In these conditions unless the context otherwise requires:
“Goods” means the products or stock ordered by the Purchaser.
“GST” means goods and services tax, consumption tax, value added tax, retail turnover tax or a tax of a similar nature.
“Input Tax” means an amount equal to the amount of GST paid or payable for the supply of anything acquired.
“Purchaser” means the a purchaser of goods or services from the Supplier.
“Renter” means the a renter of goods or services from the Supplier on a temporary basis as stipulated in the Rental Application Form.
“Primary Payment” means any payment by the Purchaser to the Supplier of any fees or other amounts payable by the Purchaser to the Supplier under these Terms and Conditions.
“Supplier” means Easycure Technologies Pty Ltd A.C.N. 161 529 746 of Level 5, 574 St.Kilda Road, Melbourne.
“Tax Invoice” means an invoice in the format required by the law and which also shows the amount of GST payable by the Purchaser in respect of the relevant Primary Payment.
- Terms and Conditions of Sale
All Goods sold by the Supplier to the Purchaser shall be sold subject to these Terms and Conditions. Every time the Purchaser submits an order for Goods from the Supplier, that order shall be deemed to be subject to these Terms and Conditions.
- The Supplier’s Quotations
Unless previously withdrawn, the Supplier’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within fourteen (14) days only after the quotation’s date. The Supplier reserves the right to refuse any order based upon the Supplier’s quotation within seven (7) days after receipt of that order. Prior dealings between the parties or the imposition of additional or alternative terms by the Purchaser by way of purchase order or otherwise will not vary or replace these Terms and Conditions or be deemed to do so. The Supplier may withdraw, revoke or vary a written quote at any time before the Purchaser accepts the offer in the quote.
- Possession by the Supplier
The Purchaser authorises the Supplier or its agent to retake possession of any goods supplied by the Supplier if the Purchaser does not comply with these Terms and Conditions. The Purchaser irrevocably authorises the Supplier to enter upon any premises on which goods delivered are located for the purpose of retaking possession of those goods.
- Credit Terms
Credit terms are strictly 30 days net or as agreed. If the Supplier advances credit, the Supplier may withdraw that credit at any time in its absolute discretion.
- Expiration of Terms and Conditions
These Terms and Conditions are to continue until all accounts and interest have been paid in full.
- Overdue Accounts
Goods may not be supplied to overdue accounts until such time as the account is brought up to date.
- Charges and Liens
The Purchaser authorises the Supplier to place a charge or lien on any property owned by the Purchaser in event of default of these Terms & Conditions.
The cost of any special packing and packing materials used in relation to the goods are at the Purchaser’s expense notwithstanding that such cost may have been omitted from any quotation.
The delivery times made known to the Purchaser are estimates only and the Supplier is not liable for late delivery or non-delivery. The Supplier is not liable for any loss, damage or delay occasioned to the Purchaser or the Purchaser’s customers arising from late delivery or non-delivery of the goods. The Supplier may at its option deliver the goods to the Purchaser in any number of instalments unless otherwise agreed in writing. If the Supplier delivers any of the goods by instalments, and any one of those instalments is defective for any reason:
- it is not a repudiation of the contract of sale formed by these conditions; and
- the defective instalment is a severable breach that gives rise only to a claim for compensation.
Where in order to deliver or collect goods the Supplier or its carriers enters upon the Purchaser’s premises, the Purchaser shall provide full and safe access to the Supplier or its carriers and shall be liable for and indemnify the Supplier and its carriers against the cost of all loss, damage to property and injury to persons; occurring directly or indirectly as a result of the failure by the Purchaser to ensure the said full and safe access.
- Loss or Damage in Transit
The Supplier is not responsible to the Purchaser or any person claiming through the Purchaser for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the Supplier is legally responsible for the person who caused or contributed to that loss or damage). The Supplier must provide the Purchaser with such assistance as may be necessary to press claims on carriers so long as the Purchaser:
- has notified the Supplier and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and
- lodge a claim for compensation on the carrier within three (3) days of the date of receipt of the goods.
