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CREDIT TERMS |
The parties agree:
1 purchase orders
(a) OrthoGenix and the Customer agree that OrthoGenix will provide the Custom Products and/or Services to the Customer on the terms and conditions contained in this Agreement.
(b) These terms will apply to all the Customer's dealings with OrthoGenix, including being incorporated in all agreements, quotations or orders under which OrthoGenix is to provide Custom Products or Services to the Customer (each a Purchase Order).
(c) For a Purchase Order to be valid under these terms, the Purchase Order must:
(i) be submitted through OrthoGenix’s online portal, Odoo; and
(ii) include all required details for an order, including the name, volume, agreed price, expected delivery date and delivery address of the Custom Products, as well as any other information reasonably requested by OrthoGenix; and
(iii) include all required details and specifications about the Custom Product (Custom Product Specifications).
(d) Each time the Customer requires OrthoGenix to provide the Custom Products and/or Services, the Customer must submit a Purchase Order to OrthoGenix. OrthoGenix may accept or reject a Purchase Order in its discretion. Any accepted Purchase Orders shall form part of and be governed by the terms of this Agreement.
(e) In the event of any inconsistency between this Agreement and any Purchase Order, the terms contained in this Agreement will prevail to the extent of such inconsistency.
(f) Unless otherwise agreed, all quotes, including timelines set out in a Purchase Order are estimates only and are subject to change:
(i) depending on the number of hours of Services are actually provided;
(ii) due to reasons beyond OrthoGenix's control, including but not limited to:
(A) the availability and timely delivery of raw materials or components from suppliers;
(B) production capacity and scheduling constraints; or
(C) unforeseen circumstances such as manufacturing equipment failure or natural disasters.
(a) The Customer must provide OrthoGenix with all documentation, information and assistance reasonably required for OrthoGenix to complete the Purchase Order and any applicable Services.
(b) The Customer agrees to liaise with OrthoGenix as it reasonably requests for the purpose of enabling OrthoGenix to complete the Purchase Order and any applicable Services.
(c) Due to the nature of Custom Products being bespoke and made to order, Orthogenix recommends, and the Customer warrants, that all details of the Custom Product Specifications and any other details within the order have been reviewed by the Customer and are correct, before submitting a Purchase Order. Once a Purchase Order is submitted and accepted by OrthoGenix, the Purchase Order cannot be cancelled.
(d) The Customer is responsible for confirming that the Purchase Order accurately specifies (if applicable):
(i) the quantity, dimensions, colours and specifications of the Custom Products and/or Services required before submitting any Purchase Order; and
(ii) the agreed Fees (defined and set out in the Purchase Order) and any other applicable rates.
(e) The Customer acknowledges and agrees that:
(i) the quoted price may change depending on actual Custom Products and services provided including any third party suppliers, shipping and delivery charges; and
(ii) by submitting a Purchase Order, the Customer is committing to paying the total amount payable under these terms and conditions in accordance with clause 3 including any variations or additional costs necessary to complete the Purchase Order.
(f) OrthoGenix will not be responsible for any delay in or failure to complete a Purchaser Order arising out of or in connection with the Customer’s failure to comply with this clause 2.
(a) Unless otherwise stated in a Purchase Order:
(i) OrthoGenix will issue a Tax Invoice for the fees for Custom Products and/or Services (as indicated in the Purchase Order) to the Customer upon dispatch of the Custom Products; and
(ii) the Customer must pay OrthoGenix the amount stated on the Tax Invoice for the Custom Products and Services in accordance with the Payment Terms, or must otherwise make payment on any other day nominated by OrthoGenix (irrespective of when the Tax Invoice is issued).
(b) The Customer will also pay to OrthoGenix, on demand, on a full indemnity basis, all amounts that OrthoGenix may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Customer defaulting on any of the terms of this Agreement.
(c) If payment is not made in accordance with this clause 2, OrthoGenix at its entire discretion may:
(i) require the Customer to pay OrthoGenix interest on all outstanding monies from the due date until the date of payment at the rate of 15% per annum accruing daily, subject to change from time to time by written notice to the Customer at the absolute discretion of OrthoGenix. However, before applying this interest, the OrthoGenixwill provide the Customer with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by OrthoGenix. The obligation to pay interest survives termination of this Agreement;
(ii) refuse to supply any further part of the Custom Products and/or perform any further Services to/for the Customer until all outstanding monies, including any accrued interest, is paid in full; or
(iii) terminate this Agreement whereupon the full price for the Custom Products and/or Services then supplied, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.
(d) The Customer may not withhold payment or make any deduction from any amount owing without OrthoGenix’s prior written consent, irrespective of any claim the Customer may have against OrthoGenix for any thing or matter whether related to the provision of the Custom Products and/or Services or not.
3.2 variation in price
(a) OrthoGenix reserves the right to change the price of the Custom Products and/or Services it provides to the Customer from time to time, including without limitation when OrthoGenix’s suppliers vary the costs of the materials that they supply to OrthoGenix.
(b) Without limitation to the above clause, due to the uncertainty in world currency exchange rates, OrthoGenix reserves the right to vary prices for overseas sourced goods that form part of the Custom Products ordered. On the date that OrthoGenix accepts a Purchase Order, OrthoGenix will confirm the price for the relevant Custom Products based on the ANZ Bank Carded Selling Exchange Rate for that day and take a Forward Exchange Cover until delivery of the relevant Custom Products is affected. We may be required to vary the prices of Custom Products and Services even after we have accepted a Purchase Order and prior to delivery. We will endeavour to provide you with reasonable notice in the event that this occurs.
