Terms and Conditions
(a) These terms and conditions (Terms) form part of any agreement to supply Goods to the Customer by the Company.
(b) All Goods supplied by the Company are supplied on these Terms.
(c) By taking delivery of Goods, the Customer will be deemed to agree that these Terms apply to the exclusion of all others.
(d) Time is of the essence in respect of all the Customer’s payment obligations.
(a) Account Application means the application by the Customer to open a trading account with the Company.
(b) Additional Fees means any fees charged by the Company to the Customer in relation to a particular Purchase Order in respect of one or more of the following at the rate set out in the Company’s price list at the time of the relevant Purchase Order:
(i) delivery fees (including insurance) ;
(ii) such other fees as may be notified by the Company to the Customer from time to time.
(c) Agreement means these Terms together with any associated Personal Guarantee.
(d) Approved Credit Limit means the dollar amount specified by the Company in its acceptance of the Customer’s Account Application (as amended by notice to the Customer in writing from time to time).
(e) Company means Medical Industries Australia Hold Co. Pty Ltd (ABN 99 662 066 424).
(f) Corporations Act means the Corporations Act 2001 (Cth).
(g) Customer means the person described as the “customer” in the applicable Account Application or the person to whom the Company otherwise supplies Goods from time to time.
(h) Force Majeure Event means any act, event or circumstance, other than a lack of funds:
(i) as a direct or indirect result of which, the party relying on it is prevented from or delayed in performing any of its obligations under the Agreement; and
(ii) that is beyond the reasonable control of that party.
(i) Goods means any goods supplied by the Company to the Customer.
(j) Government Agency means any government or any public, statutory, governmental (including a local government), semi-governmental, local governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute.
(k) GST has the meaning given to that term in the GST Act.
(l) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(m) Guarantor means the guarantor(s) specified in the Personal Guarantee.
(n) Insolvency Event means, in relation to a party to the Agreement, any one or more of the following events or circumstances occurring in relation to the party (or any person comprising the party):
(i) being in liquidation or provisional liquidation or under administration;
(ii) having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property;
(iii) being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
(iv) being unable to pay its debts or being otherwise insolvent;
(v) becoming an insolvent under administration, as defined in section 9 of the Corporations Act;
(vi) entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; and
(vii) any analogous event or circumstance under the laws of any jurisdiction.
(o) Intellectual Property Rights means all present and future intellectual and industrial property rights in the Goods conferred by Law and wherever existing, including:
(i) the Trade Identification;
(ii) patents, designs, copyright, rights in circuit layouts, know how, domain names, inventions, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
(iii) any application or right to apply for registration of any of these rights;
(iv) any registration of any of these rights or any registration of any application referred to in clause 2(o)(iii); and
(v) all renewals and extensions of these rights.
(p) Invoice means an invoice issued by the Company to the Customer in accordance with clause 11(a) or clause 11(b).
(q) Law means:
(i) principles of law or equity established by decisions of courts;
(ii) statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a Government Agency; and
(iii) requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a Government Agency that have the force of law.
(r) Ordered Goods means the goods specified by the Customer in a Purchase Order that has been accepted by the Company.
(s) Personal Guarantee means any personal guarantee entered into by the Customer with the Company.
(t) Personal Information means information of or relating to a person and, where applicable, includes “personal information” (as that term is defined in the Privacy Act 1988 (Cth)) of or relating to that person.
(v) Purchase Order means an order for Goods that is in the form specified by the Company from time to time, whether written, verbal of otherwise.
(w) Related Body Corporate has the meaning given to that term in the Corporations Act.
(x) Sigma Agreement means any agreement between the Customer and any member of the Sigma Group, including any agreement for the provision of goods from the Sigma Group.
(y) Sigma Group means Sigma Company Limited ABN 44 004 132 923 and each of its Related Body Corporates, agents, successors and assigns (as applicable).
(z) Special Conditions means the special conditions set out in the Customer’s Account Application and approved by the Company from time to time.
(aa) Trade Identification means the trademarks, service marks, symbols, branding, logos and other trade indicia (whether registered or not) owned or controlled by the Company and used in connection with the business conducted by the Company.
