Additional Charges means all delivery, handling and storage charges, packing costs, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Price, payable by the Buyer to the Seller arising out of the sale of Goods.
Agreement means the contract of purchase of Goods between the Seller and the Customer which comprises of these Terms and any Purchase Order;
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the relevant State and Territory fair trading acts;
Business Day means any day which is not a Saturday, Sunday or Public Holiday in New South Wales;
Buyer means the person, entity, firm or corporation that acquires Goods from the Seller pursuant to the Agreement, the details of which are set out in the Purchase Order and includes the Buyer’s permitted assigns, successors, employees, servants and agents;
Buyer’s Agent means the person, entity, firm or corporation who on behalf of the Buyer prepares and/or submits an Order to the Seller; Consumer has the meaning given to it in Section 3 of the Australian Consumer Law;
Consumer Guarantee means a right or guarantee under the Australian Consumer Law that cannot lawfully be excluded;
Direct Debit Service Agreement means the agreement in the form approved by the Seller pursuant to which the Seller is authorised to deduct the Price from a bank account specified by the Buyer;
Goods means the goods described in an Order, or any part thereof;
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Loss means any losses, liabilities, damages, costs, interest, charges, fines, penalties or expenses (including lawyer’s fees and expenses on a full indemnity basis) whether direct, indirect, special, consequential or otherwise;
Order means an order for the Goods made by way of a proposal or quotation issued by the Seller in response to a Purchase Order request received from the Buyer and that is accepted by the Buyer;
Personal Information has the meaning given to such expression in the Privacy Act 1988 (Cth);
Price means the list price for the Goods as specified in the Seller’s price lists as published by the Seller at the date of delivery, or such other price as may be agreed by the Seller and the Buyer prior to delivery of the Goods, or otherwise as agreed to by the Seller in an Order;
PPSA means the Personal Property Securities Act 2009 (Cth);
Purchase Order means an application for an Order for the Goods made by the Buyer and submitted to the Seller for approval; Seller means Alpha LifeCare Pty Ltd ABN 69 646 760 803; and
Terms means these terms and conditions.
2.1 The Agreement includes all those statutory rights conferred on the Buyer which the Seller is not capable of excluding, restricting or modifying, including, where the Buyer is a Consumer, statutory rights conferred on the Buyer under the Australian Consumer Law.
2.2 Subject to clause 3.1 and unless otherwise agreed in writing by the Seller, the parties acknowledge and agree that these Terms take precedence over all other conditions of supply, and applies to the exclusion of all other documents, prior discussions, representations, understandings and arrangements (written or oral, express or implied) and other representations (contractual or otherwise), whether or not endorsed or delivered with or referred to in any Order or other documents delivered by the Buyer to the Seller.
2.3 The Seller may alter these Terms on 14 days’ notice to the Buyer and the altered terms shall then:
2.4 Acceptance by the Buyer of these Terms, as amended from time to time in accordance with clause 2.2, may be by any of the following ways:
3.1 Each Purchase Order placed by the Buyer will constitute an offer by the Buyer to acquire the Goods from the Seller on and subject to these Terms and will form part of the Agreement if accepted by the Seller.
3.2 If a Purchase Order is submitted by a Buyer’s Agent to the Seller, the Buyer’s Agent in submitting the Purchase Order represents and warrants that the Buyer’s Agent is duly authorised by the Buyer to place the Purchase Order and that the Buyer’s Agent has undertaken all enquiries and used its skill and judgement in assessing the needs of the Buyer and suitability of the Goods specified in a Purchase Order.
3.3 An Order is deemed to be accepted and binding on the Seller and the Buyer if:
3.4 An acceptance of the Order by the Seller is an acceptance of these Terms and Conditions by the Seller and the Buyer, and which are supplemented with the Order made between the Seller and the Buyer.
3.5 The Seller may refuse to accept an Order, or part of an order, without giving reason.
3.6 Other than under clause 4.2 or as permitted under the Australian Consumer Law, the Buyer may not without the Seller’s consent vary or cancel an Order after the Seller has accepted the Order. If the Seller consents to the cancellation of an Order, the Buyer will be liable for all costs incurred by the Seller up to the time of cancellation, to the extent permitted by law
4.1 All Prices and Additional Charges quoted are in Australian dollars and except as otherwise expressly stated, exclusive of insurance, delivery charges, GST and any other sales, value added or similar tax which may apply.
4.2 Should the Price of Goods change between the Buyer placing the Purchase Order for that Good and the Seller accepting the Order for that Good, the Buyer may cancel the Order for that Good by notifying the Seller in writing within 24 hours of the Seller’s acceptance of the Order and in any event before the Seller manufacturers and/or delivers the Goods.
4.3 The Buyer must pay the Price and the Additional Charges, where relevant, to the Seller.
4.4 Unless otherwise agreed to in writing by the Seller, the Price must be paid by the Buyer in full within 30 days of the date of invoice
4.5 If the Buyer is in default, the Seller may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights.
4.6 No amount owing by the Buyer to the Seller may be offset against any amount owing to the Buyer by the Seller under the Agreement or on any other account whatsoever.
