Terms and Condition of Supply
Definitions
“Collateral” means that defined in Clause 9.1
“Contract” means the contract for the Supply of Products by Multigate to the Customer pursuant to an Order which incorporates these Terms and any other term as agreed in Writing by Multigate.
“Customer” means the party placing the Order with or purchasing Products from Multigate.
“Delivery” means delivery of the Products in accordance with Clause 8.
“Multigate” means Multigate Medical Products Pty Limited, ACN 003 283 529 of 27 Llewellyn Ave, Villawood, New South Wales 2163, Australia.
“Order” means an offer by a Customer to purchase Products from the Company pursuant to the Terms.
“Products” means all goods and services supplied by Multigate to the Customer.
“Supply” means that defined in the Therapeutic Goods Act 1989.
“Terms” means these Terms and Conditions of Supply as varied and applicable from time to time.
“Writing” includes letters, fax and email.
Nothing in these Terms shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law and which by law cannot be excluded, restricted or modified.
1. Application
1.1. These Terms may be varied from time to time by Multigate. The current Terms at the time of placing an Order or part of an Order shall apply to such Orders.
1.2. The updated version of the Terms will be published on the Multigate website following any amendment to the Terms and will apply to any subsequent Supply of Products.
2. Order and Acceptance
2.1. Each Order must be placed pursuant to these Terms.
2.2. Multigate reserves the right to accept or reject in whole or in part any Orders. Acceptance may be verbal, by conduct or in Writing at Multigate’s discretion.
2.3. Orders may not be varied or cancelled by the Customer without Multigate’s Written consent.
2.4. For the avoidance of doubt, none of the terms and conditions contained in any document or other instrument supplied by or on behalf of the Customer (including, but not limited to, any purchase order from the Customer) shall apply to or form part of the Contract, except and to the extent otherwise agreed in Writing by Multigate.
3. Price & Freight Handling Fee
3.1. The prices of the Products are those ruling at the date of issue of the invoice unless agreed by Multigate in Writing that the prices are fixed for a period of time.
3.2. Unless otherwise agreed, the price of the Products may be subject to change. Unless otherwise stated, all prices are exclusive of GST.
3.3. Unless otherwise agreed in Writing, Orders with a value less than AUD$250 (excluding GST) will incur a freight handling fee of AUD$30 + GST effective 1st November 2019.
4. Credit Policy and Payment
4.1. Multigate may accept an Order and allow credit for part or all of its value. Where credit approval is given, payment must be made within thirty (30) days of the date of invoice, or as otherwise arranged between Multigate and the Customer in Writing.
4.2. The Customer shall not be entitled to set off against or deduct from the price of Products supplied any sums owed or claimed to be owed to the Customer by Multigate.
4.3. In the event that the Customer is in breach of the credit period referred to in clause 4.1, Multigate may, at its option, either:
4.3.1. terminate any Order submitted by the Customer in respect of Products which have, at the time of the breach, not yet been Delivered to the Customer; or
4.3.2. alter or remove the Customer’s credit period, including requiring the Customer to pay the price of the Products to Multigate prior to or upon Delivery of the Products.
5. Default
5.1. In the event the Customer fails to make payment in accordance with these Terms, the Customer shall be in default.
5.2. Multigate may charge interest on all amounts not paid by the Customer in accordance with these Terms at a rate of 1% per month from the due date and accruing monthly therefrom until the date of payment.
5.3. If the Customer is in default, it must reimburse Multigate for all expenses, costs (including reasonable legal costs) and disbursements incurred by Multigate in pursuing the debt.
6. Retention of Title
6.1. Ownership of the Products supplied by Multigate to the Customer remains vested in Multigate and shall not pass to the Customer until such time as those Products have been paid for in full.
6.2. Until ownership has passed in accordance with clause 6.1:
6.2.1. The Customer acknowledges that it acts as a bailee of the Products; and
6.2.2. The Customer shall stand in a fiduciary relationship with Multigate and shall owe fiduciary obligations to Multigate in respect of the Products.
7. Risk
7.1. Risk in all Products supplied by Multigate to the Customer passes to the Customer from the time of Delivery.
8. Delivery
8.1. Delivery of the Products shall be deemed to have taken place when the Products are delivered at the Customer’s nominated address.
