Terms of Sale
Terms and Conditions of Sale
1. Definitions
1.1. In these terms and any related contract, unless the contrary intention appears:
Affiliate means an entity or company which directly or indirectly, through one or more intermediaries, controls is controlled by or is under common control with a party.
Customer means the person who orders products from HPA, whether by telephone, facsimile, email, in person, through HPA’s online ordering system or otherwise.
Force Majeure means any circumstance beyond the reasonable control of a party which results in a party being unable to observe or perform on time an obligation under these Terms.
GST has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cth) (as amended).
Insolvency Event means circumstances in which Customer is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by HPA; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (c) seeks protection or is granted protection from its creditors, under any applicable legislation.
Order means a purchase order for HPA products which has been accepted by HPA but excluding any terms or conditions printed on or referred to in Customer’s purchase orders or other documentation unless expressly agreed to in writing by HPA.
PPSA means the Personal Properties Securities Act 2009 (Cth) (as amended from time to time).
Products mean the goods purchased or to be purchased by Customer from HPA which are the subject of a contract.
Terms means these terms and conditions of sale.
HPA means Hospital Products Australia Pty Ltd ABN 59 165 764 554.
2. Orders
2.1. Orders are subject to acceptance by HPA. Once accepted by HPA , they may not then be cancelled by Customer except with the express consent of HPA.
2.2. Upon acceptance of each order by HPA, a separate contract of sale will arise. Each contract will comprise the accepted order and these terms. If there is any inconsistency between these terms and another provision in the contract, then the provision in the contract will prevail only to the extent of the inconsistency.
2.3. No terms or conditions of Customer, including any terms or conditions printed on or referred to in Customer’s offer to purchase or order will be binding on HPA or have any legal effect unless expressly agreed to in writing by HPA.
3. Payment
3.1. Price for HPA products is specified in the contract. Unless otherwise agreed, HPA may alter the price at any time prior to acceptance of an order without prior notice.
3.2. Customer must pay GST or any other tax duty, levy, tariff or charge applicable to the supply of HPA products in addition to payment of the price. HPA will provide Customer with a tax invoice as required by law.
3.3. Unless the Contract states otherwise, Customer must pay the price for products supplied to it within 14 days of the date of the invoice.
3.4. Customer must not withhold payment or make any deduction from the invoiced price or any other amount owing to HPA without HPA’s prior written consent.
3.5. Receipt of any amount will not constitute payment until payment is made in full or as agreed in writing.
3.6. HPA may allocate a payment not specifically identifying an invoice to monies owed under any outstanding invoices without regard to the date of those invoices.
3.7. HPA may charge interest on any overdue payments at 2% above the rate charged by HPA’s major banker (for commercial overdraft balances of over $100,000 from time to time), calculated from the due date for payment until the date of payment by Customer. Any payment made by Customer will be credited first against any interest that has accrued.
3.8. HPA will be entitled to recover from Customer all legal and other costs incurred arising from Customer’s default in payment and the collection of any overdue monies.
4. Delivery
4.1. Delivery times for HPA products are estimates only.
4.2. HPA is not liable for any loss suffered by Customer arising from any delay or failure to deliver ordered products (or any part thereof), and may refuse delivery if Customer owes outstanding monies to HPA.
4.3. HPA will deliver the products in the manner and to the location specified in the relevant contract, or if not specified, as determined by HPA. Deliveries are ordinarily only between 8am and 5pm on business days.
4.4. HPA will not be obliged to accept any claims for shortages of deliveries or non-conforming products unless written notice of the claim is given to HPA within 10 Business Days after receipt by Customer of the products at the delivery destination.
4.5. Customer agrees not to sell, supply or otherwise deal with the products unless the packaging and labelling remains intact, and Customer must not alter, remove, conceal or tamper with batch numbers or other means of identification on the products.
4.6. HPA reserves the right to deliver the products by instalments, invoicing each instalment separately, each a separate contract under the same provisions as the main contract.
5. Title and Risk
5.1. Legal and beneficial ownership in the products passes to Customer only once the full price of the products is paid.
5.2. Risk of loss of or damage to the products remains with HPA until title passes to Customer, or delivery of the products to Customer in accordance with clause 4, whichever is first. Risk of any damage or loss then passes to Customer.
