Terms & Conditions
YOU SHOULD BE AWARE OF SEVERAL KEY TERMS
This summary is designed to assist you by disclosing certain terms that may affect you. However, it is not a substitute for reading and understanding the Terms, and it is not intended to substitute, expand or amend the Terms.
· Delivery of Goods: to the extent permitted by law we are not responsible to you or any person claiming through you for any loss or damage to Goods once those Goods have left our premises.
· Limitation of liability: To the extent permitted by law:
o we exclude all responsibility and liability for indirect or consequential loss arising from or in connection with the supply of the Goods; and
o our liability is otherwise limited to repairing or replacing the goods or paying the cost of having those goods repaired or replaced or in the case of services, re-supplying the services or paying the cost of having the Services re-supplied.
These Terms and Conditions of Supply, together with the Online Order, form the agreement between you and Cabrini Health Limited trading as Axis Health (we, us) in relation to the supply and/or hire of the Goods and/or the supply of Services (as the case may be) (Terms).
Capitalised terms have the meanings given to them in section 24 below.
These Terms commence on the date specified in the Online Order or for walk-in or hospital customers on the date you accept the quote for the Goods or Services, and continues until all of the Services have been completed or the end of the last Hire Period or after all Purchased Goods have been delivered, whichever occurs later, unless terminated earlier in accordance with these Terms.
Part A – Services
This Part A applies where we are supplying Services to you.
- Subject to section 2, we will supply each Service to you.
- We warrant that:
- we will perform the Services to a professional standard; and
- appropriately qualified personnel will perform the Services.
- Estimates only
- Any times stated by us for the completion of the Services are estimates only.
- To the maximum extent permitted by law, we will have no liability whatsoever if the provision of the Services is delayed for any reason (including due to circumstances beyond our control). In no circumstances will delay in delivery constitute, or be deemed to be, a breach of these Terms.
- Security and access
If applicable, you must provide us with reasonable access to your premises and facilities for the purpose of enabling us to perform the Services.
Part B – Supply of Goods
This Part B applies where we are supplying and/or hiring Goods to you.
- We will supply and/or hire the Goods to you in accordance with these Terms and (if applicable) as set out in the Online Order.
- We warrant that we will supply the Goods in substantial conformity with the Online Order (if any).
- Estimates only
- Any times stated by us for the delivery of the Goods are estimates only.
- To the maximum extent permitted by law, we will have no liability whatsoever if the delivery of the Goods is delayed for any reason (including due to circumstances beyond our control). In no circumstances will delay in delivery constitute, or be deemed to be, a breach of these Terms.
We will not dispatch any Goods to, or make any Goods available for collection by you, until you have paid the Deposit, or any other amount that is first due to be paid, under these Terms or the Online Order (if any) in respect of the Goods.
- We may, at our discretion, deliver the Goods to you in any number of instalments, unless otherwise agreed in writing between us.
- If we deliver any of the Goods by instalments, and any one of those instalments if defective for any reason, the defective instalment is a severable breach that, subject to section 18, gives rise only to a claim for replacement or repair of the defective instalment.
- Loss or damage in transit
Although we use appropriate care when delivering Goods, we are not responsible to you or any person claiming through you, including in negligence, for any loss or damage to Goods once those Goods have left our premises (however caused and whether or not we are legally responsible for any person who caused or contributed to that loss or damage), except as required by law.
Rights in relation to the Goods
We both agree that:
- title in all Purchased Goods remains with us until we have been paid in full for all Purchased Goods;
- title in all Rented Goods remains with us at all times.
- Your obligations
In respect of any Goods while they remain our property, you must:
- not dispose of the Goods or create or allow to be created any mortgage, lien, charge, pledge, claim or other encumbrance or third party interest over or in respect of the Goods, or agree to do any of those things;
- not (without our prior written consent) supply any of the Goods to any person outside of your ordinary or usual course of business; and
- not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.
- Damaged Goods
If any Goods are delivered to you in a damaged state, you may contact us within 5 Business Days of delivery to request a refund of the Price paid or replacement of the damaged Goods. We will pay for return shipping of the damaged Goods, which will be inspected on receipt to confirm damage prior to processing your refund or replacement.
- Incorrectly Supplied Goods
If the wrong type or incorrect quantity of Goods were delivered to you, you must contact us within 20 Business Days of receipt of our invoice to request a refund or credit for Price paid. We will pay for return shipping of the incorrectly supplied Goods, which will be inspected on receipt to confirm that they are unused and in the original packaging prior to processing your refund or credit.
