Australia – Terms and Conditions of Sale

1.    DEFINITIONS

Agent means, in relation to a party, anyone acting for or on behalf of that party in any capacity including that party’s directors, officers, employees, contractors, agents, representatives.

ACL means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010. Customer means a person or entity who purchases Goods from SIA or is supplied with Goods by SIA.

Confidential Information means any information of any type in any form or medium disclosed, provided or made available by SIA to the Customer in connection with the Goods or an Order (verbally or in writing) that is by its nature or regarded by SIA as confidential, proprietary, of commercial value or sensitive including without limitation Goods prices, marketing methods and concepts, commercial information, content of Quotes and Orders and information relating to SIA, SIA IPR, the Goods or their design or composition, but excluding information which is or becomes generally available to the public other than as a result of a breach of these Terms.

Force Majeure Event means an event beyond the reasonable control of a party including without limitation an act of God or nature, fire, explosion, war, terrorist attack or action, an unlawful act against public order, an industrial strike, lockout or dispute, civil disturbance, governmental restrictions, prohibitions or enactments of any kind, breakdown of machinery, shortage of raw materials, or similar events.

Goods means any goods and/or services ordered by the Customer from SIA or supplied to the Customer by SIA. GST means the Goods and Services Tax payable under “A New Tax System (Goods and Services Tax) Act 1999.

Insolvent means, in relation to a party, when the party fails to pay its debts as and when they fall due, becomes bankrupt, insolvent, subject to administration, receivership, liquidation, winding up or similar procedures or seeks protection from its creditors or an agreement with them in relation to arrangement of its debts.

Intellectual Property Rights or IPR means all proprietary and intellectual property rights of any kind throughout the world, whether registered, patentable or not, including without limitation copyrights, patents, designs, circuit layouts rights, trade secrets, know-how, methods, techniques, strategies, plans, processes, procedures, trade marks, service marks, trade   names, domain names and any right to apply for registration or renewal of any such rights.

Invoice means any tax invoice issued by SIA to the Customer in relation to Goods or any Order.

Loss means any loss, damage, cost, expense, liability, demand or claim (including third party claims) of any kind, however wherever and whenever arising on whatever legal grounds.

Order means an order of Goods or request to be supplied with Goods submitted by the Customer to SIA in any form, whether written, verbal or electronic.

PPSA means the Personal Property Securities Act 2009 (Cth). PPSR means the Personal Property Securities Register.

Quote means any quotation, offer, proposal or other submission provided by SIA to the Customer in any form (written, verbal or electronic) in relation to a proposed supply of Goods to the Customer.

SIA means Southern Implants Australia Pty Ltd ABN 12 151 869 171, of Suite 3, 1 Chaplin Drive Lane Cove West Sydney.

SIA IPR means as defined in clause 7(a) of these Terms.

Terms means the terms and conditions set out herein.

2.    Application of these terms
(a)    These Terms will apply to all Goods supplied by SIA and any transaction with SIA.
(b)    By ordering any Goods from SIA in any way the Customer accepts these Terms to the exclusion of any other terms, and agrees that these Terms will prevail over any other terms referred to in any document received from the Customer before or after the Order (even the Customer’s document states otherwise).
(c)    These Terms can not be amended and no right, power or remedy available to SIA under them may be waived other than by the written consent of SIA signed by a director of SIA.

3.    Order of Goods

(a)    Prior to placing an Order the Customer must ensure that the Goods to be ordered fit their intended use by the Customer. The Customer acknowledges and agrees that SIA makes no representation or warranty in relation to the Goods fitness for any purpose (to the fullest extent permitted by law).
(b)    SIA is not obliged to accept any Order and may at its sole and absolute discretion reject the Order or accept it subject to any terms SIA deems fit.
(c)    An Order is not binding on SIA unless and until accepted by SIA in writing, by issuing an Invoice or otherwise.
(d)    Each Order will be subject to and governed by these Terms and the terms of any applicable Quote and Invoice, which all together will form the contract between the Customer and SIA in relation to the Goods the subject of the Order. In the event of inconsistency between these Terms, an Order and an Invoice, the Invoice terms will prevail followed by these Terms.
(e)    Any description, illustration or information included in any marketing, advertising or promotional materials of SIA or on its website do not form part of the Order and are not binding on SIA. Any display or sample product made available to the Customer does not constitute a sale by sample.
(f)    After SIA accepts the Order the Customer is bound by it and can not change or cancel that Order (including the Goods quantity or specifications) without SIA’s prior written consent. If SIA agrees to change or cancel the Order, the Customer must indemnify SIA against any Loss suffered by it in connection with the Order change or cancellation, including but not limited to any price variation caused by the Customer’s request.
(g)    SIA may from time to time without notice stop supplying or change the specifications (including weights, dimensions, color or texture) of any Goods in whole or in part, without any obligation to the Customer other than the obligation to supply goods which SIA reasonably believes are materially similar to the Goods included in any Order already accepted in accordance with these Terms.

