Terms and Conditions

1. Definitions and Interpretation

1.1 In this Agreement:

“Agreement” means this document, including any Application for Credit Account, schedule or annexure to it, together with any letter of

engagement, Quote and invoice issued by the Company;

“Business Day” means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place

where an act is to be performed or a payment is to be made;

“Client” means any person who accepts this Agreement personally or by an agent, including its successors, permitted assigns and licensees, franchisees and/or its agents;

“Company” means Vantage NSW Pty Ltd (ABN 49 608 770 903) of 58 Mullaley Road, Gunnedah NSW 2380 and its successors, permitted assigns and licensees, franchisees and/or its agents;

“Credit Limit” means the amount approved in writing by the Company to the Client, from time to time, for which the Company will provide credit to the Client;

“Goods” means any and all Goods provided by the Company to the Client from time to time pursuant to this Agreement;

“GST” means the Goods and Services Tax administered under the A New Tax System

(Goods and Services Tax) Act 1999 (Cth);

“Invoice Month” means the current calendar month in which an invoice is issued by the Company to the Client.

1.2 Reference to:

1.2.1 one gender includes the others;

1.2.2 the singular includes the plural and the plural includes the singular;

1.2.3 a person includes a company and a body corporate;

1.2.4 a Party includes the Party’s executors, administrators, successors and permitted assigns;

1.2.5 a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:

1.2.5.1 that Statutory Provision as amended or re-enacted from time to time;

1.2.5.2 a statute, regulation or provision enacted in replacement of that Statutory Provision; and

1.2.5.3 another regulation or other statutory instrument made or issued under that Statutory Provision;

1.2.6 money is to be Australian dollars, unless otherwise stated;

1.2.7 all times are to New South Wales local time, unless otherwise stated.

1.2.8 “Including” and similar expressions are not words of limitation;

1.2.9 where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning;

1.2.10 headings and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation;

1.2.11 a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement; and

1.2.12 if an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.

1.3 Parties

1.3.1 If a Party consists of more than 1 person, this Agreement binds each of them separately and any 2 or more of them jointly;

1.3.2 An obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly; and

1.3.3 A Party which is a trustee is bound both personally and in its capacity as a trustee.

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2. Terms

2.1 The Client agrees to pay to the Company the full amount of any invoice issued to the Client by the Company together with any applicable GST.

2.2 The balance of all invoices payable by the Client must be paid to the Company on or before the 28th day after the end of the Invoice Month (“the due date”).

2.3 If any invoice is issued to the Client by the Company in an amount in excess of $50,000 (excluding GST), the Company will require immediate payment of 30% of the total value of  the invoiced amount (including GST) prior to delivering the Goods to the Client. Payment of the balance of the invoice will thereafter be otherwise subject to the terms and conditions set out herein.

2.3.1 If the Client pays a deposit to the Company pursuant to paragraph 2.3 of this Agreement, and thereafter refuses or fails to take possession of the Goods within a reasonable time, the Client agrees to forfeit its deposit. This clause is in addition to the Company’s right to recover payment of amounts owing to the Company by the Client, including costs and expenses referred to in clause 2.8 of this Agreement.

2.4 If the Client wishes to pay any amount to the Company by way of credit card, any such payment will attract an additional fee equal to 2.5% of the amount being paid by the Client to the Company in that transaction.

2.5 If the Client requires any Goods purchased from the Company to be shipped or otherwise delivered to the Client:

2.5.1 the Client will be liable for all postage, shipment, insurance and/or freight costs associated with the delivery of those Goods;

2.5.2 the Client accepts the risk of the Goods from the time they depart the Company’s premises and the Company will not insure any such Goods unless specifically requested to do so by the Client and on the basis that the Client will pay any and all expenses of such insurance.

2.6 The Company may charge interest on all amounts owing to the Company that are not paid by the Client by the due date at the rate of 12 percent per annum from the due date to the date of the actual receipt of payment.

2.7 The right to demand payment of interest is without prejudice to any other right and remedies that the Company may have in respect of a failure to make payment by the Client under this Agreement.

2.8 The Client agrees to pay on demand as liquidated damages to the Company any costs or expenses the Company incurs as a result of or incidental to the Client’s breach of this Agreement including but not limited to any legal costs incurred by the Company in respect of recovery of any outstanding monies wing by the Client on an indemnity (solicitor and own client) basis.

2.9 The Client also agrees to indemnify the Company and keep the Company indemnified against all and any actions, suits, claims, damages or loss sustained by or brought against the Company either directly or indirectly as a result of any breach by the Client of this Agreement.

