P: 1800 044 012 F: (02) 9053 7707 E: email@example.com
NSW – South Windsor: 18 Walker Street, South Windsor, NSW 2756
CARE PLATFORMS PTY LTD T/A CARELEDA ABN 60 628 218 226
Trading Terms and Conditions For Sale of Goods (“Terms and Conditions”)
These Terms and Conditions apply to the supply of goods by the Seller to a Customer from time to time. Any order placed by Customer with Seller for the purchase of the Goods after these Terms and Conditions are received by Customer is a supply pursuant to the supply agreement constituted by these Terms and Conditions as is accepted by the Seller (‘Agreement’) pursuant to these Terms and Conditions and any such supply does not give rise to a new or separate agreement.
In these Terms and Conditions unless the contrary intention appears:
“Additional Charges” includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Seller arising out of the sale of the Goods.
“Customer” means the person or entity to or for whom the Goods are to be supplied by Seller.
“Goods” means the goods sold and, if any, services provided to the Customer by Seller.
“Insolvency Event” means, in respect of a Customer that is a:
(a) person, the Customer becoming bankrupt or entering into a scheme of arrangement with its creditors and the Seller receiving notice of any such event; or
(i) the appointment of a liquidator, provisional liquidator, receiver, administrator or official manager and the Seller receiving notice of any such event; or
(ii) a statutory demand is issued against the Customer; or
(iii) the Customer’s inability to pay all of its debts as and when they become due and payable.
“Loss” means all actions, claims, costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities and losses whether present or future, actual or contingent, and whether direct, indirect, special, consequential or otherwise, including, but not limited to, loss of profits, loss of business revenue, failure to realise expected profits or savings, overhead costs, loss of goodwill, loss of reputation, loss of value in any intellectual property, damages or liquidated sums payable pursuant to other agreements, other economic losses, or any consequential or indirect losses of any kind howsoever arising and whether caused by breach of statute, breach of contract, negligence or other tort.
“Order” means any order placed by the Customer with the Seller from time to time for the supply of Goods to the Customer.
“Order Confirmation Form” means any written confirmation of an Order issued by the Seller to the Customer from time to time, which confirms the Order and which may specify the price of Goods or other costs associated with manufacturing or sourcing the Goods and delivering the Goods to the Customer.
“Personnel” means a party’s directors, officers, employees, agents, representatives and contractors.
“PPSA” means the Personal Property Securities Act 2009 (Cth) together with any regulations made pursuant to that legislation and as these may be amended from time to time.
“Purchase Price” means the price for the Goods specified in the Quotation and/or the Order Confirmation Form, or if no such price is specified, then the list price for the Goods as charged by Seller at the date of delivery.
“Quotation” means any quotation or estimate provided by the Seller to the Customer from time to time with respect to the price of Goods or other costs associated with manufacturing or sourcing the Goods and delivering the Goods to the Customer.
“Seller” means CARE PLATFORMS PTY LTD T/A CARELEDA ABN 60 628 218 266.
“Warranty” means the Seller’s form of express warranty against defects issued in relation to certain of its Goods, as updated by the Seller from time to time.
2. Order for Goods
2.1 These Terms and Conditions are deemed to be accepted by the Customer when the Customer places an Order with the Seller from time to time.
2.2 The Seller may, in its absolute discretion, accept or reject an Order. The Seller may accept an Order by providing written notice of its acceptance to the Customer, or by supplying to the Customer the Goods specified in the Order.
2.3 The Seller reserves the right to accept a part only of any Order by notifying the Customer in writing or by delivering the Goods to the Customer.
2.4 An Order which has been accepted in whole or in part by Seller cannot be cancelled by the Customer without obtaining the prior written approval of Seller, which it may refuse in its absolute discretion.
2.5 These Terms and Conditions override and exclude any terms and conditions of the Customer, whether provided to the Seller by the Customer before or after the date of any Order.
2.6 The Seller warrants that the Goods are fit for the purpose of use within the healthcare industry subject to the Customer complying with clauses 2.7 and 2.11.
