PAUL HARTMANN PTY LIMITED
GENERAL TERMS AND CONDITIONS
In these conditions “Hartmann” means Paul Hartmann Pty Limited or any related corporation or legal entity; “customer” means the person, firm, corporation, government or semi-government authority purchasing goods and/or services from Hartmann and “conditions” means these terms and conditions. Goods means such products, including but not limited to the supply of medical, pharmaceutical and other goods and services, as Hartmann may at its discretion agree.
1.1 These terms and conditions shall apply to the supply of medical, pharmaceutical and other goods and services by Hartmann to the customer.
1.2 Hartmann is not bound by any terms or conditions contained in any purchase order, purchase form or other similar document of the customer delivered to Hartmann with respect to the purchase of or order for goods, services or otherwise which are at variance with, in derogation from or additional to these general terms and conditions. The customer is bound by these conditions notwithstanding anything to the contrary in any purchase order, purchase form or other similar document delivered by the customer to Hartmann.
2. THE CONTRACT
2.1 The matters referred to in these terms and conditions constitute a contract between Hartmann and the customer. These terms and conditions shall prevail over any other terms and conditions that may contain terms and conditions that may be inconsistent or contrary to those contained herein.
2.2 These terms and conditions shall apply to the exclusion of all other agreements and prior representations, unless subsequently evidenced in writing by Hartmann and the customer, and, together with each invoice and any supplementary agreement or other agreed document that references or is ancillary to these terms and conditions, shall be the whole of the contract between Hartmann and the customer.
2.3 Hartmann in its reasonable discretion reserves the right to cease supply, discount or suspend the supply of goods and/or services to any customer at any time.
2.4 No agent or representative of Hartmann is authorised to make any representations, warranties, conditions or agreements not expressly confirmed by Hartmann in writing and Hartmann is not bound in any way by such unauthorised statements nor can such statements be taken to form part of these terms and conditions.
3. DESCRIPTION OF GOODS
The description of goods and/or services as stipulated on invoices or order forms is provided by way of identification only and the use of that description shall not constitute a description under any contract of sale. Any description of any goods in any brochure, document or other sales literature used by Hartmann shall not form part of any agreement between Hartmann and the customer.
4.1 Subject to clause 4.2, the price for goods and services shall be as quoted in writing by Hartmann. If a price is not quoted then it shall be in accordance with Hartmann’s current price list. Verbal quotations are subject to written confirmation.
4.2 Hartmann reserves the right on 30 days notice to alter the price of goods and/or services whether or not a deposit or part payment has been received by Hartmann and to invoice the customer for any subsequent extra amount payablewhere the costs of the goods to Hartmann has altered due to circumstances beyond its control including but without limiting the generality of the foregoing any variation in Hartmann’s exchange rates, GST or other taxes, levies, imposts, duties, premiums, fees or charges however designed and to correct errors and omissions.
5.1 Unless otherwise agreed in writing by Hartmann, payment is to be made to Hartmann for goods and services within thirty (30) days from the date of invoice.
5.2 If the customer fails to comply with the terms of payment in clause 5.1, then the customer agrees that Hartmann is:
(a) entitled to impose a late premium charge amounting to two (2) per centum per month on all undisputed monies and charges owing by the customer from time to time and the customer will be liable for all costs including GST relating to any legal action taken by Hartmann to recover monies due from the customer; and
(b) hereby irrevocably authorised by the customer to enter the customer’s premises (or any premises under the control of the customer or as agent of the customer in which the goods are stored at such premises). for the purposes of taking possession of any goods supplied by Hartmann but not paid for, if Hartmann has reasonable grounds to expect that Hartmann may find any part of the goods there and the customer authorises Hartmann by its employees and agents to take reasonable actions to obtain such possession. This clause 5.2(b) applies even if Hartmann holds some negotiable instrument or security for the unpaid amount.
5.3 If Hartmann does take possession of the goods pursuant to clause 5.2(b) and is unable to resell the goods at the same price (or more) as was invoiced to the customer by Hartmann, then Hartmann shall be entitled to make such claim or demand or institute, if necessary an action to recover any loss or damage sustained by Hartmann due to Hartmann not being able to obtain the invoiced price plus the added expenses incurred by Hartmann as a result of non-payment by the customer.
5.4 In the event of partial delivery of the goods and/or services, invoices may be issued by Hartmann and will be payable by the customer in respect of such partial delivery.
5.5 No discount shall be allowed except where otherwise agreed by Hartmann in writing.
6. APPLICATION FOR A CREDIT ACCOUNT
6.1 The customer agrees that for the purpose of processing its application for commercial trade credit account, Hartmann may request and receive from a credit reporting agency a credit report containing personal financial information about the customer (Privacy Act, 1988).
6.2 The customer agrees that Hartmann may give to and seek from other credit providers named in this credit application and any providers that may be named in a credit report issued by a credit reporting agency information about their credit arrangements. The customer understands that this information may include any information about their credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive under the Privacy Act, 1988.