- Unwanted Goods
- If you have ordered the wrong type or incorrect quantity of standard-stock Goods, you must contact us within 20 Business Days of receipt of our invoice to request a credit for Price paid (less the Restocking Fee). You must arrange (at your cost) return shipping of the unwanted Goods, which will be inspected on receipt to confirm that they are unused and in the original packaging prior to processing your credit.
- We do not accept return of any Goods that are not standard stock item, including special buy-in Goods.
- Faulty Goods
If, within 12 months of delivery, any Goods become faulty or defective, you must contact us to request replacement of the faulty Goods. You must arrange (at your cost) return shipping of the faulty Goods, which will be inspected on receipt to confirm that they are faulty or defective prior to processing your replacement Goods. Any return shipping costs will be refunded to you if the Goods are confirmed to be faulty.
- Returning Used Goods
- Unless unused and in original packaging, all Goods must be cleaned prior to return to us.
- Used instruments must also be sealed in an autoclave bag or pouch and sterilised prior to return. Goods that are not returned in a clean and/or sterile condition will be returned.
Part C – Hire of Rented Goods
This Part C applies in addition to Part B where we are hiring Rented Goods to you.
Use, maintenance and return of Rented Goods
- Use of Rented Goods
- ensure that the Rented Goods are used and operated in a proper and skilful manner and by recognised methods and standards of operation;
- comply with all applicable laws necessary for the safe and lawful use of the Rented Goods; and
- comply with all our reasonable requirements and of the manufacturer of the Rented Goods.
- Maintenance, access, loss or damage
- You must take proper care of the Rented Goods (fair wear and tear excepted).
- You must notify us if the Rented Goods break down or fail for any reason.
- You must ensure that the Rented Goods are serviced and maintained in accordance with the manufacturer's specifications and our reasonable requirements.
- We may, by giving 5 Business Days' notice to you, inspect the condition of the Rented Goods.
- You must notify us if the Rented Goods are:
- destroyed; or
- Repairs of the Rented Goods associated with the misuse, neglect or omission by you, including parts and labour, must be paid for by you.
- Repairs or replacement for Rented Goods that are lost or damaged beyond repair or Rented Goods that are stolen from your premises, must be paid for by you to the amount equal to the value of equivalent new Rented Goods (in addition to all related costs and expenses).
- Where repair costs are required to be paid by you, we will supply you with an estimate of the repair costs within a reasonable time of the return of the Goods to us. You must pay the repair costs within 30 days of receiving a tax invoice from us.
- Where you are responsible for repairs made to the Rented Goods, the Rent will continue to apply to the Goods being repaired during the repair period.
- Return of Rented Goods
- Immediately on the termination or expiry of these Terms or the Hire Period (as the case may be), you must, at your expense, de-install and ship the Rented Goods, in good working order, to the address notified by us. This shipment should be insured, as you will bear the risk of loss or damage to the Rented Goods during transit.
- We may invoice you for any Rented Goods that are not returned to us in accordance with this section 3, and you will be liable for the replacement costs of the Rented Goods.
Part D – General
- Compliance with law
Each party must comply with all laws applicable to that party in connection with these Terms.
Price and expenses
You must pay us the Price for the Purchased Goods in full and upfront.
- You must pay us the Rent for the Rented Goods for the Hire Period.
- We will invoice you on a monthly basis for the Rent.
- You must pay each invoice issued in accordance with these Terms within 7 days of the issue date.
- The Price and/or Rent specified in the Online Order or quote (as applicable) may include an estimate for out-of-pocket expenses incurred by us in connection with the supply of the Goods.
- Subject to paragraph (c), you must reimburse us for any additional out-of-pocket expenses incurred by us in connection with the supply of the Goods if our expenses exceed the estimate specified in the Online Order or quote by 30% or more. We will issue you an invoice for these expenses and you must pay the invoice within 7 days of the issue date.
- We will inform you and seek your consent (such consent not to be unreasonably withheld or delayed) before we incur any additional out-of-pocket expenses (such as travel fees and courier charges) under paragraph (b).
- No set-off
You acknowledge that you are not entitled to set-off any amounts that you are otherwise legally entitled to recover from us under these Terms or at law against any amounts due by you to us.
- GST inclusive amounts
For the purposes of these Terms, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under these Terms, the amount or consideration will not be increased on account of any GST payable on that supply.
- Consideration is GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with these Terms unless specifically described in these Terms, the Online Order or quote as GST inclusive, does not include an amount on account of GST.