2.7 The Customer must comply with and use the Goods in accordance with, and must ensure that its Personnel and any other person under the care or control of the Customer or its Personnel complies with and uses the Goods in accordance with, all instructions of use related to the Goods including those specified in the instruction manuals for the intended purpose of the Goods as are provided with the Goods from time to time.
2.8 The Customer and its Personnel must indemnify and keep indemnified the Seller, and the Seller’s Personnel against all Losses suffered or incurred by the Seller arising from, caused by, directly or indirectly, or in connection with, any one or more of the following:
(a) death, illness or personal injury of any person that arises from, is caused by or is in connection with the act, omission or negligence of the Customer, its Personnel or any third party, or the use or misuse of the Goods by the Customer, its Personnel or any third party;
(b) loss of, damage to, or loss of use of any real or personal property damage that arises from, is caused by or is in connection with the act, omission or negligence of the Customer, its Personnel, or any third party within its premises or the use or misuse of the Goods by the Customer, its Personnel or any third party; and
(c) any breach of these Terms and Conditions by the Customer or its Personnel.
2.9 In conducting any indemnity claim, suit or action in respect of which the Customer indemnifies the Seller, the Customer must at its expense comply with the Seller’s reasonable directions.
2.10 The Customer acknowledges and agrees that it is not necessary for the Seller to incur an expense, make a payment or mitigate its Loss before enforcing a right of indemnity conferred by these Terms and Conditions.
2.11 The Customer agrees that it has made the Order according to its own assessment as to the suitability of the Goods for its intended purpose and that except as otherwise provided in these Terms the Customer has not relied on any representation or warranty of the Seller in deciding to purchase the Goods. The Customer must, and must ensure that its Personnel also:
(a) make its own assessment and satisfy itself as to whether the Goods will be fit for and appropriate to use within a particular environment or location where the Customer intends to use the Goods;
(b) make its own assessment as to whether the Goods will be fit for and appropriate to use with a particular patient; and
(c) ensure that use of the Goods is supervised at all times by an appropriately qualified medical professional.
2.12 To the extent permitted by law, the Seller is not liable for any loss or damage due to the Goods being used for any purpose that it inconsistent with clause 2.6.
3. Warranties and Liability
3.1 To the extent permitted by law, the liability of the Seller in respect of any breach of these Terms and Conditions or breach of any warranty, whether given under these Terms and Conditions or otherwise, for any Goods is limited to, at the option of Seller:
(a) if the Goods comprise goods, any one of the following:
(i) replacing the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(iv) the payment of the cost of having the Goods repaired; and
(b) if the Goods comprise services:
(i) the supply of the services again; and
(ii) the payment of the cost of having the services supplied again.
3.2 The Consumer Guarantees Act 1993 (NZ) (CGA), the Fair Trading Act 1986 (NZ) (FTA) and other statues may impose warranties, conditions and obligations on the Seller that cannot by law (or that can only to a limited extent by law) be excluded. To the extent permitted by law, all warranties, whether express, implied or otherwise, that are not set out in these
Terms and Conditions or in the Warranty and that are not provided for under the CGA or FTA are excluded and Seller is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) the use or misuse by the Customer, its Personnel or third parties of the Goods;
(d) any act, omission or negligence by the Customer, its Personnel or third parties;
(e) any loss or expense resulting from a claim by a third party; or
(f) any special, indirect or consequential Loss or damage of any nature whatsoever.
3.3 For the avoidance of doubt, the Seller will not be liable to provide any refund, returns, exchange or credit where the Customer or any third party has caused or contributed directly or indirectly to any damage to the Goods whilst they were in the Customer’s possession or control. Unless Goods are faulty, the Seller is unable to refund, exchange or credit the Customer’s account.
3.4 Any claims to be made against Seller for short delivery of Goods must be lodged with Seller in writing within 7 days of the delivery date.
3.5 These Terms and Conditions constitute the entire agreement between the parties with respect to its subject matter, and supersede and exclude all prior discussions, agreements, Quotations, warranties, negotiations and representations made by or between the parties with respect to that subject matter to the extent of any inconsistency.
