client indemnifies VPS from and against all VPS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising VPS’ rights under this clause.
18.3 The Client irrevocably appoints VPS and each director of VPS as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 18 including, but not limited to, signing any document on the Client’s behalf.
19. Default and Consequences of Default
19.1 Interest on overdue invoices may, at VPS’s sole discretion, 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 VPS’ sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
19.2 If the Client owes VPS any money the Client shall indemnify VPS from and against all costs and disbursements incurred by VPS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, VPS’ Contract default fees, and bank dishonour fees).
19.3 Further to any other rights or remedies VPS may have under this Contract, if the Client has made payment to VPS and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by VPS under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
19.4 Without prejudice to any other remedies VPS may have, if at any time the Client is in breach of any obligation (including those relating to payment and/or where the Client fails to cooperate with VPS or hinders VPS’ ability to provide the Services hereunder) under these terms and conditions VPS may suspend the provision of Services to the Client or terminate this Contract. VPS will not be liable to the Client for any loss or damage the Client suffers because VPS has exercised its rights under this clause.
19.5 Without prejudice to VPS’ other remedies at law VPS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to VPS shall, whether or not due for payment, become immediately payable if:
(a) any money payable to VPS becomes overdue, or in VPS’ opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by VPS;
(c) 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
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
20.1 All emails, documents, images or other recorded information held or used by VPS is Personal Information, as defined and referred to in clause 20.3, and therefore considered Confidential Information. VPS acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). VPS acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by VPS that may result in serious harm to the Client, VPS will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
20.2 Notwithstanding clause 20.1, privacy limitations will extend to VPS in respect of Cookies where transactions for purchases/orders transpire directly from VPS’s website. VPS agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to VPS when VPS sends an email to the Client, so VPS may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via VPS’s website.
20.3 The Client agrees for VPS to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by VPS.
20.4 The Client agrees that VPS may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the 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 creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
20.5 The Client consents to VPS being given a consumer credit report to collect overdue payment on commercial credit.
20.6 The Client agrees that personal credit information provided may be used and retained by VPS for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
20.7 VPS may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
20.8 The information given to the CRB may include:
(a) Personal Information as outlined in 20.3 above;
(b) name of the credit provider and that VPS is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and VPS has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of VPS, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
20.9 The Client shall have the right to request (by e-mail) from VPS:
(a) a copy of the Personal Information about the Client retained by VPS and the right to request that VPS correct any incorrect Personal Information; and
(b) that VPS does not disclose any Personal Information about the Client for the purpose of direct marketing.
20.10 VPS will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
20.11 The Client can make a privacy complaint by contacting VPS via e-mail. VPS will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
21.1 Any notice to be given by either party to the other may be sent by either e-mail or recorded delivery to the most recent e-mail address or address notified to the other party, and if sent by e-mail shall (unless the contrary is proved) be deemed to be received on the day it was sent or if sent by recorded delivery shall be deemed to be served two (2) days following the date of posting.
21.2 The Client acknowledges that they have relied on their own judgment to evaluate the suitability of the Services for the purpose for which they require them. The Client must not rely on any statement, representation or promise made by VPS that is not expressly set out in this Contract.
21.3 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. 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.
21.4 Subject to clause 12, VPS shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by VPS, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by VPS of these terms and conditions, caused by any failure by the Client to comply with their obligations under this Contract, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services, or where due to server downtime or programming errors (alternatively VPS’ liability shall be limited to damages which under no circumstances shall exceed the Price).
21.5 These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales, the state in which VPS has its principal place of business, and are subject to the jurisdiction of the Manly Local Court, Sydney in that state.
21.6 This Contract does not create any rights in any third parties, except assigns, successors and heirs expressly permitted hereunder.
21.7 VPS may license or sub-contract all or any part of its rights and obligations without the Client’s consent, and:
(a) VPS does not warrant the accuracy or quality of the Sub-contractor’s work or warrant that any recommendations of the Sub-contractor are appropriate or adequate or are fit for their purpose or that they are not given negligently; and
(b) the Client shall not make any demand on VPS or commence any legal proceedings against VPS. VPS shall have no liability, whether in negligence or otherwise, to the Client in relation to any Services performed by the Sub-contractor;
(c) Client agrees and understands that they have no authority to give any instruction to any of VPS Sub-contractors without the authority of VPS.
21.8 The Client agrees that VPS may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such changes via VPS’s Web Site https://www.vps.com.au/terms-and-conditions.html. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for VPS to provide Services to the Client.
21.9 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.
21.10 Both Parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.