1.1 ‘Clinical’ means ClinicalPRO (ABN 29 111 745 049) and or its employees, authorised agents and permitted assigns.
1.2 ‘the Customer’ means the person or legal entity identified in any Clinical credit application, invoice or quotation documentation.
1.3 ‘Products’ means and includes all products and devices sold to the Customer and services incidental to the supply of such products and or devices.
2. Acceptance of Terms – These terms and conditions of sale (‘terms’) apply to all products sold by Clinical to the exclusion of any other terms stipulated by the Customer. It is acknowledged by the Customer that upon acceptance of a Clinical quotation and/or receipt of products by the Customer is deemed acceptance of these terms by the Customer.
3. Terms of Payment – Except where a credit application has been received by Clinical from the Customer and approved in writing by Clinical, payment for the products shall be made in full upon acceptance by the Customer of the Clinical quote and prior to delivery of the products. All payments are to be made in Australian dollars. Deposits made against an order placed are non-refundable, but may be used as credit towards any other Clinical products.
4.1 Clinical will deliver the products to the address nominated by the Customer and agreed to by Clinical and the Customer shall make all arrangements necessary to take delivery of the products when they are tendered for delivery. Delivery of the products by Clinical to a carrier either upon the Customers request or at the discretion of Clinical for the purposes of transmission of the products to the Customer, is deemed to be delivery of the products to the Customer. The Customer shall reimburse Clinical for any reasonable costs associated with delivery of the products by a carrier. Delivery of the products to the nominee of the Customer is deemed to be delivery to the Customer. The Customer will pay for storage charges if the products are held by Clinical at Customer’s request pending instruction or re-scheduled delivery. Any dates quoted by Clinical for the delivery of the products are approximate only and Clinical shall not be liable for any delay in delivery of products however caused.
4.2 Any products returned are only accepted with the prior written approval of Clinical and may be subject to a 20% restocking/handling fee.
5. Acceptance of Products – Products are deemed to be accepted unless the Customer notifies Clinical in writing within two (2) business days of delivery, of products damage, omissions or defects. The Customer shall not be entitled to withhold payment of all or any of the payment for the products whilst any claim is investigated by Clinical. Upon the Customer notifying Clinical of any damage or defects the Customer will within a reasonable time afford Clinical an opportunity to inspect the products. Subsequent to Clinical’s inspection of the products alleged to be damaged or defective, Clinical will notify the Customer in writing whether the Customer is entitled to reject the products. In the event that Clinical agrees in writing that the Customer is entitled to reject the products, Clinical’s liability is, at its absolute discretion, limited to either replacing or repairing the products or refunding the purchase price paid for the products provided that the same are returned to Clinical within two (2) business days of receipt of Clinical’s notice to the Customer that it is entitled to reject the products. In the event that the Customer fails to comply with the above, the products shall be deemed free from any omissions, damage or defect.
6. Liability – So far as permitted by law and save as expressly provided in these terms Clinical’s total liability to the Customer in either contract or tort or otherwise, arising directly or indirectly in respect of the sale or use of the products shall not exceed the total price paid for the purchase of the products under these terms. It is expressly agreed between Clinical and the Customer that Clinical will not otherwise be liable to the Customer for any direct or indirect, incidental, special or consequential loss or damage, personal injury or loss of business or profit arising out of or in connection with the purchase, use or performance of the products and the Customer indemnifies Clinical against any penalty or liability incurred by Clinical for any breach by the Customer of these terms and against all actions, claims, demands, losses, damages, costs and expenses which Clinical may sustain or incur or for which Clinical may become liable under these terms, by reason of any act or omission or negligence by Clinical.
7. Australian Government Contracts – If the Customer’s order is placed under a contract with the Australian Government, Clinical agrees to comply with those contract provisions and regulations with which, pursuant to law, it must comply and of which the Customer has, at the time of order placement, placed Clinical on notice. In no event will Australian cost accounting standards apply. All rights in technical data and software owned or licensed by Clinical or its supplier’s are hereby reserved and deemed restricted or limited. No provision of the Customer’s contract with the government will be binding on Clinical or its supplier’s except as expressly set forth in this paragraph.
