Terms & Conditions
MEDISPA SOLUTIONS WEBSITE TERMS AND CONDITIONS OF USE
- About the Website
(a) Welcome to www.medispasolutions.com.au (the ‘Website’). The Website provides you with an opportunity to browse and purchase various equipment and products that have been listed for sale through the Website (the ‘Products ‘). The Website provides this service by way of granting you access to the content on the Website (the ‘Purchase Services’).
(b) The Website is operated by Medispa Solutions Pty. Ltd. (ACN 166 853 943). Access to and use of the Website, or any of its associated Products or Services, is provided by Medispa Solutions. Please read these terms and conditions (the ‘Terms ‘) carefully. By using, browsing and/or reading the Website, this signifies that you have read, understood and agree to be bound by the Terms. If you do not agree with the Terms, you must cease usage of the Website, or any of Services, immediately.
(c) Medispa Solutions reserves the right to review and change any of the Terms by updating this page at its sole discretion. When Medispa Solutions updates the Terms, it will use reasonable endeavours to provide you with notice of updates to the Terms. Any changes to the Terms take immediate effect from the date of their publication. Before you continue, we recommend you keep a copy of the Terms for your records.
- Acceptance of the Terms
(a) You accept the Terms by remaining on the Website. You may also accept the Terms by clicking to accept or agree to the Terms where this option is made available to you by Medispa Solutions in the user interface.
- Registration to use the Purchase Services
(a) In order to access the Purchase Services, you must first register as a user of the Website. As part of the registration process, or as part of your continued use of the Purchase Services, you may be required to provide personal information about yourself (such as identification or contact details), including: your name, email address, mailing address, telephone number and other information required for us to effect the sale.
(b) You warrant that any information you give to Medispa Solutions in the course of completing the registration process will always be accurate, correct and up to date.
(c) Once you have completed the registration process, you will be a registered
member of the Website (‘Member ‘) and agree to be bound by the Terms. As a Member you will be granted immediate access to the Purchase Services.
(d) You may not use the Purchase Services and may not accept the Terms if:
i. you are not of legal age to form a binding contract with Medispa Solutions; or
ii. you are a person barred from receiving the Purchase Services under the laws of Australia or other countries including the country in which you are resident or from which you use the Purchase Services.
- Your obligations as a Member
(a) As a Member, you agree to comply with the following: You will use the Purchase Services only for purposes that are permitted by:
(i) the Terms;
(ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions;
(iii) you have the sole responsibility for protecting the confidentiality of your password and/or email address. Use of your password by any other person may result in the immediate cancellation of the Purchase Services;
(iv) any use of your registration information by any other person, or third parties, is strictly prohibited. You agree to immediately notify Medispa Solutions of any unauthorised use of your password or email address or any breach of security of which you have become aware;
(v) access and use of the Website is limited, non-transferable and allows for the sole use of the Website by you for the purposes of Medispa Solutions providing the Purchase Services;
(vi) you will not use the Purchase Services or Website for any illegal and/or unauthorised use which includes collecting email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorised framing of or linking to the Website;
(vii) you agree that commercial advertisements, affiliate links, and other forms of solicitation may be removed from the Website without notice and may result in termination of the Purchase Services. Appropriate legal action will be taken by Medispa Solutions for any illegal or unauthorised use of the Website; and
(viii) you acknowledge and agree that any automated use of the Website or its Purchase Services is prohibited.
- Purchase of Products and Returns Policy
(a) In using the Purchase Services to purchase the Product through the Website, you will agree to the payment of the purchase price listed on the Website for the Product (the ‘Purchase Price’).
(c) Following payment of the Purchase Price being confirmed by Medispa Solutions, you will be issued with a receipt to confirm that the payment has been received and Medispa Solutions may record your purchase details for future use.
(d) Medispa Solutions may, at their sole discretion, provide a refund on the return of the Products within 7 days where the Product packaging is unopened and remains in a saleable condition. You acknowledge and agree that you are liable for any postage and shipping costs associated with any refund pursuant to this clause.
(a) Medispa Solutions’s Products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure of the Product and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure (the ‘Warranty ‘).
(b) You may make a claim under this clause (the ‘Warranty Claim’) for material defects and workmanship in the Products within the manufacturer’s warranty period from the date of purchase (the ‘Warranty Period’).
(c) In order to make a Warranty Claim during the Warranty Period, you must provide proof of purchase to Medispa Solutions showing the date of purchase of the Products, provide a description of the Products and the price paid for the Products by sending written notice to Medispa Solutions at 47/9 Hoyle Ave, Castle Hill, New South Wales, 2154 or by email at firstname.lastname@example.org.
