General Terms and Conditions of Supply
- These terms and conditions between Medline International Two Australia Pty Limited (“Medline”) and a customer (“Customer”) together with any changes otherwise agreed in a written agreement fully executed by Medline and the Customer constitute the contract between Medline and the Customer. The contract constitutes the entire, final and concluded agreement between the parties. It supersedes all previous arrangements, correspondence, tenders, representations, proposals, understandings and communications whether oral or in writing. The contract forms the basis on which Medline sells and supplies products and or services to the Customer. Each such supply and sale shall be affected pursuant to the terms of the contract. The terms and conditions of this contract are paramount, and, to the extent that there is any conflict between any provision of them and any invoice or other document evidencing or describing any products & services, these terms and conditions will prevail. Medline, in its absolute discretion, can amend the contract at any time, and without prior notice to the Customer. Further, if there is any other document or arrangement which conflict with the contract, the contract shall prevail.
Establishment of the contract
- All selling prices quoted from Medline are without any obligation, unless there is a written statement from Medline to the contrary. Medline will not be bound until Medline has accepted or confirmed the order in writing or has executed the order without prior written acceptance or confirmation.
- All orders are accepted subject to these terms and conditions of sale and supply. No terms or conditions, or variations to these terms and conditions, put forward by the Customer shall be binding on Medline, unless they are in writing and signed by a duly authorised officer of Medline.
- Product and or services as separately priced on invoices or delivery dockets are a separate and independent obligation of Medline to deliver and for the Customer to pay.
- Where the use of the product is stated to be subject to any instructions or warnings, they are supplied on the condition that such instructions or warnings will be strictly adhered to.
- If the Customer cancels or alters any order or part order for products and or services after Medline has received the order, then Medline reserves the right to charge to the Customer and the Customer agrees to pay Medline the additional costs incurred in cancelling or altering any order or part order together with the cost of any labour, packaging, transportation and administration expended to the date of such cancellation or alterations.
- Medline employees and agents are not authorised to make any representations regarding future products and or services unless these are confirmed in writing by Medline. Customer acknowledges that the products and or services provided under this contract are not contingent on any such future product or service.
Pricing & Shipment
- The prices stated in a price list published by Medline in some way or stated in any contract signed or agreed to by Medline may be changed by Medline subject to the contract. Unless expressly stated otherwise, these prices are net, in Australian currency, exclusive of goods and services tax (“GST”), delivered free to the Customer’s premises under normal freight conditions (“FIS”). Unless otherwise expressly agreed to by Medline in writing, invoicing will be based on prices that are applicable on the date of shipment.
- Medline reserves the right to charge the Customer any freight costs incurred that exceed the normal freight costs for delivery to the Customer’s premises.
- Medline will pack the products in a manner customary in the trade.
- Time of shipment is not of the essence (this means that an agreed shipment time is not a deadline, unless otherwise expressly agreed to by Medline in writing). Medline shall not be liable to the Customer for any loss or damage arising from delay in delivery
- Minimum order quantities are defined by the pricing units of measure (“each”) and pack factors (“pack”) in our price lists. Products and services must be purchased in multiples of this quantity. Products and services will be invoiced as a price per unit unless specifically indicated.
- Customers will be charged a handling fee of $35.00 (excluding GST) where the value of their order is less than the values outlined below:
- a. For locations in all states and territories, excluding the Northern Territory, - $350.00 (excluding GST);
- b. For locations in the Northern Territory - $1000.00 (excluding GST).
- (the a. & b. should be indented)
- The Customer has a duty to take possession of the purchased product at the moment when they are made available to the Customer. If the Customer refuses to take possession or is negligent in providing the information or instructions necessary for shipment, the products will be stored at the Customer's expense and risk. In this case the Customer will be liable for all additional costs, including but not limited to storage costs.
- Medline reserves the right, in the event of doubt about the creditworthiness of the Customer or for whatever other commercial reason, to require security to be provided for any or all deliveries, or if the required security is not provided to Medline's satisfaction, to suspend or refuse deliveries, or to send the products and services on the basis of cash on delivery.