(c) If the OrthoGenix varies any price of Custom Products and/or in accordance with this clause 2, the OrthoGenix will use its best endeavours to provide reasonable notice to the Customer about such variation.
3.3 duties and taxes
(a) All prices quoted by OrthoGenix are the actual amounts payable to OrthoGenix free of all deductions and set off whatsoever and the Customer will be responsible for all tariffs, taxes, import duties and all other charges and payments which may be levied, charged or assessed or imposed in respect of the Custom Products.
(b) All quotes are ex-works, in Australian dollars and excluding GST and any other taxes, duties, customs and excise charges.
(a) OrthoGenix is not obliged to provide any further Custom Products or perform any Services for the Customer once the Credit Limit has been reached.
(b) OrthoGenix may, at its option, provide further Custom Products to or perform Services for the Customer, where to do so will result in the Credit Limit being exceeded and the Customer agrees that OrthoGenix is expressly authorised to provide those Custom Products or Services and this Agreement will continue to apply in full to all monies owing.
(c) OrthoGenix is under no obligation to advise the Customer when the Credit Limit has been reached or exceeded.
5 RIGHT TO REFUSE FURTHER CREDIT OR VARY THE CREDIT LIMIT
OrthoGenix may at any time, for any reason whatsoever:
(a) vary the Credit Limit of the Customer to increase or decrease the Credit Limit; or
(b) refuse further credit to the Customer,
without any liability to the Customer whatsoever.
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Customer may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.
(c) The warranties contained in clause 6(d) are additional to warranties implied by law. Each of the warranties will be read and construed as a separate and independent warranty and will not be limited by reference to each other. All warranties will be valid at all times during the term of the Agreement and will be continuing warranties which will survive the termination or expiration of this Agreement.
(d) The Customer warrants to OrthoGenix that as at the date of this Agreement and for the duration of this Agreement:
(i) the information contained in this Agreement is true and correct and it has disclosed all relevant information to OrthoGenix to assess the credit-worthiness of the Customer;
(ii) it has the legal right and power to enter into this Agreement;
(iii) the execution, delivery and performance of this Agreement by the Customer has been duly and validly authorised by all necessary corporate action on its part;
(iv) this Agreement is a valid and binding Agreement on the Customer, enforceable in accordance with its terms;
(v) the Customer is not bankrupt or insolvent and no receiver, liquidator, administrator or receiver and manager has been appointed over any part of its assets and no such appointment has been threatened;
(vi) and no proceedings have been brought or threatened for the purpose of bankrupting or winding up the Customer;
(vii) no partner, director or shareholder of the Customer is bankrupt, a discharged bankrupt or in any form of receivership, administration or liquidation; and
(viii) it has the capacity to make the payment in accordance with this Agreement.
The Customer acknowledges that the Customer may become acquainted with or have access to Confidential Information, and agrees to maintain the confidence of the Confidential Information and to prevent its unauthorised disclosure to or use by any other person, firm or company.
(a) OrthoGenix is bound by the Australian Privacy Principles in the Privacy Act 1988 (Cth) in dealing with Personal Information provided by the Customer.
(b) The Customer acknowledges and agrees that the Customer may receive Personal Information of another person in the course of business with OrthoGenix and agrees that any such Personal Information must only be used, disclosed or otherwise dealt with in accordance with the Australian Privacy Principles.
(a) The Customer must not transfer or assign its rights under this Agreement to anyone else, without the prior written consent of OrthoGenix, which may be granted or withheld by OrthoGenix in its sole, absolute and unfettered discretion. The Customer must provide any information OrthoGenix requires to consider whether to grant its consent.
(b) Any change in 50% or more of the shareholding of the Customer will constitute a deemed assignment which requires OrthoGenix’s prior written consent in accordance with clause 9(a).
(c) The Customer acknowledges and agrees that OrthoGenix may transfer, assign or otherwise dispose of its interest in this Agreement upon giving written notice to the Customer.
(a) Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that OrthoGenix retains full title to the Custom Products and title will not at any time pass to the Customer until the purchase price for the Custom Products and all other amounts owing in respect of the Custom Products are paid to OrthoGenix notwithstanding:
(i) the delivery or collection of the Custom Products to/by the Customer (as the case may be);
(ii) installation in or attachment of the Custom Products to the Customer’s property; and/or
(iii) the possession and use of the Custom Products by the Customer.
(b) The Customer acknowledges and agrees that:
(i) it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Custom Products without the express written consent of OrthoGenix;
(ii) it will, if requested by OrthoGenix, return the Custom Products to OrthoGenix following non-fulfilment of any obligation of the Customer (including payment of monies) without limiting any other right OrthoGenix may have;
(iii) it will deliver up the Custom Products to OrthoGenix upon demand by OrthoGenix and give OrthoGenix or its agents or authorised representatives the right to enter any premises occupied by the Customer and any premises where it believes any Custom Products may be stored (without liability for trespass or any resulting damage) and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Custom Products and agrees to indemnify OrthoGenix and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Custom Products from the Customer’s possession or control;
(iv) it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Custom Products on trust for and as agent for OrthoGenix immediately when they are receivable or are received; and
(v) OrthoGenix may recover as a debt due and immediately payable by the Customer all amounts owing by the Customer to OrthoGenix in any respect even though title to the Custom Products has not passed to the Customer.
