1.1 This document sets out the Terms and Conditions of Trade (“Terms”) between Clients and Biotech Diagnostics Pty Ltd.
1.1.1 The Biotech Diagnostics (“Biotech”) ABN 23 686 685 194
1.1.2 Clients and any affiliated shelter, clinic or hospital (“Customer”) acquiring goods from Biotech.
2.1 Any instruction received by Biotech from the customer for the supply of goods/ and/or the customer’s acceptance of services and/or goods supplied by Biotech shall constitute acceptance of the terms and condition contained herein.
2.2 Upon acceptance of these terms and conditions by the customer the terms and conditions are irrevocable and can only be rescinded in accordance with the terms and conditions or with the written consent of the Chief Operations Officer at Biotech.
2.3 None of Biotech’s agents or representatives are authorized to make any representations, statements, conditions or agreements not expressed by the management of Biotech in writing nor is Biotech bound by any such unauthorized statements.
2.4 The customer hereby disclaims any right to rescind, cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to them by any agent or sales representative of Biotech and the Customer acknowledges that he/ she buys the Goods relying solely upon their own skill and judgment.
3.1 In their Terms and unless the context otherwise indicates the term “goods” means those goods which the Customer requests Biotech to Supply.
3.2 The Goods, the subject of this contract, shall be those Goods (including any product, stock or other items supplied by Biotech) described in Biotech’s written quotation or, in the absence of written quotation, on Biotech’s delivery slip or invoice. If the description on these documents differs from the description on any order form provided by the customers, the description on the Biotech document shall prevail.
3.3 Specificatons of Goods given in any brochures, letters, price lists, data sheets, or other documents of Biotech or supplied by Biotech are given to identify the Goods generally and do not form part of the description of the Goods.
4.1 Orders may be placed by the Customer by telephone, or in writing by facsimile or letter, or via electronic means such as email or via the website.
4.2 Biotech reserves the right to insist upon written confirmation of any order placed by the customer.
4.3 The customer must order the minimum shipping quantity shown on the price list current at the order date or in a multiple of the quantity. Biotech has the right to supply a quantity equal to the nearest or lower multiple.
4.4 Biotech has no obligation to accept an order for Goods placed by the Customer by one of the methods in clause 4.1 above. Supply of the Goods ordered by the Customer by Biotech constitutes acceptance of the order.
4.5 Biotech shall make every reasonable endeavor to satisfy the Customer’s order in accordance with the Customer’s requirements. The Customer acknowledges that Biotech does not warrant or represent the availability of further or larger quantities of the Goods.
5.1 Biotech will use all reasonable efforts to deliver Goods and accept orders, to the address specified on the delivery slip, on or before any estimates date, but Biotech does not represent or warrant that it will do so.
5.2 Biotech shall under no circumstances be held liable whether for direct, indirect or consequential loss or damage arising by reason of any delay in delivery of the Goods or any failure to deliver the Goods ordered by the Customer for whatever reason
5.3 Biotech will arrange Shipping of the Goods to the customer at $15 for Metropolitan Deliveries and $25 for regional deliveries. Deliveries to Tasmania will be charged at $35. Any additional freight costs arising due to the unavailability of the Customer to accept delivery shall be borne by the customer.
5.4 Biotech may however in its absolute discretion, allow the Customer to arrange transport of the Goods. If the Customer requests for the Goods to be shipped outside of the usual monthly shipment, Biotech may invoice the Customer for additional freight/ shipping costs on actuals.
5.5 On delivery of the Goods, the customer shall check the quantity, quality and description of the Goods delivered against the description on the delivery slip(s) and shall give written notice to Biotech of any alleged deficiency or irregularity in quantity, quality or description within 48 hours from the time of delivery. Should such notice not be given within that time, the Goods delivered shall be deemed to be in accordance with the delivery slip and free from any defect or damage and the customer shall not thereafter make any such claim or take any action in relation to any alleged deficiency or irregularity.
5.6 Delivery of the Goods using any carrier is at the discretion of Biotech.
5.7 Biotech may deliver the Goods by separate installments (in accordance with the agreed delivery schedule). Each separate installment shall be invoiced and paid for in accordance with the provision in this contact of sale.
5.8 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purpose of this agreement.
5.9 The failure of Biotech to deliver shall not entitle either part to treat this contract as repudiated
6.1 Biotech will invoice the Customer for the Goods at the price shown on the price list which is current at the date of the invoice.
