Terms & Conditions
ALL TRANSACTIONS BETWEEN Utech Medical Device Pty. Ltd.
(HEREINAFTER CALLED ‘Utech’)
AND ANY PARTY PURCHASING GOODS OR RECEIVING SERVICES FROM Utech
(HEREINAFTER CALLED ‘THE BUYER’)
STANDARD CONDITIONS OF QUOTATION AND SALE
Standard Conditions to apply to all sales.
Sale of any of the goods and the carrying out of any repairs, described or referred to herein, is expressly conditional upon the terms and conditions set forth below. All quotations given by Utech are given upon such terms and conditions. Any order placed with Utech shall constitute assent to the said terms and conditions, and representation that Buyer is solvent. Any additional or different terms or conditions set forth in any communication from buyer to Utech are hereby objected to by Utech and shall not be effective or binding on Utech unless assented to in writing by and authorised representative of Utech.
(a) The prices specified in all quotations given by Utech or in respect of orders accepted by Utech, are subject to variation at any time prior to delivery installations or the carrying out of repairs, as a result of any changes in any of the following:
(i) the cost to Utech of the goods quoted or ordered, or any part of them:
(ii) rated of foreign exchange:
(iii) freight charges:
(v) customs and primage duties:
(vi) all other outgoings occurring subsequent to the date upon which the quotation is given or the order made.
(vii) the rates charged for repair services.
(b) Notwithstanding (a) above, prices for goods ex stock are firm except that Utech reserves to itself the right to vary any prices quoted, when part only of the quotation is accepted by Buyer.
(c) Utech reserves the right to make a delivery or installation unless a price indicated in the quotation is expressed to be into store.
Unless expressly stated otherwise in the quotation, the terms of payment in respect of the sale of any goods, or the carrying out of any repairs, by Utech are:
(i) nett cash fourteen (14) days after the date upon which the goods, or the carrying out of the repairs, by Utech; or
(ii) where delivery or installation or goods is hindered or delayed by Buyer, nett cash (14) days after the date upon which the goods are available for delivery or installation by Utech.
Cancellation and Credit in Respect of the Sale of any Goods.
(a) Orders accepted by Utech and quotations accepted by Buyer, may not, except with the written consent of an authorised representative of Utech, be cancelled by Buyer whether or not the goods have been delivered or installed by Utech. In respect of any such cancellation to which Utech consents, Buyer shall reimburse Utech for all costs incurred in respect of goods manufactured to special specifications, goods ordered expressly from overseas, goods ordered from suppliers other than Utech and in addition Utech shall be entitled to be reimbursed by Buyer for any restocking charges incurred in connection with the subject goods.
(b) Subject to the deduction amounts by way of reimbursement by Buyer to Utech (as set out in (a) above) Utech shall credit Buyer’s account with the balance of the price paid in respect of cancelled orders.
Any shortages of errors of delivery must be notified to Utech in writing within three (3) days of receipt of consignment, failing which no claims for shortage of error will be entertained by Utech.
Delivery & Installation
(a) Delivery or Installation dates quoted are estimates only and are based on prompt receipt by Utech of all information necessary to permit Utech to proceed without delay or interruption, and where applicable, prompt receipt by Utech of an official order.
(b) In relation to any goods installed by Utech, Buyer shall provide, at no cost to Utech, all utility services required, and when necessary, special handling equipment, etc. installation will normally take place as soon as practicable after delivery.
(c) Utech shall deliver or install all goods to be supplied to Buyer at the points named in the quotation or order, unless subparagraph applies. Buyer shall compensate Utech for any charges or cost incurred by Utech through the failure of Buyer to accept delivery or installation as stated. Upon such delivery or installation, title to the goods and all risk of loss or damage shall pass to Buyer (unless otherwise agreed in the shipping documents or otherwise in writing), and any insurance, beyond point of delivery or time of installation, desired by Buyer shall be arranged by Buyer.
(d) If the whole or any part of any shipment of goods to be supplied, cannot be delivered or installed when ready, due to any cause referred to in clause 7 (“delays“), Utech may place the goods in storage. In such an event:
(i) all expenses incurred by Utech such as preparation for and placement into storage, handling, storage, inspection, preservation and insurance as certified in writing by an officer of Utech, shall be payable by Buyer upon submission of Utech’s invoices:
(ii) Utech’s delivery obligation shall be fulfilled and title and all risk of loss or damage shall thereupon pass to Buyer, if it has not already passed, notwithstanding anything the contrary contained in the shipping documents, and
(iii) when conditions so permit (and subject to payment of all amounts due hereunder by Buyer), Utech shall arrange for shipment on behalf of Buyers at Buyer’s expense.
