Terms & Conditions
1.1 These Terms and Conditions apply to each and every Agreement between Virtu and the Customer.
1.2 The Customer will be deemed to have accepted these Terms and Conditions upon submitting an Order with Virtu.
1.3 Any terms and conditions of the Customer’s Order or of any other document deviating from or inconsistent with these Terms and Conditions are expressly rejected by Virtu.
2. Formation of Agreement
2.1 The Customer may request the supply of Products and/or Servicers by submitting an Order with Virtu.
2.2 Virtu may accept or reject any Order without providing reasons for doing so.
2.3 An Agreement will only be formed upon written acceptance of a Customer’s Order.
3. Purpose of credit
3.1 The Customer acknowledges and agrees that any credit to be provided to the Customer by Virtu is to be applied wholly or predominantly for business purposes.
4.1 If the Customer desires the supply of Products and/or Services that are not strictly in accordance with Virtu’s quotation (if applicable) and/or the Order, it must notify Virtu of its requirements in writing.
4.2 Virtu does not have to agree to vary the Products and/or the Services, but if it does so, the supply of those Products and/or Services shall constitute a variation to the Agreement (unless otherwise agreed between the parties).
4.3 All variations shall be, at Virtu’s discretion, invoiced at the rate(s) specified in the quotation (if applicable), or, in accordance with Virtu’s prevailing rates at the time of supplying the Products and/or the Services.
5. Cancellation of Orders
5.1 An Order may only be cancelled by the Customer with the prior written consent of Virtu, and then only on terms that the Customer reimburse and indemnify Virtu for and against all costs and losses it incurs (including, without limitation, loss of profits).
5.2 Notwithstanding any other rights Virtu may have under the Agreement,Virtu may, in its sole discretion, cancel any Order or delivery of any Order, by providing written notice to the Customer if the Customer:
(a) defaults in payment of any invoice by the due date;
(b) enters into liquidation, or, if the Customer is an individual, becomes bankrupt; or
(c) breaches an essential term of this Agreement.
5.3 To the fullest extent permitted by Law, Virtu accepts no liability for any loss whatsoever incurred by the Customer (or any third party) as a result of Virtu exercising its rights under clause 5.2.
6.1 The Customer shall be liable for all costs associated with delivery, including freight, insurance, handling and other charges, unless otherwise agreed in writing.
6.2 The Customer acknowledges and accepts that any period or date for delivery stated by Virtu is intended as an estimate only and is not a contractual commitment. Virtu will not in any circumstances be liable for any loss or damage suffered by the Customer (or any third party) for failure to meet any estimated date for delivery.
6.3 Delivery is deemed to occur at the earlier of:
(a) the collection of the Products from Virtu by the Customer or any third party on behalf of the Customer;
(b) the time of loading of the Products at Virtu’s premises for the purpose of delivery to the Customer;
(c) the Customer’s nominated carrier taking possession of the Products in which event the carrier shall be deemed to be the Customer’s agent.
6.4 The Customer accepts that Virtu may deliver the Products by instalments and require payment for each separate instalment in accordance with the Agreement.
6.5 The Customer acknowledges and accepts that it is not relieved from any obligation arising under the Agreement by reason of any delay in delivery.
7.1 The Customer must inspect the Products immediately upon delivery and must within forty-eight (48) hours following delivery give written notice to Virtu, with particulars, of any claimed defect, shortage in quantity, damage or other failure of the Products to conform with the terms of this Agreement.
7.2 The Customer must, upon request from Virtu, allow Virtu to enter upon any premises occupied by the Customer to inspect the Products that are subject of the claim.
7.3 If the Customer fails to give notice, or refuses to allow Virtu to inspect the Products, then to the fullest extent permitted by Law, the Products must be treated as having been accepted by the Customer and the Customer must pay for the Products in accordance with the Agreement.