11 PERSONAL PROPERTY SECURITIES
11.1 General
The Customer acknowledges and agrees that notwithstanding any other provision of this Agreement:
(a) the PPSA applies to any supply of Custom Products by OrthoGenix to the Customer;
(b) the Custom Products used by the Customer are only for commercial purposes and are not used by the Customer for personal, domestic or household purposes;
(c) by agreeing to and/or accepting or adopting this Agreement the Customer grants to OrthoGenix:
(i) a purchase money security interest in the Custom Products (on the basis that the Custom Products are sold on retention of title terms); and
(ii) a security interest over all present and after-acquired property of the Customer (“Customer’s Property”),
to secure OrthoGenix’s interest in the Custom Products and all monies owing or payable by the Customer under this Agreement and any other moneys payable by the Customer to OrthoGenix from time to time on any account whatsoever. The Customer agrees that OrthoGenix may apply any payments received from the Customer as OrthoGenix sees fit, and notwithstanding any prior application, OrthoGenix may apply amounts received at OrthoGenix’s discretion;
(d) if a purchase money security interest is not able to be claimed by OrthoGenix in respect of the Custom Products for any reason, OrthoGenix will have a security interest in the Custom Products;
(e) the Customer agrees that OrthoGenix’s security interest in Custom Products and the Customer’s property covered by this Agreement may be registered on the PPS Register and the Customer agrees to do all things necessary and required by OrthoGenix to effect registration of OrthoGenix’s security interest on the PPS Register in order to give OrthoGenix’s security interest the best priority possible and anything else OrthoGenix requests the Customer to do in connection with the PPSA without delay;
(f) the Customer warrants that all information provided by the Customer to OrthoGenix, including but not limited to the Customer’s details, including the entity, name, ACN or ABN and address set out in the Schedule is correct in all respects and must not change its name, address or other details set out in the Schedule without providing OrthoGenix with at least 20 business days prior written notice;
(g) the Customer unconditionally and irrevocably appoints OrthoGenix as its attorney to do any of acts and matters set out in this clause 11 in the event that the Customer fails, delays or declines to execute such documents or do such acts;
(h) the Customer agrees that it will not grant a security interest or other encumbrance in the Custom Products under the PPSA or any other law to a third party unless it has obtained the prior written consent of OrthoGenix, which OrthoGenix may refuse to provide or grant in its absolute and unfettered discretion. OrthoGenix may request and the Customer must provide any information that OrthoGenix requires, acting reasonably, in order to fully consider whether to grant its consent;
(i) OrthoGenix’s security interest in the Custom Products and the Customer’s Property extends to any proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Custom Products and/or the Customer’s Property by the Customer;
(j) it has received value as at the date of first delivery of the Custom Products and/or provision of the Services and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to OrthoGenix under this Agreement;
(k) the Custom Products are located in Australia at the date of the supply of the Custom Products and the Customer warrants that the Custom Products will remain located in Australia for the duration of the Agreement;
(l) neither OrthoGenix or the Customer will disclose any information to any interested person unless required to do so under the PPSA;
(m) the Customer waives its right under the PPSA:
(i) to receive a copy of any verification statement, financing change statement, or any notice that OrthoGenix intends to sell the Custom Products and/or the Customer’s Property or to retain the Custom Products and/or the Customer’s Property on enforcement of the security interest granted to OrthoGenix under this Agreement or any other notice under the PPSA unless the notice is required to be given by the PPSA and cannot be contracted out of;
(ii) to object to a proposal by OrthoGenix to dispose of or purchase or retain the Custom Products and/or the Customer’s Property in satisfaction of any obligation owed by the Customer to OrthoGenix;
(iii) to receive a statement of account following the sale of the Custom Products and/or the Customer’s Property; or
(iv) to redeem the Custom Products and/or the Customer’s Property;
(n) it will not give (or allow any person to give) to OrthoGenix a written demand requiring OrthoGenix to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the PPS Register a financing change statement under the PPSA; and
(o) a default under any other security agreement under which it has granted a security interest to any other party in respect of the Custom Products is deemed to be a breach of this Agreement.
11.2 Requests for Information
The parties agree that OrthoGenix is not required to respond to a request made under Section 275 of the PPSA and that neither party will disclose information of the kind set out in Section 275(1) of the PPSA.
11.3 Further Supplies/ Services
The parties acknowledge and agree that any supply of Custom Products or performance of Services of any kind by OrthoGenix to the Customer which is not specifically set out in the Schedule but for which OrthoGenix has or later issues a Tax Invoice or any other documentation to the Customer is deemed to form part of the Agreement and is subject to the terms of the Agreement.
11.4 Enforcement
(a) The enforcement provisions contained in this Agreement are in addition to any rights available to OrthoGenix under the PPSA and apply to the maximum extent permitted by law.
(b) Without limitation to clause 11.4(a) and any other provision of this Agreement section 125, 129(2), 142 and 143 of the PPSA are contracted out of.
11.5 Power of Attorney
The Customer irrevocably nominates constitutes and appoints OrthoGenix and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Customer on behalf of and in the name of the Customer to do all things necessary and sign all such documents as may be necessary to deal with the Custom Products in accordance with the enforcement provisions of this Agreement, the PPSA or otherwise, if the Customer is in default of this Agreement.
