"Invacare" means INVACARE AUSTRALIA PTY LIMITED, ABN 45 074676378
"Customer" means the party placing the Order with Invacare.
"Order" includes a quotation, order, confirmation of order between Invacare and the Customer which refers to the Goods.
"Goods" means any equipment, services, parts, accessories or materials to be supplied by Invacare which are items generally in the nature of Mobility and Home Medical Equipment.
"Proceeds" has the same meaning given to it under the PPSA.
"PPSA" means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it.
"Secured Indebtedness" means all debts or monies outstanding to Invacare by the Customer, whether present or future, and liquidated or unliquidated liabilities arising under these Terms and Conditions of Trade.
"Terms" means these Terms and Conditions of Trade, and as amended from time to time.
2. Acceptance of Order
An Order can be made by the Customer in writing or verbally. No Order for Goods by the Customer is binding on Invacare until accepted by Invacare. No Goods are held, allocated to or promised to the Customer until acceptance of the Order by Invacare. An individual contract for the supply of Goods is formed on acceptance by Invacare of an Order from the Customer and is an acceptance of these Terms by Invacare and the Customer. These Terms will override any conditions contained in the Customer's order. Invacare reserves the right to accept any Order in whole or in part. No Order may be cancelled or varied unilaterally by the Customer after acceptance by Invacare.
3. Granting of Credit
All Orders are accepted by Invacare subject to satisfactory credit approval of the Customer. Credit approval once granted may be withdrawn by Invacare at any time. Where credit approval has not been granted, or is withdrawn, payment for all Goods supplied to the Customer is required by the Customer before delivery. Where credit has been approved for the Customer, all invoices issued by Invacare are due and payable no later than 30 days after the date of Invacare's invoice or such other date for payment as the Customer and Invacare agree in writing.
4. Financial information
The Customer agrees to provide financial information as may be reasonably required by Invacare to determine the initial credit limit for the Customer and thereafter updated financial information when requested by Invacare to evaluate or review the credit limit. Invacare agrees that such information must only be used to set and evaluate the Customer's credit limit and must be treated as confidential. The information must not be disclosed to any third party without the express written permission of the Customer.
5.1 Invacare reserves the right to change its prices without notice.
5.2 Administrative fees may be charged for sales below certain dollar values as determined by Invacare from time to time.
6. Delivery and Handling charges
Invacare may charge for delivery and handling at rates dependent on distance, weight and volume of Goods supplied.
Where applicable, Invacare reserves the right to recover from the Customer all Goods and Services Tax (GST) payable in respect of supply of Goods. Unless specifically included all amounts expressed or described in the contract or in invoices are GST exclusive amounts.
8.1 Acceptance of a delivery of Goods may not be refused by the Customer after an Order has been accepted by Invacare. Where prices are stated as inclusive of delivery, delivery is to the delivery point accepted by Invacare ("the Delivery Point"). Invacare reserves the right to arrange transport by any means in its absolute discretion and may use any third party or agent selected by Invacare at its absolute discretion. The Customer must make all arrangements necessary to accept delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to accept delivery of Goods as arranged, then Invacare shall be entitled to charge a reasonable fee for redelivery plus storage fees from the date the Goods were tendered for delivery until the date delivery is accepted if the delay is more than 24 hours. The failure of Invacare to deliver the Goods by a time specified by the Customer does not entitle the Customer to treat that contract as repudiated.
8.2 Invacare may withhold further delivery of Goods in the event that the Customer has not paid its invoice by the due date.
9. Default and Recovery
9.1 In the event of a default by the Customer , Invacare reserves the right to recover all items falling within the terms of the charge in its favour under clause 10 .
9.2 The Customer is deemed to be in default immediately upon the happening of any of the following events:
(a) If any payments to Invacare is not made promptly by the due date for payment or payment is not made of any monies due to Invacare on demand
(b) If the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing is or is unable to pay its debts as and when they fall due or if any cheque or bill of exchange drawn by the Customer payable to Invacare is dishonoured.