(a) The Customer must order the Goods from the Company by submitting a Purchase Order to the Company.
(b) Once placed, a Purchaser Order cannot be cancelled, or delivery deferred, without the Company’s consent.
(c) The Company is not bound by a Purchase Order unless and until it accepts the Purchaser Order, either by notifying the Customer of that acceptance or by commencing performance of the Purchase Order.
(d) To the fullest extent permitted by Law, the Company is not obliged to accept any Purchase Order.
(e) Once the Company accepts a Purchase Order, the parties must comply with that Purchase Order in accordance with these Terms.
(a) Delivery times will vary by state or territory in which the Customer is located and will be as notified to the Customer by the Company from time to time. The Company will endeavour to deliver within the time so specified but in no circumstances will the Company be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any delay in or failure of delivery in whole or in part.
(b) The Company reserves the right to make part deliveries of any Purchase Order and each part delivery constitutes a separate sale of Goods upon these Terms.
(c) The Customer must inspect all Goods upon delivery and must give notice to the Company of any matter or thing by which the Customer alleges that the Goods are not in accordance with the Purchase Order. If no such notice is provided and, to the extent permitted by Law, the Goods are deemed to have been delivered and accepted by the Customer.
(d) The Company will charge the Customer a delivery fee for each delivery of Goods set out in a Purchase Order.
5. RETURN OF GOODS
To the extent permitted by Law, the Company is not under any duty to accept Goods returned by the Customer unless the Goods are faulty or defective. In the case of faulty or defective Goods, the Customer may return such Goods for a refund.
6. TITLE AND RISK
(a) Title to all Goods supplied by the Company to the Customer remains with the Company and does not pass to the Customer until the price for those Goods and all other moneys owing by the Customer to the Company or the Sigma Group on any account whatsoever (whether under the Agreement or otherwise) (Amount Outstanding) is paid to and received in full by the Company (or the relevant company in the Sigma Group) in cleared funds.
(b) Risk in the Goods will pass to the Customer upon delivery to the Customer or when the nominated agent commissioned by the Customer takes receipt of the Goods.
(c) Until title to Goods supplied by the Company to the Customer passes to the Customer in accordance with clause 6(a), the Customer must:
(i) store the Goods separately from the Customer’s own goods and those of third parties, to enable them to be readily identified as the Company’s property;
(ii) hold the Goods as the bailee and fiduciary agent of the Company;
(iii) not supply or sell the Goods to any person, other than with the Company’s prior written consent or in the ordinary and usual course of the Customer’s business, it being acknowledged that any such supply or sale by the Customer will be as the bailee and fiduciary agent of the Company;
(iv) when requested by the Company, allow the Company to enter the premises where the Goods are stored to inspect the Goods and provide to the Company the consent of any person whose consent is required for that entry;
(v) keep records that relate to the Goods separately identifiable and readily distinguishable from those that relate to any other goods in its possession;
(vi) not allow any person to have or acquire any encumbrance or security interest in the Goods; and
(vii) keep the Goods insured against theft, damage and destruction (and if the Customer fails to insure the Goods, the Company may do so and the Customer must reimburse the Company for the cost of insurance).
(d) If the Customer sells or otherwise disposes of the Goods supplied by the Company before title to them has passed from the Company to the Customer:
(i) that part of the proceeds of any sale or dealing as is equal to the Amount Outstanding or if the proceeds of sale or dealing are less than the Amount Outstanding, the whole of the proceeds of sale or dealing (in either case, the Company’s Entitlement) must be held by the Customer in a separate identifiable account on trust for the Company and must not be mixed with any other moneys of the Customer; and
(ii) the Customer must account to the Company for the Company’s Entitlement,
until all liability of the Customer to the Company has been discharged.
(e) The Customer has no right to sell the Goods or deal with the Goods if:
(i) an Insolvency Event occurs in relation to the Customer or the Guarantor;
(ii) the Customer breaches the Agreement and fails to remedy the breach within 5 Business Days after receiving notice from the Company requiring the breach to be remedied; or
(iii) the Agreement is terminated for any reason.
