Terms And Conditions Of Trade
To the fullest extent legally possible all contracts, dealings and/or arrangements made between Medsurge and the Customer relating to the Products are subject to the following terms unless otherwise agreed in writing.
In these Terms, unless the context otherwise requires:
“ACL” means the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (C’th);
“Adverse Event” means any untoward medical occurrence in a patient or consumer, temporally associated with the use of the Products, whether or not considered related to the Products;
“Amount Owing” means at any time all amounts payable by the Customer to Medsurge at that time in connection with the Products whether or not due for payment under these Terms;
“Human Safety Information” means any information regarding:
- the death, serious injury or illness of a person that may have been caused by the use or misuse of a Product purchased by the Customer;
- human health and/or wellbeing arising following exposure of humans to the Supplier’s products such as Adverse Event information, including any unintended sign, symptom, or disease (new or exacerbated), failure to produce expected benefits, reports of drug interaction;
- transmission of an infectious agent via a medicinal product; or
- information regarding unexpected therapeutic benefits such as unexpected improvement in a concurrent condition other than the one being treated;
“Products” means any products supplied, or to be supplied, by Medsurge to the Customer pursuant to an Order;
“Order” means an order for Products, and unless the context requires otherwise means such order that has been accepted by Medsurge in accordance with the Terms; and
“Terms” means these terms and conditions of trade.
Application of these Terms and Conditions of Trade
- These Terms apply to Products and any services supplied by Medsurge to the Customer. These are the only terms, (other than any terms that are imposed by law that cannot be excluded) that Medsurge will be bound by in relation to the supply of goods to the Customer, unless and to the extent only that Medsurge agrees in writing otherwise with the Customer.
- These Terms prevail over any terms in any document of the Customer, any terms previously discussed between the parties or on terms previously in force. If the Customer places an order with Medsurge, accepts delivery of Products and/or makes a payment to Medsurge, the Customer is taken to have accepted these Terms.
- Medsurge may vary these Terms by notice to the Customer, which notice may be electronic or otherwise. The varied Terms will only apply to Orders made after those variations have been notified. The Customer’s continued purchase of Products after such notification constitutes acceptance and will evidence its consent to the provision of those Products on the Terms as varied.
Orders and Supply of Products
- The Customer agrees that formal quotations shall be in writing unless otherwise agreed by Medsurge. Medsurge shall not be bound by any quotation if an order is placed outside the period of the quotation’s validity noted thereon (which in the absence of such period being noted shall be 14 days from the date of the quotation). Notwithstanding the previous sentence, prior to receipt of any Order, Medsurge may amend a quotation.
- The Customer may from time to time place Orders with Medsurge setting out the requirements of the Order. The Customer acknowledges that each and every Order submitted to Medsurge constitutes a separate offer, all or part of which Medsurge may accept or reject at its absolute discretion, but if and to the extent accepted by Medsurge, gives rise to a binding agreement between the Parties for the Supply of the Products. Medsurge will not be liable to the Customer or any third party for declining an Order that has not been accepted.
- Medsurge may in its absolute discretion determine from time to time a minimum order value or quantity for each order of Products to be supplied to the Customer.
- The Customer acknowledges that due to unpredictability in supply and demand for Products, there may be delays in supply. Orders for Products which are temporarily out of stock will be placed on back order, unless otherwise requested by the Customer.
- Once submitted, an Order cannot be cancelled, or delivery deferred, without Medsurge’s consent.
- The Customer acknowledges that Medsurge will only supply and be required to supply Products that are restricted medicines, where the Customer has the appropriate licence and authority to purchase such goods.
- Orders for Products must be made in units of measure (as defined by the Therapeutic Goods Administration) and manufacturer’s certification for the relevant Product.
- To the extent permissible at law (including under the ACL), if any dispute arises concerning any Order (including any measurement, quality, quantity, identity, or authority or any telephone, facsimile, e-mail or computer-generated order) the internal records of Medsurge will be conclusive evidence of what was ordered.
- Medsurge may set specific terms from time to time in relation to Orders such as, without limitation, a requirement that the Customer pay a deposit and/or make full pre-payment in relation to an Order even if Medsurge has previously agreed to extend the Customer credit.
- The Customer acknowledges that in some cases Products may have a short shelf life, being of less than 6 months. This fact, where applicable, will be notified by Medsurge.
- Variation or cancellation of any Order dealing, or arrangement must be on terms agreed in writing by Medsurge.
Price, Fees and Charges
- If Medsurge accepts an Order from the Customer, the Products will be supplied by it at a price which is either its current price on the date of the dispatch of the Products or the Price is as otherwise agreed between the parties. Prices are subject to change without notice for all Orders not already accepted by Medsurge.
