Australasian Medical and Scientific Ltd Website Trading Terms and Conditions

Provisions

Definitions

• • “Customer” and “Purchaser” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
  • “Goods” means all Goods or Services supplied by AMSL to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ must be interchangeable for the other).
  • “GST” means Goods and Services Tax imposed under the A New Tax System (Goods) and Services Tax) Act 1999 (Cth).
  • “Price” means the Price payable for the Goods as agreed between and the Customer in accordance with clause 5 below.

Acceptance of Terms

These terms and conditions apply to any order for Goods placed by a Customer on this website.

• • The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order on this website for Goods.
  • These terms and conditions may only be amended with AMSL’s consent in writing and prevail to the extent of any inconsistency with any other document or agreement between the Customer and AMSL.
  • The Customer acknowledges and accepts that AMSL at its discretion, reserves the right not to supply Goods if, for any reason (including but not limited to, where the Goods are not or cease to be available, account disputes or conditions placed on AMSL by its suppliers). AMSL will not be liable to the Customer for any loss or damage the Customer suffers due to AMSL exercising its rights under this clause.
  • Where there is more than one Customer that has entered into the Terms and Conditions, the Customers are jointly and severally liable for all payments.
  • The Goods are as described on the relevant Good webpage as contained on this website.

Orders

• • Any Price quoted, published or otherwise provided by AMSL is a mere invitation to treat and does not constitute a contractual offer.
  • Any order for Goods received from a Customer shall not be binding on AMSL until accepted by AMSL by either formal writing or the act of dispatching the ordered Goods to the Customer.
  • Dexcom Orders: All Dexcom users must read/view all training materials and documentation provided with the product, including but not limited to, the owner’s booklet/user guide, quick reference guides, USB training tutorial (Dexcom G5 Mobile System) and all other relevant documentation. If the Dexcom user requires further training on the product, they must contact their healthcare professional or contact AMSL Diabetes for further assistance. If your glucose alerts and readings do not match your symptoms or expectations, you should obtain a fingerprick for the Dexcom G5 Mobile System. A minimum of two fingerpricks a day are required for calibration. It is the Dexcom user’s responsibility to seek appropriate advice when necessary and to use the device as per usage instructions. The warranty conditions for the Dexcom G4 PLATINUM and Dexcom G5 Mobile can be found on our website www.amsldiabetes.com.au, in each product box you receive, and is also available on request. In agreement with the Privacy Act 1988 (Cth), the Dexcom user’s records will be maintained in accordance with the National Privacy Principles. The Dexcom user assigns indemnity to Australasian Medical & Scientific Limited from and against all claims of whatsoever nature (to the maximum extent permitted by law) relating (whether directly or indirectly) to the Dexcom G4 PLATINUM or Dexcom G5 Mobile CGM Systems. Dexcom G4 PLATINUM and Dexcom G5 Mobile is indicated for use in patients over 2 years old and is not indicated for use in pregnancy or patients on dialysis treatment. Receivers, transmitters and sensors are not for resale. Use of non-approved platforms will invalidate the warranty for the receiver and transmitter. Prices on the website are subject to change without notice.

Quotations

• • Any quotation made by AMSL is not an offer to sell and no Purchase Order given in pursuance of any quotation will bind AMSL unless and until such Purchase Order is accepted by AMSL in its absolute discretion. All quotations are subject to withdrawal or variation by AMSL at any time prior to acceptance of a Purchase order

Price and Payment

• • Generally the Price for any Goods will be that Price listed for those particular Goods on AMSL’s website or on relevant company pricing lists.
  • Notwithstanding clause 5.1 AMSL may vary the Price after receipt of an order from a Customer in the event of:
• • • Any mistake on the part of AMSL in publishing a Price on AMSL’s website and relevant material;
    • Any increase in any costs charged to AMSL by its suppliers;
    • Any increases in taxes, duties or other charges imposed by any government body in relation to the Goods;
    • Any change to the Goods requested by a Customer;
    • Any increase as a consequence of variations in foreign currency rates of exchange;
    • Any increase in the cost of freight and insurance charges;
    • Any inaccurate specifications provided by the Customer; or
    • As a result of increases to AMSL in the cost of materials and/or labour.
  • In the event that a Customer has placed an order for Goods which are subject to a variation in Price under clause 5.2, then AMSL will notify the Customer of the variation in Price, along with any reasons for the variation. The Customer may then elect whether to confirm or cancel the order. In the event that the Customer cancels the order AMSL will refund any money already received from the Customer in relation to that order in full.
  • In the case of a cancellation under clause 5.2 the sole extent of AMSL’s liability to the Customer will be the amount of money already paid by that Customer in relation to that cancelled order. AMSL will not otherwise be liable for any loss or damage whatsoever arising from the cancellation.
  • Unless otherwise agreed in writing, AMSL will not Deliver any Goods ordered by a Customer until such time as AMSL receives payment in full for those goods.
  • In the event that AMSL agrees to Deliver Goods without payment, payment shall be due and payable within 30 days of Delivery of the Goods
  • Payment may be made by cheque, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and AMSL.
  • Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to AMSL an amount equal to any GST AMSL must pay for any supply by AMSL under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

