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All goods and services supplied by Supplier (Goods) to the Customer shall be subject to the terms and conditions of this Agreement except where otherwise agreed by the parties.
(a) Supplier invites the Customer to make an offer (Invitation) to Supplier to sell or provide the Goods on the terms and conditions contained in this Agreement.
(b) The Customer may offer at any time during the period of any Invitation to acquire the Goods by providing a purchase order to Supplier which is in accordance with the terms of the Invitation. If the Customer does not make an offer within the invitation period, the Invitation will automatically lapse.
(c) No contract will be formed between the Customer and Supplier, and Supplier will have no obligation or liability in relation to the Customer in any way, unless and until Supplier provides written notice to the Customer that Supplier has accepted the Customer’s offer.
(d) Any terms and conditions attached to the Customer’s offer are excluded. The terms and conditions of the contract formed between the Customer and Supplier will be the terms and conditions of this Agreement, except to the extent that they are modified by the Invitation.
Once a contract has been formed between the parties, the Customer may not cancel a purchase order unless the Customer has first obtained written consent from Supplier to do so and the Customer pays to Supplier all cancellation costs arising in connection with the cancellation.
(a) The Customer may, from time to time, in writing, request Supplier to vary any term of a purchase order. Supplier shall not be obligated to accept the Customer’s request for a variation.
(b) Supplier may change the specifications of any Goods, including to its packaging or delivery, without obtaining the Customer’s approval if, in the reasonable opinion of Supplier, the changes improve the function, operation or use of the Goods or do not otherwise result in the Goods differing in any substantial way from the original specification as was relevant at the time the Customer made a purchase order.
Unless stated otherwise, the Customer will pay Supplier for the Goods supplied to it under this Agreement within seven (7) days of the date of invoice (Due Date). This clause is an essential provision of this Agreement.
If the Customer does not pay for the Goods by the Due Date, the Customer will pay to Supplier on demand interest on any overdue amount calculated at the rate of 12% per annum which interest will accrue daily from the Due Date until the date when Supplier receives payment.
Supplier’s acceptance of any payment, or delay or failure to act, shall not prejudice its right to exercise any remedy it has against the Customer.
Unless stated otherwise, all amounts payable under this Agreement are exclusive of any goods and services tax and other taxes which may be relevant. The Customer agrees to pay on demand any goods and services tax or other taxes that may be payable with respect to the provision of any Goods under this Agreement.
(a) Supplier will use its reasonable endeavours to provide the Goods within any periods specified in the Invitation.
(b) Goods delivered “ex Stock” are subject to the fulfilment of prior orders.
(c) The Customer will also pay a packaging fee in respect of the delivery of Goods as notified by the Supplier.
(d) The Customer agrees to pay any delivery, administrative, insurance or storage expenses incurred by Supplier where delivery of the Goods cannot be effected due to any fault on the part of the Customer.
(e) Supplier will not be liable in any way to the Customer or any third party due to the failure by Supplier to deliver any Goods within the period specified in the Invitation. The Customer shall remain liable to pay for the Goods in accordance with this Agreement even if Supplier fails to deliver the Goods by the required date.
(f) Supplier shall be entitled, in its discretion, to deliver the Goods by instalments.
(g) All risk in the Goods passes to the Customer on delivery of the Goods by Supplier to the Customer.
(h) By signing the delivery docket when the Goods are delivered to the Customer, the Customer is deemed to have accepted that Supplier has supplied the quantity and description of the Goods on the date and at the place of delivery described in that delivery docket.
(a) Supplier may at its discretion permit the Customer to return the Goods where they are not of a merchantable quality.
(b) The Customer will pay to Supplier an administrative and restocking charge of 20% of the full retail value of the Goods and any freight charges payable with respect to the return of the Goods.
(c) The Goods must be returned in their original packaging which must not be damaged. The Goods must not be price tagged. Goods which do not comply with this clause will not be accepted by the Supplier for return.
(d) Supplier shall not in any way be liable to the Customer for any loss or damage suffered by the Customer if, for any reason whatsoever, including but not limited to industrial action, accidents, breakdown, unavailability of raw material, government restrictions or regulations, force majeure or any other cause, delivery of the Goods is delayed.
(e) The Customer shall indemnify and keep Supplier indemnified from any claims, damages, expenses or costs resulting from or arising out of the use of the Goods by the Customer whether or not such Goods are damaged or defective.
The Customer acknowledges that until such time as the Customer pays all monies owing under this Agreement, title to the Goods does not pass to the Customer and:
(a) the Goods remain the sole and absolute property of Supplier as legal and equitable owner, but at the Customer’s risk from the time of delivery;
(b) the Customer must store the Goods separately from its own goods or in a manner which makes the Goods readily identifiable as Supplier’s goods;
(c) the Customer must not sell, assign, transfer, part with, or grant any security interest over the Goods (other than in favour of Supplier or at the direction of Supplier) without the prior written consent of Supplier, which may be withheld in Supplier’s absolute discretion. In the event that the Customer sells the Goods, the proceeds of sale of such Goods shall be paid into a separate account and held on trust for Supplier. The Customer shall immediately account to Supplier from this account for the full price of the Goods;
(d) the Customer must secure the Goods from all risk and theft and otherwise keep the Goods fully insured against such risk that are usual or common to insure against in a business of a similar nature to that of the Customer; and
(e) the Customer shall not represent to any third parties that it is acting in any way for Supplier and acknowledges that Supplier will not be bound by any contracts with third parties to which the Customer is a party.