7.4 If Virtu determines that any of the Products are not in conformity with the terms of the Agreement due to reasons for which Virtu is responsible, and the Customer has given notice to Virtu in the manner and within the time specified in clause 7.1, clause 14.2 shall apply as the Customer’s sole and exclusive remedy for such non-conformity, provided that:
(a) Virtu will not be liable for Products which have not been stored or used in a proper manner;
(b) the Products are returned in the condition in which they were delivered;
(c) the Products have not been sold on a non-returnable basis; and
(d) if the Products carry any expiry date, the Products have not expired.
7.5 The Customer cannot return Products to Virtu without the written agreement of Virtu.
7.6 The Customer acknowledges and agrees that any return, other than a return due to a default by Virtu under this Agreement, or as otherwise permitted by Law, will incur a handling and administration charge of up to twenty five (25) percent of the Price of the returned Products.
7.7 Unless otherwise agreed in writing between the parties, the Customer must pay all costs associated with the return of any Products (either to Virtu or from Virtu to the Customer or any third party) including freight, insurance, handling and other charges.
7.8 Products to be returned to Virtu must be packed and wrapped appropriately and must include all original packaging and documentation.
7.9 Virtu accepts no liability for any damage that occurs to any Products in return transit.
8.1 Risk of damage to or loss of the Products passes to the Customer on delivery.
8.2 The Customer must insure the Products on or before delivery against all losses which may be sustained as a result of the loss, damage or destruction of the Products or any part thereof by accident, theft, fire, flood, negligence and such other insurable causes as may be available and shall include Virtu as co-insured.
8.3 If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Customer, Virtu is entitled to receive all insurance proceeds payable for the Products to the extent of the indebtedness of the Customer to Virtu.
8.4 The production of these Terms and Conditions by Virtu is sufficient evidence of Virtu’s rights to receive the insurance proceeds without the need for any person dealing with the Virtu to make further enquires.
9. Retention of title
9.1 Until such time as the Customer has made payment in full for the Products, and until such time as the Customer has made payment in full of all other money owing by the Customer to Virtu (whether under a specific contract or on any other account whatsoever):
(a) title in the Products does not pass to the Customer;
(b) the Customer agrees that property and title in the Products will not pass to the Customer and Virtu retains the legal and equitable title in those Products supplied and not yet sold;
(c) the Customer will hold the Products in a fiduciary capacity for Virtu and agrees to store the Products in such a manner that they can be identified as the property of Virtu, and will not mix the Products with other similar products; and
(d) the Customer will be entitled to sell the Products in the ordinary course of its business but will sell as agent and bailee for Virtu and the proceeds of sale of the Products will be held by the Customer on trust for Virtu absolutely.
9.2 The Customer’s liability to Virtu under this Agreement will not be discharged by the operation of clause 9.1(d) (but its level of indebtedness will be reduced by the extent of the funds remitted to Virtu).
9.3 The Customer agrees that whilst property and title in the Products remains with Virtu, Virtu has the right, with prior notice to the Customer, to enter upon any premises occupied by the Customer (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) to inspect the Products of Virtu, and, when payment is overdue, to immediately enter the premises (as the Customer’s invitee) to repossess the Products which may be in the Customer’s possession, custody or control.
9.4 The Customer will be responsible for Virtu’s reasonable costs and expenses in exercising its rights under clause 9.3 where the Customer is in default of the terms of this Agreement. Where Virtu exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against Virtu, its employees, servants or agents.
9.5 The Customer agrees that where the Products have been retaken into the possession of Virtu, Virtu has the absolute right to sell or deal with the Products, and, if necessary, sell the Products with the trademark or name of the Customer on those Products, and the Customer hereby grants an irrevocable licence to Virtu to do all things necessary to sell the Products bearing the name or trademark of the Customer.
10. Price & Payment
10.1 At Virtu’s sole discretion, the Price shall be either:
(a) as indicated on Virtu’s price list (as amended from time to time) in force at the time of acceptance of the Customer’s Order;
(b) as indicated on invoices provided by Virtu to the Customer in respect of the Products and/or the Services; or
(c) Virtu’s quoted Price (subject to clauses 4.3 and 10.6) which shall be binding on Virtu provided the Customer accepts the quotation in writing within thirty (30) days of the date of quotation, unless otherwise specified in writing.
