Terms & Conditions
“Conditions” means the terms and conditions set out in this document;
“Contract” means the contract for the provision of Goods/Services comprising of these Conditions, the related Purchase Order, and the executed Credit Account and Deed of Guarantee between the parties.
“Credit Account and Deed of Guarantee” means the executed document s
“Goods” means the goods specified in the Purchase Order and all other goods and materials supplied by MES to the Customer (if any);
“Insolvency Event” means becoming bankrupt or insolvent; being subject to liquidation or winding-up; suffering the appointment of a manager, receiver, or administrator (or any other person carrying out an equivalent function); failing to pay debts as they become due; or making any arrangement with or seeking protection from creditors; or being subject to any application or process giving rise to any of the above;
“IPR” means patents, rights to inventions, copyright and related rights, trade marks, trade and domain names, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual or industrial property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and rewards or extensions of, such rights and all similar or equivalent rights or forms of protection of which now or in the future subsist anywhere in the world;
“Losses” means any losses, damages, claims, demands, liabilities, costs, fines, penalties including third party penalties), expenses, special losses, consequential losses, loss of data or information and lost revenue suffered or incurred by a party.
“Purchase Order” means the order made by the Customer to MES for the supply of Goods/Services “Price” means the price for the provision of the Goods/Services/Deliverables as detailed in the Purchase Order;
by MES to the Customer which specifies the cost, quantities, and any other material information in relation to the supply;
“Services” means the Services specified in the Purchase Order (if any);
“MES” means Medical Equipment Australia Pty Ltd (ABN 30 620 897 770) t/a MES Medical Equipment Services;
2. TERMS OF SUPPLY
2.1 MES will supply, and the Customer shall buy the Goods/Services in accordance with the terms of the Contract. The terms of the Contract shall govern the relationship between the parties to the exclusion of all other terms.
2.2 Goods/Services may be supplied by MES on a continuing, or an ‘as needed’ basis. A Contract will only exist when the Customer has issued, and MES has accepted the Purchase Order for the Goods/Services.
2.3 The Contract does not constitute an exclusive arrangement, and MES shall be entitled to supply similar Goods/Services to any other party.
2.4 In the event of any conflict between the Contract documents, the order of precedence is : (1) Credit Account and Deed of Guarantee, (2) Conditions, (3) Purchase Order.
2.5 In the event any two or more Purchase Orders have the same Purchase Order number, the most recent document shall supersede all previous Purchase Orders with the same number.
2.6 MES reserves the right to accept or reject any Purchase Order at its sole discretion.
2.7 Any Purchase Order placed by the Customer which has been accepted by MES cannot be cancelled or varied without the written consent of MES which it may withhold at its absolute discretion. MES shall be entitled to charge a reasonable cancellation fee and/or processing to account for any work done for or on behalf of the Customer prior to the cancellation or variation of the Purchase Order.
2.8 The Customer hereby to MES a lien over all the Goods in the Customer’s possession which has not been fully paid for. The Customer authorises and consents to MES lodging a caveat over those Goods.
2.9 MES may terminate the Contract for convenience and without cause by providing the Customer with fourteen (14) days notice. MES will complete any outstanding Purchase Order in the event it elects to terminate the Contract.
3. PAYMENT AND INTEREST
3.1 The Customer agrees to pay all invoices issued by MES within fourteen (14) days of the date of invoice.
3.2 Without prejudice to any other rights and remedies available to it, MES may charge interest at a rate equivalent to the Penalty Interest Rates Act 1983 (Vic) on all outstanding amounts owed to it.
3.3 MES may cease or suspend delivery/supply of the Goods/Services if the Customer has failed to pay any outstanding invoice in full.
3.4 MES may terminate this Contract at its discretion without effect on its accrued rights if the Customer has failed to pay any outstanding invoice in full.
3.5 All amounts stated are exclusive of applicable tax, which shall be payable by the Customer in addition to the relevant amounts for the supply of the Goods/Services.
4. DELIVERY AND SUPPLY OF THE GOODS AND SERVICES
4.1 MES, at the Customer’s expense, shall arrange for the delivery of the Goods/Services to the Customer’s nominated location.
4.2 In the event the Customer specifies a delivery date, MES will exercise reasonable efforts to ensure that the Goods and Services are delivered/supplied in a timely manner. However, the Customer acknowledges and agrees that it will not make any claim for Losses against MES which it may incur as a result of late delivery.
4.3 Delivery of the Goods shall be deemed to have occurred and risk in the goods passed to the Customer when they are:-
a) Delivered to the Customer’s nominated premises;
b) Handed to the Customer or its nominated representative; or
c) Handed to the carrier or courier nominated pursuant to the Contract.
4.4 Property and Title to any Goods sold by MES to the Customer shall not pass from MES to the Customer until the Customer has paid for the goods in full. The Customer in the interim takes custody of the goods as the fiduciary agent and bailee of MES and acknowledges that:-
a) The risk of loss or damage to the Goods shall be entirely at the risk of the Customer;
b) The Customer will not sell, assign, charge, or otherwise encumber or grant any interest whatsoever over the Goods to a third party; and
c) The Customer must maintain insurance at least equal to the full replacement value of the Goods (including transit insurance if the Goods are being delivered). Such insurance shall cover the parties’ respective rights, and if required by MES, shall be in the joint names of the parties.