6.3 Where a customer opens a credit account with Hartmann the customer may be required to nominate referees or guarantors (that shall be acceptable to Hartmann) prior to credit being approved by Hartmann.
6.4 Hartmann reserves the right to withdraw at any time any credit facilities extended to the customer where payment is not received or where such other acts or omissions of the customer are objectionable to Hartmann.
7.1 Unless Hartmann otherwise agrees in writing, GST, delivery, carriage insurance, handling, storage and packaging and any other expenses relating to the goods shall be charged to and paid by the customer.
7.2 In the absence of specific instruction from the customer, Hartmann will select the carrier and make such agreement with the carrier on behalf of the customer as Hartmann in its absolute discretion deems appropriate.
7.3 Hartmann will make all reasonable efforts to have the goods delivered to the customer on the date agreed between the parties, but time is not of the essence of this contract and Hartmann will not, in any event be liable for any loss or damage directly or indirectly sustained from any delay in delivery or failure to give notice of any such delay.
7.4 Hartmann reserves the right to deliver the goods by instalments at its absolute discretion and in such circumstances the customer shall accept delivery of such goods by instalments.
7.5 Where in order to deliver or collect goods, Hartmann or its carrier enters upon the customer’s premises the customer shall provide full and safe access to Hartmann or its carrier and shall be liable for and indemnify Hartmann and its carrier against the cost of all loss, damage to property and injury to persons, occurring directly or indirectly as a result of the failure by the customer to ensure the said full and safe access.
7.6 The customer shall be responsible for providing adequate labour and/or material handling equipment for the loading and unloading of goods at its premises.
7.7 Where Hartmann agrees to collect goods from the customer’s premises the customer shall ensure that the goods are all available for collection at an easily accessible central point and that they are ready for loading at the time Hartmann arrives to collect them.
7.8 Claims by the customer for short, damaged or incorrect deliveries must be made within seven (7) days from the date of invoice.
7.9 A minimum handling fee is applicable for all orders placed under or equal to $250.00 unless otherwise stated. The minimum handling fee surcharge that will be applied is $15.00 for Metro and $25.00 for country or regional areas.
8. RETURN OF GOODS
8.1 Returned goods must be accompanied by an advice note stating the original invoice number(s) relating to the goods and the nature of any claimed defect, together with such further information as Hartmann may require.
8.2 Where the customer returns goods, Hartmann may refuse to replace or refund the purchase price of the goods and return them to the customer at the customer’s cost.
8.3 Where goods are incorrectly ordered by the customer, supplied and subsequently returned with the consent of Hartmann, a restocking fee of ten (10) percent of the purchase price of the goods shall be paid together with any delivery fee and GST incurred by Hartmann as a result thereof within thirty (30) days from the date of invoice.
8.4 If Hartmann is of the opinion that goods when returned are otherwise than in the same condition as when they were delivered to the carrier or directly to the customer a charge equal to the cost necessary to restore the goods to their original condition shall be payable by the customer upon demand by Hartmann.
8.5 If goods are returned to Hartmann which Hartmann is unable to resell to a third party or resell for the same amount as was invoiced to the customer by Hartmann, then Hartmann may charge the customer an amount equal to the loss incurred as a result of the customer returning the goods.
8.6 No return of goods will be accepted or a credit note issued by Hartmann, for any goods and/or services specifically acquired or custom made for the customer.
9. OWNERSHIP AND RISK
9.1 Notwithstanding any credit granted to or anything contained in these terms and conditions to the customer, Hartmann will retain the full legal and beneficial ownership and title in and to all the goods delivered to the customer by Hartmann until the customer has paid to Hartmann the full amount due on all outstanding invoice(s) to Hartmann. Until then, the customer will;
(a) hold and sell the goods as trustee, fiduciary agent and bailee for Hartmann;
(b) store the goods separately and with the interest of Hartmann as owner clearly marked on the goods and the area in which they are stored; and
(c) not charge, mortgage or encumber the goods.
9.2 The customer will ensure that the goods are kept in good and serviceable condition and secure the goods from risk, damage and theft; and keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the customer.
9.3 Any proceeds received by the customer from the resale of the goods shall be held by the customer as trustee for Hartmann to the extent of the unpaid invoiced price of those goods and the proceeds of the sale shall be forwarded to Hartmann in full as soon as is reasonably practicable after receipt by the customer. Where the proceeds of sale are less than the amount owing by the customer to Hartmann, such proceeds shall be applied in practical satisfaction to the invoiced price or amount outstanding until all monies owing to Hartmann for all goods and services supplied by Hartmann to the customer have been paid for in full by the customer to Hartmann.
9.4 After the goods leave Hartmann’s premises they shall be at the risk of the customer and any damage to the goods shall be at the expense of the customer.
9.5 The customer acknowledges that by virtue of clause 9.1 and 9.3 (above), Hartmann has a security interest in the goods for the purposes of the Personal Property Securities Act 2009 (Cth) (PPS Act) and to the extent applicable the PPS Act applies.
