General Terms for Purchase of Products
(applicable to purchase of Medical Devices and their Components by Medigroup)
- The Company purchases Products from the Supplier, and the Supplier supplies Products to the Company.
- Unless expressly agreed otherwise between the Company and the Supplier, each supply of Products by the Supplier to the Company will be subject to these Terms.
- Purchase and Supply
- Applicability of Terms: These Terms apply to each supply of Products, by the Supplier or any Related Body Corporate of the Supplier, to the Company.
- Right to Re-sell Products: During the Term, the Company has a right to purchase Products from the Supplier and to exclusively sell, distribute, demonstrate, display, market and promote Products to end-users, dealers, or sub-distributors in the Territory in any manner or media, including but not limited to, via any e-commerce website.
- he Company may place orders with the Supplier for the supply of Products (Purchase Order). The Company may give a Purchase Order to the Supplier at any time by any means.
- The Supplier agrees to sell Products to the Company pursuant to Purchase Orders the Supplier receives from the Company and accepts, subject to and in accordance with these Terms. The Supplier agrees that these Terms will prevail over any inconsistent or additional terms and conditions contained in any document issued by the Supplier, unless confirmed by the Company in writing. The Supplier agrees that any inconsistent or additional terms and conditions are deemed rejected by the Company, disclaims any such terms and conditions, and agrees that such disclaimer shall be deemed to be continuing throughout the Term.
- Alteration of Purchase Order: A Purchase Order may be altered or cancelled without any charge at any time prior to delivery of Product, the subject of that Purchase Order, by notice from the Company to the Supplier.
- Acceptance: Within 2 Business Days of receipt of a Purchase Order, the Supplier must notify the Company if the Supplier is unable to fulfil, in whole or in part, the supply of Products specified in the Purchase Order or deliver Products, the subject of the Purchase Order by the relevant Delivery Date. Once accepted, the Supplier may not cancel or alter any Purchase Order.
- No Purchase Commitment: Nothing in these Terms constitutes an offer or agreement by the Company to acquire Products generally from the Supplier. The Company will not be responsible for the Supplier’s reliance on any statements or forecasts made by the Company.
- Inventory: The Supplier will maintain sufficient stock of Products to meet any anticipated demand for Products by the Company.
- Product Changes: The Supplier will notify the Company of its plans for each new version, upgrade, successor or replacement of Products within 120 days prior to their general market availability. The Supplier will make available each new version, upgrade, successor or replacement to the Company for sale or distribution before the time the Supplier makes them generally available to other dealers or distributors.
- Labelling and Re-Packaging Products: The Company shall be entitled to label, tag and/or repackage Products to meet any regulatory requirements prescribed by the Laws, without the Supplier’s prior review and approval.
- Finance Purchase of Products: The Supplier acknowledges that the Company, without being required to first pay the Price of Products to the Supplier, shall be entitled to: (a) obtain financing from banks or other financial institutions, on the security of Products, to finance the purchase of Products by the Company; or (b) enter into any sale-leaseback transaction (in a single transaction or series of transactions) involving Products with banks, other financial institutions or any other entities whereunder the Company sells Products to the bank or financial institution or any other entity and after that leases Products back.
- 2.1 Prices: The Supplier will sell Products to the Company at the Price.
- Resale Price of Products: The Supplier acknowledges that the Company may determine its own resale price for Products.
- Price Changes: The Supplier will give the Company written notice of any price increases together with new price list at least 90 days before the effectiveness of the new price list. The acceptance of new prices will be at sole discretion of the Company. If the Company does not approve of the prices, the Company may terminate these Terms. For trading arrangements in place longer than 3 years from date of first order, the Supplier agrees not to increase price more than CPI plus 3%, unless they can demonstrate verifiable supply cost increases.
- he Supplier must use best efforts to deliver Products, the subject of a Purchase Order, to the Delivery Address by the relevant Delivery Date unless expressly agreed otherwise between the Company and the Supplier.
Unless expressly agreed otherwise between the Company and the Supplier, the Supplier must pay all costs associated with each delivery of Product to an Authorised Location.