- Returned Goods
The Supplier is not under any duty to accept goods returned by the Purchaser and will do so only on terms to be agreed in writing in each individual case. The Purchaser will be deemed to have accepted the goods free of defect or any non-conformity unless the Supplier receives a substantiated written claim within seven (7) days of the date the Supplier delivers or otherwise attempt to deliver the goods to the Purchaser, as the case may be. If the Supplier agrees to accept returned goods from the Purchaser under this clause, the Purchaser must return the goods to the Supplier at its place of business. If the Supplier is of the opinion that the goods when returned are otherwise than in the same condition as when they were delivered to the carrier or directly to the Purchaser, a charge equal to the cost necessary to restore the goods to their original condition shall be payable by the Purchaser upon demand by the Supplier. If goods are returned to the Supplier which the Supplier is unable to resell to a third party or resell for the same amount as was sold to the Purchaser, then the Supplier may charge the Purchaser an amount equal to the loss incurred as a result of the Purchaser returning the goods.
- Exclusion of Warranties & Limitation of Liability
All warranties whether expressed or implied and whether statutory or otherwise with regard to the goods supplied by the Supplier as to quality, fitness for purpose or any other matter are hereby excluded except in so far as any such warranties are incapable of exclusion at law. The Supplier’s liability for a breach of a condition or warranty implied by any law is limited to:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired.
Any warranties provided (whether provided by the Supplier or implied by law) do not apply if:
- the defect becomes apparent more than twelve (12) months after the date of the invoice and three (3) months from the date of invoice in the case of services (including parts provided);
- the goods have not been used or stored in accordance with instructions issued by the Supplier;
- the goods have been subject to any alteration or repair by any person other than authorised in writing by the Supplier. If the alteration or repair is unrelated to the defect then the warranty remains applicable;
- the Purchaser fails to notify the Supplier of its claim under this clause within seven (7) days of the defect becoming apparent and to return the goods to the Supplier on its request to do so;
- the goods have not been used for the purpose for which they were designed.
Except as provided for in these Terms and Conditions, to the full extent permitted by law, the Supplier will not be liable for economic or consequential loss, injury, expense or damage to the Purchaser or any person to whom the goods are transferred, or in respect of any person to whom the Purchaser or the person using the goods make them available or their property, arising from any defect in or failure of the goods, notwithstanding negligence on the part of the Supplier, its suppliers, servants, agents, successors or assigns.
Unless otherwise stated all prices quoted by the Supplier are net, exclusive of Goods and Services Tax (GST). Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, cost of materials and other charges affecting the cost of production on the date is made. If the Supplier is liable by law for any GST on any Primary Payment, the Purchaser must pay to the Supplier the amount of the GST. The Purchaser must pay to the Supplier an amount in respect of any GST that the Purchaser is required to pay under these Terms and Conditions (i) at the same time; and (ii) in the same manner, as the Purchaser is required to pay for the Primary Payment to which the amount in respect of GST relates. The Supplier must issue to the Purchaser a Tax Invoice in accordance with the requirements of the law relating to GST. If the Supplier refunds to the Purchaser any amount under these Terms and Conditions, the Supplier must also refund to the Purchaser an amount in respect of any GST that the Purchaser paid in respect of that amount. Unless the Supplier advises the Purchaser to the contrary in writing, the Purchaser must pay for the goods in the following manner:
- a deposit of twenty percent (20%) of the cost of the goods when the Purchaser orders the Goods; and
- the balance of the cost of the goods prior to the delivery of the goods to the Purchaser.
In the case of account customers, the Purchaser must pay for the cost of the goods within thirty (30) days of the date of the Supplier’s invoice in relation to the relevant goods. The Purchaser acknowledges and accepts that the it is liable to pay the Supplier the price of all goods ordered by the Purchaser at all times and also in the event such goods are not delivered to the Purchaser due to the Purchaser’s default in complying with these Terms and Conditions. If the Purchaser does not pay for the goods as required in this clause, the Supplier reserves the right to charge interest on amounts overdue, which interest is calculated daily at the rate of 20% per annum from the date of the outstanding order and/or tax invoice until payment is made. The Supplier reserves the right without notice to alter the price of goods whether or not a deposit or part payment has been received by the Supplier for such goods and to invoice the Purchaser for any such extra amount where the cost of the goods to the Supplier have altered due to circumstances beyond its control including but without limiting the generality of the foregoing any variation in exchange rates, taxes, levies, imposts, duties, premiums fees or charges however designed, cost of raw material required to complete the order, and to correct errors and omissions.
