Terms & Conditions

 

 

Welcome to Vypa!

  1. Definitions

1.1 “Seller” shall mean Highlands Workwear Pty Ltd t/a Vypa, its successors and assigns or any person acting on behalf of and with the authority of Highlands Workwear Pty Ltd.

1.2 “Buyer” shall mean the Buyer (or any person acting on behalf of and with the authority of

the Buyer) as described on any quotation, work authorisation or other form as provided by the Seller to

the Buyer.

1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the

Buyer on a principal debtor basis.

1.4 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits

shall include any supply of Services as hereinafter defined) and are as described on the invoices,

quotation, work authorisation or any other forms as provided by the Seller to the Buyer.

1.5 “Services” shall mean all Services supplied by the Seller to the Buyer and includes any

advice or recommendations (and where the context so permits shall include any supply of Goods as

defined above).

1.6 “Price” shall mean the price payable for the Goods as agreed between the Seller and the Buyer in

accordance with clause 3 of this contract.

  1. Acceptance

2.1 Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer’s

acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions

contained herein.

2.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally

liable for all payments of the Price.

2.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are

binding and can only be amended with the written consent of the Seller.

2.4 The Buyer undertakes to give the Seller at least fourteen (14) days notice of any change in the

Buyer’s name, address and/or any other change in the Buyer’s details.

  1. Price and Payment

3.1 At the Seller’s sole discretion the Price shall be either:

(a) as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or

(b) the Seller’s quoted Price (subject to clause 3.2) which shall be binding upon the Seller provided that the Buyer shall accept the Seller’s quotation in writing within thirty (30) days. Any contracted or proposed pricing shall only be valid for a period of six (6) months, after which unless another agreement is entered into consensually by the Buyer and Seller, the price will revert to standard.

3.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.

3.3 At the Seller’s sole discretion a deposit may be required.

3.4 At the Seller’s sole discretion:

(a) payment shall be due on delivery of the Goods; or

(b) payment shall be due before delivery of the Goods.

3.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other

forms. If no time is stated then payment shall be due thirty (30) days following the date of the invoice.

3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card or by direct credit,

or by any other method as agreed to between the Buyer and the Seller.

3.7 GST and other taxes and duties that may be applicable shall be added to the Price except

when they are expressly included in the Price.

  1. Delivery Of Goods

4.1 At the Seller’s sole discretion delivery of the Goods shall take place when:

(a) the Buyer takes possession of the Goods at the Seller’s address; or

(b) the Buyer takes possession of the Goods at the Buyer’s address (in the event that the Goods are

delivered by the Seller or the Seller’s nominated carrier).

4.2 At the Seller’s sole discretion the costs of delivery are:

(a) included in the Price; or

(b) for the Buyer’s account.

4.3 The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are

tendered for delivery. In the event that the Buyer is unable to take delivery of the Goods as arranged then

the Seller shall be entitled to charge a reasonable fee for redelivery.

4.4 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

4.5 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver

the Goods (or any of them) promptly or at all.

  1. Risk

5.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Buyer on

delivery.

5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the

Buyer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of

these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the

insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

  1. Title

6.1 The Seller and Buyer agree that ownership of the Goods shall not pass until:

(a) the Buyer has paid the Seller all amounts owing for the particular Goods; and

(b) the Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts

between the Seller and the Buyer.

6.2 Receipt by the Seller 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 and until then the Seller’s ownership or

rights in respect of the Goods shall continue.

6.3 It is further agreed that:

(a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have

received payment and all other obligations of the Buyer are met; and

(b) until such time as ownership of the Goods shall pass from the Seller to the Buyer the Seller may give

notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights

of the Buyer to obtain ownership or any other interest in the Goods shall cease; and

(c) the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made;

and

(d) if the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon

and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the

Buyer, where the Goods are situated and take possession of the Goods; and

(e) the Buyer is only a bailee of the Goods and until such time as the Seller has received payment in full

for the Goods then the Buyer shall hold any proceeds from the sale or disposal of the Goods on trust for

the Seller; and

(f) the Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller;

and

(g) the Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the

Goods while they remain the property of the Seller; and

(h) the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that

ownership of the Goods may not have passed to the Buyer; and

(i) until such time that ownership in the Goods passes to the Buyer, if the Goods are converted

into other products, the parties agree that the Seller will be the owner of the end products.