5.3. Until all outstanding monies are paid to HPA for the products:
5.3.1. Customer holds the products as bailee for Customer and must store them separately from other products, so they are identifiable as owned by HPA;
5.3.2. in the event of a “Default” (described below), HPA or its representative may without notice enter premises occupied by Customer to recover HPA products without liability to Customer, and may dispose of or retain these products as HPA sees fit without notice or account to Customer;
5.3.3. all costs and expenses incurred by HPA as a result of acting in accordance with clause 5.3(b), together with transportation and storage charges are payable by Customer to HPA on demand;
5.3.4. if the products are resold by Customer, Customer will hold so much of the proceeds of sale as does not exceed the outstanding monies on trust for HPA immediately when they are receivable or received;
5.3.5. when the proceeds held in trust for HPA under clause 5.3(d) are received they must either be paid immediately to HPA or held in a separate bank account as trustee for HPA and they must not be used by Customer in any other way whatsoever.
5.4. This clause 5 creates a purchase money security interest in the products, any goods in which the products are used as a component, and all proceeds from their respective resale by Customer. The security interest is granted to secure Customer’s proper performance of the contract and comes into effect when the Customer takes possession of the products.
5.5. Customer grants to HPA a security interest in all goods supplied by HPA to the Customer whether now or in the future.
5.6. The parties agree that pursuant to sections 115(1) and 115(7) of the PPSA the following sections of the PPSA will not apply to these terms and any related contract (to the extent permitted by law): Sections 95, 96, 117, 118, 121(4) 125, 127 129, 130, 132, 134(2) 135, 136(3), 136(4), 136(5), 137, 142 and 143.
5.7. For the purposes of section 14(6) of the PPSA, the parties agree that any payments received by HPA from the Customer pursuant to or in any way connected with this Agreement will be applied in such order as HPA deems fit in its absolute discretion.
5.8. Customer agrees that:
5.8.1. It must sign all documents and take all steps as HPA may reasonably require in connection with the registration, perfection and enforcement of this purchase money security interest; and
5.8.2. The security interest created by this agreement or any other document relating to the subject of this agreement may be registered with the relevant authority or public register; and
5.8.3. HPA is not obliged to give any notice or documents under the PPSA unless the relevant obligation cannot be excluded. Customer waives its right to be provided with verification statements pursuant to section 157 of the PPSA.
6. Warranties
6.1. HPA warrants that all the products manufactured by HPA or a HPA affiliate and supplied to Customer will, subject to this clause 6, comply with HPA’s specifications for those products (or if no such specifications exist, will be free of defects in materials and manufacture), until the end of the registered shelf life of such product, or if there is no registered shelf life, until the date falling 12 months from the date of delivery of the products by HPA to Customer.
6.1.1. All GCX products are warranted for a period of 5 years from date of supply with respect to any faulty materials or workmanship.
6.1.2. All HumanScale Cart products, including Battery System are warranted for a period of 5 years from date of supply with respect to any faulty materials or workmanship.
6.1.3. All Herman Miller products are warranted for a period of up to 12 years from date of supply with respect to any faulty materials or workmanship. Third party Herman Miller products – lockbars and castors are warranted for a period of 5 years from date of supply with respect to any faulty materials or workmanship.
6.1.4. All DT Research AIO PC’s products are warranted for a period of 3 years from date of supply with respect to any faulty materials or workmanship.
6.1.5. All DT Research Accessory and power supply products are warranted for a period of 1 year from date of supply with respect to any faulty materials or workmanship.
6.1.6. All Lithium Ion Battery products are warranted for a period of 9 months from date of supply with respect to any faulty materials or workmanship.
6.1.7. All HPA Keyboards & Mice products are warranted for a period of 1 year from date of supply with respect to any faulty materials or workmanship.
6.1.8. All DCP4C products are warranted for a period of 3 years from date of supply with respect to any faulty materials or workmanship.