8.2. The Customer’s nominated address shall be the address specified in the Order or as otherwise instructed and accepted by Multigate.
8.3. Multigate will use its best efforts to adhere to any Delivery times made known to the Customer and will inform the Customer as soon as reasonably possible of any delays. Multigate is not liable for any loss, damage, expense or delay occasioned to the Customer or its customers arising from failure by Multigate or Multigate’s nominated carrier to Deliver on time.
8.4. Failure by Multigate or its nominated carrier to Deliver on time or at all shall not amount to a breach of this Contract.
8.5. Multigate may at its option Deliver the Products to the Customer in any number of instalments. If Multigate Delivers any of the Products by instalments, these Terms are severable as to each instalment.
9. Personal Property Securities Act 2009 (Cth) (“PPSA”)
9.1. The Customer grants to Multigate a Security Interest (as defined in the Personal Property Securities Act 2009 (Cth) (“PPSA”) in any Products supplied to the Customer (including Products that become processed, commingled or an accession with other goods) and any proceeds of sale of such Products (“Collateral”) as security for all or part of the payment of any amount relating to the Products Supplied under these Terms and/or any related Order. For the avoidance of doubt, this Security Interest is also a Purchase Money Security Interest in the Collateral.
9.2. The Customer irrevocably gives authority to Multigate to register any financing statement with the respect to the Security Interest on the Personal Property Securities Register (“PPSR”). The Customer must supply Multigate with any information and take any steps Multigate reasonably requires for the purpose of effecting and maintaining such registration, including notifying Multigate of any changes in its name and other details (including but not limited to, changes in its address, phone, email address or facsimile number).
9.3. The Customer will not allow a security interest to be created or registered over the Collateral in priority to the Security Interest held by Multigate without Multigate’s prior Written consent, which will not be unreasonably withheld.
9.4. Until all amounts owing to Multigate by the Customer have been repaid in full, the Customer will ensure that, as far as is reasonably practicable, the Collateral is identifiable and distinguishable from any other goods or products that may be in the Customer’s possession and as to each particular invoice of Products comprising the Collateral.
9.5. Until ownership has passed in accordance with clause 6.1, on the happening of any of the following events (“Default Event”):
9.5.1. A period of credit agreed to in Writing by Multigate, pursuant to which the Customer is to have time for the payment of the price of the Products, has expired; or
9.5.2. The Customer, being a natural person, commits an act of bankruptcy, enter into any scheme of arrangement or composition with any of its creditors, or is the subject of any insolvency administration whatsoever; or
9.5.3. The Customer, being a body corporate:
(a) has a receiver and/or receiver manager appointed to any of the undertaking, property or assets of the Customer; or
(b) has an encumbrancer or a person appointed by an encumbrancer take possession or assume control of the property of the Customer or any parts thereof or threatens to do so; or
(c) has an application made to a Court that the Customer be wound up or alternatively steps are taken to wind up the Customer on a voluntary basis; or
(d) enters into any scheme of arrangement or is the subject of any insolvency administration whatsoever; or
(e) fails to comply with or observe any terms of these Terms,
Multigate shall have the right to enter the Customer’s premises (or the premises where the Products are located) without liability to Customer in tort, contract or otherwise to retake possession of the Products and keep or resell any of the Products so repossessed
9.6. If a Default Event occurs in respect of the Customer or the Customer is otherwise in breach of these Terms, Multigate may as it sees fit and without notice to the Customer:
9.6.1. seize, retain or redeem the Collateral; or
9.6.2. seek any and all remedies provided under Chapter 4 of the PPSA or any other remedies provided at law or in equity, including those set out in these Terms.
9.7. The Customer agrees that for the purpose of section 115 of the PPSA, sections 95, 118, 121(4), 125, 130, 132(d) and 135 of the PPSA will not apply to the extent that they impose obligations on the Secured Party in connection with this Security Interest.
9.8. The Customer irrevocably waives its right under section 157 of the PPSA to receive notice of registration events to which section 157(3)(a) applies.