11.6 Interpretation
A term used in this clause 11 is taken to have the meaning defined under the PPSA.
(a) The Customer must pay all delivery costs associated with the delivery of the Custom Products to the Customer at the same time as the other fees are payable under this Agreement or at other times requested by OrthoGenix. Any estimates for delivery provided by OrthoGenix are an estimate only, and are subject to change without notice. A change in the delivery costs does not entitle the Customer to dispute payment of such costs. Any special delivery costs incurred (as determined by OrthoGenix) will be charged at cost.
(b) OrthoGenix may in its discretion make part deliveries of Custom Products as and when it considers this is required, and in that case the Customer must pay all delivery costs of each individual delivery made in accordance with this Agreement.
(c) At OrthoGenix’s sole, absolute and unfettered discretion, delivery of the Custom Products shall take place when
(i) the Custom Products are dispatched to the Customer’s address; or
(ii) the Customer (or its employees or agents) takes possession of the Custom Products at OrthoGenix’s address; or
(iii) the Customer (or its employees or agents) takes possession of the Custom Products at the Customer’s address (in the event that the Custom Products are delivered to the Customer).
(d) Any times provided by OrthoGenix to the Customer in respect of the delivery of the Custom Products are estimates only and are non-binding on OrthoGenix. Whilst OrthoGenix attempts to deliver all Custom Products on time, sometimes delays are inevitable and OrthoGenix will not be responsible for any Losses suffered by the Customer in the event of delay.
(e) Purchaser Orders may not be cancelled by the Customer and to the extent permitted by law, the Customer is not permitted to return any Custom Products supplied by OrthoGenix without OrthoGenix’s prior written consent which may be withheld by OrthoGenix in its sole and absolute discretion.
12.2 third party couriers
(a) Delivery of the Custom Products to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this Agreement.
(b) Third party courier terms apply to the delivery of the Custom Products to the Customer. Any problems with delivery should be directed to OrthoGenix to troubleshoot the issue. OrthoGenix will endeavour to assist the Customer to ensure its delivery arrives. All delivery times are estimates only and are subject to postal delays and reasons beyond OrthoGenix’s control. OrthoGenix does not warrant or make any representation that the Customer’s order will be delivered within the times indicated. OrthoGenix will not be liable for any Loss or damage suffered as a result of or in connection with late deliveries.
(c) If the Customer believes its Custom Products have been damaged in transit, the Customer must contact OrthoGenix as soon as reasonably possible with the relevant details (including photographs or videos). The Customer agrees that OrthoGenix will not be liable for any damage to the Custom Products that occurs while the Custom Products are in transit.
(a) The provision of Services by OrthoGenix to the Customer will take place at a time agreed between OrthoGenix and the Customer.
(b) The provision of Services to a third party nominated by the Customer shall be deemed to be provision of the Services to the Customer for the purpose of this Agreement.
(c) Any times provided by OrthoGenix to the Customer in respect of the provision of the Services are estimates only and are non-binding on OrthoGenix. Whilst OrthoGenix attempts to provide all Services at the agreed times, sometimes delays are inevitable and OrthoGenix will not be responsible for any Losses suffered by the Customer in the event of delay.
(a) Even if OrthoGenix retains ownership of the Custom Products, all risk for the Custom Products passes to the Customer on delivery of the Custom Products to Customer or the nominee of the Customer.
(b) If any of the Custom Products are damaged or destroyed following delivery but prior to ownership passing to the Customer, OrthoGenix is entitled to:
(i) receive payment for the Custom Products; and
(ii) receive all insurance proceeds payable for the Custom Products. The production of these Credit Terms by OrthoGenix is sufficient evidence of OrthoGenix’s rights to receive the insurance proceeds without the need for any person dealing with OrthoGenix to make further enquiries.
15.1 USE OF custom products
(a) The Customer represents and warrants that it will, and ensure that any personnel or third party will, only use the Custom Products:
(i) if the Customer (or any personnel or third party) is appropriately qualified to do so; and
(ii) in accordance with the manufacturer’s instructions.
(b) The Customer releases OrthoGenix from all liability (including liability for negligence) for any loss suffered as a result of the Customer or any other third party using the Custom Products when not properly qualified to do so or not in accordance with the manufacturer’s instructions.
15.2 minor variations and tolerances
(a) OrthoGenix will endeavour to ensure that the Custom Products provided will be substantially the same as the Custom Product Specifications or as otherwise agreed with you in writing prior to you placing the Purchase Order. Please note that due to screen display, colour and brightness, and image quality, Custom Products may not exactly match the image on our Website or OrthoGenix's catalogue.
(b) Please also note that OrthoGenix Custom Products are custom made and there may be minor variations in the design, measurement and specifications as to what was detailed in the Purchase Order.
(c) OrthoGenix will not be liable for variations due to normal tolerances in Custom Products. The Customer is encouraged to contact OrthoGenix if the Customer believe the Custom Product is defective in accordance with the terms of this agreement.
16.1 RETURN OF GOODS
(b) Notwithstanding clause 16.1(a), OrthoGenix will only accept returns of Custom Products if:
(i) the Custom Products are defective and the Customer complies with the provisions of this clause; or
(ii) OrthoGenix agrees in writing to accept return of the Custom Products.