10.2 Unless otherwise expressly stated by Virtu, the Price excludes:
(a) all costs associated with delivery; and
(b) all Taxes levied or imposed on or in respect to any of the Products and/or the Services supplied by Virtu to the Customer (now and in the future).
10.3 The Customer must pay for the Products and/or the Services:
(a) where Virtu offers credit to the Customer, within fourteen (14) days of the date of an invoice from Virtu;
(b) otherwise, prior to the supply of the Products and/or the Services.
10.4 The Customer must check all invoices and advise Virtu of any errors or omissions within seven (7) days of receipt. Failing advice from the Customer that the invoice contains any errors or omissions, the invoice may be deemed accepted by Virtu.
10.5 Payments may be made by credit card (in which case Virtu shall be at liberty to charge a surcharge on any credit payments equal to its average costs in processing those payments), bank cheque, company cheque or by electronic funds transfer into Virtu’s bank account. Where payment is by cheque, payment is not deemed to have been received until the payment appears as cleared funds in Virtu’s bank account.
10.6 Notwithstanding clause 4.3 and 10.1(c), and subject to any rights the Customer might have under any relevant Law, Virtu reserves the right to vary the quoted Price if:
(a) there is any movement in the cost of supplying the Products and/or the Services specified in the Order;
(b) the Agreement otherwise permits Virtu to do so.
10.7 Virtu may at any time and from time to time vary the terms of payment and such varied terms of payment shall apply to all transactions taking place after notification of such variation.
10.8 The Customer shall pay interest on any unpaid invoice at the rate of ten (10) percent per annum, which interest will accrue and be recoverable each day or part thereof that the invoice remains outstanding.
10.9 At the Virtu’s sole discretion, a deposit may be required. The deposit amount or percentage of the Price due will be stipulated at the time of the Customer’s Order and shall immediately become due and payable upon the formation of an Agreement.
10.10 Should the Customer elect to purchase the products through lease, the Customer is required to notify Virtu in writing and a copy of the approved finance letter must be sent to Virtu prior to the dispatch of products, Virtu may assist in arranging finance for the Customer in which case this clause shall have no effect.
11.1 The Customer charges in favour of Virtu all of its estate and interest in any real and personal property, whether held in its own right or as capacity as trustee, the Customer owns at present and in the future with payment of all monies which are now or in the future become owing to Virtu whether pursuant to this Agreement or otherwise until all such monies are paid in full by the Customer.
11.2 As security for the payment of the amount of its indebtedness to Virtu from time to time, the Customer irrevocably appoints as its duly constituted attorney Virtu’s company secretary from time to time to execute in the Customer’s name and as the Customer’s act and deed any real property mortgage, bill of sale or consent to any caveat Virtu may choose to lodge against real property that the Customer may own in any Land Titles Office in any state or territory of Australia, even though the Customer may not have defaulted in carrying out its obligations hereunder upon written notice and demand to the Customer (in the event that there is no default by the Customer in carrying out its obligations hereunder).
11.3 Where the Customer has previously entered into an agreement with Virtu by which the Customer has granted a charge, mortgage or other security interest (including a security interest as defined in the PPSA) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this Agreement and will secure all indebtedness and obligations of the Customer under this Agreement. Virtu may, at its election and upon the provision of written notice, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
12. Personal Property Securities Act
12.1 To secure the due and punctual performance of all of the Customer’s obligations to Virtu (present or future, actual or contingent), whether pursuant to this Agreement or otherwise, the Customer grants a security interest to Virtu in all Products (and their proceeds) now and in the future supplied by Virtu to the Customer (or to its account).
12.2 The Customer undertakes to do anything that is required by Virtu:
(a) so that Virtu can acquire and maintain one or more perfected security interests under the PPSA in respect of the Products and their proceeds;
(b) to register a financing statement or financing change statement; and
(c) to ensure that Virtu’s security position, and rights and obligations, are not adversely affected by the PPSA.