(f) If the Customer loses its right to sell or deal with the Goods under clause 6(e), then the Customer must return the Goods to the Company on written demand. If the Customer does not return the Goods to the Company within 24 hours after receipt of the demand, then without limiting any other rights or remedies the Company may have:
(i) the Company may, as agent of the Customer, enter the premises where the Goods are located and do all things necessary to retake possession of the Goods, without liability for trespass or any resulting damage;
(ii) the Company may keep or resell any of the Goods repossessed;
(iii) the Customer is liable for all costs associated with the exercise by the Company of its rights under this clause 6(f), which costs are payable to the Company on demand; and
(iv) the Customer indemnifies and must keep indemnified the Company against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Company or which the Company may pay, sustain or incur as a direct or indirect result of the exercise by the Company of its rights under this clause 6(f).
7. PERSONAL PROPERTY AND SECURITIES ACT
(a) The Customer acknowledges that the Company may register its interest in the Goods pursuant to section 12 of the Personal Property Securities Act 2009 (Cth) (“PPSA“) and it will not do anything to prevent the Company registering its interest in the Goods.
(b) The Customer agrees to do all things and execute all deeds, instruments or other documents as may be necessary or desirable to give full effect to the provisions of these Terms and the rights of the Company in respect of the Goods under the PPSA.
(c) The Customer agrees that the Goods are not intended to be used by the Customer, and will not be used by the Customer for personal, household or domestic purposes.
(d) The Customer agrees that nothing in sections 117(3) or 130(1)(a) of the PPSA will apply to these Terms, a contract which arises from the acceptance of the Purchase Order or a security interest which is created or arises under these Terms or any of those contracts.
(e) The Customer waives any right which the Customer may have to:
(i) receive a notice under section 95 of the PPSA;
(ii) receive a notice under sections 118(1)(b)(i), 121(4), 123(2), 134(1) and 135 of the PPSA;
(iii) complain of, or seek redress for, any damage, cost or inconvenience caused by us taking apparent possession of Goods under section 126 of the PPSA;
(iv) object to our proposal to purchase Goods under section 129(2)(b) of the PPSA;
(v) receive a statement of account under sections 132(3)(d) or 132(4) of the PPSA;
(vi) redeem Goods under section 142 of the PPSA or reinstate a security agreement under section 143 of the PPSA; and
(vii) receive a notice of verification statement under section 157 of the PPSA.
Unless otherwise agreed in writing, the price payable by the Customer for the Goods is the price specified in either:
(a) A quotation provided by the Company that has not expired; or if there is no quotation
(b) the Company’s current price list at the time of ordering. Prices shown on any price list may be subject to alteration without notice.
All prices of Goods exclude delivery and insurance costs which will be charged in addition to the price payable by the Customer for the Goods if applicable.
(a) In this clause 9:
(i) the expressions Consideration, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the GST Act; and
(ii) Supplier means any party treated by the GST Act as making a Supply under the Agreement.
(b) Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with the Agreement are exclusive of GST.
(c) If GST is imposed on any Supply made under or in accordance with the Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply.
(d) Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with the Agreement.
10. DEFAULT FEES
If the Company incurs processing fees as a result of any payments made by the Customer which are subsequently dishonoured, then the Company may charge the Customer the amount of such processing fees and the Customer must pay that amount to the Company immediately on request.
(a) For each delivery of Ordered Goods, the Company must provide an invoice to the Customer for the amount payable under the Agreement for those Ordered Goods together with details of:
(i) the applicable prices;
(ii) discounts or rebates (if any); and
(iii) Additional Fees (if any).
(b) Notwithstanding clause 11(a), the Company may invoice the Customer for any Additional Fees calculated by the Company as owing by the Customer from time to time.
(c) The Customer must pay the Company the full amount of each Invoice within 30 days from the date of the Invoice.
(d) All payments under this Agreement will be paid by direct debit from the Customer’s bank account.
(e) Each payment under this clause 11 must be made without set-off or counterclaim and otherwise in the manner specified in the relevant Invoice.