- : All shipments of Products shall include a bill of lading, invoice, certificate of origin and any customs documents required for each lot. All quantities of Products shall be: (a) suitably packed for air freight shipment; (b) labelled, and in a form and formulation, mutually agreed; and (c) delivered in accordance with these Terms.
- If the Company reasonably considers that a Product is faulty or does not comply with these Terms or the Laws, and needs to be repaired, the Supplier must pay all costs associated with repairing that Product, including, as required by the Company, costs of delivery:
- rom the repair facility to the relevant Authorised Location or the Consumer.
- : If the Company reasonably considers that a Product is faulty or does not comply with these Terms or the Laws, and needs to be replaced, the Supplier must pay all costs (as required by the Company) associated with replacing that Product, including, as required by the Company, cost of the replacement Product and of:
Title and Risk
- itle and risk in a Product passes to the Company on delivery of that Product to the Company.
- If the Company returns a Product to the Supplier in accordance with these Terms, title and risk in that Product passes to the Supplier upon dispatch by the Company of that Product from the Authorised Location.
- : The Supplier must not register a Purchase Money Security Interest or any other interest under the PPSA Act over any Product or generally over any asset of the Company.
- : The Supplier shall assist the Company in obtaining or maintaining the Regulatory Approvals required to promote and distribute Products in the Territory, including providing any materials and documents which the Company may require in this regard. All Regulatory Approvals will be owned by and in the name of the Company.
- : The Supplier shall guarantee the quality of Products and materials and ensure that they conform to all the Laws. The Company shall not be obligated to receive, or be held responsible for distribution of any Products received from the Supplier that are contrary to the Laws.
- : The Supplier at its expense shall provide the Company, at the Company’s request, with free samples of Products for evaluation, promotional and marketing purposes. The Supplier shall be responsible for translation of any materials provided to the Company, if these materials are not in English language.
- : The Supplier must maintain, in stock, a sufficient quantity of spare parts, in relation to Products, at all times. The Supplier agrees that the timeframe for repairs is important in complying with the Australian Consumer Law and for the Company in building good relations with its customers.
- 6.1 Non-Exclusive Supply: Unless otherwise agreed in writing, the Supplier acknowledges that the Company may enter into negotiations, arrangements or agreements with any other entity for the purchase of products similar or identical to Products, without any liability whatsoever to the Supplier.
- he Tax Invoice must be addressed to and issued to the Company on the date of delivery of the relevant Product to which the Tax Invoice relates.
- : Subject to these Terms, the Company must pay the amount stipulated in the Tax Invoice in accordance with the relevant Payment Term.
- he Company may deduct all or any part of any Credit Claim, from any payment due to the Supplier by the Company pursuant to any Tax Invoice or otherwise.
- 30 days of the date of the Credit Claim, pay the amount of any unpaid Credit Claim to the Company.
- : If the Supplier fails to pay the Credit Claim, the Company may, after giving the Supplier written notice, charge interest on the amount due at ten percent per annum calculated from the date such monies fell due until the actual date of payment by the Supplier.
- 9.1 No Set-Off: The Supplier must not deduct any sum from a payment due by the Supplier to the Company, unless the Company agrees in writing to the deduction.
- 10.1 Defined Terms: Any term used in these Terms which has a defined meaning in the GST law will have the same meaning in these Terms as is ascribed to that term in the GST law.
- Subject to clause 10.4, if GST is imposed on any supply made under these Terms by one party (“supplying party”) to another party (“receiving party”) and GST has not been taken into account when determining the consideration payable for the supply, the receiving party must pay, in addition to and at the same time as that consideration is payable or to be provided for the supply, an additional amount calculated by multiplying that consideration (without deduction or set-off) by the prevailing GST rate.
- If the amount of GST recovered by the supplying party from the receiving party differs from the amount of GST payable at law by the supplying party in respect of the supply, the amount payable by the receiving party to the supplying party will be adjusted accordingly.
- he receiving party is not required to pay any amount of GST to the supplying party unless the supplying party has made demand for payment by means of a Tax Invoice.
- GST Free Products: The Supplier must inform the Company where a Product is to be treated as GST free, and the Supplier acknowledges that the Company will rely on any information the Supplier provides to the Company about classification of a Product as taxable or GST free.