12.3 Unless the Customer has obtained Virtu’s prior written consent, the Customer undertakes not to:
(a) register a financing change statement in respect of a security interest contemplated or constituted by this Agreement; and
(b) create or purport to create any security interest in the Products, nor register, or permit to be registered, a financing statement or a financing change statement in relation to the Products in favour of a third party.
12.4 The Customer:
(a) waives its right under section 157 of the PPSA to receive a copy of the verification statement relating to a security interest created under this Agreement;
(b) agrees that to the extent permitted by the PPSA, the following provisions of the PPSA will not apply and are contracted out of: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and
(c) agrees that the following provisions of the PPSA will not apply and the Customer will have no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
12.5 The Customer agrees that it will, if requested by Virtu, sign any documents, provide any information or do anything else Virtu requests, to ensure that any security interest created in Virtu’s favour by this Agreement is, to the fullest extent possible under the PPSA, perfected in accordance with Part 2.2 of the PPSA.
12.6 Notwithstanding section 275 of the PPSA, the parties agree to keep confidential all information of the kind referred to in section 275 of the PPSA, unless compelled by law to disclose such information.
12.7 The Customer irrevocably grants to Virtu the right to enter upon the Customer’s property or premises, with notice, and without being in any way liable to the Customer or to any third party, if Virtu has cause to exercise any of its rights under sections 123 and/or 128 of the PPSA, and the Customer shall reasonably indemnify Virtu from any claims made by any third party as a result of such exercise.
12.8 The Customer will be responsible forVirtu’s reasonable costs and expenses in exercising its rights under clause 12.7 where the Customer is in default of the terms of this Agreement. Where Virtu exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against Virtu, its employees, servants or agents.
12.9 The Customer agrees to accept service of any document required to be served, including any notice under this Agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to Virtu by the Customer or the Customer’s authorised representative.
12.10 The Customer further agrees that where Virtu has rights in addition to those under part 4 of the PPSA, those rights will continue to apply.
12.11 For the avoidance of doubt, Virtu’s security interest in the Products constitutes a ‘purchase money security interest’ pursuant to the PPSA.
13. Cancellation of terms of credit
13.1 Virtu reserves the right to withdraw credit at any time upon provision of 48 hours’ written notice.
13.2 Notwithstanding clause 13.1, if the Customer defaults in the payment of any amount due to Virtu pursuant to this Agreement and does not cure such default within seven (7) days after being given notice of such default, Virtu may terminate this Agreement (to be effective immediately) upon notice to the Customer.
13.3 Upon the withdrawal of credit in accordance with clause 13.1, or upon termination of this Agreement in accordance with clause 13.2, all liabilities incurred by the Customer become immediately due and payable to Virtu.
13.4 For the avoidance of doubt, termination of this Agreement will not affect:
(a) the Customer’s payment obligations under clause 10.3 (including in relation to any tax invoices issued by Virtu after termination) and clause 13.2; and
(b) the rights and/or obligations pursuant to this Agreement which by their nature are intended to survive termination of this Agreement.
14. Exclusions and limitation of liability
14.1 Other than those terms, conditions and warranties imposed and required to be binding by statute (including the CCA) which cannot lawfully be excluded, restricted or modified (each, a Statutory Term), all terms, conditions, warranties, indemnities and statements (whether express, implied, written, oral, collateral, statutory or otherwise) which are not expressly set out in the Agreement are hereby excluded.
14.2 Virtus liability to the Customer for breach of any Statutory Term shall be limited, at Virtu’s option, and to the fullest extent permitted by Law, to any one or more of the following:
(a) the replacement of the Products or the supply of equivalent Products;
(b) the repair of the Products;
(c) the payment of the cost of replacing the Products or acquiring equivalent Products;
(d) the payment of the cost of having the Products repaired;
(e) the supply of the Services again;
(f) the payment of the cost of having the Services supplied again.
