Terms & Conditions of Trade - Medical + Optical

MEDICAL & OPTICAL INSTRUMENTS AUSTRALIA PTY LTD ABN 80 003 178 596 (“Medical + Optical”) will supply medical goods and services (“Goods”) in accordance with the following terms and conditions (“Terms”).

1. INTERPRETATION

In these Terms:

1. 1. “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
  2. “Business Day” means a day in which banks are open for business and specifically excludes Saturdays, Sundays and Public Holidays in Sydney, NSW;
  3. “Consumer” means the definition of Consumer in section 4B of the Competition and Consumer Act 2010 (Cth);
  4. “Health Professional” means the definition of Health Professional in section 42AA of the Therapeutic Goods Act 1989 (Cth);
  5. “Goods” means any medical goods and services supplied by Medical + Optical.
  6. “Grantor” means the grantor of any security interest in the Goods, and is usually the Purchaser;
  7. GST” has the meaning given to that term in the GST Act.
  8. GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
  9. Intellectual Property Rights” means all present and future intellectual, industrial or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trade marks, designs, trade secrets, know-how, confidential information and circuit layouts.
  10. “Order” means an oral or written order by the Purchaser to purchase Goods from Medical + Optical;
  11. Indirect Loss” means any one or more of the following:
    1. economic loss, loss of actual or anticipated profits, loss of revenue, loss of savings, loss of production, loss of business, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of credit, loss of publicity, loss of data, loss of use, loss of interest or loss arising from business interruption; and
    2. any special, indirect, consequential, incidental, punitive, exemplary or unforeseeable loss or any similar loss.
  12. PPS Act” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as varied from time to time.
  13. PPSR” refers to the Personal Property Securities Register established under the PPS Act.
  14. “Purchaser” means a Health Professional that is placing an Order with or purchasing the Goods from Medical + Optical;
  15. Website” means the website of Medical + Optical located at https://medopt.com.au/.
2. GENERAL
  1. The Goods and all other products and services sold and/or provided by Medical + Optical are supplied in accordance with these Terms.
  2. These Terms (which may only be waived or amended in writing and signed by Medical + Optical) will to the extent of any inconsistency prevail over all and any terms or conditions of the Purchaser’s Order.
  3. If the Purchaser accesses the Website, including for the purchase of Goods, the Purchaser is responsible for compliance with all applicable laws, regulations and policies of all relevant jurisdictions.
  4. Nothing contained or implied in these Terms will create a joint venture, partnership or principal and agency relationship between Medical + Optical and the Purchaser.
  5. Nothing in these Terms must be read or applied so as to exclude, restrict or modify or have the effect of excluding or modifying any condition, warranty, guarantee, right or remedy implied by law (Including the Competition and Consumer Act 2010 (Cth)) to the extent it cannot lawfully be excluded, restricted or modified.
3. Order and acceptance
  1. If a quotation is provided to the Purchaser by Medical + Optical then unless withdrawn, this quotation is open for acceptance within the period stated on the quotation or, where no period is stated, within thirty (30) days after the date shown on the quotation.
  2. A quotation does not constitute an offer to sell and/or provide Goods but is an invitation to treat only.
  3. Any Order placed or made by the Purchaser for the purchase of the Goods will be an irrevocable offer and will constitute an unqualified acceptance by the Purchaser of these Terms.
  4. Medical + Optical may reject an Order for any reason, including the unavailability of Goods, an error in the description of Goods on the Website or in its catalogue or proposal, or an error in the Order. Medical + Optical may require additional verification or information before accepting any Order
  5. A contract will be formed between Medical + Optical and a Purchaser on the acceptance of an Order, in whole or in part, and not otherwise.
  6. Orders may not be varied or cancelled by the Purchaser without the written consent of Medical + Optical and, subject to these Terms, there is no right of return.
4. PRICES
  1. All prices quoted either on the phone or included in a quotation are exclusive of all taxes, insurance and transport which will be the sole responsibility of the Purchaser, unless otherwise agreed in writing.
  2. Prices in quotations are indicative only and are based on the quantities of Goods specified in a quotation and prices current at the date of the quotation.
  3. Medical + Optical reserves the right to issue an amended invoice in the case of genuine error on its part in a confirmation, quotation or invoice
  4. Prices for Goods will be charged at:
    1. where a quotation has been provided, the price stated by Medical + Optical on a non-expired quotation; or
    2. where there is no quotation, the pricing ruling is at the date of dispatch.
5. DELIVERY
  1. Medical + Optical only delivers to addresses in Australia.
  2. Medical + Optical may arrange for transport of the Goods to a destination nominated by the Purchaser and the cost of such transport will be added to the price of those Goods.
  3. The Goods will be deemed to be delivered to the Purchaser at the time:
    1. the Purchaser takes possession of the Goods at Medical + Optical’s address;
    2. the Goods are delivered to the Purchaser’s nominated address (and will be effective if delivery is made to any person reasonably appearing to be an employee or agent of the Purchaser); or
    3. the Purchaser’s nominated carrier takes possession of the Goods in which event the carrier will be deemed to be the Purchaser’s agent.
  4. The Purchaser must make all arrangements necessary to accept delivery of the Goods at the Purchaser’s nominated address.
  5. Medical + Optical will not be liable for any loss occasioned by delay in delivery of and/or the procuring of Goods, whether Indirect Loss or otherwise.
  6. If the Purchaser is unable or unwilling to accept delivery of the Goods as arranged or the delivery point is inadequate, not suitable or inaccessible, then Medical + Optical will be entitled to charge all reasonable costs for the return, storage and redelivery of Goods.
