Terms & Conditions
By reading these terms and conditions, you (the Consumer) acknowledge and agree with us (the Seller) that:
• The laws regarding electronic cigarette batteries and consumables (“e-cigarettes” or “Product”) throughout the Commonwealth of Australia are in a relative state of flux;
• Whilst the Seller shall at all times use its best endeavours to comply with all local laws and regulations of any State or Territory in which any Product is supplied or sold to the Consumer, given the uncertain state of flux of the laws regarding e-cigarettes, no express representation or warranty is made as to the legality of any supply pursuant to this Agreement or of the legality of any of its terms;
• These terms and conditions shall be binding on the Parties only insofar as the laws of any local State or Territory permit them to be so and only insofar as they do not otherwise infringe any local laws or regulations of a State or Territory; and,
• The terms and conditions contain confidential proprietary material and information of the Seller which shall at all times remain the property of the Seller. The Consumer agrees not to disclose any such material unless specifically required by law and agrees not to use such proprietary material or information for any purpose, except as specifically authorised by the Seller in writing.
Distribution and Sale Agreement
Lotsa Dollars Pty Ltd atf the Crotty Family Trust t/as Just Vapours Australia (Seller)
The person acquiring Product and / or Consumables pursuant to this Agreement (Consumer)
(a) The Seller is a supplier and distributor of the e-cigarette batteries (Product) and e-cigarette consumable products (Consumables) located in Western Australia and the owner of certain intellectual property rights relating to the Product and Consumables (Intellectual Property).
(b) The Consumer wishes to buy either Product or Consumables from the Seller.
(c) The Seller has agreed to sell and the Consumer has agreed to buy Product and / or Consumables on the terms and conditions set out in this agreement.
1. Definitions and Interpretation
ACL means the Australian Consumer Law.
Agreement means this Agreement, as modified or varied pursuant to its terms, and includes the Schedule.
Confidential Information means all trade secrets, ideas, know-how, concepts, methods, processes, procedures, media files, written materials, images, product ideas, marketing campaigns, pricing information, supplier, distributor and manufacturer identities and contact details, correspondence (including electronic correspondence such as emails) and information, whether or not reduced to written form or expressly described as being confidential, in whole or in part, received by the Consumer from the Seller pursuant to the arrangements contemplated by this Agreement and all other information relating in any way to the Seller and its affairs, business, sales, marketing to existing or prospective clients or suppliers, client, customer or promotional information but does not include information which is already in the public domain (other than through a breach of an obligation of confidence).
Consumables means the electronic cigarette “e-liquid” or “juice” specified in the Schedule which the Seller has agreed to make available for Orders from time to time.
GST has the meaning in A New Tax System (Goods and Services Tax) Act 1999
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs and all similar rights, whether owned on a proprietary basis or by licence or sub-licence.
Order means an individual contract for the supply of a certain quantity and specification of Product and / or Consumables placed by a Consumer pursuant to the terms of this Agreement and accepted by the Seller.
Ordered Goods mean Product and / or Consumables which the Seller has agreed to supply pursuant to any accepted Order.
Party means any individual party to this Agreement and Parties shall mean all parties.
Price means the particular per unit price of individual Product or Consumable in the Price List.
Price List means the list of prices of goods attached to this Agreement, as modified, varied or supplemented by the terms of this Agreement.
Product means the electronic cigarette batteries specified in the Schedule which the Seller has agreed to make available for Orders from time to time;
1.1 In this Agreement, unless the context otherwise requires:
1.1.1 a reference to any legislation or legislative provision includes any statutory modification or reenactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
1.1.2 the singular includes the plural and vice versa;
1.1.3 a reference to a clause or schedule is to a clause or schedule of this agreement;
1.1.4 a reference to a party to this Agreement or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
1.1.5 where an expression is defined anywhere in this agreement it has the same meaning throughout;
1.1.6 headings are for ease of reference only and do not affect the meaning or interpretation of this Agreement.
2.1 The Seller agrees to sell and the Consumer agrees to buy the Product and / or Consumables that have been identified by the Parties as the subject of this transaction (Ordered Goods).
2.2 This Agreement represents the whole agreement between the parties relating to the subject matter.
2.3 This Agreement supersedes all oral and written negotiations and communications by and on behalf of either of the Parties.
2.4 In entering into this Agreement, the Consumer acknowledges and agrees that it has not relied on any warranty, representation or statement, whether oral or written, made by the Seller or any of its employees or agents relating to or in connection with the subject matter of this Agreement. The Consumer further acknowledges that it has entered into this Agreement after having had a reasonable opportunity to obtain, and having obtained, its own independent advice.
