VMS Terms and Conditions

1. Definitions

1.1 “VMS” means VMS Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of VMS Pty Ltd.

1.2 “Client” means the person/s buying the Goods as specified in any invoice, document, or order, and if there is more than one Client is a reference to each Client jointly and severally (where the context so permits, the term ‘Client’ shall also mean the Client’s duly authorised representative).

1.3 “Goods” means all Goods or Services supplied by VMS 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).

1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between VMS and the Client in accordance with clause 6 below.

1.5 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

2. Acceptance

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 delivery of the Goods.

2.2 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and VMS.

2.3 The Client acknowledges that the supply of Goods on credit shall not take effect until the Client has completed a credit application with VMS and it has been approved with a credit limit established for the account.

2.4 In the event that the supply of Goods request exceeds the Clients credit limit and/or the account exceeds the payment terms, VMS reserves the right to refuse delivery.

2.5 VMS reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases VMS will notify the Client in advance of any such substitution.

2.6 The Client acknowledges and accepts that 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, VMS reserves the right to vary the Price with alternative Goods as per clause 2.5.

2.7 Notwithstanding clause 2.6 VMS also reverses the right at their discretion to introduce additional new Goods as part of the Goods to be supplied.

3. Electronic Transactions Act 2000

3.1 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.

4. Authorised Representatives

4.1 Unless otherwise limited as per clause 4.2 the Client agrees that should the Client introduce any third party to VMS as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Goods or Services on the Client’s behalf and/or to request any variation to the Goods/Services on the Client’s behalf (such authority to continue until all requested Goods/Services have been supplied or the Client otherwise notifies VMS in writing that said person is no longer the Client’s duly authorised representative).

4.2 In the event that the Client’s duly authorised representative as per clause 4.1 is to have only limited authority to act on the Client’s behalf, then the Client must specifically and clearly advise VMS in writing of the parameters of the limited authority granted to their representative.

4.3 The Client specifically acknowledges and accepts that they will be solely liable to VMS for all additional costs incurred by VMS (including VMS’ profit margin) in providing any Goods/Services or variations requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 4.2 (if any)).

5. Change in Control

5.1 The Client shall give VMS 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, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by VMS as a result of the Client’s failure to comply with this clause.

6. Price and Payment

6.1 At VMS’ sole discretion, the Price shall be either:

(a) as indicated on any invoice provided by VMS to the Client; or

(b) VMS’ quoted price (subject to clause 6.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

6.2 VMS reserves the right to change the Price if a variation to VMS’ quotation is requested. Any variation from the specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to VMS in the cost of taxes, levies, materials and labour, or due to the unavailability) and any variations will be charged for on the basis of VMS’ quotation, and will be detailed in writing, and shown as variations on VMS’ invoice. The Client shall be required to respond to any variation submitted by VMS within ten (10) working days. Failure to do so will entitle VMS 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.

6.3 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by VMS, which may be:

(a) upon delivery of the Goods;

(b) thirty (30) days following the end of the month in which a statement is delivered to the Client’s 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 VMS.

6.4 At VMS’ sole discretion, a twenty percent deposit may be required.

6.5 Payment may be made by cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and VMS.

6.6 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 VMS nor to withhold payment of any invoice because part of that invoice is in dispute.

6.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to VMS an amount equal to any GST VMS must pay for any supply by VMS under this or any other agreement for the sale of the Goods. 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.

7. Delivery of Goods

7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that either;

(a) the Client (or the Client’s nominated carrier) takes possession of the Goods at VMS’ address; or

(b) VMS (or VMS’ nominated carrier) delivers the Goods to the Client’s nominated address, even if the Client is not present at the address.

7.2 At VMS’ sole discretion, the cost of delivery is in addition to the Price.

7.3 In the event that VMS is unable to supply the Goods as agreed solely due to any action or inaction of the Client, then VMS shall be entitled to charge the Client a reasonable fee for redelivery and/or storage.

7.4 The Client shall ensure that VMS has clear and free access at all times to effect delivery of the Goods. VMS shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of VMS.

8. Risk

8.1 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.

8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, VMS is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by VMS is sufficient evidence of VMS’ rights to receive the insurance proceeds without the need for any person dealing with VMS to make further enquiries.

8.3 If the Client requests VMS to leave Goods outside VMS’ premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.

8.4 The Client acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in VMS‘s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by VMS.

8.5 VMS shall not be liable for any defect in the Goods if the Client does not follow the manufacturer’s and/or VMS’ recommendations.

9. Title

9.1 VMS and the Client agree that ownership of the Goods shall not pass until:

(a) the Client has paid VMS all amounts owing to VMS; and

(b) the Client has met all of its other obligations to VMS.

9.2 Receipt by VMS 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.

9.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 9.1:

(a) the Client is only a bailee of the Goods and must return the Goods to VMS on request;

(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for VMS and must pay to VMS 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 VMS and must pay or deliver the proceeds to VMS 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 VMS and must sell, dispose of or return the resulting product to VMS as it so directs;

(e) the Client irrevocably authorises VMS to enter any premises where VMS believes the Goods are kept and recover possession of the Goods;

(f) VMS may recover possession of any Goods in transit whether or not delivery has occurred;

(g) 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 VMS;

(h) VMS may commence proceedings to recover the Price of the Goods sold notwithstanding th at ownership of the Goods has not passed to the Client.

10. Compliance

10.1 The Client and EMS Group Pty Ltd shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Goods/Services, including any work health and safety (WHS) laws and any other relevant safety standards or legislation.

