1. Definitions and Interpretation
The following definitions apply in these terms and conditions
ACL means the Australian Consumer Law contained in schedule 2 of the Competition and Consumer Act 2010 (Cth) as amended, re-enacted or replaced, and includes any subordinate legislation.
Company means Medical and Surgical Requisites Pty Ltd ACN 009 659 394 its officers, employees and authorised agents or representatives.
Consumer means a Purchaser who meets the definition contained in the ACL of a consumer.
Goods means the products sold by the Company to the Purchaser pursuant to these terms and conditions.
Purchaser means the purchaser of the Goods from the Company or any employee, agent or representative of the Purchaser.
Purchase Price means the price payable for the Goods together with any GST, other taxes, costs, or delivery charges payable by the Purchaser pursuant to these terms and conditions.
2. Description of Goods
(a) On delivery the Purchaser shall check, the quantity and Goods delivered against the description on the invoice, and shall give written notice of any alleged deficiency or irregularity in quantity or description within 48 hours from receipt of the Goods. Should such notice not be given within that time, the Goods actually delivered shall be deemed to be in accordance with the invoice and accepted by the Purchaser and the Purchaser shall not be entitled to make any claim or take any action in relation to any alleged deficiency or irregularity.
(b) Specifications of Goods given in any brochures, letters, price lists, data sheets or other documents of the Company or supplied by the Company are given to identify the Goods generally and do not form part of the description of the Goods.
3. Title and Risk
(a) Notwithstanding delivery of the Goods, no title in the Goods, whether legal or equitable, shall pass to the Purchaser until:
(i) the full amount of the Purchase Price and any other amounts owing in respect of the Goods (e.g. delivery costs) has been paid; and
(ii) all other monies owing by the Purchaser to the Company have been paid.
(b) For the avoidance of doubt where payment is made by cheque, the payment shall be deemed not to have been made until the cheque has been honoured upon presentation.
(c) Pending the passing of title in the Goods to the Purchaser, the Purchaser agrees to hold the Goods as bailee of the Company and shall re-deliver the Goods to the Company upon demand in the event that the Purchaser makes default under these terms and conditions.
(d) The Goods shall be at the Purchaser's risk from the time the Goods are loaded at the Company's storeroom for delivery to the Purchaser, notwithstanding that title and/or property in the Goods may not have passed to the Purchaser. It shall be the Purchaser's obligation to effect full insurance upon the Goods for such time as the goods are at the Purchaser's risk. The Company shall not be responsible for loss of, damage to, or destruction of, Goods during transit or otherwise whilst the Goods are at the Purchaser's risk.
(a) Unless otherwise stated on the invoice, the place for delivery of the Goods shall be the place at which the Goods are stored by the Company, and the Company's obligation to deliver shall be satisfied if the Company makes the Goods available for collection by the Purchaser at the place for delivery.
(b) In the event that the Company agrees to deliver the Goods to a location nominated by the Purchaser, the cost of delivery shall be paid by the Purchaser and shall be charged at the applicable rate. Goods will be delivered by the cheapest suitable method unless otherwise stipulated at the time of ordering by the Purchaser or unless other delivery arrangements are made by the Purchaser with the Company.
(c) It shall be the Purchaser's responsibility to be at the place at the time arranged for delivery, and to make available a suitable area at which to off-load the Goods. In the event that the Purchaser or the Purchaser's agent is not in attendance at the site at the time arranged for delivery, or in the event that there is no suitable area to off-load the Goods, the Company reserves the right to:
(i) off-load the Goods at the nearest point suitable to off-load the Goods, in which such case the Company shall not be responsible for any loss of or damage to the Goods as a result of the off-load at the nearest point suitable; or
(ii) return the Goods to the Company's premises in which such case the Purchaser shall pay the cost of the original delivery and any subsequent delivery or deliveries at the rates charged to the Company.
5. Time for Delivery
(a) The Company does not warrant delivery of the Goods by any date and shall not be liable if damages or loss suffered by the Purchaser by reason of any delay in delivery of the Goods.
