1. Definitions
    1. “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
    2. “ClinicalPRO” means A Natural Difference Australia Pty Ltd (ABN: 29 111 745 049) T/A ClinicalPRO, its successors and assigns or any person acting on behalf of and with the authority of A Natural Difference Australia Pty Ltd (ABN: 29 111 745 049) T/A ClinicalPRO.
    3. “Customer” means the person/s, entities or any person acting on behalf of and with the authority of the Customer requesting ClinicalPRO to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      • if there is more than one Customer, is a reference to each Customer jointly and severally; and
      • if the Customer is a partnership, it shall bind each partner jointly and severally; and
      • if the Customer is a part of a Trust, shall be bound in their capacity as a trustee; and
      • includes the Customer’s executors, administrators, successors and permitted assigns.
    4. “Products” means all Products (including any skincare, healthcare products and devices) or Services supplied by ClinicalPRO to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Products’ or ‘Services’ shall be interchangeable for the other).
    5. “Equipment” means all Equipment including any accessories supplied on hire by ClinicalPRO to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by ClinicalPRO to the Customer.
    6. “Minimum Hire Period” means the Minimum Hire Period as described on the invoices, quotation, authority to hire, or any other forms as provided by ClinicalPRO to the Customer.
    7. “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
    8. “Cookies” means small files which are stored on a user’s computer.  They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Customer does not wish to allow Cookies to operate in the background when ordering from the website, then the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Products via the website.
    9. “Price” means the Price payable (plus any GST where applicable) for the Products and/or Equipment hire as agreed between ClinicalPRO and the Customer in accordance with clause 5
    10. “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth). 
  1. Acceptance
    1. The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts Delivery of the Products/Equipment.
    2. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
    3. These terms and conditions:
      1. set forth the entire and final understanding of the Customer and ClinicalPRO pertaining to the subject matter hereof and supersedes all prior arrangement, whether oral or written; and
      2. may only be amended with both parties’ consent in writing with disclosure via electronic transmission (email) by mutual agreement and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and ClinicalPRO; and
      3. are meant to be read in conjunction with the Terms and Conditions posted on ClinicalPRO’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
    4. The Customer acknowledges that the supply of Products/Equipment on credit shall not take effect until the Customer has completed a credit application with ClinicalPRO’s head office and/or online and it has been approved with a credit limit established for the account.
    5. Prepaid Customer’s that subsequently wishes to operate a credit account shall be subject to ClinicalPRO’s standard credit conditions and must complete the Application For Credit.
    6. The Customer acknowledges and accepts that:
      1. the Customer is responsible for maintaining the confidentiality of their password and account and any activities that occur under the account. ClinicalPRO shall not be liable to any person for any issues which may arise as a result of any failure by the customer to protect their password or account;
      2. false emails: ClinicalPRO will never ask the Customer to confirm any account or credit card details via email. If an email is received claiming to be from ClinicalPRO asking for such information, the Customer should not reply in the first instance but forward this email request to ClinicalPRO so that the business may advise the relevant authorities.
      3. in the event that the supply of Products/Equipment request exceeds the Customer’s credit limit and/or the account exceeds the payment terms, ClinicalPRO reserves the right to refuse delivery;
      4. ClinicalPRO reserves the right to accept in whole or part any order or to decline any order. Any order or part order not accepted is deemed to be cancelled;
      5. any misuse, misrepresentation or any other action that negatively impacts ClinicalPRO’s brand (including but not limited to online sales and/or marketing campaigns) which is deemed to damage and/or tarnish the reputation of ClinicalPRO’s brand, may result in ClinicalPRO mitigating that damage by refusing the Customer the right to continue to represent ClinicalPRO;
      6. any alleged claims resultant from the use of any supplied Products must be reported to ClinicalPRO’s management in writing as soon as reasonably practicable. ClinicalPRO reserves the right to inspect any items attributed to the claim and have the items tested by an independent laboratory before any public claims, statements or dissemination of information in any format including social media.
    7. Where ClinicalPRO gives advice, recommendations, information, assistance or service to the Customer, or the Customer’s agent, regarding the Products, it is given in good faith and ClinicalPRO shall not be liable in any way whatsoever for any damages, losses or costs however arising resulting from the Customer relying on the same.
  2. Errors and Omissions
    1. The Customer acknowledges and accepts that ClinicalPRO shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      1. resulting from an inadvertent mistake made by ClinicalPRO in the formation and/or administration of this Contract; and/or
      2. contained in/omitted from any literature (hard copy and/or electronic) supplied by ClinicalPRO in respect of the Services.
