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1.1 "Act of God" means any act of nature (including, fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity or a telecommunications service and any other similar act which is beyond the reasonable control of a party.
1.2 "Agreement" means each and every contract created by the Seller’s acceptance of an Order and governed by these Conditions and the terms set out in the applicable Order, unless these Conditions are specifically excluded in writing.
1.3 "Business Day" means every Monday to Friday, during the period 9am until 5pm, except public holidays.
1.4 “Buyer” means any person who orders or purchases any Goods or Services from the Seller.
1.5 “Conditions” means these terms and conditions as amended by the Seller from time to time.
1.6 “Consigned Goods” means Goods of the Seller including loan kits, delivered to the Buyer for the Buyer’s use and/or subsequent appropriation for purchase by the Buyer under clause 16.5.
1.7 The term “Delivery Country” used in this document relates to the country where the Goods are to be delivered or the Services performed, as indicated below:
|Order||Delivery Country and Currency|
|An Order from the Buyer for Goods and/or Services in New Zealand||New Zealand *All values must be in NZD|
|An order from the Buyer for Goods and/or Services in Australia||Australia *All values must be in AUD|
1.8 "Free Into Store" means that in addition to freight and insurance, the Seller is responsible for the cost of all entry costs for delivery of the Goods, including import duty, unloading, inland freight, brokers fees and custom houses fees.
1.9 “Goods” means medical, prosthetic, therapeutic and similar products and all other goods supplied by the Seller to the Buyer, whether by way of consignment, loan or sale and includes Consigned Goods.
1.10 “Guarantor” means the person (or persons), or entity who agrees to be liable for the obligations of the Buyer as guarantor.
1.11 “Manufacturer” means any manufacturer of the Goods.
1.12 “Order” means any order for the supply of Goods or Services from the Seller to the Buyer from time to time in a form acceptable to the Seller and includes supplies made by way of consignment, loan kit, purchase order or online purchases.
1.13 “Price” shall mean the price of the Goods and Services as agreed between the Seller and the Buyer subject to clause 4 of this Agreement.
1.14 “Seller” means Surgical Specialties Pty Ltd ABN 87 116 881 595 and/or Therapy Specialties Pty Ltd ABN 74 114 633 706 and/or Surgical Specialties (NZ) Limited and Therapy Specialties Limited, as applicable.
1.15 “Services” shall mean all services supplied by the Seller to the Buyer.
1.16 In the interpretation of these Conditions, unless the context otherwise requires:
(a) headings do not affect interpretation;
(b) singular includes plural and plural includes singular;
(c) a reference to a party includes its executors, administrators, successors and permitted assigns;
(d) a reference to a person includes a partnership, corporation, association, government body and any other entity;
(e) an agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
(f) an agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
(g) a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
(h) a provision is not construed against a party only because that party drafted it;
(i) the meaning of general words is not limited by specific examples introduced by 'including', 'for example' or similar expressions.
2.1 These Conditions apply to all Goods or Services supplied by the Seller and the Buyer is deemed to have read and agreed to these Conditions prior to the placing of any Order.
2.2 These Conditions shall prevail over all inconsistencies in an Order, unless the Seller expressly agrees otherwise and that agreement is acknowledged by the Seller in writing.
2.3 The Seller reserves the right to vary, add or substitute to these Conditions from time to time and any such variations to these Conditions will have effect from the date of publication on the Seller’s websites, www.surgicalspecialties.com.au,www.surgicalspecialties.com.au,www.therapyspecialties.com.au,www.surgicalspecialties.co.nz and/or www.therapyspecialties.co.nz.
2.4 Where more than one Buyer has entered into an Agreement, the Buyers shall be jointly and severally liable for their obligations under the Agreement.
2.5 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements or provide any advice and recommendations (‘Statements’) not confirmed by a General Manager of the Seller in writing nor is the Seller bound by any such unauthorised Statements.
2.6 The Buyer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Buyer’s name and/or any other material change in the Buyer’s details (including but not limited to, changes in the Buyer’s address, facsimile number or a change in the corporate structure or majority shareholding of the Buyer) during the term of any Agreement.
2.7 In the event the Order is made through a tender process, the Buyer acknowledges that these Conditions will also apply except to the extent of any inconsistency with the express terms of the tender contract.
3.1 The Goods and Services to be supplied by the Seller are as described on the Order.
3.2 The Seller may in its sole discretion refuse to supply part or all of any Order of Goods and/or Services placed by the Buyer.