(e) Partial deliveries are permitted and deliveries offered ex stock are subject to the goods being unsold at the date of receipt of Buyer’s order.
The date on which Utech’s obligations hereunder are to be fulfilled shall be extended for a period equal to the time lost by it by reason of any delay arising directly or indirectly from:
(a) acts of god, unforeseeable circumstances, acts (including delay or failure to act) of any governmental authority, war (declared or undeclared), riot, revolution, fires, strikes, sabotage or epidemics;
(b) inability due to causes which, through no fault of Utech are beyond its control including inability promptly to obtain necessary and proper labour, materials, components, facilities, transportation or instructions from Buyer, and
(c) any other cause which through no fault of Utech is beyond its control. The foregoing extensions shall apply even though such cause may occur after Utech’s performance of its obligations has been delayed for other causes. If delay resulting from any of the foregoing extends for more than ninety (90) days and the parties have not agreed upon a revised date for delivery, then ether party may, upon fourteen (14) days written notice, terminate the contract in respect of goods not delivered, whereupon buyer shall pay Utech its termination charges including its costs and expenses up to and consequent upon termination as certified by an officer of Utech in writing.
(a) Unless otherwise stated on the face of the quotation, Customs and Primage Duties, at rates ruling at the time of quotation, where applicable, included in the prices quoted.
(b) Where duties have been paid on goods imported into Australia and those duties later become refundable from the Government, credit will be given to Buyer for the amount of such Duties after deduction by Utech of the cost of recovery of those duties.
Default Utech is not obliged to deliver or install any goods if:
(a) Buyer is in default in any of its obligations
(b) Buyer (or if Buyer is a partnership, a partner thereof) commits an act of bankruptcy and/or becomes insolvent, bankrupt or calls a meeting of his creditors:
(c) Buyer, being a company, commits and act of bankruptcy or cause a meeting of its creditors or goes into receivership, official management or liquidation (except for the purposes of voluntary reorganisation). If any payments which have become due & payable by Buyer are not paid within ninety (90) days following delivery of goods and subsequent invoicing of Buyer, Utech may, upon not less than seven (7) days written notice by certified mail to Buyer at Buyer’s last known address, sell the goods at public or private sale and apply the nett proceeds to Utech’s charges.
Warranties, Exclusion and Limitation of Liability.
(a) Subject to these standard conditions of quotation and sale, Utech hereby expressly warrants as follows:-
1. That those goods to be supplied hereunder which are manufactured by Utech will be free from defects in workmanship or material (excluding component parts not made by Utech) and will be of a kind and quality designated or specified in the quotation order, as the case may be; PROVIDED in every such case:-
(i) such defects appear within one (1) year from the date of delivery or installation of the said goods by Utech.
(ii) buyer gives to Utech written notice of the defect and satisfactory proof of such defect within twenty-one (21) days of it coming to buyer’s attention.
(iii) the liability of Utech under this express warranty shall in no case exceed the cost of correcting defects in material or workmanship, appearing in the goods supplied hereunder, and
(iv) if after inspection by an authorised officer Utech, it is considered that the goods have been subjected to tampering, careless handling, improper use or faulty application, this express shall be void.
2. That in respect of goods not manufactured by Utech, Utech will provide full co-operation to Buyer in the implementation of any guarantee provided by the manufacturer of such goods.
3. THAT it has the right to sell the goods.
4. THAT buyer will enjoy quiet possession thereof.
5. TO the extent permitted by law, all representations, warranties, guarantees, implied terms and conditions in relation to the supply of the goods are hereby excluded.