- Gross up of consideration
Despite any other provision in these Terms, if a party (GST Supplier) makes a supply under or in connection with these Terms on which GST is imposed (not being a supply the consideration for which is specifically described in these Terms as ‘GST inclusive’):
- the consideration payable or to be provided for that supply under these Terms but for the application of this section (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the GST Supplier, an amount equal to the GST payable by the GST Supplier on that supply; and
- the amount by which the GST exclusive consideration is increased must be paid to the GST Supplier by the Recipient without set-off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
- Reimbursements (net down)
If a payment to a party under these Terms is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense. That party is assumed to be entitled to a full input tax credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise.
To the extent that any Confidential Information is disclosed, communicated or otherwise made available to a party (Receiving Party) in connection with these Terms, each party agrees:
- to maintain the confidentiality of the Confidential Information;
- not to use or reproduce the Confidential Information for any purpose other than to the extent required to exercise any of its rights or perform any of its obligations under these Terms; and
- not to disclose the Confidential Information to any person except:
- to those of its personnel that need to know for the Receiving Party to exercise any of its rights or perform any of its obligations under these Terms (and only to the extent that they need to know);
- to the extent the Receiving Party is required by law to disclose the information
Disclosure by you of Personal Information to us may be subject to applicable Privacy Laws. Accordingly, the Goods and/or Services are provided on the basis that you will only disclose Personal Information about yourself or another individual to us if that disclosure is for a purpose related to the performance of these Terms.
- Mutual warranties
Each party warrants to the other that:
- it is authorised to enter into these Terms; and
- it has full power to carry out its obligations under these Terms.
- Third party goods
You acknowledge and agree that the Goods may be manufactured, in whole or in part, by third parties. To the extent permitted by law, we make no warranties in relation to such third party components. We will, to the extent permitted under our agreements with third parties, pass the benefit of any warranties offered by the manufacturer of such third party components to you.
- No other warranties
Subject to section 18.2 and to the extent permitted by law, the express warranties specified in these Terms are exclusive and we make no other representations or warranties (express or implied), including warranties of merchantability, non-infringement of third party intellectual property rights and fitness for a particular purpose.
Liability and Remedy
- Limitation and exclusion
Subject to section 18.2, but despite any other provision of these Terms, and to the maximum extent permitted by law:
- we exclude all liability and responsibility (including for negligence) under or in any way connected with these Terms or the provision of the Goods or Services for any and all actual or anticipated loss of profits, revenue, goodwill, savings, data, business opportunity, or expectation, and any and all indirect, special, consequential, punitive or exemplary Losses; and
- our total cumulative liability (including for negligence) under or in any way connected with these Terms or the provision of the Goods or Services is otherwise limited to the cost of replacing the Goods or re-supplying the Services, supplying equivalent goods or services or having the goods repaired or the services re-performed, or payment of the cost of replacing the Goods, supplying equivalent goods or having the Goods repaired.
- Statutory terms
To the extent permitted by law, we exclude from these Terms all representations, guarantees, conditions, warranties, rights, remedies, liabilities and other terms that may be conferred or implied by statute, general law or custom (except any guarantee or right conferred under any legislation including the Australian Consumer Law, the exclusion of which would contravene legislation or cause part or all of these Terms to be void). Any liability we have to you will be reduced by the extent (if any) to which you caused or contributed to the Loss.
- Equivalent relief
- You acknowledge that we may supply the Goods as a reseller.
- Where we supply Goods to you as a reseller and to the extent permitted by law, our liability under these Terms will be no greater than the liability the third party supplier has to us.
- If we are unable to make a successful claim upon the third party supplier, whether in full or in part, in respect of any defect or other matter claimed by you under these Terms, then, to the extent permitted by law, we will have no liability for the portion of the claim so denied by the third party supplier.
- Force Majeure
If either of us is wholly or partially unable to perform its obligations under these Terms because of a Force Majeure Event (Affected Party), then:
- promptly after the Force Majeure Event arises, the Affected Party must notify the other party of the extent to which the Affected Party is unable to perform its obligations;
- the Affected Party must take all reasonable steps to mitigate the effect of the Force Majeure Event;
- provided that the Affected party complies with paragraphs (a) and (b), the Affected Party will be excused from performing the obligations it is prevented from performing by the Force Majeure Event, until such time as the Force Majeure Event ceases preventing that performance; and
- if the Affected Party's inability to perform its obligations continues or is likely to continue for more than 30 days, the Affected Party may terminate these Terms.
- Termination for cause
Either party may terminate these Terms for cause if the other party breaches any term of these Terms:
- which is not capable of remedy; or
- which is capable of remedy and the other party fails to remedy the breach within 30 days of receiving notice requiring it to do so.
Consequences of termination
- Confidential Information
If these Terms are terminated or expire:
- you must immediately pay us all amounts outstanding under these Terms as at the date of such termination or expiry;
- each party must continue to keep confidential the other party's Confidential Information in accordance with section 1; and
- each party's right to use and disclose the other party's Confidential Information ceases other than in relation to information that that party is required to retain or disclose in accordance with section 1, or in order to continue performing any surviving obligations or exercising any surviving rights.