- All government imposts and any GST will be to the Customer’s account. Medsurge’s price lists exclude such imposts and GST unless expressly noted thereon.
- Any discount offered by Medsurge is at its complete discretion and will only be available provided the Customer is not in breach of any part of these Terms or in default in any of its dealings with Medsurge.
- Any freight charges incurred under or referred to in these Terms will be subject to GST and must be paid by the Customer unless otherwise agreed in writing by Medsurge.
- The Customer agrees that delivery of Products may be subject to delivery, freight and urgent order charges, the amounts of which will depend on the location of the Customer, the size of any Order and the timing for delivery and shall be notified to the Customer on an order by order basis.
- Payments are to be made by the Customer without deduction or set-off of any kind and within 30 days of date of Medsurge’s invoice, unless otherwise agreed in writing by Medsurge.
- The Customer agrees to provide payment by electronic funds transfer unless otherwise agreed with Medsurge.
- Medsurge may apply a payment received from the Customer to any Amount Owing (including part payment of an invoice, administration, collection and other costs) in any order.
- Medsurge is entitled to set-off or deduct against any Amount Owing, any amount payable by Medsurge to the Customer.
- Medsurge may require the Customer to pay a credit card surcharge (in addition to any payment) of up to 2% plus GST of the payment amount where the Customer pays by credit card.
- The Customer must pay Medsurge interest on Medsurge’s overdue accounts at a rate of 12% per annum calculated daily.
- The Customer will be liable for all costs (including legal costs), charges, commissions, fees and disbursements incurred by Medsurge in recovery of any unpaid account.
- The Customer authorises Medsurge, its authorised agents or representatives, to make enquiries as to the credit and financial history and responsibilities of the Customer as required by Medsurge from time to time. If Medsurge so requires, the Customer must provide any consent or authorisation required by law for Medsurge or its representatives to undertake any such enquiries, including obtaining reports from credit reporting bodies as to the consumer and/or commercial creditworthiness of the Customer or guarantors (as applicable). The Customer must promptly inform Medsurge of any material adverse change in Medsurge’s financial or business circumstances.
- Medsurge will determine the days and times for the delivery of Products and the Customer agrees to accept delivery of the Products at any time during business hours on a business day.
- Medsurge reserves the right to charge for any delivery.
- A document (including without limitation a consignment note) purporting to be signed by any representative of Medsurge confirming delivery will be conclusive evidence of delivery as will any signed delivery docket.
- To the extent permissible at law (including under the ACL), Medsurge will not be liable for any loss or damage whatsoever (including consequential loss) caused directly or indirectly by any delay, failure or inability to deliver any Products.
Medsurge can vary or withdraw any credit facility or limit at any time at its discretion and without any liability to the Customer or any other party.
- The Customer warrants that it or the person making an Order on its behalf has authority to enter into a contract with Medsurge on these Terms.
- The Customer warrants that no statement or representation made by it or on its behalf (including prior to placing an Order) is misleading or deceptive in any respect and that the Customer will be truthful in its dealings with Medsurge.
- The Customer warrants that it will, as soon as practicable, notify Medsurge of any event including any pending or threatened event that could have an adverse effect on its ability to perform its obligations under this Agreement.
- Any application for credit by the Customer must be made on Medsurge’s trade account application form. The Customer warrants that the contents of such submitted form will be true and correct and acknowledges that Medsurge will rely upon its contents.
Title and risk
- Title in the Products supplied by Medsurge to the Customer does not pass to the Customer until Customer has paid all sums owing to Medsurge on any account whatsoever.
- Where the Customer does not make payment in respect of specific Products, payment must be treated as having been made first in respect of Products which have passed out of the possession of Customer, and then in respect of whatever Products, still in the possession of Customer, Medsurge elects.
- Risk in Products supplied by Medsurge to Customer passes to Customer upon the sooner of delivery of Products at Customer’s premises, or to Customer’s control.
- Until Customer has paid all sums owing to Medsurge on any account whatsoever:
- the Customer must store the Products in such a manner as to show clearly that they are the property of Medsurge;
- the Customer may sell the Products, in the ordinary course of its business, as agent and in a fiduciary capacity for Medsurge; and
- the proceeds of sale or use of any Products shall be received and held by the Customer (in whatever form) on trust for Medsurge.
- The Customer agrees that Medsurge and its representatives may at any time enter any premises upon which Medsurge’s Products are stored to enable Medsurge to inspect the Products and reclaim the Products where Customer is in breach of these terms and conditions.
Product Advice and Usage
- Any description of Products used by Medsurge is for identification purposes only and not a description with which the Products must comply.
- The Customer acknowledges and agrees that any representation or advice given by or on behalf of Medsurge (or any of its employees or agents) in respect of the operation or use of a Product is offered for information purposes only and should not be relied upon. Medsurge assumes no obligation or liability whatsoever in respect of any such representation or advice.