4.    Prices and payment
(a)    The binding prices of Goods are the prices specified in the Invoice issued by SIA. The prices specified in the Invoice are applicable to the Order the Invoice relates to only and SIA may at any time without notice at its sole discretion changes the prices of Goods.
(b)    All Goods prices specified by SIA (over the phone, in a Quote or Invoice) are exclusive of GST and any other taxes and duties applicable to the supply of goods. The Customer must add to all payments to SIA an amount equal to the GST and any other tax and duty amount applicable to the supply of the Goods by SIA to the Customer, in accordance with the relevant Invoice or as otherwise stipulated in writing by SIA.
(c)    The Customer must pay SIA all amounts payable under any Invoice without any deduction or set off within 30 days of the date of the Invoice unless otherwise specified in the Invoice or approved in writing by SIA.
(d)    The Customer must pay an interest on any overdue amounts that are not paid on their date at a rate of 5% (five per cent) above the prime overdraft rate charged from time to time by SIA’s bank calculated and payable daily. The Customer must also Indemnify SIA for any Loss incurred by it in connection with the Customer’s failure to pay any amounts on their due date including without limitation the costs of recovering the overdue amounts and legal costs and expenses.
(e)    If the Customer fails to pay SIA any amount due to it under any Order, becomes Insolvent or fails to remedy a breach of these Terms within 7 days of being requested in writing to do so, all monies owed by the Customer to SIA on any account under any Order become immediately due and payable, and SIA may at its sole and absolute discretion, in addition to any right or remedy available to SIA under these Terms or any law, take any one or more of the following actions:
– (i)    defer without penalty delivery and retain possession of any Goods ordered by but not yet delivered to the Customer (under the same Order or any other Order) for so long as any amount remains overdue;
– (ii)    refuse to accept any Order placed by the Customer;
– (iii)    suspend any services provided by SIA to the Customer;
– (iv)    deduct any money owed by the Customer to SIA from any other money already paid by the Customer to SIA in connection with any Order or otherwise;
– (v)    take all steps require to take possession of any Goods already delivered but not yet placed at the expense of the Customer (including by entering into any premises occupied by the Customer). The Customer must reimburse SIA on demand all Losses incurred by SIA directly or indirectly in connection with the exercise of SIA’s right to repossess the Goods, and SIA will not be liable for any Loss caused in connection with the exercise of its repossession rights; and/or
– (vi)    cancel any Orders already accepted by SIA by a notice in writing to the Customer and forfeit any payment made in relation to them, and without limiting SIA’s rights under these Terms or any law the Customer must pay SIA all Losses incurred by SIA in connection with any Order cancellation including without limitation:
– – (A)    the price of all Goods manufactured, imported or allocated for delivery to the Customer in connection with the Order;
– – (B)    the cost of all Goods which are in the process of being manufactured for the Customer (and SIA may at its sole discretion divert completed parts or work in progress from a cancelled Order to other contracts as it deems fit); and
– – (C)    the cost of any materials and equipment ordered for the purpose of completing an Order.

5.    Delivery
(a)    SIA will arrange the delivery of the Goods to the Customer to the address nominated by the Customer (verbally or in writing) at the cost of the Customer.
(b)    The Customer must repay SIA in full all delivery costs and expenses as specified in the relevant Invoice.
(c)    All quoted delivery dates are estimates only and will not be binding on SIA.
(d)    SIA may deliver the Goods by instalments and issue interim Invoices to Customer.
(e)    SIA is deemed to have delivered the Goods to the Customer when the Goods are left at the address nominated for delivery by the Customer.
(f)    The Goods will be deemed to have been delivered in good order and condition unless the Customer notifies SIA within 7 days of receiving the Goods of any defect or damage in the Goods.
(g)    The Customer may, at its sole risk and cost, return to SIA Goods that have been delivered to it within 30 days of delivery provided that the Goods have remained intact and unused in their original packaging. Upon receiving the returned Goods, SIA will examine their condition and provide to the Customer a credit in an amount equal to the price of the Goods specified in the Invoice relating to them less any decrease in value due to the returned condition of the Goods, delivery costs and any Loss incurred by SIA in connection with the return (together with a cancellation fee of 10%).

