1. Definition
In these conditions:
“Affiliate” means any legal entity with common ownership with the Supplier;
"Conditions" means the terms of these Conditions of Sale; "Customer" means a person, firm or corporation seeking to acquire goods or services from the Supplier;
"Goods" means all goods or services supplied by the Supplier to the Customer
"Supplier" means Ego Pharmaceuticals Pty Ltd (ABN
86 005 142 361) of 21-31 Malcolm Road, Braeside, Victoria
3195, Australia or its Affiliate.
2. Application of the Conditions
2.1. Unless otherwise agreed in writing prior, the Conditions will apply exclusively and absolutely to every contract for the sale of Goods by the Supplier to the Customer and cannot be varied or supplanted in any way by any other conditions or communications or actions of the Customer without the prior written consent of the Supplier.
2.2. Any written quotation provided by the Supplier to the Customer concerning the proposed supply of Goods is valid for 30 days only, unless otherwise stated in the written quotation, and is an invitation to treat only to the Customer to place an order based strictly upon that written quotation. The Supplier may at its sole discretion include additional terms in the quotation which are inconsistent with the Conditions.
2.3. The Customer will comply with the procedure (if any) prescribed by the Supplier for the placing of orders.
2.4. The Supplier will not be deemed to have accepted an order or an offer by the Customer unless it has communicated its acceptance to the Customer in writing or has delivered the goods stated in the order.
3. Payment
3.1. Payment for goods must be made on or before the last Business Day (in Melbourne) of the month following the month of the date of the Supplier's invoice.
3.2. The Supplier may at its sole discretion withdraw any credit terms or require the provision of security at any time.
4. Payment Default
4.1. If the Customer defaults in payment by the due date of any amount payable to the Supplier, then all money which would become payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier may, without prejudice to any other remedy available to it:-
a. Charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 2 percent for the period from the due date until the date of payment in full;
b. Charge the Customer for all expenses and costs (including legal costs on an indemnity basis) incurred by it resulting from the default and in taking whatever action it deems appropriate to recover any sum due;
c. Cease or suspend for such periods as the Supplier thinks fit, supply of any further goods to the Customer;
d. Where the customer is a corporation and it enters into any scheme or arrangement of any assignment or composition with generally, or has a liquidator, provisional;
e. By notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by the Supplier; without effect whatsoever on the accrued rights of the Supplier under any contract.
4.2. Clauses 4.1(c) and (d) may also be relied upon, at the sole option of the Supplier:
a. Where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
b. Liquidator, administrators, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
4.3. In the event of a default in payment or dispute of amount payable, the Customer will not be entitled to withhold payment of any undisputed amount due to the Supplier.
5. Passing of Property in Goods
5.1. Until full payment in cleared funds is received by the Supplier for all Goods supplied by it to the Customer, as well as all other amounts owing to the Supplier by the Customer:
a. title and the property in all Goods remain vested in the Supplier and do not pass to the Customer;
b.the Customer must hold the Goods as fiduciary bailee and agent for the Supplier;
c. the Customer must keep the Goods separate from its goods and maintain the labelling and packaging of the Supplier;
d. the Customer must deliver up all Goods to the Supplier immediately upon service of a written demand from the Supplier;
e. the Supplier may without notice, enter any premises where it suspects the Goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of the Supplier, and for this purpose the Customer irrevocably licences the Supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims demands or actions by any party arising from such Supplier action.
6. Pricing
6.1. Prices for the supply of Goods exclude GST, sales tax and any other taxes, duties or imposts imposed on or in relation to the Goods.
6.2. All amounts payable are expressed on a GST exclusive basis. If GST is payable in relation to a Taxable Supply the amount payable for that Taxable Supply will be the amount specified in this Agreement plus GST. If Supplier is liable to pay GST in respect of the Taxable Supply prior to the date that consideration for that Supply is required to be paid by the Customer, the Customer shall be required to pay an amount equal to the GST payable by the Supplier within 7 days from the date the Supplier advises the Customer the GST is payable. All references to GST, Taxable Supply and Supply have the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
6.3. Where there is any change in the costs incurred by the Supplier in relation to the Goods, the Supplier may vary its price for Goods on order to take account of any such charge.
