Terms and Conditions

1. This Agreement applies to every contract for the sale of goods or services by Whirlwind to the Customer, unless Vertifix agrees otherwise in writing.
2. Any written quotation provided by Vertifix to the Customer concerning the proposed supply of goods or services is:

(a) valid for 14 days from the date of the quotation; and
(b) not an offer to sell, and no order placed by the Customer in response to any quotation will bind Vertifix unless and until such order is accepted by Vertifix, acting in its absolute discretion.

1. This Agreement is accepted by the Customer once the Customer places an order with Vertifix for goods or services. No purported cancellation or suspension of an order (or any part of an order) by the Customer is binding on Vertifix after that order has been accepted by Vertifix.
2. This Agreement is accepted by Vertifix when Vertifix confirms its acceptance of an order in writing or by electronic means or provides the Customer with the goods or services. All quotations are subject to withdrawal or variation by Vertifix at any time prior to Vertifix’s acceptance of an order by notice in writing to the Customer.

1. Prices quoted, whether in a price list, by written quotation or verbally, for the supply of goods and services, include GST and any other taxes or duties imposed on or in relation ton the goods and services. The Customer must pay such GST, taxes or duties.
2. Quotations are based on the cost of production prevailing at the date of the quotation, and are subject to variation on or after acceptance of any order placed in reliance upon such quotation, to meet any rise or fall in such costs incurred, including a request from the Customer to vary the order. Vertifix will notify the Customer of any such variation.

1. Vertifix’s standard payment option is pre payment in full, prior to the commencement of any print work or services. Other payment terms may be offered at the discretion of Vertifix and are subject to a satisfactory credit check.
2. Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
3. Vertifix may amend any payment terms upon giving written notice to the Customer.
4. Vertifix accepts payment by Visa, Mastercard or AMEX without penalty fees. Vertifix however reserves the right to charge penalty fees if the agreed payment terms are not met.

1. Until full payment in cleared funds is received by Vertifix for all goods supplied by Whirlwind to the Customer:

1. title and property in all goods remain vested in Vertifix and do not pass to the Customer;
2. the Customer must hold the goods as fiduciary bailee and agent for Vertifix;
3. the Customer must keep the goods separate from the Vertifix’s other goods and maintain Vertifix ‘s labelling and packaging; and
4. Vertifix may without notice, enter any premises where Vertifix suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not being Vertifix’s property, and for this purpose the Customer irrevocably licences Vertifix to enter such premises and also indemnifies Vertifix from and against all costs, claims, demands or actions by any party arising from such action.

2. Where payment is not made on or before the due date or if an Insolvency Event occurs:

1. Vertifix may terminate any contract relating to goods at any time and without prejudice to any other rights it may have against the Customer; and
2. the Customer shall, should Vertifix so require, deliver up to Vertifix any goods which have not been paid for in full failing which Vertifix is hereby irrevocably authorised to enter at any time by its servants or agents the place where the goods are situated and to repossess the goods, and to remove the goods from any vessel, vehicle, or other place whether or not they have at any such time become fixed to any vessel, vehicle, thing or place and for this purpose
   Whirlwind is hereby appointed the Customer’s agent.
   The Customer agrees to indemnify Vertifix and keep Vertifix indemnified against all costs incurred by Vertifix in removing the goods and against all claims against Vertifix in removing the goods and arising from such removal.

3. If an Insolvency Event occurs and the goods which have not been paid for in part or in full are mixed with the goods that have been paid for, then the Customer bears the onus of proving that the Vertifix goods in its possession (whether mixed with other goods or not) have been paid in full by the Customer. If the Customer is unable to prove, to the satisfaction of
Vertifix that the goods identified as Vertifix goods have been paid for in full, then those goods shall be deemed to relate to unpaid invoices outstanding from time to time and are deemed to be the property of Vertifix. Vertifix reserves the right to repossess those goods without having to prove that the goods relate to specific unpaid invoices outstanding at the time of repossession.

