Conditions of Sale
UNLESS MEDICAL SPECIALTIES AUSTRALASIA PTY LIMITED (hereinafter called the “Company”) agrees in writing to any alteration or other conditions the Purchaser’s Order is accepted subject to the following conditions, which apply to the whole or any executed part of the Purchase Order (“Agreement”). Such sale does not convey any license expressly or by implication, to manufacture, duplicate or otherwise copy or reproduce any of the Goods.
Definitions:
“Goods” means all Goods or Services supplied by the Company to the Purchaser at the Purchaser’s request from time to time (where the context permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other and include the terms quoted and any associated equipment, accessories, parts and tools.
“GST” means Goods and Services Tax imposed under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Intellectual Property” means patent rights, copyright, trade marks, trade secret rights, whether registered or not and other intellectual property rights recognised by the law of each applicable jurisdiction.
“Purchaser” means the person or entity buying the Goods as specified in any Purchase Order, and if there is more than one Purchaser it is a reference to each Purchaser jointly and severally.
“Purchase Order / Purchaser’s Order” means the order submitted by the Purchaser to the Company for the supply of Goods or Services.
“Warranty Period” means the warranty period for the Goods in accordance with the manufacturer’s warranty period.
1. Acceptance
(a) The Purchaser is taken to have exclusively accepted and is immediately bound, jointly and severally by this Agreement, when the Purchaser submits a Purchase Order to the Company or accepts delivery of the Goods.
(b) This Agreement may only be amended with the Company’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Purchaser and the Company.
(c) The Purchaser acknowledges and accepts that the Company at its discretion, reserves the right not to supply the Goods if, for any reason (including but not limited to, where the Goods are not or cease to be available, account disputes or conditions placed on the Company by its suppliers). The Company shall not be liable to the Purchaser for any loss or damage the Purchaser may suffer due to the Company exercising its rights under this clause.
2. Change in Control
The Purchaser shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Purchaser and/or any of the Purchaser’s details (including but not limited to, changes in the Purchaser’s name, address, contact phone number or business practice). The Purchaser shall be liable for any loss incurred by the Company as a result of the Purchaser’s failure to comply with this clause.
3. Cancellation
No cancellation of a Purchase Order will be accepted after delivery of the Goods or after seven (7) days from the date shown on the Purchaser’s Order, whichever is the earlier date.
4. Price, Payment, Risk and Title
(a) All prices are net unless otherwise stated. For imported Goods, the prices quoted or invoiced for the supply, manufacture or installation of Goods or for work and labour supplied are based on prices quoted to the Company by our suppliers and the rates of freight, exchange, insurance premiums, import levies, taxes, customs duties and other costs of importation known to the Company at the time of quotation. Unless otherwise stated, in the event of any increase in these rates or in the price of the Goods quoted to the Company by our suppliers before acceptance of a Purchase Order or prior to delivery of the Goods to the Purchaser, then the cost to the Company entailed by such increase(s) shall be added to and form part of the purchase price and be payable by the Purchaser accordingly. This provision for variation of price shall also apply to a Purchase Order for Goods and/or services obtained locally.
(b) Unless otherwise stated the price does not include GST. In addition to the price the Purchaser must pay to the Company an amount equal to any GST that the Company must pay for any supply by the Company under this Agreement or any Purchase Order. The Purchaser must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Purchaser pays the price. In addition, the Purchaser must pay any other taxes and other duties that may be applicable in addition to the price except where they are expressly included in the price.
(c) Payment for invoiced amounts is to be made in full within thirty (30) days following the date of delivery (unless quoted for a lesser period). At the Company’s discretion, any payments not received within the term of this Agreement will be subject to interest (at the current 90 day bill rate plus 3%) calculated daily on the outstanding balance. Until payment in full is received, the property in the Goods remains with the Company and if in the Purchaser’s possession, the Goods will be held by the Purchaser as Bailee and the Company:
(i) retains legal ownership of the Goods;
(ii) may enter the Purchaser’s premises without liability for trespass or any resulting damage and retake possession of the Goods; and
(iii) may keep or resell any Goods repossessed pursuant to (ii) above; and
(iv) the Purchaser holds the benefit of the Purchaser’s insurance of the Goods on trust for the Company and must pay to the Company any proceeds of any insurance in the event of the Goods being lost, damaged or stolen.
(v) the Company may recover possession of any Goods in transit whether or not delivery has occurred.
(d) If the Goods are resold by the Purchaser, the Purchaser shall hold such part of the proceeds of any sale as represents the invoice price of the Goods in a separate identifiable account as the beneficial property of the Company and shall pay such amount to the Company on request. Notwithstanding the conditions above the Company shall be entitled to maintain an action against the Purchaser for the purchase price.
(e) The risk in the Goods shall pass to the Purchaser upon delivery of the Goods to the Purchaser or collection of the Goods by the Purchaser’s agent or courier as the case may be. If the Purchaser requests the Company to leave the Goods outside the Company’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Purchaser’s risk. The Purchaser will hold the Company indemnified against any claim or liability damage or injury to, or by, the Goods from delivery until payment in full is received.
