1. SUPPLY OF GOODS: Compumedics Limited ACN 006 854 897 (“Compumedics”) agrees with the party to whom Compumedics supplies goods (“Customer”), that unless expressly amended in writing by Compumedics, the goods are only supplied by Compumedics on these Terms and Conditions (“Contract”). This Contract shall supersede all other conditions and agreements between the parties notwithstanding anything that may be implied or expressed to the contrary on the Customer’s inquiries, order form or other document submitted by the Customer. Upon receipt by the Customer of these Terms and Conditions, any conduct by the Customer which confirms this transaction including the giving of any delivery instructions, or acceptance of delivery shall be deemed to constitute acceptance by the Customer of this Contract. The terms and conditions of this Contract shall without further notice apply to all future transactions between Compumedics and the Customer whether or not this Contract is delivered or executed in the course of such transactions.
2. QUOTATION: A quotation or estimate by Compumedics does not constitute an offer and will remain valid for 7 business days from the date of the quotation, after which, it is subject to alteration or withdrawal without further notice.
3. PRICES: Any price lists or price indications are subject to alteration at any time. Unless otherwise stated on the attached invoice by Compumedics all prices are ex-warehouse in Australian currency and exclude the costs of delivery, installation and taxes (including sales tax). All taxes payable will be charged to the Customer’s account as at the date of invoice unless an approved tax exemption certificate or tax accreditation number is provided. Compumedics reserves the right to charge price(s) ruling as at the date of delivery. Notwithstanding, all international sales of goods outside Australia are sold FCA Compumedics’ store unless otherwise stated on the invoice by Compumedics.
4. PAYMENT: Unless otherwise stated on the invoice by Compumedics, payment is to be made nett forty-five (45) days from receipt of invoice without deduction except for international sales which must be made at Compumedics’ option, by telegraphic transfer at the time of placing the order to the account nominated by Compumedics or, confirmed irrevocable letter of credit against documentation at the time of delivery. No discount is allowed, and interest will be charged on all overdue accounts at the rate of 18% per annum calculated daily. At any time prior to delivery of the goods, Compumedics reserves the right to require the Customer to pay such part or whole of the contract price as Compumedics considers appropriate.
(a) The costs of freight, delivery, unloading and installation of the goods on their arrival at the agreed place of destination shall be borne by the Customer and the Customer shall reimburse Compumedics for all such costs which it incurs on the Customer’s behalf. While Compumedics will use its best endeavours to deliver by the delivery date mentioned in any document, such date shall be indicative only and will not give rise to any legal obligation to supply on that date.
(b) Compumedics reserves the right to deliver using any mode of transport and/or by instalments. Each instalment shall be deemed to be sold under a separate contract, provided always however that Compumedics may suspend delivery whilst payment is overdue in respect of any previous instalment.
(c) The Customer is deemed to accept delivery of the goods when the goods are placed at the Customer’s disposal at the agreed place of destination, namely, when the goods are available for collection at Compumedics’ warehouse if sold “ex-warehouse” or, when Compumedics’ has loaded the goods into the charge of the agreed carrier if sold “FCA Compumedics’ store”, notwithstanding that delivery of the goods may be staggered or that the Customer may not have signed a receipt for the goods.
(d) If the Customer is unable or fails to accept delivery of the goods, Compumedics may deliver the goods to a place of storage nominated by the Customer and failing such nomination to a place nominated by Compumedics and the Customer shall be liable for all costs incurred by Compumedics in transporting the goods to, and storage at, such nominated place. Such delivery shall, for the purposes of clause 5(c) above, be deemed to be delivered.
6. CLAIMS & RETURNS:
(a) Upon delivery of the goods or any part thereof, the Customer will inspect the goods and within fourteen (14) days deliver to Compumedics notice in writing of any claim against Compumedics. If no such notice is received by Compumedics within the said period of fourteen (14) days, the goods shall be deemed to be in all respects in accordance with the order and the Customer shall be bound to accept and pay for the same accordingly and, subject to clause 9, the Customer shall have no claims against Compumedics.
(b) The failure of any delivery or the rejection by the Customer of any goods delivered or part thereof shall not vitiate or affect this Contract regarding the balance of the goods to be delivered, and payment thereof.
(c) Other than as set out in this clause 6, no goods may be returned to Compumedics without the prior written approval of Compumedics and then only on such terms as Compumedics may require.