6.1.9. All Derungs products are warranted for a period of 2 years for mechanical parts and 5 years for electrical components from date of supply with respect to any faulty materials or workmanship
6.1.10. All Mindray products are warranted for a minimum of 1 year from date of supply with respect to any faulty materials or workmanship. Please refer to specific product quotations for specific warranty details.
6.1.11. All Patient Trolley products are warranted for a minimum of 2 years from date of supply with respect to any faulty materials or workmanship. Please refer to specific product quotations for specific warranty details.
6.2. If a product does not comply with the warranty set out in clause 6.1 and Customer notifies HPA in writing of the defect during the Warranty Period, and within 10 business days of the defect coming to its notice, HPA will, at its option, either repair the product, exchange the product for a new Product, or refund the price paid for the product and accept its return.
6.3. The warranty in clause 6.1 does not apply:
6.3.1. as a result of any acts or omissions by any person other than HPA or any external cause;
6.3.2. if the defect is due to the product being used for purposes other than for purposes for which it was intended or which do not fall within the scope of any regulatory approval.
6.3.3. to a product that has been modified without the written permission of HPA; or
6.3.4. if the product has not been stored or transported in accordance with HPA’s recommendations.
6.3.5. For the avoidance of doubt, the warranty does not cover any defects or damage to products caused by improper use, tampering or pollution.
6.4. The benefit of the warranty in clause 6.1 is personal to Customer and is not assignable without the prior written consent of HPA.
6.5. Except as expressly set out in these terms, and subject to any terms, warranties or conditions that by law may not be excluded (including those under sections 51 to 53 of the Australian Consumer Law), all conditions, warranties, terms, and obligations expressed or implied by law or otherwise relating to the performance of HPA’s obligations under these Terms, or any goods or services supplied, or to be supplied, by HPA under these Terms, are excluded and the rights set out in this clause 6 are the sole and exclusive remedies of Customer with respect to defective products.
7. Credits
7.1. Credits sought for returned products are at HPA’s discretion. Where accepted, HPA may charge a reasonable administration fee in respect of all returned products. For the avoidance of doubt, no products for which the shelf life has expired will be accepted for return.
7.2. Products, in respect of which a credit is sought and approved by HPA, must be returned to HPA’s premises freight free in good and saleable condition in the original containers and packaging in which they were supplied, and accompanied by the number and date of HPA’s supplying invoice.
8. Advertising and Reliance
8.1. Material supplied by HPA to Customer for advertising or display are for use in Customer’s business and are not intended for circulation or distribution to the public or third parties. Such materials remain the property of HPA.
8.2. Except where excluded by law or modified by these terms, and subject to any contrary provisions in the contract, any advice, recommendation, information, assistance or service provided by HPA in relation to the products and their use or application is given in good faith without liability or responsibility on the part of HPA and without intention that Customer should rely thereon.
9. Liability
9.1. Any provision of these terms that excludes any terms, conditions or warranties, or limits the liability of a party applies only to the extent permitted by law.
9.2. Subject to clause 9.1, where any terms, conditions or warranties are implied by law into these terms and the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of HPA to Customer under such implied terms, conditions or warranties is limited, at the option of HPA, to the repair or replacement of goods, or payment of the cost of repairing or replacing the goods.
9.3. Except as expressly provided in these terms, to the extent permitted by law, HPA will have no liability to Customer, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity.
10. Indemnity
10.1. If Customer gives instructions to HPA with respect to manufacturing, packaging, sale or supply of products, Customer warrants to HPA that adherence by HPA to any such instructions will not infringe the intellectual property rights of any other person.
10.2. Customer releases and indemnifies HPA, its related bodies corporate, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of Customer’s warranties or obligations contained in these terms, and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.
11. Insolvency
11.1. If an Insolvency Event occurs in relation to Customer or any other event occurs which gives HPA reasonable grounds for doubting the credit of Customer, HPA may by notice to Customer, at its option and without prejudice to any other right it may have, suspend or terminate a contract or require payment before or on delivery of the products (notwithstanding the terms of payment applicable to the products), or cancel any undelivered or uncompleted products under a Contract, and may retain any monies paid by Customer in relation to the Contract and apply such monies against any loss or damage incurred by it in relation to the default by Customer.
12. Force Majeure
12.1. Neither party will be liable for any delay or failure to perform obligations under these terms (other than payment obligations) if such delay is due to Force Majeure.
12.2. If a delay of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
13. Confidentiality
13.1. These Terms and the provisions of all contracts are confidential and must not be disclosed by Customer to any third party without HPA’s prior written consent unless such disclosure is required by law (other than section 275(1) of the PPSA).
13.2. The parties agree that the provisions of this clause 13 amounts to a “confidentiality agreement” referred to in section 275 (6) of the PPSA.
13.3. The restrictions contained within this clause 13 do not apply to any of these terms or provisions of contracts that HPA has itself placed in the public domain.
14. Privacy
14.1. HPA has a published Privacy Policy which is incorporated into these terms by reference and can be viewed at www.hpaust.com/privacypolicy
14.2. HPA’s collection and use of your personal information may for purposes including:
14.2.1. to process and administer your dealings as a customer, including assessing your credit worthiness;
14.2.2. to provide you with the products and services you have requested and assisting you with further relevant information including product related information; and
14.2.3. to administer the transactions contemplated by the terms.
14.3. HPA:
14.3.1. uses personal Information provided to it for the purposes relating to the terms of this agreement;
14.3.2. uses personal information collected by it in accordance with its Privacy Policy and the Privacy Act 1988 (Cth) (the “Privacy Act”); and
14.3.3. does not sell, trade, give or pass on to any third party any personal information unless such a disclosure is contemplated by and directly related to the purpose outlined by the terms of this Agreement, or the Customer consents to such a disclosure or such disclosure is required to do so by law.
14.4. Customer therefore authorises HPA to disclose Customer’s personal information to third party contractors and service providers that assist HPA operate its business and assist HPA fulfil the terms of this agreement such as contractors and service providers involved in services including but not limited to the processing of orders, order fulfilment and the collection of outstanding debts.
14.5. By entering into this agreement Customer:
14.5.1. acknowledges that it has read HPA’s Privacy Policy and consents to the terms thereof;
14.5.2. acknowledges that HPA is a global organisation and some of the activities necessary to fulfil the terms of this agreement may be conducted by HPA entities located outside of Australia such as New Zealand and as such Customer consents to the overseas transfer of its Personal Information, its employees, consultants and agents provided by Customer to HPA.
14.6. Customer warrants that it shall comply with the provisions of the Privacy Act and shall not (as far as practicable) knowingly do anything or permit anything to be done which might lead to a breach of any such legislation.
15. General
15.1. Customer must comply with all applicable laws, regulations, industry standards and codes of conduct in Australia and any other relevant jurisdiction in relation to all matters contemplated (whether expressly or implicitly) by these terms.
15.2. In these terms and any contract, unless the contrary intention appears:
15.2.1. a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
15.2.2. a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
15.2.3. a reference to dollars is to Australian Dollars;
15.2.4. the word “including” and similar expressions are not words of limitation;
15.2.5. a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and
15.2.6. where an act is to be performed on a day that is not a business day, the act will be required to be performed on the following business day.
15.3. Any notice in connection with these terms or any contract will be deemed to have been duly given when made in writing and delivered or sent by email or post to the party to whom such notice is intended to be given, at the address or email of that party in the Contract or to such other address or email as may from time to time be notified in writing to the other party.
15.4. If any provision of these terms is invalid, illegal or unenforceable, these terms take effect (where possible) as if they did not include that provision.
15.5. Any failure by HPA to insist upon strict performance by Customer of any provision in these terms will not be taken to be a waiver of any existing or future rights of HPA in relation to the provision.
15.6. Customer must not assign or otherwise deal with its rights or obligations under these terms or a contract without the prior written consent of HPA.
15.7. These terms and contracts are governed by the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
15.8. These terms (together with the contracts) contain the entire agreement of the parties with respect to its subject matter and may only be amended in writing.
15.9. These terms do not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
15.10. The parties agree that subject to the provisions of these terms, the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 do not apply to the supply of products under these Terms.