3.3 Orders can only be supplied in multiples of the “minimum order” quantity shown in the Seller's price list. Orders which fail to meet the minimum order value specified by Seller from time to time will be subject to the Seller's then current handling fee. Deliveries over the minimum order value will be made Free Into Store in major centres as designated by the Seller in Australia and New Zealand.
3.4 Export Orders which fail to meet the minimum export order value specified by the Seller from time to time will be subject to the Seller's then current administration fee.
3.5 The Seller will supply the Goods or Services on the basis of the Order (whether written or oral). The Seller will not be responsible for any errors or omissions in relation to the Goods or Services where those errors or omissions result wholly or partially from incomplete or unclear instructions in the Order.
3.6 The Seller reserves the right to charge the Buyer for any costs incurred as a result of the Buyer varying its Order or the Agreement, correcting any errors or omissions referred to in clause 3.5, or requiring Goods or Services urgently.
4.1 At the Seller’s sole discretion, the Price shall be either:
(a) as indicated on the Order provided by the Seller to the Buyer in respect of Goods or Services supplied; or
(b) the Seller’s current Price, at the date of delivery of the Goods or Services, according to the Seller’s current Price list; or
(c) Seller’s quoted Price which shall be binding upon the Seller provided that the Buyer proceeds with the Order.
4.2 All Prices in the Orders are valid for 30 days from the date of the Order.
4.3 Despite any other provision, the Prices are based on the current costs of supplying the Goods or Services and unless the Seller has otherwise agreed, are subject to amendment by the Seller before or after the Order is made to meet any rise and fall in such costs between the date of Order and the date of supplying the Goods or Services (“New Price”). The Seller must notify the Buyer of the New Price and if the Buyer does not accept the New Price, the Buyer can cancel an Order within 3 Business Days of such notice, time being of the essence.
4.4 Where an application for credit (“Credit Account”) is approved for the Buyer, the Price of the Goods or Services is payable within 30 days from the date of the Order unless other terms of payment are expressly stated on the Order.
4.5 The Seller reserves the right to withdraw approval of a Credit Account for the Buyer at any time by notice to the Buyer.
4.6 The Seller reserves the right to request such security or additional security for any credit arrangements with the Buyer as the Seller shall in its discretion think fit and shall be entitled to withhold supply of any Goods or credit arrangements until such security or additional security is provided by the Buyer.
4.7 The Buyer warrants:
(a) that all information set out in the application for the Credit Account (“Credit Application”) in respect of the Buyer is true and accurate; and
(b) that the persons whose signature appears on the Credit Application are duly authorised to apply for credit with the Seller on behalf of the Buyer.
4.8 Where no Credit Account has been approved for the Buyer, or approval of the Credit Account is withdrawn or the Credit Account has reached the agreed credit limit, the Price of the Goods or Services must be paid in full on placement of the Order, or where expressly agreed in writing by the Company, on delivery of the Goods or Services.
4.9 The Seller may in its absolute discretion withhold delivery of the Goods or Services until the Buyer has paid for them, in which event payment must be made before the delivery date.
4.10 Payment for an Order may be made by cheque, bank cheque, E.F.T, or credit card or by any other method as agreed to in writing between the Buyer and the Seller.
4.11 Unless expressly specified to the contrary on any Order, the Price shall be deemed to be exclusive of any GST and any other taxes, duties, levies, withholdings, government ordinances and related fines, penalties or interest payable by Seller in respect of the supply of the Goods or Services ("Taxes"). The Buyer must indemnify the Seller and keep the Seller indemnified in respect of such Taxes and will at the same time as paying the Price to the Seller or within 14 days of any demand from the Seller, pay the Seller the amount of such Taxes.
4.12 Payment will not be taken to occur until all cheques tendered in discharge of amounts owing to the Seller have been presented and cleared in full.
4.13 The Seller reserves the right to charge the Buyer a reasonable administration fee for issuing duplicate invoices, statements or other documents requested by the Buyer.
5.1 Delivery of the Goods ordered by way of purchase order or online orders shall be made to the Buyer’s address as provided by the Buyer to Seller at the time of placing the Order for the Goods. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. If the Buyer fails to make such arrangements then, at the Seller's discretion, delivery of the Goods may be made to the Buyer at the Seller’s address.