- The Customer acknowledges and agrees that it is responsible for advising its customers or patients about the operation, application, appropriateness and use of the Products.
Claims and Returns
- Within 48 hours after delivery of any Product, the Customer must notify Medsurge if any Product has been damaged or spoilt before delivery, has been incorrectly sent, has been short delivered or incorrectly invoiced.
- Any return requests must be approved by Medsurge management. A return authority number (RA) is required for all product return claims. No claim for return of Products will be considered without a return authority number. A return authority number is obtained by contacting Medsurge Customer Service on 1300 788 261.
- Medsurge may, in its absolute discretion, (but is not obliged to) accept returns of Products which the Customer has incorrectly ordered, provided approval is obtained and the Customer requests a product return within 2 days after delivery of the Products. Except as required by law, no returns are possible in connection with Unregistered Products (SAS), Refrigerated Products, Dangerous Goods and Controlled Drugs.
- If permitted by Medsurge, Products being returned must comply with the following conditions:
- they must be returned using a carrier nominated by Medsurge;
- they must be unopened, in their unit of measure and in their original manufacturer’s packaging which has not been marked, defaced, damaged or interfered with in any way (other than prior to delivery to the Customer); and
- they must be returned with a Medsurge return authority number (which can be obtained by contacting Medsurge Customer Service on 1300 788 261) and a copy of the Authority to return stock form.
- To the extent permissible at law (including under the ACL):
- if Medsurge elects (in its sole and unfettered discretion) to take back products they must be in as new and saleable condition and upon terms agreed and a re- stocking fee will apply;
- where Medsurge agrees in writing to accept a return of defective Products, such Products may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value. “Free of charge” does not include labour, transport or material costs unless otherwise required by the ACL; and
- the Customer must bear all costs of transporting the Products back to Medsurge’s premises or such other location notified by Medsurge, where Medsurge agrees to the return of Products under this clause.
To the extent permissible at law (including under the ACL), no set off or counterclaim will be made or applied by the Customer until payment in full of all bona fide invoices raised by Medsurge (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full.
Default and Recovery Costs
To the extent permissible at law (including under the ACL), default or breach by the Customer of these Terms or in any dealings with Medsurge will entitle Medsurge to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not) cease further deliveries and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms or at law.
Storage and Warehousing
- All Products must be stored, and all warehousing arrangements must be in accordance with:
- the specific requirements of the Products as described on the label;
- licensing requirements applicable to the storage of the Products; and
- industry practices including the Australian Code of Good Wholesaling Practice for Medicines as published by the TGA.
- Products are deemed delivered properly when unloaded at the delivery point. The Customer is solely liable in respect of any loss or cost (including losses or costs suffered by third parties) due to Products not being stored or handled in accordance with this clause.
- The Customer must notify Medsurge by telephone (and immediately confirmed in writing) immediately after it becomes aware of any information (whether credible or otherwise) which may give rise to a recall of the Products.
- Without limiting clause (a) above, the Customer must notify Medsurge as soon as is practicable after it becomes aware of any adverse publicity or threatened or pending legal proceedings with respect to the Products or of any other information that might adversely impact upon the goodwill associated with Medsurge or the Products.
- The Customer will communicate any reports of Human Safety Information, quality complaints, or suspected counterfeits relating to Medsurge’s pharmaceutical products to Medsurge within 24 hours of becoming aware of same.
- Any decision relating to a recall of the Products (including any decision relating to the initiation or implementation of or strategy relating to a recall of the Products) will be made at the discretion of Medsurge or, where Medsurge is not the sponsor (within the meaning of the Therapeutic Goods Act), the sponsor, unless otherwise directed by a relevant regulatory authority.
- The Customer must not initiate, implement or take any action in relation to a recall of the Products without the prior consent of Medsurge or, where Medsurge is not the sponsor, the sponsor.
- The Customer must maintain procedures relating to a withdrawal of the Products, recall and tampering and records necessary to support a recall of the Products, and allow Medsurge to inspect such procedures and records at any time on reasonable notice.
- The Customer must provide any services, resources or facilities to Medsurge as may be reasonably required in respect of a recall of the Products (at Medsurge’s cost).
- Medsurge agrees to refund or provide credit to the Customer for any units of the Products that are recalled under this clause unless the conduct of the Customer or its employees, contractors or other persons it has engaged has given rise to the recall of the Products.
- The reasonable costs incurred by the Customer, including the Customer’s management costs, in connection with the recall of any Products will be borne by Medsurge, except where the conduct of the Customer or its employees, contractors or other persons it has engaged has given rise to the recall of the Products (in which case the reasonable costs incurred by Medsurge in connection with the recall of the Products will be borne by the Customer).
