TERMS AND CONDITIONS OF SALE
In these Terms:
(a) Buyer means the buyer of the Goods specified in the Purchase Order.
(b) Business Day means a day in which banks are open for business in Melbourne, Victoria and specifically excludes Saturdays, Sundays and Public Holidays.
(c) Corporation has the meaning as set out in section 57A of the Corporations Act 2001 (Cth).
(d) Goods means the product(s) and, if any, services supplied by the Seller which are specified in a Purchase Order.
(e) Purchase Order means an order form provided by the Seller and completed by the Buyer for the acquisition by the Buyer of the Seller’s Goods.
(f) Seller means Advanced Skin Technology Pty Ltd (ACN 007 203 447).
(g) Terms means these terms and conditions of sale as amended by the Seller, at their sole and exclusive discretion, from time to time.
(h) Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act (2010)) and which by law cannot be excluded, restricted or modified.
2.1 The Goods sold by the Seller are done so on these Terms.
2.2 These Terms may only be waived or varied in writing and signed by an authorised representative of the Seller.
2.3 In the event of any inconsistency between these Terms and a Purchase Order including any terms imposed by a Buyer on a Purchase Order, these Terms govern in all regards and the inconsistency is to be read down and deemed to be void and of no force and effect.
3. CONDITION OF SUPPLY OF GOODS
3.1 The Buyer acknowledges and agrees that the Buyer must:
(a) have executed these terms and conditions (including any amendments) before any Goods may be sold by the Seller to the Buyer;
(b) only supply the Goods to its customers within Australia and New Zealand;
(c) not, either directly or indirectly, sell the Goods to any individual agent or retail agent situated outside of Australia or New Zealand;
(d) not exhibit or sell any Goods at any area outside the Buyer’s business premises;
(e) not sell any Goods which are testers or displays; and
(f) not sell any Goods online unless through a unique customer login.
3.2 This agreement may be terminated by either party by providing the other party with 30 days written notice.
Page 2 of 10
4. ORDER PROCESS
4.1 The Seller will provide to the Buyer a price list with the prices for the Goods accessible by the Buyer and the recommended retail prices of the Goods including GST (Price List).
4.2 The Buyer may place an order for the Goods (Purchase Order) by telephone or email on the details below:
Telephone (during business hours): AUS 1800 648 851
The Buyer may also register the Purchase Order on the Seller’s website at www.advancedskin.com.au
4.3 The Buyer must allow five (5) Business Days for the Seller to receive, consider and process a Purchase Order.
4.4 The Buyer agrees that all orders for Goods will incur a handling and/or freight fee as detailed on the Price List which is payable by the Buyer at the time payment is due for the Goods.
5. SUB-DISTRIBUTION OF GOODS
5.1 Goods are sold to the Buyer on the strict and unequivocal understanding by the Buyer that the Goods may only be sold to clients or patients of the Buyer’s clinic(s) or practice(s).
5.2 The Buyer is strictly prohibited from distributing the Goods in any other way whatsoever including but not limited to any form of sub-distribution.
6. DRAWINGS, ETC
6.1 All specifications, drawings and particulars of weights and dimensions submitted to the Buyer for promotional or marketing use are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.
6.2 Except as referred to in 6.1, the descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
6.3 Where specifications, drawings or other particulars are supplied by the Buyer, the Seller’s price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by the Seller then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in the Price List.
7.1 The delivery times made known to the Buyer by the Seller upon placement of a Purchase Order are estimates only and the Seller is not liable for late delivery or non-delivery as a result of factors outside the reasonable control of the Seller.
7.2 The Seller is not liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods.
Page 3 of 10
7.3 For any non-delivery that is the fault of the Seller, the Seller will re-deliver the Goods or arrange delivery of replacement Goods as soon as practicable.
7.4 The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an agreement in writing agreed to by the Seller to the effect that the Buyer will not take delivery by instalments.
7.5 The Buyer agrees that if it alleges it has a claim for loss or damage or shortage of Goods delivered to the Buyer by instalments, the Buyer must submit a claim to the Seller in accordance with clause 9.
8. PASSING OF RISK
8.1 Risk in the Goods passes to the Buyer upon the earlier of:
(a) delivery of the Goods to the Buyer; or
(b) collection of the Goods from the Seller or any bailee or agent of the Seller by the Buyer and/or the Buyer’s agent, carrier or courier.
9. LOSS OR DAMAGE OR SHORTAGE OF GOODS IN TRANSIT
9.1 The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person outside the reasonable control of the Seller.
9.2 The Buyer must notify the Seller in writing of loss or damage or shortage of Goods, within five (5) Business Days of the date of receipt of the Goods. If any Goods received by the Buyer are different to the Goods specified on a Purchase Order, the Buyer must notify the Seller within five (5) Business Days of the date of receipt of the Goods.
9.3 Provided the Buyer has notified the Seller in accordance with 9.2 above, and the Seller is satisfied that the Buyer has submitted a genuine claim, the Seller will replace the Goods which have been damaged or lost or the Goods which are different to the Goods specified on a Purchase Order with the Goods specified on the Purchase Order.