4.7 The Buyer is liable to pay interest at the rate equal to the Commonwealth Bank of Australia overdraft rate, plus 2%, on all outstanding amounts calculated from the due date of payment until full payment is received by the Seller.
4.8 The Buyer is deemed to be in default immediately upon the happening of any of the following events:
4.9 The Interest Rate in clause 4.7 will accrue from the date payment was due to the date payment is made and will be calculated daily and capitalised monthly and must be paid by the Buyer upon demand by the Seller.
4.10 If the Buyer is in default, the Buyer agrees to pay the Seller all costs and disbursements, within reason, including legal costs and own client basis incurred by the Seller in collecting or attempting to recover money outstanding.
4.11 The Buyer must pay the Price of the Goods supplied to the Buyer using one of the following payment methods:
5.1 The Seller will use all commercially reasonable efforts to deliver the Goods by the date (if any) specified in an Order and in the absence of any date, within a reasonable time. Times quoted for delivery are estimates only and the Seller accepts no liability for failure or delay in delivery of Goods by the estimated deliver date.
5.2 The failure of the Seller to deliver the Goods by the date specified in the Order does not entitle either party to treat that Order or the Agreement as repudiated.
5.3 The Seller may deliver the Goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with clause 4.
5.4 The Seller will deliver the Goods to the Delivery Address nominated by the Customer as recorded in an Order, or as otherwise may be agreed by the Seller (Delivery Address).
5.5 If agreed to in advance and in writing by the Seller, the Buyer may also elect to have the Goods collected from the Seller’s premises. Additional Costs involved with collecting the Goods from the Seller’s premises will be payable by the Buyer.
5.6 Where the Buyer elects to have the Goods delivered, the Buyer grants or will procure that the Seller is granted unrestricted access to the Delivery Address to enable or assist the Seller to deliver the Goods and to otherwise carry out its obligations under the Agreement.
5.7 Unless otherwise agreed, Delivery shall be deemed to have taken place:
5.8 Except where the Seller’s liability may not be excluded under the Australian Consumer Law, the Seller is not liable for any Loss due to the failure by the Seller to deliver the Goods (or any of them) promptly or at all, other than to refund any Price paid by the Buyer where the Goods are not delivered at all.
5.9 Unless otherwise agreed, the Seller’s obligations under an Order will be deemed complete and delivery effected when risk in the Goods passes to the Buyer in accordance with Clause 6.
6.1 Where the Seller personally delivers the Goods to the Delivery Address or uses the Seller’s nominated transport provider, the risk in the Goods passes to the Buyer upon the goods being signed for at the Delivery Address.
6.2 In all other circumstances, risk in the Goods passes to the Buyer when the Goods are collected by the Customer (or its agent or contractor) from the Seller’s nominated storage facility.
6.3 Title to the Goods passes to the Buyer on payment in full of the Price of the Goods and all other amounts payable by the Buyer to the Seller on any account whatsoever
6.4 Where the Goods have been purchased by the Buyer to sell in the ordinary course of the Buyer’s Business, the Buyer may:
6.5 The Buyer agrees to hold the proceeds of any sale, lease or other dealing with the Goods on trust for the Seller in a separate bank account with a bank to which the Buyer has not given any security.
6.6 Where the Buyer is purchasing the Goods for personal use and not in the ordinary course of the Buyer’s Business, clause 6.4 is not applicable and the Buyer must keep the Goods in their original condition and packaging until full payment of the Price is made.
6.7 In the event of a default by the Buyer, and in addition to any rights the Seller may have under Chapter 4 of the PPS Act, the Seller may, at any time, and without prejudice to any other rights which the Seller may have at law or under this contract:
7.1 No warranty or guarantee is given by the Seller whatsoever regarding the quality, condition, colour, merchantability or fitness for purpose of the Goods, except as required under the Australian Consumer Law.
7.2 The Buyer expressly acknowledges that for all purposes whatsoever the Buyer has relied entirely on their own knowledge, skills and judgement in selecting and ordering the Goods and agrees to accept the Goods of the same specifications as contained in a Purchase Order.
7.3 If the Goods are ordered by a Buyer’s Agent on behalf of the Buyer, the Buyer expressly acknowledges that for all purposes whatsoever the Buyer has undertaken its own enquiries or is relying solely on the expertise, skill and judgement of the Buyer’s Agent in selecting and ordering the Goods and agrees to accept the Goods of the same specifications as contained in a Purchase Order.
7.4 The prices and delivery dates provided to the Buyer are for the quantity of the Goods specified in an Order. Any deviation when ordering may render the Order subject to revision.
8.1 Defective Goods
8.2 Non-Defective Goods
8.3 Non-returnable Goods
9.1 The Australian Consumer Law provides Consumers with a number of Consumer Guarantees that cannot be excluded or limited. The limitations of liability set out in these Terms are therefore subject to and will not apply to the extent that they limit or exclude such Consumer Guarantees.