Rental devices are only offered subject to availability and at the sole discretion of the Supplier
- Rental Application Form
- Renters must complete and sign a Rental Application form for every device rented from the Supplier
- The completed Rental Application Form must be returned to the Supplier within 10 days of the date stipulated on the rental receipt
- Failure to return the completed and signed Rental Application Form within 10 days of the date stipulated on the Rental Receipt may incur a penalty of up to $10.00 per day until a properly completed form is received by the supplier
- Rental Application Form
The Supplier reserves the right to make a reasonable charge for storage if:
- delivery instructions are not provided by the Purchaser within fourteen (14) days of a request by the Supplier for such instructions. Such charge is payable from the first day after delivery instructions were sought until the date of receipt of said instructions; and
- the Purchaser does not want goods to be delivered to it from the time they are ready for delivery. Such charge is payable from the first day the goods are ready to be delivered to the Purchaser until it instructs the Supplier to deliver the goods.
- Goods sold
All goods to be supplied by the Supplier to the Purchaser are as described on the order agreed by the Supplier and the Purchaser and the description on such order modified as so agreed prevails over all other descriptions including any specification or enquiry of the Purchaser. All goods are offered for sale by the Supplier subject to availability to the Supplier of such goods.
No order may be cancelled except with the Supplier’s consent in writing and on terms which will indemnify the Supplier against all losses. The Supplier shall be entitled to charge a reasonable cancellation fee (being not less than 50% of the amount of the order) for orders the Supplier has placed with third party suppliers any work done on the Purchaser’s behalf prior to the date of cancellation, including a fee for the processing and acceptance of the Purchaser’s order and request for cancellation. If the Purchaser fails to comply with any of these Terms and Conditions with respect to any order placed by it (including but not limited to any failure by the Purchaser to pay money owing to the Supplier as and when it is due), and such failure continues after the Supplier gives the Purchaser written notice to rectify such failure, then the Supplier may cancel that order and all other orders which have been placed by the Purchaser in which event the Purchaser will be required to pay the Supplier for the full invoiced value of all such orders.
- Proper Law
These Terms and Conditions shall be governed by and construed pursuant to the laws for the time being in force in Victoria. The parties submit all disputes arising between them to the courts of Victoria and any court competent to hear appeals from those courts of first instance.
- Force Majeure
If for any reason beyond the Supplier’s control (including without limitation as a result of any strike, war, terrorist attack, trade dispute, fire, tempest, theft or breakdown), orders cannot be delivered at the time stipulated by the Purchaser, the Supplier shall be entitled to extend the delivery date as is reasonable in the circumstances or to cancel the order and the Purchaser shall not have any claims for damages arising out of such cancellation, without prejudice to the Supplier’s rights to recover all sums owing to the Supplier in respect of deliveries made or goods provided prior to the date of such cancellation.
In the event of the Purchaser’s default under these Terms and Conditions, the Supplier shall be entitled to withhold the delivery to the Purchaser of any goods ordered by the Purchaser as at the date of such default. In the event of the Purchaser’s default under these Terms and Conditions, the Purchaser shall pay to the Supplier on demand all costs including without limitation all legal costs (on a solicitor/own client basis), mercantile agents fees incurred by the Supplier in recovering or attempting to recover all amounts outstanding and payable under these Terms and Conditions any dishonour or bank fees incurred by the Supplier relating to payments made by the Purchaser from time to time.
- Change of Ownership
The Purchaser agrees to notify the Supplier in writing of any change of its ownership within 7 days from the date of such change and to indemnify the Supplier against any loss or damage incurred by the Supplier as a result of the Purchaser’s failure to notify the Supplier of any change.
- Restriction on Liability
The Supplier shall not be liable in any way for any loss or damage whatsoever suffered by the Purchaser or any other person, whether direct or consequential, which loss or damage arises directly or indirectly from or connection with or as a result of any act, omission or statement made by the Supplier, its employees, contractors or agents whether negligent or not. Where such loss or damage occurs to a third party, the Purchaser hereby indemnifies the Supplier against all liability to the fullest extent permitted it by law.
In consideration of the Supplier having agreed or agreeing to sell goods or provide services or to extend credit to the Purchaser, the Purchaser’s assigns and the Purchaser jointly and severally charge (as beneficial owners) all freehold and leasehold interest in land that the Purchaser now or hereafter may acquire. The Purchaser consents to the Supplier lodging a caveat or caveats noting the Supplier’s interest pursuant to such charge(s).
- Complying with Regulations
If the cost to the Supplier of performing its obligations under the Terms and Conditions of Sale shall be increased or reduced by reasons of the making or amendment after the date of quotation of any law or of any order, regulation or by-law having the force of law, the amount of such increases or decrease shall be added to or deducted from the purchase price.