(c) If the Customer fails to comply with the provisions of this clause 16 in respect of defective Custom Products, the Customer may, in its discretion, issue only a partial refund or no refund in respect of such defective Custom Products, provided that nothing in this clause 16 is intended to limit the operation of any manufacturers' warranties which the Customer may be entitled to or any rights of the Customer which cannot be excluded under applicable law.
(d) In the event that OrthoGenix permits the Customer to return any Custom Products supplied by OrthoGenix under clause 16.1(a), only Custom Products in original packing will be accepted. A re-stocking charge of up to 10% plus GST of the total amount stated on the Tax Invoice/s which relate to the Custom Products will be deducted on Custom Products returned within 14 days, beyond which a higher charge (at OrthoGenix’s discretion) will be levied. Without limitation to the above, any Custom Products specially imported, procured or manufactured by OrthoGenix for the Customer can only be returned on such terms and conditions as OrthoGenix may agree.
(a) Where the Customer considers that any Custom Products provided by OrthoGenix are defective, the Customer must, within a reasonable timeframe after receiving the Custom Products, but no later than 7 days after receiving the Custom Products, inform OrthoGenix of that fact either by phone or by email and provide a full description of the defects (including images and/or any videos demonstrating the defect).
(b) Prior to deeming a Custom Product defective, OrthoGenix reserves the right to inspect the defects and request further information and reports on how the Custom Products have been stored, used, tested and otherwise handled by the Customer.
(c) The Customer is responsible for costs associated with the return of any defective Custom Products.
(d) If OrthoGenix determines in its reasonable opinion that the Custom Products are not defective, or that the defects are a result of the fair wear and tear, misuse, failure to use in accordance with the manufacturer’s instructions or failure to take reasonable care, it will reject any request for a return or refund.
(e) If OrthoGenix agrees that the Custom Products are defective, OrthoGenix may issue a refund (including any shipping costs) if it cannot be remedied under clause 16.3, or replacement for the defective Custom Products, depending on the nature of the defect.
(f) All refunds will be credited back to the Customer original method of payment unless the Customer requests otherwise and OrthoGenix approves this request.
(g) Nothing in this clause 16 is intended to limit or otherwise affect the operation of any manufacturers’ warranties which you may be entitled to or any of your rights which cannot be excluded under applicable law.
If, upon inspection, or after receiving notice under clause 16.2, in the reasonable opinion of OrthoGenix, the problem with the Custom Products is minor and the Customer asks OrthoGenix to remedy the problem, OrthoGenix, at its discretion, will:
(a) repair the Custom Products; or
(b) replace the Custom Products and/or the faulty part/s of the Custom Products.
(a) Except as provided under this Agreement and to the extent permitted by law:
(i) the Customer:
(A) releases OrthoGenix and its officers, employees, agents and contractors from any and all Claims by the Customer or any of its officers, employees, agents or invitees;
(B) indemnifies OrthoGenix and its officers, employees, agents and contractors against any and all Claims made by third parties against OrthoGenix;
(C) indemnifies OrthoGenix and its officers, employees, agents and contractors against any Loss suffered by or incurred by the Customer,
arising from any act, default, omission, negligence or breach of contract or otherwise, by the Customer or any of its directors, employees, agents, contractors or invitees,
except to the extent (if any that):
(D) OrthoGenix recovers an amount from its insurers in respect of the Claim; or
(E) the Loss the subject of the Claim is caused by the fraudulent act or omission of OrthoGenix.
(ii) OrthoGenix is not liable for any Claim or any Loss arising from any event or cause, beyond the control of OrthoGenix, and the Customer indemnifies OrthoGenix from any loss that it suffers in this regard, including but not limited to:
(A) any act or omission of the Customer, including any delay caused by the Customer;
(B) damage after delivery;
(C) any problem caused by misuse, abuse, wear and tear or abnormal movement;
(D) goods or appliances made by others;
(E) any defect in, or problem caused by, work materials or goods supplied by the Customer;
(F) any problem caused by or contributed to by any modification to the Custom Products by the Customer; or
(G) any defect caused or contributed to by a failure of the Customer to follow any procedure recommended by OrthoGenix or by the manufacturer of any materials used by OrthoGenix in the Custom Products.
(a) (Indemnity) Each party agrees to indemnify the other party and its employees, contractors and agents (“those indemnified”) from and against any loss or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by the other party’s employees’, clients’, contractors’ or agents’:
(i) breach of any third party intellectual property rights; or
(ii) negligent, wilful, fraudulent or criminal act or omission.
(b) Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of OrthoGenix in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
(c) If OrthoGenix is liable to the Customer in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, OrthoGenix’s total liability to the Customer for that failure is limited to, at the option of OrthoGenix:
(i) in the case of services, the resupply of the services or the payment of the cost of resupply; and
(ii) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
(d) Without limitation to the other terms of this Agreement, to the maximum extent permitted by law, the total liability of each party in respect of loss or damage sustained by the other party in connection with this agreement is limited to the amount paid (or on credit if not paid) by the Customer to OrthoGenix in the 3 months preceding the date of the event giving rise to the relevant liability.
18 TERMINATION
18.1 TERMINATION FOR CONVENIENCE
(b) This agreement will end 10 Business Days after the day the notice is sent (the End Date).
