Terms and Conditions

Terms & Conditions

1 Definitions

1. Agreement means this Agreement as amended or supplemented from time to time including any schedules or annexures to it;
2. Amount Payable means the amount determined by clause 4(1);
3. Client Brochures means the Clients marketing material to be distributed in accordance with this Agreement;
4. GST means Goods and Services Tax pursuant to A New Tax System (Goods and Services Tax) Act 1999 and any modification, variation or replacement thereof;
5. Outlets means any location that VANGUARD distributes brochures to;
6. Premises means VANGUARD’s storage warehouse and/or any other premises which may be used by VANGUARD for the purposes of providing the Services from time to time;
7. Services means any services provided by VANGUARD including but not limited to distribution, pick-up, display, delivery, recycling, storage and administration costs.
8. Service Fee means the charges to the Client for the Services;
9. Term means the period specified in ‘Minimum Term’ of the Schedule in the Application and includes any extension or renewal of it.

2 Application of Terms

1. This Agreement applies in every case where VANGUARD provides the Services to the Client
2. Acceptance of the Services by the Client is conclusive evidence before any court that this Agreement (as varied under clause 14.10) applies and is binding on it.
3. If there is any inconsistency between this Agreement and the terms of any purchase order for the provision of Services, this Agreement prevails.
4. Provision of brochures to VANGUARD is evidence of acceptance of the Services to the Client.

3 Service Fee

1. VANGUARD will charge the Service Fee for the Services supplied to the Client on the basis of VANGUARD’s then current Price List.
2. The prices included in the Price List include GST (and GST is to be borne by the Client) unless otherwise stated
3. The prices are subject to change from time to time by written notice from VANGUARD to the Client.
4. If there is any dispute between the Client and VANGUARD as to the Price List, the Price List of the Services shall be deemed to be the price list applicable at that time of service
5. WA Regional Far Country (FC) fees apply to all postcodes above 6700 and some between 6600- 6699.
6. Metro Rates apply to metro deliveries not included in the VANGUARD Brochure Rack Service
7. VANGUARD prices do not include any third-party display fees, (ie: airport, visitor centres, etc)
8. Inclusion in the VANGUARD Brochure Order Service authorises VANGUARD to automatically fulfil all such requests without gaining prior Client approval.
9. Storage fees are based on the maximum number of boxes/skids or pallets per month; pro-rata does not apply.
10. Any discount applied is subject to client having a current signed Application Form lodged with VANGUARD, fulfilling their minimum term and paying invoices by due date. VANGUARD may use their discretion to reverse any credits applied if client fails to fulfil their obligations.

4 Payments by the Client

1. The Client must pay the whole amount of any debit balance shown on an invoice or statement issued by VANGUARD for the Service Fee (Amount Payable) on or before the due date for payment shown on the invoice or statement (Due Date), which is 30 days from the date of the invoice or statement, unless otherwise stated.
2. An Amount Payable by the Client under this Agreement must be paid without deduction, retention or set-off of any kind and for any reason.
3. The amount stated in a certificate signed by VANGUARD’s duly authorised representative or solicitor as being due and payable by the Client to VANGUARD under this Agreement is prima facie evidence that such amount is owing.
4. Any discounts offered or applied by VANGUARD are subject to the invoice being paid in full by the due date. Discounts applied may be reversed on a future invoice to recover monies where the Client did not meet the payment terms for the discount to have been applired.

5 Performance of Services

1. In consideration for the Service Fee VANGUARD will, unless otherwise agreed in writing with the Client, do the following:
   1. distribute the Client’s Brochures based on the services chosen.
   2. store the Client’s Brochures at the Premises for the Term; and
   3. dispose of Client’s Brochures at the expiry of the Term or earlier as agreed between the parties from time to time, or at the discretion of VANGUARD.
2. Be responsible for delivery and restocking of the Client’s Brochures in the VANGUARD Brochure Rack Service and fulfil VANGUARD Brochure Order Requests
3. Undertake an initial distribution based on past usage, orders received and Client direction.
4. The ‘approximate number of outlets’ indicated in the Price List for the VANGUARD Brochure Rack Service is a guideline only and not a guarantee of minimum number of outlets the Clients brochures will be distributed to.
5. VANGUARD has sole discretion as to which Outlets the Client’s Brochures will be displayed at or distributed to and how many of the Client’s Brochures are to be displayed at or distributed to each Outlet having regard to the Client’s product or services and target audience, and the Outlet’s requirements.
6. Any specification of positioning of the Client’s Brochures by the Client shall be treated as a request only, and VANGUARD shall not be obligated to comply with such a request.
7. VANGUARD will not distribute any of the Client’s Brochures that are damaged or not of acceptable quality, or do not meet VANGUARD’s product or packaging standards.
8. VANGUARD will notify the Client if supplies of their brochures are becoming low and additional brochures are required.
9. VANGUARD may reduce or cease distribution or remove the Clients brochures from outlets without notifying the Client if payments are overdue or insufficient brochure stock.