- GST Registered Supplier: The Supplier warrants it is registered for GST and will notify the Company if the Supplier ceases to be registered for GST.
Disputed Tax Invoice
- time the Company, in good faith, disputes a Tax Invoice, or rejects or has an issue with Products to which a Tax Invoice relates, the Company may pay the undisputed part of the Tax Invoice. If the Company has already paid the total amount set out in the Tax Invoice (including any disputed amount) then the Company can issue a Credit Claim for the disputed amount.
- : Where a Tax Invoice or a Credit Claim is in dispute, in whole or in part, the Supplier must not wholly or partially suspend, cancel or withdraw supply of Products to the Company, or withhold payment of any amounts due by the Supplier to the Company.
- : The Company may issue to the Supplier a Credit Claim at any time and from time to time during or after the Term.
- : Subject to clause 12.4, the Supplier must pay the amount set out in a Credit Claim to the Company within 30 days of the date of the Credit Claim.
- : Subject to clause 12.4, if the Supplier fails to pay an amount set out in a Credit Claim in accordance with clause 12.2, the Company may, without further notice to the Supplier, charge interest on the amount due, calculated at ten percent per annum during the period commencing on the due date for payment and ending on the date of actual payment.
- : If the Supplier disputes a Credit Claim, in whole or in part, the Supplier must inform the Company about the same within 30 days of the date of the Credit Claim. Any Credit Claim, which is not rejected by the Supplier in accordance with this clause 12.4, will be deemed to be accepted by the Supplier.
- : The Company and the Supplier must deal with any dispute regarding a Credit Claim in accordance with clause 31.
- : If the Company overpays the Supplier for any reason, the amount of overpayment will be a debt immediately due and payable by the Supplier to the Company. The Company may deduct the amount of any overpayment from the payment due to the Supplier by the Company under any Tax Invoice.
- : Without limiting clause 25 of these Terms, where there is a Consumer Guarantee Breach in respect of a Product, the Supplier must indemnify and keep indemnified the Company in accordance with clause 25 of these Terms and in accordance with the Australian Consumer Law. The Company may issue the Supplier with a Credit Claim in relation to a Consumer Guarantee Breach and the provisions of clause 12 will apply.
- : Nothing in this clause is intended to limit the obligations of the Supplier under the Australian Consumer Law or under clause 25 of these Terms.
- : The Supplier must immediately notify the Company, of any interim or permanent ban which may affect any Product.
- : The Company will, at the Supplier’s expense, return any Products subject to a ban and issue a Credit Claim for the Price in respect of such Products.
- : The Supplier must immediately notify the Company, if the Supplier recalls a Product or a Product notice is issued that affects any Product.
- : The Company will, at the Supplier’s expense, return to the Supplier any Product subject to a recall and issue a Credit Claim for the Price of that Product.
- : Where a recall notice requires the Company to provide a remedy to a Consumer, the Supplier must indemnify and keep indemnified the Company in accordance with clause 25 of these Terms. The Company may issue the Supplier with a Credit Claim in relation to a recall and provisions of clause 12 will apply.
- : In addition to the payments of amounts set out in the Credit Claim with respect to a recall, the Supplier agrees to pay the Company a recall administration fee of $10,000 plus 3% of product value each time the Company undertakes a recall process. The Supplier acknowledges that the recall administration fee is a genuine pre-estimate of damages suffered by the Company to undertake a recall process.
- : Nothing in this clause limits the obligations of the Supplier under the Australian Consumer Law or under clause 25 of these Terms.
- : The Supplier must promptly inform the Company of all reports and any information of which the Supplier becomes aware, relating to any adverse effects caused by or related to Products, Product defects and any complaints in respect of Products which may result in the Company incurring any liability.
- : The Supplier must not make any representations or admit liability on behalf of the Company, or settle any complaints in respect of Products or Claim which results in the Company incurring liability, without the prior written consent of the Company.