Upon any default by the Customer under this Agreement the Customer must immediately, upon Supplier’s request, return to Supplier any Goods which it does not own or allow Supplier for the purpose of examination and recovery of such Goods, to enter upon any premises where they are stored or where they are reasonably thought to be stored. Upon recovery of any Goods, Supplier may sell the Goods and may retain the proceeds of such sale. This clause does not limit in any way any other rights in law or in equity which Supplier may have including the right to damages for breach of contract.
Without limiting any other provision of this Agreement, Supplier may terminate this Agreement immediately by notice in writing to the Customer if:
(a) the Customer fails to pay any amounts due under this Agreement which are payable to Supplier;
(b) the Customer is in breach of any term of this Agreement and such breach is not remedied within seven (7) days of written notification by Supplier;
(c) the Customer for any reason destroys or disposes of or loses custody of any Goods to which the Customer has no title;
(d) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency or other external administration;
(e) the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(f) the Customer ceases or threatens to cease conducting its business in its normal manner or otherwise than prudently; or
(g) the Customer, being an individual, becomes a bankrupt within the meaning of any applicable bankruptcy legislation.
14. This Agreement may be terminated at any time by Supplier for any reason whatsoever by giving seven (7) days written notice of its intention to do so. The Customer will pay to Supplier within seven (7) days of service of such notice all moneys owing to Supplier.
If notice is given to the Customer pursuant to clauses 13 or 14, Supplier may, in addition to terminating the Agreement and pursuing any additional or alternative remedies provided by law:
(a) require the Customer to immediately pay all amounts in relation to any Goods which have been invoiced but remain unpaid;
(b) require the Customer to pay in advance before receiving delivery of any further Goods;
(c) retake possession of any Equipment (if applicable); and/or
(d) suspend or cease supplying any Goods to the Customer.
(a) Except for any warranties which are imposed by law and cannot be excluded, the Customer acknowledges that Supplier does not give or make any warranty, assurance, promise or representation regarding the quality, fitness for use, suitability or merchantability of the Goods for any purpose whatsoever, and that the Customer has relied entirely on the Customer’s own knowledge, skill and judgment in regard to the supply of the Goods.
(b) The Customer agrees that any advice, testing or inspection given by Supplier in relation to the use or installation of the Goods at the Customer’s request is given or undertaken on the basis that Supplier assumes no obligation or liability in respect thereof.
To the extent permitted by law, Supplier excludes all liability for any claim made by the Customer other than any claim for breach of an express contractual term under this Agreement. The Supplier’s liability under this agreement is as follows:
(a) For a breach of any condition including a term of this Agreement, is, to the extent permitted, limited to, in the case of goods:
(i) the repair of the Goods;
(ii) the replacement of the Goods or the supply of the equivalent goods;
(iii) the payment of the costs of having the Goods repaired; or
(iv) the payment of the costs of replacing the Goods or of acquiring equivalent Goods;
or in the case of services:
(i) the supplying of the services again; or
(ii) payment of the cost of having the services supplied again.
(b) For breach of contract, and to the extent permitted, to the price of the particular Goods in respect of which the breach occurred.
In relation to this Agreement and Supplier’s obligations and liabilities arising under it, Supplier excludes to the maximum extent permitted by law;
(a) all conditions and warranties implied by custom or legislation; and
(b) all liability for consequential or indirect losses, expenses, damages and costs, even if Supplier is aware of or may reasonably or otherwise anticipate their possibility.
The Customer warrants that at the time of entering this Agreement that it:
(a) is not insolvent or bankrupt (as the case may be);
(b) knows of no circumstance which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.
The Customer declares that any credit to be provided by Supplier under this Agreement is to be applied wholly or predominantly for business or investment purposes.
The Customer may not assign its rights under this Agreement without the prior written consent of Supplier, which may be granted or withheld in the absolute discretion of Supplier.
The Guarantor acknowledges and agrees that:
(a) The Guarantor has read and understood the terms and conditions of this Agreement and has been advised to seek independent legal advice in respect thereof.
(b) The Guarantor unconditionally and irrevocably guarantees that the Customer will pay Supplier all amounts payable under this Agreement when they are due. If the Customer does not pay any amount under this Agreement on time and in accordance with this Agreement, then the Guarantor agrees to pay that amount to Supplier on demand. A demand may be made at any time and from time to time.
(c) The Guarantor unconditionally and irrevocably indemnifies Supplier against, and the Guarantor must therefore pay Supplier on demand for liability, loss or costs it may suffer or incur if:
(i) the Customer does not, is not obliged to, or is unable to, pay Supplier in accordance with this Agreement; or
(ii) the Customer does not comply on time with all its obligations under any agreement with Supplier; or
(iii) Supplier is obliged, or agrees, to pay an amount to a trustee in bankruptcy or liquidator in connection with a payment by the Guarantor or the Customer.