9.3 In the event of a default by the Customer, then without prejudice to any other rights which Invacare may have at law or under these Terms:
(a) Invacare or its agents may without notice to the Customer enter the Customer's premises or any premises under the control of the Customer for the purposes of recovering the Goods and the personal property falling within the terms of the charge in its favour under clause 10.
(b) Invacare may recover and resell the Goods and the personal property falling within the terms of the charge in its favour under clause 10.
(c) Invacare will be in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer's business howsoever arising from the seizure of the Goods.
10 Security / charge over personal property
10.1 In consideration of the supply of Goods on credit to the Customer from time to time by Invacare and in order to better secure to Invacare all monies payable or to become payable to it pursuant to these Terms, the Customer:
(a) hereby charges in favour of Invacare all of its right title and interest in any and all Goods supplied by Invacare to it from time to time on credit and which have not been paid for and all Proceeds (including but not limited to sale proceeds and an account for such monies) with the amount of the monies owing for such Goods; and
(b) hereby charges in favour of Invacare all of its right title and interest in any and all of its present and after acquired personal property and all Proceeds (including but not limited to sale proceeds and an account for such monies) with the amount of its Secured Indebtedness to Invacare.
10.2 The Customer undertakes to keep:
(a) any Goods supplied by Invacare separate from other goods so that they can be identified as the Goods supplied by Invacare;
(b) any Proceeds in a separate account so that they are identifiable as proceeds arising from a dealing with the charged personal property referred to herein; and
(c) records in relation to any receivables account identifying them as Proceeds arising under clause 10.1 herein.
(d) account for the Proceeds to Invacare on demand.
11. Passing of Risk and Title
Risk in each Order passes to the Customer upon delivery of that Order by Invacare to the Delivery Point or collection of that Order by the Customer's agent or any courier as the case may be, whichever occurs earlier. Title in the Goods passes to the Customer upon loading of Goods for despatch at Invacare's premises.
12. Personal Properties and Securities Act (2009) Cth ("PPSA")
Defined terms in this clause 12 have the same meaning as given to them in the PPSA.
12.1 Invacare and the Customer acknowledge that these Terms constitute a Security Agreement and give rise to Security Interests in favour of Invacare.
12.2 To the extent that the Security Interest arising under clause 10.1(a) of these Terms secures payment of the purchase price, the Security Interest gives rise to a Purchase Money Security Interest (PMSI) and falls within the PPSA classification of "Other Goods".
12.3 The Security Interest arising under clause 10.1(b) of these Terms is a security interest that falls within the PPSA classification of "Other Goods"
12.4 Invacare and the Customer acknowledge that Invacare, as Secured Party, is entitled to register its Security Interests under these Terms on the PPSA Register as Collateral.
12.5 To the extent permissible at law, the Customer:
(a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to Invacare.
(b) agrees to indemnify Invacare on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
(i) registration or amendment or discharge of any Financing Statement registered by or on behalf of Invacare; and
(ii) enforcement or attempted enforcement of any Security Interest granted to Invacare by the Customer.
(c) agrees that nothing in sections 130 to 143 of the PPSA will apply to these Terms or the Securities under these Terms;
(d) agrees to waive its right to do any of the following under the PPSA:
(i) receive notice of removal of an Accession under section 95;
(ii) receive notice of an intention to seize Collateral under section 123;
(iii) object to the purchase of the Collateral by the Secured Party under section 129;
(iv) receive notice of disposal of Collateral under section 130;
(v) receive a Statement of Account if there is no disposal under section 132(4);
(vi) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
(vii) receive notice of retention of Collateral under section 135;
(viii) redeem the Collateral under section 142; and
(ix) reinstate the Security Agreement under section 143.
13. Special Ordered Goods
All Goods that have been specially ordered for a Customer either locally or from overseas, or which do not form part of Invacare's current range, may not be returned except where the Customer or the end user is entitled do so pursuant to the Competition and Consumer Act 2010 ("Cth").
14. Re-sale and Internet Sales
1Unless the Customer is an authorised dealer all Goods purchased from Invacare are prohibited from resale or sale by mail order or through the internet.