5.2 Delivery of Goods will be taken to have occurred when the Goods are either
(a) collected by the Buyer or the Buyer’s agent or nominee; or
(b) offloaded at the Buyer's nominated point of delivery; or
(c) collected by a carrier, either named by the Buyer or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Buyer; or
(d) collected by a sales representative of the Seller, at the discretion of the Seller, for the purpose of delivery to the Buyer.
5.3 The Seller may deliver the Goods and Services by separate instalments. Each separate instalment must be invoiced and paid for in accordance with the provisions of the Agreement.
5.4 Delivery and provision of any Services will take place on dates and times separately agreed between the parties.
5.5 The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
5.6 The Seller is not liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery of the Goods or Services and late delivery or non-delivery does not vary these Conditions or relieve the Buyer from its obligations to accept and pay for Goods or Services.
5.7 The failure of the Seller to deliver or provide any Goods and/or Services shall not entitle either party to treat an Agreement as repudiated by the Seller.
6.1 All risk for the Goods passes to the Buyer on delivery to the Buyer.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer (as determined under clause 11), the Seller is entitled, without prejudice to any of its other rights or remedies under these Conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under these Conditions. The production of these Conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries and the Buyer hereby irrevocably appoints in the place of the Buyer, the Seller and (if the Buyer is a corporation) the directors for the time being of the Seller jointly and each of them severally to be the attorneys of the Buyer at any time to execute and sign any forms or applications necessary to obtain the insurance proceeds and for this purpose to use the name of the Buyer.
7.1 The Buyer acknowledges that it has undertaken its own inspections and investigations and made its own independent enquiries in reaching its decision to purchase the Goods and/or Services.
7.2 The Buyer agrees that it will not make any representations about the Goods, Services or the Seller to the Buyer’s customers or any other third party without obtaining the prior written consent of the Seller and the Manufacturer.
7.3 Except for terms expressly written, to the maximum extent permitted by law the Seller excludes all implied terms, conditions, representations, warranties, statements and assurances in relation to the Goods and/or Services and any other matters arising under these Conditions or any Agreement and the Seller expressly disclaims all other warranties whether express or implied (either in fact or by operation by law) with respect to the Goods and Services whether as to merchant ability, fitness for particular purpose or any other matter.
7.4 Despite any other provision of these Conditions, the Seller’s maximum cumulative liability under an Agreement to a Buyer will not exceed the total income the Seller received from a Buyer in the previous month. In no event will the Seller (including the Seller’s officers, agents, employees or contractors) be liable for any loss or liability howsoever caused and on any theory of liability including contract or tort or statute (including negligence or otherwise) arising during or caused by the Seller’s performance or non-performance of an Agreement, including without limitation:
(a) any loss that is foreseeable, or which the Seller was aware of its likelihood arising; and
(b) any special, incidental, indirect or consequential losses or damages, including without limitation loss of profits or revenue, contracts, production, data, opportunity or goodwill, or business interruption.
8.1 The Buyer acknowledges and agrees that it must inspect the Goods on delivery and notify the Seller in writing of any alleged defect, shortage in quantity, damage or failure to comply with the Order (“Defect”) within one (1) day of delivery, time being of the essence. The Buyer must give the Seller reasonable access to inspect the Goods after the Buyer notifies the Seller of the Defect. If the Buyer fails to strictly comply with these provisions, the Goods shall be conclusively presumed to be delivered in accordance with these Conditions and free from any Defect.
9.1 All of the intellectual property rights in or relating to the Goods shall remain exclusively the property of the Seller and/or Manufacturer and neither the Buyer nor any agent or subcontractor or any other person authorised by the Buyer shall, at any time, make use of same without prior written authorisation.
9.2 Where the Seller has designed or drawn Goods for the Buyer, then the copyright, design rights, patent rights and all other intellectual property rights of any kind whatsoever in those designs and drawings shall remain vested in the Seller, and shall only be used by the Buyer at the Seller’s discretion and in accordance with any terms specified by the Seller.
9.3 The Buyer warrants that all designs or instructions provided by it to the Seller will not cause the Seller to infringe any copyright, patent, registered design or trademark in the execution of the Buyer’s Order.
9.4 All specifications, software, firmware, drawings and technical details submitted with, in support of or in connection with the Order are the Seller’s or Manufacturer’s exclusive copyright property and material. All such material, information and application knowledge, whenever supplied, shall at all times be treated by the Buyer or its employees or authorised persons, as confidential and shall not be used, without obtaining the Seller’s prior written consent, for purposes other than the following:
(a) evaluation of Order;
(b) confirmation of Order or Agreement with the Seller; or
(c) the operation or application of the Goods.