3.6 To the extent of any inconsistency between the Quotation and the Order Confirmation Form, the Order Confirmation Form prevails to the extent of any inconsistency.
3.7 Where the Seller’s liability cannot be limited as described in clause 3.1 or 3.2 as applicable, then to the extent permitted by law the Seller’s maximum aggregate liability pursuant to these Terms and Conditions and for any breach of a condition, guarantee or warranty, whether implied by law or otherwise (including in Australia pursuant to the Competition and Consumer Act 2010 (Cth) and in New Zealand the CGA and FTA, as applicable) is limited, in the aggregate to the amount that Seller is actually able to recover from its insurer with respect to that liability, less any amount arising out of the wilful, criminal or negligent acts or omissions of the Customer, its Personnel, any third party or a public health authority.
3.8 In the event that the Customer admits to any liability to any party without the prior approval of the Seller, the Customer acknowledges and agrees that it does so at its own risk and by such admission, it waives all potential claims against the Seller with respect to its admission.
3.9 Where the Customer is in New Zealand or the supply of the Goods is in New Zealand, to the full extent permitted by law:
(a) the parties acknowledge and agree that:
(i) the Customer is acquiring the Goods for the purposes of a business in terms of sections 2 and 43(2) of the CGA; and
(ii) the Goods are supplied and acquired in trade for the purposes of the FTA and the parties agree to contract out of sections 9 (misleading and deceptive conduct generally), 12A (unsubstantiated representations) and 13 (false and misleading representations); and
(b) the Customer acknowledges and agrees that all warranties, conditions and other terms implied by the CGA or sections 9, 12A and 13 of the FTA or any other statute or common law are excluded from these terms to the fullest extent permitted by law and that such exclusion is fair and reasonable.
4.1 The times quoted for delivery are estimates only and Seller accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of Seller.
4.2 Risk in the Goods passes on delivery to the Customer.
4.3 Unless otherwise agreed, delivery shall be deemed to have taken place:
(a) if the Goods are to be collected from the Seller’s premises, then:
(i) just prior to the Goods being loaded onto the carrier organised by the Customer; or
(ii) at the time and date when the Goods are scheduled to be collected by the Customer,
whichever occurs first; or
(b) if the Goods are to be delivered to Customer’s address as nominated by the Customer on the Order, then just prior to the Goods being unloaded from the carrier at the nominated address in accordance with the Order, which Order is delivered to the Customer at the Customer’s expense.
4.4 Signature of any delivery note by any agent, employee or representative of the Customer or where delivery is to any independent carrier, by such carrier or its agent, shall be conclusive proof of delivery.
4.5 All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods.
4.6 Goods for delivery in either Australia or New Zealand are quoted Ex Works,
4.7 Return of Goods (except where a valid Warranty claim is made pursuant to the Warranty) will not be accepted by Seller except by prior agreement in writing with Seller. Any Goods returned will be subject to a restocking charge of 10% of the Purchase Price of those Goods.
5. Price and Payment
5.1 The Customer must pay the Purchase Price and the Additional Charges to Seller at the time/s and in the manner specified in the Quotation and/or the Order Confirmation Form, and if no such time is specified, then the Customer must pay the Purchase Price and the Additional Charges prior to delivery.
5.2 If the Customer is in default, Seller may at its option withhold further deliveries or cancel an Order without prejudice to any of its existing rights and without liability to the Customer.
5.3 Where the Seller has agreed to payment after delivery, all payments are due within 7 days of the date of invoice.
5.4 The Customer is liable to pay interest at the rate equal to the Commonwealth Bank of Australia overdraft rate plus 2% on all outstanding amounts calculated from the due date of payment until full payment is received by the Seller.
5.5 If the Customer is in default, the Customer agrees to pay the Seller all costs and disbursements including legal costs on a solicitor and own client basis incurred by the Seller in collecting or attempting to recover money outstanding.
5.6 The cost of any special packing and packing materials used in relation to the Goods are at the Customer’s expense notwithstanding that the Quotation did not include such costs.