9.9. The parties agree that neither Multigate nor the Customer shall disclose information of the kind that can be requested under section 275(1) of the PPSA (subject to any exceptions that may apply under section 275(7) of the PPSA) or otherwise any information in respect of these Terms that are protected against disclosure by a duty of confidence.
9.10. The Customer acknowledges due notice of this Security Interest with acceptance of these Terms.
10. Goods Return and Claims Policy
10.1. This clause 10 is subject to clause 11 and any other statutory or legal right whether under these Terms or otherwise.
10.2. All claims must be made to Multigate’s Customer Service Department within the standard notification period of 30 days from Delivery, except as noted below:
10.2.1. If Products have been incorrectly supplied or damaged in transit – Multigate will, at its option:
(a) issue a credit to the Customer upon receipt of the incorrectly supplied or damaged Products from the Customer; or
(b) send replacement Products to the Customer.
10.2.2. The processing of claims for Products lost in transit or short delivered will be subject to prior verification against Delivery/receipt documentation maintained by Multigate’s carriers. Where the Products are proven to have been undelivered, Multigate will issue a credit to Customer or re-deliver the Products.
10.2.3. If the Customer has ordered Products in error – Multigate will accept return of the Products subject to the Customer satisfying the following conditions within thirty (30) days of invoice date:
(a) The Products are returned to Multigate’s business address detailed above in their original packaging, unopened and have a remaining shelf life of 6 months or more; and
(b) The Customer pays for the return of the Products; and
(c) The Customer pays Multigate a re-stocking fee. The applicable charge, which is a reasonable pre-estimation of the loss incurred by Multigate to process and re-stock the Products the subject of the return, may be requested from Multigate’s Customer Service department.
10.3. Where Multigate accepts the return of Products, the Products must be returned in the condition in which it was shipped to the Customer. The Products must be sealed in the original cartons to protect against transit damage.
10.4. Claims regarding allegedly defective Products – Multigate’s liability for defects to Products manufactured or distributed by it is limited, to the extent permitted by law, to Multigate making good any defects by, at its option:
10.4.1. repairing the defects; or
10.4.2. replacing the affected Products,
within a period not exceeding twelve (12) calendar months after the Products have been Delivered or within the recommended shelf life of the Products, whichever is the shorter period, so long as:
10.4.3. the defects have arisen solely from faulty materials or workmanship of Multigate; and
10.4.4. the Products have not received maltreatment, inattention or interference.
10.5. Pricing Claims – Claims for credit based on incorrect pricing of the Products or other Multigate charges must be made to Multigate within 30 days of Delivery.
10.6 The Customer will notify Multigate within 24 hours of becoming aware of an adverse event alleged to have occurred as a result of using a Multigate Product.
11. Limited Liability
11.1. Except as provided in these Terms, and to the extent permitted by law, all warranties, guarantees, conditions, terms and obligations expressed or implied by law or otherwise, as to merchantability, description, quality, suitability, fitness of the Products for any purpose, design, assembly, installation, materials, workmanship or otherwise are expressly excluded. In circumstances where the Customer otherwise acquires Products from Multigate as a ‘consumer’ for the purposes of the Australian Consumer Law, Multigate acknowledges and agrees that certain statutory guarantees and rights shall apply to the Customer but subject to these where permitted by the Australian Consumer Law.
11.2. To the extent permitted by law, Multigate is not liable for any loss, damage, liability, cost or expense, including (but not limited to) indirect and consequential loss, loss of profit, loss of market, or the consequences of delay arising out of the design, Supply or use of the Products, defect in materials or workmanship, negligence on the part of Multigate, its employees, agents, and representatives or for any other reason whatsoever.
11.3. To the extent permitted by law, Multigate limits its liability in respect of any cost, damage, liability, expense or loss (including those caused or contributed to by Multigate’s negligence or breach of this Contract), at its option to:
11.3.1. the replacement of the Products or the supply of equivalent Products;
11.3.2. the repair of the Products;
11.3.3. the payment of the cost of replacing the Products or of acquiring equivalent Products; or
11.3.4. the payment of the cost of having the Products repaired.