8. Product Use – Unless otherwise specifically agreed in writing by Clinical, the Customer acknowledges that products sold by Clinical 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 Clinical harmless from any loss, cost, or damage resulting from the Customer’s breach of the provisions of this paragraph.
9. Export Restrictions – It is expressly acknowledged by the Customer that products sold under these terms may be subject to export or resale restrictions or regulations, and the Customer acknowledges that it will fully comply with such regulations or restrictions. Any or all products may have been imported. Country of origin information is as provided to Clinical by its suppliers.
10. Prices – Prices are subject to change in response to supplier price increases, whereupon, the Customer may cancel the undelivered portion of any affected order by providing written notice to Clinical prior to the shipment thereof and within five (5) business days of its receipt of notice of the price increase. All wholesale prices are listed excluding GST.
11. Risk and Property in Products
11.1 For the purposes of the Personal Property Securities Act 2009 (as amended from time to time) (the “PPSA”) the term “Goods” used in this clause means any and all present and after acquired Products supplied by Clinical to the Customer;
11.2 The Goods shall be entirely at the risk (including loss, damage or deterioration) of the Customer from the time of dispatch of the Goods (the carrier of the Goods shall be taken to be the agent of the Customer even if engaged or paid by Clinical).
11.3 Clinical retains full title to the Goods until Clinical receives payment in full for the Goods and all other amounts owed by the Customer to Clinical.
11.4 Until all such monies have been paid:
11.4.1 Clinical has the right to call for or recover possession of the Goods (for which purpose Clinical’s employees or agents may enter onto the Customer’s premises) and the Customer must deliver up the Goods if so directed by Clinical;
11.4.2 the Customer:
126.96.36.199 agrees that the relationship between the Customer and Clinical shall be fiduciary and the Customer shall keep the Goods safely, securely and separately stored and marked in a manner which clearly indicates that they belong to Clinical;
188.8.131.52 shall not resell, encumber or dispose of the Goods;
184.108.40.206 shall not mix the Goods with or attach them to other materials or otherwise make them unable to be returned to Clinical in their original state;
220.127.116.11 agrees that if, in breach of this clause, the Goods are incorporated with Goods of the Customer, the resultant product shall become and be deemed to be the sole property of Clinical. If the Goods are incorporated in any way with the property of a party other than the Customer, the resultant product shall become and be deemed to be owned in common by Clinical with that other party (or parties) on a pro-rata basis to be calculated by reference to the cost to the Customer of the incorporated materials; and
18.104.22.168 will hold any proceeds (as that term is defined in the PPSA) of any resale, disposal or other dealing with the Goods or any product incorporating the Goods (including sale or supply to a party other than the Customer) in breach of this clause in trust for Clinical and shall pay the proceeds into a separate fiduciary account to be held in trust for Clinical until accounted for to Clinical at the demand of Clinical.
11.5 To avoid any doubt, for the purposes of the PPSA, it is the intention of the parties by this clause 11 that there is created for the benefit of Clinical a Purchase Money Security Interest in the Goods;
11.6 The Customer agrees that Clinical may register any personal property security interest created by the General Terms and Conditions of Sale on the Personal Property Securities Register and the Customer waives its rights to receive a verification statement (as that term is defined in the PPSA) in respect of any financing statement or financing change statement (as those terms are defined in the PPSA) registered by Clinical in respect of any personal property of the Customer. The parties agree that, insofar as the provisions of Chapter 4 of the PPSA are for the benefit of the Customer or place an obligation on Clinical, those provisions will apply only to the extent that they cannot be contracted out of or to the extent that Clinical otherwise agrees in writing.
12. Charging Clause
12.1 To secure payment of all monies which are or may become payable by the Customer to Clinical under these General Terms and Conditions of Sale the Customer (or where the Customer is comprised of two or more persons or other entities then each person and other entity) hereby charges as beneficial owner and as trustee of any trust in favour of Clinical all the Customers’ right, title and interest in land (held now or in the future) with the due payment of all of those monies. The Customer acknowledges that Clinical may register a caveat or caveats over the Customer’s land in respect of this charge.
12.2 If the Customer is a trustee of any trust:
12.2.1 it is bound by these General Terms and Conditions of Sale and charges the Customer’s land as trustee and/or held as trustee;
12.2.2 warrants that it is a proper exercise of the Customer’s authority and power under the trust instrument and at law to trade with Clinical and to charge the Customer’s land under these General Terms and Conditions.