6.2 Any special prices will apply to specific Goods only for as long as the goods last or the duration of any promotional period.
6.3 Biotech shall not be bound by any typographical errors that may occur with price advertised in the current price list, invoice, statements or any other document published by Biotech.
6.4 The price shall be increased by the amount of any GST and other taxes and duties which may be applicable.
7.1 Customer may pay invoices by cash on delivery, credit card, cheque or direct transfer to the Biotech bank account (provided on each invoice). Customer has 30 Days from date of Delivery to make their payment.
7.2 Non-receipt of an invoice does not constitute a reason for late payment. It is the Customer’s responsibility to ensure that goods ordered are paid for within the required time.
7.3 Should the Customer fail to pay in full the amount owing to Biotech within the period provided for in clause 7.1, Biotech may without prejudice to its other rights either:
a. Require payment in advance for any further deliveries, whether of existing orders or any orders places by the Customer in the future.
b. Terminate any contract forthwith by written notice to the Customer
7.4 Biotech may at its absolute discretion enter into a payment arrangement with the customer for any overdue amounts. The arrangement must be in writing, signed by the customer and authorized no other than Chief Operations Officer of Biotech and must not exceed a period of three months. Biotech reserves the right to vary this limit at its absolute discretion.
7.5 Any payment to Biotech by the Customer which is not specifically allocated by the Customer will credited first against interest charged and then against any amounts owing to Goods supplied with oldest balances being discharged first.
7.6 Interest on overdue invoices shall accrue after the 30 days from the date when payment becomes due daily until the date of payment at a rate of 2% per calendar month and shall accrue at such a rate after as well as before any judgment.
7.7 If the Customer defaults in payment of any invoice when due, the customer shall indemnify Biotech from and against all Biotech’s costs and disbursements including costs of a solicitor and in addition all external collection agency costs.
7.8 Without prejudice to any other remedies Biotech may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Biotech may suspend or terminate the supply of Goods to the customer and any of its other obligations under the terms and conditions. Biotech will not be liable to the Customer for any loss or damage the customer suffers because Biotech exercised its rights under this clause.
7.9 In the event that:
7.9.1 Any monies payable to Biotech becomes overdue, or in Biotech’s opinion the customer will be unable to meet its payment as they fall due; or
7.9.2 The Customer becomes insolvent, convenes a meeting with its creditor or proposes to enter into an arrangement with creditors, or makes an assignment for the benefit of its creditor; or
7.9.3 A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer then: (a) Biotech shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and (b) All amounts owing to Biotech shall, whether or not due for payment, immediately become payable.
8.1 Ownership of the Goods shall remain with Biotech and Biotech reserves the right to dispose of the Goods until such time as payment in full is made for all amounts owing by the Customer to Biotech so that the Customer’s total indebtedness to Biotech under these terms is discharged.
8.2 If the Customer defaults under these terms Biotech may without prejudice to any of it’s other rights and remedies require the return at the expense of the Customer of all goods not paid for and, in default of compliance, Biotech is hereby irrevocably authorized by the Customer to enter its premises or premises controlled by the Customer and use reasonable force to take possession of the Goods without liability for the torts of trespass, negligence or payment of any compensation to the Customer whatsoever.
8.3 The Customer acknowledges that until its total indebtedness to Biotech under these terms and conditions of sale is discharged, it holds the Goods as bailee of Biotech and that a fiduciary relationship exists between the Customer and Biotech.
8.4 The customer may pay Biotech the proceeds of sale of any Goods for which Biotech has not yet received payment, and the Customer must pay those proceeds of sale into a separate bank account and hold them on trust for Biotech until they are paid to Biotech.
8.5 The risk in the Goods purchased will, unless otherwise agreed by Biotech in writing, pass to the Customer upon delivery to the Customer or his agent or to a carrier commissioned by the Customer.
8.6 If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, Biotech is entitled, without prejudice to any of its other right or remedies under these terms and conditions of trade (including the right to receive payment of the balance of the Price of the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by Biotech is sufficient evidence of Biotech’s rights to receive the insurance proceeds without the need for any person dealing with Biotech to make further enquires.
8.7 It is further agreed that:
8.7.1 Receipt by Biotech of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared or recognized and until then Biotech’s ownership of rights in respect of the Goods shall continue.