4. Notwithstanding the provisions of the preceding sub-clauses the Customer may sell the goods to a third party (in its own name and not as agent for the seller) by way of bona fide sale at full market value and in the ordinary course of business and deliver them to that party provided however that if an Insolvency Event occurs and until the goods have been paid in full to Vertifix:

1. where the Customer is paid by that third party the Customer holds the whole value of the proceeds of sale on trust for Vertifix and shall not mingle any of the proceeds of sale with the Vertifix’s own monies or in any bank account with other monies, but shall ensure that all such receipts of sale are separate and identifiable. Moreover, the Customer shall on receipt of the proceeds of sale remit to Vertifix all monies owing under this Agreement in accordance with Vertifix’s terms of payment;
2. where the Customer is not paid by that party the Customer agrees, at the option of Vertifix, to assign its claim against that party to Vertifix. For the purpose of giving effect to this sub-clause the Customer irrevocably appoints Vertifix as its attorney.

5. Security Interests

1.  In consideration for Vertifix supplying goods to the Customer under this Agreement, the Customer:
   1. agrees to treat the security interest created under this Agreement as a continuing and subsisting security interest in the relevant goods with priority over any registered or unregistered general (or other) security and any unsecured creditor (even if the goods become fixtures before paid for in full);
   2. grants to Vertifix a purchase money security interest (‘PMSI’) as defined in the Personal Property Securities Act 2009 (Cth) (‘PPSA’) in goods supplied
   3. agrees that the PMSI granted herein will continue to apply to any goods coming into existence or proceeds of sale of goods or goods coming into existence;
   4. agrees that the PMSI has attached to all goods now or in the future supplied to the Customer by Vertifix; and
   5. agrees, until title in the goods pass to it, to keep all the goods free and ensure all the goods are kept free of any charge, lien or security interest (as defined in the PPSA) except as created under this Agreement, and not otherwise deal with the goods in a way that will or may prejudice any rights of Vertifix under this Agreement or the PPSA.
2. Vertifix reserves the right to register a financing statement under the PPSA in respect of the goods. The Customer waives its right to receive a copy of any financing statement, financing change statement or verification statement that is or may be registered, issued or received at any time.
3. The Customer irrevocably grants Vertifix the right to enter any premises or property (without notice) and without being in any way liable to Vertifix or any other person if the Customer has cause to exercise any of its rights under the PPSA (and the Customer will indemnify Vertifix against any such liability).
4. It is agreed that (to the extent permitted under the PPSA), the Customer hereby waives its rights under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142 and 143 of the PPSA.

1. Any period or date for delivery of goods or provision of services is intended as an estimate only and is not a contractual commitment. Vertifix will use its reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date
2. If, through circumstances beyond Vertifix ‘s control, Vertifix is unable to effect delivery or provision of goods or services, then Vertifix may cancel the Customer’s order (even if it has already been accepted) by notice in writing including electronic means to the Customer.

1. Descriptions, illustrations and material contained in catalogue, price lists, brochures, leaflets, specification sheets or other descriptive materials

1. While every effort is made to ensure their accuracy, the descriptions, illustrations and material contained in any catalogue, price list, brochure, leaflet, specification sheets or other descriptive materials provided
2. Vertifix to the Customer represent the general nature of the items described therein and do not form part of any order or agreement and do not constitute a representation or warranty made by Vertifix.

2. Artwork:

1. Vertifix reserves the right to modify the design, drawings or specifications supplied to Vertifix by the Customer which do not materially affect the quality or usage of the goods by the Customer, without notice.
2. All prices quoted are for the supply of Vertifix specified print ready artwork. Should any artwork corrections be required Vertifix reserve the right to make such alterations and request subsequent approval from the Customer to proceed to print. Any charges be

3. Vertifix cannot ensure an exact match in colour or texture between the Vertifix’s artwork (including electronic graphic files or previously printed materials or any other materials supplied by the Customer) and the final delivered goods. The Customer acknowledges and accepts that there are acceptable levels of colour variation from print run to print run, from stock to stock, from back to front and between different printing processes.

1. The Customer acknowledges that trimming may vary by up to 1 millimetre from the proof, specification or print job to print job and that such variation will not constitute a fault in the print job.
2. Whilst every endeavour will be made to deliver the correct quantity of print items ordered, due to the difficulties of producing exact quantities, Vertifix shall not be liable for delivering incorrect quantities and there will be no adjustment in the price if the quantity variation does not exceed + or – 5% of the quantity specified in the order. The Customer’s remedy, at Vertifix ‘s sole discretion, will be either a refund of monies paid for the shortage on a pro rata basis or a re-print of the shortage quantity to be undertaken by Vertifix within a reasonable period of time.