(f) If the Customer fails to make payment in accordance with these Terms, any other agreement between the Company and the Customer, or under any Sigma Agreement, after demand for payment by the Company, then the Company may do one or both of the following:
(i) suspend performance of its obligations under the Agreement or under any Sigma Agreement until all amounts owing by the Customer to the Company (whether under the Agreement, any Sigma Agreement or otherwise and whether or not actually payable at that time) are paid in full; and
(ii) charge interest on the amount outstanding at the rate of 8% accruing daily from and including the due date for payment until the date of payment in full.
(g) To facilitate payments, the Customer agrees, upon request by the Company, to execute and deliver to the Company a direct debit request in the Company’s standard form.
12. FORCE MAJEURE
(a) The obligations of the Company will be suspended during the time and to the extent that the Company is prevented from or delayed in complying with those obligations as a result of a Force Majeure Event.
(b) If the Company is affected by a Force Majeure Event, it must:
(i) as soon as reasonably possible after being affected give the Customer particulars of the Force Majeure Event and the manner in which the Company’s performance of its obligations will be prevented or delayed; and
(ii) take reasonable steps to remove, overcome or minimise the effects of the Force Majeure Event, except that the Company is not obliged to settle a strike, lockout or other labour difficulty.
(a) Subject to this clause 13, and to the maximum extent permitted by the Australian Consumer Law and all other applicable Law, the Company is not liable to the Customer or to any third party for:
(i) any loss or damage of any kind caused by or resulting from any act or omission of that other party or any of its employees, agents or contractors; or
(ii) any loss, damage, liability, expense, injury or death sustained or incurred by the Customer or any other party, including without limitation any loss of profits, or economic, special, indirect or consequential loss or damage, whether resulting directly or indirectly out of any negligence of the Company, the supply, performance or use of any Goods or out of any breach of the Company under any contract incorporating these Terms, even if notified of the possibility of that potential loss or damage.
(b) In respect of Proximate branded products only, the Company warrants that such goods will be free of defective workmanship and materials. Such warranty will be valid for the following periods from the date of purchase:
(i) 12 months in the case of the Proximate unit and sensor; and
(ii) 6 months in the case of all other Proximate parts.
(c) Other than set out in clause 13(b), any representation, consumer guarantee, warranty, condition or undertaking that would be implied in the Agreement or under the Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by the Australian Consumer Law and all other applicable Law.
(d) Nothing in the Agreement excludes, restricts or modifies any consumer guarantee, condition, warranty, right or remedy conferred on the Customer by the Australian Consumer Law or any other applicable Law that cannot be excluded, restricted or modified by agreement.
(e) To the maximum extent permitted by the Australian Consumer Law and all other applicable Law, the liability of the Company for a breach of a non-excludable condition or consumer guarantee warranty referred to in clause 13 or the warranty set out in clause 13(b) is limited, at the Company’s option, to any one or more of the following:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent Goods; or
(iv) the payment of the cost of having the Goods repaired.
(f) In no event will the liability of the Company, whether under this clause 13, or otherwise, exceed the purchase price of the Goods supplied by the Company.
The Customer must indemnify the Company against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Company or which the Company may pay, sustain or incur as a direct or indirect result of any one or more of the following:
(a) any breach or non-performance of the Agreement by the Customer, including any breach of a warranty;
(b) any breach by the Customer of any consumer guarantee, warranty, right or remedy given by the Customer expressly or arising by operation of the Australian Consumer Law or any other applicable Law;
(c) any wrongful, wilful or negligent act or omission of the Customer or any of its employees, agents or contractors;
(d) the storage, handling or use of any Good sold under or in connection with the Agreement, except to the extent that the relevant action, claim, proceeding, demand, liability, loss, damage, expense or cost was caused by the wrongful, wilful or negligent act or omission of the Company or any of its employees, agents or contractors; and
(e) any injury or loss sustained by any person who is employed or engaged by the Customer as an employee, agent or contractor for the purpose of (among other things) the performance by the Customer of its obligations under the Agreement and who suffers any injury or loss arising out of or in the course of such employment or engagement.
(a) The Company may terminate the Agreement with immediate effect by giving written notice to the Customer if:
(i) the Customer breaches any of its obligations under any agreement with the Company and does not rectify the failure (where the failure is rectifiable) within 14 days of notice; or
(ii) the Customer or Guarantor suffer an Insolvency Event.