2.5 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
3. Limitation of Seller’s Liability
3.1 The Consumer acknowledges that the health risks associated with Product and / or Consumables and with e-cigarettes generally are the subject of ongoing clinical research and study.and:
3.1.1 The Consumer acknowledges that the Seller has identified that Product and / or Consumables may be capable of causing a range of adverse health effects, up to and including death and / or permanent disability, to both the person using or consuming them and to any other persons within a reasonable proximity of any person using or consuming them;
3.1.2 The Consumer agrees that the Seller makes no warranty or representation regarding the Product and / or Consumables whatsoever, whether in relation to their suitability for the individual Consumer or generally;
3.1.3 The Consumer acknowledges that the Seller has encouraged the Consumer to seek clinical advice of a medical professional prior to commencing any use of any Product or consumption of any Consumable;
3.1.4 The Consumer agrees that the Seller has warned the Consumer that certain makes of Product may, in certain conditions, catch fire and / or explode and, in doing so cause serious injury, damage to property and / or death. Any use of Product by the Consumer is in acceptance of such risks;
3.1.5 The Consumer agrees to indemnify and hold harmless the Seller, to the maximum extent permitted by law, from any claim, loss or damage sustained by the Consumer arising out of the use of any Product or Consumable (inclusive of any loss or damage of a party other than the Consumer); and,
3.1.6 The Consumer irrevocably releases and discharges the Seller from any claim, loss or damage arising from the use of any Product and / or Consumable, of any nature whatsoever.
3.2 The Parties agree that this clause shall not in any way prejudice the Consumer’s rights to take action against any manufacturer of any Product or Consumable (provided it shall exclude the Seller);
3.3 The Consumer agrees that it shall not, under any circumstances, in any way attempt to modify, copy, reverse engineer, disassemble or repackage any Product and / or Consumable.
4. Orders – Placement and Acceptance
4.1 The Consumer must order Goods from the Seller using the Seller’s approved online ordering system.
4.2 The Consumer must specify in each order:
4.2.1 Quantity and Description of Product or Consumable ordered;
4.2.2 Preferred Delivery Location (including, whether it shall be collected from one of the Seller’s retail stores); and,
4.2.3 Preferred Delivery Date (where, if no date is specified, it shall be deemed to be “as soon as reasonably practicable for the Seller”).
4.3 The Seller will use its reasonable endeavours to advise the Consumer within a reasonable time of accepting an order whether any preferred date of delivery is possible.
4.4 Upon acceptance, the Seller shall use its best endeavours to prepare each Order to deliver the Order to the Consumer’s preferred Delivery Location.
4.5 The Seller may in its absolute discretion refuse to provide Product and / or Consumables (and suspend any agreed supply of Product and / or Consumables) where:
4.5.1 Product and / or Consumables are unavailable for any reason whatsoever;
4.5.2 The Seller deems in its sole discretion that providing or supplying any Product and / or Consumables pursuant to an Order may infringe any local law or regulation; or
4.5.3 Payment of any amount due pursuant to the Order has not been received by the Seller.
4.6 Once accepted, an Order cannot be cancelled without the written consent of the Seller.
4.7 The Consumer agrees that it may modify the Order, including Preferred Delivery Location, number of Product or Consumables delivered and the source of any Product or Consumables, so as to comply with any local laws or regulations.
5. Invoicing and Payment
5.1 All Prices are exclusive of GST and Duties, unless stated otherwise.
5.2 Payment for the Ordered Goods by the Consumer must be made in full at the time of placing an Order.
5.3 The Consumer agrees that the Seller may, at its election, modify any Prices at any time and at any frequency without providing immediate notice to the Seller. Any such Price modifications shall take effect immediately in respect of all orders.
5.4 The Consumer and the Seller agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
6.1 The Seller shall use its reasonable endeavours to deliver Ordered Goods to the Consumer’s Preferred Delivery Location (as modified by Clause 4.7 above). Where no Delivery Location is specified, the Delivery Location shall be the Seller’s Business Premises.
6.2 Except as provided by any Order, the Consumer shall bear the cost of transporting the Ordered Goods from the Consumer’s Preferred Delivery Location.
6.3 Where the Seller arranges or organises shipping (including insurance with respect to that shipping), the Consumer expressly acknowledges that the Consumer engages the services of any transportation or shipping company, courier, transport or insurer exclusively at its own risk and in line with its own imperatives and the Seller shall not in any way be liable for any loss or damage sustained as a consequence or any shipping or transport.
6.4 Where the Consumer reasonably requests, the Seller shall provide such information and documentation as to enable the Consumer to obtain its own shipping, transport and insurance with respect to the shipping of any Order, if so desired.
6.5 Notwithstanding any other term of this Agreement, the Parties agree that the Seller shall not under any circumstances be liable for any late delivery or failure to deliver Ordered Goods by any Delivery Date.
6.6 Supplementary to the other terms of this Agreement, to the fullest extent permissible at law, the Consumer agrees that the Seller shall not be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Product, Consumables and / or Ordered Goods, or otherwise arising out of the provision of Product, Consumables and / or Ordered Goods, whether based on terms of this Agreement, negligence, strict liability or otherwise, even if the Seller has been advised of the possibility of damages
7.1 The Seller will endeavour to ensure each Order is safely and securely packed for transportation to the Consumer. The packaging will be comprised of boxes that are reasonably suited for transport and any export documentation for Australian Customs as needed.
7.2 The cost of any special packing and packing materials used in relation to the Ordered Goods are at the expense of the Consumer, even if that cost has been omitted from any Order or quotation.