(b) If in the Company's written quotation it is expressed that delivery of the Goods shall be made by a particular date or within a particular time, then subject to the provisions of this clause 5, the Company warrants delivery by that date or within that time, provided always that:
(i) the Purchaser agrees that any such expressed time for delivery shall not be of the essence of these terms and conditions; and
(ii) the Company shall not be responsible for delays or non delivery due to war, strike, natural disaster, Act of God, destruction of or damage to the Company's plant, interference by Government or semi Government authorities, legislative prohibition or restrictions, or any other cause beyond the control of the Company; and
(iii) in the event of breach by the Company of its obligations to deliver, the Company shall not be liable to the Purchaser for any amounts payable by the Purchaser by way of damages (whether liquidated or otherwise) under any contract entered into by the Purchaser with a third party for the purpose of which, or in connection with which, the Goods are supplied.
(a) Unless otherwise provided on the form of quotation, invoice, or delivery slip, the price stated on those documents is exclusive of GST which shall be in addition to the stated price and payable at the same time as the stated price.
(b) All prices of goods given in any brochures, letters, price list, data sheets or other documents of the Company or provided by the Company are exclusive of GST and subject to change without notice.
(c) The Company reserves the right to charge the Goods to the Purchaser at that price charged by the Company as at the date of delivery.
(a) Unless the Company has agreed to provide credit to the Purchaser or has agreed in writing to any other payment method (which the Company may do in its sole discretion), payment shall be made by cleared funds on or before delivery of the Goods to the Purchaser. Payment shall not be deemed to have been made until the company has received cleared funds.
(b) Payment shall be made at the Company's place of business at 33 Fulcrum St, Richlands, Queensland or at such other place as the Company may from time to time notify the Purchaser.
(c) Notwithstanding that the Company has agreed to provide and/or provided credit to the Purchaser, the Company, in its absolute discretion, may discontinue or suspend credit to the Purchaser and require payment before delivery.
(d) Subject to the other provisions in these terms and conditions and subject to express contrary agreement made with the Purchaser and recorded on the delivery docket and invoice, where the Company has agreed to provide credit to the Purchaser, payment of any monies owed to the Company pursuant to that credit arrangement shall be made 30 days from date of invoice.
(e) The Company reserves the right to charge a fee on any payment that attracts a transaction fee for the Company.
8. Deliveries by Instalments
(a) In the event of delivery of the Goods by instalments or in the event that part only of the order is delivered at any particular time, each portion of the Goods delivered shall be deemed to be sold under a separate contract incorporating these terms and conditions so far as they are applicable.
(b) In the event of the Purchaser being in breach of these terms and conditions, the Company may, in its sole discretion and without prejudice to its other rights, treat these terms and conditions as repudiated, shall not be bound to deliver any other instalments of Goods to the Purchaser, and shall be entitled to recover payment for the portion or instalment of Goods already delivered.
In the event that the Purchaser does not make payment as required, any monies due and owing to the Company may at the option of the Company bear interest (without prejudice to the rights given to the Company upon default pursuant to Clause 15) at the rate of interest from time to time charged by the National Australia Bank on credit card advances from the due date of payment and credit arrangements between the Company and the Purchaser may, at the Company’s sole discretion and without notice, be withdrawn.
10. Warranties, Representations and Exclusions of Liability
The Purchaser acknowledges and agrees that:
(a) no statement, promise, warranty, assurance or representation has been made to the Purchaser otherwise than is contained in the Company's written quotation or in the delivery advice;
(b) the Purchaser has not relied upon the knowledge, skill and/or judgment of the Company or of the Company's officers, employees, or agents in the choice of Goods and in the assessment of the suitability of the Goods for the purposes required and has relied solely on the Purchaser's own knowledge skill and judgment or on the knowledge, skill and judgment of some other person, and;
(c) the Purchaser has not advised the Company or otherwise indicated to the Company either expressly or otherwise that the Goods are required by the Purchaser for any particular purpose;
(d) the Company, its employees or agents have not given to the Purchaser any information of any nature whatsoever which the Purchaser has acted upon in any way either in entering into these terms and conditions or otherwise.
11. Description of Goods
The description of uses, capacities, durability, colour and otherwise contained in the Company's brochures, letters, price-lists, data sheets or other documents provided by the Company are given as a general guide only and the Company is not be liable for any misdescription, omission, or inaccuracy in those documents.
12. Competition and Consumer Act
Subject to the provisions of these terms and conditions and subject to the provisions of the Competition and Consumer Act 2010, the parties expressly agree that all terms, warranties, and conditions expressed or implied by law, statute or otherwise are hereby negatived and excluded.