(c) On the End Date, OrthoGenix will provide an invoice to the Customer for:
(i) any fees for Custom Products or Services already provided or performed up to the End Date;
(ii) any pre-approved third party costs OrthoGenix has incurred on the Customer’s behalf up to the End Date; and
(iii) if terminated by the Customer, OrthoGenix’s pre-estimated genuine losses as a result of the Customer ending this agreement,
(together, the Outstanding Amounts)
(d) The Customer will pay the Outstanding Amounts to OrthoGenix within a further 10 Business Days after the End Date, unless otherwise agreed in a written payment plan between the parties.
(e) Once the Outstanding Amounts have been paid, OrthoGenix will hand over any completed deliverables.
(f) If OrthoGenix terminates this agreement pursuant to this clause, OrthoGenixwill make reasonable efforts to handover the remaining scope of Services to the Customer, so the Customer can source an alternative provider.
(a) If a party (the Notifying Party) considers that the other party is in breach of this agreement including:
(i) if the Customer fails to make payment in accordance with clause 2;
(ii) if the Customer becomes insolvent;
(iii) if the Customer commits an act of bankruptcy or is made bankrupt;
(iv) if the Customer makes a composition or other arrangement with creditors;
(v) if the Customer assigns assets for the benefit of creditors generally;
(vi) being a company, if the Customer enters into a deed of company arrangement or has a controller, administrator, receiver or receiver and manager appointed;
(vii) being a company, if the Customer goes into liquidation;
(viii) being a partnership, if the Customer has a receiver or a receiver and manager appointed; or
(ix) in the event of Force Majeure (such as if there are issues with OrthoGenix’s supplier and OrthoGenix is unable to supply the agreed Custom Products); or
(x) breaching any warranty or obligation contained in this Agreement or a Purchase Order;
and fails to rectify the breach within 7 days of being given a notice to do (the Breach), the Notifying Party may provide a notice to the other party.
(b) The notice must include the nature and details of the Breach, with reference to the relevant clause/s of this agreement. The Notifying Party may, if it wishes to do so, make suggestions for resolving the Breach.
(c) The other party will have 10 Business Days (or longer, in the Notifying Party’s discretion) to rectify the Breach (the Rectification Period).
(d) After the Rectification Period, the Notifying Party will:
(i) if the Breach has been successfully rectified, notify the other party that the agreement will continue; or
(ii) if the Breach has not been successfully rectified, notify the other party that this agreement is terminated (Termination for Breach Notice).
(e) Following a Termination for Breach Notice, the parties will stop all work under this agreement unless otherwise agreed.
(f) The Customer may terminate an individual Purchase Order if OrthoGenix breaches the terms of that Purchase Order and fails to rectify the breach within 14 days of being given a notice to do so.
(g) The termination of a Purchase Order does not affect any other Purchase Order/s which shall continue. Upon termination of a Purchase Order the Customer shall be liable to pay to OrthoGenix for all Custom Products and/or Services supplied by OrthoGenix under that Purchase Order up until the date of termination, and such amounts shall be a debt immediately due and owing.
(h) The indemnities, warranties and liability caps in clause 17 will apply to any disputes and resulting claims. Any pre-estimated losses in clause 18.1(c)(iii) will not limit or otherwise effect OrthoGenix’s rights under this agreement, at law or otherwise in equity; OrthoGenix’s losses resulting from the Customer’s breach are likely to far exceed its losses resulting from termination for the Customer’s convenience.
18.3 other consequences for termination
If this agreement ends, the parties will:
(a) agree that, unless the Agreement is terminated under 18.1(a), all existing Purchase Orders shall automatically terminate. The Customer will be liable to pay to OrthoGenix for all Custom Products and/or Services supplied by OrthoGenix under such Purchase Orders up until the date of termination, and such amounts shall be a debt immediately due and owing;
(b) return all property and Confidential Information to the other party;
(c) comply with all obligations that are by their nature intended to survive the end of this agreement; and
(d) the Customer must return any Custom Products to OrthoGenix that it has not paid for.
(a) In consideration of OrthoGenix, at the request of the Guarantor, entering into this Agreement with the Customer the Guarantor covenants and agrees with OrthoGenix that:
(i) Notwithstanding that as between the Guarantor and the Customer the Guarantor may be a surety only, as between the Guarantor and OrthoGenix the Guarantor is a principal debtor.
(ii) The Guarantor will be liable jointly and severally with the Customer (and with each other Guarantor if there is more than one Guarantor) for the due and punctual payment of all moneys to be paid by the Customer under this Agreement and for the due performance and observance by the Customer of the credit terms and such liability will not be reduced or affected by the death insolvency liquidation or dissolution of the Customer or the Guarantor or any of them.
(iii) The Guarantor indemnifies OrthoGenix from and against all Loss, damage costs (including all costs payable by OrthoGenix to a solicitor on a solicitor and own client basis) and expenses which OrthoGenix may suffer or incur in consequence of any breach or non-observance of the credit terms by the Customer and the Guarantor agrees that the Guarantor will remain liable to OrthoGenix under this indemnity notwithstanding as a consequence of any breach or non-observance OrthoGenix has exercised any of its rights under this Agreement.