14.3 Virtu shall have no liability to the Customer for or in connection with any indirect, economic, special or consequential loss or damage, including, without limitation, loss of actual or anticipated profit or revenue, business interruption or shutdown, loss of production, delay costs, loss of opportunity, income or rent, financing or holding costs, arising out of or in connection with the Agreement.
14.4 Notwithstanding any other provision of this Agreement:
(a) to the extent permissible by Law, Virtu will only be liable to the Customer whether under contract, in tort (including negligence), under statute or otherwise for any loss, damage or injury to the extent and in the proportion to which such loss, damage or injury is caused by Virtu’s fault; and
(b) unless Virtu’s liability is limited under clause 14.2, Virtu’s maximum aggregate liability to the Customer arising out of or in connection with the Agreement, whether under contract, tort (including negligence), statute or otherwise for any loss, damage or injury (excluding loss or damage arising from any fraudulent or unlawful conduct on Virtu’s part), shall be limited to the Price paid by the Customer to Virtu for the supply of the Products and/or the Services under the Agreement.
15.1 The Customer will obtain and maintain all Approvals at its own cost and expense necessary for the sale and delivery of the Products and the performance of the Services (including, without limitation, Approvals necessary for export of the Products to, and the entry of the Products into, Australia).
15.2 The Customer will indemnify Virtu for all loss, costs and expenses incurred by Virtu and will hold Virtu harmless against any failure or alleged failure by the Customer to comply with any or all applicable Laws.
16. Intellectual Property
16.1 The Customer acknowledges that:
(a) the Virtu IP in existence at the date of this Agreement is and will at all times remain the property of Virtu; and
(b) the Virtu IP created or developed following the date of this Agreement vests in Virtu as soon as those Intellectual Property Rights are created or developed and will at all times remain the property of the Virtu.
16.2 The Customer warrants that Virtu’s use of any designs, specifications, instructions or other documents provided by the Customer in the execution of the Customer’s Order will not infringe the Intellectual Property Rights of any third party.
16.3 The Customer shall indemnify Virtu against any loss suffered or incurred by Virtu arising out of or in connection with any breach of the Customer’s warranty in clause 16.2.
17.1 The Customer must pay Virtu an amount equal to (and must indemnify Virtu in respect of) any Taxes that exist at the date of this Agreement or are subsequently levied or imposed on or in respect to any of the Products and/or the Services supplied by Virtu to the Customer (including their delivery to the Customer), unless the Price of the relevant Products and/or Services are expressly stated by Virtu to be inclusive of those Taxes. The Customer shall pay this additional amount to Virtu at the same time and in the same manner as it is required to pay the Price (or upon earlier demand from Virtu to do so).
17.2 If as a result of:
(a) any legislation becoming applicable to the subject matter of this Agreement; or
(b) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;
Virtu becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Customer, then the Customer must pay Virtu these additional amounts on 48 hours’ written demand.
18.1 All payments required to be made by the Customer under any Agreement will be made free of any set-off or counterclaim, and without deduction or withholding, unless agreed to otherwise by Virtu and the Customer in writing or as required by law.
18.2 Any amount due to Virtu from time to time may be deducted from any monies which may be or may become payable to the Customer by Virtu.
19.1 The Customer will pay Virtu’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including collection costs, debt recovery fees and legal costs on an indemnity basis.
19.2 The Agreement will be governed by the laws of the State of New South Wales, and the laws of the Commonwealth of Australia in force in New South Wales.
19.3 The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
19.4 The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
19.5 The failure by either party to insist upon strict performance of any of the provisions of this Agreement will not be deemed a waiver of any breach or default. A waiver of any provision or breach of this Agreement by a party shall only be effective if made by an authorised officer of that party in writing.
19.6 Each party represents that it has the authority to enter into this Agreement.
19.7 If two or more parties are included within the same defined term in this Agreement:
(a) the Agreement has separate operation in relation to each of them; and
(b) a liability or obligation of those persons under the Agreement is a joint liability or obligation of all of them and a several liability or obligation of each of them.