- Medline’s invoices or delivery dockets showing quantities, descriptions, date, time and place of delivery of products and services shall be conclusive evidence of the matters stated in those documents.
Title & Risk
- Title of all products sold by Medline will transfer to the Customer upon payment in full for the products being received by Medline.
- If the products are destroyed or used before the Customer pays Medline in full for any of the products, the Customer shall hold the proceeds of any claim or benefit relating to the products as trustee for Medline and shall pay the proceeds to Medline immediately.
- All risk in relation to the product, including risk of damage or loss passes to the Customer on delivery of the product.
- The Customer hereby irrevocably grants to Medline, it’s agents and servants, an unrestricted right and licence, without notice, to enter premises occupied by the Customer to identify and remove any of the products or property of Medline in accordance with these Terms and Conditions of Sale & Supply, without in any way being liable to the Customer or any person claiming through the Customer. Medline shall have the right to sell or dispose of any such products removed or otherwise in it’s sole discretion and shall not be liable for any loss occasioned thereby.
- Payment must be made within thirty (30) days following the date of the invoice. Medline reserves the right, in the event of payment in full not being received within 7 days of the due date to
- Require the payment of cash upon delivery of any further products;
- Charge default interest at the rate of 2% per annum above that being charged by Medline’s bankers on normal commercial overdrafts on all overdue amounts (including late payment charges and amounts other than the price) calculated on a day to day basis on any monies due but unpaid, such interest to be computed from the due date for payment AND the parties agree that such default interest is not a penalty but is a true measure of damages incurred by Medline. Payments received from the Customer will be credited first against any default interest and all such charges shall be payable on demand.
- Cease any further deliveries to the Customer and to terminate any agreement in relation to products that have not been delivered or any other contract between Medline and the Customer.
- Any queries due to perceived discrepancies on the invoice must be made within 14 days of date of invoice to ensure eligibility of credit.
- If the Customer is in default in the fulfilment of one or more of the Customer’s obligations, any reasonable costs incurred in obtaining payment will be borne by the Customer. Such costs may include but are not limited to legal fees, collection agency fees, judicial or administrative proceedings, etc.
- Medline's failure to insist upon the strict performance of any of the Customer's obligations under the Contract shall not be construed as a waiver and shall not affect Medline's rights to require strict performance of such obligations.
Quality and Samples
- Medline undertakes to supply products and or services that comply with the specifications in this contract. In the absence of such specifications, Medline undertakes to supply products and services that meet standard requirements applicable to such products and services.
- On request, Medline may supply samples/test specimens of its products. Samples remain the property of Medline at all times.
Legislation, Statute & Regulations
- The Customer acknowledges and warrants that they are entitled to purchase any products and or services for which the Customer has placed an order with Medline in accordance with any applicable legislation, statute or regulations and the Customer indemnifies Medline in relation to any action, loss or proceeding which may be brought against Medline as a result of a breach of this warranty by the Customer.
- Medline will not be held accountable for failure or delay of performance under this contract if it is due to an event of force majeure or to any occurrence other than negligence on the part of Medline.
- For the purposes of clause 9.1, an event of force majeure includes, but is not limited to, acts of God, lightning, fire, storm, flood, earthquake, accumulation of snow or ice, lack of water arising from weather or environmental problems, strike, lockout or other industrial disturbance, act of the public enemy, war declared or undeclared, threat of war, terrorist act, blockade, revolution, riot, insurrection, civil commotion, public demonstration, sabotage, act of vandalism, prevention from or hindrance in obtaining materials, energy or other supplies in any way, explosion, directive or requirement of any government, or government agency or authority, including unforeseeable acts with respect to export/re-export licenses; provided, however, that lack of funds shall not be interpreted as a cause beyond the reasonable control of that party or as an event of force majeure.
- If the performance is delayed by an event of force majeure for longer than one month, either of the parties are entitled to terminate the contract, without Medline being liable for any compensation for loss or damage, however it may be described, sustained by the Customer or by any third parties.
- If Medline has met a part of its obligations when an event of force majeure commences, or can only fulfil part of its obligations, it is entitled to invoice separately for that which has been supplied or which can be supplied, and the Customer is obliged to pay this invoice as if it were a separate contract. However, this does not apply if that which has been supplied or which can be supplied has no independent value.
- Unless otherwise specified in writing, Medline will pass on the benefit of the warranties and representations expressly provided in writing to Medline by the manufacturers of the products. The warranty shall not apply to products that have been subjected to misuse or abuse, neglect, accident, damage or improper installation or maintenance.
- Medline employees and agents are not authorised to make any representations or give any warranty concerning the product unless these are confirmed in writing by Medline. In entering into the Contract the Customer acknowledges that it does not rely on and waives any claim for any breach of any representation or warranty which is not so confirmed.
- To the extent permitted by law, Medline's sole obligation in connection with any breach of the Warranty will be to, at Medline’s sole discretion, repair or replace the Product.
- Notwithstanding clause 10.1 and to the fullest extent allowed under law and subject to the Competition and Consumer Act 2010, Medline excludes all warranties or conditions relating to the products or its obligations under this Contract. To the extent that warranties or conditions implied by the Competition and Consumer Act 2010 or similar legislation cannot be excluded, the liability of Medline for breach of any warranty or condition is limited to the replacement or repair of the products.
- In no event shall Medline be liable for any indirect, consequential or special damages in connection with or arising out of the products and services and in no event shall Medline’s liability on any claims for damages arising out of or connected with the Contract or the manufacture, sale, delivery or use of the products and services exceed the purchase price.
- The Customer is not permitted to alter the products and or services supplied wholly or in part or to give or to affix on the products and or services another brand name or packaging without the express written permission of Medline.
- Medline must approve all marketing materials prepared by or on behalf of the Customer for the products and services. Medline expressly reserves all rights that it has in relation to intellectual property rights in respect of products and services or materials it has supplied.
- The Customer will make no claims or instructions for use, reuse or disposal, different from those provided by Medline. The Customer has a duty to comply with the instructions relating to storage and handling/treatment of the products and services supplied.
- The Customer has a duty to inspect the products and the packaging upon arrival. The Customer must bring defects in the products and packaging that are apparent to the attention of Medline no later than 14 days after receipt of the products and services. Defects that are not found to exist until later upon use or consumption by the Customer or by third parties must be brought to the attention of Medline no later than 14 days after discovery of such defect. Medline's liability lapses if the Customer does not comply with these stipulations and with the stipulation referred to in clause 12.5. The Customer has a duty to take all reasonable measures in order to limit the loss or damage. In particular the Customer will follow Medline's directions in relation to the products and packaging.
- The Customer will indemnify Medline against any claims of third parties for which Medline is not expressly liable pursuant to this contract.
- In the event that a recall of the products is necessitated by any reason within the Customer’s control, the Customer shall bear all costs and expenses of such recall, including, without limitation, costs of notifying Customers, Customer refunds, costs of returning products and services, lost profits, and other expenses incurred to meet obligations to third parties. In the event of a recall of the products necessitated by a reason outside the Customer’s control, the Customer shall be entitled to request from Medline either (i) replacement of the affected products, including transportation, or (ii) a credit for the affected products already purchased. Customer shall not commence any recalls of the products without the prior written approval of Medline, which approval shall not be unreasonably withheld. In the event of a recall of any nature, the parties will cooperate fully with each other, including communications with any purchasers or users.
- Medline may only accept return of products for credit that have resulted from a Medline error.
- No return of product will be accepted without prior authorisation. A return authorisation request must be completed by the Customer, approval granted by Medline and a Return Authorisation Number (RAN) issued by your Medline Customer Service Representative prior to return of products.
- The RAN must accompany each item returned for credit. Any products returned to Medline without an RAN will not be accepted.
- In the event that Products are returned, Medline reserves the right to charge the Customer a restocking fee for any product accepted for return.
- Products may not be accepted for credit if:
- the return is not the subject of an Medline error;
- products are returned in packaging that is opened, damaged, written upon or otherwise marked or are in an un-saleable condition;
- products are returned more than 7 days after the RAN is issued by Medline.
- Defective products - If products are believed to be defective, they should be isolated and the Quality Assurance Department at Medline contacted to authorise return. This department will advise if a sample from the batch concerned is required to be evaluated. This includes used or contaminated products.
Confidentiality & Privacy
- All information disclosed to the Customer in connection with this contract is to be treated as confidential or proprietary information of Medline that the Customer will keep strictly confidential.
- Customer understands consents and agrees that Medline will from time to time use the Customer’s information for the purposes of compliance with various legislative and regulatory requirements. Such legislation and or regulation may not be limited to those enacted in Australia alone, and may include such foreign countries as the United States. Medline will at all times seek to manage and protect any Customer information from any misuse or otherwise unlawful handling.
- processed in the United States.
Intellectual Property Rights
- Customer acknowledges that all Intellectual Property Rights which exist in respect of the Goods will at all times remain the property of Medline or any applicable third party owner.
Termination of the contract
- Medline's claims against the Customer are due and payable immediately in the following cases:
- if the Customer is declared bankrupt, its company liquidated or if a moratorium has been applied for or granted;
- if, after the contract has been entered into, Medline becomes aware of circumstances, which give Medline good grounds to fear that the Customer cannot fulfil its obligations;
- if Medline has asked the Customer upon entering into the contract to pay in advance or to provide security for the fulfilment of its obligation to pay and this payment is not made or the security is insufficient.
- If the Customer fails to comply with any of these terms and conditions
- Medline is entitled in such cases
- to suspend further performance of the contract, or
- to terminate the contract and immediately recover possession of any products and or services not paid for in accordance with these terms and conditions, all such without prejudice to Medline's right to claim compensation.
- These terms and conditions and all orders or contracts to which Medline and Customer are party to will be controlled and governed by the laws in force in the state of New South Wales. The parties hereby submit to the exclusive jurisdiction of the courts of the state of New South Wales, and any courts which may hear appeals from those courts, relating to these terms and conditions.
Convention on Contracts for the International Sale of Goods (CISG) 1980
- The parties expressly agree that, for shipments of products and or services from Medline to the Customer outside of Australia, the 1980 Convention on Contracts for the International Sale of Goods (“CISG”) will apply, except to the extent that the CISG contradicts or is inconsistent with any provision in these terms and conditions, in which case the CISG shall not apply to the extent of any such contradiction or inconsistency.
- The Customer acknowledges and warrants that the Customer, its shareholders, agents, officers and employees are prohibited from making or authorising payment of either money or anything of value, directly or indirectly, to any government officials, political parties or political candidates for the purposes of winning or retaining business or influencing any act or decision of such officials pertaining to Medline products and or services.
- Customer promises that the products (including any related technical data) will not be exported, sold, or otherwise diverted outside the country shown on Medline’s address on the face of these terms and conditions. Customer agrees to comply with all applicable laws, including applicable import, export, customs, licensing, and product registration requirements, and including the applicable requirements of a “routed export transaction.” Customer certifies that:
- its’ export privileges have not been suspended, revoked or denied by the U.S. Bureau of Export Administration;
- the Products are intended for civilian use;
- the Products will not be involved in any way with the manufacture or distribution of weapons;
- no technical data received from Medline will be transferred to any other party without prior written consent from the Medline.
- Customer acknowledges that United States origin items are subject to United States. Export Administration Regulations.
- Any provision of these terms and conditions which is invalid in any jurisdiction shall be ineffective in that jurisdiction to that extent, without invalidating or affecting the remaining provisions to these terms and conditions or the validity of that provision in any other jurisdiction.
- The Customer cannot assign the benefits or liabilities under this contract without the express written consent of Medline. Medline may assign its rights or any part thereof to a related or affiliated company or corporation of Medline or to an authorised distributor or technical service representative of Medline or the manufacturer of the products or other party without the Customer’s consent.
Proof of Debt
- A certificate signed by a Director, Secretary or Financial Controller of Medline shall be prima facie evidence of the amount of indebtedness of the Customer to Medline at that time.