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SERVICE CALL CONDITIONS
TERMS AND CONDITIONS OF SALE
PARTIES
OPHTHALMOPRO PTY LTD in the State of Victoria, Australia (“seller”)
AND
You the Buyer (“buyer”)
RECITALS
A. The seller is a supplier of the goods received (‘goods’).
B. The buyer wishes to buy goods from seller by orders placed from time to time.
C. The seller has agreed to sell and buyer has agreed to buy goods on the terms and conditions set out in this agreement.
THE PARTIES AGREE
1. Agreement to buy and sell
In consideration of payment of the amount specified by the seller to the buyer (“price’) by the buyer to the seller when the seller is ready willing and able to deliver the goods, the seller sells and the buyer buys the goods on the terms and conditions of this agreement.
2. Placement of orders
The buyer must order goods from the seller in writing and each order must specify:
(1) the date of the placement of the order;
(2) the quantity and description of the goods ordered; and
(3) the delivery location
3. Delivery of orders
The seller must deliver each order to the location detailed on the buyer’s order (‘premises’) between the hours of 9 am to 5 pm on any day Monday to Friday which is not a public holiday.
4. Payment of Other Expenses
4.1 The buyer must pay all and any import duties, levies or imports or any goods and services tax (GST), sales, transaction, use, excise, gross receipts, value added, property or other taxes or duties of any kind whatsoever assessed upon or relating in any way to the goods ordered by the buyer irrespective of:
(a) the person, nation, state or authority requiring payment of these taxes or duties; or
(b) the person who is primarily liable to pay such taxes or duties under the law of the place where the tax or duty is payable; or
(c) any eligibility of the buyer for any refund or drawback for such taxes or duties. 4.2 If the seller is not paid for any goods on the due date specified in this agreement, without prejudice to any other right or remedy:
(a) all outstanding money carries interest on daily balances until paid at a rate of interest per annum equal to Five Percent (5%) in excess of the interest rate charged by The Commonwealth Bank of Australia on overdraft accounts for sums up to $100,000 Australian dollars; and
(b) the seller may recover the price of the goods together with all interest forthwith from the buyer as a liquidated debt in a court or tribunal of competent jurisdiction irrespective of any claim that the buyer may have against the seller for any thing or matter related to the goods delivered under this contract.
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5. Title to Goods
Title to the goods does not pass to the buyer until payment in full is received by the seller from the buyer and the buyer must:
(1) store goods which have not been paid for separately;
(2) keep separate records in relation to the proceeds of the sale of any goods which have not been paid for, bank the proceeds of any such sale into a separate account and immediately remit such funds to the credit of the seller;
(3) insure the goods for their full replacement value with an insurer licensed to conduct the business of insurance in the place the goods are kept; and
(4) if any goods are used in a manufacturing process or mixed with other materials, the buyer must record the value of goods so consumed in relation to each unit of finished product and upon sale of any unit of finished product immediately remit that amount from the proceeds of sale to the seller.
If the buyer does not pay for any goods on the due date specified in this agreement the seller is irrevocably authorised by the buyer to enter the buyer’s premises (or any premises under the control of the buyer or as agent of the buyer if the goods are stored at such premises) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the buyer or anyone claiming through the buyer whatsoever.
6. Passing of risk
Risk in the goods passes to the buyer upon delivery of the goods to the buyer or collection of the goods by the buyer’s agent or courier as the case may be.
7. Manufacturer’s Warranty
The warranty provided by the manufacturer of these goods is the only warranty that applies to the goods. The seller does not provide any separate or further warranty to the buyer for the goods.