- : If the Company is required, pursuant to any requirement prescribed by the Laws or legal or regulatory process, to disclose any information or records maintained by the Company regarding the sale of Products, the Consumers to whom Products are sold, the prospective orders of Products etc., the Company may make disclosure of such information in accordance with the disclosure requirement. The Supplier agrees that the Company will not be required to notify the Supplier or assert any challenge to or defence against the disclosure requirement.
- : The Supplier also agrees that the information and records specified in clause 18.1 belong to, and vest exclusively in the Company and the Company shall not be required to disclose the same to the Supplier or any Supplier Personnel.
Promotional Product: The Supplier warrants that all Products supplied to the Company by the Supplier, including any Products supplied for promotional purposes, are fit for purpose, safe and durable and complies with the Laws.
- : The Supplier must ensure that each Supplier Personnel who, provides in-person training or demonstrations to the Company or to any representatives, contractors and/or employees of the Company, or who are in attendance at the Authorised Location will comply with the workplace policies and reasonable directions of the Company and its representatives.
- : The Supplier must ensure that each Supplier Personnel:
- s appropriate skills, qualifications and experience and complies with all the Laws; and
- es not expose any person to any hazard or cause disruption at the Authorised Location.
- : The Supplier must ensure that each Supplier Personnel:
Subcontracting: The Supplier must not subcontract or otherwise arrange, wholly or partially, for Product to be supplied, managed or represented by any person other than the Supplier.
Training: The Supplier must, from time to time, provide free of charge Product training to Company representatives at Authorised Location, and provide training materials.
- : The Supplier agrees, represents and warrants to the Company at all times during the Term and in respect of each supply of Product by the Supplier to the Company (where the context permits):
- : In performing the obligations of the Supplier under these Terms, the Supplier will comply with all applicable Laws;
- : Once a Product is delivered to the Company, the Company will have the right to undisturbed possession of that Product;
- : Products are free from defects in material and workmanship;
- : Products sold to the Company will comply at all times with the specifications and requirements of the U.S. Federal Food, Drug, and Cosmetic Act, or the European Union Medical Device Directive and Therapeutic Goods Administration of Australia, and News Zealand Department of Health as applicable. The Supplier will provide, when requested by the Company, certification that, to the best of its knowledge, it is in compliance with U.S. laws, statutes, rules, regulations, and relevant orders relating to the manufacture, use, distribution, and sale of Products;
- : The Supplier has all rights to Products and Trademarks, and has obtained the right to grant the licenses, as set forth in these Terms. To the best of the Supplier’s knowledge, the Trademarks, Products, and any versions, upgrades, successors and replacements thereof, and the Supplier’s use thereof, will not: (i) infringe or misappropriate any copyright, Trademark, patent, trade secret, any publicity or privacy right or other intellectual property of any third party; or (ii) subject the Company to liability for violation of any laws, rules or regulations;
- : The Supplier represents and warrants that it will fulfill all applicable warranties contained in its standard end-user warranty, as communicated to the Company, to the Company’s end-use customers;
- The Supplier’s obligation under the above warranties in clause 23.1(f), or in case the Company reasonably considers that a Product is faulty, or does not comply with these Terms or the Laws is to either:
- 3.7 and 3.8 respectively at no charge to the Company or the Consumer; or
The Supplier shall have no warranty or other obligation if Product has expired consistent with labels or other publications by the Supplier, or has not been used, handled or stored in accordance with industry practice and with guidelines that have been communicated by the Supplier or the Company;
- : Each Product delivered to the Company is free from any security, charge or encumbrance. The Supplier will not register a Purchase Money Security Interest under the PPSA Act over any Product or any other interest under the PPSA Act over any Product, or generally over any asset of the Company;
- : There is no current or threatened litigation involving the Supplier which may adversely affect the affairs of the Supplier or the Supplier performing the obligations of the Supplier under these Terms;
- : The Supplier will, at all times, act in a highly professional, competent, courteous and timely manner;
- : The Supplier has supplied, and will continue to supply, information that is true and correct;
- : Each of the Supplier Personnel have appropriate skills and experience, will comply with all the Laws and will not expose a person to any hazard or cause any disruption to the Company;
- : The Supplier has authority to enter into and perform its obligations under these Terms, and where it enters these Terms as agent for another party, it is authorised to act for its principal in the manner contemplated by these Terms, which authority has not been revoked;
- : Each Product will be manufactured, packaged, labelled, supplied and described in accordance with all applicable Laws and these Terms; and
- : The Supplier will not engage in any conduct that is likely to:
- islead a Consumer, including as to the manufacturing process, characteristics, suitability for purpose or quality of any Product.