9.5 The designs and features of the Goods offered by the Seller are, in many cases, protected under patents, either existing or pending, and unauthorised reproduction of same constitutes an infringement of the Seller’s or Manufacturer’s rights.
10.1 If the Buyer defaults in payment of any amounts when due and payable, the Buyer shall indemnify the Seller from and against all of the Seller’s costs and disbursements arising from such default including legal costs on a solicitor and own client basis. Any costs or charges incurred by the Seller in collecting or attempting to collect overdue amounts must be paid by the Buyer to the Seller on demand.
10.2 The Seller reserves the right to charge interest at the rate of 15% per annum on all overdue amounts owing to it. Such interest will accrue daily and is payable on demand.
10.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods and/or Services to the Buyer and any of its other obligations under an Agreement. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
10.4 In addition to payment of interest under clause 10.2, if any account remains unpaid at the end of the second month after supply of the Goods or Services an immediate amount of the greater of $20.00 or
10.00% of the amount overdue shall be levied on the Buyer for administration fees which sum shall become immediately due and payable.
10.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer being an individual, dies or becomes incapable because of unsoundness of mind to manage his or her own affairs; or
(c) the Buyer being a company, resolves to go into liquidation (or has a petition for its winding up presented and not withdrawn within 30 days after presentation) or enters into any scheme or arrangement with its creditors under the relevant provisions of the Corporations Act 2001 or if a liquidator, receiver or receiver and manager or provisional liquidator is appointed to the Buyer; or, then without prejudice to the Seller’s other remedies at law or equity:
(i) the Seller shall be entitled to cancel all or any part of any Order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 10.2 hereof.
11.1 The Seller remains the legal and beneficial owner of all Goods sold by the Seller to the Buyer until all amounts payable for the Goods and all other amounts owing presently or in the future and actually or contingently to the Seller have been paid to the Seller in cleared funds. The security interest granted to the Seller is a purchase money security interest (PMSI) to the extent that it can be.
11.2 Except to the extent agreed to in writing by the Seller, the Buyer must hold the Goods as the Seller’s fiduciary bailee and must keep the Goods physically separate from all other Goods purchased by the Buyer from other suppliers and ensure that they are identifiable as the Seller’s property. The Buyer must notify the Seller of all premises at which it holds any Goods supplied under this document. The Buyer must allow the Seller to enter upon its premises to inspect the Goods in its possession upon reasonable notice from time to time.
(a) the Buyer fails to pay any amount (whether in part or whole) payable in respect of any Goods by the time required for payment;
(b) the Buyer is the subject of an insolvency event including administration, liquidation or receivership; or
(c) this document is terminated, or becomes terminable at the option of the Seller or the Seller becomes entitled to demand all money due to it,
the Seller may, without notice to the Buyer, enter at any reasonable time any premises where Goods are located (or believed by the Seller to be located) and take possession of those Goods not paid for and any other Goods to the value of the amount owing or secured. The Seller’s permission to enter the Buyer’s premises for that purpose is irrevocable. The Seller is not liable to the Buyer in contract, tort or otherwise, for any costs, damages, expenses or losses incurred by the Buyer as a result of any action taken by the Seller under this clause.
11.4 If any Goods belonging to the Seller are sold or otherwise disposed of by the Buyer or if any insurance claim is made in respect of them, the Buyer must keep the proceeds of sale or insurance in a separate bank account on trust for the Seller.
11.5 The parties agree that payments to the Seller will be applied in the following order:
(a) to obligations that are not secured, in the order in which those obligations were incurred;
(b) to obligations that are secured, but not by PMSIs, in the order in which those obligations were incurred;
(c) to obligations that are secured by PMSIs, in the order in which those obligations were incurred.
11.6 The Seller may register its security interest including as a PMSI. The Buyer must do anything (such as obtaining consents and signing documents) which the Seller requires for the purposes of ensuring that the Seller’s security interest is enforceable, perfected, first in priority and otherwise effective. To assure performance of its obligations in respect of registration, the Buyer hereby gives the Seller an irrevocable power of attorney to do anything the Seller reasonably considers the Buyer should do under this document.
11.7 The rights of the Seller under this document are in addition to and not in substitution for Seller’s rights under other law (including any legislation dealing with personal property securities) and the Seller may choose whether to exercise rights under this document and/or under such other law as it sees fit. The Buyer must reimburse to the Seller all costs incurred by the Seller in exercising its rights.