- Accrued rights and remedies, no merger
The rights and obligations of the parties under these Terms do not merge on completion of any transaction contemplated by these Terms.
- No prejudice of right of action or remedy
Except as expressly set out in these Terms, any termination or expiry of these Terms, in its entirety or as it relates to one or more discrete parts, will not prejudice any right of action or remedy which may have accrued to either party prior to that expiry or termination.
Any indemnity and any obligation of confidence under these Terms is independent and survives termination of these Terms. Any other term by its nature intended to survive termination of these Terms survives that termination, including sections 13.1, 14, 14.1, 18, 21, 22 and 23.
- Notices and communications
A notice, demand, consent, approval or communication under these Terms (Notice):
- must be:
- in writing, in English and signed by a person duly authorised by the sender; and
- hand delivered, or sent by express post or email to the recipient's address for Notices specified in the Details, as varied by any Notice given by the recipient to the sender; and
- takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
- if hand delivered, on delivery;
- if sent by express post, on the third Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); and
- if sent by email, an hour after the time the sender's information system recorded that the email left the sender's information system unless, within four Business Hours, the sender is informed (by automatic notice or otherwise) that the email has not been received by the recipient,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
- Relationship between the parties
Nothing in these Terms constitutes the parties as partners or joint venturers or agents for each other, or gives rise to any other form of fiduciary relationship between the parties.
Neither party may assign, transfer or novate its rights or obligations under these Terms without the other party's prior written consent (such consent not to be unreasonably withheld).
- Entire agreement
These Terms constitute the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with their subject matter. Any terms and conditions of purchase that may be incorporated in any purchase order or other document given to us by you have no legal effect.
A term or part of a term of these Terms that is illegal or unenforceable may be severed from these Terms and the remaining terms or parts of the terms of these Terms will continue in force.
- No Waiver
We do not waive a right, power or remedy in connection with these Terms if we fail to exercise or delay in exercising that right, power or remedy.
- Governing law and jurisdiction
These Terms are governed by the law of Victoria, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia and the courts having appeal from them.
Defined terms & interpretation
- Defined terms
In these Terms, unless the context requires otherwise:
- Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria.
- Business Hours means 9am to 5pm on a Business Day.
Confidential Information of a party means all information (regardless of the form of disclosure or the medium used to store it) treated by a disclosing party as confidential and of which the recipient first becomes aware either:
- through disclosure by the disclosing party to the recipient; or
- otherwise through the recipient’s involvement with the disclosing party.
- Deposit means the deposit as described in the quote or Online Order (as applicable).
Force Majeure Event means any:
- fire, flood, earthquake, pandemic or act of God;
- riot, civil disorder, rebellion, revolution or any other unlawful act against public order or authority;
- industrial dispute;
- government restraint;
- pandemic or epidemic; or
- other event or cause beyond the reasonable control of the non-performing party.
- Goods means the Purchased Goods and/or the Rented Goods (as the case may be).
- GST means any goods and services tax imposed by legislation enacted by the Commonwealth of Australia including a tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
- Hire Period means the period of hire for the Rented Goods, as described in the quote or Online Order (as applicable).
- Losses means all liabilities, losses, damages, costs and expenses suffered or incurred by any person whether arising in contract or tort (including negligence) or under any statute or under any other cause of action, and Loss has a corresponding meaning.
- Online Order means the online form that specifies the Goods that we will supply to you pursuant to these Terms.
- Personal Information has the meaning given in the Privacy Act 1988 (Cth).
- Price means the amount payable by you under these Terms the Purchased Goods as described in the quote or Online Order (as applicable).
- Privacy Laws means the Privacy Act 1988 (Cth) including the Australian Privacy Principles set out in the Act, and any code approved by the Privacy Commissioner under the Privacy Act 1988 (Cth) which binds us or you.
- Purchased Goods means the goods to be purchased by you from us as described in the quote or Online Order (as applicable).
- Receiving Party is defined in section 15.
- Rent means the rent payable for the Rented Goods as described in the quote or Online Order (as applicable).
- Rented Goods means the goods for hire as described in the quote or Online Order (as applicable).
Restocking Fee means the greater of $50 (plus GST) or:
- for Goods that are consumables, an amount equal to 10% of the Price (plus GST); and
- for Goods that are equipment, an amount equal to 20% of the Price (plus GST).
- Services means the work, activities, functions and responsibilities performed or provided, or to be performed or provided, by us under these Terms.