6.    Title, Risk and PPSR
(a)    Legal and beneficial ownership in the Goods remains exclusively with SIA and does not pass to the Customer (even if the Customer becomes Insolvent) until SIA has received payment in full in cleared funds of all amounts due to it under the applicable Invoice.
(b)    Until title and ownership in the Goods pass to the Customer, the Customer must:
– (i)    hold the Goods as bailee for SIA, store them separately and mark them so that they are clearly and easily identifiable as SIA’s property; and
– (ii)    not sell, dispose, part possession or otherwise deal with any of the Goods without SIA’s prior written consent, except in the ordinary course of business (alone or mixed with other goods) and provided that the Customer must pay the proceeds of sale of the Goods to SIA, and until such payment is made the Customer must hold these proceeds on trust for SIA in a separate account.
(c)    The risk to the Goods (including the risk of any loss, theft, deterioration or damage) passes to the Customer from the moment the Goods leave the premises of SIA and taken for delivery.
(d)    The Customer grants SIA a security interest in the Goods and their proceeds for the purpose of securing the payment of any money owed by the Customer to SIA in relation to the Goods or otherwise on any account in accordance with the PPSA whenever applicable. The Customer acknowledges that each Order for the sale of Goods constitutes a security agreement for the purpose of the PPSA, and:
– (i)    The Customer consents to SIA effecting a registration on the PPSR at the cost of the Customer of any security interest arising under or in connection with the Goods or their proceeds or any Order, and undertakes do  and sign all things required and provide SIA all information and assistance needed by it to perfect and to register such interest.
– (ii)    The Customer waives the right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
– (iii)    The Customer undertake not to:
– – (A)    register a financing change statement in respect of a security interest relating to any Goods or Order without SIA’s prior written consent; and
– – (B)    register, or permit to be registered, a financing statement or a financing change statement in relation to Goods in favour of a third party without SIA’s prior written consent.
(iv)    The Customer agrees not to disclose and waives the right to authorize the disclosure of information of the kind referred to in section 275(1) of the PPSA to an interested person, or any other person requested by an interested person, in accordance with section 275(7)(c) of the PPSA.
(v)    To the maximum extent permitted by law, the Customer waives any rights it may have pursuant to, and the parties contract out of, the sections of the PPSA that may be contracted out by consent, including the right to receive notice under the PPSA sections referred to in section 144 of the PPSA.

7.    Intellectual Property Rights
(a)    All IPR in or relating to the Goods (SIA IPR) remains the sole and exclusive property of SIA or its related group companies and the Customer will have no right, title or interest in them.
(b)    Without SIA’s prior written consent, the Customer must not, and must not assist or permit anyone to:
– (i)    copy, reproduce, alter, modify, customize or disassemble the Goods in whole or in part; or
– (ii)    remove any copyright notices, trademarks or restricted rights legends which appear on any Goods’ components.
(c)    The Customer must notify SIA of any suspected or actual:
– (i)    infringement of the SIA IPR by a third party; and
-(ii)    claims alleging infringement of third party rights in connection with the Goods,
that the Customer or its Agents becomes aware of, and the Customer must co-operate with and assist SIA, at the cost of SIA, to protect the SIA IPR and oppose any third party claim against them.

8.    Confidential Information
(a)    All right, title and interest in the Confidential Information vest in and remain exclusively with SIA.
(b)    Without SIA’s prior written consent, the Customer must not, and must ensure its Agents do not, use or disclose, communicate or make available the Confidential Information directly or indirectly to anyone other than as required to assess a Quote or submit, pay for or accept delivery of an Order or insure Goods.
(c)    The Customer acknowledges and agrees that a breach of this clause 8 may cause damage or loss to SIA for which a monetary remedy may not be adequate or sufficient, and SIA may seek specific performance or an injunctive or other relief from a court of competent jurisdiction as a remedy for any actual or anticipated breach by the Customer, in addition to any other right or remedy available to SIA under these Terms, at law or otherwise.