12.1 In this document the term ‘security interest’ has the meaning given to it under the Personal Property Securities Act 2009 (Cth) (PPSA) if the Delivery Country is Australia, or the Personal Properties Securities Act 1999 (New Zealand) (PPS) if the Delivery Country is New Zealand. If another term used in this clause has a particular meaning in the PPSA or PPS, it also has the same meaning in this clause.
12.2 If the Delivery Country is New Zealand, the Buyer agrees that sections 114(1)(a), 117(1)(c), 133 and 134 of the PPS shall not apply to enforcement of any security interest(s) created or provided for under the Agreement, and the Buyer waives any rights it may have under sections 116, 119, 120(2), 121, 125, 126, 127, 129 and 131 of the PPS on such enforcement.
12.3 If the Delivery Country is Australia, the following clauses 12.4 to 12.6 apply.
12.4 To the extent that:
(a) section 115 of the PPSA permits the parties to contract out of any provision of Chapter 4 of the PPSA; and
(b) such a provision requires the Seller to give a notice, allow time, give an account, or allow reinstatement or similar rights to the Buyer in connection with enforcement, the parties agree that all such provisions are contracted out of.
12.5 Provisions of Chapter 4 of PPSA confer rights on the Seller. The Buyer agrees that in addition to those rights, the Seller shall, if there is default by the Buyer, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any goods, not only under those sections but also, as additional and independent rights, under this document, and the Buyer agrees that the Seller may do so in any manner it sees fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
12.6 The Buyer waives its rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPSA. The parties also agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. The Buyer must do everything necessary on its part to ensure that section 275(6)(a) of the PPSA continues to apply.
13.1 The Seller may cancel any Agreement at any time before Goods or Services are delivered by giving written notice to the Buyer. On giving such notice, the Seller will repay to the Buyer any sums paid in respect of the Goods or Services. The Seller will not have any other liability in respect of such cancellation.
13.2 The Buyer may not cancel an Agreement at any time except with the Seller's prior written consent.
13.3 In the event that the Buyer cancels an Agreement otherwise than under clause 13.4:
(a) the Seller may retain any deposit or other sums paid on account of the Goods or Services; and
(b) if payment is not already made in full, the Buyer will be responsible for any losses incurred by the Seller in respect of such cancellation (including loss of profits, loss of anticipated savings, economic loss or interruption of business loss or other incidental, consequential or indirect damages).
13.4 In the event the Buyer cancels an Agreement under clause 13.3, the Seller will repay to the Buyer any sums paid in respect of the Goods or Services. The Seller will not have any other liability in respect of such cancellation.
14.1 If the Buyer is or includes a company which is not listed by Australian Stock Exchange (ACN 008 624 691), then each director of the Buyer acknowledges that it is personally liable for and will guarantee the Buyer’s performance of its obligations under these Conditions. The Buyer must on the date of the Agreement, deliver to the Seller a deed of guarantee and indemnity in the form required by the Seller from time to time.
14.2 If the Purchaser fails to deliver the executed Guarantee within the required time, the Seller may (without limitation with respect to any other rights the Seller has under the Agreement) terminate the Agreement by notice to the Buyer.
The Buyer agrees to sign, and to procure any Guarantor(s) to sign, any consents or other forms required by the Seller under which it will consent, amongst other things, to the Seller obtaining credit information about the Buyer or Guarantor(s), providing a credit report in relation to the Buyer or Guarantor(s) or exchanging credit information about the Buyer or Guarantor(s) to third parties.
The following provisions apply to supplies of Consigned Goods in addition to all other relevant provisions of these Conditions including clause 11.
16.1 The Buyer will hold Consigned Goods on behalf of the Seller in a designated storage area separate from the Buyer’s inventory or other property and otherwise in accordance with the Seller’s instructions and requirements.
16.2 Any loss or damage to Consigned Goods will be at the Buyer’s risk and the Seller will invoice the Buyer for any damaged, destroyed, stolen or lost Consigned Goods at their full purchase Price or value.
16.3 The Buyer must insure the Consigned Goods against all customary perils for the benefit of the Seller at the Buyer’s expense. The Buyer must give the Seller copies of such insurance policies on demand.
16.4 The Seller reserves the right to inspect the Consigned Goods on giving the Buyer reasonable notice of not less than seven days.