(d) Where the Warranty Claim is accepted then Medispa Solutions will, at its sole discretion, either repair or replace any defective Products or part thereof with a new or remanufactured equivalent during the Warranty Period at no charge to you for parts or labour. You acknowledge and agree that you will be solely liable for any postage or shipping costs incurred in facilitating the Warranty Claim.
(e) The Warranty shall be the sole and exclusive warranty granted by Medispa Solutions and shall be the sole and exclusive remedy available to you in addition to other rights and under a law in relation to the Products to which this warranty relates.
(f) All implied warranties including the warranties of merchantability and fitness for use are limited to the Warranty Period.
(g) The Warranty does not apply to any appearance of the supplied Products nor to the additional excluded items set forth below nor to any supplied Products where the exterior of which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been altered or modified in design or construction.
a. You acknowledge that Medispa Solutions may, at our sole discretion, offer to deliver a Product in our own vehicle, or Medispa Solutions may arrange Delivery Services through the use of third party delivery companies (the ‘Delivery Service Providers’) or you may arrange delivery of your item.
b. In providing the Purchase Services, Medispa Solutions does not automatically provide delivery services, but we may provide you with a variety of delivery options. You acknowledge and agree that Medispa Solutions is not the provider of Delivery Services (unless we agree to deliver a product in our own vehicle) and merely facilitates your interaction with the Delivery Service Providers in respect to providing the Delivery Services.
c. In the event that an item is lost or damaged in the course of the Delivery Services, Medispa Solutions you agree to:
(i) contact the Delivery Service Provider directly (or us if we delivered the item) to request a refund or to claim on any insurance options available; and
(ii) contact us by sending an email to info@MedispaSolutions.com.au outlining in what way the Products were damaged in transit so we are able to determine if the Delivery Service Provider should be removed from the Purchase Services.
- Copyright and Intellectual Property
a. The Website, the Purchase Services and all of the related products of Medispa Solutions are subject to copyright. The material on the Website is protected by copyright under the laws of Australia and through international treaties. Unless otherwise indicated, all rights (including copyright) in the site content and compilation of the website (including text, graphics, logos, button icons, video images, audio clips and software) (the ‘Content’) are owned or controlled for these purposes, and are reserved by Medispa Solutions or its contributors.
b. Medispa Solutions retains all rights, title and interest in and to the Website and all related content. Nothing you do on or in relation to the Website will transfer to you:
i. the business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright of Medispa Solutions; or
ii. the right to use or exploit a business name, trading name, domain name, trade mark or industrial design; or
iii. a system or process that is the subject of a patent, registered design or copyright (or an adaptation or modification of such a system or process).
c. You may not, without the prior written permission of Medispa Solutions and the permission of any other relevant rights owners: broadcast, republish, up-load to a third party, transmit, post, distribute, show or play in public, adapt or change in any way the Content or third party content for any purpose. This prohibition does not extend to materials on the Website, which are freely available for re-use or are in the public domain.
- General Disclaimer
a. You acknowledge that Medispa Solutions does not make any terms, guarantees, warranties, representations or conditions whatsoever regarding the Products other than provided for pursuant to these Terms.
b. Medispa Solutions will make every effort to ensure a Product is accurately depicted on the Website, however, you acknowledge that sizes, colours and packaging may differ from what is displayed on the Website.
c. Nothing in these Terms limits or excludes any guarantees, warranties, representations or conditions implied or imposed by law, including the Australian Consumer Law (or any liability under them) which by law may not be limited or excluded.
d. Subject to this clause, and to the extent permitted by law:
i. all terms, guarantees, warranties, representations or conditions which are not expressly stated in these Terms are excluded; and
ii. Medispa Solutions will not be liable for any special, indirect or consequential loss or damage (unless such loss or damage is reasonably foreseeable resulting from our failure to meet an applicable Consumer Guarantee), loss of profit or opportunity, or damage to goodwill arising out of or in connection with the Purchase Services or these Terms (including as a result of not being able to use the Purchase Services or the late supply of the Purchase Services), whether at common law, under contract, tort (including negligence), in equity, pursuant to statute or otherwise.
