AUSTRALIAN TERMS AND CONDITIONS OF SALE
All goods sold by Phebra Pty Ltd ABN 99 059 357 890 (the Company) are sold to customers subject to the following terms and conditions of sale.
(i) A customer may place orders for goods by one of these means: email, fax, mail or online.
(ii) The price charged for goods to be supplied under customer orders will be the price for those goods current at the date of order, according to the Company’s list price. The price may be varied but only by agreement made before or at the time when the order is placed. Any enquiry concerning the price of goods in an order should be made by the customer at the time the order is placed. The Company’s list price for goods is subject to change without notice.
(iii) Orders under $400 for healthcare providers and under $1,200 for licenced wholesalers (exclusive of GST) will incur a delivery and handling charge, with terms as per order.
(iv) The Company reserves the right to refuse orders, in whole or in part, without giving any reason.
(v) The Company will signify its acceptance of an order by raising an invoice to the customer.
(i) Any timeframes quoted by the Company for delivery of an order are estimates only. The Company will use its reasonable efforts to supply the goods in the quantities and timeframes specified in each order. The Company will not be liable for any loss suffered by a customer arising out of any delay or failure to supply the goods in the requested quantities and timeframes.
(ii) The goods will be at the Company’s risk until delivery, and from that time, the goods will be at the customer’s risk. This transfer of risk will apply even if the delivery address is unattended.
(iii) The place of delivery will be at the address specified in the customer order, or if not specified, at the address to which previous orders were delivered.
(iv) The delivery docket manifest signed by the cartage contractor or the driver engaged to deliver the goods shall be conclusive evidence of due delivery of the goods.
(v) If requested to enter a property to carry out a delivery, the Company accepts no responsibility for any damage incurred to the property and goods lying on that property resulting from that entry.
(vi) Where trucks are held on a site for more than 1 hour awaiting delivery, additional costs incurred as a result of delays on site or extra labour costs to unload will be charged to the customer.
(vii) A request for deferred delivery of goods already set aside for delivery to the customer may incur a storage charge of 0.5% of invoice value per week.
(viii) The customer agrees to accept delivery of the goods at any time between 9:00am to 5:00pm on a business day. If the goods cannot be delivered during normal business hours to a customer due to the inability of the customer to receive goods, then the customer shall be liable to pay the additional costs of delivery outside of normal business hours.
(ix) This policy applies to all returns of goods:
(a) The customer must send to the Company written notification containing particulars of the batch and the goods, reason(s) for return, a chain of custody and a report on storage conditions.
(b) The Company must approve of the return. If the return is approved, the Company will issue a return authority.
(c) The customer must give the Company an opportunity to have the goods inspected by a Company representative prior to approval of the return.
(d) All goods for return must be marked with a return authority number provided by the Company.
(e) Returns arriving at the warehouse without a return authority number will not be accepted and may attract a restocking fee of 20% of the invoice value.
(f) The acceptance of any returned goods does not imply any acceptance by the Company of a customer’s claim of refund by reason that the goods are not fit for purpose.
(g) In the event of damage to the goods in transit on delivery to the customer (prior to unloading), then the Company will replace the damaged goods. The customer must send to the Company a written request for replacement together with the delivery docket and evidence that the damage was endorsed at the time of receipt of goods.
(x) This policy applies to all refund claims for goods:
(a) In the event of damage to the goods after delivery to the customer, the customer will not be entitled to claim the cost of replacement or for the goods to be replaced.
(b) In the event the goods are not fit for purpose, and the customer can provide particulars of the batch and the goods, reasons for return, a satisfactory chain of custody and a satisfactory report on the storage of the goods, then the Company will provide a credit for the cost of the goods, and will collect the goods from the customer’s premises at its own cost.
(c) In the event that the goods are not fit for purpose because of the way that the customer has stored the goods, or because the customer has overstocked the goods, or because the customer has allowed the goods to become short-dated or expired, then the customer will not be entitled to claim the cost of replacement or for the goods to be replaced.
3. Cancellations, Variations and Suspension of Orders
Once an order has been accepted by the Company, it can only be cancelled, varied or suspended (in whole or in part) upon the following terms and conditions.
(i) No cancellation, variation or suspension will be effective or recognised unless and only to the extent that the Company agrees in writing to such cancellation, variation or suspension. Also, credits will not be issued for short-dated or expired goods except by prior arrangement.
(ii) The customer agrees to accept delivery of all goods set aside by the Company for delivery in respect of such order and all goods in transit to, and subsequently delivered to the customer.
(iii) The customer agrees to pay all costs, expenses and liabilities incurred by the Company in consequence of the cancellation, variation or suspension of the order by the customer.
4. Payment and Default
(i) For sales designated by the Company as ‘pre-payment’ sales, payment must be received by the Company prior to shipment of goods.
(ii) For sales to customers with a payment account with the Company, then the payment is due thirty days from the date of invoice, unless stated otherwise on the invoice.