    2. In the event such an error and/or omission occurs in accordance with clause 1, and is not attributable to the negligence and/or wilful misconduct of ClinicalPRO; the Customer shall not be entitled to treat this Contract as repudiated nor render it invalid.
  3. Change in Control
    1. The Customer shall give ClinicalPRO not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Customer shall be liable for any loss incurred by ClinicalPRO as a result of the Customer’s failure to comply with this clause.
  4. Price and Payment
    1. At ClinicalPRO’s sole discretion the Price shall be either:
      1. as indicated on any invoice provided by ClinicalPRO to the Customer; or
      2. the Price as at the date of Delivery of the Products/Equipment according to ClinicalPRO’s current price list; or
      3. ClinicalPRO’s quoted price (subject to clause 2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    2. ClinicalPRO reserves the right to change the Price:
      1. if a variation to the Products/Equipment which are to be supplied is requested; or
      2. if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
      3. in the event of increases to ClinicalPRO in the cost of labour or materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges and/or price increases by ClinicalPRO’s third party suppliers/manufacturers) which are beyond ClinicalPRO’s control.
    3. Variations will be charged for on the basis of ClinicalPRO’s quotation, and will be detailed in writing, and shown as variations on ClinicalPRO’s invoice. The Customer shall be required to respond to any variation submitted by ClinicalPRO within ten (10) working days. Failure to do so will entitle ClinicalPRO to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
    4. Any discount, markdown, reduction or promotional deal provided by ClinicalPRO’s manufacturers, previously offered by ClinicalPRO to the Customer may be withdrawn, or cancelled, and the Price shall become ClinicalPRO’s standard Price as at the date of the original sale, should the Customer fail to pay any amount in the time specified on any invoice given by ClinicalPRO to the Customer.
    5. At ClinicalPRO’s sole discretion a non-refundable deposit may be required.
    6. Time for payment for the Products/Equipment being of the essence, the Price will be payable by the Customer on the date/s determined by ClinicalPRO, which may be:
      1. on Delivery of the Products/Equipment;
      2. before Delivery of the Products/Equipment;
      3. by way of instalments/progress payments in accordance with ClinicalPRO’s payment schedule;
      4. the date specified on any invoice or other form as being the date for payment; or
      5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by ClinicalPRO.
    7. Payment may be made by cash, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Customer and ClinicalPRO.
    8. ClinicalPRO may in its discretion allocate any payment received from the Customer towards invoice of ClinicalPRO that ClinicalPRO determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer ClinicalPRO may re-allocate any payments previously received and allocated. In the absence of any payment allocation by ClinicalPRO, payment will be deemed to be allocated in such manner as preserves the maximum value of ClinicalPRO’s Purchase Money Security Interest (as defined in the PPSA) in the Products/Equipment.
    9. The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by ClinicalPRO nor to withhold payment of any invoice because part of that invoice is in dispute.
    10. Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to ClinicalPRO an amount equal to any GST ClinicalPRO must pay for any supply by ClinicalPRO under this or any other agreement for the sale of the Products/hire of the Equipment. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
  5. Credit Card Information
    1. ClinicalPRO will:
      1. keep the Customer’s personal details, including credit card details for only as long as is deemed necessary by ClinicalPRO;
      2. not disclose the Customer’s credit card details to any third party;
      3. not unnecessarily disclose any of the Customer’s Personal Information, except in accordance with the Privacy Policy (clause 21) or where required by law.
    2. The Customer expressly agrees that, if pursuant to this Contract, there are:
      1. any unpaid charges;
      2. other amounts due and outstanding by the Customer;
      3. any Equipment (or any part of them) supplied on hire that are lost or damaged;
      4. any other additional charges due from the Customer which were not known at the time of the return of the Equipment,
        ClinicalPRO is entitled to immediately charge the Customer’s nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by the Customer pursuant to the terms of this Contract.
  6. Delivery of Products/Equipment
    1. Delivery (“Delivery”) of the Products/Equipment is taken to occur at the time that ClinicalPRO (or ClinicalPRO’s nominated carrier) delivers the Products/Equipment to the Customer’s nominated address even if the Customer is not present at the address.