e. Use of the Website, the Purchase Services, and any of the products of Medispa Solutions , is at your own risk. Everything on the Website, the Purchase Services, and the Products of Medispa Solutions, are provided to you on an “as is” and “as available” basis, without warranty or condition of any kind. None of the affiliates, directors, officers, employees, agents, contributors, third party content providers or licensors of Medispa Solutions make any express or implied representation or warranty about its Content or any products or Purchase Services (including the products or Purchase Services of Medispa Solutions) referred to on the Website. This includes (but is not restricted to) loss or damage you might suffer as a result of any of the following:
i. failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records;
ii. the accuracy, suitability or currency of any information on the Website, the
Purchase Service, or any of its Content related products (including third party material and advertisements on the Website);
(iii) costs incurred as a result of you using the Website, the Purchase Services or any of the Products;
(iv) the Content or operation in respect to links which are provided for the User’s convenience;
(v) any failure to complete a transaction, or any loss arising from e-commerce transacted on the Website; or
(vi) any defamatory, threatening, offensive or unlawful conduct of third parties or publication of any materials relating to or constituting such conduct.
11 . Limitation of Liability
(a) Medispa Solutions’s total liability arising out of or in connection with the Purchase Services or these Terms, however arising, including under contract, tort (including negligence), in equity, under statute or otherwise, will not exceed the most recent Purchase Price paid by you under these Terms or where you have not paid the Purchase Price, then the total liability of Medispa Solutions is the resupply of information or Purchase Services to you.
(b) You expressly understand and agree that Medispa Solutions, its affiliates, employees, agents, contributors, third party content providers and licensors shall not be liable to you for any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by you, however caused and under any theory of liability. This shall include, but is not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation and any other intangible loss.
(c) Medispa Solutions is not responsible or liable in any manner for any site content (including the Content and Third Party Content) posted on the Website or in connection with the Purchase Services, whether posted or caused by users of the website of Medispa Solutions, by third parties or by any of the Purchase Services offered by Medispa Solutions.
- Termination of Contract
(a) The Terms will continue to apply until terminated by either you or by Medispa Solutions as set out below.
(b) If you want to terminate the Terms, you may do so by:
(i) notifying Medispa Solutions at any time; and
(ii) closing your accounts for all of the Purchase Services which you use,
where Medispa Solutions has made this option available to you.
(c) Your notice should be sent, in writing, to Medispa Solutions via the ‘Contact Us’ link on our homepage.
(d) Medispa Solutions may at any time, terminate the Terms with you if:
(i) you have breached any provision of the Terms or intend to breach any provision;
(ii) Medispa Solutions is required to do so by law;
(iii) the partner with whom Medispa Solutions offered the Purchase Services to you has terminated its relationship with Medispa Solutions or ceased to offer the Purchase Services to you;
(iv) Medispa Solutions is transitioning to no longer providing the Purchase Services to Users in the country in which you are resident or from which you use the service; or
(v) the provision of the Purchase Services to you by Medispa Solutions is, in the opinion of Medispa Solutions, no longer commercially viable.
(e) Subject to local applicable laws, Medispa Solutions reserves the right to discontinue or cancel your membership to the Website at any time and may suspend or deny, in its sole discretion, your access to all or any portion of the Website or the Purchase Services without notice if you breach any provision of the Terms or any applicable law or if your conduct impacts Medispa Solutions’s name or reputation or violates the rights of those of another party.
(f) When the Terms come to an end, all of the legal rights, obligations and liabilities that you and Medispa Solutions have benefited from, been subject to (or which have accrued over time whilst the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of this clause shall continue to apply to such rights, obligations and liabilities indefinitely.
(a) You agree to indemnify Medispa Solutions, its affiliates, employees, agents, contributors, third party content providers and licensors from and against:
(i) all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with any Content you post through the Website;
(ii) any direct or indirect consequences of you accessing, using or transacting on the Website or attempts to do so and any breach by you or your agents of these Terms; and/or
(iii) any breach of the Terms.
- Dispute Resolution
(a) Compulsory: If a dispute arises out of or relates to the Terms, either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
(b) Notice: A party to the Terms claiming a dispute (‘Dispute’) has arisen under the Terms, must give written notice to the other party detailing the nature of the dispute, the desired outcome and the action required to settle the Dispute.
(c) Resolution: On receipt of that notice (‘Notice’) by that other party, the parties to the Terms (‘Parties ‘) must:
(i) Within 14 days of the Notice endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree;
(ii) If for any reason whatsoever, 30 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the President of the NSW Law Society or his or her nominee;
(iii) The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation and without limiting the foregoing undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation;
(iv) The mediation will be held in Sydney, Australia.
All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
(e) Termination of Mediation:
If 6 months have elapsed after the start of a mediation of the Dispute and the
Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.