6. THE law implies terms, conditions, warranties or guarantees ("prescribed terms") into contracts for the supply of goods or services and prohibits the exclusion, restriction or modification of certain terms, conditions, warranties or guarantees. Some prescribed terms permit a supplier to limit its liability for a breach of the prescribed terms. To the extent that Utech is not prohibited by law from doing so:
(1) the liability of Utech in respect of a breach of a prescribed term relating to the goods or any part of the goods is limited at the option of Utech to the replacement or repair of the goods or part thereof or payment of the cost of repairing or replacing the goods or any part of the goods;
(2) the liability of Utech in respect of a breach of a prescribed term relating to the services or any part of the services is limited at the option of Utech to the replacement or repair of the services or part thereof or payment of the cost of repairing or replacing the services or any part of the services;
(3) in these conditions the Buyer does not have under any circumstances any cause of action against or right to claim or recover from Utech for, or in respect of, any loss or damage of any kind whatsoever, caused directly or indirectly by:
(a) any defect in material or workmanship of, or any other defect whatsoever in, or unsuitability for, any purpose of the products or any part of the products; or
(b) by default or negligence on the part of Utech or of any employee, contractor or agent of Utech or of any person for whom Utech has legal responsibility relating to the supply of, or otherwise concerning goods or any part of the goods.
7. TO the extent permitted by law, Utech is not liable to the Buyer in contract or in tort arising out of, or in connection with, or relating to:
(a) the performance of the goods or any breach of these conditions; or
(b) any fact, matter or thing relating to the goods or services; or
(c) any error (whether negligent or in breach of contract or not) in information supplied to the Buyer or a user before or after the date of the Buyer's or user's use of the goods or services.
8. THESE terms and conditions supersede and exclude all prior and other discussions, representations (contract or otherwise) and arrangements relating to Utech of the goods or services or any part of the goods or services including, but without limiting the generality of the foregoing, those relating to the performance of the goods or services or any part of the goods or services or the results that ought to be expected from using the goods or services.
9. WHERE the Buyer is a consumer as the term is defined in the Australian Consumer Law (“ACL”):
(a) To the extent that the goods supplied are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then Utech’s liability for any failure to comply with a consumer guarantee (as the term is defined in the ACL) is limited to, at the discretion of Utech, to replacement, resupply or repair of the goods by Utech or the reasonable cost of having the goods replaced, resupplied or repaired.
(b) To the extent that the supply is a supply of a service, Utech’s liability for failure to comply with a consumer guarantee is limited to, at the discretion of Utech, to supplying the service again or the reasonable cost of having a third party supply the service again.
(c) The goods come with guarantees that cannot be excluded under the ACL. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are 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.
If the product is found not to have a problem, you may be required to pay the transport or inspection costs. An estimate of these costs should be provided to you before the product is collected, and the costs must not be inflated in an attempt to deter you from pursuing your claims.
Retention of Title
(a) In this clause:
(i) "PPSA" means the Personal Property Securities Act 2009
(ii) "PPSR" means the Personal Property Securities Register
(iii) "Security Interest" has the meaning prescribed to it pursuant to the PPSA
(iv) "Purchase money security interest" has the meaning prescribed to it pursuant to the PPSA
(v) "Security Agreement" has the meaning prescribed to it pursuant to the PPSA
(vi) "Commingled Goods" has the meaning prescribed to it pursuant to the PPSA.
(b) Title in the goods purchased by the Buyer shall not pass to the Buyer until payment in full is received. The Buyer shall, where practical, store the goods in a safe place separate from other goods. Where the goods supplied are used in a manufacturing process or become commingled goods the Buyer shall:
(i) where practical, store any item manufactured using the good or commingled goods separate from other goods until the Buyer has paid for the goods; or
(ii) retain the proceeds of sale of the manufactured items or commingled goods on trust for Utech and use the proceeds of sale to pay Utech for the goods or pay any other money owing to Utech.
(c) The Buyer acknowledges this retention of title clause creates a Security Interest in the goods, any manufactured items, any commingled goods and any proceeds of sale of the goods, manufactured items and commingled goods. Such interest shall be registered by Utech on the PPSR at its discretion. The Buyer shall not object to such registration. Utech shall be entitled to claim the cost of registering the Security Interest and discharging the Security Interest from the Buyer which cost shall include reasonable legal fees and any fees payable pursuant to the PPSA or its regulations.
- The Buyer cannot make any claim that any goods supplied or installed by Utech as part of the services provided are not the same as any sample or where the goods are part of a batch, are not uniform in appearance, once those goods have been affixed to any surface whatsoever. The Buyer agrees to inspect the goods prior to them being affixed to any surface by Utech or any third party.