    2. At ClinicalPRO’s sole discretion the cost of Delivery is in addition to the Price.
    3. ClinicalPRO may deliver the Products/Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
    4. The Customer must take Delivery by receipt or collection of the Products/Equipment whenever either is tendered for Delivery. In the event that the Customer is unable to take Delivery of the Products/Equipment as arranged then ClinicalPRO shall be entitled to charge a reasonable fee for redelivery of the Products/Equipment and/or the storage of the Products.
  7. On-Line Ordering
    1. The Customer acknowledges and agrees that:
      1. ClinicalPRO does not guarantee the website’s performance;
      2. display on the website does not guarantee the availability of any particular Products/Equipment; therefore, all orders placed through the website shall be subject to confirmation of acceptance by ClinicalPRO
      3. on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades;
      4. there are inherent hazards in electronic distribution, and as such ClinicalPRO cannot warrant against delays or errors in transmitting data between the Customer and ClinicalPRO including orders, and you agree that to the maximum extent permitted by law, ClinicalPRO will not be liable for any losses which the Customer suffers as a result of online-ordering not being available or for delays or errors in transmitting orders;
      5. when making a transaction through the website, the Customer’s information will pass through a secure server using SSL (secure sockets layer) encryption technology or any other similar technology as disclosed by ClinicalPRO and/or displayed on the website. The encryption process ensures that the Customer’s information cannot be read by or altered by outside influences;
      6. if the Customer is not the cardholder for any credit card being used to pay for the Products/Equipment, ClinicalPRO shall be entitled to reasonably assume that the Customer has received permission from the cardholder for use of the credit card for the transaction.
    2. ClinicalPRO reserves the right to terminate the Customer’s order if it learns that you have provided false or misleading information, interfered with other users or the administration of ClinicalPRO’s business, or violated these terms and conditions.
  8. Distribution of Products
    1. Orders from Customers are accepted on the basis that;
      1. Products may only be resold to consumers at retail level and may not be sold at wholesale level or to any other trader that is known or is suspected to be purchasing for resale, and
      2. Products are to be sold for retail or displayed for sale at only the nominated locations advised by the Customer to ClinicalPRO, and
      3. sale of Products by mail order, internet or any other method outside of the traditional display and sell at the approved location is prohibited without prior written consent of ClinicalPRO, and
      4. Products are to be displayed, presented and marketed in the manner that is in the best interest of the brand name.
    2. Any default of 1 may at ClinicalPRO’s sole discretion be subject to immediate and permanent closure of account facilities, with any account balances payable immediately on demand.
    3. ClinicalPRO has sole discretion on which brands or goods are made available to any approved Customer and ClinicalPRO does not guarantee continuing supply of any specific brand or goods.
  9. Out of Stock/Substitution
    1. ClinicalPRO will use its reasonable endeavours to ensure that all Product ordered by the Customer are supplied to the Customer. If the Product ordered is not available in stock, ClinicalPRO shall work with the Customer on a case by case basis where options may include back order of Product or amendment to the order.
  10. Product Use
    1. Unless otherwise specifically agreed in writing by ClinicalPRO, the Customer acknowledges that Products/Equipment sold by ClinicalPRO are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where Products failure could lead to loss of life or catastrophic property damage. The Customer indemnifies and holds ClinicalPRO harmless from any loss, cost, or damage resulting from the Customer’s breach of the provisions of this clause 11.
    2. It is the obligation of the Customer to use and/or operate the Products/Equipment strictly In accordance with the manufacturer’s specifications as published by the manufacturer of the Products and/or any specifications for use or operation communicated by ClinicalPRO to the Customer (the “Specifications’) and which Specifications are provided to the Customer at the time of Delivery of the Products/Equipment. ClinicalPRO will not in any way be liable to the Customer or any other parties due to any failure of the Customer (and/or its officers, employees or agents) to use and/or operate the Products/Equipment in accordance with the Specifications and, furthermore, the Customer indemnifies ClinicalPRO against any claims against ClinicalPRO or loss or damage suffered by ClinicalPRO as a result of any failure by the Customer (and/or its officers, employees or agents) to use and/or operate the Products/Equipment In accordance with the Specifications.
  11. Risk to Products
    1. Risk of damage to or loss of the Products passes to the Customer on Delivery and the Customer must insure the Products on or before Delivery.
    2. If any of the Products are damaged or destroyed following Delivery but prior to ownership passing to the Customer, ClinicalPRO is entitled to receive all insurance proceeds payable for the Products. The production of these terms and conditions by ClinicalPRO is sufficient evidence of ClinicalPRO’s rights to receive the insurance proceeds without the need for any person dealing with ClinicalPRO to make further enquiries.
