Terms and Conditions

Surgeons Choice – General Terms and Conditions
 

1. Definitions
1.1 In this Contract:

Authority to Leave means an authority to leave provided by the Customer to the Provider in writing authorising the Provider to leave the Goods at the Nominated Point or a location under the Customer’s Control.

Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in Brisbane, Queensland.

Business Hour means from 9.00am to 5.00pm, Brisbane time, excluding weekends and public holidays.

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).

Commencement Date means the date specified as the commencement date in the Contract Schedule.

Completion means the time when the Services are complete. 

Confidential Information includes any information marked as confidential and any information received or developed by the Provider during the term of this Contract, which is not publicly available and relates to processes, equipment and techniques used by the Provider in the course of the Provider’s business. This includes all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.

Contract means an agreement for the supply of Services or Goods formed between the Customer and the Provider upon execution of the Contract Schedule by the Customer and the Provider and is comprised of:

a) the Contract Schedule; 

b) the Special Conditions specified in the Contract Schedule (if any); and

c) the General Terms and Conditions.

If there is any ambiguity, inconsistency or conflict between the terms of any of these documents, then, unless otherwise stated, the documents take precedence in the above order.

Contract Date means the date of this Contract as specified in the Contract Schedule.

Contract Sum means the total amount payable by the Customer to the Provider in full consideration for the performance of the Provider’s obligations under this Contract, calculated in accordance with the Rates and Charge paid by the Customer pursuant to the Contract Schedule.

Consumer Law means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Corporations Act means the Corporations Act 2001 (Cth).

Customer means the person named as such in the Contract Schedule.

DDP has the meaning given to the term Delivery Duty Paid by the International Commercial Terms published by the International Chamber of Commerce (Incoterms®2010).

Date of Completion means the date upon which Completion occurs.

Defects means that the Services or Goods do not conform to one or more requirements of the Contract Schedule.

Defects Liability Period means the defects liability period that is provided by the Manufacturer for the supply of the Goods or Services, as the case may be.

Encumbrance means any security agreement or arrangement in favour of any person by way of security for the payment of a debt or any other monetary obligation, including any mortgage, charge, pledge, lien, encumbrance, assignment, security interest, title retention, preferential right, trust arrangement, contractual right of set-off or any other security arrangement and includes a Security Interest.

Excluded Loss shall mean any or all of the following, in each case arising out of or occurring in connection with this Contract, or supplying the Services or Goods under this Contract:

a) loss of profit, loss of revenue, loss of use, loss of production, or business interruption;

b) loss of business opportunity or goodwill; and

c) special, exemplary or punitive damages; 

whether or not any of the foregoing were:​

d) a natural result of the breach or matter giving rise to such loss or damages; or 

e) at the time this Contract was executed, contemplated by the Parties as a probable result of such a breach or matter, 

and, to the extent not included in the foregoing, any indirect losses (including indirect costs, damages, liabilities and expenses), provided further, that where the Contract Schedule provides for payment of liquidated damages in specified circumstances, such liquidated damages shall never be construed as Excluded Loss.

Facilities means the Customer’s site and facilities where the Provider will supply the Services or Goods, including, the site area, computer equipment, access to the internet and the Customer’s computer network, telecommunications system and similar. It includes access to such resources but also use of them to the extent required by the Provider in order to supply the Services or Goods.

Goods means equipment or products manufactured, distributed, lent or repaired by the Provider pursuant to this Contract as specified in the Contract Schedule.

General Terms and Conditions means these general terms and conditions for the supply of Services and Goods by the Provider.

GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Improper Use means any unauthorised modification made to the Goods, any failure by the Customer to use the Goods in accordance with the Manufacturer’s recommendations and any other improper act, error or omission of the Customer (or its Personnel or Patients) in connection with the Goods causing loss, damage, cost or expense.

Intellectual Property any industrial or intellectual property throughout the world, including any patent, copyright, trade or service mark, registered or unregistered trademark, registered design, moral right or any right in any trade secret, know-how, confidential information or any other proprietary right or right to registration of such rights whether protectable by statute, at common law or in equity.

Inventions has the meaning in clause 15.1.

Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.

Manufacturer means the manufacturer of the Goods or supplier of the Services whether located in Australia or overseas.

Nominated Date means the date for delivery or pick-up of the Goods as specified by the Customer in writing, provided, however, that where the Nominated Date occurs earlier than 5 Business Days from the Contract Date, the Nominated Date shall be deemed to be the date that is 5 Business Days after the Contract Date.

Nominated Point means the place at the Facilities for delivery or pick-up by the Provider of the Goods or supplying the Services as specified by the Customer in writing.

Contract Schedule means the schedule which forms part of this Contract containing your details and further details of the Contract, the Goods and the Services.

Parties means the Provider and the Customer, and Party means either one of them.

Patient means a person receiving medical care from the Customer.

Personnel means with respect to a Party, an employee, servant, agent, officer or director of that Party. 

PPSA means the Personal Property Securities Act 2009 (Cth).

Provider means the person named as such in the Contract Schedule.

Rates and Charges means the rates and charges payable to the Provider for the supply of Services or Goods as specified in the Contract Schedule.

Related Body Corporate has the meaning given in section 50 of the Corporations Act.

Security Interest has the meaning given to that term in the PPSA.

Services means the services to be supplied by the Provider to the Customer as specified in the Contract Schedule.

Special Conditions means the special conditions (if any) as agreed between the Parties.

Subcontractor means a contractor, supplier (including Manufacturer), subcontractor or consultant of the Provider.