9.    Warranty and limitations of liability
(a)    To the fullest extent permitted by law and subject to clause 9 (b) below, all warranties, terms and conditions that are not expressly included in these Terms are excluded, including in relation to the fitness of the Goods for any specific purposes or needs of the Customer or in relation to any technical or other characteristics of the Goods.
(b)    The Customer acknowledges and agrees that it has not relied on any warranty, representation or advice of SIA or any of its Agents in relation to any Goods before ordering them.
(c)    If the Customer is a consumer as defined under the ACL, the consumer guarantees set out in Part 3-2 Division 1 of the ACL will apply to the supply of the Goods to that Customer to the extent required under the ACL.
(d)    To the fullest extent permitted by law, SIA will not be liable (whether under statute, in contract, in torts (including negligence) or otherwise) for any:
– (i)    Consequential, incidental, indirect or special Loss (including loss of profit, contract, opportunity, goodwill, production, savings or data) arising in connection with any Order or Goods, including without limitation in connection with the Goods’ delivery, storage, handling, placement, use, operation or maintenance;
– (ii)    Loss due to fair wear and tear of the Goods;
– (iii)    Loss caused by delay in the performance or non-performance of any of its obligations due to a Force Majeure Event.
(e)    To the fullest extent permitted by law and subject to clause 9(b) above, any liability of SIA under or in connection with an Order will:
– (i)    be reduced by the amount of any contributory loss or damage to the extent caused by an act or omission of the Customer or its Agents;
– (ii)    be limited to the repair or replacement of the Goods, the supply of equivalent goods or the payment of the cost of repairing or replacing the Goods or acquiring equivalent goods; and
– (iii)    Will not exceed the portion of the Goods price paid by the Customer to SIA under the Order.
(f)    The Customer must indemnify and hold SIA harmless from and against any Loss suffered or incurred by SIA in connection with the Goods or their placement, use or maintenance or any act or omission of the Customer or its Agents.

10.    General
(a)    In these Terms, unless the context requires otherwise:
– (i)    Heading are for convenience only and do not affect interpretation.
– (ii)    The singular includes the plural and conversely and a gender includes all genders.
– (iii)    A reference to a person includes any incorporated or unincorporated entity and conversely.
– (iv)    A reference to any party includes that party’s successors and permitted assigns.
– (v)    A reference to any legislation in whole or in part includes any amendment, consolidation or replacement of it and all regulations, proclamations, by-laws and statutory instruments issues under it.
– (vi)    A reference to a conduct includes, without limitation, any omission, statement or undertaking.
– (vii)    An agreement, representation or warranty on the part of two or more persons binds them jointly and severally.
– (viii)    No provision will be construed adversely to a party on the grounds that the party is responsible for its preparation.
(b)    These Terms together with the applicable Quote, Order and Invoice (subject to the order or precedence specified in clause 3 (d) above) constitute and embody the entire agreement between the Customer and SIA in relation to the sale of Goods by SIA to the Customer which supersedes and replaces any previous agreement, arrangement, understanding or communication between the parties in relation to such sale.
(c)    Any right, power or remedy granted to a party under these Terms is in addition to and without limiting any other right, power or remedy granted to that party in any applicable law, equity, agreement or otherwise.
(d)    The Customer may not assign any Order or any right or benefit granted to it under it to any third party without the prior written consent of SIA.
(e)    If there is more than one Customer specified in an Order, all Customers will be liable jointly and severally.
(f)    The Customer authorizes SIA to complete any blanks on any form for the purpose of performing an Order.
(g)    If any provision of these Terms is held by any competent legal authority to be invalid or unenforceable in whole or in part in any jurisdiction, it will be read down so far as necessary to make it enforceable and if not possible – it will be severed from these Terms, but without affecting the validity and enforceability of the other provisions in that jurisdiction and of that provision in other jurisdictions.
(h)    All notices given in relation to an Order must be provided in writing to the recipient’s contact details as specified in the relevant Order or Invoice or otherwise notified by that party in writing, and they will be deemed to have been received at the time they were actually received by hand or sent by email or faxed (absent notice of transmission failure), and if posted – within three days if posted in Australia and one week if posted internationally.
– (i)    These Terms and any Order will be governed by and construed in accordance with the Laws of New South Wales, Australia and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New South Wales.

139278 SIA T&C 151116

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