9.4 The Buyer waives any claim for loss or damage or shortage of Goods or for Goods which are different to the Goods specified on a Purchase Order, if the Buyer fails to notify the Seller within the period specified in 9.2 above.
10. SENSITIVITY TO THE GOODS
10.1 If a customer of the Buyer claims to be sensitive to the Goods, the Buyer acknowledges and agrees that:
(a) The Buyer will advise their customer to discontinue using the Goods immediately;
(b) The Buyer will promptly provide to the Seller in writing, a full description of the claim made by their customer, including the customer’s contact detail, including but not limited to the customer’s full name, address and phone number (“the Customer’s Claim”);
Page 4 of 10
(c) Upon the Seller receiving the Customer’s Claim from the Buyer, the Seller will investigate the Customer’s claim and determine what, if any, course of action is appropriate, in the Seller’s sole discretion.
11. WARRANTY AGAINST DEFECTS
11.1 The Seller warrants against defects in its Goods however such warranty is limited to the extent of the manufacturer’s factory warranty as provided in writing with the Goods.
11.2 Clause 11.1 will be operative so long as:
(a) Defects have arisen solely from faulty materials or workmanship in relation to the Goods;
(b) The Goods have not received maltreatment, inattention or interference by the Buyer which has caused or contributed to the alleged defect;
(c) Accessories of any kind used by the Buyer in conjunction with the Goods are manufactured by or approved by the Seller if the Seller is otherwise entitled to assert that such have contributed to or caused the alleged defect; and
(d) The defective Goods are promptly returned at the Buyer’s cost to the Seller with a defects claim, as further explained below.
11.3 Further to clause 11.2, the Seller has no liability to remedy any defects in Goods or replace Goods where the damage arose from:
(a) Improper use by the Buyer;
(b) The use of accessories including consumables, which were not manufactured by or approved in writing in advance by the Seller;
(c) Any contamination or leakages caused or induced by the Buyer;
(d) Any modifications of the Goods which were not authorised in writing by the Seller;
(e) Any misuse of the Goods by the Buyer or anyone for whom the Buyer has a legal responsibility (including a minor);
(f) Any use or operation of the Goods outside of the physical or environmental specifications of the Goods;
(g) Inadequate or incorrect skin consultation between the Buyer and the Buyer’s customer;
(h) Inadequate or improper maintenance of the Goods; or
(i) Fair wear and tear of the Goods.
Page 5 of 10
11.4 The Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any Goods supplied unless such design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing. In any event the Seller’s liability under this paragraph is limited strictly to the replacement of any defective Goods in accordance 12.1 (b) of these conditions.
11.5 Except as provided for in these conditions and under the Competition and Consumer Act (2010), all express and implied warranties, guarantees and conditions, under statute or general law, as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded and disclaimed to the fullest extent permissible at law. The Seller disclaims liability for physical or financial injury, and loss or damage arising from the Goods to the fullest extent permissible at law.
11.6 The Seller advises as follows:
(a) The Goods come with guarantees that cannot be excluded under the Australian Consumer Law.
(b) The Buyer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage, subject to the further provisions of this clause 11.
(c) The Buyer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
12. SELLER’S LIABILITY
12.1 The Seller’s liability for a breach of a condition or warranty implied by or contained in the Competition and Consumer Act (2010) is limited to:
(a) in the case of Goods, any one or more of the following at the Seller’s sole and exclusive discretion:
(i) The replacement of the Goods or the supply of equivalent Goods;
(ii) The repair of the Goods;
(iii) The payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(iv) The payment of the cost of having the Goods repaired; or
(b) in the case of services, at the Seller’s sole and exclusive discretion:
(i) The supplying of the services again; or
(ii) The payment of the cost of having the services supplied again;
12.2 In order for the Buyer to make a claim under the warranty against defects as contained in clause 11, the Buyer must notify the Seller in writing as to the alleged claim (a Defect Claim) and must include with the Defect Claim the Good(s) which are the subject of the alleged Defect Claim.
Page 6 of 10
12.3 The Defect Claim along with the Good(s) must be posted to the Seller (the provider of the warranty against defects) to the following address and at the Buyer’s cost:
Advanced Skin Technology Pty Ltd
Unit 8 Keysborough Close
Fiveways Business Centre
Keysborough VIC 3173
Attn: Customer Service
For further information, the Seller may also be contacted by telephone on (03) 8769 0800 and by email at firstname.lastname@example.org
12.4 In the event the Seller determines a Buyer’s Defect Claim is valid, in addition to any remedy the Seller agrees to provide the Buyer in accordance with the provisions in these conditions and in accordance with the Competition and Consumer Act (2010), the Seller agrees to reimburse the Buyer for the Buyer’s reasonable shipping costs incurred in returning the Good(s) to the Seller with the Buyer’s Defect Claim.
13.1 Unless otherwise stated all prices quoted by the Seller on the Price List are net, exclusive of Goods and Services Tax (GST) and the Buyer agrees to pay to the Seller any GST in addition to the price.