Term means the period commencing on the Commencement Date and ending on the date specified in the Contract Schedule.

Termination Date means the earlier of:

a) the date of termination of this Contract by the Customer or the Provider under clause 14; or

b) the termination date specified in the Contract Schedule.

2. Interpretation

2.1 In this Contract, unless the context otherwise requires:

a) the singular includes the plural and vice versa, and a gender includes other genders;

b) another grammatical form of a defined word or expression have corresponding meanings;

c) a reference to a paragraph, schedule or annexure is to a paragraph of, or schedule or annexure to, this Contract;

d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;

e) a reference to $ is a reference to Australian currency;

f) a reference to time is to Brisbane, Queensland time;

g) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;

h) a reference to party includes the party's executors, administrators, successors and permitted assigns and substitutes;

i) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

j) a reference to a statute, ordinance, code, by-law or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

k) the meaning of general words is not limited by specific examples introduced by "including", "for example" or similar expressions;

l) the word “or” is not exclusive;

m) any agreement, warranty, representation or indemnity by two or more parties binds them jointly and severally;

n) any agreement, warranty, representation or indemnity in favour of two or more parties is for the benefit of them jointly and severally;

o) the word “indemnify” means to indemnify, save, defend and hold harmless against all Claims and “indemnifies” and “indemnities” shall be construed accordingly and where a person indemnifies another person against a Claim which may entitle the indemnifying person to bring a Claim against the indemnified person, then the indemnifying person shall waive and fully release the indemnified person from all such Claims;

p) all indemnities in this Contract survive termination, expiry or completion of this Contract;

q) a rule of construction does not apply to disadvantage a party because the party prepared that document or any part of it; and

r) headings are for ease of reference only and do not affect interpretation.

3. General

3.1 This Contract (which will only be waived in writing signed by the Provider and the Customer) will prevail over all conditions of the Customer’s order, to the extent of any inconsistency. The Parties agree that the Services and the Goods are to be supplied in accordance with and subject to this Contract to the exclusion of all other terms and conditions not set out in this Contract. If any terms are proposed by the Customer, those terms are deemed void and of no effect and the Provider is deemed, by supplying the Services or the Goods, to have made a counter-offer to supply the Services or the Goods to the Customer subject only to this Contract. By accepting delivery of the Services or the Goods, the Customer accepts that counter-offer.

4. Contract Schedule

4.1 The Provider shall supply the Services or the Goods pursuant to the Contract.

4.2 The Provider shall commence the Services on the Commencement Date specified in the Contract Schedule.

4.3 The Provider will provide the Services in places and locations as the Provider considers appropriate to the type and nature of the requirements of the Customer.

4.4 The Services shall be performed by the Providers’ Personnel or Subcontractors that the Provider may choose as most appropriate at its sole discretion to perform the Services.

5. Customer’s obligations

5.1 During performance of the Services or supplying the Goods, the Customer will:

a) co-operate with the Provider as the Provider reasonably requires;

b) provide the information and documentation that the Provider reasonably requires; 

c) make available to the Provider such Facilities as the Provider reasonably requires; and

d) ensure that the Customer’s Personnel cooperates with and assist the Provider.

5.2 The Customer shall not charge for the Provider’s use of the Facilities made available by the Customer.

5.3 If the Customer does not provide the Facilities that the Provider reasonably requires (and within the time period) to supply the Services or Goods, then any additional costs and expenses which are reasonably incurred by the Provider will be paid by the Customer.

6. Supply of Goods

6.1 The Provider shall deliver the Goods to the Customer at the Nominated Point on or before the Nominated Date.

6.2 Subject to clauses 6.3 and 6.4 or any Special Conditions, the Goods will be delivered DDP to the Nominated Point. Unless otherwise agreed, the Provider will select the mode and route of shipment of the Goods. Any specification of delivery time is indicative only. Provision of an Authority to Leave enables the Provider to leave the Goods without inspection by or any need for a signature from the Customer. 

6.3 The Customer shall accept delivery of all Goods the subject of the Contract. Any additional costs incurred by the Provider as a result of the Customer’s failure to accept delivery of any Goods in accordance with the Contract will be a debt due and payable by the Customer to the Provider. 

6.4 The Customer may request that the Provider sends the Goods to the Customer in a specific manner. If the Provider agrees to this, the Customer will bear all additional freight costs as specified in the Provider’s tax invoice or, where applicable, the delivery note accompanying the Goods. The Customer may request that the Provider delivers the Goods to more than one location. If the Provider agrees to this, the Customer shall bear any additional expense (as determined by the Provider and specified in the Provider’s tax invoice or, where applicable, the delivery note accompanying the Goods). 

6.5 For the avoidance of doubt, the Goods may be sold and delivered in the course of providing a Service. Unless otherwise expressly provided by the Contract, the Provider may change or modify any specifications and substitute materials, equipment or Personnel used in the provision of a Service from time to time, with or without notice to the Customer.

6.6 The Provider will assign to the Customer the warranty or guarantee of the Manufacturer of the Goods and the Provider will cooperate and assist the Customer in the Customer’s enforcement of those warranties or guarantees.

6.7 Risk in the Goods will be with the Provider until the due delivery of the Goods to the Customer at the Nominated Point. For the avoidance of doubt, delivery to the Customer under this clause is deemed to have occurred on signing by the Customer’s Personnel (or Customer’s invitee at the Nominated Point) of the docket issued by the transportation company engaged by the Provider to deliver the Goods.