- : The Supplier must promptly notify and fully disclose to the Company in writing particulars of any event or occurrence (actual or threatened) which will or may materially affect the ability of the Supplier to perform any obligations of the Supplier under these Terms or under any Laws.
- : The Supplier acknowledges that the Supplier does not rely on any representation, warranty or other conduct which may have been made by any person in any antecedent negotiations or communications leading to these Terms.
- Intellectual Property Rights of Company: The Supplier agrees that all Intellectual Property Rights in any materials such as customer lists, materials, information, reports, documentation etc., originated by the Company, whether pursuant to or in connection with these Terms shall belong to and remain exclusively vested in the Company.
- Use: During the Term, the Company shall have, at no charge, the right and license to use the Trademarks in the normal course of advertising or selling Products, and to indicate to the public that the Company is authorised to sell Products.
- Property Rights: The Supplier warrants now, and warrants at the time of each supply of Product by the Supplier to the Company, that the Supplier either owns or is licensed or has obtained all other requisite consents from any third party to use all Intellectual Property Rights subsisting in or required to be used to manufacture and supply Product to the Company.
- Use of Supplier Materials: The Company may use, reproduce and/or publish, in whole or part, in any media, any materials or representations made by the Supplier (including on the Supplier’s website) and the Supplier warrants now, and at all times during the Term, that such materials and representations are accurate and comply with all the Laws.
- : The Supplier agrees to indemnify and hold the Company and its officers, employees, agents and subcontractors (each an “Indemnified Party”) harmless from and against any Claims made upon or against any of them, or any damage, loss, cost, expense (including legal costs and expenses) or liability suffered or incurred by, any one or more of the Indemnified Parties, in connection with:
- a third party’s claim or allegation that Products infringe any of its Intellectual Property Rights or proprietary rights; and
- Supplier’s failure to observe any applicable Laws.
- The Supplier agrees to pay any final judgement entered against the Company or any Consumer on any Patent Claim defended by the Supplier. Upon notice of any Patent Claim, or if in the Supplier’s opinion a Patent Claim is likely, the Supplier will, at its option and expense: (a) obtain the right for the Company to continue to exercise the rights granted under these Terms; (b) substitute other products with similar functionalities; or (c) modify the offending Product so that it is no longer infringing and without any liability whatsoever on the Company.
- The Company holds for itself and on trust for each other Indemnified Party the benefit of each indemnity in these Terms expressed to be for the benefit of an Indemnified Party.
- Each indemnity is a continuing obligation, separate and independent from the Supplier’s obligations under these Terms.
- An Indemnified Party does not need to incur an expense or make a payment before enforcing an indemnity under these Terms.
- Limitation of Liability: The Company will not be liable to the Supplier for any one or more of the following: lost revenues; lost profits; lost business; lost data or data use; lost goodwill; lost anticipated savings; incidental loss; indirect loss; consequential loss; special damages; economic or punitive damages, whether arising from or in connection with any breach of contract, negligence or any other cause of action, in connection with or relating to these Terms or the supply of Product by the Supplier to the Company.
- : Each party must treat as confidential all Confidential Information which comes into a party’s possession pursuant to or as a result of or in performance of these Terms, whether such information relates to the business, sales, marketing or technical operations of a party, the Intellectual Property Rights of a party, or otherwise, and may only disclose such details to those employees, contractors, nominees or representatives of a party who need to know such Confidential Information to enable them to carry out their duties for performance of the obligations of that party under these Terms.
- Further Confidentiality Obligation: A party must not, without the prior written permission of a disclosing party, copy or cause to be copied or disclose any Confidential Information to a third party, or use or exploit Confidential Information except in accordance with clause 26.1.