8. Exclusion of Liability
8.1 The buyer acknowledges that:
(a) prior to execution of this agreement the buyer conducted a thorough examination of the goods;
(b) no warranty, condition, description or representation in relation to the goods is given by the seller, expressly or impliedly by this agreement or outside this agreement, except as specified herein; and
(c) all warranties, terms and conditions in relation to the state, quality or fitness of the goods and of every other kind whether expressed or implied by use statute or otherwise is excluded. 8.2 The law implies terms, conditions and warranties (‘prescribed terms’) into contracts for the supply of goods and services and prohibits the exclusion, restriction or modification of certain terms, conditions and warranties. Some prescribed terms permit a supplier to limit its liability for a breach of the prescribed terms. Except as provided by prescribed terms:
(1) the liability of the seller in respect of a breach of a prescribed term or any loss or damage relating to the products or any part of the products is limited at the option of the seller to the replacement or repair of the products part thereof or payment of the cost of repairing or replacing the products or any part of the products;
(2) In these conditions the buyer does not have under any circumstances any cause of action against or right to claim or recover from the seller for, or in respect of, any loss or damage of any kind whatsoever, caused directly or indirectly by: (a) any defect in material or workmanship of, or any other defect whatsoever in, or unsuitability for, any purpose of the products or any part of the products;
(b) by default or negligence on the part of the seller or of any employee, contractor or agent of the seller or of any person for whom the seller has legal responsibility relating to the supply or installation of, or otherwise concerning products or any part of the products; or
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(c) the performance of the products or any breach of these conditions.
8.3 These terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the products or any part of the products including, but without limiting the generality of the foregoing, those relating to the performance of the products or any part of the products or the results that ought to be expected from using the product.
8.4 The total liability of the seller for loss or damage of every kind:
(a) whether arising pursuant to this agreement; or
(b) out of or in relation to the goods, their sale, delivery or the way they behave, in tort or contract or in any other cause of action; or in any other way whatsoever,
is limited to the amount paid by the buyer to the seller under this agreement at the date when such liability arises.
8.5 Subject to cl 8.6 and to the extent permitted by the Trade Practices Act and relevant state legislation, the sole obligation of the seller under this agreement is to use its best endeavours to provide the products or to repair the products or repair or replace (at the seller’s discretion) any part of a product which is found to be defective during the period the manufacturer warrants the parts to the seller or the buyer through the seller from delivery and in no event shall the seller be liable for any other claims or damages including, but not limited to, claims for faulty design, negligent or misleading advice, damages arising from loss or use of the products, and any indirect, special or consequential damages or injury to any person, corporation or other entity.
8.6 If any products supplied pursuant to this agreement are supplied to the buyer as a ‘consumer’ of goods or services within the meaning of that term in the Trade Practices Act 1974 as amended or similar state legislation the consumer will have the benefit of certain non-excludable rights and remedies in respect of the products or services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the Trade Practices Act or similar legislation is so conferred. However, if the product is a product not ordinarily acquired for personal, domestic or household use or consumption pursuant to s 68A of the Trade Practices Act and similar provisions of relevant state legislation, the seller limits its liability to payment of an amount equal to the lowest of:
(1) the cost of replacing the goods;
(2) the cost of repair of the goods;
(3) the cost of having the goods repaired or replaced. 8.7 The buyer indemnifies on a continuing basis on a fully indemnity basis the seller from and against any liability, loss, expense or demand for or arising from any false, misleading, deceptive or misdescriptive representation or statement made by the buyer in respect of the products to any person. This indemnity survives termination of this agreement by either party for any reason.
8.8 If the buyer is providing the server computer the seller shall not be liable for any loss of information or consequential monetary or other loss of the buyer due to the non-compatibility of the server with the goods or any other action or inaction of the seller or fault of the goods. The seller shall however if at fault replace the server with a server of similar compatibility to the one damaged or destroyed but the buyer shall be responsible for the transfer of data and software to the new server.
9. No Waiver
9.1 The failure of the seller to enforce the provisions of this agreement or to exercise any rights expressed in this agreement is not a waiver of such provisions or rights and does not affect the enforcement of this agreement.
9.2 No waiver under cl 9.1 operates as an estoppel against the party who seeks to rely on cl9.1.
9.3 The exercise by the seller of any of its rights expressed in this agreement does not preclude or prejudice the seller from exercising the same or any other rights it may have irrespective of any previous action taken by the seller.