15. Credit Card recovery of cost
A service fee may be applied to any payment made by way of a credit card.
16. Inspection, Claims and Returns
16.1 The Customer will inspect and check all Goods received as soon as practicable and must within 48 hours notify Invacare in writing of any shortage in quantity, defect, incorrect specification, damage or Goods not in accordance with the Customer's Order. The Customer is responsible for checking that Goods comply with those Ordered prior to use.
16.2 The Customer agrees that it will not return any of the Goods without first requesting or applying to Invacare so that a Returns Authorisation ("RA") may be issued by Invacare for valid returns.
16.3 Invacare recognises the following categories for valid returns:
Category A: Returns accepted within 15 business days of invoice date:
- Wrong Item delivered
- Faulty or damaged product/packaging
- Incorrect quantity delivered
Category B: Returns accepted within the warranty period:
- Warranty Issues (subject to clauses 18 and 19)
Category C: Returns of recall items must be acted on promptly:
- Product recall by Invacare
Category D: Returns accepted within 15 business days of invoice date:
- Stock item not suitable
- Order cancelled / no longer required (subject to Clause 2)
- Customer ordered incorrectly (subject to clause 2)
Category E: Returns accepted within 15 business days of invoice date:
- Returns for Scripted or Custom Made Goods only if manufactured incorrectly or not according to the Customer's Order
16.4 Where an RA has been issued, those Goods to which it relates must be returned within ten (10) business days of issue of the RA. The returned Goods must be unmarked, unmodified in a saleable and original condition.
16.5 No credit or replacement will be given unless and until Goods so returned have been verified as being valid for return or are defective and are returned with a valid purchase order/receipt. Invacare reserves the right to recover its costs where the returned Goods prove not to be valid for return or are not defective.
16.6 A restocking fee of $50 per Order applies to all Category D Goods. All freight and handling charges in relation to returning Goods are to be paid by the Customer.
The Customer is not entitled to set off against or deduct from the price of Goods of any sums owed or claimed to be owed to the Customer by Invacare.
18. Disputed Charges
If a Customer in good faith disputes any invoiced charges, the Customer may withhold the disputed amount, but only if on or before payment, or the due date for payment, the undisputed amount is paid in full and notice in writing of the dispute is given to Invacare, setting out the details of the amount disputed, the reasons for the dispute, and the basis for calculating the disputed amount. Invacare will investigate all disputes. If the amount is found to be payable (in whole or in part) then the Customer must pay the amount within 7 days of receiving notice and the basis of the decision. Invoiced charges that are not disputed in good faith within 60 days of the date of an invoice will be deemed to be correct.
19. Credit Policy and Default
19.1 Invacare may charge interest on all amounts not paid by the Customer within the term for payment at a rate of 2% per calendar month accruing each calendar month until the date of payment.
19.2 If the Customer defaults in payment of any invoice when due and payable, the Customer shall indemnify Invacare from and against all costs and disbursements incurred by Invacare in pursuing the debt including legal costs on a solicitor and own client basis and Invacare's mercantile agency costs.
19.3 If the Customer fails to pay for the Goods in accordance with the terms of payment, Invacare may at its sole discretion:
(a) cancel any provision of credit to the Customer;
(b) require cash prepayment for further Goods ordered;
(c) reverse any rebates and discounts allowed;
(d) provide a credit reporting agency details of the payment default;
(e) start proceedings against the Customer and any guarantors for all outstanding amounts;
(f) cease supplying Goods to the Customer and terminate any contract with the Customer; and
(g) exercise any other rights at law.
19.4 A certificate of debt duly signed by a representative of Invacare shall be evidence and proof of money owing by the Customer to Invacare at that time.
20.1 Invacare provides a warranty against defects within the warranty period after the Goods have been delivered provided that:
(a) the defects have arisen solely from faulty materials or workmanship; and
(b) Invacare is notified of the defect, in writing, within the warranty period; and
(c) the Customer or owner if the Goods have been transferred provides proof of purchase or the Goods have been registered with Invacare at the time of purchase; and
(d) the Goods are identified with a label or serial number; and
(e) the defective Goods are promptly returned to Invacare as required by the Inspection, Claims and Returns clause 16, at no cost to Invacare, and accompanied by a completed Warranty Claim form.