- Company and Supplier’s Privacy Obligations: Each party warrants it will comply with all applicable privacy laws and regulations including without limitation the provisions of the Privacy Act 1988 (Cth) (Privacy Act) and not collect, use or disclose Personal Information (as that term is defined in the Privacy Act) other than in accordance with the Australian Privacy Principles set out in the Privacy Act.
- Breach and Suspension
- Consequences of breach of Terms: Where the Supplier breaches these Terms, or is suspected to be in breach of these Terms, the Company may suspend the trading relationship with the Supplier until the Supplier has remedied the breach or these Terms are terminated. During any suspension, the Company may suspend or cancel any Purchase Order by notice to the Supplier, and the Company may continue to offer Product for sale and/or remove Product from sale at the sole discretion of the Company.
- Term: These Terms continue unless terminated in accordance with these Terms.
- Termination by Either Party: Either party may terminate these Terms at any time by giving not less than 30 days written notice of termination to the other party, for convenience, without liability.
- Immediate Termination by Either Party: Either party may immediately terminate these Terms by written notice to the other party if:
- a party commits a material breach of these Terms, and where the breach:
- can be remedied and the party fails to remedy such breach within 10 Business Days after receipt of notice specifying the breach and requiring the party to remedy such breach; or
- cannot be remedied; or
- a party sells or agrees to sell its business; or
- an Insolvency Event occurs in relation to a party.
- Consequences of Termination
Effects of Termination
- Where the Terms are terminated by either party, the Company may, at the discretion of the Company:
- cease sale and distribution of Products in the Territory;
- refuse any delivery of any further Product;
- withdraw Product from sale and return all re-saleable Products to the Supplier in exchange for a refund of the Price for Products. Where Products returned are capital assets and subject to depreciation, the Company shall receive a refund of the Price of Products returned less ten percent depreciation, calculated on a diminishing balance method for each Product from the date Product was received at the Authorised Location; and / or
- continue to offer any Product currently held in stock for sale.
- Where these terms are terminated, each party will:
- except where the Company continues to offer any unsold stock for sale, cease to use the Intellectual Property Rights of the other party;
- cease to represent that it has any affiliation with the other part; and
- return all Confidential Information of the other party to the other party.
- cease sale and distribution of Products in the Territory;
The Company, at the Supplier’s expense, shall deliver to the Supplier, or at the Supplier’s request, destroy, all promotional and marketing materials supplied by the Supplier.
- Accrued Rights: Termination of these Terms will not affect the accrued rights or remedies of the Company, in particular, but without limitation, the obligation of the Supplier to:
(a) provide any indemnity contained in these Terms; and
- provide any remedy to the Company where Product does not comply with any of the Laws including without limitation the Australian Consumer Law.
- Court Proceedings: A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of these Terms.
- Equitable Relief: The parties acknowledge and agree that: (a) the rights of parties described in these Terms are unique, and that money damages alone for breach of these Terms will not be adequate; and (b) time and performance are of the essence in these Terms.
- Mediation: The parties agree to settle all disputes or claims arising out of these Terms through non-binding mediation as per the applicable rules of South Queensland Dispute Resolution Centre in good faith and resolve the disputes amicably and share the cost of mediation equally.
- Continued Performance: Each party must continue to perform its obligations under these Terms notwithstanding the existence of a dispute. Where a Tax Invoice or Credit Claim is in dispute, the Supplier must not suspend, cancel or withdraw supply of Product to the Company.
- Force Majeure
Effects of Force Majeure: Neither party will be liable for any delay or failure to perform an obligation (other than to pay money) under these Terms caused by a Force Majeure Event. An affected party must notify the other party as soon as practicable of any anticipated delay caused by a Force Majeure Event and the performance of the affected party’s obligation is suspended for the period of delay.
No Assignment: The Supplier must not assign its rights or obligations under these Terms.
Modes of Notice: A notice given by a party under these Terms may be delivered personally, by prepaid ordinary post or by email to the person at the Notice Address and will be treated as given and received:
- If delivered personally, on delivery;
- If sent by pre-paid ordinary post, on the 3rd Business Day (or on the 7th Business Day after the date of posting if posted to or from a place outside Australia); and
- if sent by email, on the day of transmission if a Business Day, or otherwise on the next Business Day.
