Terms of service
Terms and Conditions of Sale
1. Terms of Contract
1.1 This contract for the sale of goods by SURGICAL AND MEDICAL SUPPLIES PTY LTD shall to the extent permitted by law be only upon the terms herein stated.
1.2 These terms supersede any previous communications, representations or agreements between the parties whether oral or written regarding the subject matter of the contract.
1.3 Any additional or different terms, including terms in any purchase order or other document now or hereafter submitted by the purchaser will be of no effect unless expressly agreed to in writing by SURGICAL AND MEDICAL SUPPLIES PTY LTD.
2. Quotations and Orders
2.1 Quotations are valid for a period of thirty days from the date thereof and thereafter will be subject to written confirmation.
2.2 No order shall be binding on SURGICAL AND MEDICAL SUPPLIES PTY LTD or deemed to be accepted unless accepted in writing. Part delivery of an order not confirmed in writing shall not constitute acceptance of the whole order.
3. Changes to Goods
3.1 SURGICAL AND MEDICAL SUPPLIES PTY LTD may change the appearance, dimensions, construction or design of the goods without notice to the purchaser so long as their function and performance are not substantially altered.
4. Prices
4.1 Unless otherwise stated, all prices quoted are ex store. Freight and installation if applicable, will be an additional charge. The amount payable to SURGICAL AND MEDICAL SUPPLIES PTY LTD shall be the price, any additional charges plus any Goods and Services Tax payable.
4.2 If the costs payable by SURGICAL AND MEDICAL SUPPLIES PTY LTD in respect of labour, materials, freight, insurance, duties, levies or prices quoted to SURGICAL AND MEDICAL SUPPLIES PTY LTD by suppliers, shall be varied from the respective costs or prices ruling at the date of quotation, the prices quoted shall be varied up or down, as the case may be, by the same amount by which actual costs have been increased or decreased as a result of any such variation.
4.3 Except for goods ex stock, in the event of fluctuation in exchange between the rate stated in the quotation and the rate on the day the goods are landed as evidenced by the Customs Entry, the price, excluding installation charges, will be varied up or down as the case may be, by the percentage the rate has varied from the rate stated. Any downward variation in price must be claimed within 90 days of delivery. Any variation applies only to goods landed after the date of the applicable quotation.
5. Terms of Payment
5.1 Unless otherwise provided, payment terms are net cash within 30 days from the date of the invoice, notwithstanding the fact that the goods are part delivered, or may not have been installed or commissioned by such date. Invoices may be issued when goods are delivered or are available for delivery. Where the contract provides for installation and/or commissioning, additional invoices for these services may be issued after the work has been done. Interest may be charged at the rate of 3% plus the overdraft rate charged by SURGICAL AND MEDICAL SUPPLIES PTY LTD’s bankers at the time of default calculated on a daily basis on any monies which become due.
5.2 SURGICAL AND MEDICAL SUPPLIES PTY LTD may at any earlier time require any amount that may become payable to be paid immediately and before delivery or any other performance by SURGICAL AND MEDICAL SUPPLIES PTY LTD, if SURGICAL AND MEDICAL SUPPLIES PTY LTD considers the purchaser to be a credit risk.
6. Delivery
6.1 The time quoted for delivery is an estimate only and in the event of any happening beyond its reasonable control in consequence of which SURGICAL AND MEDICAL SUPPLIES PTY LTD cannot effect delivery or perform any other obligation under the contract by the time quoted or agreed, SURGICAL AND MEDICAL SUPPLIES PTY LTD shall be entitled to make part delivery, suspend delivery or other performance , or extend the delivery time of the goods, for the period during which such cause of delay operates and in the event of such suspension or extension SURGICAL AND MEDICAL SUPPLIES PTY LTD shall not be liable for damages.