(f) The Purchaser shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Company.
(g) The Company may commence proceedings to recover the price of the Goods sold not withstanding that ownership of the Goods has not passed to the Purchaser.
5. Delivery of Goods
(a) The Purchaser shall inspect the Goods immediately on the arrival thereof and shall within seven (7) days from such inspection give the notice in writing to the Company of any matter or thing by reason whereof he may allege that the Goods are not in accordance with the contract and the Purchaser shall be bound to accept and pay for the same accordingly. The Company is not responsible for any loss or damage to Goods in transit.
(b) At the Company’s discretion the cost of delivery of Goods shall be either in addition to the price or shall be included in the price.
(c) Any time or date given by the Company to the Purchaser for delivery, is an estimate only. The Purchaser must still accept delivery of the Goods even if late and the Company will not be liable for any consequential loss or damage incurred by the Purchaser as a result of the delivery being late for any reason whatsoever.
6. Personal Property Securities Act 2009 (“PPSA”)
(a) In this clause Financing Statement, Financing Change Statement, Security Agreement and Security Interest has the meaning given to it by the PPSA.
(b) Upon assenting to this Agreement in writing the Purchaser acknowledges and agrees that this Agreement constitutes a Security Agreement for the purposes of the PPSA and creates a Security Interest in all Goods that have previously been supplied and that will be supplied in the future by the Company to the Purchaser.
(c) The Purchaser undertakes to:
(i) promptly sign any further documents and/or provide any further information which the Company may require to register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Personal Property Securities Register, and register any other document as required by the PPSA;
(ii) indemnify and upon demand reimburse the Company for all expenses incurred in registering a Financing Statement or Financing Change Statement on the Personal Property Securities Register, or releasing any Goods charged thereby;
(iii) not register a Financing Change Statement in respect of a Security Interest without the prior written consent of the Company.
(iv) immediately advise the Company of any material change in its business practices of selling the Goods which would result in a change in the nature of the proceeds derived from such sales.
(d) The Company and the Purchaser agree that sections 96, 115 and 125 of the PPSA do not apply to the Security Agreement created by this Agreement.
(e) The Purchaser waives its right to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
(f) The Purchaser waives its rights as a grantor and/or debtor under sections 142 and 143 of the PPSA.
(g) Unless otherwise agreed to in writing by the Company, the Purchaser waives their right to receive a Verification Statement in accordance with Section 157 of the PPSA.
(h) The Purchaser unconditionally ratifies any actions taken by the Company under clauses 6(c) – (e).
(i) Subject to any express provisions to the contrary nothing in this Agreement is intended to have the effect of contracting out of any of the provisions of the PPSA.
7. Specifications
All specifications, drawings and particulars of weights and dimensions submitted to Purchaser are approximate only and deviation shall not be taken to vitiate any contract with the Company or from any grounds for any claim against the Company. The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter, do not form part of the Purchase Order.
8. Warranty
(a) Subject to such conditions or warranties that may be implied by the Competition and Consumer Act 2010 (Cth) or other Federal or State Legislation and which may not be excluded by the Company, the Company makes no representations or warranties as to the successful operation of the Goods, the suitability of any Goods for any specifically identified patient since fitness for use is a medical decision, or that the body of any person will adapt/react to the implantation /introduction of the Goods, except as specifically provided herein.
(b) The Goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Purchaser is entitled to a replacement or refund for a major failure. The Purchaser is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
(c) The warranty described herein shall be the sole and exclusive warranty given by the Company and shall be the sole and exclusive remedy available to the Purchaser in addition to the rights and remedies of the Purchaser under a law in relation to the Goods to which this warranty relates.
(d) The warranties provided by the Company under this Agreement is limited to the Warranty Period.
9. Limitation of Liability
(a) The Company will not be liable for any death, injury, loss, damage, cost, expense, fine, penalty or claim whatsoever incurred or suffered by it or any other person in connection with or arising in any way out of:
(i) this Agreement;
(ii) its performance of this Agreement;
(iii) the manner in which the Customer uses the Goods
Other than by the proven negligence of the Company. Nothing in this clause will exclude, restrict or modify any condition, warranty, right or liability implied into this Agreement or protected by law where to do so would render this clause void.
(b) Correction of any defects in the Goods, in a manner and for the Warranty Period described herein, shall constitute complete fulfilment of all liabilities and responsibilities of the Company to the Purchaser and shall constitute full satisfaction of all claims whether based on contract, negligence and strict liability otherwise. The Company will not be liable or in any way will not be liable or in any way responsible for any damages or defects to the Goods which were caused by repairs or attempted repairs performed by anyone other than the Company or an authorised service provider and where the Goods were not used in accordance with the Company’s instructions.
(c) Where the Company is in breach of a condition or warranty implied by the Competition and Consumer Act 2010 (Cth) or any other legislation which has not been excluded by this Agreement, its liability is limited at the Company’s sole discretion (except as otherwise provided in such legislation) to:
(i) in the case of any Goods – the replacement of the Goods; or the repair of the Goods; or refund of the purchase price; or
(ii) in the case of any services – providing the service again; or refund the service cost.
