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Trewavis Surgical Instruments Pty Limited Conditions of Sale

1. INTERPRETATION
In these conditions and in any contract to which these conditions apply:-
(a) "the Seller" means Trewavis Surgical Instruments Pty. Limited. (A.B.N 50 155 143 329) or such company as accepts the Buyer’s order.
(b) "the Buyer" means the person who buys or has agreed to buy the Goods.
(c) "the Goods" means any item of whatsoever nature which is sold repaired or maintained by the Seller.

2. GENERAL
These Conditions apply to every sale made or agreed to be made by the Seller and no variation or abrogation of the same shall be effective unless it is evidenced in writing signed on behalf of the Seller.

3. PRICE
(a)Unless previously withdrawn the Sellers quotations are open for acceptance within the period stated therein or, when no period is so stated, within thirty days only after its date.
(b)Unless otherwise stated in the quotation or invoice the price of the Goods is for delivery ex works and includes the cost of basic packaging.
(c) The Seller shall be entitled without notice to the Buyer to adjust the price of the Goods, whether before or after acceptance of the Goods, in the event of and to take account of any increase in the cost to the Seller of supplying the Goods as a result of increases in costs of transport or insurance, or in rates of any applicable taxes in respect of the supply of the Goods or ingredients thereof including any duty, charge or levy in respect of the export or import of Goods, or changes in the classification or value of Goods or ingredients for customs purposes, or any changes in applicable exchange rates or in the event of delays by the Buyer in providing any information or licences required by the Seller for the production, supply, despatch or delivery of the Goods, or any other impost arising after the sale.
(d) An administration and/or delivery charge may be payable by the Buyer in respect of all contracts deemed by the Seller to be of small value.

4. PAYMENT
(a)Unless otherwise agreed by the parties in writing payment of the price of the Goods and any administration charge shall be made within 30 days of the date of the Seller"s invoice.
(b)Time for payment of the price of the Goods shall be of the essence of the contract and if the Buyer fails to pay the price when due the Seller may treat the contract as repudiated by the Buyer or may, until payment in full is made, suspend delivery of the Goods the subject of the contract and any Goods the subject of any other contract with the Buyer without incurring any liability whatsoever to the Buyer in respect thereof. In addition, but without prejudice to such rights of the Seller, the Buyer shall (if so required by the Seller) pay interest to the Seller on the outstanding amount of the price at the rate of 3 per cent per annum above the indicator Lending Rate of National Australia Bank Limited ruling from time to time until the price is paid in full.
(c) Notwithstanding any rights to lien to which the Seller may otherwise be entitled, the Seller shall have a specific lien (including a right of sale) over the Goods the subject of the contract and any Goods the subject of any other contract with the Buyer until the price of the Goods has been paid. The Buyer shall not be entitled to make any deduction from the price of the Goods in respect of any set-off or counterclaim.

5. DELIVERY
(a) Any time or date named or accepted by the Seller for completion, delivery, despatch, shipment or arrival of the Goods or for tender of any documents is an estimate only and does not constitute a condition of the contract or part of the description of the Goods. The Seller shall not be under any liability whatsoever for the consequences of any delay as a result of any cause outside its reasonable control and, in particular, but without prejudice to the generality of the foregoing the Seller shall be under no liability whatsoever for the consequences of any delay in completion, delivery, despatch, shipment or arrival of the Goods or in the tender of any documents caused (directly or indirectly) by acts of God, war, riots, strikes, lockouts, trade disputes, fires, breakdowns, mechanical failures, interruption of transport, government action or by any other cause whatsoever whether or not of a like nature to those specified above, outside the reasonable control of Seller and in any such event the time for completion, delivery, despatch, shipment or arrival of the Goods or tender of documents may be extended by the Seller (or the Seller may cancel the contract without any liability whatsoever on its part). Time for completion, delivery, despatch, shipment or arrival of the Goods or for the tender of any documents is not of the essence of the contract.
(b) In the event of production of the Goods or any part thereof being hindered or impaired or ceasing for any cause whatsoever outside the reasonable control of the Seller, the Seller may notify the Buyer that it is unable to fulfil the contract and may cancel the contract without any liability whatsoever.
(c) Unless otherwise stated in writing the Seller may make partial deliveries or deliveries by instalments in any amounts it may determine and each such partial delivery or delivery by instalment shall be deemed to be separate contracts and these Conditions shall apply to each partial delivery or delivery by instalment.
(d) The Seller may deliver up to five per cent more or less of the amount specified for delivery, subject only to an appropriate adjustment to the price payable, in full satisfaction of the Sellers obligations pursuant to the particular contract.
(e) Where the Buyer requests a particular method of delivery then the Buyer shall cover the cost of delivery by that method from the point of despatch of the goods by the Seller. Otherwise the Seller may select the method of delivery and the Buyer shall bear such delivery costs. Goods sent for repair are to be freight prepaid.
(f) The Seller is not responsible for any loss or damage to goods in transit. The Seller shall render the Buyer such assistance as may be necessary to press claims on carriers providing that the Buyer shall have notified the Seller and the carriers in writing immediately loss or damage is discovered on receipt of goods.

6. FAILURE TO DELIVER
The Buyer shall notify the Seller within 7 days of delivery of any shortfall in, loss or damage to Goods delivered. Failure to so notify shall disentitle the Buyer to any remedy in respect of the shortage, loss or damage.

7. TITLE
(a) Goods supplied by the Seller to the Buyer shall be at the Buyer’s risk immediately on delivery to the Buyer or into the Buyer’s custody (whichever is the sooner) and the Buyer should insure the Goods thereafter against such risks as it thinks appropriate.
(b) Property in the Goods supplied by the Seller to the Buyer will not pass to the Buyer until such time as the Goods the subject of this contract and all other Goods supplied by the Seller to the Buyer have been paid for in full. Until such time as the Goods have been paid for in full the Buyer shall store the Goods, including Goods into which the supplied Goods have been mixed in such a manner as to show clearly that they are the property of the seller and shall upon the Seller’s demand deliver up such Goods to the Seller and in default of such delivery the Seller may by its servants and agents enter the Buyer’s premises at any time without notice to repossess the Goods.
(c) Until such time as the Goods have been paid for in full the Buyer is at liberty to sell the Goods, including Goods into which the supplied Goods have been mixed, in the ordinary course of its business, as agent for the Seller and shall account to the Seller for the proceeds thereof.
(d) The Buyer and the Seller agree that the provisions of this clause apply notwithstanding any arrangement between the parties under which the Seller grants the purchaser credit.
8. WARRANTY
All Trewavis Surgical products are warranteed to be free of defects in the materials and workmanship. If any products are identified by the Buyer as being defective upon receipt, and such goods are returned and accepted by Trewavis as defective, they will be repaired or replaced free of charge, or credited against future purchases. The warranty does not apply to damage and/or misuse or abuse of the product. Warranty is void if any product has been altered in any manner, and/or if repair was done by someone other than a qualified Trewavis Surgical service representative. This warranty is expressly limited to the terms and conditions as stated above and there is no other implied or expressed warranty or guarantee.
9. EXCLUSION OF LIABILITY
(a) Except as provided in these terms and conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, materials or workmanship or otherwise are hereby expressly excluded and the Seller shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, or use of the Goods or arising out of the Seller"s negligence or in any way whatsoever.
(b) The Sellers liability, if any, for a breach of a condition or warranty implied by Division 2 or Part V of the Trade Practices Act 1974 (if applicable, other than Section 69) is hereby limited to: −
(1) in the case of goods, any one or more of the following:-
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(2) in the case of services:-
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
(c) The Seller’s liability, if any, under Section 74H of the Trade Practices Act 1975 (if applicable) is expressly limited to:
(1) the cost of replacing the goods; or
(2) the cost of obtaining equivalent goods; or
(3) the cost of repairing the goods whichever cost shall be the lesser.
(d) Nothing in these conditions shall be read or applied so as to exclude, restrict or modify any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified. Where the Seller is liable under any such legislation which is not able to be negatived by clause 8(a) or by any other of these terms and conditions the Seller's liability for defective goods is restricted as set out in sub-clauses 8(b) and (c) or to the fullest extent otherwise permitted by law.
(e) Unless otherwise agreed in writing the only warranty provided by the Seller in respect of Goods not manufactured by it is that (if any) provided by the manufacturer of the Goods and the liability of the Seller pursuant to such warranty is limited to any amount receivable by the Seller from the manufacturer.

10. LICENCES, DUTIES, ETC.
The payment of any taxes and the obtaining and maintenance in full force and effect of any necessary export or import licences, authorisations or consents in respect of the Goods is the sole responsibility of the Buyer and the Seller shall be under no liability whatsoever in respect of Goods exported or imported without any necessary licences, authorisations or consents.

11. HEALTH AND SAFETY
It is the Buyers responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and use of the Goods and where information is supplied to the Buyer on potential hazards relating to the Goods to bring such information to the attention of its employees, agents, subcontractors, visitors and customers. Without prejudice to the foregoing, it is also the Buyers responsibility to provide safe facilities for the reception of the Goods into storage.

12. REPAIRS
Trewavis Surgical is not responsible for damage to goods sent to Trewavis Surgical for repair or examination, nor for accidental damage to glass or other apparatus or delicate instruments in the course of the repair.
Time involved in preliminary examination of an article may be charged in the event of an order not being placed. Goods sent for repair are to be freight prepaid and clearly labelled with the senders name and address and details of the work required.

13. RETURN OF GOODS POLICY
Goods received as a result of Trewavis Surgical"s error may be returned for repair, replacement or credit. Returns are to be freight prepaid.
Goods will be considered non-returnable if:
(a) Goods are held longer than 90 days.
(b) Discontinued products.
(c) Non-stock items (i.e. custom designed).
(d) Goods not in, or accompanied by, original packaging.
(e) Goods not in saleable condition due to no fault of Trewavis Surgical.
Loan stock will be invoiced if:
(a) The Goods are not returned within 30 days of issue, or the period stated on the Loan Docket.
(b) The Goods are not in saleable condition when received by the Seller.
(c) The Goods are not in, or accompanied by, the original packaging.

14. INDUSTRIAL PROPERTY RIGHTS
The Buyer shall not alter remove or in any way tamper with any of the trade or other marks or numbers of the Seller attached to or placed upon the Goods.

15. INDEMNITY
The Buyer will indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may become liable as a result of work done in accordance with the Buyer’s specifications which involves the infringement of any letters patent or registered designs.

16. NOTICES
Any notice to be given to the Buyer shall be deemed to be given upon its being posted or sent by telex, facsimile, cable or telegram to the address of the Buyer set out in the contract or to the Buyers registered office or to the Buyers last known address.

17. ASSIGNMENT
The Buyer may not assign or transfer or purport to assign or transfer any of its rights or obligations under or in connection with the contract to any other person whatsoever.

18. SUB-CONTRACTS
The Seller reserves the right to sub-contract the performance of any contract or any part thereof to any other person party or person it may determine.

19. PROPER LAW AND JURISDICTION
All contracts made between the Seller and the Buyer shall be governed by and construed in accordance with the laws of Victoria. The Buyer agrees to submit to the non-exclusive jurisdiction of the Victorian courts for all purposes of or in connection with such contracts.

20. HEADINGS
The headings of these Conditions are provided for convenience only and shall have no effect on the interpretation thereof.