(iv) On any default or failure by the Customer to observe and perform any of the credit terms the Guarantor will immediately (without the need for any demand to be made) pay all moneys and make good to OrthoGenix all damages costs (including all costs payable by OrthoGenix to a solicitor on a solicitor and own client basis) and expenses sustained or incurred by OrthoGenix by reason of or in consequence of any breach or non-observance of the credit terms by the Customer. However, before applying this interest, OrthoGenix will provide the Guarantor with a written notice giving an additional 7 days to complete the payment. If payment is still not received by the end of this 7-day grace period, interest will accrue from the expiration of that period until the date the full payment is received by OrthoGenix. The obligation to pay interest survives termination of this Agreement.
(v) and the Guarantor will also pay to OrthoGenix interest at the rate of 15% per annum accrued daily from the due date for payment until the date of payment (except on interest under clause 3.1(c) of this Agreement).
(vi) The liability of the Guarantor under this guarantee and indemnity will not be affected by the granting of time or any other indulgence to the Customer or by any compromise abandonment waiver variation or by any other thing which under the law relating to sureties would or might but for this provision release the Guarantor in whole or in part from its obligations under this guarantee and indemnity.
(vii) To the fullest extent permitted by law the Guarantor hereby waives such of its rights as surety or indemnifier (legal equitable statutory or otherwise) as may at any time be inconsistent with any of the provisions of this guarantee and indemnity.
(viii) The Guarantor hereby:
(A) charges all of its legal and beneficial interest in all of its property, including but not limited to its real property and personal property (as that term is defined in the PPSA), including property acquired after the date of this Agreement, in favour of OrthoGenix, whether or not demand has been made on the Customer by OrthoGenix;
(B) agrees to execute all documents and do all things necessary, upon request by OrthoGenix, to register OrthoGenix’s interest in the Guarantor’s property as granted by this clause 19, whether by a mortgage over the Guarantor’s real property or by registration of a security interest on the PPS Register or otherwise; and
(C) irrevocably appoints OrthoGenix and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Guarantor on behalf of and in the name of the Guarantor to do all things necessary to register OrthoGenix’s security over the Guarantor’s property granted by this clause 19.
(ix) If the charges created by sub-clause 19(a) are or become void or unenforceable, sub‑clause 19(a) may be severed from this Agreement and the Agreement shall continue in full force and effect and the severance shall not effect on its validity and the Guarantor will not be released from its obligations in whole or in part and OrthoGenix’s rights and remedies against the Guarantor shall not be effected by such severance.
(x) The enforceability of this guarantee and indemnity against the Guarantor is not conditional, contingent or dependent in any way upon the validity or enforceability of this guarantee and indemnity against any other person or execution of this contract or this guarantee and indemnity by any other person.
(xi) The Guarantor does not execute this guarantee and indemnity as a result of or by reason of any promise representation statement information or inducement of any nature or kind given or offered to the Guarantor by OrthoGenix or on OrthoGenix’s behalf whether in answer to any enquiry by or on behalf of the Guarantor or not and OrthoGenix was not prior to the execution of this guarantee and indemnity by the Guarantor, and is not subsequently, under any duty to disclose to the Guarantor or to do or execute any act matter or thing relating to the affairs of the Customer or its transactions with OrthoGenix.
(xii) In the event of the invalidity of any part or provision of this guarantee and indemnity that invalidity will not affect the validity or the enforceability of any other part or provision of this guarantee and indemnity. If a provision of this guarantee and indemnity is void or unenforceable it must be severed from the guarantee and indemnity and the provisions that are not void or unenforceable are unaffected by the severance.
(xiii) All notices or demands to be given to, made or served upon the Guarantor will be deemed to be duly given to, made or served on the Guarantor if:
(A) it is signed by any officer, authorised employee, agent or solicitor of OrthoGenix; and
(B) it is delivered:
(I) to any Guarantor personally; or
(II) left at the last known place of business or abode of any Guarantor; or
(III) if an address is noted in the Schedule, left at or sent to the Guarantor through the post in an ordinary prepaid envelope addressed to that Guarantor at the address. A notice or demand which is posted will be deemed to have been served on the Guarantor on the second business day following the date of posting.
(xiv) If there is more than one Guarantor, any notice or demand given to, made or served upon a Guarantor is deemed to be served on each of them.
(xv) The Guarantor agrees that its liability to OrthoGenix is unlimited notwithstanding that OrthoGenix supplies the Customer with credit in excess of the Credit Limit.
(xvi) The Guarantor acknowledges and agrees that the Guarantor may receive Personal Information of another person in the course of business with OrthoGenix and agrees that any such Personal Information must only be used, disclosed or otherwise dealt with in accordance with the Australian Privacy Principles.
20 DEFINITIONS
In this Agreement, unless inconsistent with the context or subject matter, the following words and phrases have the following meanings.
|
Term |
Meaning |
|
ACL |
means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth). |
|
Customer |
means the Customer identified in the Schedule |
|
Customer’s Address for Service |
means the email address of the Customer set out in the Schedule. |
|
Agreement |
means the Schedule and these Credit Terms. |
|
Claim |
means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity) in respect of any Loss or alleged Loss. |
|
Confidential Information |
means information relating directly or indirectly to OrthoGenix, its assets and the operation and affairs of OrthoGenix, including without limitation, this Agreement and the Custom Products and Services. |
|
Custom Products |
means any customised products supplied by OrthoGenix to the Customer from time to time, including but not limited to, Ankle-Foot Orthosis (AFO’s), shoes, socks and insoles. |
|
Credit Limit |
means the credit limit per month set out in the Schedule. |
|
Credit Provider |
has the meaning given in section 6G of the Privacy Act 1988 (Cth). |
|
Force Majeure |
means an act, omission or circumstance over which OrthoGenix could not reasonably have exercised control. |
|
GST |
has the meaning given to it in the GST Act |
|
GST Act |
means the A New Tax System (Goods and Services Tax) Act 1999 (Cth); |
|
Loss |
includes (without limitation) the following, whether direct or indirect, special or consequential in nature: (a) loss, damage, costs (including legal costs on a solicitor and own client basis), action or expense of any kind; and (b) to the extent not covered in the preceding subclause, loss of profits, opportunity, use, revenue, goodwill, bargain, production, sales turnover, income, reputation (or damage to it), employment, corruption or destruction of data, customers, loss relating to or in connection with any other contract, business or anticipated savings, reduction in value, any delay or financing costs or increase in operating costs, or any other financial or economic loss; and (c) anything referred to in the preceding subclauses relating to or arising out of or in connection with: (i) personal injury (including death or disease) to the Customer; (ii) personal injury (including death or disease) to any third party; or (iii) loss of or damage to the property of OrthoGenix, the Customer or any third party; and a breach or non-compliance by OrthoGenix or the Customer with any law. |
|
OrthoGenix |
means OrthoGenix Pty Ltd ABN 55 665 821 287. |
|
OrthoGenix’s Address for Service |
means: (a) Address: [insert] Baulkham Hills, NSW 2153, Australia (b) Email: customercare@orthogenix.com.au |
|
Payment Terms |
means the payment terms of a Purchase Order set out in the Schedule. |
|
Personal Information |
Has the meaning given to it in the Privacy Act 1988 (Cth). |
|
PPSA |
means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time. |
|
PPS Register |
means the Personal Property Securities Register established under the PPSA. |
|
Purchase Order |
means a purchase order for Custom Products and/or Services placed by the Customer with OrthoGenix and which is accepted by OrthoGenix in accordance with this Agreement. |
|
Schedule |
means the schedule to this document headed “Application for Credit”. |
|
Services |
means any services supplied by OrthoGenix to the Customer, from time to time, including but not limited to providing advice and contributing to the development of the Custom Products. |
|
Tax Invoice |
has the same meaning as in the GST Act. |
|
Website |
21 interpretation
In this Agreement unless inconsistent with the context or subject matter:
(a) A reference to a person includes any other legal entity;
(b) A reference to a legal entity includes a person;
(c) Words importing the singular number include the plural number;
(d) Words importing the plural number include the singular number;
(e) A reference to a party includes the party’s heirs, executors, successors and permitted assigns;
(f) Clause headings are for reference purposes only and must not be used in interpretation;
(g) Where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
(h) A reference to a statute includes all regulations and subordinate legislation and amendments;
(i) References to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
(j) A reference to a monetary amount is a reference to an Australian currency amount;
(k) An obligation of two or more parties binds them jointly and each of them severally;
(l) An obligation incurred in favour of two or more parties is enforceable by them severally;
(m) References to time are to local time in New South Wales;
(n) Where time is to be reckoned from a day or event, the day or event must be excluded, and reference to a month means a calendar month;
(o) A reference to a business day means any day on which trading banks are open for business in New South Wales; and
(p) If any time period specified in this Agreement expires on a day which is not a business day, the period shall expire at the end of the next business day.
22 GENERAL
(a) OrthoGenix may vary the terms of the Agreement at any time and will notify the Customer of the variation by providing 30 days written notice to the Customer at the Customer’s Address for Service.
(b) Any notice required to be given in accordance with this Agreement is deemed to be sufficiently given if provided to the Customer’s Address for Service or OrthoGenix’s Address for Service (as the case may be) and, if it is:
(i) delivered by hand, upon which the time of giving notice will be the time of delivery;
(ii) sent by pre-paid post, upon which the time of giving notice will be two (2) business days after the date of postage; or
(iii) sent by email, upon which the time of giving notice will be the time shown on the email generated by the sending machine identifying proof of transmission to the designated email address.
(c) The following will constitute proof of receipt:
(i) if sent by registered post, proof of posting by registered post; or
(ii) if sent by email, proof of sending.
(d) This Agreement is governed by the laws of New South Wales and the Commonwealth of Australia which are in force in New South Wales.
(e) The parties submit to the jurisdiction of the Courts of New South Wales, Australia relevant Federal Courts and Courts competent to hear appeals from them.
(f) This Agreement contains the entire understanding and agreement between the parties as to the subject matter of this Agreement.
(g) All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect.
(h) No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.
(i) No waiver or amendment of a provision of this Agreement is binding unless made in writing and signed by both parties.
(j) The parties must execute and deliver all documents and must do all things as are necessary for the complete performance of their respective obligations under this Agreement.
(k) If a provision of this Agreement is void or unenforceable it must be severed from this Agreement and the provisions that are not void or unenforceable are unaffected by the severance.
(l) The rights and remedies of a party to this Agreement are in addition to the rights or remedies conferred on the party at law or in equity.
(m) This Agreement may be executed in any number of counterparts and when executed communication of the fact of execution to the other parties may be made by sending evidence of execution by electronic communications including email.
(n) Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
(o) The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.
(p) Time is in all cases and in every respect of the essence of this Agreement.