9.6 The customer acknowledges that Hartmann may do anything reasonably necessary, including but not limited to registering any security interest which Hartmann has over the goods on the Personal Property Security Register established under section 147 of the PPS Act in order to perfect the security interest and comply with the requirement of the PPS Act.
9.7 The customer agrees to do all things reasonably necessary to assist Hartmann to undertake the matters set out in 9.6 (above).
9.8 The customer and Hartmann agree that, pursuant to section 115 of the PPS Act, the following provisions do not apply in relation to a security interest in the goods to the extent, if any, mentioned (words in this provision have the same meaning as in the PPS Act):
(a) section 95 (notice of removal of accession), to the extent that it requires the secured party to give a notice to the grantor;
(b) subsection 121(4) (enforcement of liquid assets–notice to grantor);
(c) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor and other secured parties before disposal;
(d) paragraph 132(3)(d) (contents of statement of account after disposal); and
(e) subsection 132(4) (statement of account if no disposal).
9.9 The customer irrevocably and unconditionally waives its right to receive any notice of any verification statement in respect of any financing statement or financing change statement relating to these conditions.
9.10 Where the context permits, terms used in this clause 9 have the meanings given to them in the PPS Act.
10. WARRANTIES, EXTENT OF LIABILITY AND INDEMNITY
10.1 Hartmann warrants that if defects appear in goods under proper and normal use, it will, at its option, replace the goods or refund the purchase price. This warranty is subject to the customer making a claim in writing to Hartmann within 3 months of the date of the invoice of the order.
10.2 The standard warranty period of all Hartmann goods is 3 months from the date of invoice.
10.3 The warranty in clause 10.1 does not apply in circumstances where:
(a) the goods are not defective;
(b) the goods were used for a purpose other than for which they were intended;
(c) the goods were repaired, modified or altered by any person other than Hartmann;
(d) the defect has arisen due to misuse, neglect or accident;
(e) the goods have not been stored or maintained as recommended by Hartmann;
(f) the customer is in breach of any of these conditions; or
(g) medical products are past their expiry date.
10.4 To the extent permitted by law, neither Hartmann nor the customer will have any liability for any indirect or consequential loss (including loss of revenue, loss of profit, loss of opportunity or financing costs) suffered or incurred by the other party.
10.5 Hartmann will not be liable for any loss or damage directly or indirectly suffered by the customer or any third party where Hartmann has failed to meet any delivery date or cancels or suspends the supply of goods or services.
10.6 Hartmann’s liability to the customer arising out of or in connection with the supply of goods or services (whether in contract, tort (including negligence) equity or otherwise, including in respect of claims by third parties, is limited to the value of the goods supplied. However the limitation in this clause 10 shall not apply to the extent that a liability is one that Hartmann buy law is not able to contract out of or limit.
10.7 To the full extent permitted by law, the customer agrees to indemnify and at all times hereafter to keep indemnified and hold Hartmann, its officers, employees or contractors, and each of them harmless against all claims for loss or damage (whether as a result of negligence or otherwise) to the extent any claim for loss or damage is caused by the customer’s use, possession, ownership or resale to a third party of the goods. The indemnity in this clause shall survive the termination of this contract.
11. INTELLECTUAL PROPERTY
11.1 The customer acknowledges that Hartmann owns all rights (including all intellectual property rights) in all documents, materials and information (including service manuals and training presentation documents) relating to the goods and services supplied by Hartmann to the customer under these terms and conditions (Materials).
11.2 Hartmann grants to the customer a perpetual, non-transferable, non-exclusive, royalty free licence to use and/or exercise all intellectual property rights in the Materials solely for the purposes of utilising the goods and services supplied by Hartmann to the customer under, and in the manner contemplated by, these terms and conditions.
12. GOVERNING LAW AND JURISDICTION
These conditions and the contract governed thereby shall be governed by and construed in accordance with the laws from time to time, of the State of New South Wales.
13. FORCE MAJEURE
To the extent permitted by law the customer releases Hartmann from all and any liability for and in relation to or occurring out of any failure or transaction in performance of its obligation hereunder done in part or in whole to any cause whatsoever beyond Hartmann’s reasonable control.
No waiver of any breach of these conditions shall be held or construed to be a waiver of any other subsequent or antecedent breach of these conditions.
15. IMPLIED CONDITIONS AND WARRANTIES
All implied conditions and warranties (statutory or otherwise) are hereby expressly excluded from these terms and conditions insofar as they are capable of being excluded by agreement.
16. FITNESS FOR PURPOSE
The customer shall not rely upon Hartmann’s expertise or judgement as to fitness or suitability of use for which the customer may require the goods and or service.
If at any time a provision of these terms and conditions is or becomes illegal, invalid or unenforceable in any respect under the laws of Australia, that will not affect or impair the legality, validity or enforceability of any other provision of these terms and conditions.