Where the Purchaser is a Consumer, the Goods come with consumer guarantees that cannot be excluded under the ACL.
A Consumer is entitled to a replacement or refund for a ‘major failure’ and for compensation of any other reasonably foreseeable loss or damage. A Consumer is also entitled to have the goods repaired or replaced if the goods fail to be of an acceptable quality and the failure does not amount to a major failure. What constitutes a ‘major failure’ is set out in the ACL.
13. Claims and Limitation of Liability
(a) The Purchaser shall inspect the Goods immediately upon their delivery and the Goods are deemed to be accepted by the Purchaser unless the Purchaser gives written notice to the Company of:
(i) any alleged defects in the goods;
(ii) unfitness for the particular purpose for which they were supplied (if any);
(iii) unmerchantable quality; or
(iv) failure to meet specifications,
within 48 hours of delivery of the Goods. In default of such notice, the Goods shall be deemed to be suitable for the purpose for which they were supplied, of merchantable quality, in accordance with specifications, and otherwise free of any defect and the Company shall not recognize any claim in any of these regards.
This clause does not apply where the Purchaser is a consumer within the meaning of the Competition and Consumer Act 2010. Without derogating from any other term or condition in these terms and conditions.
(b) The liability of the Company, if any, for faulty workmanship, unsuitability, unmerchantable quality, failure to meet specifications, loss or damage in transit or whatever shall (except in the case where the Purchaser is a consumer and the Goods are of a kind that might ordinarily be acquired for personal, domestic or household use or consumption) be limited to:
(i) replacement of the Goods or supply of equivalent goods;
(ii) repair of the Goods;
(iii) payment to the Purchaser of the cost of replacing the Goods or of acquiring equivalent goods;
(iv) payment to the Purchaser of the cost of having the Goods repaired, whichever the Company shall choose.
Without derogating from the generality of the foregoing, the Company shall not be liable for any consequential loss.
(c) The Purchaser shall notify the Company immediately upon the Purchaser, its employees or agents becoming aware of any alleged fault or defect in the Goods, unsuitability or unfitness for the proposed use of the Goods, failure to comply with or to meet specifications, loss or damage in transit, or any other alleged cause of action in relation to the Goods arising out of the delivery or failure to deliver the Goods, and shall bring any action and/or commence any proceedings in relation thereto within 48 hours of the date of delivery of the Goods or the date that the Goods ought to have been delivered and not thereafter.
14. Return of the Goods
(a) Without derogating from clause 13 the Company may at its discretion accept for credit, return of Goods subject to this clause and provided that:
(i) the Goods are returned to the Company within seven days from the date of delivery; and
(ii) the Goods have not been used and the Goods and/or the packaging of the Goods has not been handled, damaged or interfered with to an extent inconsistent with a, reasonable examination by the Purchaser; and
(iii) the Goods being returned are accompanied by the return authority; and
(iv) the Goods have not been ordered specifically by the Company for a Purchaser; and
(v) where the Goods are marked with an expiry date, the Goods are returned at least three months prior to that expiry date.
(b) The price of Goods that are returned by the Purchaser and accepted by the Company shall be credited by the Company to the Purchaser's account with the Company or to the Purchaser if no account exists.
(c) The cost of re-delivery of Goods returned to the Company must be paid by the Purchaser before the Company will accept the return of the Goods. The Company may , at its discretion, agree to cover the cost of re-delivery of Goods.
(d) The Company may, in its sole discretion, charge a restocking fee when Goods are returned by the Purchaser under the provisions of this clause 14.
(e) The Purchaser acknowledges that:
(i) Goods that are restricted drugs cannot be accepted for credit under any circumstances; and
(ii) the return authority is not an approved credit but is only an authority to return the goods.