- To the extent that a party pays costs in connection with the recall of any Products for which the other is responsible under clause
, the other party must, after receiving a written request together with sufficient evidence to substantiate the request for reimbursement for reimbursement from the first party, reimburse the first party with 7 days.
- To the extent that Medsurge is entitled to recover the costs of the suspension or recall from the relevant product manufacturer or supplier, Medsurge will reimburse to the Customer its reasonable costs incurred by the Customer in connection with the suspension or recall.
The Customer must insure the Products at its cost from the time of delivery of the Products to the Customer or into Customer’s custody (whichever is the sooner) until they are paid for in full, against such risks as it thinks appropriate and must note the interest of Medsurge on the policy of insurance and produce a certificate of currency or to this effect to Medsurge on request.
Other Customer Obligations
The Customer must:
- hold all necessary licenses and comply with all law and product manufacturer requirements relating to the purchase, storage, sale or use of the Products including complying with all relevant Adverse Event reporting requirements, the Therapeutic Goods Administration regulations and guidelines and information issued by Product manufacturers;
- if directed to assist in any suspension of supply or recall of products for any reason by Medsurge, the Therapeutic Goods Administration or a health authority, cooperate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall;
- at all times to act in utmost good faith with respect to Medsurge;
- not act in a manner which could adversely affect the reputation of Medsurge or the Products; and
- promptly advise Medsurge of all significant complaints, correspondence or comments relating to the Products from any source.
If a party elects not to exercise any rights arising as a result of breach of these Terms or a Contract it will not constitute a waiver of any rights relating to any subsequent or other breach.
If a provision of these Terms would but for this clause, be unenforceable, that provision must be read down to that extent necessary to avoid that result and if that provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms.
If the Customer commits or is involved in any act of insolvency as determined by Medsurge, it will be deemed in default under these Terms and all Contracts. An act of insolvency includes without limitation, bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms or any Contract.
The Customer irrevocably authorises Medsurge to:
- obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in any an application for commercial credit with Medsurge completed by it and provided to Medsurge and from any other credit provider or credit reporting agency for the purpose of assessing its application, or in connection with any guarantee given by the Customer;
- use, disclose or exchange with other credit providers and other members of the Medsurge Group information about the Customer’s credit arrangements in order to assess its application for credit, monitor credit worthiness and collect overdue accounts; and
- disclose the contents of any credit report on the Customer to any related entities of Medsurge, and any of their solicitors, professional advisors or mercantile agents.
- Except as expressly provided to the contrary in the Terms, all representations, warranties, guarantees and implied terms or conditions in relation to the Products (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law including the ACL.
- The Customer agrees that if it is aware (or should be aware) that the Products which are the subject of an Order, are for a particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics, the Customer will noticeably specify in writing that purpose or those characteristics in any such Order.
- Unless expressly agreed by Medsurge in writing, the Customer agrees that it has made its own enquiries in relation to the suitability of the Products and does not rely on representations by Medsurge in relation to their suitability for a particular purpose or any steps which may need to be taken in relation to their use.
- To the extent permissible at law (including under the ACL), Medsurge is not bound by any warranty (and the Customer agrees not to make any claim against Medsurge in relation to any warranty) in respect of Products unless all Products have paid for in full without set-off or deduction of any kind.
Limitation of Liability
The Customer must not export, sell or supply Products outside Australia or supply any of the Products it knows or could reasonably expect will be exported from Australia without the prior written consent of Medsurge, which may be withheld or provided in Medsurge’s sole discretion.
Termination of these Terms or any agreement between the parties, and/or dealings between the Customer and Medsurge will not end those provisions of these Terms that are capable of surviving termination.
To the extent permissible at law (including under the ACL), the Customer indemnifies Medsurge, and agrees to keep Medsurge indemnified against any claim or loss arising from or related in any way to any contract or dealing between Medsurge and the Customer or anything arising there from, or arising as a result of, or subsequent to, any breach of these Terms by the Customer.
If the Customer is a Proprietary Limited Company, Medsurge reserves the right to require a guarantee and indemnity (in a form and for an amount satisfactory to Medsurge) from the directors of that Customer, such guarantee and indemnity to be current for the term of this agreement.
A party will not be in default or breach of any dealings with the other party as a result of force majeure (i.e. anything beyond the party’s reasonable control).
Compliance with laws
Customer must comply with all laws, regulations and compliance codes of the jurisdictions in which it operates, including obtaining all necessary licenses.
Governing law and jurisdiction
These Terms are governed by the laws of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the appropriate Courts in or nearest Melbourne in that State.
Any notice under these Terms or any Contract must be in writing, and may be delivered, faxed or posted to a party at their address or facsimile number last notified by them to the other party. A party may change its address or number for notices by notifying the other party.