8. Acceptance of Goods
8.1 If the Consumer fails to advise the Seller in writing of any fault in Ordered Goods or failure of Ordered Goods to accord with the Consumer’s Order within 1 hour of delivery, the Consumer is deemed to have accepted the Ordered Goods and to have accepted that the Ordered Goods are not faulty and accord with the Consumer’s Order. Nothing in this paragraph affects the Consumer’s rights for any alleged failure of a guarantee under the ACL.
9.1 Legal and beneficial ownership and title to the Ordered Goods remains exclusively with the Seller until full payment has been received by the Seller for the Ordered Goods. Until such payment has been made the Consumer will be deemed to be the bailee of the Seller and the Seller holds a security interest in the Ordered Goods and all proceeds from the sale of the Goods as contemplated under the Personal Property Security Act 2009 (Cth).
9.2 Legal and beneficial ownership and title to the Ordered Goods constituting an Order passes to the Consumer free of encumbrances and all other adverse interests upon receipt by the Seller of payment in full of the Price and GST.
10.1 Risk in each particular Order passes to the Consumer upon dispatch from the Seller’s warehouse or collection of that Order by the Consumer’s agent or courier, whichever occurs first.
11.1 The Consumer agrees that the Seller may at any time appoint or engage an agent to perform an obligation of the Seller arising out of or pursuant to this Agreement.
11.2 The Parties agree that the Seller has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from this Agreement and / or any Order provided that the assignee agrees to assume any duties and obligations of the Seller owed to the Consumer under this Agreement.
11.3 The Consumer is not to assign, or purport to assign, any of its obligations or rights under this Agreement without the prior written consent of the Seller.
12. Further Exclusions / Implied Terms
12.1 Upon placing an Order, the Consumer acknowledges that:
12.1.1 No warranty, condition, description or representation in relation to the Ordered Goods is given by the Seller, expressly or impliedly by this agreement or outside this agreement; and
12.1.2 All warranties, conditions, guarantees and terms in relation to the state, quality or fitness of the goods and of every other kind whether expressed or implied by use, statute or otherwise are excluded.
12.2 Clause 12.1 is subject to any statutory rights which cannot be excluded and these conditions do not exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition,
warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified.
12.3 The Consumer expressly agrees that use of the Ordered Goods is at the Consumer’s risk. To the full extent allowed by law, the Seller’s liability for breach of any term implied into this Agreement or by any law (whether statutory, contractual, tortious or otherwise) is expressly excluded and the Consumer irrevocably releases and discharges the Seller from any claim, cause of action or loss that may arise, howsoever caused.
12.4 All information, specifications and samples provided by the Seller in relation to the Product, Consumables and / or the Ordered Goods are approximations only and, subject to any guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Consumer’s use of the Ordered Goods will not entitle the Consumer’s to reject the Ordered Goods upon delivery, or to make any claim in respect of them.
12.5 The ACL may give to the Consumer certain guarantees. Where liability for breach of any such guarantee can be limited, the Seller’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Ordered Goods or to the replacement or repair of the Ordered Goods or the costs of resupply or replacement of the Ordered Goods.
13.1 This agreement may not be amended except in writing signed by each of the parties.
14.1 Notwithstanding any other provision of this Agreement, the Consumer agrees to indemnify and keep indemnified the Seller, its servants and agents:
14.1.1 For any cost, claim, loss or expense sustained by the Seller arising from or connected with any breach by the Consumer of any term or provision of this Agreement or any Order; and,
14.1.2 in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Consumer) against the Seller or, for which the Seller is liable, in connection with any loss or damage arising from or incidental to the provision of Product, Consumables, Ordered Goods, any Order or the subject matter of this Agreement
14.2 Clause 14.1 includes, but is not limited to, any legal costs incurred by the Seller in relation to meeting any claim or demand or any party/party legal costs for which the Seller is liable in connection with any such claim or demand.
15.1 If any provision of this Agreement at any time is or becomes void, voidable or unenforceable, that part shall be severed and, so far as possible, the remaining provisions will continue to have full force and effect.
16.1 This Agreement shall be governed and construed exclusively by reference to the law of the State of Western Australia and each party to this Agreement submits to the exclusive jurisdiction of the courts of the Commonwealth of Australia.
17. Confidential Information
17.1 The Consumer acknowledges that, in the course of performing this Agreement or any Order, it may receive or come into contact with Confidential Information belonging to the Seller, including trade secrets belonging to the Seller.
17.2 The Consumer agrees that it will:
17.2.1 Not disclose or make use of any Confidential Information without the Seller’s express written consent (which may be modified or withdrawn by the Seller at any time and on any terms which it may see fit);
17.2.2 Take reasonable measures to preserve the confidentiality of any Confidential Information, including its electronic security; and,
17.2.3 Upon termination of this Agreement for any reason, promptly return any and all materials containing Confidential Information to the Seller, and otherwise deal with or delete any other Confidential Information as the Seller may expressly direct.
18. Further Rights / Duties
18.1 The Consumer shall do all further acts or things as may reasonably be required by the Seller to give full effect to the rights and entitlements conveyed to the Seller under this Agreement.