1. Definitions and interpretation
1.1. Definitions
Additional Charge means:
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:
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.
1.2. Interpretation
In these terms of trade, unless the context otherwise requires:
2. General
Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
3. Quotes
4. Orders
5. Special Order Equipment, Deposits and Customer Commitments
a. Where a Customer places an Order for equipment, machinery, devices, products or systems that are specially ordered, imported, allocated, reserved, manufactured, configured, customised or otherwise procured specifically for that Customer, the Order becomes binding upon acceptance by the Supplier, placement of an Order, execution of a Quote, issuance of an invoice, receipt of any deposit, part payment or other consideration from the Customer, whichever occurs first.
b. The Customer acknowledges that the Supplier may incur costs and obligations in ordering, importing, reserving, allocating, storing, financing, configuring and holding such equipment on behalf of the Customer.
c. Once an Order has been accepted and equipment has been ordered, imported, allocated, reserved or otherwise procured for the Customer, the Customer may not cancel, withdraw from, abandon, terminate or otherwise fail to complete the transaction without the prior written consent of the Supplier.
d. Any deposit, progress payment, instalment payment or monies paid by the Customer may be retained by the Supplier and applied towards losses, costs, storage, administration, depreciation, financing costs, lost opportunity, cancellation costs, legal costs and any other damages suffered by the Supplier arising from the Customer’s cancellation, withdrawal, delay or failure to complete the transaction.
e. Where the Supplier elects to accommodate requests by the Customer to defer delivery, alter equipment selections, amend trade-in arrangements, consider alternative equipment options, place equipment on hold, suspend delivery, or otherwise vary the original transaction, such accommodation shall not constitute a cancellation of the original Order, a waiver of the Supplier’s rights, or create any entitlement to a refund.
f. Unless otherwise agreed by the Supplier in writing, all monies paid by the Customer remain attached to the original transaction and may be applied by the Supplier towards completion of that transaction or any agreed replacement transaction.
g. A change of mind by the Customer, changes in business circumstances, changes in financial position, reduced customer demand, alternative purchasing decisions, the purchase of competing equipment, staffing changes, relocation of business, closure of business or any other commercial decision by the Customer shall not create any entitlement to a refund.
h. Where equipment has been ordered, imported, allocated, reserved or procured specifically for the Customer and the Customer subsequently refuses, delays or fails to complete the transaction, the Supplier may continue to hold the equipment for delivery, require completion of the original transaction, recover any losses suffered, retain monies paid and exercise any other rights available under these Terms of Trade or at law.
i. The Customer acknowledges that equipment ordered, imported, allocated or reserved specifically for the Customer is not held as general stock and may have been acquired by the Supplier in reliance upon the Customer’s commitment to proceed with the transaction.
j. The Customer acknowledges and agrees that payment of any deposit, progress payment, invoice or part thereof constitutes confirmation of the Customer’s commitment to proceed with the transaction and acceptance of these Terms of Trade.
6. Variations
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.
7. 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:
b. The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
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.
8. Additional Charges
9. 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 4 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.
10. Title and risk
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.
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.
11. Intellectual Property Rights
12. Agency and assignment
13. Default by Customer
14. Termination
In addition to the express rights of termination provided in these terms of trade, a party may terminate these terms of trade by giving 7 days written notice to the other party.
15. Exclusions and limitation of liability
16. Indemnity
17. Force majeure
18. Dispute resolution
19. Miscellaneous
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