6 Client Obligations

1. The Client is responsible for the production and delivery of sufficient quantities of the Client’s Brochures to the Premises during the Term. The cost of the production and transport of the Client’s Brochures will be paid for by the Client.
2. The Client must, at its cost, take out all necessary insurances to cover against all eventualities. VANGUARD and its staff, agents and/or nominated Transport/ Courier Companies and/or Sub-Contractors do not accept any responsibility for brochure loss or damage whilst in storage, or in transit. VANGUARD does not accept responsibility for any consequential or other indirect loss caused by delay, damage, loss, non-delivery or missed deadlines howsoever caused.
3. The Client must follow VANGUARD’s ‘Packing & Delivery Instructions’ as advised by VANGUARD.
4. Brochures delivered must be of acceptable quality and be in ready packed form. The Client must ensure that:
   1. any one box of the Client’s Brochures is to weigh no more than 12 kilograms. The Client acknowledges that any box which weighs more than 12 kilograms may incur a Handling Fee as specified in the Price List or be rejected; and
   2. the Client’s Brochure boxes are clearly labelled on one end with brochure name and quantity enclosed
5. The Client warrants that the Client’s Brochures will not infringe the copyright or other intellectual property rights of a third party.
6. The Client warrants that the content of the Client’s Brochures will not be abusive, indecent or defamatory or otherwise unsuitable for distribution in VANGUARD’s sole discretion.
7. The Client is not under any obligation to manufacture or continue manufacturing the Client’s Brochures. However, where possible, it must give VANGUARD not less than three (3) months written notice that it is to cease manufacturing the Client’s Brochures.
8. The Client acknowledges that VANGUARD may store, sell, distribute or market a product of a third party, or act as representative of a third party in respect of a product, which is similar to, or may compete with the Client’s business and VANGUARD is not restricted in any way by the operation of this agreement.
9. Client is to provide sufficient brochure stock at all times with a minimum initial quantity required to last the minimum term. One free warehouse receipt fee is included, additional deliveries may incur a warehouse receipt fee.

7 Term

1. This Agreement shall be valid upon signing by the Client. The initial term of this Agreement commences on the date determined by VANGUARD and specified on the Client Application and continues for the Term.
2. Failure by the Client to return the Application Form or inform VANGUARD in writing of Termination of Services within 14 days of it being issued to the Client will be deemed as acceptance of continuation of the current level of services and this Agreement will be enforceable.
3. The Client must notify VANGUARD in writing within 1 month of the end of the Term as to its intentions to extend or terminate the Term.
4. If the Client fails to comply with clause 7(c) then the Client will be deemed to have extended the Term on the same terms of this Agreement.

8 Termination of Services

This Agreement may be terminated by:

1. VANGUARD after 7 days’ notice in writing to the Client if payment of the Amount Payable or portion thereof remains unpaid for a period of 30 days beyond the due date;
2. by VANGUARD in any event and without reason provide written notice to that effect whereupon this Agreement will cease and determine and be of no further force and effect save and except for any rights or obligations which may have arisen prior to that date
3. by the Client after the Minimum Term has been reached by giving VANGUARD 1 calendar month's written notice whereupon this Agreement will cease to and be of enforceable except for any rights or obligations which may have arisen prior to that date.

In the event of termination of the Agreement, the Client must:

1. immediately pay to VANGUARD any Amount Payable which remains outstanding at the time of termination; then
2. remove the Client’s brochures from the Premises at the Client’s cost. In the event the Client’s Brochures are not removed within 7 days of termination, the Client acknowledges VANGUARD may dispose of the Client’s Brochures as it sees fit and at the Client’s cost.

9 Indemnity

The Client indemnifies VANGUARD for any costs liabilities expenses or obligations whatsoever, whether by way of statute or at common law, incurred by or imposed on VANGUARD due to any act or omission or breach of any of the terms covenants or agreements express or implied of this Agreement on the part of the Client or any servant agent or employee of the Client.