    3. If the Customer requests ClinicalPRO to leave Products outside ClinicalPRO’s premises for collection or to deliver the Products to an unattended location then such Products shall be left at the Customer’s sole risk.
  12. Compliance with Laws
    1. The Customer acknowledges and accepts that Products sold under this Contract may be subject to export or resale restrictions or regulations, and the Customer agrees to comply with such. Any or all Products may have been imported, country of origin information is as provided to ClinicalPRO by its suppliers.
    2. The Customer and ClinicalPRO shall comply with the Radiation Safety Act 1999 and Radiation Safety Regulation 2010 (or any amendments thereto) and any other relevant safety standards and legislation relating to the Products/Equipment.
    3. ClinicalPRO recommends that a patch test be done preferably twenty-four (24) hours prior to the Customer using the Products to ensure that no allergic reaction occurs, Where the Customer decides not to have such a patch test done, ClinicalPRO shall not be held responsible for any reaction the Customer’s clients may suffer as a result from the use of the Products.
    4. In conjunction with clause 3, the Customer agrees that ClinicalPRO shall not be liable for any damage or loss including personal injury, death, sickness, inconvenience, or expense (including loss of income) as a result of ClinicalPRO providing the Products/Equipment.
  13. Title to Products
    1. ClinicalPRO and the Customer agree that ownership of the Products shall not pass until:
      1. the Customer has paid ClinicalPRO all amounts owing to ClinicalPRO; and
      2. the Customer has met all of its other obligations to ClinicalPRO.
    2. Receipt by ClinicalPRO of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
    3. It is further agreed that until ownership of the Products passes to the Customer in accordance with clause 1:
      1. the Customer is only a bailee of the Products and must return the Products to ClinicalPRO on request;
      2. the Customer holds the benefit of the Customer’s insurance of the Products on trust for ClinicalPRO and must pay to ClinicalPRO the proceeds of any insurance in the event of the Products being lost, damaged or destroyed;
      3. the Customer must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Products then the Customer must hold the proceeds of any such act on trust for ClinicalPRO and must pay or deliver the proceeds to ClinicalPRO on demand;
      4. the Customer should not convert or process the Products or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of ClinicalPRO and must sell, dispose of or return the resulting product to ClinicalPRO as it so directs;
      5. the Customer irrevocably authorises ClinicalPRO to enter any premises where ClinicalPRO believes the Products are kept and recover possession of the Products;
      6. ClinicalPRO may recover possession of any Products in transit whether or not Delivery has occurred;
      7. the Customer shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of ClinicalPRO;
      8. ClinicalPRO may commence proceedings to recover the Price of the Products sold notwithstanding that ownership of the Products has not passed to the Customer.
  14. Personal Property Securities Act 2009 (“PPSA”)
    1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
    2. Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Products/Equipment and/or collateral (account) – being a monetary obligation of the Customer to ClinicalPRO for Services – that have previously been supplied and that will be supplied in the future by ClinicalPRO to the Customer.
    3. The Customer undertakes to:
      1. promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ClinicalPRO may reasonably require to;
        1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
        2. register any other document required to be registered by the PPSA; or
        3. correct a defect in a statement referred to in clause 3(a)(i) or 15.3(a)(ii);
      2. indemnify, and upon demand reimburse, ClinicalPRO for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Products/Equipment charged thereby;
      3. not register a financing change statement in respect of a security interest without the prior written consent of ClinicalPRO;
      4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products/Equipment and/or collateral (account) in favour of a third party without the prior written consent of ClinicalPRO;
      5. immediately advise ClinicalPRO of any material change in its business practices of selling Products which would result in a change in the nature of proceeds derived from such sales.
    4. ClinicalPRO and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    5. The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    6. The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    7. Unless otherwise agreed to in writing by ClinicalPRO, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    8. The Customer must unconditionally ratify any actions taken by ClinicalPRO under clauses 3 to 15.5.
    9. Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
    10. Only to the extent that the hire of the Equipment exceeds a two (2) year hire period with the right of renewal shall clause 15 apply as a security agreement in the form of a PPS Lease in respect of Section 20 of the PPSA, in all other matters this clause 15 will apply generally for the purposes of the PPSA.
  15. Security and Charge
    1. In consideration of ClinicalPRO agreeing to supply the Products/Equipment, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    2. The Customer indemnifies ClinicalPRO from and against all ClinicalPRO’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ClinicalPRO’s rights under this clause.