Delivery of Goods

• • Delivery (“Delivery”) of the Goods is taken to occur at the time that:
  • • the Customer or the Customer’s nominated carrier takes possession of the Goods at AMSL’s address; or
    • AMSL (or AMSL’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
  • At AMSL’s sole discretion the cost of delivery of Goods may be either included in the Price being Ex Works (pickup from AMSL’s premises) or be in addition to the Price.
  • The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then AMSL will be entitled to charge a reasonable fee for redelivery and/or storage.
  • AMSL may deliver the Goods in separate instalments. Each separate instalment must be invoiced and paid in accordance with the provisions in these terms and conditions.
  • AMSL will take all reasonable endeavours to ship any ordered Goods within 2 business days of receipt of payment; however this time is an estimate only. AMSL will only deliver Goods between 9am and 5pm on a business day. The Customer must still accept delivery of the Goods even if late and AMSL will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
  • The failure of AMSL to deliver does not entitle either party to treat this Contract as repudiated.
  • Backorders will be shipped as soon as they are available.

Risk

• • Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer is responsible for insuring the Goods on or before Delivery.
  • If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, AMSL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by AMSL is sufficient evidence of AMSL’s rights to receive the insurance proceeds without the need for any person dealing with AMSL to make further enquiries.
  • If the Customer requests AMSL to leave Goods outside AMSL’s premises for collection or to deliver the Goods to an unattended location then such Goods must be left at the Customer’s sole risk.

Title

• • AMSL and the Customer agree that ownership of the Goods must not pass until the Customer has paid AMSL all amounts owing to AMSL.
  • Receipt by AMSL of any form of payment other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
  • It is further agreed that:
  • • until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and must return the Goods to AMSL on request.
    • the Customer holds the benefit of the Customer’s insurance of the Goods on trust for AMSL and must pay to AMSL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
    • the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for AMSL and must pay or deliver the proceeds to AMSL within 2 business days.
    • the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of AMSL must sell, dispose of or return the resulting product to AMSL as AMSL directs.
    • Until ownership of the Goods passes to the Customer the Customer irrevocably authorises AMSL enter any premises where AMSL believes the Goods are kept and recover possession of the Goods.
    • Until ownership of the Goods passes to the Customer AMSL may recover possession of any Goods in transit whether or not delivery has occurred.
    • the Customer must not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of AMSL.
    • AMSL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.

   

Personal Property Securities Act 2009 (PPSA)

• • In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
  • Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by AMSL to the Customer.
  • The Customer undertakes to:
  • • promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which AMSL may reasonably require to;
    • register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    • (ii) register any other document required to be registered by the PPSA; or
    • (iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
    • indemnify, and upon demand reimburse, AMSL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
    • not register a financing change statement in respect of a security interest without the prior written consent of AMSL;
    • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of AMSL;
    • immediately advise AMSL of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
  • AMSL and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions
  • The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
  • The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
  • Unless otherwise agreed to in writing by AMSL, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
  • The Customer must unconditionally ratify any actions taken by AMSL under clauses 9.3 to 9.5.
  • Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.

Containers and Tracking Devices

• • AMSL retains the right of possession of any dividers, pallets or tracking devices (including temperature) used for delivery of the goods and the Purchaser agrees to indemnify the supplier in relation to the hire and replacement cost of any of these not returned in good order and condition to the supplier within 30 days of delivery of the goods, unless otherwise agreed in writing with AMSL.

Warranties and Returns

• • Goods are subject to varying warranties which may be found on the relevant webpage of particular Goods. Any purchase of Goods is subject to the relevant warranty as at the date the Customer orders the Goods.
  • AMSL may in its absolute discretion accept non-defective Goods for return in which case AMSL may require the Customer to pay handling fee equal to the cost to AMSL of inspecting, refurbishing and restocking the returned item plus any freight costs.
  • Notwithstanding anything contained in this clause if AMSL is required by a law to accept a return then AMSL will only accept a return on the conditions imposed by that law.