8.7.2 The customer shall not change the goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Biotech.
8.7.3 Biotech can issue proceedings to recover the Price of the goods sold notwithstanding the ownership of the Goods may not have passed the Customer.
9.1 All Goods are sold on the basis of “no return for credit” unless:
9.1.1 Subject to clause 8.5, the goods are received in a damaged state;
9.1.2 The goods are supplied in the incorrect quantity;
9.1.3 Incorrect Goods are received by the Customer;
9.1.4 The Goods are faulty (subject to third party independent verification)
9.2 Other specific circumstances for the return of Goods for credit may be approved by Biotech in its absolute discretion.
9.3 Claims for credit must be made within five (5) days of receipt of the Goods and a copy of the invoice from which the Goods were supplied must be presented, failing which any such claims are deemed to be waived.
9.4 Goods that have passed their expiry date will not be accepted for any credit.
9.5 Any return of Goods by the customer must be made to Biotech using the procedures determined by Biotech. The customer will be advised of such procedures by Biotech when Biotech agrees to the return of the Goods for credit.
9.6 All Goods that carry a warranty or guarantee of the manufacturer shall be credited or exchanged only when so agreed by the manufacturer.
9.7 Biotech will not be liable for Goods which have not been stored or used in a proper manner.
9.8 The Goods must be returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
10.1 For Goods not manufactured by Biotech the warranty shall be the current warranty provided by the manufacturer of the Goods. Biotech shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturer’s warranty.
10.2 Biotech does not warrant any defect or damage which may be caused or partly caused by or arise through: (a) Failure on the part of the Customer to properly maintain any Goods; or (b) Failure on the part of the Customer to follow an instructions or guidelines provided by Biotech ; or (c) Any use of any Goods otherwise than for any application specified on a quote or order form; or (d) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonable prudent operator or user; or (e) Fair wear and tear, any accident or act of God.
10.3 The warranty shall cease and Biotech shall thereafter in no circumstance be liable under the terms of the warranty if the workmanship of the goods is altered, altered or overhauled without Biotech’s consent.
10.4 In respect of all claims Biotech shall not be liable to compensate the Customer for any delay in either replacing or repairing the Goods or in properly assessing the Customer’s claim
11.1 All Goods sold or supplied under these terms are packed and labeled in accordance with Australian regulatory requirements.
11.2 Customers do not have the ability to export any goods distributed by Biotech to the customer.
11.3 Goods delivered to the customer can not leave Australia as per the geographical rights of distribution assigned by the manufacturer.
12.1 All quotations, invoices, statements or other documents issued by Biotech to the Customer are in Australian currency unless otherwise expressly stated.
12.2 All payments by the Customer to Biotech must be made in Australian currency unless otherwise specifically agreed.
13.1 These Terms shall be construed and the rights and obligations of the Customer and Biotech determine according to the law in force in the State of the Biotech office at which the order was placed and the Customer and Biotech submit to the non-exclusive jurisdiction of the Courts of the State.
13.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1874 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
14.1 Any clause headings contained herein are for convenience only and shall not affect the construction of these Terms.
14.2 If any of the provisions of these Terms are for any reason held by a court of competent jurisdiction to be unlawful or invalid under any application statute or rule of law, then that provision or part of a provision shall be deemed to be Biotech Diagnostics severable and omitted from these Terms and the validity and enforceability of the remainder of these Terms shall be in no way affected.
15.1 Subject to any express contrary agreement in writing signed by Biotech, these Terms shall, so far as is applicable and making all changes necessary having regard to the context be incorporated in any contract arising from future orders placed by the Customer with Biotech.
16.1 No variation, modification or alteration of any of these Terms shall be of any effect unless agreed to in writing and signed by Biotech.
16.2 Subject to any such written variation, modification or alteration, these are the whole of the Terms applicable to all contrary which may appear on any documents issued by the Customer.
16.3 Subject to the provisions of the Trade Practices Act, Biotech and the Customer expressly agree that all conditions and warranties implied or otherwise incorporated in contracts by statute, common law, equity, custom or usage or otherwise shall not apply and, to the maximum extent permitted by law, are excluded.
17.1 Paragraph 16.3 does not apply where the Customer is a consumer within the meaning of the Trade Practices Act 1874. Without derogating from any other term or condition in the agreement.
17.1.1 The Customer shall inspect the Goods immediately upon their delivery in accordance with clause 5.5. The Goods are deemed to be accepted by the Customer unless the Customer gives notice to Biotech of any alleged defects in the goods, unfitness for the particular purpose for which they were supplied (if any), unmerchantable quality, or failure to meet specifications within 48 hours of delivery of goods.
17.1.2 In default of such notice, the goods shall be deemed to be suitable for the purpose for which they were supplied, of merchantable quality, in accordance with specifications, and otherwise free of any defect and Biotech shall not recognize any claim in any of these regards
17.2 The liability of Biotech, if any, for faulty workmanship, unsuitability, unmerchantable quality, failure to meet specifications, loss or damage in transit or whatever shall (expect in the case where the Goods are of a kind that might ordinarily be acquired for personal, domestic or household use or consumption) be limited to:
17.2.1 Replacement of the Goods or supply of equivalent Goods;
17.2.2 Repair of the Goods;
17.3 Without derogating from the generality of the foregoing, Biotech shall not be liable for any consequential loss. The customer shall notify Biotech immediately upon the Customer, its employees or agents becoming aware of any alleged fault or defect in the Goods, unsuitability or unfitness for the proposed use of the Goods, failure to comply with or to meet specifications, loss or damage in transit, or any other alleged cause of action in relation to the Goods arising out of the delivery or failure to deliver the Goods, and shall bring any action and/or commence any proceedings in relation thereto within three (3) months of the date of delivery of the Goods or the date that the Goods ought to have been delivered and not thereafter. Biotech Diagnostics
18.1 Notwithstanding anything to the contrary contained herein or other rights which Biotech may have howsoever;
18.1.1 Where the Customer and/ or the Guarantor (if any) is the owner of the land, reality or other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/ or several interest in the said land, realty or any other asset to Biotech or Biotech’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/ or the Guarantor acknowledge and agree that Biotech (or Biotech’s nominee) shall be entitled to lodge, where appropriate, a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
18.1.2 Should Biotech elect to proceed in any manner in accordance with this clause and/ or its sub-clauses, the Customer and/or Guarantor shall indemnify Biotech from and against all Biotech’s costs and disbursements, including legal costs on a solicitor and own client basis.
19.1 Biotech may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. Biotech shall not be liable for any loss or damage whatsoever arising from such cancellations.
20.1 The Customer and/ or the Guarantor(s) agree for Biotech to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to any credit provided by Biotech .
20.2 The Customer and/or the Guarantor/s agree that Biotech may exchange information about Customer and Guarantor/s with those credit providers named in the application for Credit Account or named in a consumer credit report issued by a reporting agency for the following purposes:
20.2.1 To assess an application by Customer
20.2.2 To notify other credit providers of a default by the Customer
20.2.3 To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers
20.2.4 To assess the credit worthiness of customer and or Guarantor/s
20.3 The Customer consents to Biotech being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1) Privacy Act 1888).
20.4 The Customer agrees that Personal Data provided may be used and retained by Biotech for the following purposes and for other purposes as shall be agreed between the Customer and Biotech or required by law from time to time:
20.4.1 Provision of Service & Goods;
20.4.2 Marketing of Services and/or Goods by Biotech, its agents or distributors in relation to the Services and Goods;
20.4.3 Analyzing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Service/ Goods;
20.4.4 Enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and Goods
20.5 Biotech may give information about the Customer to a credit reporting agency for the following purposes:
20.5.1 To obtain a consumer credit report about the Customer; and/or
20.5.2 Allow the credit reporting agency to create or maintain a credit information file containing information about the Customer
21.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of Biotech and the Customer acknowledges that he/she buys the goods relying solely upon his/her own skill and judgment and that Biotech shall not be bound by nor responsible for any terms, condition, warranty or representation other than the warranty given by the Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequential Customer.
22.1 All Goods supplied by Biotech are subject to the laws of the relevant state and Biotech takes no responsibility for changes in the law which affect the Goods supplied
22.2 Biotech shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of the breach by Biotech of these terms and conditions
22.3 The Customer shall not set off against the Price amounts due from Biotech
22.4 Biotech may license or sub-contract all or any part of these rights and obligations without the Customers consent
22.5 Neither party shall be liable for any default due to any act of God, war, strike, lock out, industrial action, fore, flood, drought, storm or other event beyond the reasonable control of either party.