- Venue and Jurisdiction
(a) The Purchase Services offered by Medispa Solutions is intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of New South Wales, Australia.
- Governing Law
(b) The Terms are governed by the laws of New South Wales, Australia. Any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to the Terms and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of New South Wales Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. The Terms shall be binding to the benefit of the parties hereto and their successors and assigns.
- Independent Legal Advice
(a) Both parties confirm and declare that the provisions of the Terms are fair and reasonable and both parties having taken the opportunity to obtain independent legal advice and declare the Terms are not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.
(b) If any part of these Terms is found to be void or unenforceable by a Court of competent jurisdiction, that part shall be severed and the rest of the Terms shall remain in force.
TERMS OF TRADE
- Definitions and interpretation
Additional Charge means:
(a) fees or charges for additional work performed at the Customer’s request or reasonably required as a result of the Customer’s conduct, calculated in accordance with the Supplier’s then current prices; and
(b) expenses incurred by the Supplier, at the Customer’s request or reasonably required as a result of the Customer’s conduct.
Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.
Customer means the person identified on a Quote or Order as the customer and includes the Customer’s agents and permitted assigns.
Goods means any goods, products or equipment supplied by the Supplier including those supplied in the course of providing Services.
Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.
Loss includes, but is not limited to, costs (including party to party legal costs and the Supplier’s legal costs), expenses, lost profits, award of damages, personal injury and property damage.
Order means a purchase order for Goods or Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties.
PPS Law means:
(a) the Personal Property Security Act 2009 (Cth) ( PPS Act ) and any regulation made at any time under the PPS Act (each as amended from time to time); and
(b) any amendment made at any time to any other legislation as a consequence of a PPS Law.
Quote means a written description of the Goods or Services to be provided, an estimate of the Supplier’s charges for the performance of the required work and an estimate of the time frame for the performance of the work.
Services means the services to be provided by the Supplier to the Customer in accordance with a Quote and these terms of trade.
Supplier means Medispa Solutions Pty. Ltd. the entity specified as the supplier of Goods or Services on the Quote and includes the Supplier’s agents and permitted assigns.
In these terms of trade, unless the context otherwise requires:
(a) a reference to writing includes email and other communication established through the Supplier’s website medispasolutions.com.au;
(b) the singular includes the plural and vice versa;
(c) a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;
(d) a reference to a party to these terms of trade or any other document or arrangement includes that party’s executors, administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(f) headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and
(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) in all other cases, must be done on the next Business Day.
(a) These terms of trade apply to all transactions between the Customer and the Supplier relating to the provision of Goods and Services. This includes all quotations, contracts and variations. These terms of trade take precedence over terms of trade contained in any document of the Customer or elsewhere. You accept the Terms by making a purchase.
(b) The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
(c) The Supplier may amend any details in a Quote by notice in writing to the
Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
(a) The Supplier may provide the Customer with a Quote. Any Quote issued by the Supplier is valid for 14 days from the date of issue.
(b) Unless otherwise expressly agreed in writing, a Quote does not include delivery or installation of the Goods.
(c) Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to the Supplier.
(d) Following provision of a Quote to the Customer, the Supplier is not obliged to commence work until the Quote has been ac7cepted by the Customer. This occurs by the Customer completing an Order form and returning the form to the Supplier.
(e) The Supplier reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. The Supplier will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these terms of trade.
(f) An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon the Supplier.
(a) Every Order by the Customer for the provision of Goods or Services must be submitted in writing on the Supplier’s standard Order form (unless otherwise agreed).
(b) An Order will only be deemed to be placed by the Customer if the Order clearly identifies the Goods or Services ordered and the Supplier’s Quote. Any costs incurred by the Supplier in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.
(c) Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
(d) Placement of an Order by the Customer signifies acceptance by the Customer of these terms of trade and the most recent Quote provided by the Supplier relating to that Order.
(e) The Supplier may in its absolute discretion refuse to provide Goods or Services where:
(i) Goods are unavailable for any reason whatsoever;
(ii) credit limits cannot be agreed upon or have been exceeded; or
(iii) payment for Goods or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of the Supplier, associated with the Customer under the same or another supply contract, has not been received by the Supplier.
(f) An Order cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
(a) The Customer may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.
(b) If the Customer wishes to vary its requirements after a Quote has been prepared by the Supplier or after the placement of an Order, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by the Supplier in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.
(c) The Supplier has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.