5.7 Subject to any overriding terms in the Quotation and/or Order Confirmation Form, as applicable pursuant to clause 3.6, where the Seller has agreed to provide an order to the Customer’s custom specifications, the Customer must pay to the Seller a deposit of 50% prior to delivery. If the Customer is in breach of these Terms and Conditions or cancels or refuses to take delivery of the customised Goods, the deposit is forfeited and the Customer agrees it will not make any claims to recover the deposit.
5.8 If the Quotation and/or Order Confirmation Form specifies that the Customer must pay part of the Purchase Price as a deposit at the time that the Customer places their Order, the deposit will be forfeited by the Customer to the Seller and will not be refunded in whole or in part to the Customer if the Customer breaches these Terms and Conditions, cancels their Order, or refuses to take delivery of the Goods.
6. Retention of Title
6.1 Ownership in and title to the Goods remains with Seller until payment in full for the Goods and all sums due and owing by the Customer to Seller on any account has been made. Until the date of full payment:
6.1.1 the Customer has the right to sell the Goods in the ordinary course of business; and
6.1.2 the Goods are always at the risk of the Customer.
6.2 The Customer is deemed to be in default for the purposes of clause 6.3 immediately upon the happening of any one or more of the following events:
6.2.1 if any payment to Seller is not made promptly on or before the due date for payment;
6.2.2 if an Insolvency Event occurs with respect to the Customer; or
6.2.3 if the Customer breaches these Terms and Conditions.
6.3 In the event of a default by the Customer, then without prejudice to any other rights or remedies which Seller may have at law or under these Terms and Conditions:
6.3.1 Seller or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods;
6.3.2 Seller may recover and resell the Goods;
6.3.3 if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, Seller may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of Seller and the Customer may be ascertained. Seller must promptly return to the Customer any goods the property of the Customer and Seller is in no way liable or responsible for any loss or damage to the goods or the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the goods or the Goods;
6.3.4 in the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Seller. Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Seller at the time of the receipt of such proceeds. The Customer will pay Seller such funds held in trust upon the demand of Seller; and
6.3.5 Separately, Customer hereby charges all its right, title and interest to and in the proceeds of sale of the Goods as original collateral, or any of it, in favour of the Company.
7. Personal Properties Securities Act 2009 (“PPSA”)
7.1 Defined terms in this clause that are not defined in these Terms and Conditions have the same meaning as given to them in the PPSA.
7.2 Seller and Customer acknowledge that the arrangement documented in these Terms and Conditions and the supply of Goods pursuant to these Terms and Conditions constitute a Security Interest including a Purchase Money Security Interest (PMSI) in favour of Seller as Secured Party over the Goods supplied to the Customer as Grantor, and that to this extent:
(a) this clause 7 applies; and
(b) the Security Interest is created in, and the Customer grants to the Seller a Security Interest in:
(i) all Goods previously supplied by the Seller to the Customer, if any;
(ii) all Goods that will be supplied in the future by the Seller to the Customer; and
(iii) all proceeds received by the Customer in relation to the Goods, if any,
and a Financing Statement may be registered on the Register.
7.3 The Customer acknowledges and agrees the creation of, and granting of, the Security Interest gives rise to remedies of repossession, retention and/or sale of the Goods in accordance with the PPSA or otherwise where the Seller seeks to enforce the Security Interest.
7.4 To the extent permissible at law, the Customer:
(a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to Seller;
(b) agrees to indemnify Seller on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with any registration, amendment, discharge, enforcement or attempted enforcement of any Security Interest, and all other costs associated with the perfection and enforcement of the Security Interest.
7.5 To the extent permissible at law:
(a) nothing in sections 130 and 143 of the PPSA will apply to the Terms and Conditions or the Security under the Terms and Conditions; and
(b) the Customer agrees to waive its rights as they are set out in sections 95, 118, 121, 123 and 129 of the PPSA.
7.6 The Customer must ensure that all third parties who may from time to time come into possession of the Goods are advised of the Seller’s Security Interest in the Goods.
7.7 The Customer must not dispose or purport to dispose of, or create or purport to create or permit to be created any Security Interest in the Goods other than with the written consent of the Seller.