  7. If the Purchaser disputes proof of delivery, details of this dispute must be provided in writing to Medical + Optical within seven (7) Business Days of delivery.
6. ADVERTISING
  1. All information and advertising herein related to the supply of Goods is solely intended for Health Professionals with a valid certification. A Health Professional must rely on his or her own professional clinical judgment when deciding whether to purchase or use the Goods when treating a particular patient. Health Professionals must be trained in the individual use of any of the Goods before use in a procedure or surgery. Health Professionals must refer to the packaging, product label and/or instructions for use, including the instructions for cleaning and sterilisation (if applicable), before use of any Goods.
  2. Product information, photos and images supplied by the Company, available on the Website or otherwise contained in catalogues, price lists, advertising or other printed material of Medical + Optical are approximate and for general illustration purposes only, may differ from the actual Goods and do not form part of the contractual description of the Goods unless agreed to in writing by Medical + Optical.
  3. From time to time, Medical + Optical may, at its sole discretion, choose to offer competitions or promotional terms and conditions (“Promotions”) to a Purchaser. Promotions are intended to reward customer loyalty and it is the responsibility of the Purchaser to determine if Goods are suitable for their needs, or the particular needs of their patients. Promotions are based on measured criteria and may include cost-based rewards such as a price reduction, complimentary shipping and/or complimentary samples.
7. INTELLECTUAL PROPERTY
  1. The Purchaser agrees that:
    1. Medical + Optical or its suppliers owns and retains, and the Purchaser must not assert any right of any kind to, any Intellectual Property Rights in respect of the Goods, their design or anything used to make or design them; and
    2. nothing in this document transfers any Intellectual Property Rights to the Purchaser or confers any licence to use any Intellectual Property Rights.
  2. The Purchaser indemnifies Medical + Optical and keeps Medical + Optical indemnified against all claims, demands, loss, costs and expenses incurred by or made against Medical + Optical, arising out of any actual or alleged infringements of Intellectual Property Rights relating to any logo, design or other material that Medical + Optical uses, prints or reproduces at the Purchaser’s request
8. PAYMENT AND DEFAULT
  1. Where a quotation has been provided by Medical + Optical and accepted by a Purchaser, terms of payment are fourteen (14) days from the date of the relevant invoice, unless otherwise stated on such invoice.
  2. Medical + Optical reserves the right to require payment with the Order or allow credit for part or all of the Order’s value or may accept an Order and require a deposit or pre-payment as a condition of delivery for the Goods ordered by the Purchaser. Credit cards are accepted but surchargers may apply.
  3. If the Purchaser has not been pre-approved to pay on account, then full payment for the Order must be processed before the Goods will be dispatched.
  4. The Purchaser must reimburse and indemnify the Company for and against all expenses, costs and disbursements incurred by Medical + Optical in pursuing the debt or a claim under these Terms including the fees charged to Medical + Optical by any mercantile agency.
  5. If the Purchaser fails to pay any amount due under these Terms by the due date, Medical + Optical may at its sole discretion:
    1. charge interest on all amounts not paid by the Purchaser by the due date at the cash rate as set by the Reserve Bank of Australia plus a margin of 7% calculated from the due date and accruing monthly until the date of payment.
    2. reverse any rebates and discounts allowed;
    3. change credit payment terms including by requiring cash pre-payment for any further Goods ordered;
    4. provide details of the payment default to a credit reporting agency;
    5. suspend supply Goods to the Purchaser and terminate any other agreement with the Purchaser;
    6. charge interest ……and
    7. exercise any other rights at law including pursuant to the PPSA.
  6. A certificate of debt signed by a representative of Medical + Optical will be prima facie evidence and proof of money owing by the Customer to Medical + Optical at the time of certificate.
9. GST
  1. Terms used in this clause that have a particular meaning in the GST Act have the same meaning in this clause. Any reference to GST payable by a party, or to an input tax credit entitlement of a party, includes any corresponding GST payable by, or input credit entitlement of, the representative member of any GST group of which that party is a member.
  2. All consideration for any taxable supply provided for by these Terms or any related document or agreement is exclusive of GST unless the contrary is clear. The amount of that consideration must be increased by an additional amount equal to the GST on that taxable supply. The party who has to pay the additional amount must pay it at the same time as the consideration in respect of that taxable supply becomes due or, if the supplier has to pay (or allow credit against) the relevant GST before then, the additional amount must be paid at that earlier time.
  3. If an amount of consideration under these Terms or any related document or agreement is calculated as specific compensation or reimbursement for an expense, loss or liability of a supplier, the consideration must be calculated after excluding any amount for which the supplier is entitled to an input tax credit as recipient of the item to which the expenses, loss or liability relates.
  4. A party is not obliged to make any payment for GST unless it is provided with a tax invoice which complies with the GST Act.
  5. If at any time an adjustment is made or required to be made between a party and the relevant taxing authority on account of any amount paid as GST under these Terms or any related document or agreement:
    1. a corresponding adjustment must be made;
    2. adjustment notes must be issued; and
    3. any payment must be made,
      between the parties as may be necessary to give effect to the adjustment.
10. TRANSFER OF PROPERTY

Risk to Goods

1. 1. The risk (but not title) in respect of Goods sold passes to the Purchaser immediately upon delivery to the Purchaser, the Purchaser’s agent or courier as the case may be.

Title to Goods

1. Title to the Goods remains with Medical + Optical and will not pass to the Purchaser until Medical + Optical have received all monies owing to Medical + Optical on any account.
2. Until title to the Goods passes to the Purchaser, the Purchaser will keep the Goods free from any charge, lien or other encumbrance.
3. Until title to the Goods passes, the Purchaser will:
  1. hold the Goods on a fiduciary basis as bailee for Medical + Optical;
  2. keep the Goods separate from all other goods in its possession and marked in such a way that the Goods are clearly identified as the property of Medical + Optical;
  3. upon request deliver up the Goods (or such part of them that have not ceased to be in existence or resold) to Medical + Optical (for which purpose Medical + Optical’ employees or agents may enter the Purchaser’s premises) and the Purchaser is obliged to deliver up the Goods if so directed by Medical + Optical in accordance with the enforcement procedures outlined in Chapter 4 of the PPS Act; and
  4. not intermingle any sums the Purchaser receives from any sale made by it or on its behalf of the Goods and will hold such sums as trustee on behalf of Medical + Optical and account fully to Medical + Optical for such sums promptly as and when required by Medical + Optical.
4. If:
  1. the Purchaser fails to pay any amount (whether in part or whole) payable in respect of any Products by the time required for payment; or
  2. the Purchaser is the subject of an insolvency event (such as receivership, administration or liquidation);
5. Medical + Optical may, without notice to the Purchaser, enter at any reasonable time any premises where the Goods are located (or believed by Medical + Optical to be located) and take possession of those Goods not paid for and any other Goods to the value of the amount owing. Medical + Optical’s permission to enter the Customer’s premises for that purpose is irrevocable. Medical + Optical is not liable to the Purchaser in contract, tort or otherwise, for any costs, damages, expenses or losses incurred by the Purchaser as a result of any action taken by Medical + Optical under this clause.

PPS ACT
1. Words in italic will have the meaning and definitions set out in the PPS Act.
2. The Purchaser acknowledges that by virtue of these Terms Medical + Optical has a security interest in the Goods and their proceeds and to the extent applicable, the PPS Act applies to any agreement pursuant to these Terms.
3. The Purchaser acknowledges that Medical + Optical may do anything it considers necessary, including but not limited to registering on the PPSR any security interest(s) in the Goods which Medical + Optical has and including registration as a purchase money security interest (PMSI) in order to perfect Medical + Optical’s security interest as a first priority interest under the PPS Act. The Purchaser agrees to do all things including signing any document which Medical + Optical reasonably requires to assist Medical + Optical to undertake the matters set out above.
4. The Purchaser and Grantor (if different) acknowledge that Medical+ Optical may register the said security interest(s) in the Goods, at its discretion.
5. The Purchaser waives pursuant to section 157(3)(b) of the PPS Act the right to receive notice of a financing statement, financing change statement or a verification statement in relation to any registration on the PPSR.
6. The Purchaser and Medical + Optical agree, that pursuant to section 115 of the PPS Act the following provisions in the PPS Act are contracted out of insofar as they require Medical + Optical to give any notice or statement or allow any period of time or grant any opportunity to remedy to the Purchaser:
  1. sections 95 (removal of accession), 96 (retention of accession);
  2. section 125 (obligation to dispose of or to retain collateral);
  3. section 129 (disposal by purchase);
  4. section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor before disposal;
  5. subsection 132(4) (statement of account if no disposal);
  6. section 135 (notice of retention);
  7. section 142 (redemption of collateral); and
  8. section 143 (reinstatement of security agreement).
7. Solely to preserve their confidentiality, to the extent allowed under section 275 of the PPS Act, the Purchaser and Medical + Optical agree that neither will disclose information if requested by a third party under section 275(1) of the PPS Act.
8. The Purchaser agrees that any rights of Medical + Optical under this document are in addition to and not in substitution for its rights under the PPS Act.
9. The Purchaser must not without Medical + Optical’s consent specify an order of application of payments made to Medical + Optical different to that set out in section 14 of the PPS Act or different to any other order specified by Medical + Optical at any time.
10. The Purchaser undertakes to give Medical + Optical not less than 14 days prior notice of any proposed change in the Purchaser’s name or any other change in the Purchaser’s details (including, but not limited to, changes in its address, phone or facsimile number and trading name).
WARRANTIES
1. The Goods sold by Medical + Optical may come with a manufacturer’s warranty. This is a warranty given by the manufacturer, not by Medical + Optical.
2. To the extent that the Purchaser is considered a ‘consumer’ under the Australian Consumer Law, then the Goods sold by Medical + Optical also come with guarantees that cannot be excluded under the Australian Consumer Law. The Purchaser is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Purchaser is also entitled to have the goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
3. Nothing in this document is or should be interpreted as an attempt to modify, limit or exclude any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by legislation which cannot be modified, limited or excluded.
4. Medical + Optical excludes to the extent permitted by law all other guarantees, terms, conditions, warranties, undertakings, inducements or representations whether express or implied, statutory or otherwise, which would otherwise be implied into this document concerning the activities covered by this document.
5. A claim under a manufacturer’s warranty can be made by the Purchaser in writing either directly to the manufacturer or to Medical + Optical. A claim must be accompanied with proof of purchase. The costs of transportation of the Goods will be borne by the Purchaser.
EXCLUSION OF LIABILITY
1. To the maximum extent permitted by law, Medical + Optical’s liability for breach of a condition or warranty given by Medical + Optical or implied by operation of a guarantee under the Competition and Consumer Act 2010 (Cth) is limited to:
