Definitions and Interpretation
In these Terms and any related Contract, unless the contrary intention appears:
Affiliate means an entity or company which directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control, with a party.
Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales or, for deliveries of Products, at the place of delivery.
Contract means a contract for sale as referred to in clause 3.
Customer means the person who orders Products from Imaxeon, whether by telephone, facsimile, email, in person, through Imaxeon's online ordering system or otherwise.
Force Majeure means any circumstance beyond the reasonable control of a party which results in a party being unable to observe or perform on time an obligation under these Terms.
GST has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cth) (as amended).
Imaxeon means Imaxeon Pty Ltd (ABN 93 093 950 906) which is a part of the Radiology business of Bayer and a member of the Bayer Group of Companies.
Insolvency Event means circumstances in which Customer is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by Imaxeon; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (c) seeks protection or is granted protection from its creditors, under any applicable legislation.
Order means a purchase order for Products which has been accepted by Imaxeon but excluding any terms or conditions printed on or referred to in Customer’s purchase orders or other documentation unless expressly agreed to in writing by Imaxeon.
PPSA means the Personal Properties Securities Act 2009 (Cth) (as amended from time to time).
Price means the price for the Products as specified in the Contract.
Products mean the goods purchased or to be purchased by Customer from Imaxeon which are the subject of a Quotation or Contract.
Quotation means the price and any other additional terms set by Imaxeon for the Products to be purchased by Customer from Imaxeon which are or will become the subject of a Contract.
Terms means these terms and conditions of sale.
- All Quotations are valid and will be unchanged for a period of 30 days from the date shown in the Quotation, except where:
- the Customer requests, and Imaxeon agree to, any variation to the Products or any other subject matter of the Quotation; or
- where the Quotation relates to imported third party Products, the exchange rate used in the Quotation changes between the date of the Quotation and the date of the applicable Contract, and/or the transfer price offered for the Products by the third-party supplier changes, and/or any other taxes or duties applied to the Products changes,
in which circumstances for both (a) and (b) above the Quotation will be deemed to be effectively adjusted in accordance with such changes.
- Customer indicates acceptance of the Quotation by placing an Order in accordance with clause 3.
- All Quotations are valid and will be unchanged for a period of 30 days from the date shown in the Quotation, except where:
- All orders for Products must be placed in the manner and form required by Imaxeon from time to time.
- Imaxeon may in its absolute discretion determine from time to time a “Specified Order Quantity”, being the minimum order value or quantity for each order of Products to be supplied to Customer.
- All orders will be subject to acceptance by Imaxeon, which may decline an order or accept an order in whole or part in its absolute discretion. Customer acknowledges that acceptance of an order by Imaxeon will not imply that Imaxeon will accept any future order(s) placed by Customer.
- Once accepted by Imaxeon, an Order may not be cancelled by Customer except with the express consent of Imaxeon.
- Upon the acceptance of each Order by Imaxeon, a separate contract of sale will arise. Each Contract will comprise the accepted Order and these Terms. If there is any inconsistency between these Terms and another provision in a Contract then the provision in the Contract will prevail only to the extent of the inconsistency.
- For the avoidance of doubt no terms or conditions of Customer, including any terms or conditions printed on or referred to in Customer’s offer to purchase or order will be binding on Imaxeon or have any legal effect unless expressly agreed to in writing by Imaxeon.
Price and Payment
- The price for the Products is specified in the Contract. Unless the Contract states otherwise, Imaxeon may alter the Price at any time prior to acceptance of an order without prior notice.
- Customer must pay GST or any other tax duty, levy, tariff or charge applicable to the supply of the Products in addition to, and at the same time as, payment of the price. Imaxeon will provide Customer with a tax invoice as required by law.
- Unless the Contract states otherwise, Customer must pay the Price for Products supplied to it within 30 days of the date of the invoice for such Products.
- Customer must not withhold payment or make any deduction from the invoiced price or any other amount owing to Imaxeon without Imaxeon’s prior written consent.
- Receipt of any amount will not constitute payment until such time as the amount is paid or honoured in full.
- Imaxeon may in its discretion allocate a payment that does not specifically identify the invoice for which such payment is made in satisfaction for monies owing under any outstanding invoices without regard to the date of those invoices.
- Imaxeon may charge interest on any overdue monies at the rate which is 2% above the rate charged by Imaxeon’s major banker for commercial overdraft balances of over $100,000 from time to time, calculated from the due date for payment of the outstanding amount until the date of payment by Customer. Any payment made by Customer will be credited first against any interest that has accrued.
- Imaxeon will be entitled to recover from Customer all legal and other costs incurred by Imaxeon arising from Customer’s default in payment and the collection of any overdue monies.
- Any timeframes quoted by Imaxeon for delivery of the Products are estimates only. Imaxeon will use its reasonable endeavours to supply the Products in the quantities specified in the relevant Contract.
- Imaxeon will not be liable for any loss suffered by Customer arising out of any delay or failure to deliver the Products (or any part of them) or failure to deliver in the requested quantities.
- Imaxeon is entitled to refuse to deliver the Products to Customer if there are any outstanding monies owing to Imaxeon.
- Delivery of the Products will be made in the manner and at the place specified in the relevant Contract or if not specified, delivery will be made as determined by Imaxeon.
- Customer agrees to accept delivery of the Products at any time between 9.00am to 5.00pm on a Business Day.
- If Imaxeon fails to deliver some or all of the Products pursuant to a Contract, Customer will not be entitled to cancel that Contract or any other order, Contract or delivery. Imaxeon will not be obliged to accept any claims for shortages of deliveries or non-conforming Products unless written notice of the claim is given to Imaxeon within 10 Business Days after receipt by Customer of the Products at the delivery destination.
- If Imaxeon supplies the Products pre-packed and labelled, Customer must not sell, supply or otherwise deal with the Products unless the packaging and labelling remains intact, and Customer must not alter, remove, conceal or tamper with any batch numbers or other means of identification used in relation to the Products.
- If Customer does not, or indicates to Imaxeon that it will not, take or accept delivery, then the Products will be deemed to have been delivered when Imaxeon was willing to deliver them.
- Imaxeon reserves the right to deliver the Products by instalments. Each instalment may be invoiced separately and will be deemed to be a separate contract under the same provisions as the main Contract.
- Imaxeon may suspend or cancel delivery of the Products if Imaxeon reasonably believes that the Products may cause injury or damage (including for technical, scientific, medical or efficacy reasons) or may infringe the intellectual property rights of any person, or if payments owing from Customer to Imaxeon remain outstanding. No such suspension or cancellation will in any way constitute admission of liability or fault on Imaxeon’s part.
Containers and Pallets
- Any pallets or containers used for the delivery, storage or display of the Products are not included in the Price unless otherwise specified and will remain the property of their owner.
- Customer must promptly return or exchange the pallets and containers in its custody on the day of delivery (unless otherwise agreed with Imaxeon) or reimburse Imaxeon the cost of replacement or repair of lost of damaged pallets or containers.
- Imaxeon may charge a deposit to Customer for a pallet or container which will be credited in full if the pallet or container is returned to Imaxeon within 3 months of dispatch and is in good order and condition.
Risk and Title
- Legal and beneficial ownership in the Products will not pass to Customer until Customer has paid in full the Price for those Products.
- Risk of loss of or damage to the Products will remain with Imaxeon only until the first of the passing of title to the Products to Customer, or delivery of the Products by Imaxeon to Customer in accordance with clause 5. Thereafter risk of damage to, or loss or deterioration of, the Products from any cause whatsoever passes to Customer.
- Until all outstanding monies have been paid to Imaxeon for Products delivered to Customer:
- Customer must separately store those Products in such a way that makes it clear that they are the property of Imaxeon;
- in the event of a default (specified in clause 14), Imaxeon or its representative will be entitled, without the necessity of giving any notice, to enter premises occupied by Customer to search for and remove any of those Products without in any way being liable to Customer, and may dispose of or retain such Products as Imaxeon sees fit without being required to give notice or account to Customer. If the Products or any of them are wholly or partially attached to or incorporated in any other product, Imaxeon may (when practical) disconnect them in any way necessary to remove the Products; and
- all costs and expenses incurred by Imaxeon as a result of taking action in accordance with clause 7.3(b), together with transportation and storage charges, must be paid by Customer to Imaxeon on demand.
- Until title to the Products passes to Customer, Customer acknowledges and agrees:
- that the Products supplied and not resold are held by it as a bailee for Imaxeon;
- Customer may resell the Products without the right of Customer to bind Imaxeon to any liability to any third party (whether contractual or otherwise);
- any resale of the Products must only be made on the condition the purchaser is expressly made aware of the existence of Imaxeon’s rights under this clause 7;
- if the Products have been resold by Customer, Customer will hold so much of the proceeds of sale as does not exceed the outstanding monies on trust for Imaxeon immediately when they are receivable or received;
- when the proceeds held in trust for Imaxeon under clause 7.4(d) are received they must either be paid immediately to Imaxeon or held in a separate bank account as trustee for Imaxeon and they must not be used by Customer in any other way whatsoever; and
- the authority conferred on Customer by clause 7.4(b) may be revoked by written notice from Imaxeon at any time if Imaxeon deems the credit of Customer to be unsatisfactory or if Customer is in default in the performance of its obligations under any Contract, these Terms or any other agreement between Imaxeon and Customer.
- This clause 7 creates a purchase money security interest in the Products, any goods in which the Products are used as a component, and all proceeds from their respective resale by Customer. The security interest is granted to secure Customer’s proper performance of the Agreement, and comes into effect when the Customer takes possession of the Products.
For the avoidance of doubt the Customer acknowledges and agrees that it grants to Imaxeon a security interest in all goods supplied by Imaxeon to the Customer whether now or in the future and in any proceeds from the sale of those goods.
- The parties agree that pursuant to sections 115(1) and 115(7) of the PPSA the following sections of the PPSA will not apply to these Terms and any related Contract (to the extent permitted by law): Sections 95, 96, 117, 118, 121(4) 125, 127 129, 130, 132, 134(2) 135, 136(3), 136(4), 136(5), 137, 142 and 143.
- For the purposes of section 14(6) of the PPSA the parties agree that any payments received by Imaxeon from the Customer pursuant to or in any way connected with this Agreement will be applied in such order as Imaxeon deems fit in its absolute discretion.
- Customer consents and agrees that:
- It must sign all documents and take all steps as Imaxeon may reasonably require in connection with the registration, perfection and enforcement of this purchase money security interest; and
- The security interest created by this agreement or any other document relating to the subject of this agreement may be registered with the relevant authority or public register; and
- Imaxeon is not obliged to give any notice or documents under the PPSA unless the relevant obligation cannot be excluded. Customer waives its right to be provided with verification statements pursuant to section 157 of the PPSA.
- Imaxeon warrants that all Products manufactured by it and supplied to Customer will, subject to this clause 8, comply with Imaxeon’s specifications for those Products (or if no such specifications exist, will be free of defects in materials and manufacture), for a period of 12 months from the date of either delivery of the Products by Imaxeon to Customer or the date of installation of the Products by Imaxeon where the Products require installation (the Warranty Period).
- If a Product does not comply with the warranty set out in clause 8.1 and Customer notifies Imaxeon in writing of the defect during the Warranty Period within 10 Business Days of the defect coming to its notice, Imaxeon will, at its option, either exchange the Product for a new Product, or refund the Price paid for the Product.
- When a refund is given pursuant to clause 8.2, the Product for which the refund is provided must, at Imaxeon’s option, be destroyed or returned to Imaxeon by Customer, at Customer’s expense, and if returned becomes the property of Imaxeon.
- The warranty in clause 8.1 does not apply:
- as a result of any acts or omissions by any person other than Imaxeon or any external cause;
- if the defect is due to the Product being used for purposes other than for purposes for which it was intended or which do not fall within the scope of any regulatory approval;
- to a Product that has been modified without the written permission of Imaxeon; or
- if the Product has not been stored or transported in accordance with Imaxeon’s recommendations.
- The benefit of the warranty in clause 8.1 is personal to Customer and is not assignable without the prior written consent of Imaxeon.
- Except as expressly set out in these Terms, the rights set out in this clause 8 are the sole and exclusive remedies of Customer with respect to defective Products.
- Except as expressly set out in these Terms, and subject to any terms, warranties or conditions that by law may not be excluded (including those under sections 51, 52 and 53 of the Australian Consumer Law), all conditions, warranties, terms, and obligations expressed or implied by law or otherwise relating to the performance of Imaxeon’s obligations under these Terms, or any goods or services supplied, or to be supplied, by Imaxeon under these Terms, are excluded.
- Credits sought for returned Products are at Imaxeon’s discretion. Where accepted, Imaxeon may charge a reasonable administration fee in respect of all returned Products. For the avoidance of doubt, no Products for which the shelf life has expired will be accepted for return.
- Products, in respect of which a credit is sought and approved by Imaxeon, must be returned to Imaxeon’s premises freight free in good and saleable condition in the original containers and packaging in which they were supplied, and accompanied by the number and date of Imaxeon’s supplying invoice.
Assistance and Materials Supplied by Imaxeon
- Subject to obligations imposed on Imaxeon by the law which cannot be excluded or modified by these Terms, and subject to any contrary provisions in a Contract, any advice, recommendation, information, assistance or service provided by Imaxeon in relation to Products and their use or application is given in good faith but is provided without liability or responsibility on the part of Imaxeon and without intention that Customer should rely thereon.
- Any material supplied by Imaxeon for advertising and display is issued to Customer for use in its own business and is not intended for circulation or distribution to the public. Such material will remain the property of Imaxeon, must be returned by Customer to Imaxeon upon request and must not be modified without Imaxeon’s prior consent.
Complaints and Recalls
- For the purposes of this clause: “Complaint” means any report about a potential or alleged failure of the Products (or medical devices) in its quality that has been distributed for patient use. The Complaint may or may not represent a potential risk to the patient or to any end user of such Products.
- Customer agrees to inform Imaxeon immediately upon becoming aware of any Complaint regarding the Products or any information about:
- a malfunction or deterioration in the characteristics and/or performance of the device; or
- any inadequacies in the labelling or the instructions for use which, directly or indirectly, might lead to or might have led to the death of a patient, user, or other persons or to a serious deterioration in their state of health;
by email to: firstname.lastname@example.org.
- Imaxeon shall be responsible for notifying the competent authorities of any information that may affect the performance, safety, and efficacy of the Products, such as an adverse event.
- If Imaxeon reasonably decides to or is required by any Applicable Laws, Regulatory Authority or court of competent jurisdiction to initiate a recall, market withdrawal or field correction (“Recall”), or if there is any governmental seizure (including any threatened governmental seizure) of any device, Imaxeon shall at its sole discretion initiate such Recall and notify Customer of the details regarding such Recall.
- In the event of a Recall, Customer agrees to cooperate with Imaxeon to the fullest extent possible to diminish any risk to the public, which includes the following:
- reasonably assisting Imaxeon and providing information regarding traceability to affected Products;
- removing the Products that may be affected by a Recall from offer for sale to the public;
- complying with all laws, regulations and notice requirements in relation to any Recalls;
- complying with any directions and corrective action required by Imaxeon in relation to the Recall;
- recalling the Products that may be affected by Recall where they have been sold; and
- disseminating information to customers that has been approved by Imaxeon which is necessary to limit any harm, loss or damage that may be caused in any way in relation to the Recall.
Limitation of Liability
- Any provision of these Terms that excludes any terms, conditions or warranties, or limits the liability of a party will apply only to the extent permitted by law and these Terms will be construed subject to such terms, conditions, warranties and limitations.
- Subject to clause 12.1, where any terms, conditions or warranties are implied by law into these Terms which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of Imaxeon to Customer under such implied terms, conditions or warranties is limited, at the option of Imaxeon, to the repair or replacement of goods, or payment of the cost of repairing or replacing the goods.
- Except as expressly provided in these Terms, to the extent permitted by law, Imaxeon will have no liability to Customer, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity.
- If Customer gives instructions to Imaxeon with respect to the manufacture, packaging, sale or supply of the Products, Customer warrants to Imaxeon that adherence by Imaxeon to any such instructions will not infringe the intellectual property rights of any other person.
- Customer releases and indemnifies Imaxeon, its related bodies corporate, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of Customer’s warranties or obligations contained in these Terms, and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.
- If an Insolvency Event occurs in relation to Customer any other event occurs which gives Imaxeon reasonable grounds for doubting the credit of Customer, Imaxeon may by notice to Customer, at its option and without prejudice to any other right it may have, suspend or terminate a Contract or require payment before or on delivery of the Products (notwithstanding the terms of payment applicable to the Products), or cancel any undelivered or uncompleted Products under a Contract, and may retain any monies paid by Customer in relation to the Contract and apply such monies against any loss or damage incurred by it in relation to the default by Customer.
- Neither party will be liable for any delay or failure to perform its obligations under these Terms (other than payment obligations) if such delay is due to Force Majeure.
- If a delay of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
- These Terms and the provisions of all Contracts are confidential and must not be disclosed by Customer to any third party without Imaxeon’s prior written consent unless such disclosure is required by law (other than section 275(1) of the PPSA).
- The parties agree that the provisions of this clause 16 amount to a “confidentiality agreement” referred to in section 275 (6) of the PPSA.
- The restrictions contained within this clause 16 do not apply to any of these Terms or provisions of Contracts that Imaxeon has itself placed in the public domain.
- Imaxeon’s collection and use of your personal information may for purposes including:
- to process and administer your dealings as a customer, including assessing your credit worthiness;
- to provide you with the Products and services you have requested and assisting you with further relevant information including Product related information ; and
- to administer the transactions contemplated by the Terms.
- Imaxeon will generally:
- use personal Information provided to it for the purposes relating to the terms of this agreement;
- not sell, trade, give or pass on to any third party any personal information unless such a disclosure is contemplated by and directly related to the purpose outlined by the terms of this Agreement, or the Customer consents to such a disclosure or such disclosure is required to do so by law.
- Customer therefore authorises Imaxeon to disclose Customer’s personal information to third party contractors and service providers that assist Imaxeon operate its business and assist Imaxeon fulfil the terms of this agreement such as contractors and service providers involved in services including but not limited to the processing of orders, order fulfilment and the collection of outstanding debts.
- By entering into this agreement Customer:
- acknowledges that Imaxeon is a global organisation and some of the activities necessary to fulfil the terms of this agreement may be conducted by Imaxeon entities located outside of Australia such as in Singapore, Philippines or Germany and as such Customer consents to the overseas transfer of its Personal Information, its employees, consultants and agents provided by Customer to Imaxeon.
- Customer warrants that it shall comply with the provisions of the Privacy Act and shall not (as far as practicable) knowingly do anything or permit anything to be done which might lead to a breach of any such legislation.
- In these Terms and any Contract, unless the contrary intention appears:
- a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
- a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
- a reference to dollars is to Australian Dollars;
- the word “including” and similar expressions are not words of limitation;
- a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and
- where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
- Any notice given by a party in connection with these Terms or any Contract shall be in writing and will be deemed to have been given when delivered or sent by post, facsimile or email to the party to whom such notice is intended to be given at the address or facsimile number of that party provided in this agreement or as otherwise notified in writing to the other party. A notice is deemed to be given and received:
- if hand delivered, on delivery;
- if sent by prepaid post, 3 Business Days after the date of posting, or 6 Business Days if sent to or from another country; or
- if sent by email, when the sender’s email system generates a message confirming successful transmission of the message.
- If any provision of these Terms is invalid, illegal or unenforceable, these Terms take effect (where possible) as if they did not include that provision.
- Any failure by Imaxeon to insist upon strict performance by Customer of any provision in these Terms will not be taken to be a waiver of any existing or future rights of Imaxeon in relation to the provision.
- Customer must not assign or otherwise deal with its rights or obligations under these Terms or a Contract without the prior written consent of Imaxeon.
- These Terms and Contracts are governed by the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
- These Terms (together with the Contracts) contain the entire agreement of the parties with respect to its subject matter and may only be amended in writing. To avoid doubt, this includes any prior or subsequent terms and conditions attached and/or related to any purchase order, quotation, invoice or the like provided by the Customer to Imaxeon.
- These Terms do not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
- The parties agree that subject to the provisions of these Terms, the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 do not apply to the supply of Products under these Terms.
- In these Terms and any Contract, unless the contrary intention appears: