The download or submission of an order for Software Products to Vaper by you indicates an acceptance of and agreement to be bound by these Product Terms and Conditions. If you do not agree with the Product Terms and Conditions do not download or submit any orders for Software Products. Vaper suggests that if you have any queries in relation to the Product Terms and Conditions that you seek your own independent legal advice.

It is agreed:

1. Vaper Pty Ltd (“Vaper”) agrees to supply and you agree to take a licence to use the products (“Software Products”) subject to these terms and conditions (“Agreement”). The Software Products that you order through Vaper are subject to the terms and conditions of the end user licence agreement accompanying such Software Products (the “End User Licence”). Except for the terms of this Agreement, all of your rights and remedies with respect to your possession and use of the Software Products are governed by the End User Licence.
2. The Price for the Software Products are listed on this website from time to time. All prices on this site are referred to in Australian dollars. Prices do not include any federal, state, municipal or other foreign government duties or taxes (such as sales, goods and services tax, etc, unless otherwise stated). All such amounts will be in addition to the Price stated in the website. All payments to Vaper for Software Products are to be made using the method prescribed. Australian residents are liable for GST on Software Products unless able to provide a declaration that you are not in Australia at the time of making the purchase and will not be making use of the Software in Australia.
3. All ownership, title and intellectual property rights in and to the Software Products belong to Vaper. The Software Products will not be provided in any other format to you than as described in this website. Software Products must not be used for, or in the design of any ultrahazardous activities, including but not limited to, air traffic control, critical care, mining, nuclear installations, and the like.
4. To the full extent permissible under applicable law, Vaper expressively disclaims all warranties express or implied of any kind with respect to the Software Products, including warranties of merchantability, fitness for a particular purpose and non-infringement. Some jurisdictions limit or do not allow the disclaimer of implied or other warranties and the above disclaimer shall not apply in those jurisdiction to the extent such laws are applicable to this Agreement.
5. Vaper and their directors, officers, employees, consultants, agents or other representatives shall not be liable for any damage, loss or expense of any kind arising out of or resulting from your possession or use of the Software Products regardless of whether such liability is based in tort, contract or otherwise. Some jurisdictions limit or do not allow an exclusion of liability and the above exclusion of liability shall not apply in those jurisdiction to the extent such laws are applicable to this Agreement.
6. Notwithstanding Clause 5, Vaper limits its liability in the case of the product to the replacement of the product or the supply of equivalent product, or the repair of the product, or paying of the costs for replacing the product or acquiring equivalent product, or the payment of the cost of having the product repaired. If the foregoing are held to be unenforceable, the maximum liability of Vaper and their directors, officers, employees, consultants, agents or other representatives to you shall not exceed the amount of the price paid by you for the Software Products. Some jurisdictions limit or do not allow a limitation of liability and the above limitation of liability shall not apply in those jurisdiction to the extent such laws are applicable to this Agreement.
7. In no event shall Vaper or their directors, officers, employees, consultants, agents or other representatives be liable to you for any indirect, special, incidental, consequential or punitive damages (including without limitation loss of profits, loss or corruption of data, loss of goodwill, work stoppage, computer failure or malfunction or interruption of business), regardless of whether Vaper or their directors, officers, employees, consultants, agents or other representatives have been advised of the possibility of such damages.
8. You represent and warrant for the benefit of Vaper that you:

   8.1. are at least 18 years of age;

   8.2. possess the legal right and ability to enter into this Agreement and make the credit card payment on your own behalf or on behalf or any person for whom you are acting as agent and/or that you are authorised to do so; and

   8.3. all information that you submit is true, accurate and current.

9. Whilst Vaper takes every precaution in the preparation of its technical circulars, price lists and its other literature these documents are for your general guidance only. You acknowledge that you have not relied on any representation made by Vaper which has not been stated expressly in this Agreement or upon any technical circulars, price lists or other literature produced by Vaper. Vaper employees or agents are not authorised to make any representations concerning the Software Products unless such representations are confirmed by Vaper in writing.
10. You agree that in the event you have any complaint associated with Vaper that you will comply with the following complaint process:-

    10.1. You will contact Vaper forthwith and outline your complaint in writing advising all relevant details.

    10.2. You will allow Vaper 30 days in which to respond to your complaint in writing thereafter you will enter into good faith discussions with Vaper to resolve such complaint.