6.8 Title in the Goods passes to the Customer when the Provider has received (in cash or cleared funds) the price for the Goods in full together with any additional charges as set out in the relevant invoice and any interest due.

6.9 The Customer may use or resell the Goods before title has passed to it solely on the basis that any such use or sale:

a) is effected in the ordinary course of the Customer’s business or undertaking; and

b) where a sale, is at arm’s length and is a sale of the Provider’s property on the Customer’s own behalf, where the Customer shall hold the Proceeds on account for the Provider.

6.10 The Customer will be deemed to have accepted the Goods as delivered.

7. Defects

7.1 If the Customer notifies the Provider of a Defect during the Defects Liability Period, the Provider shall rectify the Defect promptly and at the Provider’s own cost.

7.2 If, in the Customer’s reasonable opinion, rectification of a Defect is not appropriate, the Provider shall reimburse the Customer the cost of remedial work required as a consequence of the Defect.

8. Warranties

8.1 The Provider warrants that it will use reasonable care and skill in performing the Services. 

8.2 The Provider warrants that all Goods supplied to the Customer under the Contract:

a) complies with the Contract Schedule;

b) are free from defects in material or manufacturing; and

c) are supplied free from all Encumbrances.

8.3 The Provider provides no warranty that any result or objective can or will be achieved or attained at all or by Completion or any other date, whether stated in this Contract or elsewhere.

8.4 Where Goods are supplied, but not manufactured, by the Provider, or a Services are performed by a Subcontractor, the warranties in clause 8.1 and 8.2 do not apply to the supply of the Goods or the performance of the Services, provided, however, that the Subcontractor shall provide similar warranties in relation to the Services or Goods.

8.5 To the maximum extent permitted by law, the Provider makes no express (except as set out in this Contract) and excludes all implied (whether by common law, statute or otherwise) representations, warranties, terms, conditions and guarantees of any kind whatsoever. The Provider is not liable to any person, including the Customer, whether in contract, tort, negligence, breach of statutory duty or otherwise, under or in connection with this Contract, the supply of the Services or Goods, for any Excluded Loss. 

8.6 The liability of the Provider under or in connection with this Contract whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall not exceed the Contract Sum paid by the Customer to the Provider under the Contract. 

8.7 Nothing in this Contract is intended to exclude, restrict or modify any rights that the Customer may have under the relevant Consumer Law or any other applicable legislation which may not be excluded, restricted or modified by agreement.

8.8 Notwithstanding any other provision of this Contract, the liability of the Provider for any Claim sustained, incurred or suffered by the Customer is reduced to the extent that the Claim is contributed to or caused by any breach of contract, negligent act or omission, unlawful conduct or other misconduct by the Customer or its Personnel.

8.9 The Customer shall use reasonable efforts promptly to mitigate any Claim that is likely to be, or is actually, sustained, incurred or suffered by the Customer.

8.10 Each of the Parties acknowledges that, in entering into this Contract, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Contract. Any conditions, warranties or other terms implied by statute or common law are excluded from this Contract to the fullest extent permitted by law.

8.11 The Provider is not liable for any loss, damage or delay occasioned to the Customer arising from the non-availability or delayed availability of the Goods from the Manufacturer.

8.12 The obligations accepted by the Provider and the Customer under this clause 8 survive termination or expiry of this Contract.

9. Use of Goods

The Customer is solely responsible for the proper use of all Goods, including the decision to use them. Nothing in this Contract implies that the Provider is in any way liable for:

a) ensuring the appropriateness or correctness of the Goods; 

b) medical management of any Patients using the Goods; or

c) Improper Use of the Goods.

10. Indemnity

10.1 The Customer indemnifies the Provider, its Related Bodies Corporate and the Provider’s Personnel from any Claim (including for any Excluded Loss) whatsoever suffered and arising in connection with any Claim or cause of action asserted or brought by a third party in relation to or arising from any breach of contract, negligent act or omission, unlawful conduct or other misconduct by the Customer or its Personnel relating to the Contract or otherwise relating to the Services or Goods.

10.2 The Customer indemnifies the Provider, its Related Bodies Corporate and the Provider’s Personnel from any Claim for any Excluded Loss whatsoever suffered by the Customer and arising in connection with this Contract, the Services or Goods, whether or not caused in whole or in part by the default, the failure to exercise care, breach of statute or breach of any duty (whether the obligation to exercise care or the duty (as applicable) arises in contract, tort, under any statute of any relevant jurisdiction or under any other principle of law whatsoever) the Provider.

11. Pricing and invoicing

11.1 Unless otherwise agreed in writing, Goods and Services will be invoiced in accordance with the Rates and Charges specified in the Contract Schedule. All prices are excluded of GST except as expressly indicated to the contrary. 

11.2 The price and specification of Goods and Services are subject to change by the Provider without notice.

11.3 The Provider is permitted to charge for all costs and expenses incurred in supplying the Services or Goods.

11.4 The Provider will deliver to the Customer an invoice on dispatch of the Goods or on commencement of the Services, or in either case at any other time specified in the Contract Schedule. 

11.5 Where the Customer receives an invoice from the Provider under the Contract, the Customer shall pay the invoice within 30 days of the date of the invoice. Payments shall be made by the Customer without set-off or deduction of any kind.