6.2 Goods offered ex stock are subject to prior sale.
7. Default or Insolvency
7.1 SURGICAL AND MEDICAL SUPPLIES PTY LTD reserves the right to terminate the contract or to suspend, delay or cancel the delivery of some or all of the goods or any installation or other services, to require advance payment or to suspend or cancel any other agreement between the parties if:
7.1.1 the purchaser is insolvent or is unable to pay its debts;
7.1.2 the purchaser seeks to effect any compromise with any of its creditors or compound any of its debts;
7.1.3 an order is made or resolution passed for the winding up of the purchase;
7.1.4 if the purchaser is placed in receivership or under management;
7.1.5 judgment is given against the purchaser and remains unsatisfied for a period of 10 days;
7.1.6 the purchaser is in breach of any of its obligations to SURGICAL AND MEDICAL SUPPLIES PTY LTD and has failed to remedy such breach within 14 days after receiving written notice from Surgical and Medical Supplies Pty Ltd requiring the breach to be remedied;
7.1.7 the purchaser fails to pay any amount payable under the contract by the due date; or
7.1.8 the purchaser is in default under any other agreement between the parties.
7.2 No termination, suspension, delay or cancellation as a result of any of the foregoing events shall affect any other right which SURGICAL AND MEDICAL SUPPLIES PTY LTD may have against the purchaser in terms of the contract or otherwise.
8. Title and Risk of Loss
8.1 Upon delivery the goods shall be at the purchaser’s risk, notwithstanding that SURGICAL AND MEDICAL SUPPLIES PTY LTD may be required to install, set up or perform any services in connection with the goods. The goods remain the property of SURGICAL AND MEDICAL SUPPLIES PTY LTD until payment is received in full. If SURGICAL AND MEDICAL SUPPLIES PTY LTD becomes entitled to exercise its rights under clause 7 it may also or instead, then or thereafter, and notwithstanding any previous waiver, without notice retake possession of the goods and for that purpose may enter any premises in which the goods are for the time being located.
9. Claims
9.1 No claim for discrepancy or non-conformance to order, or that goods were defective or damaged on delivery shall be recognised unless made in writing within 7 days of delivery. If no claim is made within that period, goods are deemed to have been accepted on delivery. No goods may be returned unless SURGICAL AND MEDICAL SUPPLIES PTY LTD has previously agreed in writing to such return and the purchaser has fully observed any conditions prescribed.
10. Installation
10.1 Where the contract requires SURGICAL AND MEDICAL SUPPLIES PTY LTD to install the goods, the purchaser shall at its own expense be responsible for any of the following that may be needed:
10.1.1 the provision of an adequate power supply terminating at a point to be specified by SURGICAL AND MEDICAL SUPPLIES PTY LTD including the necessary main switch and fuses all in accordance with the SA wiring rules and with the requirements of other statutory authorities;
10.1.2 the cost of any carpentry, plumbing, painting, electrical, structural, radiation protection or other work required in connection with the installation; and
10.1.3 the cost of preparing the site in order to prevent outside influences
adversely affecting the function of the installed goods and to ensure that the installed goods do not adversely affect the outside environment.
10.2 The price quoted is based on the work proceeding continuously in normal working hours and ready access to the site being provided by the purchaser. If work has to be carried out outside normal working hours, or in stages, or if there is any delay in the installation from any cause whatsoever other than due to the neglect or default of SURGICAL AND MEDICAL SUPPLIES PTY LTD, additional charges at prevailing rates will be made .
10.3 Completion of the installation and acceptance of the goods occur when the goods pass SURGICAL AND MEDICAL SUPPLIES PTY LTD’s installation and test procedures.
11. Cancellation of orders
11.1 Orders made within the context of this contract cannot be cancelled unless both parties agree and upon terms that will indemnify SURGICAL AND MEDICAL SUPPLIES PTY LTD against all actual, prospective, consequential, direct and indirect loss, damages and expenses.
12. Warranty and Limitation of Remedies
12.1 SURGICAL AND MEDICAL SUPPLIES PTY LTD warrants to the purchaser that the goods will be free from defects solely due to faulty workmanship and materials during the warranty period to the extent that upon the return freight prepaid during that period of any part of the goods SURGICAL AND MEDICAL SUPPLIES PTY LTD shall, if such part is found to be defective, at its option repair such part or supply a replacement part provided that:
12.2 If SURGICAL AND MEDICAL SUPPLIES PTY LTD is required to inspect the goods, or to remove and reinstall any part of the goods, the purchaser will reimburse SURGICAL AND MEDICAL SUPPLIES PTY LTD for the cost of travelling, travel time, accommodation and other out-of-pocket expenses.