    3. The Customer irrevocably appoints ClinicalPRO and each director of ClinicalPRO as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Customer’s behalf.
  16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
    1. The Customer must inspect the Products/Equipment on Delivery and must within two (2) days of Delivery notify ClinicalPRO in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Products/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow ClinicalPRO to inspect the Products/Equipment.
    2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
    3. ClinicalPRO acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, ClinicalPRO makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Products/Equipment. ClinicalPRO’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    5. If the Customer is a consumer within the meaning of the CCA, ClinicalPRO’s liability is limited to the extent permitted by section 64A of Schedule 2.
    6. If ClinicalPRO is required to replace the Products/Equipment under this clause or the CCA, but is unable to do so, ClinicalPRO may refund any money the Customer has paid for the Products.
    7. Subject to the CCA in respect of any expressed warranties and guarantees, ClinicalPRO’s liability for any defect or damage in the Equipment is:
      1. limited to the value of any express warranty as specified in any warranty documentation provided to the Customer by ClinicalPRO, at ClinicalPRO’s sole discretion which may be;
        1. an expressed warranty that will cease in respect of the Equipment supplied from the date of delivery in accordance with clause 6 of ClinicalPRO’s Terms and Conditions of Trade subject to:
          1. The Manufacturer’s warranty of:
            1. twelve (12) months from the date of delivery for any consumables provided; and
          2. ClinicalPRO warranty of:
            1. six (6) months from the date of delivery for Equipment that has a value of five thousand dollars ($5000) or less;
            2. twelve (12) months from the date of delivery for Equipment that has a value of more than five thousand dollars ($5000);
          3. in respect of all claims ClinicalPRO shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim; and
          4. the warranty shall cease and ClinicalPRO shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered, tampered with or overhauled by the Customer or anyone else other than a ClinicalPRO or Manufacturer representative or without ClinicalPRO’s written consent; or
          5. otherwise negated absolutely.
        2. Subject to this clause 17, returns will only be accepted provided that:
          1. the Customer has complied with the provisions of clause 1; and
          2. ClinicalPRO has agreed that the Products/Equipment are defective; and
          3. the Products/Equipment are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
          4. the Products/Equipment are returned in as close a condition to that in which they were delivered as is possible.
        3. Notwithstanding clauses 1 to 17.8 but subject to the CCA, ClinicalPRO shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
          1. the Customer failing to properly maintain or store any Products/Equipment;
          2. the Customer using the Products/Equipment for any purpose other than that for which they were designed;
          3. the Customer continuing the use of the Products/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
          4. the Customer failing to follow any instructions or guidelines provided by ClinicalPRO;
          5. fair wear and tear, any accident, or act of God.
        4. In the case of second hand Products, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Products prior to Delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by ClinicalPRO as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that ClinicalPRO has agreed to provide the Customer with the second hand Products and calculated the Price of the second hand Products in reliance of this clause 10.
        5. ClinicalPRO may in its absolute discretion accept non-defective Products for return in which case ClinicalPRO may require the Customer to pay handling fees of up to twenty percent (20%) of the value of the returned Products plus any freight costs.
        6. Notwithstanding anything contained in this clause if ClinicalPRO is required by a law to accept a return then ClinicalPRO will only accept a return on the conditions imposed by that law.
        7. Subject to clause 1, customised, or non-stocklist items or Products made or ordered to the Customer’s specifications are not acceptable for credit or return.
  17. Intellectual Property
    1. The copyright in any techniques, processes, trade secrets and know-how, and any branding, marketing, trademarks, trade names, logos, labelling, and any other intangible property rights, including applications and registrations for any of the foregoing (“IP”), created, designed or developed for the Customer by ClinicalPRO, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired, relating to the supply of Product, shall remain the sole property of ClinicalPRO.
    2. ClinicalPRO guarantees the Customer an exclusive and non-transferable licence to use any IP created by ClinicalPRO solely in relation to the operation of the Customer’s own business/commercial endeavours, and for the duration of this Contract only. ClinicalPRO may, at their sole discretion, transfer the IP to the Customer; however, the Customer’s rights in relation to the IP shall terminate on default of payment or any other terms of this Contract by the Customer.
    3. The Customer agrees that ClinicalPRO may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Products/Equipment which ClinicalPRO has created for the Customer.
