High tech medical PTY LTD standard terms & conditions for product suply
The following are the Terms and Conditions subject to which High Tech Medical Pty Ltd ((“High Tech”) sells or supplies to the Customer referred to below (“the Customer”) goods or services (collectively referred to as “Products”).
These Terms and Conditions incorporate or include (where relevant) any other terms and conditions set out in price lists or quotations issued by High Tech.
Price lists or quotations issued by High Tech shall form part of these Terms and Conditions and such price lists or quotations shall be conditional upon or subject to these Terms and Conditions unless specifically excluded by written agreement between High Tech and the Customer.
In the event of any inconsistency between two or more documents that constitute the agreement between High Tech and the Customer, the documents shall be interpreted in the following order of priority:
1. Suitability of product for purpose
Except where a purpose has been specifically agreed to in writing between the Customer and High Tech, High Tech does not warrant the suitability of Products for any particular purpose or use made known to High Tech by any person.
2. Product guarantee
High Tech only provides a limited guarantee in relation to the repair or replacement within the guarantee period (ie. one year commencing on the date the relevant Products were dispatched or supplied to the Customer).
This guarantee shall only apply if the relevant Products (on examination by High Tech) are found to be defective in material or workmanship. This guarantee shall be invalidated should any work be carried out on the Products that have not been expressly authorised by High Tech. The removal of serial numbers shall invalidate the guarantee.
If the Customer fails to make payment in accordance with these Terms and Conditions, the guarantee will be unenforceable until payment is received in full.
3. Warranty
Where the Goods are found to be defective, the Seller shall repair, or in its sole discretion, replace defective Goods free of charge within 1 year from the date of delivery, subject to the following conditions:
The Buyer notifying the Seller in writing immediately upon the defect becoming apparent;
The defect being due to the faulty design, materials or workmanship of the Manufacturer.
Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer.
The Seller shall be entitled in its absolute discretion to refund the price of the defective Goods in the event that such price has already been paid.
The remedies contained in this Clause are without prejudice to the other Terms and Conditions herein, including, but without limitation, Clauses 10 and 11 below.
4. Taxes
Unless otherwise agreed in writing, prices quoted are exclusive of any goods and services tax (GST), customs and import duties, sales tax, stamp duties, use tax, consumption tax and like levies or taxes. The Customer shall be liable and responsible for these duties or taxes and for obtaining any exemptions from duty or tax where such exemptions may be available.
5. Orders
An order for Products issued by the Customer and received by High Tech shall constitute an offer by the Customer to buy the Products subject to these Terms and Conditions.
High Tech can accept the Customer’s offer without the necessity of communicating such acceptance to the Customer.
Failure on the part of High Tech to effect delivery of Products or complete the required work by any due dates specified by the Customer shall not render High Tech liable to the Customer or any other person in any way whatsoever for damages, whether consequential or otherwise. The Customer shall not be entitled to claim a reduction in the purchase price for any Products due to High Tech’s failure to deliver Products by a due date.
In the event of an order for Products being placed by the Customer whereby High Tech has incurred costs in respect of the supply of such Products from its own international supplier and the Customer, prior to delivery, purports to cancel the order, then High Tech shall be entitled to recover from the Customer the following:
The full retail price of the Products upon tender of delivery of the Products to the Customer;
All and any outlays, expenses and costs incurred by High Tech up to and including the date of attempted cancellation by the Customer.
Notwithstanding any attempt by the Customer to cancel an order for the Products, High Tech shall be entitled to seek specific performance of the order in terms of these Terms and Conditions.
6. Delivery & risk
The cost of the delivery of Products will either be included in High Tech’s quoted price if specified as such or otherwise will be additionally charged. Where relevant, the Customer shall be liable to pay High Tech for the cost of delivery.
The risk associated with the Products and any insurance cost associated with the Products will be the responsibility of High Tech until such time as the Products are delivered, sent to or dispatched to the Customer (whichever is the earlier), notwithstanding that the delivery of the Products is ex-works or otherwise. After delivery or dispatch, the risk associated with the Products will pass to the Customer, the latter who shall then also be responsible or liable for the insurance of the Products.
Title or ownership in the Products agreed to be sold to the Customer by High Tech does not pass to the Customer until High Tech is fully paid for such Products (including the payment of any interest, credit charges, transportation or delivery costs due or payable to High Tech in respect of such Products).
High Tech hereby authorises the Customer to sell the Products it has not yet paid for to third parties, provided that the Customer deposits the proceeds of sale of the Products in the bank account with details set out herein or a similar account approved by High Tech in writing.
The Customer shall hold part of the money received on account of the sale of the Products to third parties in trust for High Tech, such part being the amount owing to High Tech on account of the supply of the relevant Products to the Customer.
