These Supply Terms set out the entire agreement between Vespol and the Customer in relation to the supply or delivery by Vespol, of any goods, materials, equipment and/or parts (“Supplies”). Any terms or conditions contained in any purchase order or any other document issued by the Customer or any correspondence or documents passing between Vespol and the Customer:
By ordering Supplies, or receiving delivery of any Supplies, the Customer is deemed to have accepted the terms and conditions set out in these Supply Terms, and to have agreed that they apply to the exclusion of all others.
No variation of these Supply Terms shall be effective unless documented in writing and signed by Vespol.
Vespol may accept or reject any order (or part of any order) placed by a Customer for Supplies in its discretion.
The minimum invoice amount for any order placed by a Customer is $150.00 (excluding GST, and freight, storage or other expenses).
Vespol may vary without notice the price of any Supplies offered for sale, or the speciﬁcations, design or construction of the Supplies as Vespol or its suppliers consider appropriate.
Dates and times for delivery as speciﬁed in any purchase order issued by the Customer or in any conﬁrmation of order issued by Vespol are estimates. Vespol will use reasonable endeavors to deliver Supplies by the date for delivery speciﬁed by Vespol in any conﬁrmation of order. However any failure to deliver any Supplies by the stated delivery date shall not be a breach of these Supply Terms, or a basis for cancellation or any order or the return of any Supplies.
Unless Vespol agrees in writing to the contrary the Customer is responsible for any loss, damage or deterioration to the Supplies once the Supplies are delivered to the Customer.
“Delivery” will be taken to have occurred upon Vespol handing over possession of Supplies to the Customer. For the avoidance of doubt:
If the Customer returns or fails to accept delivery of any Supplies tendered in accordance with these Supply Terms, Vespol may invoice the Customer for the Supplies delivered, and treat the remainder of the agreement (if any) as cancelled under clause 6.2.
Unless otherwise speciﬁed by Vespol, all prices speciﬁed in Vespol catalogues or price lists, or in any invoice exclude any tax (including any Goods and Services Tax within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST”), or any duty or impost levied in respect of the Supplies), which the Customer will pay, in addition to the amounts speciﬁed for the Supplies.
Payment is to be by cash unless Vespol has granted the Customer a separate credit facility. Vespol reserves the right to refuse credit facilities to any purchaser. Vespol may revoke or withdraw any approval previously given to the Customer to extend credit to the Customer at any time and for any reason.
If Supplies are sold to the Customer on credit then, unless Vespol agrees in writing to the contrary, all invoiced amounts are payable within thirty (30) days of the last day of the month in which the invoice was issued to the Customer. If Vespol does not receive payment by the due date, then without limiting its rights, Vespol may:
The Customer is also liable for all reasonable expenses incurred by Vespol in the enforcement of the Customer’s obligations and the recovery of monies due from the Customer.
Vespol is entitled to set-off against any money owing to the Customer, amounts owed to Vespol by the Customer on any account whatsoever.
Title in the Supplies will not pass to the Customer until the Customer has paid Vespol in full for those Supplies, together with any other sums payable in respect of those Supplies. Until title passes in any Supplies:
The risk in the Supplies shall pass to the Customer on Delivery.
The Customer may not return any Supplies to Vespol without obtaining Vespol’ prior consent, and then only on such terms (including as to the payment of an appropriate charge) as Vespol may determine. Vespol reserves the right to refuse or withhold that consent. The Customer may only request in writing to return Supplies for credit within seven (7) days of receipt of delivered Supplies. Return of Supplies will only be accepted if in new condition. No credits will be granted for returned Supplies unless the Customer supplies a copy of the original invoice. Supplies that are returned will be subject to a restocking charge payable by the Customer, calculated as a percentage of the invoice. Where Supplies are have been custom manufactured or fabricated to a speciﬁcation required by the Customer, Vespol may impose an additional charge, as a condition of agreeing to accept any return.
The Customer may not cancel any order accepted by Vespol or any part of it without obtaining Vespol’s prior written consent, and then only on such terms (including as to the payment of an appropriate charge) as Vespol may determine. Vespol reserves the right to refuse or withhold that consent.
The Customer must submit all complaints, claims, or notiﬁcations in respect of a delivery Supplies that do not comply with an order to Vespol in writing within seven (7) days of the date of Vespol’s invoice for the Supplies. Otherwise, the Customer is deemed to have accepted the Supplies as delivered.
Capitalised words used in this clause 7 (except those otherwise defined in these Supply Terms) have the meanings given to those words in the Personal Property Securities Act 2009 (Cth) and its associated regulations and amendments (“PPSA”).
The Customer acknowledges that Vespol has a Security Interest in all present and future Supplies supplied to the Customer including with respect to any proceeds of those Supplies which may arise (“Collateral”). The Security Interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time.
These Supply Terms constitute a Security Agreement for the purposes of the PPSA and Vespol may register Financing Statements with respect to the Collateral on the Personal Property Securities Register (“PPSR”).
The Customer must not create or purport to create or permit to be created any Security Interest in any Collateral, other than a Security Interest in favour of Vespol.