(d) The Guarantor as principal debtor agrees to pay Supplier on demand a sum equal to the amount of any such liability, loss or cost.
(e) The indemnity in sub-paragraph (c) is a continuing obligation, separate and independent from the Guarantor’s other obligations under this clause. Where there is more than one Customer or Guarantor their liability shall be joint and several.
The Customer may not at any time under this Agreement seek to effect or effect any set-off against any liabilities due by Supplier to the Customer against any liabilities due or which may fall due by the Customer.
This Agreement, constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understanding, whether verbal or in writing.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason in any jurisdiction, this Agreement will remain otherwise in full force in that jurisdiction apart from such provision which will be deemed deleted.
This Agreement is governed by and will be construed in accordance with the laws of the State of New South Wales.
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Supplier, Supplier is unable to perform in whole or in part any obligation under this Agreement, Supplier shall be relieved of that obligation under this Agreement to the extent and for the period that it is so unable to perform and shall not be liable to the Customer in respect of such inability.
(a) Without prejudice to clause 11 of this Agreement, Customer also grants a security interestto Supplier in each of the Goods and any proceeds in respect of the Goods to secure the price payable for the Goods (and any interest or other charges payable in relation to the Goods) and to secure all monies payable by Customer to Supplier at any time on any account. The Customer acknowledges that the security interest will continue until Supplier gives Customer a final release.
(b) To the extent permitted by law, if Customer defaults under this Agreement or fails to make any payment by the due date, each security interest created in favour of Supplier will become immediately enforceable. In addition to any rights arising at law, Supplier may take possession of and either sell or retain the Goods, pay any expenses incurred in the exercise of any such powers from the realisation of, the Goods. Where Supplier takes possession of the Goods, Supplier may sell the Goods by any means at any time and from any sale proceeds, deduct all costs incurred in connection with the sale and all monies owed (even if not due and payable) to Supplier by Customer on any account. Supplier may recover from Customer any shortfall on any sale or attempted sale. Customer agrees that it will pay or reimburse Supplier for any costs, losses or other liabilities Customer incurs or sustains, (including actual legal costs and disbursements on a solicitor and own client basis), in connection with the exercise, enforcement or preservation of any right arising under these Terms.
(b) Without limitation, if this Agreement or (or a transaction in connection with this Agreement) is or contains a security interest (including a purchase money security interest) under the PPSA, the Customer agrees to do anything (such as obtaining consents, completing, signing and producing documents and supplying information) which Supplier considers necessary for the purposes of:
(i) ensuring that the security interest is enforceable, perfected and otherwise effective; and
(ii) enabling Supplier to apply for any registration, or give any notification, in connection with the security interest so that it has the priority required by Supplier; and
(iii) enabling Supplier to exercise powers in connection with the security interest.
(b) Without limiting any other provision of this Agreement, the Customer waives its right to receive any verification statement (or notice of any verification statement) in respect of any financing statement or financing change statement relating to any security interest created under this Agreement.
(c) The Customer and Supplier agree that they will not disclose any of the information set out in section 275(1) of the PPSA in relation to this Agreement or any security interest created under this Agreement to any person (except that Supplier may do so where required due to the operation of section 275(7) of the PPSA, in connection with any assignment of this Agreement by the Supplier or in accordance with another provision of this Agreement).
(d) The Customer undertakes to:
(i) execute any document and perform any action at the request or direction of Supplier necessary or desirable for:
(1) the registration of any financing statement or financing charge statement by Supplier;
(2) the prompt and accurate filing, lodgement or registration of any form, document or information in the PPSA Register;
(3) the prompt and accurate provision of any written or electronic notice or reply to any notice, to the PPSA Register or any other person; or
(4) compliance by Supplier with PPSA; and
(ii) execute any document and perform any action reasonably required by, and in a form and substance satisfactory to, Supplier for further or more effectually securing to Supplier its rights under this Agreement, including:
(1) any document or action to enable Supplier to take possession or control of any Goods;
(2) any document or action to enable, facilitate or complete any attachment, temporary perfection, full perfection or third party enforceability of any security interest to or in favour of or for the benefit of Supplier arising under or in connection with this Agreement; or
(3) any document or action to reinstate, improve or protect the priority of this Agreement or any security interest created under this Agreement.
(e) Nothing expressed in the provisions of this clause shall limit or otherwise adversely affect the rights conferred upon Supplier, by the PPSA and to the extent that any provision has this effect it shall be read down accordingly. Customer agrees that, to the extent the law permits: (a) sections 142 and 143 of the PPSA are excluded; and (b) Supplier need not comply with sections 95, 125, 129(2), 129(3), 130, 132(3)(d), 132(4) and any other provision of the PPSA notified to Customer by Supplier after the date of this Agreement.
(f) In this Agreement, the following words and expressions have the same meanings given to them in the PPSA: financing change statement, financing statement, purchase money security interest, security interest and verification statement.
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