  1. in the case of Goods, any one the following:
    1. the replacement of Goods or the supply of equivalent goods;
    2. the repair of Goods;
    3. the payment of the cost of replacing Goods or of acquiring equivalent Goods;
    4. the payment of the cost of having the Goods repaired;
  2. in the case of services
    1. the supplying of the services again; or
    2. the payment of the cost of having the services supplied again.
2. Except as provided in these Terms, Medical + Optical will not be liable or in any way responsible for any loss or damage including Indirect Loss, in respect of anything done or supplied under these Terms, including
  1. 1. the supply to or use by the Purchaser of any Good; or
    2. delayed or non-delivery of the Goods for any reason including but not limited to loss, damage, theft of the Goods whilst in transit; or
    3. any breach by Medical + Optical of its obligations under an agreement the subject of these Terms,
  except where Medical+Optical is in breach of the guarantees provided to the Purchaser in accordance with the Australian Consumer Law, or applicable legislation from time to time.
RETURNS AND EXCHANGES
1. The Purchaser must inspect the Goods as soon as is reasonably practicable after delivery.
2. If any or all of the Goods delivered were damaged, defective, or incorrect when delivered, then the Purchaser must give Medical + Optical written notice of that fact within seven (7) Business Days after the delivery date.
3. For further information, refer to Medical + Optical Return and Exchange Policy.
CANCELLATION OF ORDERS
No order will be cancelled or deferred without the prior written consent of Medical + Optical (not to be unreasonably withheld).
FORCE MAJEURE
1. Medical + Optical will not be liable for any failure to carry out an obligation under the Terms to the extent that the failure was caused by events or circumstances beyond its reasonable control (“Force Majeure Event”) including, but not limited to, acts of God, fire, accident, pandemic, change in law, interruptions to energy supply, strike, riot, civil commotion or war whether declared or not.
2. While Medical + Optical will do all things reasonably necessary to mitigate the effect of the Force Majeure Event on the performance of its obligations, it may cancel or defer Orders at its sole discretion. In a Force Majeure Event, Medical + Optical will endeavour to provide notice to the Purchaser which sets out in reasonable detail the nature of the Force Majeure Event and the steps taken to mitigate its effect.
RE-STOCKING CHARGE
Goods may only be returned with the approval of and at the sole discretion of Medical + Optical. Goods so returned will be subject to a re-stocking charge of 30% of their invoiced value.
PRIVACY
Medical + Optical collects, uses, stores and discloses personal information in accordance with its Privacy Policy which can be found here (“Privacy Policy”). The Purchaser acknowledges that it has had an opportunity to read and understand the Privacy Policy
MODIFICATION
Medical + Optical may modify the Terms from time to time in our sole discretion, by 30 days’ notice to the Purchaser. The Terms on the Website will be updated, specifying the effective date of the new version. The “Last Modified” date will indicate when the latest changes were made. An Order which occurs following the posting of a new version constitutes acceptance of the version currently in effect.
GOVERNING LAW
These Terms are governed by and will be construed in accordance with the laws in force in New South Wales. Each party submits to the jurisdiction of the courts of New South Wales and of the Commonwealth of Australia in connection with matters concerning these Terms.
LEGISLATION
These Terms are governed by the Therapeutic Goods Act 1989 (Cth), Personal Property Securities Act 2009 (Cth) and Competition and Consumer Act 2010 (Cth) and the Privacy Act 1988 (Cth) (“Acts”), as amended from time to time. Any capitalised words, used in these Terms, but not defined in these Terms will take on the meaning of such defined words in the Acts and if not defined in the Acts, then its ordinary meaning.
SEVERANCE
If any of these Terms are held by a Court of competent jurisdiction to be invalid or otherwise unenforceable, that provision will be severed from the Terms and the remainder of these Terms will continue to be effective and valid notwithstanding such severance.