16.5 The Seller may identify which Consigned Goods are available for purchase by the Buyer. Otherwise all Consigned Goods must be returned to the Seller on demand. The Buyer may draw off for purchase Consigned Goods available for purchase and must give the Seller a purchase order for those Consigned Goods within 3 days of doing so. The Seller will then issue an invoice for them.
16.6 The Seller will replenish the Consigned Goods on receiving a purchase order from the Buyer as referred to in clause 16.5 subject to availability, lead times and minimum quantities.
16.7 Any Consigned Goods available for purchase and not turned over in a 12 month period may be invoiced by the Seller.
16.8 The Buyer agrees to purchase any Consigned Goods which have been customised or altered for the particular use or requirements of the Buyer.
17.1 If any Goods include equipment and/or software (‘System’), the buyer must install the System in accordance with the Seller’s and/or Manufacturer’s directions, at the Buyer’s expense.
17.2 The Buyer must make no unauthorised alterations to the System, comply with the Seller and/or Manufacturer’s user manual as provided and use the System only with the accessories made or approved by the Seller and/or Manufacturer.
17.3 Risk or loss of damage will pass to the Buyer upon installation of the System at the Buyer’s premises.
17.4 The Buyer agrees and acknowledges that any software embedded within the System is provided under licence and is not sold to the Buyer. The Buyer must not use, copy, modify or transfer the software in whole or in part except as expressly authorised in these Conditions.
17.5 The Buyer also acknowledges that the software licence may only permit the software to be used on one computer and the software may contain third party software components that are subject to additional terms and conditions.
17.6 The Buyer indemnifies the Seller and the Manufacturer for any losses and damages caused by a breach of its obligations under this clause 17.
18.2 Whenever a Buyer uses the Seller’s website, or any other website, the computer on which the web pages are stored (the Web server) needs to know the network address of the Buyer’s computer so that it can send the requested web pages to the Buyer’s Internet browser. The unique network address of the Buyer’s computer is called its "IP address," and is sent automatically each time the Buyer’s accesses any Internet site. From a computer's IP address, it is possible to determine the general geographic location of that computer, but otherwise it is anonymous.
18.3 The Seller does not keep a record of the IP addresses from which users access its site except where a user has specifically provided the Seller with information about itself, in which case the Seller will also record the user’s IP address for security purposes. An example of this would be when proceeding to a checkout to finalise an order a Buyer may wish to make. After completing the form provided, the Buyer’s IP address will be stored along with a transaction number that allows the Seller to track the Buyer’s order.
When purchasing from the Seller online, the Buyer’s financial details are passed through a secure server using the latest 128-bit SSL (secure sockets layer) encryption technology.128-bit SSL encryption is the current industry standard. If you have any questions regarding the Seller’s security policy, please contact our customer support centre at email@example.com
20.1 If any provision of these Conditions or an Agreement is found to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
20.2 The Buyer shall not set off against the Price amounts due from the Seller to the Buyer.
20.3 The Seller may license or sub-contract all or any part of its rights and obligations under an Agreement without the Buyer’s consent.
20.4 Neither party shall be liable for any default due to any Act of God. An Act of God however will not relieve or postpone any obligation to pay moneys due hereunder.
20.5 A waiver of a provision of or right under an Agreement must be in writing signed by the party giving the waiver and is effective only to the extent set out in the written waiver.
20.6 An Agreement constitutes the entire agreement between the parties about its subject matter and supersedes any prior understanding, agreement, condition, warranty, indemnity or representation about its subject matter.
20.7 Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of an Agreement, remains in force after the expiration or termination of the Agreement.
20.8 The governing law for an Agreement is the law of:
(a) the State of New South Wales - if the Delivery Country is Australia.
(b) New Zealand - if the Delivery Country is New Zealand.
The Seller and Buyer both unconditionally submit to the exclusive jurisdiction of Courts in the State of New South Wales if the Delivery Country is Australia, or in New Zealand if the Delivery Country is New Zealand.
20.9 An Agreement may be altered in writing signed by each party.
20.10 Unless otherwise provided, a party may in its discretion give (conditionally or unconditionally) or withhold any approval or consent under an Agreement.
20.11 The failure, delay, relaxation or indulgence by a party in exercising a power or right under an Agreement is not a waiver of that power or right.
20.12 An exercise of a power or right under an Agreement does not preclude a further exercise of it or the exercise of another right or power.
Effective as at 1 June 2016