- If sent by pre-paid ordinary post, on the 3rd Business Day (or on the 7th Business Day after the date of posting if posted to or from a place outside Australia); and
No Press or other Announcements: The Supplier must not make any press or other announcements or releases about the making or existence of these Terms without the prior written approval of the Company.
- Survival: Any obligation or term by its nature intended to survive termination, or payment, under these Terms is independent and survives termination of these Terms.
- Further Action: Each party must do, at its expense, everything necessary (including executing documents) to give full effect to these Terms and any transaction contemplated by them.
- Severability: A term or part of these Terms that is illegal or unenforceable may be severed and the remaining terms or parts of these Terms will be valid and enforceable to the full extent of the Laws.
- Governing Law and Jurisdiction: These Terms are governed by and construed in accordance with the laws in Queensland and the parties submit to the non-exclusive jurisdiction of those courts.
- Waiver: A provision of or a right created under these Terms may not be waived or varied except in writing signed by the party or parties to be bound.
- Authority: Where any document is executed by a person on the Supplier’s behalf, that person warrants they have authority to execute the document on the Supplier’s behalf.
- Inconsistency: If there exists any inconsistency between these Terms and any other document relating to the subject matter set out in this document, these Terms will prevail to the extent of inconsistency.
- Relationship: In the performance of these Terms, the parties acknowledge that: (i) they are independent contractors and are engaged in the operation of their businesses, and are not employees, partners, joint venturers, associates or agents of one another; and (ii) they do not have the authority to act for, or commit the other party in any manner whatsoever.
- Legislation: Any present or future legislation which operates to vary an obligation or right, power or remedy of a person in connection with these Terms is excluded except to the extent that its exclusion is prohibited or rendered ineffective by the Laws.
- Exercising Rights: A party may exercise a right, power or remedy at its discretion and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy. Failure by a party to exercise or delay in exercising a right, power or remedy does not prevent its exercise.
- Approvals: A party may give conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless these Terms expressly provides otherwise. In considering requests for its approval/consent a party must act with reasonable expedition.
- Standing Agreement: These Terms operate as a standing agreement and each Purchase Order shall constitute a separate contract for supply of Products between the parties and the Company may enforce its rights under these Terms against a Purchase Order or multiple Purchase Orders.
- Amendment of these Terms: The Company may amend these Terms from time to time by providing the Supplier with adequate notice. If the Supplier does not agree to the amendments, then the Company may at its sole discretion terminate these Terms (in which case the Supplier will only be entitled to any unpaid Price) or abandon the proposed amendment.
- Interpretations and Definitions
- the singular includes the plural and vice versa;
- the meaning of general words, such as “including”, is not limited by specific examples; and
- if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.
- Definitions: In these Terms and any associated document, the following expressions will mean the following unless inconsistent with the context:
- the singular includes the plural and vice versa;
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and includes the Competition and Consumer Regulations 2010 (Cth) and any amendments.
Authorised Location means, in respect of the Company, any business or warehouse premises, including any electronic website, where the Company carries on business and offers Products for sale, including any location agreed in writing between the Supplier and the Company to be an “Authorised Location”.
Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland, Australia.
Claims includes all manner of actions, causes of action, arbitrations, debts, dues, costs, interest, demands, verdicts, judgements, fines and penalties, both at law or in equity or arising under the provisions of statute.
Commencement Date means the date the Company first issues a Purchase Order to the Supplier or first request by the Company to the Supplier for the supply of Product by the Supplier to the Company.
Company means Medigroup Australia Pty Limited (ABN 84116264281).
Confidential Information includes all information however recorded or retained and whether oral or written or electronically stored that is by its nature confidential or designated by a party as confidential, and includes, without limitation, information of each affiliate of each party, but does not include information made public (other than by breach of these Terms) and/or information required to be disclosed by the Laws.
Consumer Guarantee Breach means a breach of a consumer guarantee under the Australian Consumer Law in respect of a Product due to a manufacturing defect or other fault of the manufacturer.
Consumer has the meaning given to that term in the Australian Consumer Law, and includes a customer of the Company.