12.3 Unless otherwise stated the warranty period is
12.3.1 in respect of goods, twelve months from the earliest of:
12.3.1.1 the date of completion of installation for goods requiring installation; or
12.3.1.2 the date of delivery if installation is not required; or
12.3.1.3 the date the goods are first used by the purchaser.
12.3.2 in respect of spare parts supplied and fitted by SURGICAL AND MEDICAL SUPPLIES PTY LTD 90 days from date of replacement.
12.4 The warranty does not cover:
12.4.1 defects arising from normal wear and tear, misuse or neglect, improper storage, excessive heating, mechanical vibration, overload, operation contrary to instructions for use, service intervention by any person other than authorised representatives of SURGICAL AND MEDICAL SUPPLIES PTY LTD or contravention of standard electrical practice;
12.4.2 consumables and items liable to deterioration, such as without limitation, rubber items, flexible leads, or batteries;
12.4.3 claims for warranty service made after the warranty period has expired; or
12.4.4 defects which are the subject of the manufacturers’ specific restrictions and conditions.
12.5 The Mega 2000 and Mega 2000 Soft are subject to special pro rata warranties
12.6 Replacement parts supplied under warranty by SURGICAL AND MEDICAL SUPPLIES PTY LTD may be remanufactured parts which are equivalent to new in performance.
12.7 Except as provided in this clause and clause 15 all conditions or warranties in respect of the goods, expressed or implied, statutory or otherwise are excluded. Under no circumstances shall SURGICAL AND MEDICAL SUPPLIES PTY LTD be liable to pay compensation for any injury, loss or damage sustained by the purchaser howsoever arising. SURGICAL AND MEDICAL SUPPLIES PTY LTD shall not be liable to the purchaser for any special, indirect, incidental or consequential damages resulting from breach of warranty or of any other provisions of the contract, or for any liability of the purchaser to a third party.
12.8 Nothing in these Terms and Conditions of Sale shall affect the rights of the purchaser or any other person in respect of the goods arising under the provisions of the Trade Practices Act ("the Act") under any other similar law.
12.9 Where the purchaser is a ‘consumer’ within the meaning of the Act or any relevant legislation and the goods, installation or other services to be supplied are respectively not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability of SURGICAL AND MEDICAL SUPPLIES PTY LTD for a breach of a condition or warranty implied by the Act or any relevant legislation (other than a condition or warranty implied by Section 69 of the Act) shall be limited in the case of goods, to the repair of the goods, or at the option of SURGICAL AND MEDICAL SUPPLIES PTY LTD, the replacement of the goods or the supply of equivalent goods; or in the case of installation or other services, to the supplying of those services again.
13. Limitation on Bringing Action
13.1 Any action by the purchaser arising out of this contract must be brought within one year after the earliest relevant date referred to in clause 12.3.1.
14. Intellectual Property Licence
14.1 The purchaser acknowledges that the goods and all trade marks, programs, firmware, software, know-how, methods and concepts associated with the goods and all manuals and other printed material relating to the goods involve valuable copyright, patent, trademark, trade secret and other proprietary rights of SURGICAL AND MEDICAL SUPPLIES PTY LTD (collectively "intellectual property"). In connection with the sale of the goods SURGICAL AND MEDICAL SUPPLIES PTY LTD grants the purchaser a licence to use the intellectual property only in connection with and to the extent necessary for the use of the goods. SURGICAL AND MEDICAL SUPPLIES PTY LTD reserves and retains all patent, copyright, trade secret, trademark and other proprietary rights related to the intellectual property or any portion thereof. No title to or ownership of any proprietary right in any intellectual property or portion thereof is transferred to the purchaser pursuant to or by virtue of this contract. The purchaser shall not infringe, contest or violate SURGICAL AND MEDICAL SUPPLIES PTY LTD’s proprietary rights and shall not copy, trace, disassemble, decompile or modify any such intellectual property nor cause or permit the copying, tracing, disassembling ,decompiling or modification thereof. Transfer of the goods by the purchaser shall constitute the transfer of such licence, which shall not otherwise be transferable. The purchaser’s licence to use the intellectual property shall automatically terminate if the purchaser uses or permits the use of such intellectual property in any manner not permitted by or in violation of this clause. The purchaser agrees to be bound by the terms of the licence agreements of software of third-party licensors that may be used in goods. Diagnostic software may be supplied with the equipment for use by SURGICAL AND MEDICAL SUPPLIES PTY LTD in meeting its warranty obligations. Nothing contained in this contract gives the Purchaser any right title or interest to such software or its use.