11.6 When making a payment, the Customer shall quote relevant Contract and the invoice number.

11.7 If the Customer does not make a payment by the due date stated pursuant to the Contract, the Provider is entitled to do any or all of the following:

a) charge interest on the outstanding amount at the rate of 4% per year above the Interbank Overnight Cash Rate published by the Reserve Bank of Australia, accruing daily;

b) require the Customer to pay, in advance, for any Services (or any part of the Services) which have not yet been performed or Goods that have not yet been delivered; and

c) not perform any further Services (or any part of the Services) or deliver the Goods.

12. Use of Subcontractors

The Provider is permitted to use other persons and Subcontractors to supply some or all of the Services or Goods. The Provider is responsible for the work of any of the Subcontractors.

13. Personal Property Securities Act

13.1 The Customer grants to the Provider a security interest in all Goods supplied by the Provider to the Customer and their Proceeds (as applicable) as security for payment of all the Customer’s indebtedness to the Provider under this Contract from time to time and for the performance by the Customer of the Customer’s other obligations from time to time to the Provider.

13.2 To the extent permitted by law, and in respect of any Security Interest created by this Contract:

a) the Parties contract out of sections 95, 118, 121, 125, 129, 130, 132, 135, 142 and 143 of the PPSA (to the extent, if any, referred to in section 115(1) of the PPSA);

b) the Customer irrevocably and unconditionally waives its rights to receive any information under section 275 of the PPSA and agrees not to make any request under that section; and

c) the Customer irrevocably and unconditionally waives its right to receive any notice of any verification statement in respect of any financing statement or financing change statement relating to this Contract.

13.3 If the Provider determines that this Contract (or a transaction related to this Contract) is or contains a Security Interest, the Customer agrees promptly to do anything (including amending this Contract or executing any new document) which the Provider reasonably requires for the purposes of:

a) ensuring that the Security Interest is enforceable, perfected (including, where possible, by control in addition to registration) and otherwise effective; or

b) enabling the Provider to apply for registration, or give any notification, in connection with the Security Interest so that the Security Interest has the priority required by the Provider; or

c) enabling the Provider to exercise rights in connection with the Security Interest.

13.4 The Provider may register this Contract or any financing statement or financing change statement relating to this Contract, in the manner prescribed by law in all relevant jurisdictions. 

13.5 The Customer agrees not to register, or permit to be registered, a financing statement or financing charge statement in relation to:

a) this Contract; or

b) any Goods or materials supplied in relation to the Services,

in favour of the Customer or a third party without the approval of the Provider.

14. Termination

14.1 Either Party may terminate this Contract by notice in writing to the other if the Party notified:

a) fails to observe any term of this Contract; and

b) fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of 14 days’ written notice of the breach being given by the notifying Party to the other Party.

14.2 Either Party may terminate this Contract upon the happening of any of the following events:

a) if the Customer is a corporation, it enters into a deed of arrangement or an order is made for it to be wound up;

b) if an administrator, receiver or receiver/manager or a liquidator is appointed to the Customer pursuant to the Corporations Act; or

c) if the Customer would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act.

15. Disclosure and ownership of intellectual property

15.1 Any discoveries, improvements and inventions made or conceived by the Provider or the Provider’s Personnel (either solely or jointly with others) in the course of performing the Services (Inventions) whether or not they contain intellectual property rights capable of protection, made or conceived by the Provider or the Provider’s Personnel or Subcontractors are and remain the sole and exclusive property of the Provider.

15.2 The Customer acknowledges that the Provider (or its associated entities or persons) owns all Intellectual Property created by the Provider in connection with the Services, that now exists or that later comes into existence.

15.3 The Customer agrees to indemnify the Provider fully against all liabilities, costs and expenses which the Provider may incur as a result of any breach of this clause 15 by the Customer or the Customer’s Personnel.

15.4 The obligations accepted by the Customer under this clause 15 survive termination or expiry of this Contract.

15.5 The Customer shall indemnify and hold the Provider harmless from and against all Claims and Losses arising from loss, damage, liability, injury to the Provider, its Personnel and third parties, infringement of third party intellectual property, or third party Losses by reason of or arising out of any information supplied to the Customer by the Provider, its Personnel or Subcontractor, or supplied to the Provider by the Customer within or without the scope of this Contract.

16. Confidentiality

16.1 The Customer shall keep the Provider’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

16.2 The Customer and the Provider acknowledge that information resulting from the activities of the Provider pursuant to this Contract will also be regarded as Confidential Information. The Customer agrees that the Customer’s obligations in clause 15 extend to this category of information.

16.3 At the Termination Date, or when earlier directed by the Provider:

a) all Confidential Information shall be returned to the Provider, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Provider makes and any software that the Provider creates based on the Confidential Information; and

b) the Provider shall erase and destroy any copies of any software containing or comprising the Confidential Information in the Provider’s possession or under the Provider’s control or that may have been loaded onto a computer possessed or controlled by the Provider.

16.4 The Confidential Information does not include information which:

a) is generally available in the public domain otherwise than as a result of a breach of clause 16 by the Customer; or

b) was known by the Customer prior to the Provider disclosing the information to the Customer.

16.5 The Customer agrees to indemnify the Provider fully against all liabilities, costs and expenses which the Provider may incur as a result of any breach of this clause 16  by the Customer.

16.6 The Customer acknowledges that damages may be an inadequate remedy for breach of this clause 16  and that the Provider may obtain injunctive relief against the Customer for any breach of this clause 16.

16.7 The obligations accepted by the Customer under this clause 16 survive termination or expiry of this Contract.

17. Privacy

17.1 The Provider’s Privacy Policy is set out in its website, http://www.surgeonschoice.net.au/, which contains details on how the Provider manages any personal information that the Provider may collect from the Customer, including how the Customer and individuals may access and seek correction of the personal information that the Provider may hold and how a complaint may be lodged relating to a breach of the Australian Privacy Principles set out in the Privacy Act 1988 (Cth).

18. GST

18.1 Any reference in this clause 18 to a term defined or used in the GST Law is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.

18.2 Unless expressly included, the consideration for any supply made under or in connection with this Contract does not include an amount on account of GST in respect of the supply (GST Exclusive Consideration) except as provided under this clause 18.

18.3 Any amount referred to in this Contract (other than an amount referred to in clause 18.8 which is relevant in determining a payment to be made by one of the Parties to the other is, unless indicated otherwise, a reference to that amount expressed on a GST exclusive basis.

18.4 To the extent that GST is payable in respect of any supply made by a Party (Supplier) under or in connection with this Contract, the consideration to be provided under this Contract for that supply (unless it is expressly stated to include GST) is increased by an amount equal to the GST Exclusive Consideration (or its GST exclusive market value if applicable) multiplied by the rate at which GST is imposed in respect of the supply.

18.5 The recipient shall pay the additional amount payable under clause 18.4 to the Supplier at the same time as the GST Exclusive Consideration is otherwise required to be provided.

18.6 The Supplier shall issue a tax invoice to the recipient of the taxable supply at or before the time of payment of the consideration for the supply as increased on account of GST under clause 18.4 or at such other time as the Parties agree.

18.7 Whenever an adjustment event occurs in relation to any taxable supply made under or in connection with this Contract the Supplier shall determine the net GST in relation to the supply (taking into account any adjustment) and if the net GST differs from the amount previously paid under clause 18.5, the amount of the difference shall be paid by, refunded to or credited to the recipient, as applicable.

18.8 If one of the Parties is entitled to be reimbursed or indemnified for a loss, cost, expense, outgoing or liability incurred in connection with this Contract, then the amount of the reimbursement or indemnity payment shall first be reduced by an amount equal to any input tax credit to which the Party being reimbursed or indemnified (or its representative member) is entitled in relation to that loss, cost, expense or outgoing and then, if the amount of the payment is consideration or part consideration for a taxable supply, it shall be increased on account of GST in accordance with clause 18.4.

19. Notices

19.1 A notice or other communication under this Contract shall be in writing and delivered by hand or sent by pre-paid registered post, facsimile or email to a Party at the address, the facsimile number or email address for that Party specified in the Contract Schedule or as otherwise specified by a Party by notice.

19.2 A notice sent by post is regarded as given and received on the date of delivery.

19.3 A facsimile is regarded as given and received on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the recipient’s facsimile number, unless the recipient informs the sender that the notice is illegible or incomplete within 4 hours of it being transmitted.

19.4 A notice sent by email is regarded as given on the earlier of the sender receiving an automated message confirming delivery or, provided no automated message is received stating that the email has not been delivered, three hours after the time the email was sent by the sender, such time to be determined by reference to the device from which the email was sent.

19.5 A notice delivered or received other than on a Business Day or after 4.00pm (recipient's time) is regarded as received at 9.00am (recipient's time) on the following Business Day and a notice delivered or received before 9.00am (recipient's time) is regarded as received at 9.00am (recipient's time).

20. Exclusion of the Vienna Convention

The United Nations Convention on Contracts for the International Sale of Goods as incorporated into Queensland law under the Sale of Goods (Vienna Convention) Act 1986 (Qld) or any other law, does not apply to the Contract, or to any Services to be performed, or any Goods or other material to be Supplied, under the Contract.

21. Force majeure

21.1 Neither Party has any liability under or may be deemed to be in breach of this Contract for any delays or failures in performance of this Contract which result from circumstances beyond the reasonable control of that Party.

21.2 The Party affected by these circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

21.3 If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this Contract by written notice to the other Party.

22. Alterations

A party may only assign this Contract or a right under this Contract with the prior written consent of the other party.

23. Assignment

23.1 Subject to clause 23.2, neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this Contract without the prior written agreement of the other Party.

23.2 A Party may assign and transfer all its rights and obligations under this Contract to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this Contract.

24. Counterparts

24.1 The Parties shall execute this Contract in duplicate originals, one of which shall be delivered to and retained by each Party.  The Parties' duly authorised signatories may both sign on the same signature page of each such original of the Contract Schedule, or they may sign on separate counterparts of such signature page.  Each such counterpart when so executed shall be an original, and both counterparts shall together constitute one and the same instrument.  Neither Party shall be bound to the Contract unless and until each Party's duly authorised signatory has signed one counterpart of the Contract.

24.2 In the event that any signature is delivered by facsimile transmission or by email attachment, such signature shall create a valid and binding obligation of the Party on behalf of which such signature is executed, with the same force and effect as if such facsimile or email attachment signature page were an original thereof.

25. Entire agreement

This Contract constitute the entire agreement between the parties in connection with its subject matter and supersede all previous agreements or understandings between the parties in connection with its subject matter.

26. Waiver

The Provider does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy.  A single or partial exercise of a right, power or remedy by the Provider does not prevent another or further exercise of that or another right, power or remedy.  A waiver of a right, power or remedy by the Provider shall be in writing and signed by the Provider.

27. Relationship

Except where this Contract expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

28. Further action

Each party shall do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Contract and any transaction contemplated by it.

29. Amendments

The Provider reserves the right to modify, amend or update these General Terms and Conditions at any time and for any reason. If the Provider make changes to the General Terms and Conditions, the Provider will notify the Customer by email. Any changes made by the Provider to these General Terms and Conditions will be effective immediately upon acceptance in writing by the Customer notified to the Provider by email.

30. Severability

A term or part of a term of this Contract that is illegal or unenforceable may be severed from this Contract and the remaining terms or parts of the terms of this Contract continue in force.

31. Governing law

This Contract is governed by the laws of Queensland and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland.


 

Surgeons Choice – Special Conditions – Navigator Repair Agreement

1. Definitions

In these Special Conditions:

Approval Period has the meaning in clause 2.4 of these Special Conditions.

Authority to Repair means a written notice provided by the Customer to the Provider authorising the Provider to perform the Repair Services pursuant to the Quotation.

Calibration Test means the set of operations that evaluate, under specified conditions, the relationship between the operation of the repaired Equipment and the operation of a reference device.

Calibration Report means a report which contains the results of the Calibration Test carried out on the repaired Equipment.

Cancellation Fee has the meaning in clause 2.6 of these Special Conditions.

Repair Control Unit means the medical adjunct devices listed in the Repair/Loan Schedule.

Repair Equipment means collectively the Customers Control Unit and the Customers Probe.

Repair Probe means the medical adjunct devices listed in the Repair/Loan Schedule.

Repair System means the medical system listed in the Repair/Loan Schedule.

Quotation means a quotation for Repair Services.

Repair Fee has the meaning in clause 2.5 of these Special Conditions.

Repair Request means the Customer’s written request to the Provider for the provision of a Quotation to repair the Customers Equipment.

Repair Services means the maintenance and repair of the Repair Equipment.

Shipment Costs means all costs and expenses associated with the carriage of Goods including transportation, freight, handling and storage.

Shipper means the shipment company selected by the Provider at its sole discretion for the carriage of Goods.

2. Request to repair Contracted Equipment

2.1 The Customer shall send the Repair Equipment to the Provider, on the Nominated Date during Business Hours.

2.2 Within 2 Business Days of receiving the Repair Equipment at the Providers Facility, the Provider shall test the Repair Equipment to evaluate if the Repair Equipment requires repair by the Manufacturer. If the Repair Equipment requires repair by the Manufacturer, the Provider will dispatch the Equipment to the Manufacturer.

2.3 Within 5 Business Days of Manufacturer receiving the Repair Equipment at the Manufacturer Facilities, the Provider will notify a Quotation to the Customer.

2.4 Within 10 Business Days of the date the Provider has sent the Quotation to the Customer (Approval Period), the Customer may provide an Authority to Repair to the Provider.

2.5 Upon receipt of the Authority to Repair by the Customer under clause 2.4 of these Special Conditions, the Customer shall pay the repair fee set out in the Quotation (Repair Fee) and the Provider shall cause the Manufacturer to repair the Repair Equipment and return the Repair  Equipment to the Nominated Point upon Completion with a Calibration Verification Report.

2.6 If the Customer notifies in writing that the Customer rejects the Repair Quotation, the Customer may:

a) request the Provider to return the Repair Equipment to the Customer at the Nominated Point, and the Provider will return the Repair Equipment within 10 Business Days from receipt of the notice by the Provider, and 

the Customer shall pay the cancellation fee set out in the Repair/Loan Schedule (Cancellation Fee); or​​

b) authorise the Provider to dispose of the Repair Equipment, and the Provider will dispose of the Repair Equipment in a manner determined at its sole discretion, and the customer shall pay the cancellation fee set out in the Repair/Loan Schedule (Cancellation Fee). 

2.7 The Customer indemnifies the Provider against any loss or damage (including for any Excluded Loss) arising out of any Claim in connection with the disposal of the Repair Equipment under clause 2.6(b).

2.8 The Customer shall not remove any labels, symbols, part numbers or serial numbers affixed to the Loan Equipment. The Customer assumes full responsibility for the manner in which the Loan Equipment is used and any medical decisions taken in connection with its use. Subject to any express limitation contained in the Contract, the Customer is responsible for all costs (including repair and replacement) resulting from Improper Use and, if requested by the Provider, will make good any loss, damage, cost or expense incurred by the Provider from such use.

3. Transportation costs

3.1 The Customer is responsible for and shall pay the Shipment Costs for the delivery of the Repair Equipment to the Provider.

3.2 Subject to clauses 2.6 (b) and Error! Reference source not found., the Provider is responsible for and shall pay the Shipment Costs for:

a) the delivery and return of the Loan Equipment; and 

b) the return of the Repair Equipment once repaired to the Customer.

4. Risk

4.1 The Customer is the owner of the Repair Equipment. Risk in the Repair Equipment passes:

a) to the Provider immediately upon collection of the Repair Equipment at the Nominated Point; and

b) to the Customer immediately upon delivery of the Repair Equipment to or at the direction of the Customer to the Nominated Point.




Surgeons Choice – Special Conditions - Navigator Loan Agreement

1. Definitions

In these Special Conditions:

Loan Fee is the weekly fee as stated in this contract for the use of the loan equipment during the loan period.

Loan Equipment means collectively the Loan Control Unit and the Loan Probe.

Loan System means a Navigator Gamma Guidance system consisting of a Control Unit, Probe and if required charger and batteries.

Loan Period means the period from the date on which the Customer receives the Loan Equipment and continuing until the Date of Completion or return of the Loan Equipment pursuant these Special Conditions.

Loan Probe means a Navigator Gamma Guidance Probe, either wireless or cabled. If cabled it may include a cable and if Wireless it does not include CR2 batteries required to power the probe.

Loan Control Unit means a Navigator Gamma Guidance system consisting of a Control Unit and or a battery and charger if required.

Shipment Costs means all costs and expenses associated with the carriage of Goods including transportation, freight, handling and storage.

Shipper means the shipment company selected by the Provider at its sole discretion for the carriage of Goods.

2. Loan Equipment

2.1 The Provider shall provide to the Customer, after receipt of a signed Loan Agreement, the Loan Equipment during the Loan Period at the Nominated Point on the Nominated Date during Business Hours.

2.2 The Customer indemnifies the Provider against any loss or damage to the Loan Equipment suffered prior to return of the Loan Equipment pursuant to these Special Conditions.

2.3 The Customer shall ensure that its insurance covers any loss of or damage of the Loan Equipment and it shall furnish to the Provider certificates of insurance demonstrating this coverage and that the Provider is named as a beneficiary of the insurance.

2.4 On Completion, the Customer shall return the Loan Equipment to the Provider in the same condition as delivered (allowing for normal wear and tear), unless alternative arrangements are agreed in writing by the Parties. The customer shall collect, or pay for return of, the Loan Equipment. 

2.5 The Customer shall not remove any labels, symbols, part numbers or serial numbers affixed to the Loan Equipment. The Customer assumes full responsibility for the manner in which the Loan Equipment is used and any medical decisions taken in connection with its use. Subject to any express limitation contained in the Contract, the Customer is responsible for all costs (including repair and replacement) resulting from Improper Use and, if requested by the Provider, will make good any loss, damage, cost or expense incurred by the Provider from such use.

3. Transportation costs

3. 1 The Customer is responsible for and shall pay the Shipment Costs for the delivery of the loan Equipment back to the Provider.

3. 2 Notwithstanding the foregoing, the Customer is responsible to keep the original packaging of the Loan Equipment and the Customer shall provide such original packaging to the Provider on Completion.

4. Risk

4.1 The Provider is the owner of the Loan Equipment. Risk in the Loan Equipment passes:

a) to the Customer immediately upon delivery of the Loan Equipment to or at the direction of the Customer at the Nominated Point; and

b) to the Provider immediately upon collection of the Loan Equipment at the Nominated Point.

For the avoidance of doubt, delivery to the Customer under clause 4.1(a) is deemed to have occurred on signing by the Customer’s Personnel (or Customer’s invitee at the Nominated Point) of the docket issued by the transportation company engaged by the Provider to deliver the Loan Equipment.​​

4.2 The Customer grants to the Provider a security interest in all Loan Equipment as security for the performance by the Customer of its obligations to the Provider from time to time under this Contract. The security interest is granted on the same basis as if the Loan Equipment had been sold (but not yet paid for). The Provider is entitled and may choose to register a security interest under the PPSA in respect of the Loan Equipment during the Loan Period. If the Provider elects to do so, the Customer will provide all reasonable assistance to the Provider in this regard.




Surgeons Choice – Special Conditions – Navigator Loan/Repair Agreement

1. Definitions

In these Special Conditions:

Approval Period has the meaning in clause 2.4 of these Special Conditions.

Authority to Repair means a written notice provided by the Customer to the Provider authorising the Provider to perform the Repair Services pursuant to the Quotation.

Calibration Test means the set of operations that evaluate, under specified conditions, the relationship between the operation of the repaired Equipment and the operation of a reference device.

Calibration Report means a report which contains the results of the Calibration Test carried out on the repaired Equipment.

Cancellation Fee has the meaning in clause 2.7 of these Special Conditions.

Repair Control Unit means the medical adjunct devices listed in the Repair/Loan Schedule.

Repair Equipment means collectively the Customers Control Unit and the Customers Probe.

Repair Probe means the medical adjunct devices listed in the Repair/Loan Schedule.

Repair System means the medical system listed in the Repair/Loan Schedule.

Loan Fee has the meaning in clause 2.6 of these Special Conditions.

Loan Equipment means collectively the Loan Control Unit and the Loan Probe.

Loan System means a medical system with similar capabilities as the Contracted Equipment to be provided on loan to the Customer whilst the Customers Equipment is being repaired under this Contract.

Loan Period means the period from the date on which the Customer receives the Loan Equipment and continuing until the Date of Completion or return of the Loan Equipment pursuant these Special Conditions.

Loan Probe means a medical adjunct device with similar capabilities as the Repair Probe to be provided on loan to the Customer whilst the Repair Equipment is being repaired under this Contract.

Loan Control Unit means a medical adjunct device with similar capabilities as the Repair Control Unit to be provided on loan to the Customer whilst the Repair Equipment is being repaired under this Contract.

Quotation means a quotation for Repair Services.

Repair Fee has the meaning in clause 2.5 of these Special Conditions.

Repair Request means the Customer’s written request to the Provider for the provision of a Quotation to repair the Customers Equipment.

Repair Services means the maintenance and repair of the Repair Equipment.

Shipment Costs means all costs and expenses associated with the carriage of Goods including transportation, freight, handling and storage.

Shipper means the shipment company selected by the Provider at its sole discretion for the carriage of Goods.

2. Request to repair Contracted Equipment

2.1 The Customer shall send the Repair Equipment to the Provider, on the Nominated Date during Business Hours.

2.2 Within 2 Business Days of receiving the Repair Equipment at the Providers Facility, the Provider shall test the Repair Equipment to evaluate if the Repair Equipment requires repair by the Manufacturer. If the Repair Equipment requires repair by the Manufacturer, the Provider will dispatch the Equipment to the Manufacturer.

2.3 Within 5 Business Days of Manufacturer receiving the Repair Equipment at the Manufacturer Facilities, the Provider will notify a Quotation to the Customer.

2.4 Within 10 Business Days of the date the Provider has sent the Quotation to the Customer (Approval Period), the Customer may provide an Authority to Repair to the Provider.

2.5 Upon receipt of the Authority to Repair by the Customer under clause 2.4 of these Special Conditions, the Customer shall pay the repair fee set out in the Quotation (Repair Fee) and the Provider shall cause the Manufacturer to repair the Repair Equipment and return the Repair  Equipment to the Nominated Point upon Completion with a Calibration Verification Report.

2.6 If the Customer does not provide the Authority to Repair to the Provider within Approval Period, the Customer shall pay a weekly extended loan fee as set out in the Repair/Loan Schedule (Extended Loan Fee) from the first Business Day after the expiry of the Approval Period until the earlier of:

a) the date when the Provider receives an Authority to Repair; or

b) the date when the Provider collects the Loan Equipment after Completion or return of the Loan Equipment pursuant to these Special Conditions.

2.7  If the Customer notifies in writing that the Customer rejects the Repair Quotation, the Customer may:

a) request the Provider to return the Repair Equipment to the Customer at the Nominated Point, and the Provider will return the Repair Equipment within 10 Business Days from receipt of the notice by the Provider, and 

the Customer shall pay the cancellation fee set out in the Repair/Loan Schedule (Cancellation Fee); or​​​

b) authorise the Provider to dispose of the Repair Equipment, and the Provider will dispose of the Repair Equipment in a manner determined at its sole discretion, and the customer shall pay the cancellation fee set out in the Repair/Loan Schedule (Cancellation Fee). 

2.8 The Customer indemnifies the Provider against any loss or damage (including for any Excluded Loss) arising out of any Claim in connection with the disposal of the Repair Equipment under clause 2.7(b).

3. Loan Equipment

3.1 The Provider shall provide to the Customer, after receipt of a signed Loan Form, the Loan Equipment during the Loan Period at the Nominated Point on the Nominated Date during Business Hours.

3.2 The Customer indemnifies the Provider against any loss or damage to the Loan Equipment suffered prior to return of the Loan Equipment pursuant to these Special Conditions.

3.3 The Customer shall ensure that its insurance covers any loss of or damage of the Loan Equipment and it shall furnish to the Provider certificates of insurance demonstrating this coverage and that the Provider is named as a beneficiary of the insurance.

3.4 On Completion, the Customer shall return the Loan Equipment to the Provider in the same condition as delivered (allowing for normal wear and tear), unless alternative arrangements are agreed in writing by the Parties. The Provider shall collect, or pay for return of, the Loan Equipment. 

3.5 The Customer shall not remove any labels, symbols, part numbers or serial numbers affixed to the Loan Equipment. The Customer assumes full responsibility for the manner in which the Loan Equipment is used and any medical decisions taken in connection with its use. Subject to any express limitation contained in the Contract, the Customer is responsible for all costs (including repair and replacement) resulting from Improper Use and, if requested by the Provider, will make good any loss, damage, cost or expense incurred by the Provider from such use.

4. Transportation costs

4.1 The Customer is responsible for and shall pay the Shipment Costs for the delivery of the Repair Equipment to the Provider.

4.2 Subject to clauses 2.7(b) and 4.3, the Provider is responsible for and shall pay the Shipment Costs for:

a) the delivery and return of the Loan Equipment; and 

b) the return of the Repair Equipment once repaired to the Customer.

4.3 Notwithstanding the foregoing, the Customer is responsible to keep the original packaging of the Loan Equipment and the Customer shall provide such original packaging to the Provider on Completion.

5. Risk

5.1 The Provider is the owner of the Loan Equipment. Risk in the Loan Equipment passes:

a) to the Customer immediately upon delivery of the Loan Equipment to or at the direction of the Customer at the Nominated Point; and

b) to the Provider immediately upon collection of the Loan Equipment at the Nominated Point.

For the avoidance of doubt, delivery to the Customer under clause 5.1(a) is deemed to have occurred on signing by the Customer’s Personnel (or Customer’s invitee at the Nominated Point) of the docket issued by the transportation company engaged by the Provider to deliver the Loan Equipment.​​

5.2 The Customer grants to the Provider a security interest in all Loan Equipment as security for the performance by the Customer of its obligations to the Provider from time to time under this Contract. The security interest is granted on the same basis as if the Loan Equipment had been sold (but not yet paid for). The Provider is entitled and may choose to register a security interest under the PPSA in respect of the Loan Equipment during the Loan Period. If the Provider elects to do so, the Customer will provide all reasonable assistance to the Provider in this regard.

5.3 The Customer is the owner of the Repair Equipment. Risk in the Repair Equipment passes:

a) to the Provider immediately upon collection of the Repair Equipment at the Nominated Point; and

b) to the Customer immediately upon delivery of the Repair Equipment to or at the direction of the Customer to the Nominated Point.

 
 
 
 

Contact

Surgeons Choice Australia Pty Ltd

Unit 12 / 39 Lawrence Drive, Nerang, Qld 4211

contact@surgeonschoice.net.au

Phone: 07 5500 4113

Fax:   07 5500 4123

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