Customer Terms and Conditions
Endeva Medical Pty Ltd
ABN: 29 634 407 739
- Application
(a) The terms in this document (Conditions) apply to all orders (Order)for products (Product) distributed by Endeva Medical (Endeva) and placed by a customer (Customer).
(b) All orders must be made by mail, telephone, or email. Prior to issuing an Order, the Customer has read and understood, and agrees to, these Conditions.
(c) Prior to receiving an Order, subject to these Conditions, Endeva will issue a Customer a Product specific proposal (Proposal).
(d) The Proposal may be accepted by the Customer by mail, telephone or email to Endeva at the contact details specified in the Proposal. Acceptance of the Proposal will constitute acceptance of these Conditions and the Proposal by the Customer and will create a contract between Endeva and the Customer on the terms of these Conditions and the Proposal (Contract).
(e) If the terms of the Proposal are inconsistent with the terms of these Conditions, the terms of the Proposal will prevail to the extent of any inconsistency.
- Terms of payment
(a) Unless otherwise agreed between the parties in writing: (i) all invoices are due in accordance with the payment due date set out on the invoice; and the Customer consents to receiving invoices from Endeva by email sent to their usual email address.
(b) If the Customer fails to pay the invoice by the Payment Due Date, Endeva may at its option: (i) charge interest on the unpaid invoice, equal to the lesser of: 1.5% of the outstanding amount, calculated monthly; or the maximum rate allowed by Australian law at the time that the invoice becomes outstanding; (ii) enforce its security interest in the Product in accordance with paragraph 11; or (iii) take action to recover the amount owing plus the interest specified in paragraph 2(b)(i).
(c) In the event that Endeva is required to take action to recover an amount owing under this paragraph 2, the Customer agrees to reimburse Endeva for all costs and expenses (including but
not limited to reasonable legal costs) incurred by Endeva in relation to its collection of the amounts owed to it.
(d) The prices stated on the Proposal are subject to change, unless it is otherwise stated on the Proposal that pricing is fixed until the expiration date of the Contract (as specified in the Proposal) (Expiration Date). In the event that delivery of the Product is requested after Expiration Date, the prices in effect at the time of the requested delivery date for the products will apply.
- GST
If any supply made by Endeva to the Customer is subject to GST, the Customer must pay to Endeva the amount payable for that supply plus an amount equal to the GST payable. Endeva will give the Customer a GST tax invoice which complies with relevant laws.
- Delivery and shipment
(a) Endeva is responsible for arranging and obtaining appropriate insurance for the shipment of the product, unless otherwise specified. Upon receipt of written request from the Customer, Endeva may arrange and obtain relevant insurance for delivery to locations outside Australia, special deliveries or air freight delivery. All costs incurred by Endeva in performing the obligations under paragraph 4:
(b) will be invoiced to the Customer, unless a signed written statement by an authorised representative of Endeva provides otherwise.
- Risk and Title
(a) Risk in the products will pass to customer upon acceptance of delivery.
(b) Title in the product will not pass to customer until Endeva has been paid in full by the customer.
- Returns
(a) In the event that the product delivered to the Customer is not the Product specified in the Proposal/order, Endeva will arrange and pay for the return delivery of that product, provided that: (i) within thirty (30) days of the Delivery Date, the Customer provides Endeva with written notification of the error; and (ii) the product is returned in the same condition as when it was delivered to the Customer.
(b) If the Customer orders a Product in error, the Customer may elect to return the Product at its own cost provided that: (i) within thirty (30) days of the Delivery Date, the Customer provides Endeva with written notification of the error; (ii) the Product is returned in the same condition as when it was delivered to the Customer; and (iii) the Customer pays a “restocking fee”, being 15% of the purchase price of the Product.
(c) In the event that the Customer detects any shortages or errors with the Product the subject of the Contract, the Customer must provide written notice to Endeva of the shortages or errors within thirty (30) days of the Delivery Date.
(d) Notwithstanding paragraphs 5(a) and 5(b), Endeva will accept returns on: (i) architectural products; (ii) workflow solutions and other communications products; and (iii)any customised products or special orders, on a case by case basis on terms agreed in writing by both parties.
- Installation
(a) Unless otherwise agreed in writing by both parties, the Customer is responsible for the installation and costs incurred in the installation of the Product.
(b) Endeva agrees to provide the Customer with appropriate instructions and information for the purpose of assisting the Customer with the installation and, where relevant, the first operation of the Product.
- Product interface
The Customer is responsible for ensuring that any equipment and accessories supplied by Endeva that are used with the Product properly interface or operate with the Product to the Customer’s satisfaction.
- Warranty and limitations of liability
(a) Under the Australian Consumer Law (ACL), consumers have certain rights which cannot be excluded, including guarantees as to the acceptable quality and fitness for purpose of goods and services.
(b) Nothing in these Conditions or the Proposal 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 (including the ACL) and which by law cannot be excluded, restricted or modified.
(c) To the extent permitted by law and without limiting the Customer’s rights under the ACL, the specific warranty provided by Endeva in relation to the Product, despite any representations made by an employee or representative of Endeva to the contrary, can be viewed by the Customer in the owner’s manual.
(d) To the extent permitted by law and without limiting the Customer’s rights under the ACL, Endeva is not liable to the Customer or any third party for: (i) indirect, special, consequential or incidental loss, damages or delays arising from or in connection with the provision of Product; (ii) personal injury or property damage arising from or in connection with the use of third party equipment and accessories in conjunction with Endeva products and/or services; or (iii) loss or damages arising from or in connection with delays in manufacture or shipment resulting from any cause beyond Endeva’s control.
- Product specifications and components
To the extent permitted by law, Endeva reserves the right to:
(a) amend the specifications of its products, including the Product, at any time; and
(b) use remanufactured or used components that meet new component specifications and are warranted as new.
- Reporting obligations
(a) Upon written request by the Customer, Endeva agrees to provide the Customer with additional information reasonably required by the Customer to meet any applicable state or federal reporting or disclosure obligations.
(b) The Customer is responsible for the payment of any costs and expenses reasonably incurred by Endeva in complying with paragraph 11(a).
- Security interest
(a) In this paragraph 12, PPSA means the Personal Property Securities Act 2009 (Cth). If a term used in this paragraph has a particular meaning in the PPSA, it has the same meaning in this paragraph.
(b) The Customer grants to Endeva a security interest under the PPSA in any Product supplied under these Conditions. The Customer acknowledges that the PPSA continues to apply notwithstanding that the Product may be treated as a fixture by the Customer.
(c) The Customer acknowledges and agrees that Endeva may apply to register a security interest in the Product at any time before or after delivery of the Products. The Customer waives its right under s 157 of the PPSA to receive notice of any verification of the registration.
(d) If the Customer defaults in the performance of any obligation owed to Endeva under these Conditions or any other agreement with Endeva to supply products to the Customer, Endeva may enforce its security interest in any of its rights under these Conditions or the PPSA. To the maximum extent permitted by law, both parties agree that the following provisions of the PPSA do not apply to the enforcement by Endeva of its security interest in the Product: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.
(e) Both parties agree not to disclose information of the kind mentioned in s 275(1) of the PPSA, except in circumstances required by sections 275(7) (b)-(e) of the PPSA.
(f) The Customer must promptly do anything required by Endeva to ensure that Endeva’s security interest is a perfected security interest and has priority over all other security interests in the Product.
(g) Nothing in this paragraph is limited by any other provision of these Conditions or any other agreement between the parties.
- Insurance
(a) The Customer will assume all loss arising from or in connection with damage to the Product which occurs after the Product has been delivered to the Customer.
(b) The Customer must obtain adequate insurance for the Product until the outstanding amount for the Product has been fully paid. Endeva reserves the right to request proof of such insurance at any time prior to the full payment of all outstanding amounts.
- Intellectual property
(a) Specifications, drawings and any other form of intellectual property relating to the Product (Intellectual Property) will remain the exclusive property of Endeva.
(b) The Customer warrants that: (i) it will not disclose the Intellectual Property to any third party without the prior written consent of Endeva; (ii) it will act at all times to protect the value in the Product and ensure that the Intellectual Property and other proprietary rights in the Product are not infringed in any way; and (iii) it will comply with the reasonable directions of Endeva in relation to the use of the Product and the Intellectual Property.
- Credit terms — privacy notices
(a) The Customer consents to Endeva giving and receiving information about the Customer in accordance with the provisions of the Privacy Act 1988 (Cth) (Privacy Act). Any personal information of the Customer collected by Endeva will be used, stored, and disclosed consistently in accordance with the provisions of the Privacy Act.
(b) The Customer acknowledges that the issue of a Proposal by Endeva is subject Endeva’s approval of the Customer’s credit-worthiness in Endeva’s sole discretion. If Endeva determines the Customer’s creditworthiness to be unsatisfactory, Endeva shall give the Customer written notice of this fact within sixty (60) days of the date of the Order.
(c) To enable Endeva to assess the Customer’s creditworthiness, the Customer authorises Endeva to obtain from a credit reporting agency a credit report containing personal information about the Customer pursuant to the Privacy Act and to obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial and/or consumer credit activities.
(d) The Customer authorises Endeva to give to and obtain from any credit provider named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements in accordance with the Privacy Act. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act. This includes payment information and information on defaults or credit infringements.
- Variation
Endeva may change to these Conditions with thirty (30) days’ notice in writing to the Customer.