- Invoicing and payment
(a) The Supplier may in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
(i) prior to commencing the provision of the Goods or Services, for an amount equal to the Quote and Additional Charges where the Supplier has not previously carried out work for the Customer or where the Supplier chooses to do so;
(ii) at the end of each week before the Order is completed, the Supplier may issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at the Supplier’s discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Goods or Services being provided; or
(iii) upon completion of the provision of the Goods or Services or any time thereafter, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the Supplier’s charge for the work performed in completing the Order and for any Additional Charges.
(b) The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
(i) the amount for the Goods or Services (or both) as set out in the Quote and any Additional Charges, or
(ii) where no Quote has been provided by the Supplier, the Supplier’s usual charges for the goods or services (or both) as described in the Order.
(c) The Customer must pay an invoice issued by the Supplier to the Supplier within 7 days of a valid tax invoice being issued to the Customer.
(d) If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods or Services until overdue amounts are paid in full.
(e) The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.
(f) The Customer is not entitled to retain any money owing to the Supplier notwithstanding any default or alleged default by the Supplier of these terms of trade, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
(g) The Customer is to pay the Supplier on demand interest at the rate of 10% per year on all overdue amounts owed by the Customer to the Supplier, calculated daily.
(h) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these terms of trade.
(i) The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.
- Additional Charges
(a) The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods or Services within the specified time frame (if any).
(b) The imposition of Additional Charges may also occur as a result of:
(i) cancellation by the Customer of an Order where cancellation results in Loss to the Supplier;
(ii) storage costs for Goods not collected from the Supplier within 4 weeks of the date on which the Goods are manufactured, fabricated, created or formed;
(iii) photocopying, courier, packing or handling charges not included in the Quote;
(iv) Government or council taxes or charges not included in the Quote; or
(v) additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer’s Order additional to the quoted cost.
- Acceptance of Goods
If the Customer fails to advise the Supplier in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 24 hours of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer’s Order. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.
- Title and risk
(a) Risk in Goods passes to the Customer immediately upon delivery.
(b) Property and title in Goods supplied to the Customer under these terms of trade does not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.
(c) Where Goods are supplied by the Supplier to the Customer without payment in full, the Customer:
(i) is a bailee of the Goods until property in them passes to the Customer;
(ii) irrevocably appoints the Supplier to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable law;
(iii) must be able upon demand by the Supplier to separate and identify as belonging to the Supplier Goods supplied by the Supplier from other goods which are held by the Customer;
(iv) must not allow any person to have or acquire any security interest in the Goods;
(v) agrees that the Supplier may repossess the Goods if payment is not made within 7 days (or such longer time as the Supplier may, in its complete discretion, approve in writing) of the supply of the Goods; and
(vi) the Customer grants an irrevocable licence to the Supplier or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies the Supplier for any damage to property or personal injury which occurs as a result of the Supplier entering the Customer’s premises.
(d) Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by the Supplier in respect of those Goods, and:
(i) the Customer makes a new object from the Goods, whether finished or not;
(ii) the Customer mixes the Goods with other goods; or
(iii) the Goods become part of other goods (New Goods), the Customer agrees with the Supplier that the ownership of the New Goods immediately passes to the Supplier. The Customer will hold the New Goods on trust for the Supplier until payment of all sums owing to the Supplier whether under these terms of trade or any other contract have been made. The Supplier may require the Customer to store the New Goods in a manner that clearly shows the ownership of the Supplier.
(e) For the avoidance of doubt, under paragraph 9(d), the ownership of the New Goods passes to the Supplier at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
(f) Despite paragraph 9(c), the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that:
(i) where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale, less any GST, on trust for the Supplier in a separate account, until all amounts owned by the Customer to the Supplier have been paid; or
(ii) where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to the Supplier upon the Supplier giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints the Supplier as its attorney.
(g) Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by the Supplier in respect of those Goods, the Customer acknowledges that the Supplier has a right to register and perfect a personal property security interest.
(i) a PPS Law applies or commences to apply to these terms of trade or any transaction contemplated by them, or the Supplier determines (based on legal advice) that this is the case; and
(ii) in the Supplier’s opinion, the PPS Law:
(A) does or will adversely affect the Supplier’s security position or obligations; or
(B) enables or would enable the Supplier’s security position to be improved without adversely affecting the Customer, the Supplier may give notice to the Customer requiring the Customer to do anything (including amending these terms of trade or execute any new Terms and Conditions) that in the Supplier’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 9(h)(ii)(A) or improve the security position as contemplated in paragraph 9(h)(ii)(B). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in the Supplier’s opinion the Supplier’s security position or obligations under or in connection with these terms of trade have been or will be materially adversely affected, the Supplier may by further notice to the Customer cancel these terms of trade. If this occurs, the Customer must pay to the Supplier any money owed to the Supplier by the Customer immediately.