11.4. The Customer acknowledges that Multigate Delivers the Products in full cartons. If the Products are removed from Multigate’s cartons and sold or otherwise distributed in packaging that is inferior to the original Multigate packaging, the integrity of the Products may be affected. In such case, the Customer acknowledges that any warranty or guarantee given by Multigate for the Products is, to the full extent permissible by law, void, and the Customer is liable for any injury, loss, damage, cost or expense arising from or as a result of the use of the Products.
12. Indemnity
12.1. The Customer hereby releases and indemnifies Multigate and agrees to forever keep Multigate indemnified from any and all costs (including reasonable legal costs), claims, damage, liability, expense or loss, including claims of death, personal injury, damage to property, and consequential loss (including loss of profits) (“Liability”) which may be made against Multigate in connection with:
12.1.1. the Supply of the Products; and/or
12.1.2. Customer’s breach of this Contract, except to the extent that such Liability is directly caused by Multigate.
13. Intellectual Property
13.1. In this clause, “Intellectual Property” includes all methodologies, processes, inventions, products, know-how, discoveries, copyright, trademarks, patents and designs, including applications for the same as applicable, whether or not registrable including any invention of or developments or improvements to equipment, methods, techniques or products (including the Products).
13.2. All Intellectual Property rights in and associated with the Products Supplied (including production, development and supply of the same) remain with and vest in Multigate.
13.3. To the extent permitted by law, the description, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the Contract or of the description applied to the Products.
14. Assignment
14.1. The Customer may not assign, transfer or subcontract any of its rights or obligations under these Terms without the prior Written consent of Multigate.
15. Waiver
15.1. The failure or delay of Multigate in exercising any right, remedy, power or privilege it has under these Terms will not operate as a waiver of that right, power or privilege.
15.2. A right, remedy, power or privilege will only be waived if expressly agreed by Multigate in Writing.
15.3. A waiver by Multigate of any matter does not prejudice Multigate’s rights in respect of any subsequent or other matter.
16. Force Majeure
16.1. Multigate shall not be liable whatsoever for the consequences of any failure on its part to perform or delay in performing any obligation pursuant to these Terms to the extent that such failure or delay is due directly or indirectly to fire, flood, any acts of God, war, riots, strikes, lock outs, trade disputes, break downs, mechanical failures, earthquakes, interruptions of transport, Government action, civil disturbance, theft, inability of Multigate’s suppliers to supply necessary materials and/or services and any other matter beyond Multigate’s control (“Force Majeure Event”).
16.2. Without limiting clause 16.1, if a Force Majeure Event occurs, Multigate may:
16.2.1. totally or partially suspend any Order, any part of an Order or any Deliveries relating to an Order during any period in which Multigate may be prevented or hindered from Delivering by its normal means of supply or delivery due to that Force Majeure Event; and/or
16.2.2. elect to extend at its discretion the period for performance of an obligation under these Terms as is reasonable in all the circumstances.
17. Jurisdiction
17.1. All agreements and transactions made pursuant to these Terms are governed and will be construed in accordance with the laws of New South Wales, Australia.
17.2. Multigate and the Customer irrevocably submit to the jurisdiction of the courts of New South Wales, Australia and all courts called to hear appeals from the courts of New South Wales in respect of these Terms or its subject matter.
18. Entire Agreement
18.1. These Terms supersede all previous agreements between Multigate and the Customer and embody the entire agreement in relation to the Supply of Products from Multigate to the Customer.
18.2. Where these Terms conflict with the Customer’s terms and conditions, the Customer acknowledges that by placing an Order for the Products to be supplied by Multigate, the Customer accepts that these Terms will prevail.
19. Variation
19.1. No variation to these Terms shall be effective unless in Writing and signed by Multigate and the Customer or unless it is otherwise allowed by these Terms.
20. Information
20.1. The Customer acknowledges and agrees that any personal information provided to Multigate pursuant to these Terms will be managed in accordance with the Privacy Act 1988 (Cth) and Multigate’s Privacy Policy, which can be found on the Multigate website.
20.2. The Multigate Privacy Policy may be changed from time to time and is effective immediately upon posting such changes on the Multigate website or otherwise in writing.
21. Severance
21.1. If any part of these Terms are invalid, void, illegal or unenforceable, they shall be severed and the remaining provisions shall not be affected, prejudiced or impaired by such severance.