General:

1. Vertifix will not be liable for any defect in the goods manufactured or supplied by Vertifix which are based in whole or in part upon any designs, drawings or specifications supplied to Vertifix by the Customer
2. Subject to clause 1(a), Vertifix will not be liable for any defects, shortages, damage or noncompliance with the specifications in the Agreement unless the Customer notifies Vertifix in writing with full details within 7 business days of delivery of the goods or provision of the services.
3. If the Customer does not give the notice as required in clause 3(a), the Customer is deemed to have accepted the goods or services
4. Subject to clause 2(d), when any defects, shortages, claim for damage or non- compliance with the specifications in the Agreement is accepted, Vertifix may, at its option, replace the defective or missing goods or re-supply the services
5. Vertifix will not accept goods for return that have been altered in any way or have been used.
6. Unless Vertifix reasonably agrees
   that the defects, shortages, damage or non-compliance referred to in clause 3(a) is due to Vertifix’s fault, the Customer must pay all freight charges associated with the return of goods.
7. Where delivery is requested by the Customer, to be left at an unattended address, Vertifix will not accept liability for any subsequent issues arising from that delivery. This clause does not affect any other rights pertaining to the goods noted within these terms and conditions

1. Any Vertifix Materials (and the Intellectual Property subsisting in the Vertifix Materials) provided to the Customer by Vertifix in connection with the goods and services remains Vertifix ‘s exclusive property and the Customer acknowledges that the Customer has no proprietary right or interest in the Vertifix Materials or Vertifix ‘s Intellectual Property

2. All Vertifix Materials and Vertifix Intellectual Property must be returned to Vertifix on demand and the Customer must not:

1. copy or disclose any Vertifix Materials or Vertifix ‘ Intellectual Property to any third party without Vertifix’s express written consent;
2. create, sell, manufacture or process any goods or services which use or take advantage of any Vertifix Materials or Vertifix Intellectual Property

3. Where the Customer provides its own materials, data or information including literary and artistic works (Client Materials) for use by Vertifix to fulfil any order, the Customer warrants that:

1. the Customer owns (or is licensed to use) the Client Materials and the Intellectual Property in those Client Materials; and
2. the use of the Client Materials by Vertifix will not infringe the Intellectual Property of any third party; and the Customer hereby grants Vertifix a licence to use the Client Materials and the Intellectual Property therein
3. for the purpose of fulfilling the Customer’s orders and providing the goods and services under this Agreement; and
4. in Vertifix promotional materials to indicate that the Customer is one of Vertifix’s clients and to depict the quality and range of Vertifix goods and services

4. The Customer indemnifies and agrees to keep Vertifix indemnified against all liability, losses or expenses incurred by Vertifix in relation to, or in any way directly or indirectly connected with, the use of the Client Materials by Vertifix

5. All ‘works’ (as that term is defined in the Copyright Act 1968) and other subject matter in which copyright can subsist, and all data, information, materials and processes developed or created pursuant to this Agreement and any Intellectual Property therein

1. are hereby vested in Vertifix as and when such rights are brought into existence
2. are agreed to be the absolute and exclusive property of Vertifix; and
3. to the extent necessary, are hereby assigned absolutely to Vertifix.

Vertifix’s liability to the Customer

1. Except as specifically set out in this Agreement any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded
2. Vertifix’s liability for
   1. a breach by Vertifix of any term of this Agreement;
   2. a breach by Vertifix of any condition or warranty implied in this Agreement
   3. the cancellation or suspension of supply of goods or services by Vertifix; or
   4. any loss or damage suffered or incurred by the Customer or any third party howsoever arising under or in connection with this Agreement is limited to the replacement or the re-supply of the goods or the re-supply of the services
3. Vertifix will not be liable for any indirect, special or consequential loss or damage suffered or incurred by the Customer or any third party, howsoever caused, including loss of turnover, profits, business or goodwill
4. Nothing in this Agreement is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.