(d) Nothing in this agreement will exclude, restrict or modify any condition, warranty right or liability implied in this agreement or protected by law where to do so would render this Agreement, or any clause in this Agreement, void.
(e) The Purchaser of the Goods is requited to abide by any and all discretions contained on the Goods or in or with the packaging of the Goods as to its storage, use or operation and any damage to the Goods or suffered by any patient using the Goods, which is a result of failure to observe any such direction or instruction, or due to any unauthorised modification of the Goods, including labelling or subjecting the Goods to unusual physical or electrical stress, fair wear and tear or an act of God will not be the responsibility of either the Company or the manufacturer.
(f) The Purchaser’s property under the Company’s custody or control will be entirely at the Purchaser’s risk as regards loss or damage thereby from whatsoever cause arising.
(g) If the Purchaser is a consumer within the meaning of the Competition and Consumer Act 2010 (Cth), the Company’s liability is limited to the extent permitted by section 64A of Schedule 2.
(h) In order to enforce the rights under the warranty pursuant to this Agreement, the Purchaser must provide a proof of purchase to the Company. The proof of purchase must identify the date of purchase, description of the Goods, and the price paid for the Goods.
(i) Notwithstanding anything contained in this clause if the Company is required by law to accept a return then the Company will only accept a return on the conditions imposed by that law.
10. Indemnity
(a) Prior to use of the Goods, the Customer must satisfy itself and determine the Goods suitability for its intended use and is responsible for the manner in which the Goods are used.
(b) The Customer will be responsible for and will indemnify the Company against liability for loss, damage or injury to persons or property caused by the Customer, or its employees or agents as a result of its direct or indirect negligence, act or omission, and the amount of all claims, damages, costs and expenses which may be paid, suffered or incurred by the Company.
(c) The Customer will indemnify the Company against all costs, losses and damages suffered or incurred by the Company arising from any investigation by any statutory authority in respect to any direct or indirect negligence, act or omission of the Customer.
(d) Insofar as the Customer fails to comply with its obligations as described in this clause, the Customer will indemnify the Company against any liability for loss or damage arising from that failure.
(e) This clause survives termination of this Agreement.
11. Intellectual Property
Where the Company has designed, drawn or developed Goods for the Purchaser, then the copyright in any designs and drawings and documents shall remain the property of the Company.
12. Trade in
(a) Any Goods traded in by the Purchaser shall remain in the Purchaser’s property until delivery to the Company’s nominated point of delivery, such delivery to be at the Purchaser’s expense.
(b) Any Goods traded in by the Purchaser shall be appraised by the Company, and in the event that it is not as described, the Company may at its option terminate this Agreement.
13. Default
(a) If the Purchaser owes the Company any money the Purchaser shall indemnify the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Company’s collection agency costs, and bank dishonour fees).
(b) Without prejudice to any other remedies the Company may have, if at any time the Purchaser is in breach of any obligation (including those relating to payment) under this Agreement, the Company may suspend or terminate the supply of Goods to the Purchaser. The Company will not be liable for any loss or damage the Purchaser suffers because the Company has exercised it rights under this clause.
(c) Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of a Purchase Order of the Purchaser which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable if:
(i) any money payable to the Company becomes overdue, or in the Company’s opinion the Purchaser will be unable to make a payment when it falls due’
(ii) the Purchaser becomes insolvent or bankrupt; or (iii) a receiver, manager or liquidator is appointed in respect of the Purchaser and any asset of the Purchaser.
14. Return of Goods
It is a condition of the sale of the Goods that the Company is not obligated to accept in any case the return of Goods for credit. The following conditions relating to the return of Goods for credit apply to all Goods returned for this purpose with the approval of the Company:
(a) Goods Return Authority (G.R.A.) number issued by the Company is to be quoted on all returned Goods.
(b) Invoice number must be supplied.
In every case the original invoice number and date must be quoted.
(c) Packaging: Where Goods were originally supplied in a special manufacturer’s carton, any return shall be made in that original carton and the Goods shall be in their original unmarked condition, complete with any instruction sheets supplied.
(d) Freight: Outward and inward freight and transport charges are the responsibility of the Purchaser. If not prepaid by the Purchaser, freight will be deducted from the amount of the credit.
(e) Goods must be returned in new condition as supplied.
(f) A restocking fee may be charged.
(g) Goods cannot be returned for credit if the Goods have been altered or damaged by the Purchaser or the Goods are made or purchased on a firm and irrevocable order.
15. General
(a) The appropriate law of this contract shall be the law of the State of New South Wales, and the parties hereby submit to the jurisdiction of the Courts of that State for resolution of any dispute under this Agreement.
(b) The failure by the Company to enforce any provision of this Agreement shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision. If any provision of this Agreement shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired,
(c) The Purchaser warrants that it has the power to enter into this Agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and this Agreement creates a binding and valid legal obligation on it.