(b) The Company may terminate the Agreement without liability to the Customer, by providing 30 days’ written notice to the Customer.
(c) Termination will not affect any rights or obligations which may have accrued prior to termination.
16. CONSEQUENCES OF TERMINATION
(a) On the termination of the Agreement, the Agreement is at an end as to its future operation except for the enforcement of any right or claim that arises on, or has arisen before, the termination.
(b) Despite any other provision of the Agreement, on termination of the Agreement:
(i) all Purchase Orders (whether or not accepted by the Company at the time of termination) will be automatically cancelled, except to the extent otherwise directed in writing by the Company; and
(ii) the Customer must within 5 Business Days, pay the Company all amounts owing by the Customer to the Company, whether otherwise due at that time or not,
and otherwise this clause 16 and clauses 13, 14, 17, 18 and 20 survive termination of the Agreement.
17. INTELLECTUAL PROPERTY
(a) The Customer acknowledges and agrees that each Intellectual Property Right is owned or entitled to be owned by the Company.
(b) The Customer must:
(i) only use the Intellectual Property Rights in accordance with the reasonable written directions of the Company;
(ii) not license any of the Intellectual Property Rights to or allow the use of any of the Intellectual Property Rights by any other person in any circumstances;
(iii) immediately notify the Company of, and comply with the Company’s directions in relation to, any issue, claim, demand, threat, notice of proceedings or cause of action (whether contingent, accrued or otherwise) against or involving the Customer relating to any Intellectual Property Rights; and
(iv) do all other acts and things that may be reasonably required by the Company to ensure the protection of the Intellectual Property Rights.
18. USE OF INFORMATION
(a) The Customer acknowledges and agrees that he or she:
(a) If by any reason of any fact, circumstance, matter or thing beyond the reasonable control of a party, that party is unable to perform in whole or in part any obligation owing to the other, that party is relieved of that obligation to the extent and for the period that it is so unable to perform and is not liable to the other party in respect of such inability, however, an obligation to pay amounts owing by one party to the other will not be relieved under any circumstances.
(b) The construction, operation and performance of any contract subject to these Terms will be governed by the Laws of the State of Victoria and the parties accept the jurisdiction of the Courts of that State for resolution of any dispute arising out of or relating to the Agreement, its performance or subject matter.
(c) The Company may transfer all or any part of its rights, interests, obligations or liabilities under the Agreement by assignment or by novation.
(d) The Customer must not transfer, assign or otherwise dispose of, its rights and obligations under the Agreement without the prior written consent of the Company.
(e) The Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications between the parties.
(f) Each party acknowledges that, except as expressly stated in the Agreement and the Agreement, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of another party in relation to the subject matter of the Agreement.
(g) To the extent that there is any inconsistency between the Agreement and any other agreement (including the standard terms and conditions of the Customer), the Agreement will prevail.
(h) These Terms prevail to the extent of any inconsistency, over the terms of any Purchase Order or invoice or other arrangement between the parties and displace any contradictory terms or provisions.
(i) The Special Conditions prevail to the extent of any inconsistency over these Terms, the terms of any Purchase Order or invoice or other arrangement between the parties and displace any contradictory terms or provisions.
(j) No waiver of any provision of the Agreement or any agreement will be of any force or effect unless confirmed in writing and signed by the parties.
(k) The Company may set off any amount due for payment by the Company or the Sigma Group to the Customer against any amount due for payment by the Customer to the Company or the Sigma Group under the Agreement or any Sigma Agreement.
(l) Any provisions of the Agreement that are prohibited or unenforceable under the Laws of a jurisdiction will not apply in that jurisdiction and will not affect the validity or enforceability of the other provisions of the Agreement.
(m) Regardless of any prior agreements, upon closure of the Customer’s account, the sale of the Customer’s business, or a change in control of the Customer’s business, all of the Customer’s outstanding debts and obligations, including current and forward dated amounts, become due and payable immediately.
(n) The Company may amend these Terms from time to time by providing the Customer written notice of the amendments.