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10. Force Majeure
Where the seller is unable, wholly or in part, by reason of an act of God, strike, lockout or other interference with work, war declared or undeclared, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi-governmental restraint, expropriation prohibition intervention direct or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals consents permits licences authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the seller affect (‘force majeure’), to carry out any obligation under this agreement and the seller:
(1) Gives the buyer prompt notice of that force majeure with reasonably full particulars thereof, and, insofar as known, the probable extent to which it will be unable to perform or be delayed in performing that obligation; and
(2) Uses all possible diligence to remove that force majeure as quickly as possible;
That obligation is suspended so far as it is affected by force majeure during the continuance thereof provided that:
(3) an obligation to pay money is never excused by force majeure;
(4) the requirement that any force majeure shall be removed with all possible diligence shall not require the settlement of strikes, lockouts or other labour disputes, or claims or demands by any government on terms contrary to the wishes of the seller affected.
11. Warranties and Representations
The buyer acknowledges that the seller does not make under this agreement or outside of it any representations or warranties regarding the products or any matter which is or might be relevant to the buyer or selling of the products other than the representations or warranties expressed in this agreement.
12. Delivery, Cancellation, Restocking fee charges
12.1 Delivery shall be made at the place indicated in the contract. If no place is indicated, delivery shall be made at the Company’s premises where the goods are to be forwarded to the Customer directly therefrom. The Company will take all reasonable steps to make delivery at the time requested by the Customer but shall not be responsible for any loss whatsoever sustained by the Customer for delay in delivery
12.2 In the event that the Customer cancels any orders subsequent to despatch by the Company to the Customer (regardless of whether or not said order has been delivered to the Customer), the Company will credit the Customer for the order value less the restocking fee on return in saleable condition of the items ordered provided such return is within 7 days of despatch. Freight charges will not be credited
12.3 Unless agreed in writing by the issuance of a Goods Return Authority from the Company, no goods will be accepted for credit after despatch. If the Company agrees to accept the goods for credit, the Company will credit the Customer the invoice value less the restocking fee, less freight charges, on return of the items in saleable condition. No goods will be accepted for credit more than 30 days from the date of invoice. If any packaging is broken or equipment has been used, the goods will not be accepted for credit. Freight charges will not be credited.
12.4 Restocking Fee: All goods ordered in error by the Customer or goods the Customer wishes to return are subject to a restocking fee. This fee is 7.5% of the goods sale value.
13. Delivery and Delays in Performance
13.1 Delivery dates are approximate. The Customer shall be responsible for the unloading of goods that may require the use of a fork lift, trolley or similar. Time for delivery shall not be the essence of the contract unless expressly agreed by the parties. The seller is not liable for delays in performance of any of our obligations under this Agreement (including delivery) due to a cause beyond the seller’s reasonable control. Partial deliveries shall be permitted under these terms.
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13.2 If the buyer requests a later delivery date within 45 days before the mutually agreed scheduled delivery date, the seller may, at their option, deliver the products to a storage facility designated by the buyer, or, if the buyer fails to designate a storage facility, to a storage facility designated by the seller, at the buyer’s expense. At the time of such delivery, the seller will bill the buyer for and the buyer will pay the seller for any amounts due upon delivery. If the buyer fails to schedule a delivery date with the seller within 6 months after order entry, the seller may, at its option, cancel your order upon written notice to you.
14. Pre-Installation Responsibilities and Final Assembly
14.1 The buyer is responsible for preparing the place where the products are to be located ready for installation. This includes direct access for goods placement. Direct access involves little or no lifting of goods, clear access through doorways as well as no steps, stairwells or similar . This will be in compliance with all applicable environmental, safety and other regulations and laws. Unless otherwise agreed in writing by the seller, installation of the products will not begin until the buyer’s responsibilities have been completed. If the buyer does not properly complete these responsibilities, there may be delays in delivery of the goods and/or product performance issues that are not covered by the seller’s warranties. The buyer has to pay and be responsible for any non-seller employees whom the buyer uses or direct the seller to use for installation or assembly.