7.8 All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
8. Drawings and Performance
8.1 The Customer warrants and represents to the Seller that any specifications, drawings and particulars of weights and dimensions provided by the Customer are complete, accurate and not misleading. The Customer acknowledges and agrees that the Seller may deviate from any specifications, drawings and particulars provided by the Customer if the Seller believes it is reasonably necessary to do so, and this deviation will not constitute a breach of these Terms and Conditions.
8.2 The descriptions, illustrations and performances contained in the Seller’s catalogues, price lists and other advertising material are excluded from these Terms and Conditions, and do not form part of the agreement between the Customer and the Seller.
8.3 Where specifications, drawings or other particulars are supplied by the Customer, the Quotation is made based on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by Seller and set out in a Quotation, then any such increase or decrease is to be adjusted on a unit rate basis according to unit prices set out in any attached document or in the Quotation.
8.4 Any performance figures given by the Seller are estimates only. The Seller is not liable for Loss resulting from failure of the Goods to attain such figures unless specifically guaranteed in writing by the Seller to the Customer.
9.1 Pending full payment for the Goods, the Customer must insure the Goods for their full insurable or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Customer carries on business.
10. Force Majeure
10.1 The Seller is not liable for any delay or any breach or default under these Terms and Conditions due to any act of God, labour dispute, difficulty in procuring materials, accidents, epidemics, pandemics or public health emergencies declared by the World Health Organization or by any other international body, domestic government or public authority, acts, orders or prohibitions by any domestic government or public authority, and any quarantine, closure of ports, industrial stoppage or freight stoppage caused by or arising out of any of the other matters described in this clause, legislative restrictions or other act, omission, event or circumstance whatsoever (whether similar or not to the forgoing) that is beyond the Seller’s reasonable control.
11.1 These Terms and Conditions are governed by and are to be construed in accordance with the laws in the State of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales. To the extent that a supply occurs in New Zealand, the parties agree that for such supplies, these Terms and Conditions will be governed by and will be construed in accordance with the laws in New Zealand, and in such circumstances, the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
11.2 In so far as the Vienna Convention for the International Sale of Goods might otherwise govern the Terms and Conditions or any Order, its application is excluded.
11.3 These Terms and Conditions may only be varied by agreement in writing between the parties.
11.4 If any provision of these Terms and Conditions is found to be void, unenforceable or illegal in any jurisdiction, then that provision is severed in that jurisdiction to the extent that it is void, unenforceable or illegal, and the Terms and Conditions other continue in full force and effect.
11.5 No waiver of any of these Terms and Conditions or failure to exercise a right or remedy by Seller will be considered to imply or constitute a further waiver by Seller of the same or any other term, condition, right or remedy.
11.6 All prices are, for supply in:
(a) Australia: Australia Dollars (AUD) based on Ex Works Seller’s depot in the applicable Australian capital city; and
(b) New Zealand: New Zealand Dollars (NZD) based on Ex Works from Seller’s depot in the Australian capital city nominated by the Seller.
11.7 In the event of a disagreement or dispute arising out of or in connection with these Terms and Conditions and/or any Order (‘Dispute’), the parties agree that representatives from either party with authority to resolve the Dispute must meet and attempt in good faith to settle the Dispute by negotiation. If the Dispute has not been resolved by negotiation within 30 days after the Dispute arose, then the parties must refer the Dispute to mediation. The mediator will be a mediator chosen by agreement between the parties and, if the parties cannot agree, then a mediator selected by the Law Society of New South Wales. The costs of the mediation will be shared equally by the parties. The parties agree that a dispute may not be referred to litigation except where the parties have complied with the procedure in this clause 11.7 or where it is an urgent matter for an injunction.
11.8 These Terms and Conditions may vary for supplies by Seller to a Customer who is located in a jurisdiction outside of Australia and New Zealand. If you are a Customer in a jurisdiction other than Australia or New Zealand please contact our sales team at firstname.lastname@example.org for specific Terms and Conditions that apply in that jurisdiction.