7. DELAY: Compumedics is not liable for failure or delay in performance caused wholly or partially by unavailability of freight or shipping space, failure of manufacturer/supplier to supply whole or part of the goods to Compumedics, prohibitions or restrictions under any law or by any government or authority, inability to obtain any necessary export licence or import licence, or any act of force majeure including, but without limitation, any act of war, fire, explosion, accident, breakdown of machinery, rioting, civil or industrial disturbances, strikes or lockouts, shortage of labour, or due to any other circumstances, whether of a similar nature or beyond the control of the Compumedics. In the event of any such failure or delay, Compumedics may at its discretion terminate whole or any part of any order or postpone its performance.
8. RISK AND TITLE: Until payment in full of all amounts owing by the Customer to Compumedics on any account whatsoever:-
(a) the title in the goods shall not pass to the Customer and the Customer shall keep the goods as bailee for Compumedics. The goods shall nevertheless be at the risk of the Customer from the time of delivery, and the Customer shall indemnify Compumedics against all loss or damage to the goods whatsoever occurring after such time;
(b) the Customer must store the goods so as to clearly identify them as the property of Compumedics, and ensure that the Customer is not, nor is deemed to be, a reputed owner of the goods;
(c) the Customer irrevocably authorises Compumedics or its servants or agents to enter the Customer’s premises and recover and dispose of the goods and the Customer will not make any claim against Compumedics in respect of such entry or disposal. The Customer also appoints Compumedics as its attorney to do all such acts and things as are necessary to enable Compumedics to recover and dispose of the goods; and
(d) the Customer shall hold the goods in a fiduciary capacity and may only sell the goods in the ordinary course of business as agent for Compumedics. Furthermore, the Customer must hold the proceeds of any such sale in a fiduciary capacity for, and to the account of, Compumedics, and the Customer must take all steps necessary to keep such proceeds separate from other monies and pay over such proceeds to Compumedics to the extent necessary to discharge in full the Customer’s indebtedness to Compumedics.
9. GUARANTEE & WARRANTIES:
(a) All parts manufactured and supplied by Compumedics (excluding software or unless otherwise stated on the attached invoice) carry a guarantee against defects in materials and workmanship for a period of 12 months from the date of delivery (“Guarantee Period”), fair wear and tear excepted and, subject always to the other provisions of this clause 9. At Compumedics’ option, defective goods may be replaced, repaired or refunded in accordance with this sub-clause. In order to qualify for this guarantee, a claim must be made in writing to and received by Compumedics within the Guarantee Period and, must be returned at the Customer’s cost in the manner directed by Compumedics failing which, this guarantee shall not apply and Compumedics shall be discharged from all liability under this sub-clause.
(b) Any advice, recommendations, information, assistance or service provided by Compumedics in relation to the goods or their use will be given in good faith. Compumedics only undertakes that the goods sold pursuant to this Contract will correspond to the description (if any) in the latest issue of the manufacturer’s/supplier’s applicable label, data sheet or brochure relating to that class of goods and that the Customer will be given a good legal title. The Customer shall be responsible for ensuring the fitness of the goods for the Customer’s application. All other warranties, conditions, liabilities (including negligence) or representations in relation to, inter alia, the quality or fitness of the goods, their compliance with description, or their use or application (other than any being or giving rise to non-excludable rights under any laws of Australia or the States or Territories thereof) which might but for this clause be implied herein by law or otherwise, are hereby expressly negatived and excluded. Compumedics’ liability to the Customer for breach of any such non-excludable rights or pursuant to any express warranty of this Contract, will be limited, insofar as the same may legally be done, at Compumedics’ option to: refunding the price of the goods in respect of which the breach occurred, or the repair or replacement of those goods; or in relation to the provision of advice or services by Compumedics, refunding the price of such advice or services in respect of which the breach occurred, or the provision of such advice or services again.
(c) Notwithstanding any other provision of this Contract, Compumedics will not be liable for any special, indirect, incidental or consequential loss or damages (including any loss of profits) whether arising from negligence, breach of contract, statute or otherwise in connection with or arising out of or in any way related to the goods, or the provision by Compumedics, of advice or services as the case may be, pursuant to this Contract.
(d) Except as otherwise stated in this Contract, the Customer undertakes that it will not at any time seek to rely on any term, condition, warranty, guarantee or representation as against Compumedics or any officer, servant, contractor or agent of Compumedics.