High Tech or any of its representatives are irrevocably authorised by the Customer to enter any part of the premises owned, occupied or controlled by the Customer and access the Products or remove or take possession of the relevant Products as High Tech sees fit at any time until full payment is received by High Tech. Where High Tech is unable to determine which Products have not been paid for, High Tech shall be entitled to take all Products located on the relevant premises subject to returning to the Customer those Products which the Customer is able to later demonstrate it has paid for.
The Customer indemnifies High Tech against any loss, damage, claims, costs (including legal costs and disbursements incurred on a solicitor/own client basis) relevantly suffered or incurred by High Tech in re-taking or re-claiming possession of the Products, whether or not such damage or loss was caused by High Tech accidentally or deliberately.
7. Invoicing
High Tech can invoice the Products at any time after receipt of an order for the Products or at a time which is at the sole and absolute discretion of High Tech.
8. Payment
Payment terms will be net seven (7) days from the invoice or statement date or a date seven (7) days prior to installation of the Products whichever may be applicable and which is notified to the Customer upon issue of the invoice (being “the due date for payment”).
9. Delays in payment & interest
If the Customer fails to make payment due to High Tech by the due date for payment or if the Customer should breach any of the other Terms and Conditions, High Tech can (without notice to the Customer) suspend the further supply of Products to the Customer or terminate the agreement between High Tech and the Customer and reclaim possession of the Products supplied or otherwise seek specific performance of these Terms and Conditions.
The Customer shall be liable to and must pay High Tech interest on any amounts owing by the Customer but unpaid immediately after the due date for payment, such interest which shall be one percent (1%) per month, calculated and payable monthly in arrears from the due date for payment. The Customer shall be liable to High Tech for all costs and disbursements incurred by High Tech for the recovery of any debts not paid by the relevant due dates for payment including any legal costs incurred by High Tech on a solicitor/own Customer basis.
Notwithstanding the provisions of this Clause 8, High Tech shall be entitled, at its sole and absolute discretion, to waive any interest on any amounts owing by the Customer as referred to above.
10. Quotations
The quoted price for Products shall apply for a period of four (4) weeks from the date of quotation. At the end of this four week period, High Tech can adjust the price in accordance with High Tech’s then prevailing rates as specified by it in writing. Prices are in Australian dollars (unless stated otherwise).
11. Limitations of liability
The Customer’s right to recover costs or damage caused by High Tech’s fault or negligence shall be limited to the amount paid by the Customer to High Tech for the relevant Products supplied by High Tech. High Tech will not be liable in any event for any damages resulting from loss of profits, loss of use of products or for any incidental or consequential damages, even if advised by anyone of the possibility of such damage.
This limitation of High Tech’s liability will apply regardless of the form of action, whether in contract or tort. Any action against High Tech must be brought within twelve months of when the cause of action accrues.
The Customer indemnifies High Tech against any claims for damages by any person in excess of the damages agreed to in this clause.
12. Service of notice
The respective addresses for the service of notices under these Terms and Conditions (“the notice address”) shall be respectively the registered offices of High Tech and the Customer provided that either of the parties may by written notice to the other party substitute another address that will then become the notice address. Notices may be given by being:
Left at the notice address;
Sent to the notice address by post, email or facsimile;
Delivered by hand to either of the parties to the Agreement.
Any notice posted shall be deemed to have been received seven (7) business days after the date of posting and any notice given in any other manner shall be deemed to have been received at the time when in the ordinary course it may be expected to have been received.
13. Severance
If any provision of these Terms and Conditions is void or voidable or unenforceable or illegal but would not be void or voidable or unenforceable or illegal as aforesaid if it were read down and it is capable of being read down, it shall be read down accordingly.
Notwithstanding the previous sub-clause, if a provision of these Terms and Conditions is still void or voidable or unenforceable or illegal:
But the provision would not be void or voidable or unenforceable or illegal as aforesaid if a word or words (as the case may be) were omitted, that word or those words are hereby severed; and
(In any other case) the whole provision is hereby severed,
and the remaining Terms and Conditions have full force and effect.
14. General provisions, interpretations & definitions
The supply of Products by High Tech to the Customer shall be subject to these Terms and Conditions. These Terms and Conditions shall prevail notwithstanding any other terms or conditions on any document submitted by the Customer and not agreed in writing by High Tech.
Any variation, addition or cancellation of these Terms and Conditions must be in writing in order to be binding or enforceable.
Failure by High Tech to enforce any of these Terms or Conditions shall not be deemed a waiver of future enforcement of that or any other term.
These Terms and Conditions are severable.
The laws of Queensland shall apply in relation to the interpretation of these Terms or Conditions or any dispute between High Tech and the Customer arising from these Terms and Conditions. High Tech and the Customer hereby submit to the jurisdiction of the Supreme Court of Queensland in relation to all disputes that may arise wholly or in part from this agreement between them.
15. Credit information
The Customer irrevocably authorises High Tech, its servants and agents to make such enquiries as they deem necessary to investigate the credit worthiness of the Customer from time to time, including the making of enquiries with persons nominated as trade references, the bankers of the Customer, any credit provider or Credit Reporting Agency and including personal credit and consumer credit information (hereinafter called “the information sources”).
The Customer hereby authorises the information sources to disclose to High Tech such information concerning the Customer which is within their possession. The Customer agrees that the information provided on its Credit Application concerning the Customer and any relevant trading information arising from any dealings between the Customer and High Tech may be disclosed to a Credit Reporting Agency or any other interested person.
16. Guarantee & indemnity by company
Where the Customer is a Company, the Officers of the Customer agree that they will do whatever may be necessary from time to time to give effect to these Terms and Conditions and they agree to be bound by the guarantee and indemnity provisions set out in Clause 18 hereof.
17. Special conditions
High Tech can impose upon the Customer special conditions which can be set out in a schedule or attachment hereto. If any term of a special condition is inconsistent with these Terms and Conditions, the special condition shall prevail to the extent of the inconsistency.
18. Guarantee & indemnity terms
In consideration of High Tech agreeing at our request (hereby confirmed) to supply (either past, now or at some future time) or to continue to supply or to cause to be supplied at the cost of High Tech to the Customer Products on credit, the persons identified below as Guarantors (hereinafter referred to as “the Guarantor”) HEREBY GUARANTEE the due payment by the Customer of all monies now due and owing or hereafter becoming due and owing by the Customer on any account whatever (including on account of goods sold and services supplied and work done) and the Guarantor agrees:
That this Guarantee is a continuing Guarantee and if the Guarantor is a person shall bind the estate of the Guarantor.
That if the Customer is a Corporation the Guarantor will not while any monies are owing to High Tech by the Customer claim or receive the benefit of any dividend or payment in a winding up of the Customer and will not prove or claim in a winding up of the Customer nor in any scheme of arrangement relating to the Customer in completion with High Tech so as to diminish any dividend or payment which but for such proof or claim High Tech would be entitled to receive and that receipt of any payment by High Tech out of a winding up of the Customer or any scheme of arrangement relating to the Customer shall not effect High Tech’s right to recover from the Guarantor under this Guarantee.
That if the Customer is a natural person the Guarantor will not while any moneys are owing to High Tech by the Customer claim or receive the benefit of any dividend or payment under a Bankruptcy of the Customer nor in any arrangement with the creditors relating to the Customer in completion with High Tech so as to diminish any dividend or payment which but for such proof or claim High Tech would be entitled to receive and the receipt of any payment by High Tech out of winding up of the Customer or any scheme of arrangement relating to the Customer shall not affect High Tech’s right to recover from the Guarantor under this Guarantee.
That if a Customer is a Corporation this guarantee shall not be affected, revoked or discharged by the winding up of the Customer.
That no security or payment which may be voided under law relating to bankruptcy or to the liquidation of companies and no release settlement or discharge which may have been given or made on the faith of any such security or payment shall prejudice or affect High Tech’s right to recover under this Guarantee from the Guarantor and to enforce this guarantee and in the event of any such security or payment being voided High Tech shall be restored to the rights which but for any such voidance High Tech would otherwise have had.
That any sum of money which may not be recoverable by High Tech from the Guarantor on the footing of this guarantee whether by reason of any legal limitation disability or incapacity on or of the Customer of any other circumstance shall nevertheless be recoverable from the Guarantor as principle debtors in respect thereof and shall be payable to High Tech on demand.
That the liability of the Guarantor under this guarantee shall not be impaired or discharged by reason of any time or other indulgence granted by High Tech to the Customer or by any arrangement entered into whereby High Tech’s rights are in any way modified or abrogated and that no notice of the granting of any time or indulgence or of entering into of any arrangement need be given to the Guarantor.
T o indemnify High Tech against any loss, costs (including legal fees and disbursements incurred by High Tech on a solicitor/own client basis), expenses, charges, liability, claims incurred or suffered by High Tech or made against High Tech on account of a breach by the Guarantor or the Customer of these Terms and Conditions.
That any notice or demand to be made by High Tech upon the Guarantor shall be deemed to be duly made and given if same is in writing signed by any authorised Officer or other person representing High Tech and is left in an envelope addressed to the Guarantor at the address of the Guarantor’s shown below or posted to the Guarantor at that address.
A certificate signed by any Director, Secretary, Administration Manager or Credit Manager of High Tech stating the balance of the monies due to High Tech by the Customer shall be conclusive evidence of the indebtedness of the Customer to High Tech at the date of the Certificate.
If more than one person is the Guarantor then the liability of those persons under this Guarantee is joint and several and every reference to the Guarantor shall apply to or bind all of those persons.
In this Guarantee, unless contrary to the intention appearing from the context of these Terms and Conditions, a reference to a person includes a reference to a corporation and in the singular number includes the plural.
The Guarantor agrees to any credit reporting agency giving to High Tech a credit report requested by High Tech for the purpose of assessing whether to accept the Guarantor as guarantor in respect of credit applied for or provided to the Customer.
19. Force Majeure
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.