19.8 If any provision of this Agreement is not enforceable in accordance with its terms, all other provisions of this Agreement which are self-sustaining are, and continue to be, enforceable in accordance with their terms. If any part of this Agreement is invalid or unenforceable, that part is deleted and the remainder of the Agreement remains effective.
19.9 Virtu will not be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay or failure to perform is due to force majeure being a circumstance beyond its reasonable control, including strikes, lockouts, fires, floods, storm, riots, war, embargoes, civil commotions, supplier shortages, plant or mechanical breakdown, disease or pandemic, acts of God or any other activity beyond Virtu’s control.
19.10 The Agreement constitutes the entire agreement between the parties relating in any way to its subject matter, unless otherwise agreed by Virtu and the Customer in writing. All prior written or oral statements, representations, negotiations, agreements and understandings about the subject matter of this Agreement are merged in this Agreement and have no further effect.
19.11 Any proposed variation to this Agreement by the Customer must be requested in writing. Virtu may refuse any such request without providing reasons either orally or in writing.
19.12 The parties agree to use each other’s Confidential Information only in relation to the performance of the Agreement, and not to disclose it without the prior written consent of the other except where disclosure is required by law or any parliamentary body or government agency.
19.13 This document should not be distributed to any organisation without the prior written consent of Virtu.
20.1 Agreement means an agreement between Virtu and the Customer for the supply of Products and/or Services as constituted by:
(a) Virtu’s quotation (if any);
(b) the Order; and
(c) these Terms and Conditions.
20.2 Approvals means any licence, permit, consent, approval, determination, certificate or permission from any authority under any Law, or any requirement made under or issued in accordance with any Law.
20.3 CCA means the Competition and Consumer Act 2010 (Cth) (as amended or replaced from time to time).
20.4 ‘Confidential Information means confidential or proprietary information of a party (Disclosing Party) that:
(a) is by its nature confidential;
(b) is designated by the Disclosing Party to be confidential; or
(c) the receiving party knows or ought to know is confidential, which is not in the public domain, including trade secrets, know-how, scientific, technical, product, market or pricing information.
20.5 Customer means the person, firm, enterprise, corporation or other entity specified as the customer in the Order.
20.6 Intellectual Property Rights means all intellectual property rights throughout the world, whether present or future, including rights in relation to copyright, trade secrets, know how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions, including the right to apply for registration of any such rights.
20.7 Laws means Federal, State, Territorial or Local Government Legislation and/or regulations, ministerial determinations, rulings or guidelines of Australia (as the case may be).
20.8 Order means a written order from the Customer requesting the supply of Products and/or Services.
20.9 PPSA means the Personal Property Securities Act 2009 (Cth) (as amended or replaced from time to time).
20.10 PPSR means the Personal Property Securities Register.
20.11 Price means the price payable for the Products and/or the Services as determined in accordance with clauses 4.3 and 10.1.
20.12 Products means all products supplied by Virtu to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and as are described on the invoices, quotation or other form provided by Virtu to the Customer.
20.13 Services means all services supplied by Virtu to the Customer (and where the context so permits shall include any supply of Products as described above).
20.14 Taxes means all present and future Federal and State Government duties, levies, imposts fees, excises, tariffs and taxes of whatever nature (including, without limitation, WET) (but excluding income tax).
20.15 Terms and Conditions means these terms and conditions.
20.16 Virtu means Virtunet Pty Ltd ACN 134 012 061.
20.17 Virtu IP means all Intellectual Property Rights in and in relation to:
(a) Confidential Information of Virtu;
(b) all drawings, designs, documents, reports, formulae, recipes, computer programs, equipment manuals, patents and patentable inventions relating to the Products and/or the Services; and
20.18 Works means all literary, artistic and other works, including all physical works, production materials and subject matter created solely or jointly with others, by Virtu in the course of or in relation to this Agreement in which Intellectual Property Rights may subsist and all drafts, variations, alterations and adaptations of such works or subject matter (whether currently existing or created in the future).