(e) The Customer is put on notice that no officer or employee of Compumedics is authorised or permitted to make or give any undertaking, warranty, statement, assertion, admission or other representation in relation to goods or services supplied by Compumedics other than in accordance with this Contract except without the prior written authority of the Managing Director of Compumedics or his authorised representative.
10. TERMINATION: If the Customer fails to comply with any of the terms of this Contract or fails to make payment for goods as and when they fall due; or if the Customer shall become bankrupt or commit any act of bankruptcy; or if the Customer (being a company) goes into liquidation or provisional liquidation, has a receiver appointed; or if in the opinion of Compumedics the Customer is no longer able to meet its debts as and when they fall due, Compumedics may at its discretion suspend or postpone any delivery without being liable for any loss or damage suffered by the Customer in that regard, or terminate this Contract by notice in writing to the Customer. Upon termination, Compumedics shall be entitled to recover all costs incurred by it including, without limitation, payment for all deliveries already made and the cost of materials already obtained or ordered for the purpose of future deliveries (whether or not such materials have been incorporated into the goods being purchased by Customer). Termination pursuant to this clause shall not affect any other rights or remedies which Compumedics may have under law or, this Contract.
(a) Any pallets or containers owned by Compumedics and used for the delivery of goods remain the sole property of Compumedics and are to be returned in good order and condition to Compumedics or any of its agents upon its request as directed and at the Customer’s expense.
(b) In the event that pallets or containers in which goods are delivered are not owned by Compumedics (“Hire Equipment”), the Customer will return the Hire Equipment to Compumedics in good order and condition and at the Customer’s expense within 1 month of delivery and the Customer shall indemnify Compumedics for all liability, costs and damages however caused relating to that Hire Equipment.
(c) Any pallets or containers not returned in accordance with this clause, may at the election of Compumedics, be deemed to be purchased by the Customer and shall then be promptly paid for in full by the Customer at a value determined by Compumedics.
12. RESALES AND USES:
(a) Customers are responsible for obtaining at their expense, any licences, permits or authorisations required under any regulations in force within the country of export and, destination of the goods. Particularly, U.S. Federal law may restrict the sale of certain of Compumedics’ goods to registered and licensed physicians. Compumedics reserves the right to refuse to supply or cancel this Contract at any time in whole or in part if it considers that the Customer has not provided satisfactory evidence of any such applicable licences, permits or authorisations.
(b) On any resale, the Customer must ensure that the transferee holds all applicable licences and, will inform that transferee of such restrictions. Systems comprising Compumedics’ goods must be sold as complete systems. Parts must not be sold separately.
13. SOFTWARE & SERVICES:
(a) Any software supplied by Compumedics shall be subject to and on the conditions set out in Compumedics’ End-User Licence Agreement.
(b) Any services performed by Compumedics in connection with or in any way associated with the supply of goods shall be subject to and on the conditions set out in Compumedics’ Service Contract. Notwithstanding, any services provided to the Customer are subject to a charge by Compumedics and Compumedics reserves the right at any time to refuse to perform any services.
14. INTELLECTUAL PROPERTY: Goods offered for sale by Compumedics may be the subject of patents, registered designs, trademarks or other proprietary and legal protection and the Customer will immediately notify Compumedics of any suspected infringement of such rights. To the best of Compumedics’ knowledge, goods sold do not infringe any patent, trademark, registered design or copyright of any third party.
15. FURTHER PROVISIONS:
(a) The Customer must not without Compumedics’ prior written approval, assign or transfer or purport to assign or transfer this Contract or the benefit thereof to any person.
(b) No indulgence or forbearance extended to the Customer shall limit or prejudice any other right of claim to Compumedics.
(c) The supply of goods by Compumedics shall not confer any right upon the Customer to use any Compumedics’ trademark or tradename without Compumedics’ written consent, and at all times such marks or names remain the property of Compumedics.
(d) If any provision or part of a provision of the Contract should be held unenforceable or in conflict with the law of any relevant jurisdiction, any part so held unenforceable or invalid shall be read down to the minimum extent necessary to render it enforceable and valid, and if incapable of being read down it shall be severed from the remainder of the Contract which shall not be effected by such severance.
(e) The rights and obligations of the parties under this Contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods (1980).
(f) This contract shall be governed by the laws of the State of Victoria, Australia and the parties hereby submit to the non-exclusive jurisdiction of the Courts and tribunals of the said State.