10.2 The Client shall obtain (at the expense of the Client) all licenses and approvals that may be required for the Goods/Services.

11. Personal Property Securities Act 2009 (“PPSA”)

11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

11.2 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 all Goods and/or collateral (account) – being a monetary obligation of the Client to VMS for Services – that have previously been supplied and that will be supplied in the future by VMS to the Client.

11.3 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 VMS 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 11.3(a)(i) or 11.3(a)(ii);

(b) indemnify, and upon demand reimburse, VMS for all expenses incurred in registering a financing statement or financing changestatement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of VMS;

(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 VMS;

(e) immediately advise VMS of any material change in its business practices of selling the Goods which would result in a change inthe nature of proceeds derived from such sales.

11.4 VMS and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these termsand conditions.

11.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

11.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

11.7 Unless otherwise agreed to in writing by VMS, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

11.8 The Client must unconditionally ratify any actions taken by VMS under clauses 11.3 to 11.5.

11.9 Subject to any express provisions to the contrary (including those contained in this clause 11) nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

12. Security and Charge

12.1 In consideration of VMS agreeing to supply the Goods, 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).

12.2 The Client indemnifies VMS from and against all VMS’ costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising VMS’ rights under this clause.

12.3 The Client irrevocably appoints VMS and each director of VMS as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.

13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)

13.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify VMS in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow VMS to inspect the Goods.

13.2 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).

13.3 VMS acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

13.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, VMS makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Good s. VMS’ liability in respect of these warranties is limited to the fullest extent permitted by law.

13.5 If the Client is a consumer within the meaning of the CCA, VMS’ liability is limited to the extent permitted by section 64A of Schedule 2.

13.6 If VMS is required to replace the Goods under this clause or the CCA, but is unable to do so, VMS may refund any money the Client has paid for the Goods.

13.7 If the Client is not a consumer within the meaning of the CCA, VMS’ liability for any defect or damage in the Goods is:

(a) limited to the value of any express warranty or warranty card provided to the Client by VMS at VMS’ sole discretion.

(b) limited to any warranty to which VMS is entitled, if VMS did not manufacture the Goods;

13.8 Subject to this clause 13, returns will only be accepted provided that:

(a) the Client has complied with the provisions of clause 13.1; and

(b) VMS has agreed that the Goods are defective; and

(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.

13.9 Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, VMS 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 any Goods;

(b) the Client using the Goods for any purpose other than that for which they were designed;

(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;

(d) the Client failing to follow any instructions or guidelines provided by VMS;

(e) fair wear and tear, any accident, or act of God.

13.10 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 the Seller 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 the Seller 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 13.10.

13.11 Notwithstanding anything contained in this clause if VMS is required by a law to accept a return then VMS will only accept a return on the conditions imposed by that law.

14. Default and Consequences of Default

14.1 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 VMS’ sole discretion such interest shall compound monthly at such a rate) after as wellas before any judgment.

14.2 If the Client owes VMS any money the Client shall indemnify VMS from and against all costs and disbursements incurred by VMS in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, VMS’ contract default fee, and bank dishonour fees).

14.3 Further to any other rights or remedies VMS may have under this contract, if a Client has made payment to VMS, 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 VMS under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.

14.4 Without prejudice to VMS’ other remedies at law VMS shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to VMS shall, whether or not due for payment, become immediately payable if:

(a) any money payable to VMS becomes overdue, or in VMS’ 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 VMS;

(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.

15. Cancellation

15.1 Without prejudice to any other remedies VMS may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions VMS may suspend or terminate the supply of Goods to the Client. VMS will notbe liable to the Client for any loss or damage the Client suffers because VMS has exercised its rights under this clause.

15.2 VMS may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods aredelivered by giving written notice to the Client. On giving such notice VMS shall repay to the Client any money paid by the Client for the Goods. VMS shall not be liable for any loss or damage whatsoever arising from such cancellation.

15.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by VMS as a direct result of the cancellation (including, but not limited to, any loss of profits).

16. Dispute Resolution

16.1 If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:

(a) referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and

(b) conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.

17. Privacy Act 1988

17.1 The Client agrees for VMS to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by VMS.

17.2 The Client agrees that VMS 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.

17.3 The Client consents to VMS being given a consumer credit report to collect overdue payment on commercial credit.

17.4 The Client agrees that personal credit information provided may be used and retained by VMS for the following purposes (and forother 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.

17.5 VMS 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.

17.6 The information given to the CRB may include:

(a) personal information as outlined in 17.1 above;

(b) name of the credit provider and that VMS is a current credit provider to the Client;

(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 alternative ly that the Client no longer has any overdue accounts and VMS has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of VMS, 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).

17.7 The Client shall have the right to request (by e-mail) from VMS:

(a) a copy of the information about the Client retained by VMS and the right to request that VMS correct any incorrect information; and

(b) that VMS does not disclose any personal information about the Client for the purpose of direct marketing.

17.8 VMS 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 agreement or is required to be maintained and/or stored in accordance with the law.

17.9 The Client can make a privacy complaint by contacting VMS via e-mail. VMS 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.

18. General

18.1 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.

18.2 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 VMS has its principal place of business and are subject to the jurisdiction of the Dubbo Courts in that state.

18.3 Subject to clause 13 VMS 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 VMS of these terms and conditions (alternatively VMS’ liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).

18.4 VMS may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.

18.5 The Client agrees that VMS may amend these terms and conditions by notifying the Client in writing. 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 VMS to provide Goods to the Client.

18.6 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.

18.7 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.

Terms & conditions