14.1 The purchase price in relation to Goods is payable in accordance with the terms of account agreed between the Buyer and the Seller and in default of any such agreement is payable by the Buyer to the Seller in full immediately upon notice by the Seller that the Goods are ready for delivery.
14.2 Any payment by the Buyer to the Seller for the Goods supplied may be made by cash, credit card (MasterCard or Visa) or direct deposit from the Buyer’s bank account.
14.3 If payment by the Buyer to the Seller is made by direct deposit and/or internet banking facilities:
Any payment should be deposited to the following account (unless the Seller nominates another account in writing):
Account holder: Advanced Skin Technology Pty Ltd
BSB no: 033380
Account no: 454274
A copy of the deposit slip with the Seller’s account number clearly printed must be sent to the Seller by email or by another mode of delivery directed by the Seller in writing. Page 7 of 10
15. RIGHTS IN RELATION TO GOODS
15.1 The Seller reserves the following rights in relation to the Goods until all accounts owed by the Buyer to the Seller are fully paid:
(a) Ownership of the Goods;
(b) To enter the Buyer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
(c) To keep or resell the Goods including any Goods repossessed pursuant to 15.1 (b) above.
15.2 If the Buyer has not paid the Seller for the Goods, the Seller shall be entitled to maintain an action against the Buyer for the purchase price of the Goods and any risk in the Goods will pass to the Buyer upon delivery.
16. BUYER’S PROPERTY
16.1 Any property of the Buyer under the Seller’s possession, custody or control is completely at the Buyer’s risk with regards to loss or damage caused by or to the property.
17. RETURNED GOODS
17.1 The Seller is not under any duty to accept Goods returned by the Buyer and will do so only on terms to be agreed in writing in each individual case.
17.2 If the Seller agrees to accept returned Goods from the Buyer under 17.1, the Buyer must return the Goods to the Seller at the Seller’s place of business and on such terms as shall be agreed between the Buyer and the Seller.
18. GOODS SOLD
18.1 All Goods to be supplied by the Seller to the Buyer will be as described on the Purchase Order agreed by the Seller and the Buyer.
18.2 If the description on the Purchase Order is modified, it must be as agreed between the Seller and the Buyer. This modification will then prevail over all other descriptions including any specification or enquiry of the Buyer.
19.1 The Buyer indemnifies on a continuing basis and on a full indemnity basis the Seller from and against any liability, loss, expense or demand, including legal costs on a solicitor/client basis, for or arising from any false, misleading or deceptive representation or statement made by the Buyer in respect of the Goods to any person. This indemnity survives termination of this agreement by either party for any reason.
Page 8 of 10
20. EXCLUSION OF REPRESENTATIONS AND ARRANGEMENTS
20.1 These terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods or any part of the Goods including, but not limited to, those relating to the performance of the Goods or any part of the Goods or the results that ought to be expected from using the Goods.
21. NO WAIVER
21.1 The failure of any party to enforce the provisions of this agreement or to exercise any rights expressed in this agreement is not to be a waiver of such provisions or rights and does not affect the enforcement of this agreement.
22. FORCE MAJEURE
22.1 If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Seller, the Seller is unable to perform in whole or part any obligation under this agreement, the Seller is relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and is not liable to the Buyer in respect of such inability.
23. BUYER ACKNOWLEDGEMENT
23.1 The Buyer acknowledges that the above provisions of these Terms are reasonable and reflected in the price and the Buyer accepts the risks of the Buyer associated with these Terms and/or shall insure accordingly.
24. PLACE OF CONTRACT
24.1 The contract for sale of the goods is made in the State of Victoria.
24.2 The parties submit all disputes arising between them to the courts of the State of Victoria and any court competent to hear appeals from those courts of first instance.
25.1 If the Buyer is a Corporation, by signing this document and/or submitting any Purchase Order, the directors of the Corporation acknowledge and agree;
(a) To be jointly and severally liable for the due payment of all Goods delivered to the Buyer and for any costs incurred by the Seller to enforce the Buyer’s obligation for the due payment of any Goods; and
(b) To secure the payment of Goods by the Buyer or any costs incurred by the Seller to enforce the Buyer’s obligation for the payment of Goods, the Seller is entitled to claim an interest on any property (real or personal) which may be owned by any director of the Corporation and may lodge a Caveat on any real property owned by any director of the Corporation; or
(c) If the Seller requests a charge over the assets of the Corporation, the Buyer will deliver a duly executed charge over the assets of the Corporation in favour of the Seller.
Page 9 of 10
26. ASSIGNEE OR SUCCESSOR OF THE BUYER
26.1 If the Buyer is a Corporation these terms and conditions will bind any successor or assignee of the Corporation.
26.2 The Buyer is prohibited from assigning these Terms without the prior written consent of the Seller which consent may be withheld by the Seller at its sole discretion.
27. TRADE MARK AND COPYRIGHT
27.1 The Buyer may not make any claims in the name of the Seller on any intellectual property of the Seller including copyright and trade marks.
27.2 The Buyer may only use images of the Goods in the manner directed by the Seller and for the purposes of marketing the Goods to its customers.