(a) If the Purchaser shall:
(i) neglect or fail to make any payment provided for in these terms and conditions on the due date (such neglect or default shall constitute a repudiation of these terms and conditions); or
(ii) refuse or neglect to take delivery of the Goods or any instalment thereof; or
(iii) being a company:
(A) enters into external administration or a scheme of arrangement for the benefit of its creditors;
(B) resolve that it be wound up; or
(C) have petition for winding up presented against it; or
(iv) being an individual:
(A) petition for his/her bankruptcy; or
(B) assign his/her estate to a trustee for the benefit of his/her creditors; or
(C) have a petition for bankruptcy presented against him/her; or
(v) fail to comply with any obligations under these terms and conditions,
then the Company shall be at liberty in addition to any other rights and remedies conferred upon if at law or at equity:
(vi) to sue the purchaser for damages for breach of contract; or
(vii) to rescind these terms and conditions ; and
(A) recover possession of the Goods; and/or
(B) forfeit any deposit paid (which the Purchaser acknowledges to be pre-estimated liquidated damages); and/or
(C) sue the Purchaser for damages for breach of contract.
(b) In the event that the Company elects to rescind these terms and conditions, it shall in addition to any other rights and remedies provided herein, be at liberty to immediately enter upon the premises of the Purchaser, repossess and resume possession of the Goods and/or to resell the Goods in such manner and upon such terms and conditions as the Company may think proper. Any deficiency in price on such re-sale and the expenses of and incidental to any repossession and to the preparation for sale and such re-sale and any abortive attempt to re-sell shall be paid to the Company by the Purchaser and shall be recoverable as a liquidated sum. Nothing in these terms and conditions shall preclude the Company from recovering from the Purchaser as and by way of damages the amount of profit which would have been derived had the Purchaser not breached these terms and conditions.
(c) Upon the Company taking re-delivery of the Goods for non-payment of part of the Purchase Price, the Company shall account to the Purchaser for that part of the Purchase Price paid by the Purchaser less any losses or expenses incurred as a result of the Purchaser's breach of contract.
16. Jurisdiction, Applicable Law, Proceedings
(a) The applicable law for all purposes of these terms and conditions shall be the law of Queensland.
(b) Should the Purchaser enforce these terms and conditions or otherwise institute action in relation to these terms and conditions, then the Purchaser shall commence that action only in the Supreme Court, District Court, or Magistrates Court (as the nature of the proceedings dictates) in Brisbane.
(c) Should the Company enforce these terms and conditions or otherwise institute action in relation to these terms and conditions, then it may commence that action either (at its option) in the Supreme Court, District Court, or Magistrates Court (as the nature of the proceedings dictates) in Brisbane or in such other Court in which it would by law be entitled to commence action but for the provisions of these terms and conditions.
(d) Service of proceedings upon the Purchaser in any such action may be effected by the Company or its solicitors sending by registered post a copy of the proceedings to the Purchaser at the address of the Purchaser as appears in the then current telephone directory, and if no such address appears, at the address of the Purchaser last known to the Company.
(a) These terms and conditions shall not be construed in such a manner as to exclude those conditions and warranties which are implied into this contract by the Competition and Consumer Act 2010.
(b) Should any term or provision of these terms and conditions or any part thereof be, for any reason, held by a Court of competent jurisdiction to be invalid or unenforceable, that provision or part of a provision shall be deemed to be severable and the validity and enforceability of the remainder of these terms and conditions shall be in no way affected thereby.
(c) ln any proceedings by the Company against the Purchaser for the recovery of moneys due and owing by the Purchaser to the Company in respect of the whole or part of the price of the Goods, the certificate of a manager or director for the time being of the Company stating the amount due by the Purchaser to the Company in respect of the price of the Goods, the amount paid by the Purchaser, and/or the interest rate chargeable to the Purchaser pursuant to clause 9, shall be prima facie evidence as to those matters.
d) The headings and sub-headings contained in these terms and conditions are included for convenience only and shall not affect the construction of the terms and conditions contained herein.
(e) The Company may at any time alter these terms and conditions without reference to the Purchaser.
(f) The current terms and conditions are published on the company’s website http://www.medsurg.com.au/.
18. Incorporation in other Dealings and, Limit of Contract
(a) Subject to express contrary agreement in writing and signed on behalf of the Company, these terms and conditions shall, so far as is applicable and making all changes necessary having regard to the context, be incorporated in any contract arising from future orders placed by the Purchaser with the Company.
(b) These terms and conditions contain the whole of the terms upon which the Goods are supplied (subject only to any express special terms or variations given in the Company's written quotation or on the delivery docket or invoice) constitute, the entire agreement between the parties and shall supersede all previous and other communications and representations either oral or in writing.