1. Vertifix is bound by the Privacy Act 1988 and takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed and transferred in accordance with the Privacy Act 1988. Such information may be accessed by request to Vertifix in accordance with the Privacy Act 1988
2. The Customer must comply with the Privacy Act 1988 in connection with any personal information supplied to the Customer by Vertifix in connection with this Agreement

1. Vertifix may, at its option, immediately terminate this Agreement upon notice in writing
   1. In accordance with section clause 1 (d);
   2. where the Customer has breached any term or warranty in this Agreement and fails to rectify such breach within 7 days of being provided with a notice from Vertifix requesting such rectification
   3. where the Customer is an individual, and the Customer becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally; or
   4. where the Customer is a corporation, an Insolvency Event occurs
2. Upon termination of this Agreement, any outstanding fees or charges under this Agreement will become immediately due and payable by the Customer
   1. Unless Vertifix reasonably agrees
      that the defects, shortages, damage or non-compliance referred to in clause 3(a) is due to Vertifix’s fault, the Customer must pay all freight charges associated with the return of goods
   2. Where delivery is requested by the Customer, to be left at an unattended address, Vertifix will not accept liability for any subsequent issues arising from that delivery. This clause does not affect any other rights pertaining to the goods noted within these terms and conditions.
   3. If a hard copy colour proof is not requested then Vertifix will produce to ISO certified colour standards. Vertifix will not be liable if colour representation fits within these measured standards.

1. Any Vertifix Materials (and the Intellectual Property subsisting in the Vertifix Materials) provided to the Customer by Vertifix in connection with the goods and services remains Vertifix’s exclusive property and the Customer acknowledges that the Customer has no proprietary right or interest in the Vertifix Materials or Vertifix Intellectual Property
2. All Vertifix Materials and Vertifix Intellectual Property must be returned to Vertifix on demand and the Customer must not
   1. copy or disclose any Vertifix Materials or Vertifix Intellectual Property to any third party without Vertifix’s express written consent
   2. create, sell, manufacture or process any goods or services which use or take advantage of any Vertifix Materials or Vertifix Intellectual Property.
3. Where the Customer provides its own materials, data or information including literary and artistic works (Client Materials) for use by Vertifix to fulfil any order, the Customer warrants that
   1. the Customer owns (or is licensed to use) the Client Materials and the Intellectual Property in those Client Materials; and
   2. the use of the Client Materials by Vertifix will not infringe the Intellectual Property of any third party; and the Customer hereby grants Vertifix a licence to use the Client Materials and the Intellectual Property therein:
   3. for the purpose of fulfilling the Customer’s orders and providing the goods and services under this Agreement; and
   4. in Vertifix promotional materials to indicate that the Customer is one of Vertifix’s clients and to depict the quality and range of Vertifix’s goods and services
4. The Customer indemnifies and agrees to keep Vertifix indemnified against all liability, losses or expenses incurred by Vertifix in relation to, or in any way directly or indirectly connected with, the use of the Client Materials by Vertifix
5. All ‘works’ (as that term is defined in the Copyright Act 1968) and other subject matter in which copyright can subsist, and all data, information, materials and processes developed or created pursuant to this Agreement and any Intellectual Property therein
   1. are hereby vested in Vertifix as and when such rights are brought into existence
   2. are agreed to be the absolute and exclusive property of Vertifix; and
   3.  to the extent necessary, are hereby assigned absolutely to Vertifix.

Vertifix’s liability to the Customer

1. Except as specifically set out in this Agreement any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded
2. Vertifix’s liability for:
   1. a breach by Vertifix of any term of this Agreement
   2. a breach by Vertifix of any condition or warranty implied in this Agreement;
   3. the cancellation or suspension of supply of goods or services by Vertifix; or
   4. any loss or damage suffered or incurred by the Customer or any third party howsoever arising under or in connection with this Agreement is limited to the replacement or the re-supply of the goods or the re-supply of the services.
3. Vertifix will not be liable for any indirect, special or consequential loss or damage suffered or incurred by the Customer or any third party, howsoever caused, including loss of turnover, profits, business or goodwill.
4. Nothing in this Agreement is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.

1. Vertifix is bound by the Privacy Act 1988 and takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed and transferred in accordance with the Privacy Act 1988. Such information may be accessed by request to Vertifix in accordance with the Privacy Act 1988.
2. The Customer must comply with the Privacy Act 1988 in connection with any personal information supplied to the Customer by Vertifix in connection with this Agreement.

1. Vertifix may, at its option, immediately terminate this Agreement upon notice in writing
   1. In accordance with section clause 1 (d);
   2. where the Customer has breached any term or warranty in this Agreement and fails to rectify such breach within 7 days of being provided with a notice from Whirlwind requesting such rectification
   3. where the Customer is an individual, and the Customer becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally; or
   4. where the Customer is a corporation, an Insolvency Event occurs.
2. Upon termination of this Agreement, any outstanding fees or charges under this Agreement will become immediately due and payable by the Customer.