    10.3. In the event that a satisfactory resolution to the complaint cannot be achieved you will enter into mediation with Vaper for resolution of the complaint prior to pursuing any legal action to the extent permitted by law.

11. If a dispute arises between the parties, including the non-resolution of a complaint as referred to in clause 10.1 you agree that no court proceedings in relation to the dispute will be taken by you unless the following mediation process has been completed:-

    11.1. You must advise Vaper of any dispute by written notice adequately identifying and providing details of the dispute, referring to any documentary evidence of the matters claimed in the dispute and designate a representative who has authority to negotiate and settle the dispute.

    11.2. Within 28 days after receiving the notice referred to in clause 11.1 Vaper must respond to the notice providing details and referring to any documentary evidence in support and designate a representative who has authority to negotiate and settle the dispute.

    11.3. Within 20 days of receiving the notice from Vaper, you and Vaper must negotiate and endeavour to settle the dispute.

    11.4. If the dispute is not settled within 30 days of the attempts to negotiate and endeavour to settle the dispute as provided in clause 11.3 an independent mediator with relevant experience of the matter in dispute or failing agreement a person appointed by the President of the Law Society of South Australia will be appointed to mediate the dispute.

    11.5. If within two months after the date of the mediator’s appointment the dispute has not been resolved, either party may by notice in writing terminate the mediation process and seek such remedies as they decide.

    11.6. Except in relation to urgent junction relief, you agree that you will not commence court proceedings or arbitration unless you have first complied with the dispute resolution provisions contained in this clause. You agree that this agreement may be pleaded as a bar to any court action commenced prior to the termination of the mediation process.

    11.7. In any case, you shall bear your own costs for the mediation.

    11.8. You acknowledge any exchange of information or documents or the making of any offer or settlement pursuant to this clause is an attempt to settle the dispute between the parties. Neither you nor Vaper may use any information or documents obtained through the dispute resolution process for any other purpose.

12. The information contained in the Software Product is presented for the purpose of collation of information only. Nothing contained in the Software Product is intended to be or to assist medical diagnosis, medical advice or treatment for patients. Some of the terminology contained within the Software Product may not be familiar to you. It is terminology commonly used within Australia. If you determine that you do not understand or you are not familiar with the terminology you should stop using this Software Product; if you do continue to use the Software Product you proceed at your own risk. Vaper Pty Ltd disclaims any and all liability for the accuracy or currency of the information in the Software Product. Vaper Pty Ltd disclaims any and all legal responsibility whether such arises in contract, tort or statute for damages or compensation arising from the use of the Software. You should confirm any information contained in the Software with other sources.
13. You shall not assign or transfer or purport to assign or transfer this Agreement or the benefits thereof to any other person without the prior written consent of Vaper and payment of any applicable fee.
14. Vaper shall not be liable for any failure by it to perform this Agreement, or for any loss and damage suffered by you in consequence thereof which failure arises from any cause whatsoever beyond the control of Vaper. That includes (but is not limited to) computer, communication or network failures, fire or other accident, strikes or other labour disputes, inability of Vaper’s supplier to deliver materials or finished products, any computer virus introduced by a third party to the product supplied by Vaper to you, or any other law, proclamation, regulation or ordinance or any government agency.
15. This Agreement shall be governed by and construed in accordance with the laws in force in South Australia and all disputes arising in connection with this Agreement shall be submitted to the jurisdiction of the relevant court of South Australia. Vaper has no physical presence or permanent establishment in the United States of America or any jurisdiction other than Australia.
16. This Agreement, the End User Licence and any other agreement expressly referred to herein, constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous written or oral agreement between the parties with respect to such subject matter. No waiver by either party or any breach or default hereunder shall be deemed to be a waiver of any proceeding or subsequent default or breach. Vaper may freely transfer, assign or delegate all or any part of this Agreement and all rights and duties thereunder, without the requirement of consent. This Agreement will be binding upon an inure to the benefits of the heirs, successors and permitted assigns of the parties. Headings and sub-headings are for clarification purposes only and do not form part of these terms and conditions.