5. WARRANTIES AND ACKNOWLEDGMENTS
5.1 MES represents that:-
a) The Goods and Services will be of a satisfactory quality free from any material defect;
b) The Goods shall conform to the quantities specified in the Purchase Order; and
c) The Services shall be provided using reasonable skill, care, and diligence in accordance with standard industry practice.
5.2 If MES receives notice of a defect or non-conformance with the Goods/Services within 7 days and if MES is satisfied that the defect or non-conformance was not contributed or caused by the Customer, it will refund, repair, or replace the Goods at its discretion.
5.3 MES will not accept any return of allegedly defective Goods unless it has provided the Customer with its prior written consent (which will not be unreasonably withheld)
5.4 The Customer acknowledges that it has not relied upon any statement, representation, or assertion by MES in relation to the Goods/Services. MES does not make any warranty or representation as to the suitability of the Goods/Services for the Customer and the Customer warrants that it has made its own inquiries as to the Goods/Services.
5.5 The Customer warrants that it will only use the Goods/Services in accordance with any usage restrictions and license conditions specified by MES and or the manufacturer of the Goods. Save as otherwise expressly permitted by this Contract or in writing, the Customer shall not:-
a) copy, reproduce, make derivative works of, reverse engineer, decompile, or disassemble the Goods and/or Services; or
b) modify or remove any proprietary notices or legends placed on or within the Goods and/or Services.
5.6 Save as expressly set out in the Contract, all conditions, warranties or other terms on the part of MES which might have effect between the parties or be implied or incorporated into this Contract, whether by statute, common law or otherwise, are hereby excluded by MES, including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose. For the avoidance of doubt this clause does not exclude those statutory warranties which are not excludable by contract.
6. LIMITATION OF LIABILITY AND INDEMNITY
6.1 Nothing in this Contract limits or excludes any liability that cannot be limited or excluded by law.
6.2 To the fullest extent permitted by law:-
a) MES shall not under any circumstances be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any Losses suffered by the Customer however arising under the Contract;
b) The Customer indemnifies and holds MES harmless with respect to any Losses which it may suffer, unless those Losses have been caused or contributed to by the negligent act or omission of MES; and
c) Without prejudice to clause 6.1(a), the total aggregate liability of MES in respect of all Losses suffered by the Customer from, under or in connection with the Contract, the supply of the Goods/Services, whether in contract, tort, misrepresentation, restitution, breach of statutory duty or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to 100% of the total paid or payable for the Goods/Services during the 12 month period prior to the date of the claim for loss.
6.3 Notwithstanding any other provision of this Contract the amount that a party must indemnify or otherwise compensate the other party shall be reduced in proportion to the extent that the party has caused or contributed to the loss the subject of that party’s claim for compensation or indemnity.
7.1 The Customer may not assign its rights and obligations pursuant to this Contract without the prior written consent of MES.
7.2 MES may assign or subcontract its rights and obligations pursuant to this Contract provided that MES shall remain at all times liable for the performance of this Contract.
Each party undertakes that it will not at any time hereafter use or disclose to any person, except: (i) to its professional representatives and advisors, or (ii) as may be required by law or regulatory authority, the terms and conditions or existence of this Contract or any business ideas, market opinions, information and/or material concerning the business or affairs of the other party which may have or may in the future come to its knowledge. Neither party shall use any such confidential information except for the performance of this Contract or make any announcement relating to this Contract or its subject matter without the prior written approval of the other party. Unless otherwise agreed in writing, no IPR rights or licences are implied or granted in respect of the same.
9.1 The Customer agrees that by placing a Purchase Order with MES, its conduct constitutes its acceptance and willingness to be bound by the terms of the Contract.
9.2 Nothing in this Contract is intended to, or shall be deemed to, constitute a partnership or joint venture, relationship of principal and agent, of any kind between the parties. No party shall have authority to act as agent for, or to bind the other party in any way.
9.3 A waiver of any right under this Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
9.4 For the purposes of the Contract, all notices, invoices and other communications shall be transmitted to the parties at the relevant party’s registered company address contained within the Credit Terms and Deed of Guarantee.
9.5 The Customer agrees that it will not directly or indirectly solicit, or attempt to solicit, any employee of MES who has been engaged on the performance of the Services.
9.6 Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement (other than payment obligations) caused by circumstances beyond its reasonable control (“Force Majeure Event”). The affected party shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event.
9.7 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude any other rights provided by law.
9.8 A person who is not a party to this Contract has no right to rely or enforce any term of this Contract
9.9 This Contract constitutes the entire agreement and understanding of the parties.
9.10 If any provision of this Contract is found to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Contract, which will remain in full effect.
9.11 The Contract is not to be construed against a party on the basis that the party was responsible for the drafting of the Contract.
9.12 This Contract may be executed in any number of counterparts, each of which when executed shall be an original and together shall constitute one and the same instrument.
9.13 The Customer acknowledges having had the opportunity to consider these terms and obtain independent legal advice before proceeding with this Contract. The Supplier further acknowledges that MES relies on the Customer’s agreement to these terms.
9.14 This Contract shall be governed by and constructed in accordance with the state of Victoria and the Commonwealth of Australia and all disputes arising under this Contract shall be subject to the exclusive jurisdiction of the Victorian and Australian courts
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Ms Stephanie Tien
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