  18. Default and Consequences of Default
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at ClinicalPRO’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Customer owes ClinicalPRO any money the Customer shall indemnify ClinicalPRO from and against all costs and disbursements incurred by ClinicalPRO in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, ClinicalPRO’s contract default fee, and bank dishonour fees).
    3. Further to any other rights or remedies ClinicalPRO may have under this Contract, if a Customer has made payment to ClinicalPRO, and the transaction is subsequently reversed, the Customer shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by ClinicalPRO under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Customer’s obligations under this Contract.
    4. Without prejudice to ClinicalPRO’s other remedies at law ClinicalPRO shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to ClinicalPRO shall, whether or not due for payment, become immediately payable if:
      1. any money payable to ClinicalPRO becomes overdue, or in ClinicalPRO’s opinion the Customer will be unable to make a payment when it falls due;
      2. the Customer has exceeded any applicable credit limit provided by ClinicalPRO;
      3. the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
  19. Cancellation
    1. Without prejudice to any other remedies ClinicalPRO may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions ClinicalPRO may suspend or terminate the supply of Products/Equipment to the Customer. ClinicalPRO will not be liable to the Customer for any loss or damage the Customer suffers because ClinicalPRO has exercised its rights under this clause.
    2. ClinicalPRO may cancel any contract to which these terms and conditions apply or cancel Delivery of Products/Equipment at any time before the Products/Equipment are delivered by giving written notice to the Customer. On giving such notice ClinicalPRO shall repay to the Customer any money paid by the Customer for the Products/Equipment. ClinicalPRO shall not be liable for any loss or damage whatsoever arising from such cancellation.
    3. In the event that the Customer cancels Delivery of Products/Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by ClinicalPRO as a direct result of the cancellation (including, but not limited to, any loss of profits).
    4. Cancellation of orders for Products/Equipment made to the Customer’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
  20. Privacy Policy
    1. All emails, documents, images or other recorded information held or used by ClinicalPRO is Personal Information, as defined and referred to in clause 3, and therefore considered Confidential Information. ClinicalPRO acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). ClinicalPRO acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Customers Personal Information, held by ClinicalPRO that may result in serious harm to the Customer, ClinicalPRO will notify the Customer in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Customer by written consent, unless subject to an operation of law.
    2. Notwithstanding clause 1, privacy limitations will extend to ClinicalPRO in respect of Cookies where transactions for purchases/orders transpire directly from ClinicalPRO’s website. ClinicalPRO agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Customer’s:
      1. IP address, browser, email client type and other similar details;
      2. tracking website usage and traffic; and
      3. reports are available to ClinicalPRO when ClinicalPRO sends an email to the Customer, so ClinicalPRO may collect and review that information (“collectively Personal Information”)In order to enable / disable the collection of Personal Information by way of Cookies, the Customer shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via ClinicalPRO’s website.
    3. The Customer agrees for ClinicalPRO to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Customer in relation to credit provided by ClinicalPRO.
    4. The Customer agrees that ClinicalPRO may exchange information about the Customer with those credit providers and with related body corporates for the following purposes:
      1. to assess an application by the Customer; and/or
      2. to notify other credit providers of a default by the Customer; and/or
      3. to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
      4. to assess the creditworthiness of the Customer including the Customer’s repayment history in the preceding two (2) years.
    5. The Customer consents to ClinicalPRO being given a consumer credit report to collect overdue payment on commercial credit.
    6. The Customer agrees that personal credit information provided may be used and retained by ClinicalPRO for the following purposes (and for other agreed purposes or required by):
      1. the provision of Products/Equipment; and/or
      2. analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Products/Equipment; and/or
      3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
      4. enabling the collection of amounts outstanding in relation to the Products/Equipment.
    7. ClinicalPRO may give information about the Customer to a CRB for the following purposes:
      1. to obtain a consumer credit report;
      2. allow the CRB to create or maintain a credit information file about the Customer including credit history.
    8. The information given to the CRB may include:
      1. Personal Information as outlined in 21.3 above;
      2. name of the credit provider and that ClinicalPRO is a current credit provider to the Customer;
      3. whether the credit provider is a licensee;
      4. type of consumer credit;
      5. details concerning the Customer’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
      6. advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Customer no longer has any overdue accounts and ClinicalPRO has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
      7. information that, in the opinion of ClinicalPRO, the Customer has committed a serious credit infringement;
      8. advice that the amount of the Customer’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    9. The Customer shall have the right to request (by e-mail) from ClinicalPRO:
      1. a copy of the Personal Information about the Customer retained by ClinicalPRO and the right to request that ClinicalPRO correct any incorrect Personal Information; and
      2. that ClinicalPRO does not disclose any Personal Information about the Customer for the purpose of direct marketing.
    10. ClinicalPRO will destroy Personal Information upon the Customer’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
    11. The Customer can make a privacy complaint by contacting ClinicalPRO via e-mail. ClinicalPRO will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Customer is not satisfied with the resolution provided, the Customer can make a complaint to the Information Commissioner at www.oaic.gov.au.
  21. Service of Notices
    1. Any written notice given under this Contract shall be deemed to have been given and received:
      1. by handing the notice to the other party, in person;
      2. by leaving it at the address of the other party as stated in this Contract;
      3. by sending it by registered post to the address of the other party as stated in this Contract;
      4. if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
      5. if sent by email to the other party’s last known email address.
    2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
  22. Trusts
    1. If the Customer at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not ClinicalPRO may have notice of the Trust, the Customer covenants with ClinicalPRO as follows:
      1. the Contract extends to all rights of indemnity which the Customer now or subsequently may have against the Trust and the trust fund;
      2. the Customer has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Customer against the Trust or the trust fund. The Customer will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity.
      3. the Customer will not without consent in writing of ClinicalPRO (ClinicalPRO will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events;
        1. the removal, replacement or retirement of the Customer as trustee of the Trust;
        2. any alteration to or variation of the terms of the Trust;
        3. any advancement or distribution of capital of the Trust; or
        4. any resettlement of the trust property.
  23. General
    1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which ClinicalPRO has its principal place of business, and are subject to the jurisdiction of the Brisbane Courts of Queensland.
    3. Subject to clause 17, ClinicalPRO shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by ClinicalPRO of these terms and conditions (alternatively ClinicalPRO’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Products).
    4. ClinicalPRO may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Customer’s consent.
    5. The Customer cannot licence or assign without the written approval of ClinicalPRO.
    6. ClinicalPRO may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Customer agrees and understands that they have no authority to give any instruction to any of ClinicalPRO’s sub-contractors without the authority of ClinicalPRO.
    7. The Customer agrees that ClinicalPRO may amend their general terms and conditions for subsequent future contracts with the Customer by disclosing such to the Customer in writing. These changes shall be deemed to take effect from the date on which the Customer accepts such changes, or otherwise at such time as the Customer makes a further request for ClinicalPRO to provide Products/Equipment to the Customer.
    8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
    9. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

      Additional Terms & Conditions Applicable to Hire Only
  24. Contract Term
    1. The commencement date shall be the date of the first Delivery of the Services, or from the date of signing a Contract, whichever, is the earlier.  The Contract shall be for the period (‘initial term”) as agreed between both parties and shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least thirty (30) days required notice as defined in the Contract prior to the expiration date of the initial term or any additional term.
    2. The Customer acknowledges and accepts that the Charges stated will remain fixed for an initial period of twelve (12) months from the date of the Contract and will then be subject to revision on the basis of the movement in the Consumer Charges Index (CPI).
  25. Licence to Use
    1. ClinicalPRO grants to the Customer a personal, non-exclusive, non-transferable, limited licence to use the Equipment, provided that:
      1. the Customer ensures the Equipment is serviced at intervals commensurate with the machine usage or manufacturers recommendations exclusively by an authorised servicing agent; and
      2. any consumables and sundry items (including, but not limited to, cleaning products for the Equipment) which are to be utilised in conjunction with the Equipment are purchased exclusively from ClinicalPRO.
    2. If the Customer fails to adhere to clause 1, ClinicalPRO may (at their sole discretion) terminate the Hire Contract or apply penalty charges to the Customer’s account, the amount immediately becoming due and payable.
  26. Hire Period
    1. If ClinicalPRO agrees with the Customer to deliver and/or collect the Equipment, hire charges shall commence from the time the Equipment leaves ClinicalPRO’s premises and continue until the Customer notifies ClinicalPRO that the Equipment is available for collection, and/or until the expiry of the Minimum Hire Period, whichever last occurs.
    2. The date upon which the Customer advises of termination shall in all cases be treated as a full day’s hire.
    3. No allowance whatsoever can be made for time during which the Equipment is not in use for any reason, unless ClinicalPRO confirms special prior arrangements in writing. In the event of Equipment breakdown provided the Customer notifies ClinicalPRO immediately, hiring charges will not be payable during the time the Equipment is not working, unless the condition is due to negligence or misuse on the part of or attributable to the Customer.
