Terms and Conditions
Territory Surgical Supplies Pty LTD
Last amended 13 April 2016
These terms and conditions (‘Terms’) apply whenever Territory Surgical Supplies Pty LTD (TSS) supplies any products (‘Goods’) to any person (‘the customer), unless expressly agreed otherwise in writing. By requesting the supply of Goods from TSS, the customer acknowledges and agrees to the Terms.
- SALE AND PURCHASE
1.1 TSS agrees to sell and the customer agrees to purchase the Goods referred to on a purchase order issued by the customer and accepted by TSS.
1.2 The customer cannot cancel any purchase order for Goods after issue and is bound to pay the price for those Goods, unless TSS expressly agrees otherwise in writing.
2.1 Payment for the Goods is due in full, without deduction, withholding or set-off of any kind, twenty one days from the date of the statement issued by TSS. Payment by Credit or Charge Card will be accepted provided arrangement has been made to do so prior to purchase. Credit or Charge Cards may not be used to pay accounts that are overdue unless the customer agrees to pay the merchant fees applicable.
2.2 Interest may be charged on amounts that are overdue from the due date for payment until payment in full and will be calculated at the Commonwealth Bank overdraft index rate ruling at the time.
3.1 Unless specified on the invoice, all prices are exclusive of goods and services tax (if any) chargeable under the ‘A New Tax System (Goods and Services Tax) Act 1999 (Cth), (‘GST’). GST is payable by the customer at the same time as the price for the relevant Goods.
3.2 Unless otherwise agreed in writing, the price charged shall be the price ruling at the time of placing the order. Verbal quotations are not binding on TSS. Written quotations are only valid for one calendar month unless otherwise stated.
TSS may vary its prices at any time without notice.
4.1 Any capital equipment sold as agent or under licence by TSS has a three (3) month warranty against defects subject to:
- Defects must have arisen from faulty materials or workmanship.
- Defects must not have arisen due to accident, alteration, abuse, misuse, interference, or excessive wear and tear.
- Accessories used with the Goods must be approved by TSS.
4.2 Except as set out in these Terms or otherwise expressly agreed in writing, all conditions, representations, warranties, terms and undertakings, whether express or implied, are excluded to the maximum extent permitted by law, but TSS will endeavour to provide the customer with the benefit of any warranty TSS receives from the supplier or manufacturer of the Goods.
4.3 Returns of faulty capital equipment under warranty will be actioned by repair or replacement by/from the manufacturer/ supplier. Only under instruction from the manufacturer/supplier will the price of the Goods be credited.
4.4 Non warranty repairs may be returned for inspection before being passed on to an appropriate repairer should this be found necessary. No repairs will be carried out directly by TSS. Repairs will be invoiced at cost with the addition of a fee (minimum fee $25) covering the inspection, handling, and freight of the item. No guarantee of prompt return can be offered as the repair is not carried out by TSS, though TSS will try to minimise any delays
. 5. RETURNS
5.1 If the customer is unhappy with the goods provided, has received the incorrect Goods, or has a return for some other reason, then (subject to clause 5.2) these Goods may be accepted for return only when a Return Goods Authorisation (RGA) number has been requested and authorised by TSS Customer Service personnel for those Goods. When applying for an RGA, the original invoice number is required to be quoted. All returned goods are to be properly packed, clearly labelled with the RGA number, and returned via TSS’s nominated means.
5.2 Returns will not be accepted for credit if:
- The Goods were delivered more than 24 hours prior to the request for return.
- The Goods returned are incomplete, or have been used.
- The Goods are received by TSS in a damaged or re-saleable condition, or are not in their original unopened packaging.
- The Goods were not stored and/or shipped as per the manufacturer’s or TSS’s recommendations.
- The Goods are not normal TSS stock items and have been procured by TSS to meet a specific customer requirement.
- The Goods are not returned to TSS’s nominated warehouse
- The Goods are cold chain category products.
5.3 Any claim that Goods are defective or do not correspond with any order must be made by the customer to TSS within 24 hours of delivery. (or, in the case of cold chain products, on the day of delivery) or that claim will be waived and TSS will not have liability in respect of such Goods.
5.4 If the reason for the return was not the fault of TSS or if the Goods are otherwise not entitled to be returned for credit, then a restocking fee (minimum fee $30) may apply, together with any other charges (including freight) incurred by TSS in connection with such return and any handling fee included within the price may not be refunded or credited.