- Intellectual Property Rights
(a) The Customer warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or Services or has a licence to authorise the Supplier to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Customer to the Supplier for the purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified the Supplier against all Losses incurred by the Supplier in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Customer.
(b) Unless specifically agreed in writing between the Supplier and the Customer, all Intellectual Property Rights in any works created by the Supplier on behalf of the Customer vest in and remain the property of the Supplier.
(c) Subject to payment of all invoices due in respect of the Goods or Services, the Supplier grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by the Supplier in connection with the provision of Goods or Services under these terms of trade for the purposes contemplated by the Order.
- Agency and assignment
(a) The Customer agrees that the Supplier may at any time appoint or engage an agent to perform an obligation of the Supplier arising out of or pursuant to these terms of trade.
(b) The Supplier has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the assignee agrees to assume any duties and obligations of the Supplier owed to the Customer under these terms of trade.
(c) The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of trade without the prior written consent of the Supplier.
- Default by Customer
(a) Each of the following occurrences constitutes an event of default:
(i) the Customer breaches or is alleged to have breached these terms of trade for any reason (including, but not limited to, defaulting on any payment due under these terms of trade) and fails to remedy that breach within 14 days of being given notice by the Supplier to do so;
(ii) the Customer, being a natural person, commits an act of bankruptcy;
(iii) the Customer, being a corporation, is subject to:
(A) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
(B) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;
(C) the entering of a scheme of arrangement (other than for the purpose of restructuring); and
(D) any assignment for the benefit of creditors;
(iv) the Customer purports to assign its rights under these terms of trade without the Supplier’s prior written consent; or
(v) the Customer ceases or threatens to cease conduct of its business in the normal manner.
(b) Where an event of default occurs, except where payment in full has been received by the Supplier, the Supplier may:
(i) terminate these terms of trade;
(ii) terminate any or all Orders and credit arrangements (if any) with the Customer;
(iii) refuse to deliver Goods or provide further Services;
(iv) pursuant to clause 9(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
(v) retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.
(c) In addition to any action permitted to be taken by the Supplier under paragraph 12(b), on the occurrence of an event of default all invoices will become immediately due and payable.
In addition to the express rights of termination provided in these terms of trade, a party may terminate these terms of trade by giving 7ti days written notice to the other party.
- Exclusions and limitation of liability
(a) The Customer expressly agrees that use of the Goods and Services is at the Customer’s risk. To the full extent allowed by law, the Supplier’s liability for breach of any term implied into these terms of trade by any law is excluded.
(b) All information, specifications and samples provided by the Supplier in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them
which do not substantially affect the Customer’s use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.
(c) The Supplier gives no warranty in relation to the Services provided or supplied. Under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
(i) any Goods or Services supplied to the Customer;
(ii) any delay in supply of the Goods or Services; or
(iii) any failure to supply the Goods or Services.
(d) Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.
(e) To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.
(f) The Customer acknowledges that the Goods or Services are not for personal, domestic or household purposes.
(g) The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, the Supplier’s liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.
(a) The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these terms of trade including.
(b) This includes, but is not limited to, any legal costs incurred by the Supplier in relation to meeting any claim or demand of any party legal costs for which the Supplier is liable in connection with any such claim or demand.
(c) This provision remains in force after the termination of these terms of trade.
- Force majeure
(a) If circumstances beyond the Supplier’s control prevent or hinder its provision of the Goods or Services, the Supplier is free from any obligation to provide the Goods or Services while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
(b) Circumstances beyond the Supplier’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
- Dispute resolution
(a) If a dispute arises between the Customer and the Supplier, the following procedure applies:
(i) A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.
(ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
(iii) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
(b) If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 14 Business Days (or other period as agreed).
(c) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Law Society of NSW before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the Law Society of NSW Guidelines which operate at the time the matter is referred to the Law Society of NSW. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these terms of trade. This paragraph survives termination of these terms of trade.
(d) Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of trade.
(e) The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
(a) These terms of trade are governed by the laws of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.
(b) These terms of trade and any Quotes and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms.
(c) These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.
(d) In entering into these terms of trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.
(e) If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.
(f) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.
(g) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; sent by fax to the fax number of the addressee specified in the relevant Quote, with acknowledgment of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
(h) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
(i) A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.