IQ MEDICAL PTY LTD ABN 66 101 655 029
TERMS OF CONSIGNMENT/SUPPLY (“Terms”)
- In these terms:
1.1 “Customer” means the consignee of Goods to be consigned by the Supplier; or the purchaser of Goods and/or services to be supplied by the Supplier;
1.2 “Goods” means the products to be consigned or supplied by the Supplier to the Customer and includes any part or parts thereof;
1.3 “PPSA” means the Personal Property Securities Act 2009;
1.4 “Product Identifier” means the removable label on the packaging for consigned Goods;
1.5 “Security Interest” has the same meaning as in the PPSA;
1.6 “Supplier” means IQ Medical Pty Ltd (ABN 66 101 655 029) of 2/86 Mary Street, Unley, SA 5061. Phone: +61 8 8357 8022, Facsimile: +618 8357 8011. E‑mail: firstname.lastname@example.org; and
1.7 “Total Amount Payable” means the total amount payable for the Goods, including applicable GST, cost of special packaging (if any) and delivery to the Customer.
- These Terms will apply to the supply of Goods despite any terms of trade proposed by the Customer, unless these Terms are waived in writing by the Supplier.
- Goods supplied to the Customer on consignment will be held by the Customer as the Supplier’s fiduciary agent and bailee for the sale for and on behalf of the Supplier on the terms set out in clauses 3 to 16 inclusive.
- Goods will be held by the Customer until the earlier of:
4.1 the taking or demanding of possession of the Goods by the Supplier;
4.2 the Application of Goods; or
4.3 the termination of these Terms as they relate to the consignment of Goods.
- Subject to clause 6, the Customer will remain as a bailee of the Goods and will have no interest in or option over the Goods until the Goods are used by the Customer in a manner permitted by the Supplier (“Application of Goods”). Subject to clause 16, upon the Application of Goods, title in the Goods will pass to the Customer.
- Without prejudice to any prior rights of the Supplier, the Supplier may terminate the consignment of Goods by 7 days’ written notice, provided that the Supplier may not terminate these Terms where a sale of the Goods has been negotiated by the Customer with a purchaser.
- The Customer will keep the Goods in its own possession at its usual place of business and will keep the Goods in as good condition as the Goods were in at the time at which the Customer first came into possession of the Goods. The Customer will indemnify the Supplier against loss of or damage to the Goods, however caused, if such loss or damage is suffered following the Customer’s possession of the Goods as bailee.
- The Customer will not part with possession of the Goods in a manner not permitted by the Supplier and will not attempt or purport to pledge, encumber, charge or create any Security Interest or lien over the Goods.
- The Customer bears the risk in the Goods and must insure and keep insured at its own cost the Goods to their full insurable value.
- To the maximum extent permitted by law, the Supplier does not make or give, or authorise the Customer to make or give, any representation or warranty as to the condition, fitness for purpose, acceptable quality, character, description or condition of or in relation to the Goods.
- As soon as practicable after the Application of Goods, the Customer must send a facsimile of the Product Identifier (“Purchase Notification”) to the Supplier. Upon receipt of the Purchase Notification, the Supplier will invoice the Customer for the Total Amount Payable for the Goods the subject of the Purchase Notification and the provisions of clauses 19 to 21 will apply. The Supplier will also provide the Customer with replacement Goods to be held by the Customer on consignment.
- The Supplier may inspect the Goods at any time upon giving reasonable notice to the Customer of the Supplier’s intention to inspect. Upon termination of these Terms, as they relate to the consignment of Goods, or upon any breach of these Terms by the Customer, the Supplier will have the unlimited right to enter the place of business of the Customer, or any other premises in which the Supplier reasonably supposes the Goods to be at, and may, whether by its servants, agents or otherwise, remove and/or retake possession of the Goods at any time.
- The Customer will indemnify the Supplier against any cost, claim, demand, action or proceeding brought or made by the Customer or any third party in consequence of the exercise by the Supplier of the right of entry given to the Supplier by this clause.
- The Customer will keep all Goods clearly marked in such a way as to enable ready and easy identification of the Goods by the Supplier or its servants, agents or employees as the property of the Supplier. The Customer will not remove or deface any identification mark or marks on the Goods or remove the Product Identifier until the Customer sends the Purchase Notification to the Supplier.
- To the maximum extent permitted by law, the Customer will indemnify the Supplier in respect of all costs, claims, demands, actions or proceedings that may arise out of acceptance or reliance by any person of or on any warranty or representation made by the Customer or any of its servants or agents in respect of the Goods.
Personal Property Securities Act 2009 (Cth)
- Where the Supplier has supplied the Goods to the Customer but where title in the Goods has not yet passed to the Customer, the Customer acknowledges and agrees that:
16.1 these Terms constitute a Security Agreement for the purposes of the PPSA;
16.2 the Customer will grant the Supplier a purchase money security interest (“PMSI”) under the PPSA to the Supplier in respect of such Goods and their proceeds to secure all amounts owed to the Supplier by the Customer;
16.3 the Supplier may register the PMSI on the Personal Property Securities Register (“PPSR”);
16.4 the Customer must do all things necessary and provide the Supplier on request all information the Supplier requires to register a financing statement or financing change statement on the PPSR;
16.5 the Customer must not change its name in any form or other details on the PPSR without first notifying the Supplier;
16.6 the Customer will, if required by the Supplier, pay to the Supplier the cost of registering and maintaining the registration of the Customer’s PMSI on the PPSR, within 14 days of the request;
16.7 the Supplier need not give any notice under the PPSA (including a verification statement in respect of any financing statement or financing change statement) in respect of the PMSI created by these Terms unless the notice is required by the PPSA and cannot be excluded;
16.8 neither party may disclose information of the kind referred to in section 275(1) of the PPSA (except where the parties may do so and where required due to the operation of section 275(7) of the PPSA) and the Customer must not authorise the disclosure of such information;
16.9 the Customer appoints the Supplier as its attorney to sign all documents which the Supplier considers necessary to enforce and protect its rights under these Terms.
16.10 the Customer agrees that, to the maximum extent permitted by law, it waives any rights it may have pursuant to, and the parties contract out of, sections 95, 118, 123, 125, 129, 130, 132(1), 132(4), 135, 142 and 143 of the PPSA; and
16.11 unless otherwise defined in these Terms, the terms and expressions used in this clause 16 have the meanings given to them, or by virtue of, the PPSA.
- Unless previously withdrawn, any quote issued by the Supplier is open for acceptance within the period stated, or when no period is stated within 30 days after the date of a quote. The Customer’s cancellation or variation after acceptance of order will not be effective unless agreed to in writing by the Supplier.
- Unless otherwise stated, all prices quoted are exclusive of GST, special packaging, cost of delivery and installation.
- Unless credit has been provided, the Customer must pay the Total Amount Payable without deduction within 14 days of the date of issue of the invoice for the Total Amount Payable. The Supplier may require a deposit on placement of order.
- The Supplier may charge and the Customer will pay interest on all amounts not paid by the due date at the rate of 12% per annum. Interest will be calculated daily and may be capitalised monthly until full payment is made.
- Allowance to the Customer of time to pay will not constitute a waiver by the Supplier of any of these Terms, nor be construed as the Supplier granting a credit facility to the Customer. No credit facility will be granted to the Customer unless confirmed in writing by the Supplier.
- The delivery times made known to the Customer are estimates only and the Supplier will not be liable for any claim or cost resulting from late or non-delivery of Goods.
- The Customer waives any claim for shortage of Goods delivered or damaged prior to or during the course of delivery, if the Supplier is not notified in writing within 7 days from the date of receipt of Goods by the Customer.
Title and risk
- In relation to all Goods which are not consigned to the Customer:
24.1 title in the Goods will not pass to the Customer until the Total Amount Payable is paid in full;
24.2 risk in the Goods will pass to the Customer immediately upon delivery or collection; and
24.3 until the Supplier receives full payment of the Total Amount Payable, the provisions of clause 16apply and the Supplier has the right (without prejudice to any other rights and remedies it may have) to recover, remove and/or resell the Goods free from any claims by the Customer. The Customer will indemnify the Supplier against any costs, claims, damages or losses suffered by the Supplier or a third party as a result of the Customer’s inability to pay the Total Amount Payable.
- In relation to all Goods, if the Customer has not paid the Total Amount Payable but sells or otherwise disposes of the Goods or any part of them, the monies received in respect of the disposal will be held on trust by the Customer for the Supplier and will be payable immediately to the Supplier.
- The Supplier’s warranty obligation will be limited to passing on to the Customer the warranty provisions the Supplier receives from the manufacturer of the Goods. This obligation applies only so long as:
26.1 defects have arisen solely from faulty materials or workmanship or design;
26.2 the Goods were used in a way consistent with the purpose for which they were sold;
26.3 the Goods were not in any way modified, damaged or inadequately or incorrectly stored, serviced or used;
26.4 accessories of any kind used by the Customer were approved by the Supplier; and
26.5 the defective Goods or parts were promptly returned free of cost to the Supplier.
- The Supplier must be notified in writing of any warranty claim. That notification must provide as much information as possible regarding the fault in the Goods and circumstances in which the fault occurred.
- Except as stated above and to the maximum extent permitted by law, the Supplier gives no warranty in relation to the Goods. The Supplier will have no liability whatsoever to any party resulting from any negligence or misuse of the Goods; or for any consequential loss, injury, damages or expenses suffered directly or indirectly by the Customer or by any of the Customer’s workers, agents, contractors, patients, clients or customers in connection with the Goods.
- Goods may only be returned within 30 days of delivery of the Goods to the Customer with the Supplier’s consent (which may be withheld in the sole discretion of the Supplier).
- If the Supplier consents to the Goods being returned, the Supplier will provide the Customer with a returned goods authority number (“RGA”).
- Any Goods that are returned to the Supplier must be accompanied by an RGA.
- All returned Goods accompanied by an RGA must be shipped at the Customer’s cost and, if not identified with the Supplier’s RGA, a 20% restocking fee will be charged. No credit will be given for incorrect order freight costs.
- All contracts between the Customer and the Supplier will be governed by and interpreted pursuant to South Australian laws. Any dispute resolution procedure will take place in South Australia.
- Any notice to be given by one party to the other must be signed by the party giving the notice or by one of its duly authorised officers. The notice may be faxed to the intended recipient’s facsimile number or e-mailed to the intended recipient’s e-mail address. The notice will be deemed to have been received by the intended recipient upon receipt by the sender of a successful facsimile transmission answerback or, in the case of e-mail, on the day of transmission provided that the sender is able to give evidence of transmission and the intended recipient does not give evidence of non-receipt.
35. The parties are independent contractors. The parties are not principal and agent, partners, trustee and beneficiary or employer and employee.