- Conditions Applicable
These Terms and Conditions contain the whole Terms and Conditions between the Purchaser and the Supplier and no variation of them will be binding on the Supplier unless agreed to by it in writing signed by one of its Directors, the General Manager, Finance Manager or Business Unit Managers. Subsequent agreements may include, but not be limited to, invoices, supply agreements, Subcontract agreements executed after the date of execution of these Terms and Conditions. These Terms and Conditions replace all other preceding and any subsequent agreements, arrangements or understandings and takes precedence over any inconsistencies that may arise in order documentation or any other documentation. Words importing the singular shall include the plural and vice versa. Words denoting the masculine gender shall include the feminine gender and shall both include the feminine gender. Any of the provisions in these Terms and Conditions which are illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability without invalidating the remaining provisions. A reference to a party to these Terms and Conditions includes that party’s successors and permitted assigns. The Purchaser confirms that these Terms and Conditions are not subject to finance being obtained by the Purchaser.
- Retention of Title
Despite anything in these Terms and Conditions to the contrary express or implied, all rights, title and interest in all goods supplied by the Supplier will remain with the Supplier, and do not pass to the Purchaser, until all money payable by the Purchaser to the Supplier (including any legal costs, interest, freight or insurance charges) have been paid in full and the Purchaser has discharged in full all of its accounts with the Supplier relating to all orders placed with the Supplier. If a payment is made by way of cheque, ownership shall not pass to the Purchaser until the cheque has been honoured. The goods shall nevertheless be at the Purchaser’s risk from the time of delivery. Until payment has been made in full for the goods, the Purchaser will hold the goods and any proceeds of sale (if any) on trust for the Supplier and agree to store the goods in such a manner that they can be identified as the property of the Supplier, and will not mix the goods with other goods. The Purchaser agrees that whilst property and title in the goods remains with the Supplier, the Supplier has the right without prior notice to enter upon the Purchaser’s premises to inspect and repossess the goods which may be in the Purchaser’s possession or control. In the event that the Purchaser fails to pay the Supplier for the goods by the due date required for payment under these Terms and Conditions, then the Purchaser (without prejudice to the Supplier’s other rights and remedies) hereby agrees to deliver up the goods to the Supplier upon demand by the Supplier and consents to the Supplier retaking possession of the goods which remain unpaid and thereupon the Supplier shall be entitled to resell the goods to a third party.
- PPSA Application
In these Terms and Conditions:-
- PPS Law means the PPSA and any amendment made at any time to the Corporations Act 2001 (Cth) or any other legislation as a consequence of the PPSA.
- PPSA means the Personal Property Securities Act 2009 (Cth).
- security interest and verification statement have the meaning given under and for the purposes of the PPS Law.
- terms that are defined in the PPS Law have the same meaning as in the PPS Law unless the context indicates otherwise.
The Purchaser must:
- do anything (including making amendments to these Terms or executing a new security document) for the purpose of:-
- ensuring a Security Interest created under these Terms, attaches to the collateral intended to be covered by that Security Interest, the Security Interest is enforceable, perfected, maintained and otherwise effective, and any Security Interest created under these Terms has the priority contemplated by these Terms;
- enabling the Supplier to prepare and register a financing statement or financing change statement if the Supplier deems necessary;
- enabling the Supplier to exercise any of its powers in connection with any Security Interest created under or provided by these Terms; and
- provide information requested by the Supplier to enable the Supplier to exercise any of its powers or perform its obligations under the PPSA.
A Security Interest arises under these Terms in all present and future goods supplied by the Supplier to the Purchaser and all proceeds of the sale of the goods in the form of a PMSI, including any Goods that become an accession. The Security Interest arising under this clause attaches to the goods when the goods are collected by the Purchaser or dispatched from the Supplier’s premises, not at any later time. The Purchaser must not change its name (including but not limited to any entity name or trading name), its address or place of incorporation or any other details required to be contained in a financing statement under the PPSA without the Supplier’s written consent. Except if section 275(7) of the PPSA applies, the Supplier and the Purchaser agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available and the Purchaser agrees not to provide any authorisation for the disclosure of such information. The Purchaser agrees that:-
- the Supplier has no obligation to dispose of or retain personal property it seizes within a reasonable time under section 125 of the PPSA;
- it must not complain of damage, cost or inconvenience caused by the Supplier in taking apparent possession of personal property under section 126 of the PPSA;
- following default, it has no rights to redeem personal property under section 142 of the PPSA; and
- it has no rights to reinstate these Terms after default under section 143 of the PPSA.