2.10 If the Client fails to pay any invoice by the due date the Company reserves the right to suspend all credit or sale of Goods to the Client until payment in full of all outstanding monies, including invoices owing and any costs incurred as referred to in paragraph 2.8 of this Agreement (if any), is made. Upon the suspension of such credit or sale of Goods in the circumstances described herein, the Client acknowledges that the Company will not be liable for any loss or damage suffered by the Client for any reason during that period of suspension or at all.

2.11 If the Client is a Company, in consideration of the Company agreeing to sell Goods and/or provide credit to the Client, the directors of the Company

hereby personally guarantee the Client’s obligations as set out in this Agreement including but not limited to the obligation of the Client to pay the costs and expenses (as referred to in paragraph 2.8 hereof) to the Company.

2.12 The Credit Limit is for the sole benefit of the Company and the Client’s obligations under this Agreement do not change if the Credit Limit is exceeded at any time.

2.13 The Client acknowledges and warrants to the Company that any credit provided to it by the Company is for the sole purpose of the Client acquiring Goods from the Company to be used by the Client in its business and not in any way for personal, household or domestic purposes. The Client further acknowledges that the terms of the National Credit Code (as referred to in the National Consumer Credit Protection Act 2009 (Cth)) do not apply to this Agreement.

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3. Retention of Title

3.1 The Goods shall be at the sole risk of the Client upon the dispatch of the Goods from the Company’s premises.

3.2 The Client acknowledges that all Goods supplied by the Company remain the Company’s property until payment by the Client of the balance of all invoices and costs owing by the Client have been received in full by the Company.

3.3 The Client warrants, insofar as it is possible, to store all Goods supplied to it by the Company separate and identifiable from all other Goods, capable of being cross-referenced and identified as belonging to particular Company invoices, until the balance of all invoices owing to the Company are paid in full.

3.4 The Client may sell the Goods received from the Company in the normal course of its business but, if the Goods are so sold, agrees to set aside the

proceeds of sale of those Goods in satisfaction of any monies owing to the Company.

3.5 If any monies are owing to the Company by the Client, the Company may require the Client to return the Goods to it, and may enter upon the Client’s premises to repossess the Goods.

3.6 Nothing in this Agreement prevents the Company from maintaining an action against the Client for monies owing.

3.7 A written and signed statement by a duly authorised representative of the Company, setting out the amount of monies due and owing by the Client to the Company, is conclusive evidence of the amount of monies that are so due and owing at that time.

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4. Exclusion of Conditions, Warranties and Liability

4.1 To the full extent permitted by law the Company excludes all implied terms and conditions and warranties including, without limitation, terms, conditions and warranties implied by Commonwealth or State legislation.

4.2 The Company and the Client agree that in the event of the Client suffering any loss (including economic loss), damage, costs, expense or claim howsoever arising as a result of the Agreement or the Goods supplied by the Company to the Client, the liability of the Company is limited to the repair or replacement of the Goods, or in the case of services, to the supply of the services again (or to the value thereof).

4.3 The Company shall not be liable under any circumstances for any direct, indirect, economic, special or consequential loss or damage of any nature whatsoever to the Client.

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5. Variations

5.1 This Agreement will not be varied unless the Company notifies the Client in writing. Any purchase of Goods by the Client from the Company after such notification is given to the Client shall be deemed acceptance of that variation.

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6. Default

6.1 If the Client defaults in the payment of any monies owing to the Company under this Agreement, or if the Client is for any reason placed under external

administration (in any form) all monies payable by the Client to the Company become immediately due and owing.

6.2 If such a default is committed by the Client, the Company reserves the right to terminate this Agreement forthwith without notice to the Client.

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7. Warranty

7.1 All Goods purchased by the Client from the Company will carry a limited warranty against defects for 12 months from the date of invoice for purchase of the Goods (“the limited warranty period”). If the Client wishes to make a claim under this limited warranty, the defect must appear in the Goods within the limited warranty period.

7.2 Should the Goods prove to be defective within the limited warranty period the Company will, at its discretion and provided that the defect is not due

to the use, or misuse or installation of the Goods or from fair wear and tear, replace or repair the defective Goods free of charge.

7.3 The Company reserves the right to repair all Goods returned under this limited warranty in the first instance.

7.4 To make a claim under this limited warranty, the Client must, within the limited warranty period:

7.4.1 bear all costs of and incidental to making such a claim;

7.4.2 notify the Company in writing (by fax or email to the contact details at 7.12 below) of its claim under this limited warranty. At the time of such notification, if the Company considers that the Client may have a valid claim, it may instruct the Client to return the particular Goods to it or to its nominated repair agent at an address specified by the Company; and

7.4.3 thereafter return the Goods to the Company (or to its nominated agent) at the address specified by the Company together with the proof of purchase for those Goods.

