Terms & Conditions of Supply
1) For the purpose of these terms and conditions “Seller” means Enterprise Medical ABN 56 010 750 240 “Buyer’ means the buyer listed on this document.
2) The only terms and conditions binding on the Seller in relation to any supply to the Buyer are those set out in these terms and conditions or otherwise agreed to in writing by the Seller and those, if any, imposed by law which cannot be excluded.
Orders and Quotations
3) Once an order has been accepted by the Seller, that order may not cancelled by the Buyer and these terms and conditions will apply to the order. The Seller has the right to suspend or discontinue the supply of all or part of goods to the Buyer for any reason. The supply of goods by the Seller to the Buyer is subject to the availability of those goods. If the Seller is unable to supply any or all of the Buyer’s order, these terms and conditions will continue to apply to any part of the order supplied.
4) The Seller is deemed to have delivered the goods when the goods arrive at the buyer’s nominated delivery point or leave the sellers nominated collection point. The Seller is entitled to deliver goods in one or more lots.
5) If a delivery date is specified, that date is an estimate only and the Seller is not liable for any delay in delivery. Time is not of the essence in relation to delivery and the Buyer must accept delivery and pay for the goods delivered, including transport costs if applicable, even if they are delivered after any specified delivery date.
Payment of the Purchase Price
6) The price payable for products is that amount set out in the Sellers quotation as at the date of delivery, or otherwise notified in an invoice delivered with the products. All prices quoted by the Seller are exclusive of GST unless otherwise specified
The Buyer promises to pay the price payable for products delivered by the Seller. Payment in full is due before despatch unless credit facilities have been established in which case the Buyer agrees to pay not later than thirty (30) days after the end of month of invoice AND in default of payment within the time specified or as otherwise might be agreed, to pay interest calculated on a daily basis on any portion of the Buyer’s account that is overdue at the Westpac reference rate for business loans, available to prime commercial customers, plus 5% calculated from the date the payment was due until the date payment is made (both dates inclusive).
If any part of an invoice is in dispute, the balance will remain payable and must be paid when due. The Buyer has no right to set-off any claim against the Seller from moneys owing to the Seller.
Limitation of Liability
7) To the extent permitted by law these terms and conditions exclude all other conditions, warranties (other than any warranty between the manufacturer and the Buyer), liabilities or representations in relation to the goods. Where legislation implies in these terms and conditions any condition or warranty that cannot be excluded or modified, to the extent permitted by law the liability of the Seller for a breach of any such condition or warranty is limited at the Seller’s option to any one or more of the following:
a) In the case of goods:
i) Replacement of the goods or the supply of equivalent goods;
ii) Repair of the goods; or
iii) The payment of the cost of replacing the goods or acquiring equivalent goods.
8) Subject to clause 7, the Seller will not be liable for the costs of recovery of goods, loss of time, inconvenience or any loss or damage of any kind whatsoever and howsoever arising out of or in connection with the supply of goods, including (without limitation) any indirect or consequential loss, arising out of or in connection with the supply of goods, even if due to the negligence of the Seller or any of its employees or agents.
9) For Goods designed or manufactured based on measurements supplied by or on behalf of the Buyer to the Seller the Seller will not be liable for any loss or damage sustained by the Buyer if that loss or damage or any part thereof is the result of the supply of incorrect measurements to the Seller.
10) In addition to delivery in person, via post and via facsimile, the Buyer agrees to have invoices and notices sent via email. The Buyer agrees that email communications from the Seller to the Buyer constitute an “electronic communication” within the meaning of the Electronic Transactions Act 1999 and its State analogues (“the Act”).
The Buyer agrees that evidence of the “dispatch” (within the meaning of the Act) the Seller of an email is also prima facie evidence of the “receipt” of the email by the Buyer within the meaning of the Act. Unless the contrary is proven, the time of receipt will be deemed to be twenty (20) seconds after the time of the “dispatch” of the email.
11) These terms and conditions contain the entire agreement between the parties on the subject matter and there are no other oral or written representations, understanding, agreement, warranty or representation whether express or implied in any way defining or extending or otherwise relating to these provisions or binding on the parties with respect to the goods or service provided by the Seller to the Buyer.
12) If any provision of these terms or conditions is unenforceable, illegal or void, that provision is treated as removed from these terms and conditions but the rest of the terms and conditions are not affected.
Application of the PPSA – Risk And Title
13) Whilst the risk in goods passes on delivery, legal and equitable title remains with the Seller until payment in full for the goods is made to the Seller.
In this clause, “PPSA” means the Personal Property Securities Act 2009. If a term used in this clause has a particular meaning in the PPSA it has the same meaning in this clause.
The Buyer grants to the Seller a security interest under the PPSA in any goods supplied under these terms and conditions.
The Buyer acknowledges and agrees that the Seller may apply to register a security interest in the Goods at any time before or after delivery of the Goods. The Buyer waives its right under s 157 of the PPSA to receive notice of any verification of the registration.
The Seller can apply amounts it receives from the Buyer towards amounts owing to it in such order as the Seller chooses.
If the Buyer defaults in the performance of any obligation owed to the Seller under these agreed terms and conditions or any other agreement the Seller may enforce its security interest in any goods by exercising all or any of its rights under these terms and conditions or the PPSA. To the maximum extent permitted by law the Buyer and the Seller agree that the following provisions of the PPSA do not apply to the enforcement by the Seller of its security interest in the Goods; sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.
The Buyer and the Seller agree not to disclose information of the kind mentioned in s 275(1) of the PPSA except in circumstances required by sections 275(7)(b)-(e) of the PPSA.
The Buyer must promptly do anything required by the Seller to ensure that the Seller’s security interest is a perfected security interest and has priority over all other security interests in the Goods.
Nothing in this clause is limited by any other provision of this Agreement or any other agreement between the parties.