- DELIVERY AND RISK
6.1 The risk in the Goods shall pass to the customer immediately upon delivery or, where the customer is to arrange delivery, when the Goods are made available for collection by the customer.
6.2 Any time stated for delivery is an estimate only. TSS is not liable for any delay in delivery (howsoever caused), nor for any failure to deliver caused by the customer’s failure to provide TSS with adequate delivery instructions or any other instructions relevant to the supply of the goods. Any such delay or failure does not give the Customer a right to reject the goods.
6.3 TSS will endeavour to inform the customer if there are any unexpected delays to delivery and whether the fault of TSS or otherwise. This however may not always be possible and shall not be an admission of liability of any sort on the part of TSS.
7.1 The property in Goods shall not pass from TSS until the customer’s indebtedness to TSS pursuant to any invoices from TSS to the customer is paid in full. Until such payment in full is made the customer shall keep the Goods for and on behalf of TSS in its capacity as a fiduciary and subject to these terms.
TSS authorises the customer to sell or use the Goods, in the ordinary course of the customer’s business, as TSS’s fiduciary agent for the account of TSS only. The proceeds of sale are the property of TSS and the customer shall hold such proceeds for and on behalf of TSS in a fiduciary capacity. The customer shall pay such proceeds of sale into a separate account for and on behalf of TSS and shall keep separate records as to the Goods sold and as to the amounts received. This authority to sell and use the Goods is revoked immediately if a customer default occurs (as described below) or if TSS revokes that authority in writing.
7.2 The customer shall ensure that the Goods are stored in such a way that they do not become spoilt or damaged, are clearly identifiable as the property of TSS and are not intermingled with the property of the customer or of any other person. The customer shall not in any way alter or treat the Goods so as to change the quality or nature in any way so that they can not be distinguished until such time as full payment has been made as aforesaid. The customer shall
notify TSS in writing of any intended sale of the customer’s business, which includes or purports to include the Goods as part of the customer’s property. Until payment to TSS in full, the customer shall grant any security interest over, lease, assign or otherwise deal with the Goods, except as permitted by these Terms or with the written consent of TSS.
- PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
The customer acknowledges that these Terms constitute a security agreement which creates a security interest under the Personal Property Securities Act 2009 (Cth) (‘PPSA’) in favour of TSS in all Goods and their proceeds supplied by TSS to the customer at any time to secure the payment of all amounts, and the performance of all obligations, owing by the customer to TSS in connection with any such Goods. The customer agrees, at its cost, to provide such information, sign such documents and do such other things as TSS may require in order to enable TSS to register and perfect that security interest and obtain and maintain a first ranking priority position over the Goods and their proceeds. To the maximum extent permitted by applicable law, the parties agree that:
- the customer waives any right to receive a verification statement under the PPSA in respect of the security interest created by these Terms; and
- the customer waives and, with TSS’s agreement contracts out of, the customer’s rights under sections 95, 96, 118, 121(4), 125, 129, 130, 132(3)(d), 132(4), 135. 142 and 143 of the PPSA.
Terms defined in the PPSA shall have the same meaning when used in this clause.
- CUSTOMER DEFAULT
- The customer breaches any provision of these Terms (or any other agreement with TSS);
- The customer suffers any bankruptcy or insolvency event (including the appointment of any liquidator, receiver, administrator or similar officer in respect of the customer or any of its assets; any resolution is passed, proceedings filed or order made for the liquidation, receivership, administration, bankruptcy, winding-up or dissolution of the customer; the customer enters into any compromise or arrangement with its creditors; or any analogous event under the laws of any applicable jurisdiction); or
- any event occurs or information becomes known to TSS which, in TSS’s opinion, might materially affect the customer’s creditworthiness, the value of the Goods or the customer’s ability or willingness to comply with its obligations under these Terms (or any other agreement with TSS), then without limiting any other right or remedy TSS may have, TSS may at any time without notice:
- suspend or terminate any or all existing and future contracts with the customer for the supply of Goods and claim damages from the customer for all losses, including without limitation packaging, storage or demurrage costs, loss of profits and any reduction in value of the Goods;
- suspend, cancel or vary any credit terms and require immediate payment of any or all amounts outstanding;
- enter on any premises where the Goods are located and take possession of and remove the Goods; and/or
- re-sell or dispose of the Goods in any manner the Company sees fit.