  27. Risk to Equipment
    1. ClinicalPRO retains property in the Equipment nonetheless all risk for the Equipment passes to the Customer on Delivery.
    2. The Customer accepts full responsibility for the safekeeping of the Equipment and indemnifies ClinicalPRO for all loss, theft, or damage to the Equipment howsoever caused and without limiting the generality of the foregoing whether or not such loss, theft, or damage is attributable to any negligence, failure, or omission of the Customer.
    3. The Customer will insure, or self insure, ClinicalPRO’s interest in the Equipment against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property arising out of the Equipment. Further the Customer will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
    4. The Customer accepts full responsibility for and shall keep ClinicalPRO indemnified against all liability in respect of all actions, proceedings, claims, damages, costs and expenses in respect of any injury to persons, damage to property, or otherwise arising out of the use of the Equipment during the hire period and whether or not arising from any negligence, failure or omission of the Customer or any other persons.
  28. Title to Equipment
    1. The Equipment is and will at all times remain the absolute property of ClinicalPRO.
    2. If the Customer fails to return the Equipment to ClinicalPRO then ClinicalPRO or ClinicalPRO’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Equipment is situated and take possession of the Equipment, without being responsible for any damage thereby caused.
    3. The Customer is not authorised to pledge ClinicalPRO’s credit for repairs to the Equipment or to create a lien over the Equipment in respect of any repairs.
  29. Customer’s Responsibilities
    1. The Customer shall:
      1. maintain the Equipment as is required by ClinicalPRO (including, but not limited to, maintaining any consumables, etc.);
      2. notify ClinicalPRO immediately by telephone of the full circumstances of any mechanical breakdown or accident. The Customer is not absolved from the requirements to safeguard the Equipment by giving such notification;
      3. satisfy itself at commencement that the Equipment is suitable for its purposes;
      4. operate the Equipment safely, strictly in accordance with the law, only for its intended use, and in accordance with any manufacturer’s instruction whether supplied by ClinicalPRO or posted on the Equipment;
      5. ensure that all persons operating or erecting the Equipment are suitably instructed in its safe and proper use and where necessary hold a current Certificate of Competency and shall provide evidence of the same to ClinicalPRO upon request;
      6. comply with all work health and safety laws relating to the Equipment and its operation;
      7. on termination of the hire, deliver the Equipment complete with all parts and accessories, clean and in good order as delivered, fair wear and tear accepted, to ClinicalPRO;
      8. keep the Equipment in their own possession and control and shall not assign the benefit of the hire Contract nor be entitled to lien over the Equipment;
      9. not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment;
      10. employ the Equipment solely in its own work and shall not permit the Equipment or any part thereof to be used by any other party for any other work;
      11. not exceed the recommended capacity limits of the Equipment;
      12. not use or carry any prohibited or dangerous substance in or on the Equipment;
      13. not fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold;
    2. Immediately on request by ClinicalPRO the Customer will pay:
      1. the new list price of any Equipment that is for whatever reason destroyed, written off or not returned to ClinicalPRO;
      2. all costs incurred in cleaning the Equipment;
      3. all costs of repairing any damage caused by the ordinary use of the Equipment up to an amount equal to ten percent (10%) of the new list price of the Equipment;
      4. the cost of repairing any damage to the Equipment caused by the negligence of the Customer or the Customer’s agent;
      5. any lost hire fees ClinicalPRO would have otherwise been entitled to for the Equipment, under this, or any other hire Contract;
      6. the cost of repairing any damage to the Equipment caused by vandalism, or (in ClinicalPRO’s reasonable opinion) in any way whatsoever other than by the ordinary use of the Equipment by the Customer;
      7. the cost of any consumables provided by ClinicalPRO and used by the Customer.
  30. Termination
    1. The Contract may be terminated by either party giving notice in writing to the other party not less than three (3) months prior to any renewal of this Contract.
    2. ClinicalPRO may terminate the Contract without notice and repossess the Equipment if the Customer is in default of its obligations under the Contract. The Customer hereby authorises ClinicalPRO or its agents or employees to enter the locations specified in the schedule or repossess the Equipment in accordance with clauses 20 and 29.2.  The Customer shall pay any costs incurred by ClinicalPRO on the repossession of the Equipment.