9.2 The Buyer must:
9.3 Subject to clauses 9.1 and 9.4, the Seller’s liability for any Loss suffered or incurred by the Buyer, howsoever caused, which arises out of or in connection with the supply of the Goods under the Contract is limited to:
9.4 The Seller’s liability in respect of a breach of or a failure to comply with an applicable Consumer Guarantee will not be limited in the way set out in clause 9.3 if:
9.5 Except only for those rights and remedies that the Buyer has in respect of the Goods under the Australian Consumer Law which cannot be lawfully excluded, restricted or modified:
10.1 Words or expressions used in this clause 10 that are defined in the GST Act have the same meaning given to them in that Act.
10.2 Unless otherwise stated, any amount specified in the Contract as the consideration payable for any taxable supply does not include any GST payable in respect of that supply.
10.3 If a party makes a taxable supply under the Contract (Supplier), then the recipient of the taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable.
10.4 Despite anything stated in this clause 10, the Recipient is not obliged under the Contract to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply
10.5 If an adjustment event arises in relation to a taxable supply made by a Supplier under the Contract, the amount paid or payable by the Recipient pursuant to clause 10.2 will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be.
10.6 If a third party makes a taxable supply and the Contract requires a party to the Contract (the Payer) to pay for, reimburse or contribute to (Pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the Payer must Pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.
11.1 Subject to the Buyer requesting terms of credit from the Seller, the Buyer consents to the Seller obtaining from a credit-reporting agency a credit report containing personal credit information about the Buyer in relation to credit provided by the Seller.
11.2 The Buyer agrees that the Seller may exchange information about the Buyer with those credit providers named in the application for credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
11.3 The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
11.4 The Buyer agrees that Personal Information provided by the Buyer or the Buyer’s Agent may be used and retained by the Seller for the following purposes (and for other purposes as may be agreed between the Buyer and the Seller or required by law from time to time):
11.5 The Seller may give information about the Buyer to a credit reporting agency for the following purposes:
12.1 In this clause 12, Force Majeure means an act of God; war, revolution or any other unlawful act against public order or authority; an industrial dispute including strike or other labour disturbances; a governmental restraint; a shortage or unavailability of raw materials, production capacity or transportation; and any other event not within the reasonable control of the Seller.
12.2 Where Force Majeure prevents or delays the Seller from performing any obligation under the Contract, the requirement to perform that obligation is suspended as long as the Force Majeure continues.
13.1 Unless a contrary intention appears, words or expression used in this clause 13 that are defined in the PPS Act have the same meaning as given to them in the PPS Act.
13.2 The Seller and the Buyer acknowledge that these Terms and Conditions constitute a Security Agreement and give rise to a Purchase Money Security Interest (PMSI) in favour of the Seller over the Goods supplied or to be supplied to the Buyer as Grantor pursuant to the Terms and Conditions.
13.3 A PMSI in favour of the Seller over the Goods supplied or to be supplied to the Buyer as Grantor is only granted where the Buyer has been supplied or is to be supplied the Goods prior to full payment of the Price of the Goods.
13.4 The Goods supplied or to be supplied under these Terms and Conditions fall within the PPSA classification of “Other Goods” acquired by the Buyer pursuant to these Terms and Conditions.
13.5 The Seller and the Buyer acknowledge that the Seller as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Buyer as Grantor under the Terms and Conditions on the PPSA Register as Collateral.
13.6 To the extent permissible at law, the Buyer:
14.1 The Contract is governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of that State and courts entitled to hear appeals from those courts.
14.2 A reference to legislation includes any amendment to that legislation, any consolidation or replacement of it, and any subordinate legislation made under it.
14.3 In these Terms, the words ‘include’, ‘including’, ‘for example’, ‘such as’ or any form of those words or similar expressions do not limit what else is included and must be construed as if they are followed by the words ‘without limitation’ unless there is express wording to the contrary.
14.4 If a provision in these Terms is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from this agreement for the purposes of that jurisdiction. This does not affect the validity or enforceability of the remainder of the provision or any other provision of these Terms.
14.5 If the Buyer comprises more than one person:
14.6 A waiver of any right arising under the Agreement must be in writing and signed by the party granting the waiver. Any variation of the Agreement must be in writing and signed by the parties.
14.7 The Seller and the Buyer are independent contracting parties and nothing in the Agreement makes either party the agent or legal representative of the other or grants either party any authority to assume or create an obligation on behalf of the other.
14.8 The Buyer must give the Seller not less than 14 days prior written notice of any proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but not limited to changes in the Buyer’s address, facsimile number, or business practice).
14.9 Without limiting or affecting the continued operation of any clause which as a matter of construction is intended to survive the termination of the Agreement, clauses 4, 8, 9, 10, 11 and 13 survive the termination of the Agreement.
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