Credit Claim means a claim issued by the Company to the Supplier, from time to time, for the purpose of obtaining credit from the Supplier, including but not limited to in respect of any one or more of the following: faulty goods; price protection; cost price markdowns; costs incurred for repairs; returned goods; interest; overpayments or for any other reason as agreed by the Company and the Supplier.
Delivery Address means the address notified by the Company to the Supplier from time to time, as the location for delivery of Product by the Supplier to the Company.
Delivery Date means, in respect of a Purchase Order, the date noted on that Purchase Order as the date the Product, the subject of that Purchase Order, must be delivered to the Delivery Address, or such other date as later agreed in writing between the Supplier and the Company.
Force Majeure Event means an act of God, pandemic, epidemic, implementation of travel, movement and large-gathering restrictions as a result of the pandemic or epidemic, terrorism, solar flares, bush fires, floods, war, strike, lock out or other industrial action other than those specifically caused by or arising from a party’s action or inaction, war, riot, insurrection, vandalism or sabotage, and law and administrative order or act of general or particular application.
GST has the meaning given to that term in the GST law and includes any replacement or similar tax.
GST law means A New Tax System (Goods and Services Tax) Act 1999 (Cth)) and related imposition Acts of the Commonwealth, as amended from time to time.
Indemnified Party is defined in clause 25.1.
Insolvency Event means the appointment of an administrator or other external manager, a compromise or arrangement with creditors, a winding-up, dissolution, deregistration, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy or similar event.
Intellectual Property Rights means all present and future intellectual property rights, including without limitation patents, copyright, rights in circuit layouts, designs, domain names, trademarks, service marks and any application, and any right to apply for registration of any common law right to any of the aforementioned intellectual property rights.
Laws mean all laws, including State, Territory and Commonwealth laws, regulations and bi-laws in force in Australia from time to time, common law and principles of equity and any relevant international laws.
Notice Address means, in respect of the Company, the relevant Authorised Location, and in respect of the Supplier, the address as advised by the Supplier to the Company in writing during the Term.
Patent Claim is defined in clause 25.2(a).
Payment Term in respect of a Tax Invoice, means any payment term as agreed in writing between the Supplier and the Company, in accordance with which the Company shall pay for Products.
PPSA Act means the Personal Property Securities Act 2009 (Cth).
Price means, in respect of a Product, the price for that Product as agreed in writing between the Supplier and the Company, and which price is inclusive of any taxes, duties or other levies which may be imposed on such Products and which is inclusive of all packaging, insurance and the cost of delivery to the Authorised Location.
- in respect of a Purchase Order, the goods specified in that Purchase Order which the Supplier offers to supply to the Company; and
- where used generally in these Terms, means those goods supplied or offered to be supplied by the Supplier to the Company from time to time.
Purchase Money Security Interest has the meaning given to that term in the PPSA Act.
Purchase Order is defined in clause 1.3.
Regulatory Approvals means all governmental approvals, authorisations, and registrations necessary for the commercial sale of a Product in each country within the Territory.
Related Body Corporate has the meaning given to it in the Corporations Act 2001 (Cth).
Supplier means the party supplying Products to the Company in accordance with these Terms and includes each entity or person that issues the Company with a Tax Invoice for the supply of Product.
Supplier Personnel includes the officers, employees, agents or approved subcontractors of the Supplier.
Tax Invoice means a tax invoice given by the Supplier to the Company from time to time, in accordance with the GST law, in respect of each supply of Product by the Supplier to the Company.
Term means the period commencing on the Commencement Date and ending on the Termination Date.
Termination Date means the date of termination as set out in a Termination Notice.
Termination Notice means a notice given by one party to another party to terminate these Terms, pursuant to clause 29.
Terms means these General Terms for Purchase of Products and any other terms expressly agreed in writing between the Company and the Supplier in connection with the supply of Products, and includes any amendment to these Terms from time to time.
Territory means, unless agreed otherwise, Australia and New Zealand.
Trademarks means all trademarks, service marks, trade names, and logos used by the Supplier or any Related Body Corporate of the Supplier used in connection with Products or its business.