  1. Buyer’s Disclaimer

7.1 The Buyer hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for

damages or to claim restitution arising out of any misrepresentation made to the Buyer by the

Seller and the Buyer acknowledges that the Goods are bought relying solely upon the Buyer’s skill and

judgement.

  1. Defects

8.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the

Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or

quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time

following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail

to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For

defective Goods, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s

liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods.

  1. Returns

9.1 Returns will only be accepted provided that:

(a) the Buyer has complied with the provisions of clause 8.1; and

(b) the Seller has agreed in writing to accept the return of the Goods; and

(c) the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date; and

(d) the Seller will not be liable for Goods which have not been stored or used in a proper manner; and

(e) the Goods are returned in the condition in which they were delivered and with all packaging

material, brochures and instruction material in as new condition as is reasonably possible in the

circumstances.

9.2 The Seller may (in its discretion) accept the return of Goods for credit but this may incur a

handling fee of fifteen percent (15%) of the value of the returned Goods plus any freight.

  1. Warranty

10.1 For Goods not manufactured by the Seller, the warranty shall be the current warranty

provided by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible

for any term, condition, representation or warranty other than that which is given by the manufacturer of

the Goods.

10.2 To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of

the Goods for any purpose and any implied warranty, is expressly excluded. The Seller shall not be

responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however

arising.

  1. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts

11.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable

provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the

States and Territories of Australia, except to the extent permitted by those Acts where applicable.

  1. Intellectual Property

12.1 Where the Seller has designed, drawn or written Goods for the Buyer, then the copyright in those

designs and drawings and documents shall remain vested in the Seller, and shall only be used by the

Buyer at the Seller’s discretion.

12.2 The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe

any patent, registered design or trademark in the execution of the Buyer’s order and the Buyer agrees

to indemnify the Seller against any action taken by a third party against the Seller in respect of any such

infringement.

  1. Default & Consequences of Default

13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily

until the date of payment at a rate of five percent (5%) per calendar month and such interest shall

compound monthly at such a rate after as well as before any judgement.

13.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from

and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs

on a solicitor and own client basis and the Seller’s collection agency costs.

13.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in

breach of any obligation (including those relating to payment), the Seller may suspend or terminate the

supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller

will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised

its rights under this clause.

13.4 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any

part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether

or not due for payment, become immediately payable in the event that:

(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be

unable to meet its payments as they fall due; or

(b) the Buyer 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

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect

of the Buyer or any asset of the Buyer.

  1. Cancellation

14.1 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of

Goods at any time before the Goods are delivered by giving written notice to the Buyer. On giving such

notice the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be

liable for any loss or damage whatever arising from such cancellation.

14.2 In the event that the Buyer cancels delivery of Goods the Buyer shall be liable for any loss

incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.

  1. Privacy Act 1988

15.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a

credit report containing personal credit information about the Buyer and Guarantor/s in relation to

credit provided by the Seller.

15.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information about the

Buyer and the Guarantor/s with those credit providers either named as trade referees by the Buyer or

named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a) to assess an application by Buyer; and/or

(b) to notify other credit providers of a default by the Buyer; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the

Buyer

is in default with other credit providers; and/or

(d) to assess the credit worthiness of Buyer and/or Guarantor/s.

15.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue

payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

15.4 The Buyer agrees that personal credit information provided may be used and retained by the

Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller

or required by law from time to time:

(a) provision of Goods; and/or

(b) marketing of Goods by the Seller, its agents or distributors in relation to the Goods; and/or

(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to

provision of Goods; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested

by Buyer; and/or

(e) enabling the daily operation of Buyer’s account and/or the collection of amounts outstanding in the

Buyer’s account in relation to the Goods.

15.5 The Seller may give information about the Buyer to a credit reporting agency for the following

purposes:

(a) to obtain a consumer credit report about the Buyer; and/or

(b) allow the credit reporting agency to create or maintain a credit information file containing information

about the Buyer.

  1. General

16.1 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.

16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of

New South Wales and are subject to the jurisdiction of the courts of New South Wales.

16.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense

(including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and

conditions.

16.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to

damages which under no circumstances shall exceed the Price of the Goods.

16.5 The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or

claimed to be owed to the Buyer by the Seller.

16.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s

consent.

16.7 The Seller reserves the right to review these terms and conditions at any time. If, following any

such review, there is to be any change to these terms and conditions, then that change will take

effect from the date on which the Seller notifies the Buyer of such change.

16.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike,

lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either

party.

16.9 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated

as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.