9.2 The customer irrevocably authorises TSS, its agents and contractors to enter on to the customer’s premises without notice in order to exercise its rights under these Terms following a customer default as described above. The customer must procure all other consents and rights necessary to enable, and to indemnify TSS (and its agents and contractors) from and against any liability incurred in connection with, the exercise by TSS of such rights.
9.3 The customer will pay on demand all costs (including legal costs on a solicitor/client basis) incurred by TSS in
connection with any default by the Customer, any recovery or attempted recovery of any amount owed by the customer, or any other enforcement action taken by TSS in connection with these Terms.
10.1 Consumable medical and surgical supplies: All orders with a value exceeding TSS’s “Handling Free Threshold” will be delivered free of handling charges into the local metropolitan area. Orders less than this threshold will attract a handling charge. The Handling Free Threshold and handling charge may be varied from time to time by TSS without notice. TSS’s customer service staff can advise the customer of the applicable threshold and charges on request. All orders outside the metropolitan area will be subject to handling charges which will be invoiced with the Goods. Customer requests for urgent orders may be subject to additional freight and handling costs.
10.2 Bulk items, Equipment and Furniture: The customer shall pay the cost of any freight and or handling costs associated with the delivery of bulk items, equipment or furniture.
10.3 Cold Chain: These products may attract additional handling charges, whether or not the Handling Fee Threshold has been met.
11.1 To the maximum extent permitted by law, TSS’s liability for any defect in the goods or their supply (including any breach of warranty) is limited, at TSS’s option, to repairing or replacing the Goods (or supplying equivalent goods) or paying the cost of repairing or replacing the Goods or supplying equivalent goods.
11.2 TSS will not in any circumstances be liable for any consequential, special or indirect loss or damage or for any loss of profit, savings or goodwill.
- FORCE MAJEURE
TSS will not be liable, and the customer will not be entitled to cancel any purchase order, for any delay or failure by TSS to perform its obligations under these Terms caused by any event or circumstance beyond TSS’s reasonable control (including fire, accident, earthquake, flood, drought, crime, war, blockade, civil commotion, epidemic, strike, lockout or labour dispute, shortage of fuel, power or raw material, inability to procure stock or transport, or acts or omissions by regulatory authorities).
13.1 TSS may, in accordance with applicable law, collect and hold personal information about the customer from any source TSS considers appropriate for the purposes of providing credit to the customer, including the administration and management of the customer’s accounts with TSS; market research; marketing TSSs goods and services (or those of its related companies); and any other purpose relating to these Terms. The customer authorises TSS to:
- disclose the customer’s personal information to any third party; and
- transfer the customer’s personal information to any country, in connection with any of the purposes set out above.
13.2 The customer has a right of access to, and may request correction of, personal information held by TSS about the customer.
14.1 Nothing contained in these terms and conditions shall exclude or modify the application of any condition, warranty or liability which is imposed by the provisions of any relevant legislation to the extent to which any such conditions, warranties or liabilities can not lawfully be excluded.
14.2 The customer will no later than 14 days prior to any proposed change of ownership, change in its particulars, and any alteration or addition to shareholders or directors, notify TSS in writing of the proposed change.
14.3 The proper law relating to the supply of the Goods is the law of the State of the Northern Territory of Australia, and TSS and the customer agree to submit to the jurisdiction of the Courts of that State.
14.4 Unless TSS agrees in writing, no waiver, variation or addition to these terms shall have any effect whatsoever. TSS may vary these Terms from time to time. Any such variation will be effective from the date specified by TSS in any written notice provided to the customer. By requesting, or continuing to request, any Goods after such effective date, the customer accepts and agrees to be bound by such variation.
14.5 These Terms constitute the entire agreement between the parties for the supply of the Goods and supersede and exclude any previous representation, agreement, arrangement or correspondence on the matter, any terms or documents submitted by the customer and any terms implied by trade, custom, practice or course of dealing.
14.6 TSS may assign any of its rights and obligations to any person. The customer may not assign any of its rights and obligations to any person without the prior written consent of TSS.
14.7 The United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) shall not apply to the intended sale and purchase of the Goods covered within this agreement.