15. Financing
15.1 If at any time before the delivery of any goods the purchaser informs
SURGICAL AND MEDICAL SUPPLIES PTY LTD that finance is to be arranged in respect of those goods the following shall apply:
15.1.1 The purchaser agrees to procure a finance company to purchase the goods and shall notify SURGICAL AND MEDICAL SUPPLIES PTY LTD of the name and address of such finance company.
15.1.2 SURGICAL AND MEDICAL SUPPLIES PTY LTD shall address its invoice for the goods to the finance company and all payments by the finance company shall discharge to that extent the purchaser’s obligations under clause 5, but all other provisions of the contract shall remain in full force and effect.
15.1.3 If there shall be any breach by the purchaser of this clause, or if the nominated finance company shall for any reason (other than default on the part of SURGICAL AND MEDICAL SUPPLIES PTY LTD) fail within the times stated in clause 5 to pay in full the amount of any invoice addressed to it, SURGICAL AND MEDICAL SUPPLIES PTY LTD may address or re-address the invoice to the purchaser who shall thereupon be bound to purchase the goods from SURGICAL AND MEDICAL SUPPLIES PTY LTD and to pay for the same in accordance with clause 5.
15.1.4 The purchaser acknowledges that no discussions, correspondence or other communications between the parties concerning the sources or availability of finance shall in any way affect the purchaser's obligations under this clause
15.1.5 Goods will be delivered only after receipt of satisfactory written authorisation from the finance company.
16. Confidentiality
16.1 The purchaser shall keep confidential all proprietary information furnished or disclosed to the purchaser by SURGICAL AND MEDICAL SUPPLIES PTY LTD (“Information"). The purchaser shall not use or disclose Information for any purpose except as necessary for the maintenance repair or operation of the goods without the prior written consent of SURGICAL AND MEDICAL SUPPLIES PTY LTD. The purchaser shall inform its employees and others with access to Information that the same is confidential and subject to these restrictions.
17. Legal Export Regulation
17.1 Goods delivered by SURGICAL AND MEDICAL SUPPLIES PTY LTD are intended for use only in Australia. In the event of re-export, the legal export regulations of Australia and the relevant country of manufacture must be complied with. SURGICAL AND MEDICAL SUPPLIES PTY LTD must be contacted prior to export of any goods.
18. Trade-ins
18.1 The purchaser warrants that any item being traded in under the terms of the contract is its property, and that such item will become the absolute property of SURGICAL AND MEDICAL SUPPLIES PTY LTD free from all charges, liens and encumbrances whatsoever as from the date on which SURGICAL AND MEDICAL SUPPLIES PTY LTD takes possession of the item. Until that date the item shall remain at the purchaser’s risk. The Purchaser shall provide SURGICAL AND MEDICAL SUPPLIES PTY LTD with a valid tax invoice in respect of any traded in item.
19. General
19.1 This contract is governed by the laws of the country where the goods are installed.
19.2 The purchaser may not validly assign or delegate this contract without obtaining the prior written consent of SURGICAL AND MEDICAL SUPPLIES PTY LTD.
19.3 No failure by SURGICAL AND MEDICAL SUPPLIES PTY LTD to enforce any provision of the contract shall constitute a waiver of its right to require future performance or observance of that provision by the purchaser.
19.4 If any provision of this Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the Contract and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greater extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.