14.2 Should installation be included as part of goods being sold, it shall include the following;
a) Unpacking of goods
b) Field assembly of goods
c) Interconnection of cables and or wiring,
d) Equipment calibration
e) Electrical safety tests
Installation shall be performed during the seller’s normal working week, excluding holidays. Where goods are unable to be installed by direct access the buyer will be responsible for additional charges see 14.1.
15. Confidential Information
The product pricing, terms of sale and other information contained in the seller’s Quotation or Order Confirmation or disclosed by the seller pursuant to this Agreement is confidential. The buyer may not disclose such pricing, terms and other information to any other party without the seller’s prior written approval, except for any legally required disclosures. The seller reserves the right to enforce these confidentiality restrictions against any party who wrongfully discloses, receives and/or further disseminates the seller’s confidential information.
The seller will treat patient information as confidential and comply with any applicable laws concerning the confidentiality of patient information.
16. Service Material and Data Access 16.1 In connection with the installation, configuration, maintenance, repair and/or de-installation of products, the seller may deliver to the buyer’s Site, along with the products or separately, and store at the buyer’s Site, attach to or install on the products, and use, materials that have not been purchased by or licensed to the buyer. The buyer hereby consents to:
(a) this delivery, storage, attachment, installation and use;
(b) the presence of the seller’s locked cabinet or box on the buyer’s Site for storage of this property; and
(c) the seller’s removal of all or any part of this property at any reasonable time, all without charge to the seller.
The presence of this property within the buyer’s Site will not give the buyer any right or title to this property or any licence or other right to access, use or decompile this property. Any access to or use of this property (except in compliance with the seller’s written directions to the buyer to determine product performance on the seller’s behalf) and any decompilation of this property by
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anyone other than the seller’s personnel is prohibited. The buyer agrees that it will use reasonable efforts to protect this property against damage or loss and to prevent any access to or use or decompilation of this property contrary to this prohibition.
16.2 The buyer agrees to permit the seller to connect to the products, or to otherwise access data related to the products, to allow the seller to gather, aggregate, compile, and use products and resource usage data in various ways including quality initiatives, benchmarking and reporting services. The data collected by the seller will be used, during and after the term of this Agreement, in a manner that will maintain patient and customer level confidentiality.
17. Changes to Product
The seller reserves the right to make minor changes to the materials specification and/or design of the Equipment without notice provided that such minor changes shall not substantially adversely affect the operation of the Equipment.
18. Price Changes
If any change shall occur after the date of this Agreement in any of the prices of or rates for materials, labour, transport or any other items which the seller has to pay for or in connection with the performance of the Agreement the seller may vary the price accordingly, such variation to be notified to the buyer by the seller in writing. All prices are exclusive of GST. In the event of additional tax and/or other Federal or State Government impost being brought in force before delivery of the Equipment which the seller has to pay or collect the price shall be varied accordingly.
19. Default
The seller may suspend delivery of the products or performance of any services to the buyer if:
(1) the buyer is in default of any obligations under any contract of purchase to which these Terms and Conditions of Sale relate;
(2) the buyer is or becomes (or the seller has reason to believe that the buyer has or may become) insolvent or unable to pay its debts when they fall due; or
(3) any change in those exercising effective control of the buyer occurs.
In any such event, the seller may require the buyer to pay immediately obligations that are payable at a future date in respect of products or services already delivered or performed.
20. Severability
If any part of this Agreement is found invalid, the remaining part will be effective.
21. Dispute Resolution
The rights and obligations of the parties in connection with this contract or any sale of goods or services covered by these terms and conditions are governed by the law of Victoria and the parties submit to the jurisdiction of the courts of Victoria.
ABN: 63 795 078 088
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Terms & Conditions