(iii) Payments are to be made by Electronic Funds Transfer (EFT) into the designated bank account of the Company, as cleared funds. No other form of payment is permitted.
(iv) Payment defaults will attract interest at the Company’s bank interest rate plus 3% p.a. after the due date, and will be actionable at law after 45 days.
(v) If the customer defaults in making payment within the periods described, then the Company may at its option:
(a) Demand payment of all monies due by the customer to the Company, whether or not they are then due and owing, including an interest charge for late payment;
(b) Suspend or cancel orders and deliveries of goods; or
(c) Suspend or cancel customer credit accounts.
(vi) The actions by the Company described in paragraph (v) may also be taken in the event of these customer defaults – the appointment of and proceedings for the appointment of an administrator, receiver, provisional liquidator, liquidator or other official manager of the customer’s company or any assets of the customer.
5. Reservation of Title
(i) Property and title in any goods supplied by the Company shall remain in the Company as legal and equitable owner until full payment for the goods in question is received by the Company.
(ii) Risk of loss in the goods shall pass to the customer from delivery to the customer or its agent.
(iii) Until payment in full to the Company for goods delivered to the customer:
(a) The customer must separately store those goods in such a way that makes it clear that they are the property of the Company;
(b) The customer hereby irrevocably authorises the Company, without the necessity of giving any note, to enter into premises where the unpaid goods are stored and to search for and repossess the goods, in the event of a customer default. The Company may dispose of or retain such goods as it sees fit without being required to give notice or account to the customer. If any of the goods are wholly or partially attached to or incorporated in any other product, the Company may, when practical, disconnect them in any way necessary to remove the goods; and
(c) All costs and expenses incurred by the Company as a result of taking action in accordance with clause 5(iii)(b), together with transportation and storage charges, must be paid by the customer to the Company on demand.
(iv) The customer releases and indemnifies the Company and its servants or agents from all claims for loss or damage caused by the Company or its servants or agents in enforcing or attempting to enforce its rights under this clause.
(v) When the Company retakes possession of goods pursuant to its rights hereunder the contract for sale between the Company and the customer’s account is terminated, the Company has the right to resell its goods.
(vi) Until title in the goods passes to the customer, the customer acknowledges and agrees that:
(a) Goods supplied and not resold are held by it as bailee for the Company;
(b) The customer may resell the goods, provided that the customer shall have no right to bind the Company to any liability to any third party;
(c) Any resale of the goods may only be made on condition that the purchaser is expressly made aware of the Company’s rights under this clause 5;
(d) If the goods have been resold by the customer, customer will hold that portion of the monies received by the customer in payment in part or in full for the goods supplied as does not exceed the outstanding monies on trust for the Company immediately when they are receivable or received;
(e) When the monies held in trust for the Company under 5(vi)(d) are received, they must either be paid to the Company immediately or held in a separate bank account as trustee for the Company and they must not be used by the customer in any other way whatsoever;
(f) The authority conferred on the customer by clause 5(vi)(b) may be revoked by written notice from the Company at any time if the Company deems the credit of the customer to be unsatisfactory, or if the customer is in default of in the performance of its obligations under any contract, these terms and conditions, or any other agreement between the Company and the customer.
(vii) The customer acknowledges that the Company’s retention of title in clause 5(i) creates a purchase money security interest in the goods, any items in which the goods are used as a component, and all proceeds from their respective resale by the customer. The security interest is granted to secure the customer’s proper performance of these terms and conditions and comes into effect when the customer takes possession of the goods.
(viii) The parties agree that pursuant to sections 115(1) and 115(7) of the Personal Property Securities Act 2009 (Cth) as amended from time to time (“PPSA”), to the extent permitted by law, the following sections of the PPSA will not apply to these terms and conditions or to any related agreement: 95, 96, 117, 118, 121(4), 125, 127, 129, 130, 132, 134(2), 135, 136(3), 136(4), 136(5), 137, 142 and 143.
(ix) The parties agree that under section 14(6) of the PPSA, the Company may apply any payments received by the Company from the customer under these terms and conditions or any related agreement in such order as the Company determines in its absolute discretion.
(x) Customer consents and undertakes to:
(a) Promptly do all things, execute all documents and/or provide any information which the Company may reasonably require in connection with the registration, perfection and enforcement of this purchase money security interest;
(b) The security interest created by these terms and conditions or any other related document or agreement may be registered with the relevant authority or public register; and
(c) To the extent permitted by law, the Company is not obliged to provide the customer or any other related party with any notice or documents under the PPSA. Customer waives its right to be provided with verification statements under section 157 of the PPSA.
(xi) Customer waives its rights to receive a copy of any verification statements under the PPSA and agrees that as between the Company and the customer, the customer will have no rights under sections 114(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the PPSA. Where the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
(i) The Company warrants that all goods supplied by it under these terms will comply with the Company’s specifications for those goods, or if no specifications exist, will be free of defects in material and manufacture, until the end of the registered shelf life of the goods, or if there is no registered shelf life, for a period of 12 months from the date of delivery to the customer (“Warranty Period”).