The Purchaser waives its rights to receive:-
- a notice of the Supplier’s proposal to remove personal property which has become an accession under section 95 of the PPSA;
- a notice of the Supplier’s proposal to exercise its rights with land law under section 118(1)(b) of the PPSA;
- a notice of the Supplier’s action (arising under section 120(2) of the PPSA) in relation to an interest in collateral under section 121(4) of the PPSA;
- a notice of the Supplier’s seizure of certain personal property under section 123(2) of the PPSA;
- a notice of the Supplier’s proposal to dispose of personal property under section 130 of the PPSA;
- details of the amounts paid to other secured parties in a statement of account provided by the Supplier under section 132(3)(d) of the PPSA;
- a statement of account under section 132(4) of the PPSA;
- a notice of the Supplier’s proposal to retain personal property under section 135 of the PPSA; and
- a copy of, or notice of, any verification statement confirming registration of a financing statement or a financing change statement relating to any Security Interest under, or provided for by these Terms.
The Purchaser waives any rights it has to object to the Supplier’s proposal to purchase personal property under section 129(2)(b) of the PPSA and object to the Supplier’s proposal to retain personal property under section 134(2(b) of the PPSA. The Purchaser must not:
- create any security interest over any of the Supplier’s personal property;
- sell or dispose of the Supplier’s personal property; or
- give possession of the Supplier’s personal property to another person.
If, in connection with these Terms and Conditions, the Supplier’s personal property is in the Purchaser’s possession, the resulting bailment or lease of that personal property (Bailment) shall be for a definite term as follows:
- where the Supplier registers its security interest in respect of the Bailment under the PPS Law, the period commencing on the date the Purchaser takes possession of the personal property and ending on the date on which the Purchaser becomes the owner of the personal property pursuant to these Terms and Conditions; and
- if clause (a) above does not apply or the term of the Bailment cannot otherwise be expressly determined under these Terms and Conditions, then the term of the Bailment is deemed to commence on the date the Purchaser takes possession of the personal property and ends on the date that the Purchaser becomes the owner of the personal property pursuant to these Terms and Conditions.
If the Supplier determines that a sale of goods to them is or contains a security interest for the purposes of the PPS Law, on request and within the time requested by the Supplier, the Purchaser must do anything (including obtain any consent or approval, sign and provide or produce any document, declaration, statement or certificate and supply any information to the Supplier, in each case in form and substance satisfactory to the Supplier) which the Supplier consider necessary for the purposes of:
- ensuring that each such security interest is binding and enforceable, perfected and otherwise effective;
- enabling the Supplier to apply for any registration, give any notification or do any other thing, in connection with any such security interest so that the security interest has the priority ranking required by the Supplier; or
- enabling the Supplier to exercise any of the Supplier’s rights and powers under or in connection with the security interest.
The Purchaser must not create or allow to exist a Security Interest over any of the goods which the Supplier sells to the Purchaser until the Purchaser has fully paid for those goods. Anything required by the Supplier to be done under this clause must be done by the Purchaser at its expense. The Purchaser agrees to pay the Supplier’s costs in connection with action taken by the Supplier in connection with this clause. The Purchaser must pay or, to the extent already paid by the Supplier, reimburse the Supplier on demand for all costs, charges and expenses incurred by the Supplier in connection with anything the Supplier is required to do under this clause. The Supplier need not give any notice under PPS Law (including a notice of a verification statement) unless the notice is required by PPS Law and cannot be excluded.
All descriptions, specifications, illustrations, drawings, data, dimensions and weights contained in catalogues, price lists or other promotional material (including the website) of the Supplier or elsewhere are approximations only. The Supplier will not be bound to accept any change in product dimension, materials or finish, a reduction in the quantity ordered or other particulars of an order for goods after the Supplier has ordered the goods from its supplier or any special materials related to the supply of the goods. If the Supplier is required to process the Purchaser’s goods or materials then the Supplier does not give any warranty or assurance that materials, quantities, preprinting supplied by the Purchaser are suitable for such processing. The Supplier accepts no responsibility and will not be liable to the Purchaser for any damage done or caused to such materials or goods.
- Intellectual Property
All work product produced by the Supplier in connection with the supply of the Goods will be the Supplier’s property. The Purchaser is entitled to retain work product but if it does not pay the prices in full, the actual or implied licence to use any work product will terminate and it will be required to return all original and copies of work product to the Supplier within seven days of being requested to do so.
The parties agree that these Terms and Conditions, and any other related document(s) are confidential and that the content of these Terms and Conditions will not be disclosed (except to the extent and for the purposes such disclosure is expressly permitted by these Terms and Conditions) or required by law (other than section 275(1) of the PPSA).