Where permitted by the PPSA, the Customer waives any rights to receive notifications, verifications, disclosures or other documentation under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157, or any other provision, of the PPSA.
The Customer and Vespol agree to contract out of and nothing in the provisions of sections 96, 125, 129, 132, 137(3), 142 and 143 of the PPSA will apply to these Supply Terms.
To the extent permitted by the PPSA, the Customer agrees that where Vespol has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
The Customer and Vespol agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. The Customer must not exercise its rights to make any request of Vespol under section 275 of the PPSA, authorise the disclosure of any information under that section, or waive any duty of confidence that would otherwise permit non-disclosure under that section. The agreement in this clause 7.9 is made solely for the purpose of allowing to Vespol the benefit of section 275(6)(a) and Vespol shall not be liable to pay damages or any other compensation or be subject to injunction in respect of any actual or threatened breach of this clause.
This clause 7 survives the expiry or termination of any of these Supply Terms.
The provision of Supplies will not confer any right upon the Customer to use any intellectual property of Vespol or of any of its suppliers.
The period of any warranty applicable to any particular Supplies will be 6 months, or otherwise as speciﬁed by Vespol at the time of accepting any order from the Customer, (“Warranty Period”). The Warranty Period commences on the date of Delivery or deemed Delivery.
Vespol warrants to the Customer that during the Warranty Period, the Supplies will, allowing for reasonable variations in quality, comply in all material respects with their printed speciﬁcations, and will be free of material defects in design, construction and materials, and Vespol will at its discretion replace or repair any defective Supplies, or refund the price of the defective Supplies.
To claim under the warranty, the Customer must within the Warranty Period, return the defective Supplies to Vespol at the Customer’s expense, together with a copy of the original invoice, for evaluation by Vespol. Only after Vespol has made its evaluation will the appropriate action be taken at Vespol’ discretion. Transport to and from Vespol’ premises is at the Customer’s expense.
Vespol is not liable for defects in or damage to Supplies arising from mishandling or misuse, incorrect installation, vandalism, ill-treatment, accident, or any cause out of Vespol’ reasonable control.
Vespol is not liable for any indirect, punitive, special, incidental or consequential damage, or losses arising out of a third party bringing a claim of whatever nature, which the Customer may suffer or incur or which may arise in connection with any Supplies supplied to the Customer pursuant to these Supply Terms, or in respect of a failure or omission on the part of Vespol to comply with its obligations under these Supply Terms.
Except for the express warranties set out in these Supply Terms, to the extent permitted by the law, Vespol expressly excludes all conditions and warranties. Where legislation implies any condition or warranty (“non-excludable term”), and that legislation avoids or prohibits provisions in a contract excluding, or modifying the application or exercise of or liability under that non-excludable term, that non-excludable term is deemed to be included in these Supply Terms. However, Vespol’ liability for any breach of that non-excludable term is limited, at Vespol’ option, to the repair or replacement of the defective Supplies, the supply of equivalent goods or services, or paying the cost of replacing the defective Supplies or of supplying equivalent goods or services.
Vespol may at any time for no disclosed reason:
The failure by Vespol to exercise or enforce any rights detailed in these Supply Terms shall not be deemed as a waiver of any such right and does not bar the exercise or enforcement of such right at any time or time thereafter.
Notwithstanding any other clause in these Terms and Conditions of Sale, Vespol total aggregate liability arising out of, or in connection with these Terms and Conditions of Sale whether for negligence or breach of contract or any case whatsoever shall in no event exceed the price of the Supplies paid or payable by the Customer.
Vespol will not be liable to the Customer or to any third party for any non-performance or delay in the performance of its obligations under these Supply Terms, if a Force Majeure Event causes the non-performance or delay, and Vespol gives the Customer notice of it. In no event will this provision affect the Customer’s obligation to make any payments to Vespol except in respect of Supplies that Vespol is unable to provide, until they can be provided. For the purposes of this clause 11.3, “Force Majeure Event” means a circumstance beyond Vespol’ reasonable control which results in Vespol being unable to observe or perform on time any obligation under these Supply Terms, including but not limited to acts of God, lightning strikes, earthquakes, ﬂoods, storms, explosions, ﬁres and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, and strikes.
If any license of consent of any Government or authority is required for the importation and/or acquisition of and/or to use any Supplies, the Customer shall obtain the same at its own expense and produce evidence of same to Vespol on request.
These Supply Terms and any order made under it are governed by and will be interpreted according to the laws of Victoria. Each party consents and submits to the jurisdiction of the courts of Victoria in relation to itself and its property.
If any provision of these Supply Terms proves to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason, that provision is deemed omitted without affecting the remaining provisions, and the remaining provisions of these Supply Terms shall continue in full force and effect.
Any notice required or contemplated by these Supply Terms is deemed to have been properly given if it is in writing, properly addressed and delivered personally, or mailed postage prepaid or by fax to the Customer’s principal place of business or last known address.
In these Supply Terms , unless the contrary intention appears: