COBALT HEALTH TERMS AND CONDITIONS OF TRADE
Business Day means a weekday on which banks are open in Sydney, New South Wales, Australia; Conditions means these Terms and Conditions of Trade; Customer means the person or company placing an Order for the purchase of Goods from the Seller; Goods means all goods and/or services supplied by the Seller pursuant to an Order; GST means Goods and Services Tax payable pursuant to the GST Act; GST Act means A New Tax System (Goods and Services Tax) Act 1999 (as amended); Order means a written or oral order placed by a Customer with the Seller, for the purchase and supply of Goods; Purchase Price means the price of the Goods exclusive of GST; Seller means Cobalt Health Pty Ltd (ACN 165 159 820).
2. APPLICATION OF CONDITIONS
(a) These Conditions apply to all Orders.
(b) No additional or different terms or conditions will be binding upon the Seller unless specifically agreed to in writing by the Seller. These Conditions serve as notice of the Seller's objection to and rejection of any terms and conditions of purchase or sale included in the Customer's order or other writing that are different from or additional to these Conditions.
(c) Paragraph headings herein are for convenience only and are not to be considered in interpreting any of the provisions herein.
The Seller's quotations and tenders are subject to change and Goods are subject to availability at any time prior to the Seller's acceptance of the Order. Fixed prices must be expressly confirmed as such by the Seller in writing.
4. IMPLIED CONDITIONS AND WARRANTIES
(a) These Conditions do not exclude implied statutory conditions and warranties for the supply of Goods. Notwithstanding, conditions, warranties and representations, whatsoever and howsoever made are excluded, to the fullest extent permitted by the law and all other terms, from these Conditions except those expressly stated.
(b) Any suggestion by the Seller or the Seller's agents regarding use, application or suitability of the Goods is not to be construed as an express warranty unless confirmed in writing by the Seller.
(c) Where the Customer has a credit or other account with the Seller, these Conditions are in addition to and not in substitution of the Seller’s terms and conditions of credit.
5. ORDER FOR GOODS
(a) Once an Order has been placed with the Seller it cannot be cancelled or varied by the Customer without the prior written consent of the Seller.
(b) The Seller may accept or reject any Order in whole or part.
(c) The Seller reserves the right at all times to suspend or discontinue the supply of Goods to the Customer without being obliged to give any reason for its action.
(d) In the event that the Seller requires the Customer to purchase minimum order quantities (MOQ), the Customer agrees that it is liable to pay any excess stock which relates to the supply of any MOQ Order.
(e) In the event the Customer cancels or reschedules an Order, the Seller reserves the right to invoice the Seller for;
(i) all components procured for an Order prior to cancellation;
(ii) all specific componentry procured for an Order which is in transit to the Seller’s suppliers and which is unable to be cancelled from the source;
(iii) all specific componentry held by suppliers of the Seller which is not able to be returned to the source; and
(iv) all componentry / assemblies which are a work in progress at the time of cancellation or rescheduling.
6. PURCHASE PRICE & TERMS OF PAYMENT
(a) Unless otherwise agreed in writing the Purchase Price is exclusive of packaging costs, GST, freight charges, delivery costs, bank charges and such other charges notified by the Seller to the Customer all of which costs if incurred are payable by the Customer (Price Additions).
(b) In the case of a sale on credit terms, payment of the Purchase Price and any Price Additions (collectively, Total Price) must be made to the Seller within thirty (30) days from the date of invoice (Due Date).
(c) If payment of the Total Price is not made as herein provided the Seller may charge interest at the rate of 12% per annum (based on a 365 day year) on the outstanding balance of the Total Price from (and including) the Due Date until the date that the full amount of the Total Price has been paid by the Customer (including the date of payment).
(d) The Customer has no right of set-off with alleged counter-claims. Any assignment of a Customer's alleged counter-claim to a third party without the Seller's prior written consent will be void.
(e) The Customer agrees to reimburse the Seller for any costs and expenses (including legal fees on a full indemnity basis) incurred in connection with the collection of any amounts owed by the Customer to the Seller under these Conditions. Such costs and expenses will constitute a debt due forthwith upon demand by the Seller to the Customer.
(f) If the Customer fails to make any payment on the Due Date or becomes bankrupt or enters into liquidation, voluntary administration or has a receiver or receiver and manager appointed to its property, undertaking or any part thereof the Seller will have the option to withhold or cancel further deliveries, provided that the discretion of the Seller not to exercise such option in respect to one or more deliveries will not affect its right to exercise it in respect of other deliveries.
(a) Unless otherwise stated in the Contract, the Goods will be delivered to and unloaded at the Customer’s premises at the sole cost of the Customer (Delivery). Delivery is deemed to be effected when the Goods are unloaded from the delivery vehicle. If the Customer or his/her representative or agent is unavailable to sign or does not sign the delivery advice, then the delivery driver’s records are conclusive evidence of the time and date of Delivery.
(b) Where the Seller has agreed in writing with the Customer that Delivery is by installments and the Seller fails to Deliver an installment within an agreed time or fails to Deliver at all, the Customer is not entitled to repudiate the contract with regard to any other installments remaining to be delivered.
(c) If the Customer nominates no address for Delivery, Delivery will be to the Customer’s place of business. The choice of carrier and method of transport remains with the Seller, unless transport is paid for by the Customer. All Delivery dates are estimates only.
(d) If the Customer is responsible for any shipment delay, the Seller's written notification to the Customer that the Goods are ready for shipping will constitute Delivery, and all further risk of loss or damage as well as all costs for handling, transportation and storage will be borne by the Customer.
(e) The Seller will not be liable for any damages as a result of any delay or failure in Delivery that is due to any cause beyond the Seller’s reasonable control, including without limitation, any act of God, the Customer's act or failure to act, embargo or other governmental act, regulation or request, fire, flood, storm, earthquake, pandemic, accident, strike, slowdown, war, riot, delay in transportation or inability to obtain necessary labour, materials or manufacturing facilities.
(f) Where Delivery or Customer Delivery has not been effected and the costs to the Seller of supplying the Goods materially increases by any dispute or cause and the parties concerned cannot agree on how such increase will be borne, the Seller may cancel the contract of sale in respect to the supply for Goods without liability in respect of such undelivered Goods.
The Customer accepts the Goods and the Goods are at the Customer’s risk immediately upon leaving the Seller’s premises, whether Delivery of the Goods is by the Seller or by someone other than the Seller or collected by the Customer. If the Customer wishes to insure against loss or damage to the Goods after they have left the Seller’s premises, it is the Customer’s responsibility to do so.
9. ACCEPTANCE OF GOODS
(a) The Customer must inspect the Goods upon Delivery or as soon as practicable after Delivery. The Customer must notify the Seller in writing within two (2) Business Days from the date of Delivery or Customer Delivery that:
(i) the Goods do not conform with the Order.
(ii) If the Customer does not provide the Seller with such written notice, the Customer is deemed to have accepted the Goods.
10. RETENTION OF TITLE
(a) Title in all the Goods and in any other collateral supplied by the Seller is to remain vested in the Seller and is not to pass to the Customer until all monies owing to the Seller by the Customer on any account between the Seller and the Customer in respect of all Orders between the Seller and the Customer and with respect to any invoices together with all collection, repossession and/or legal costs incurred, have been paid in full.
(b) Until the Seller has received payment in full for the Goods:
(i) the Customer holds the Goods as bailee for the Seller;
(ii) the Seller retains an equitable interest in the Goods and any other collateral, whether separate or co-mingled or accessioned, which must be stored in such a manner as to be clearly identifiable as the property of the Seller, until title has passed to the Customer and further, upon re-sale of the Goods and any other collateral by the Customer, the Seller will have the right to trace any proceeds of sale to the extent that they relate to its Goods or other collateral which are incorporated;
(iii) the Customer must safely and securely store the Goods separately from the other goods on the premises of the Customer in such a manner as to show clearly that the Goods are the property of the Seller; and
(iv) if the Customer is unable to prove, to the satisfaction of the Seller that the goods identified as the Seller's Goods have been paid for in full, then those goods will be deemed to relate to unpaid invoices outstanding from time to time and are deemed to be the property of the Seller. The Seller reserves the right to repossess those goods without having to prove that the goods relate to specific unpaid invoices outstanding at the time of repossession.
(c) If payment has not been received, the Customer will transfer to the Seller all of its rights in respect of the sale price of the Goods and other collateral.
(d) The Seller may demand at any time until title has passed to the Customer that the Customer returns the Goods and any other collateral or any part of them to the Seller.
(e) In the event that the Customer defaults in the payment of any monies owing, the Seller and its employees or agents will have the right to enter without notice upon the Customer's premises or any other premises where the Goods are known to be stored to repossess the Goods and for this purpose the Customer will grant reasonable access rights and the Seller, its employees or agents will be entitled to do all things required to secure repossession. The Customer irrevocably grants the Seller the right to enter any premises or property (without notice) and without being in any way liable to the Seller or any other person if the Seller has cause to exercise any of its rights under the PPSA (and the Customer will indemnify the Seller against any such liability).
11. SECURITY INTEREST
(a) Unless otherwise stated, a term contained in these Terms and Conditions that is defined in the Personal Property Securities Act 2009 (Cth) (PPSA)(but not otherwise defined in these Terms and Conditions) has the meaning given to it in the PPSA.
(b) In consideration for the Seller supplying Goods to the Customer under these Terms and Conditions, the Customer:
(i) grants to the Seller a security interest, and to the extent applicable, a purchase money security interest (PMSI) in respect of all Goods supplied by the Seller to the Customer;
(ii) agrees that the security interest and any PMSI granted will continue to apply to any goods coming into existence or proceeds of sale of Goods or goods coming into existence;
(iii) agrees to treat the security interest and any PMSI created under these Terms and Conditions as a continuing and subsisting security interest in the relevant Goods with priority over any registered or unregistered general (or other) security and any unsecured creditor (even if the Goods become fixtures before paid for in full);
(iv) agrees that the security interest and any PMSI has attached to all Goods now or in the future supplied to the Customer by the Seller; and
(v) these Terms and Conditions constitute a security agreement for the purposes of the PPSA with respect to any security interest or PMSI in relation to the Goods or any other collateral in relation thereto.
(c) The Seller reserves the right to register a financing statement under the PPSA in respect of the Goods and to generally register and perfect any security arising pursuant to these Terms of Trade and the supply of Goods to the Customer. The Customer agrees to reimburse the Seller for all costs and/or expenses incurred or payable by the Seller in relation to registering, maintaining or releasing any financing statement or any other document in respect of any security interest under this agreement.
(d) The Customer and the Company agree that to the extent mentioned by Section 115(1) (a) – (r) of the PPSA, they agree to contract out of each of the provisions of the PPSA listed in section 115(1) (a) – (r) (inclusive) and the Customer hereby waives it rights under each of the sections of the PPSA referred to therein. The Customer further waives its right to receive a copy of any financing statement, any financing change statement or any verification statement that is or may be registered, issued or received at any time or which would otherwise be required to be provided by the Seller under the PPSA.
(e) The Customer agrees that, until all monies owing to the Seller are paid in full, it must not sell or grant any other security interest in the Goods or any collateral thereto (which collateral is deemed to include all Goods and the proceeds from the sale of such Goods by the Customer).
12. LIABILITY OF SELLER
(a) The Seller is not subject to any obligations, liabilities, damages or any other claim for compensation howsoever described or howsoever arising including without limitation in consequence of breach of contract, warranty, tort (including negligence and strict liability), representation, with respect to the Goods sold by the Seller, or undertakings, acts or omissions relating thereto; and
(b) Under no circumstances is the Seller to be liable for any incidental or consequential damages, or for any other consequential loss, of any kind, including loss of profits, or expense or other outgoings, arising in connection with these Conditions or with the use or liability to use the Seller's Goods furnished under these Conditions.
(c) To the extent that any provision of legislation of the Commonwealth or any State or Territory may imply warranties or impose obligations on the Seller which cannot be excluded, the Seller’s liability will be limited, at the sole discretion of the Seller to:
(i) the replacement of the Goods or the supply of equivalent Goods; or
(ii) the repair of the Goods.
(d) The Customer must procure its customers including anybody in the chain of manufacturing, supply and distribution including the end customer of the Goods with whom it deals to be bound by limitations of liability of the Seller substantially equivalent to those contained in these Conditions.
13. CONTINUING INDEMNITIES
The indemnities contained in these Conditions are continuing indemnities and survive the expiration or termination of any agreement between the parties relating to the supply of Goods.
14. GOVERNING LAW
These Conditions are governed by the laws of New South Wales, Australia.
The Customer agrees and acknowledges that any contract with the Seller for the purchase of Goods is deemed to have been executed and entered into in New South Wales.
The parties to these Conditions submit to the non-exclusive jurisdiction of the courts of New South Wales and of the Commonwealth of Australia.
If any one or more of the provisions of these Conditions becomes invalid, illegal or unenforceable in any respect by any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions of these Conditions will not be in any way impaired.
16. COMPLETE AGREEMENT
These Conditions constitute the entire agreement between the parties. They supersede any and all prior agreements or understandings, including but not limited to prior representations, statements, conditions or warranties given whether oral or in writing.
These Conditions must not be amended or altered without the prior written consent of the Seller.
17. NON WAIVER
A waiver by the Seller with respect to any breach or default by the Customer will not constitute a continuing waiver of any other breach or default or of any other right or remedy. A failure or delay by the Seller in exercising a right or remedy does not operate as a waiver of that right or remedy.