(ii) If goods supplied by the Company do not comply with the warranty in clause 6(i) and the customer notifies the Company in writing during the Warranty Period within 2 weeks of the defect coming to its notice, the Company will at its discretion either exchange the goods or refund the price paid for the goods.
(iii) The warranty in clause 6(i) does not apply
(a) If the defect is due to the goods being used for purposes other than which it was intended, or which do not fall within the scope of the regulatory approval;
(b) If the defect is a result of any acts or omissions by any person other than the Company or its agents, or any external cause;
(c) If the goods have been modified without obtaining the Company’s prior written approval; or
(d) If the goods have not been stored or transported in accordance with the Company’s recommendations.
(iv) The warranty in clause 6(i) is personal to the customer and cannot be assigned without the Company’s approval.
(v) Except as expressly set out in these terms and subject to any terms, warranties or conditions that may not be excluded by law, all conditions, warranties, terms and obligations expressed or implied by law or otherwise relating to goods supplied or to be supplied or to the Company’s obligations under these terms, are excluded, and the rights set out in this clause 6 are the sole and exclusive remedies available to the customer with respect to defective goods.
7. Limitation of Liability
(i) The Company shall not be liable for delay in delivery arising from any cause, including negligence on its part. The customer shall not be relieved from any obligation to accept or pay for goods by reason of delay in delivery or despatch. In no event shall the Company be responsible for any loss of profits, penalties, expenditure, or damages incurred by the customer arising out of any delay in delivery.
(ii) No claim shall lie by the customer for failure to deliver, short delivery, supply of incorrect goods, defective workmanship or pricing errors unless made in writing within 14 days from delivery or in case of failure to deliver, within 7 days of the first date on which the Company failed to deliver the goods subject to claim.
(iii) These limitations of liability will apply:
(a) Any losses or damage arising directly, indirectly or in any way consequentially from the sale or supply of goods by the Company or from the breach of a contract of sale or supply of goods or a contract to sell or supply goods by the Company to the customer (including any claim arising through negligence of the Company) shall be limited to the invoice price of the goods or at the Company’s option the replacement of the goods.
(b) The Company is not responsible to the customer or a third party for any loss or damage which may be caused to third parties as a result of any supply of goods.
(c) The customer will indemnify the Company for any claims whatsoever and howsoever made by a third party against the Company as a result of any supply of the goods by the customer.
8. Pharmacovigilance and Recalls
(i) Customer agrees to provide the Company with written reports of all Adverse Events and complaints relating to the goods that come to the customer’s attention via email firstname.lastname@example.org or phone 1800 720 020 within 1 business day of becoming aware of such events or complaints. “Adverse Event” means any untoward medical occurrence in a person administered a good manufactured or supplied by the Company, which does not necessarily have to have a causal relationship with administration of the good.
(ii) Unless otherwise required by law or by the Therapeutic Goods Administration (TGA), the Company shall be solely responsible for determining if a good should be recalled or removed from sale. In the event of a recall, the customer shall take the following actions as directed by the Company:
(a) Remove affected goods from offer or sale to third parties;
(b) Recall sold goods that may be affected;
(c) Comply with all laws, regulations and notice requirements in relation to recalls of goods; and
(d) Comply with any other directions and corrective action required by the Company in relation to the recall, including dissemination of information approved by the Company, and if relevant, by the TGA.
(ii) The Company may collect and use your personal information for the following purposes:
(a) To process and administer your application to be a customer, including assessing your credit worthiness;
(b) To provide you with the goods you have requested and further relevant information related to the goods; and
(c) To administer any transactions between the Company and the customer under these terms or any other contract.
(iv) The customer authorises the Company to disclose customer’s personal information to third party contractors and service providers which assist the Company to supply the goods or otherwise fulfil these terms.
(i) If a customer becomes insolvent, is unable to pay its debts as they fall due or otherwise takes or is involved in any action, steps or legal proceedings for the winding up, dissolution, liquidation, or reorganisation, other than on terms approved by the Company, or if the Company acting reasonably doubts the credit of the customer, the Company may by notice to the customer and without prejudice to any other rights it may have:
(a) Suspend or cancel a contract or require payment before or on delivery of the goods;
(b) Cancel any undelivered or uncompleted order for goods; and
(c) Retain any monies paid by the customer under these terms and apply such monies against any loss or damage incurred by the Company in relation to the customer’s default.
(ii) 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, being any circumstances beyond the reasonable control of a party which result in the party being unable to observe or perform on time an obligation under these terms.
These terms and conditions shall prevail notwithstanding any statement or representation made verbally, by letter or in any document, terms and conditions unless it is in writing signed by the customer or the Company as the case may be, or both, except only for such terms as are implied by or under law and which cannot be excluded and which shall prevail to the extent of inconsistency with these terms and conditions.