1. ABOUT THESE TERMS AND CONDITIONS
These Terms and Conditions apply to all goods and/or services supplied to you (“the Customer”) by Fagron Compounding Supplies Australia Pty Ltd ABN 91 160 115 266 (“the Company”) and includes the quotation and any schedules, annexures or addendums to these Terms and Conditions.
2. PAYMENT TERMS
2.1 30 day trading accounts
2.1.1 The Company will grant 30 day payment terms based on three references provided by the Customer on application
2.1.2 The Customer is required to pay all invoices 30 days after date of statement
2.2.1 The Customer is required to make a full prepayment of their first order when opening a 30 day trading account. The Company will not dispatch any goods until payment is received in full.
2.2.2 The Customer is required to make a prepayment of 50% of the quoted price (inclusive of GST) where the order is for equipment that is not kept as stock and needs to be specially ordered with the manufacturer.
2.3 Failure to comply with Terms
Failure by the Customer to comply with the Company’s terms of payment shall immediately entitle the Company by written notice to cease services and suspend any further services until all outstanding amounts have been paid in full by the Customer.The Company reserves the right to make amendments to the terms of payments for a Customer when that Customer fails to comply with the Company’s terms of payment.
2.4 Disputed Invoices
Disputed invoices must be notified to the Company within 7 days of delivery of the invoice by the Company to the Customer, failing which the Company will have no further liability in relation to the matters in dispute.
2.5 Overdue Accounts
Any amount overdue for payment will, at the discretion of the Company, bear interest at the rate of 1.00% per month from the date it becomes overdue until paid. If any amount is overdue for payment the Customer acknowledges that the Company may suspend the supply of goods and/or services. Should it become necessary for the Company to institute legal action for recovery of any amounts due to it by the Customer, the Customer specifically acknowledges and agrees that it shall be liable to the Company on demand for all costs incurred by the Company in recovery of such amounts, including all legal costs on a full indemnity basis.
3.1 The Company reserves the right to accept in whole or in part any order or to refuse such order entirely. Orders will not be accepted otherwise than subject to these terms and conditions. If the terms of the Customer’s order are inconsistent with these terms and conditions, the delivery of the services by the Company to the Customer or to the Customer’s agent shall constitute an offer by the Company to sell those services subject to these terms and conditions, which offer the Customer shall be deemed to accept by accepting the services.
3.2 The Company will notify the Customer when the goods have an expiry less than 6 months. If a specific expiry is required, it is the responsibility of the Customer to notify the Company at time of order.
3.3 The Company will issue an e-mail order confirmation for all phone orders. It is the responsibility of the customer to read this e-mail confirmation and respond if any amendments are to be made. The Company will consider no response as confirmation and will dispatch the goods as listed. If the Customer requires changes, the Company must be notified by 4pm (Sydney local time) the same day that the order confirmation is sent.
4.1 Delivery of the services shall be effected by the Company to the Customer subject to availability and without any liability on behalf of the Company for any delays, and may be by instalment.
4.2 All orders under $200 (excluding GST) will incur a handling and transport fee to be determined at time of order.
5. SERVICE CORRECTIONS
5.1 Any service errors will be corrected by the Company at the request of the Customer. The Customer must notify the Company of any issues with a delivery within 24 hours of receipt of the goods.
5.2 Service errors shall be rectified at the cost of the Company to the extent that such service errors are a result of the Company’s acts or omissions, the acts or omissions of third parties engaged by the Company to provide services for the Customer or were contributed to by the acts or omissions of the Company or third parties engaged by the Company to provide services for the Customer.
5.3 Service errors shall be rectified at the cost of the Customer to the extent that they are caused as a result of any inaccurate, incomplete or varied instructions issued by the Customer to the Company.
5.4 All product returns under clause 5.3 will attract a 25% restock fee payable by the Customer.
6. TITLE AND RISK
Risk in the goods and/or services supplied by the Company shall pass to the Customer on delivery. Title and ownership of the goods and/or services shall pass to the Customer only when the Customer has paid the Company all that is owing to the Company in respect of those goods and/or services.
7. INTELLECTUAL PROPERTY
7.1 Intellectual Property Rights of Third Parties
The Customer warrants that so far as it is aware having made all reasonable enquiries no information, data or documents supplied by the Customer to the Company (“Customer Information”) will infringe the intellectual property rights of any third party.
7.2 Intellectual Property Rights of Customer
As between the Company and the Customer, the Customer exclusively owns all rights, title and interest in and to all Customer Information.
7.3 Intellectual Property Rights of Company
The Customer acknowledges and agrees that (other than in respect of the Customer Information) the Company owns all intellectual property rights which are created, discovered or come into existence in connection with the supply by the Company of goods and/or services to the Customer.
8. CONFIDENTIAL INFORMATION
8.1 Obligations of Receiving Party
Each party acknowledges that it may acquire information from the other party which is confidential or proprietary in nature. The receiving party must keep confidential any such information and not disclose it to any third party unless: (a) the other party gives its consent; (b) the receiving party is already lawfully in possession of the information from another source; (c) the information is generally and publicly available other than as a result of a breach of confidence or a breach of these terms and conditions by the receiving party; or (d) the information is required to be disclosed by law or the regulations of a stock exchange.
8.2 Supply of Confidential Information to Third Party Suppliers
The Customer acknowledges that the Company may use, and may be required to supply the Customer’s confidential information to, third party suppliers in connection with the Company’s supply of goods and/or services to the Customer. The Company must ensure that any third party which receives the Customer’s confidential information is subject to confidentiality obligations to the Company that are no less favourable than the obligations which apply to the Company under this Clause 8 of these Terms and Conditions. Subject to the Company complying with this Clause 8, the Company will not be liable to the Customer for any breach of confidentiality by any such third party supplier.
9.1 Acceptance of Order by Company
Prices appearing in any of the Company’s price lists and quotations shall not bind the Company until the order placed by the Customer has been accepted by the Company at the price stated therein or as may otherwise be agreed between the Company and the Customer, including in any quotation forming a schedule, attachment or annexure to this Agreement.
9.2 Prices Firm for Accepted Orders
All prices are subject to change without notice except that prices will remain firm for orders already placed and accepted by the Company.
In these Terms & Conditions “GST’ means goods and services tax on a supply of goods or services. “GST Act’ means A New Tax System (Goods and Services Tax) Act 1999 (Cth). Words used in this clause which have a defined meaning in the GST Act have the same meaning as in the GST Act unless the context otherwise indicates. The consideration for any supply under or in connection with these terms and conditions does not include GST. To the extent that any supply made under or in connection with these Terms and Conditions is a taxable supply, the recipient of that supply must, at the same time as payment is required to be made for the supply, pay to the supplier an additional amount equal to the GST payable on that supply. The party which makes the supply must provide to the recipient of that supply a GST tax invoice as required by the GST Act.
9.4 Discounts, allowances or rebates
Any discounts, settlement allowances or other rebates must be specifically agreed in writing by the Company to be valid and effective.
10.1 Termination by Company
The Company may terminate this Agreement without penalty by giving 14 days’ prior written notice to the Customer if: (a) any step is taken (without limitation, a resolution passed or proposed in a notice of meeting) for: (i) the winding up, dissolution or administration of the Customer; (ii) the Customer enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them,except for the purposes of a solvent reconstruction or amalgamation; (iii) a receiver, receiver and manager or other controller, administrator or similar officer is appointed with respect to or takes control of the Customer or any of its assets and undertakings; (iv) the Customer breaches this Agreement and has not remedied that breach within 14 days after receipt of a notice of breach from the Company detailing the breach.
10.2 Termination by Customer
The Customer may terminate this Agreement without penalty by giving 14 days’ prior written notice to the Company if the Company breaches this Agreement and has not remedied that breach within 14 days after receipt of a notice of breach from the Customer detailing the breach. The Customer agrees that it will pay the Company all monies due to the company, including invoices rendered for goods and services supplied up to the date being 7 days prior to the date of termination, at or before termination.
The Customer must indemnify the Company, and keep the Company indemnified, from and against all liabilities, losses, costs (including legal costs on a full indemnity basis), charges and expenses, which the Company suffers or incurs by reason of: (a) any claim that the use of the Customer Information infringes the intellectual property rights of a third party; (b) a breach of the Customer’s representations and warranties; or (c) a claim arising from the breach by the Customer of this Agreement.
12.1 No exclusion or limitation of legislation
The Company does not purport to exclude or limit the application of any provision of any legislation where to do so would contravene that legislation or cause any part of this clause to be void.
12.2 Exclusion of implied terms
To the maximum extent permitted by law, the Company excludes from these Terms and Conditions all representations,conditions, warranties and terms implied by legislation, general law, convention or custom and all liability to the Customer whether in tort, contract,equity, under statute or otherwise for indirect, incidental, special, punitive or consequential loss or damage (whether or not foreseeable); and without limiting the foregoing, loss of income, loss of reputation, loss of profits or goodwill, partial or total loss or corruption of data, loss of contract, loss of use, loss of business or any form of business interruption, arising out of or in connection with the Company’s supply to the Customer of goods and/or services or these Terms and Conditions.
12.3 Limitation on Liability
12.3.1 Extent of Liability howsoever arising
To the maximum extent permitted by law, the Company’s liability to the Customer arising out of or in connection with the Company’s supply to the Customer of goods and/or services or these Terms and Conditions is limited to the Company’s price for the goods and/or services in respect of which the liability arises and this limitation shall apply to liability howsoever arising whether in tort, contract, equity, under statute or otherwise.
12.3.2 Extent of Liability for Breach
To the maximum extent permitted by law, the Company limits its liability for breach of any condition or warranty implied by legislation, at its discretion, to any one or more of supplying replacing, or repairing (or paying the costs of supplying, replacing, or repairing) the goods or supplying again (or paying the costs of supplying again) the services in respect of which the breach occurred.
12.3.3 Reliance by Customer on own skill and expertise
The Customer acknowledges that it has has relied entirely on its own skill and expertise in determining: (a) whether or not to engage the Company to provide the goods and/or services; (b) whether the goods and/or services are appropriate for the Customer’s purposes; (c) to follow or not any recommendations concerning any testing (such as, without limitation, stability, physical, chemical, preservative efficacy, packaging); and (d) to follow or not suggestions provided to the Customer as part of any consulting services provided by the Company.
13.1 Comply with laws
The Company and the Customer agree to comply with all applicable state and federal laws in relation to the supply and use of the goods and/or services.
Any indulgence or extension of time by the Company shall in no way be construed as a waiver by the Company to strictly enforce its rights as set out herein. 1
3.3 Company not Liable in certain circumstances
The Company is not liable for any failure or delay in performing its obligations to the Customer where such failure or delay occurs as a result of any fact matter or circumstance beyond the Company’s reasonable control (including, without limitation, fire, flood, earthquake, storm, hurricane or other natural disaster, war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity) and the Customer will have no right to terminate its agreement with the Company in such circumstances. The Company must take all reasonable steps to mitigate the effect of an event described in this Clause 13.3 so that the Company may resume the performance of its obligations under these Terms and Conditions as soon as is reasonably practicable.
13.4 Governing Law
These Terms and Conditions shall be construed in accordance with and be governed by the laws of the State of New South Wales. Each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of New South Wales and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.