7.5 If the Goods returned to the Company (or to its nominated repair agent) under this limited warranty are damaged or have been tampered with in any way, the terms of this limited warranty will not apply and a charge may apply for the repair of the Goods.

7.6 All repairs carried out to the Goods within the limited warranty period must be completed by an authorized representative of the Company. In the event of any repairs being carried out by an unauthorized representative the warranty shall be void.

7.7 If the steps prescribed at paragraph 7.4 hereof are not completed prior to expiration of the limited warranty period, the Company reserves the right to reject any warranty claim made by the Client.

7.8 All repairs to Goods under the terms of this limited warranty shall also carry a warranty in respect of workmanship, but not parts used.

7.9 This limited warranty will become null and void should the Goods have been altered or tampered with in any way without prior consent of the Company.

7.10 Any Goods sold by the Company that are not manufactured, produced or installed by the Company shall only be covered by the original manufacturer’s or producer’s warranty and at their absolute discretion and shall otherwise not be subject to the terms of this limited warranty.

7.11 All additional cost to replace or repair the Goods such as equipment hire or labour costs are the Client’s responsibility.

7.12 The entity providing this warranty is the Company. The Company’s details are as follows:

7.12.1 business address: 58 Mullaley Road, Gunnedah NSW 2380;

7.12.2 telephone: 1300 770 970;

7.12.3 email: accounts@vantage-nsw.com

7.13 The benefits to the Client under this limited warranty are in addition to other rights and remedies under the Competition and Consumer Act 2010 (Cth).

7.14 Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

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8. Miscellaneous

8.1 The person signing this Agreement for and on behalf of the Client hereby covenants with the Company that he or she has the authority of the Client to make this Agreement on the Client’s behalf and is empowered by the Client to bind the Client to this Agreement and hereby indemnifies the Company against all losses, costs and claims incurred by the Company arising out of the person so signing this Agreement not in fact having such power and/or authority.

8.2 If any of the terms and conditions of this Agreement are unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.

8.3 No failure to exercise nor any delay in exercising any right, power or remedy by the Company operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.

8.4 The rights, powers and remedies of a party under exclude or limit any right, power or remedy provided by law or equity or by any other Agreement.

8.5 This Agreement is governed by the law of New South Wales and the parties submit to the nonexclusive jurisdiction of the Courts of New South Wales and of the Commonwealth of Australia.

8.6 No other terms and conditions are binding upon the Company unless agreed to in writing by the Company.

8.7 The Company will comply with the National Privacy Principles in all dealings with the Client.

8.8 Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to this Agreement.

8.9 This Agreement:

8.9.1 is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement; and

8.9.2 supersedes any prior agreement or understanding on anything connected with that subject matter.

8.10 The parties have entered into this Agreement without relying on any representation by any other party or any person purporting to represent that

party.

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9. Charge

9.1 To secure payment of any monies due and owing by the Client to the Company under this Agreement, the Client (and any guarantors to this Agreement) agrees to charge all of its interest in real and personal property whether located within Australia or internationally, and the Client consents to the Company lodging a caveat or other security interest to the Company’s satisfaction in respect of that property to protect its interest.

9.2 If the Client consists of more than one person or entity, each of those persons and/or entities jointly and severally agree to the content of paragraph

9.1 hereof.

9.3 Upon written demand by the Company or its duly authorised agent, the Client agrees to immediately execute a caveat, mortgage or other document

providing a security interest, as required by the Company (in terms satisfactory to it) to secure the Client’s indebtedness to the Company.

9.4 If the Client fails to execute any document recording a security interest referred to in paragraph 9.3 hereof within a reasonable time, the Client hereby irrevocably authorises the Company or its agent to execute that documentation as its duly authorised attorney.

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10. Force Majeure

10.1 The Company will not be held liable for failing to perform any of its obligations under this Agreement if the cause of that failure is due to any circumstances beyond the Company’s reasonable control. Any such failure will not constitute a breach of this Agreement by the Company, and the Client will not hold the Company liable for any loss that it suffers by reason of such failure.

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11. Notice

11.1 Any notices or other written documentation required to be provided by the Client to the Company under this Agreement may be delivered personally or by post, facsimile or email at the details set out in paragraph 7.12 hereof.

11.2 Any notices or other written documentation required to be provided by the Company to the Client under this Agreement may be delivered personally or by post, facsimile or email at the details set out in the Application for Credit Account completed by the Client, or if no such application is completed by the Client, by post to the Client’s last known address.

11.3 Unless the contrary is proven, any notice or other documentation referred to in this Agreement is taken to be delivered upon the second business day following posting, or if sent by email or facsimile, the date upon which it is sent.