10 Lien

1. Title to all of the Client’s Brochures supplied by the Client passes to VANGUARD upon the Service Fee being paid for in full.
2. VANGUARD has a general lien over the Clients Brochures for all Amounts Payable or which become due on any account for the distributions and/or storage of the Client’s Brochures. The lien shall secure all amounts owing to VANGUARD including expenses incurred by VANGUARD for exercising its right of lien.

11 Liability

1. The Client acknowledges that VANGUARD provides no warranty that the Services will generate business or receive a positive response for the Client.
2. To the extent permitted by law, VANGUARD’s total liability for any claim under or in relation to this Agreement and/or the supply of Services under them is limited to the price paid by the Client for the Services the subject of the claim.

12 Interest and Enforcement Costs

1. If any Amount Payable is not paid by the due date in accordance with this Agreement, VANGUARD may charge and recover interest on the outstanding amount at a rate equivalent to 3% per annum above the annual business overdraft interest rate of its principal banker, as determined and calculated by VANGUARD, in its discretion.
2. If the Client breaches its obligations under this Agreement, the Client must immediately pay to VANGUARD on demand, all costs and expenses incurred by VANGUARD in the enforcement of this Agreement including, without limitation, costs and expenses including legal costs (on a full indemnity basis) freight costs, storage costs and telephone charges. The Client authorises VANGUARD to debit any trading account held by the Client with such costs and expenses.

13 GST

If VANGUARD has any liability to pay Goods and Services Tax (GST) on the supply of the Services to the Client, The Client must pay VANGUARD an amount, equal to VANGUARD’s GST liability, at the same time as the consideration is paid for the Services, (unless the consideration for that supply is expressed specifically to be GST inclusive)

14 General

14.1 Interpretation

In this Agreement, unless the context otherwise requires, a reference to a party to this Agreement includes the party’s successors, permitted substitutes and permitted assigns and, where applicable, the party’s legal personal representatives.

14.2 VANGUARD not agent of the Client

In supplying the Services, VANGUARD is not acting as the agent for the Client.

14.3 Time of essence

Time is to be of the essence insofar as it relates to the Client’s obligations to VANGUARD under this Agreement.

14.4 Delays - force majeure

VANGUARD is not responsible for any delay or failure of performance occasioned or caused by strikes, riots, fire, insurrection, embargoes, failure of carriers or suppliers, inability to obtain materials or transportation facilities, acts of God or of the public enemy, governmental tariffs and quotas, compliance with any law, regulation or other governmental or court order (whether or not valid), or other causes beyond the control of VANGUARD, even if the cause could be alleviated by the payment of money, or the performance is prevented or delayed because of the failure by VANGUARD.

14.5 No waiver

1. A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver.
2. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
3. A waiver is not valid or binding on the party granting that waiver unless made in writing.

14.6 Assignment

VANGUARD may at any time assign its rights and interests or novate its rights and obligations (in whole or in part) under this Agreement. The Client must not assign its rights or obligations under this Agreement without VANGUARD’s prior written consent, which consent may be refused or given subject to such terms and conditions as VANGUARD may determine in its absolute discretion.

14.7 Severance

If any provision of this Agreement or their application to any person or circumstance is or becomes invalid or unenforceable, that provision will be taken to be omitted without invalidating or modifying the remaining provisions of this Agreement, which will continue in full force and effect as if the invalid or unenforceable provision had not been included in them.

14.8 Indemnities

Each indemnity in this Agreement is a continuing obligation, independent of the other obligations of the party giving it and survives the end of this Agreement or the supply arrangement between the Client and VANGUARD.

14.9 Terms binding

This Agreement binds the Client both personally and as trustee of any trust of which it is trustee.

14.10 Variation of Terms

VANGUARD reserves the right to vary this Agreement from time to time. It may give notice of any variation of this Agreement by publishing the revised Terms on its website and may (but is not obliged to) notify the Client that it has done so on an invoice, statement or other written communication. If the Client continues to deal with VANGUARD and supply brochures for the Services of VANGUARD after any such variation of this Agreement, the Client is taken to have agreed to those Terms as varied and to have taken the supply of Services on those varied Terms.

14.11 Governing law

This Agreement will be construed in accordance with and governed by the laws of Western Australia.