20.2 Excluded from the Warranty are natural wearing parts, wear and tear, damage caused by improper installation, improper loading of weights, misuse, abuse, transportation damage, incorrect or inadequate maintenance, unsuitable location, undue exposure to the elements, unauthorised repairs or alterations carried out by the Customer or third parties, or the use of any spare parts or accessories not manufactured or approved by Invacare.
20.3 Where a replacement is provided, it may not include replacement of the complete product. Items that are beyond economical repair may be given a credit provided that the item has a valid warrantable defect and a replacement is not readily available. Invacare reserves the right to credit the customer in-lieu of replacement; in which case the purchase price of the item will be credited.
21. Guarantees under ACL and Exclusions
21.1 The Goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
21.2 Invacare's liability in respect of a breach of a guarantee or any warranty made under these Terms for any Goods is limited, to the extent permissible by law and at the option of Invacare to:
(a) replacing the Goods or the supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) the payment of the cost of having the Goods repaired.
21.3 To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms are excluded.
21.4 The Customer indemnifies Invacare and its officers, employees, contractors and agents against any costs, expenses, losses, damages and liability suffered or incurred arising from the Customer's breach of this contract and any negligent or unlawful act or omission of the Customer in connection with the Goods.
22. Requirements to Disclose Information
I22.1 Where the Customer becomes aware of an incident where a person has suffered death or serious injury or illness that was caused by, or may have been caused by, the Goods ("Incident"), the Customer must immediately notify Invacare in writing of such Incident.
22.2 Where the Customer becomes aware of an Incident, the Customer must also provide sufficient information to Invacare to allow Invacare to meets its statutory reporting requirements, including but not limited to:
(a) Details as to when the Goods were purchased and the quantity of Goods purchased;
(b) The nature of the injury or illness and the circumstances in which it occurred;
(c) Any other information that Invacare reasonably believes is required to allow it to investigate the Incident and to meet its statutory reporting obligations.
22.3 Nothing in this clause will be taken to be admission by Invacare of any liability in relation to the Goods or the Incident.
The Customer may not assign or subcontract any contract for the purchase of Goods or its obligations under this contract.
24. Force Majeure
Invacare will have no liability to the Customer in relation to any loss, damage or expense caused by Invacare's failure to complete an order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock out, war or the inability of Invacare's suppliers to supply necessary materials or any other matter beyond Invacare's control.
25. Privacy Information
Invacare may give information about the Customer, its directors or proprietors to a credit reporting agency for the following purposes:
25.1 to obtain a consumer credit report about the Customer, its directors or proprietors; and/or
25.2 allow the credit reporting agency to create or maintain a credit information file containing information about the Customer, its directors or proprietors; and/or
25.3 to obtain commercial credit information about the Customer, its directors or proprietors from a credit reporting agency for the purpose of assessing the Customer's application for credit.
26. Waiver of terms of contract
The failure by Invacare to exercise, or delay in exercising, any right, power or privilege available to it under this contract will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power.
27. Proper Law
This contract is governed by and will be construed in accordance with the laws of the state of NSW and the parties agree to submit to the exclusive jurisdiction of the Courts of the State of NSW.
28.1 This document, together with any Order and invoice, represents the entire contract between the parties and may not be amended except in writing signed by each of the parties.
28.2 Invacare may serve any notice or Court document on the Customer by forwarding it by ordinary pre-paid post to the last known address of the Customer or alternatively to the address supplied by the Customer.
28.3 If any term of this contract is invalid, void, illegal or unenforceable, the remaining provisions are not affected, prejudiced or impaired.
28.4 Invacare may assign or licence or subcontract all or any parts of its rights and obligations without the Customer's agreement or consent.
28.5 Invacare reserves the right to review these Terms at any time. If following any such review there is to be a change in the Terms, that change will take effect from the date on which Invacare notifies the Customer of that change.
Copyright © Invacare Limited 2013