Default and Consequences of Default

• • Interest on overdue payments will accrue daily from the date when payment becomes due, until the date of payment, at a rate of twelve percent (12%) per annum (and at AMSL’s sole discretion such interest must compound daily at such a rate) after as well as before any judgment.
  • If the Customer owes AMSL any money the Customer must indemnify AMSL from and against all costs and disbursements incurred by AMSL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AMSL’s collection agency costs, and bank dishonour fees).
  • Without prejudice to any other remedies AMSL may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions AMSL may suspend or terminate the supply of Goods to the Customer. AMSL will not be liable to the Customer for any loss or damage the Customer suffers because AMSL has exercised its rights under this clause.
  • Without prejudice to AMSL’s other remedies at law AMSL must be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to AMSL must, whether or not due for payment, become immediately payable if:
  • • any money payable to AMSL by a Customer becomes overdue, or in AMSL’s opinion the Customer will be unable to make a payment when it falls due;
    • the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
    • a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

   

Cancellation

• • AMSL may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice AMSL must repay to the Customer any money paid by the Customer for the Goods. AMSL must not be liable for any loss or damage whatsoever arising from such cancellation.
  • In the event that the Customer cancels delivery of Goods the Customer must be liable for any and all loss incurred (whether direct or indirect) by AMSL as a direct result of the cancellation (including, but not limited to, any loss of profits).
  • Cancellation of orders for Goods made to the Customer’s specifications, will not be accepted once production has commenced.

Claims

• • Any claim by the purchaser arising out of the Contract must be made in writing and may be delivered, hand delivered, or email as soon as practicable after discovery of the problem by the purchaser and in any event no later than 7 days after delivery of goods. The purchase must supply a sample, if requested, and information to the extent AMSL can identify the product, batch number (if applicable) and date of manufacture. AMSL has the right at any time within 30 days after receipt of the claim to inspect the relevant goods. If the purchaser disposes of any of the goods within the 30-day period, except with the written consent of the supplier, all claims in respect of the goods disposed of are deemed to have been waived by the purchaser.

Privacy Act 1988

• • The Customer agrees for AMSL to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by AMSL.
  • The Customer agrees that AMSL may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
  • • to assess an application by the Customer; and/or
    • to notify other credit providers of a default by the Customer; and/or
    • to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
    • to assess the creditworthiness of the Customer.
  • The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988
    • The Customer consents to AMSL being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
    • The Customer agrees that personal credit information provided may be used and retained by AMSL for the following purposes (and for other purposes as must be agreed between the Customer and AMSL or required by law from time to time):
    • • the provision of Goods; and/or
      • the marketing of Goods by AMSL, its agents or distributors; and/or
      • analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
      • processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
      • enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
    • AMSL may give information about the Customer to a credit reporting agency for the following purposes:
    • • to obtain a consumer credit report about the Customer;
      • allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
    • The information given to the credit reporting agency may include:
    • • personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
      • details concerning the Customer’s application for credit or commercial credit and the amount requested;
      • advice that AMSL is a current credit provider to the Customer;
      • advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
      • that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
      • information that, in the opinion of AMSL, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
      • advice that cheques drawn by the Customer for one hundred dollars ($100.00) or more, have been dishonoured more than once;
      • that credit provided to the Customer by AMSL has been paid or otherwise discharged.

     

General

• • The failure by AMSL to enforce any provision of these terms and conditions must not be treated as a waiver of that provision, nor must it affect AMSL’s right to subsequently enforce that provision. If any provision of these terms and conditions must be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions must not be affected, prejudiced or impaired.
  • These terms and conditions and any contract to which they apply must be governed by the laws of the state of New South Wales, Australia, and are subject to the jurisdiction of the Court of New South Wales, Australia.
  • Subject to any warranty as detailed in clause 11 AMSL must be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by AMSL of these terms and conditions (alternatively AMSL’s liability must be limited to damages which under no circumstances must exceed the Price of the Goods).
  • The Customer must not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by AMSL nor to withhold payment of any invoice because part of that invoice is in dispute.
  • AMSL may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
  • The Customer agrees that AMSL may amend these terms and conditions at any time. If AMSL makes a change to these terms and conditions, then that change will take effect from the date on which AMSL notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for AMSL to provide Goods to the Customer.
  • Neither party must be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
  • The Customer warrants that it has the power to these terms and conditions and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that these terms and conditions create binding and valid legal obligations on it.

   

Effective date: 25 June 2019