12.3 Upon demand by Clinical, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to Clinical to further secure the Customer’s indebtedness to the Clinical.
12.4 Should the Customer fail within a reasonable time of such demand to execute such mortgage or other instrument then the Customer appoints irrevocably the credit manager or a duly authorised officer of Clinical to be the Customer’s lawful attorney to execute any such mortgage or other instrument.
12.5 Where the Customer is a trustee of any trust:-
12.5.1 The Customer agrees to produce immediately to Clinical a stamped copy of the trust deed (including all amendments) upon written notice from Clinical.
12.5.2 The Customer warrants that it has full power and authority to enter into these General Terms and Conditions of Sale on behalf of the trust and that it shall be bound by these General Terms and Conditions of Sale both personally and as trustee and clause 12 extends to any land held by the Customer as trustee.
13. Default – The Customer agrees to pay all legal costs, collection costs, and disbursements incurred by Clinical on an indemnity basis in respect of any action taken by Clinical relevant to any default by the Customer in making payment of any invoice or any of these terms. Clinical reserves the right to withhold all action on the Customer’s behalf or the supply of the products to the Customer if, at any time, the Customer is in breach of any obligation contained herein, including those relating to payment. Clinical will not be liable to the Customer for any loss or damage suffered as a consequence of Clinical exercising its rights pursuant to this paragraph.
14. Interest – Clinical reserves its rights to charge the Customer interest on overdue invoices which shall accrue from the date when payment becomes due. Interest shall be calculated at the rate of 15% per calendar month or part thereof.
15. Liability And Defective Products
The Customer agrees that:
15.1 the Customer must satisfy itself as to the truth and accuracy of and may not rely for any purpose upon, any technical or other advice or information provided by or on behalf of Clinical in connection with Products;
15.2 subject to clause 15.7 except to the extent prohibited by law, the only remedy of the Customer against Clinical for any loss, damage or liability whether in contract, tort, negligence or otherwise of the Customer in connection with the General Terms and Conditions of Sale, the Products, Clinical’s supply of the Products or Clinical’s failure to supply the Products to the Customer in accordance with the General Terms and Conditions of Sale shall be limited to Clinical, at its option, replacing or repairing the Products; and
15.3 subject to clause 15.7 Clinical shall otherwise have no liability to the Customer whether in contract, tort, negligence or otherwise.
15.4 Within fourteen (14) days after the delivery of Products the Customer shall both complete any inspection required by it to confirm the Products comply with any requirements of quantities, quality or description and notify Clinical in writing of the extent to which the Products do not comply with the General Terms and Conditions of Sale any requirements of quantities, quality or description.
15.5 The Customer shall not use the Products (other than to the extent reasonably necessary for inspection) before the Customer completes its inspection and satisfies itself that the Products comply with any requirements of quantities, quality or description, or, if the Customer notifies Clinical under clause 15.4 that the Products do not comply with any requirements of quantities, quality or description, Clinical has had a reasonable opportunity to inspect the Products after Clinical receives that notice.
15.6 If the Customer does not comply with this clause 15, the Customer shall be taken to have unconditionally accepted the Products and the Customer shall lose any right to reject the Products or claim any remedy (including damages) against Clinical.
15.7 However, if the Customer is a Consumer (as the term “Consumer” is defined at section 3 of the Australian Consumer Law (which is at Schedule 2 of the Competition and Consumer Act 2010) the Products comes with guarantees that cannot be excluded under the Australian Consumer Law. Such a Consumer Customer is entitled to replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. A Consumer Customer is also entitled to have the Products repaired or replaced if the Products fail to be of accepted quality and the failure does not amount to a major failure.
16. Jurisdiction – These terms and all transactions hereunder are governed by the laws of the State of Queensland and Clinical and the Customer submit to the exclusive jurisdiction of the Courts of that State.
17. Miscellaneous – If any of these terms is held by any Court or other competent authority to be invalid, void or unenforceable in whole or in part, the validity of the other provisions of these terms shall not be affected. Any addition or change to these terms must be specifically agreed to in writing by a duly authorised officer of Clinical before becoming binding on Clinical. Clinical may alter these terms at any time by giving reasonable notice to the Customer.