7. Minimum order value
7.1. Unless a special arrangement in writing has been made, the minimum order value is AUD500. If any order below this minimum is agreed to in writing by the Supplier, a service charge of AUD50 will be applicable.
8. Standard pack sizes
8.1. Larger quantities will be subject to the nearest number in multiples of standard packs.
9. Returns of Goods
9.1. All Goods delivered by the Supplier will accord with the manufacturer’s specifications, and any description by which they were ordered or with the specification detailed in the Customer’s order, as the case may be, must as a minimum be consistent with the manufacturer’s specifications. The Customer shall be bound to accept delivery and pay for the Goods unless the Supplier receives from the Customer within (5) five working days of the date of the delivery of the Goods, notice in writing that the Goods fail to comply with the description or the specification by which they were ordered. Any such written notice by the Customer must specify all those aspects in which the Goods do not comply. The Customer shall not return the Goods to the Supplier until the Supplier has approved such a return in writing but will return the same within five (5) days of such written approval of the Supplier at the Customer’s expense unless otherwise agreed and authorised in writing by the Supplier. Time shall be of the essence for the purposes of this clause.
9.2. Before a credit claim is processed by the Supplier, the Customer must email the details of the claim to egoreturns@egopharm.com. The email must contain the following information;
a. Supplier material code, description and product quantity (located on the delivery note);
b. Batch number (located on the delivery note and on the bottom of each product box or on the crimp of each tube where multiple batches have been supplied);
c. Reason for credit request (damaged in transit, short supply, etc.);
d. Con note number (located on the sticker of the box or pallet);
e. Invoice or delivery docket number;
f. Batch number and expiry date of Good;
g. For damaged stock photographs must be provided as evidence of damage. Alternatively, the Supplier may request that the Goods are returned.
9.3. Authorisation - on assessment and agreement of processing your request, an Ego Reference Number will be provided to quote on your documentation and formalised claim.
10. Orders Cancellation or Dispute
10.1. No purported cancellation or suspension of an order or contract for Goods by the Customer will be binding on the Supplier or have any effect after that order by the Customer has been accepted by the Supplier.
10.2. If a dispute arises in connection with any order (including any question of identity or authority or any telephone, facsimile, email, e-commerce or computer generated order), the internal records of the Supplier will be conclusive evidence of what was ordered. Each order placed shall be deemed to be a representation by the Customer, that it is and will remain in the future solvent and able to pay all of its debts as and when they fall due.
11. Delivery of Goods
11.1. Any period or date of delivery of the Goods stated by the Supplier is intended as an estimate only and it is not a contractual commitment. The Supplier will use its best and reasonable endeavours to meet any estimated dates for delivery of the Goods.
11.2. If the Customer is unable to or fails to accept delivery of the Goods, the Customer will be liable for all costs incurred by the Supplier due to storage, detention, double cartage, travel expenses or similar cause concerning those Goods.
12. Risk and insurance
12.1. All risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods will pass to the Customer immediately upon delivery of the Goods to the Customer in accordance with the relevant INCOTERMS (e.g., FIS) as specified on any order for Goods.
13. Warranty
13.1. All Goods supplied shall be free from defects in materials and workmanship for a period of 30 days, or such longer period as specified in Statute law, or in writing by the Supplier, from the date of delivery.
13.2. This warranty 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 the Supplier;
d. the defect has arisen due to misuse, neglect or accident;
e. the defect has arisen due to normal wear and tear on the Goods;
f. the Goods have not been stored or maintained as recommended by the Supplier; or
g. the Customer is in breach of the Conditions.
14. Liability
14.1. All Goods supplied shall be free from defects in materials and workmanship for a period of 30 days, or such longer period as specified in Statute law, or in writing by the Supplier, from the date of delivery.
14.2. The Supplier is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
14.3. The Supplier will not be liable for any loss or damage suffered by the Customer where the Supplier has failed to meet any delivery date or cancels or suspends the supply of Goods.
14.4. Nothing in the Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State, Federal or National legislation applicable to the sale of goods which cannot be excluded, restricted or modified.
14.5. To the maximum extent permitted by law, Supplier's liability: i) for breach of these Conditions and/or any related order or contract; ii) in tort (including for negligence) is limited, at Supplier's option, to: A) the replacement or repair of the Goods; B) the supply of equivalent Goods; or C) the cost of replacing or repairing the Goods or of acquiring equivalent goods.
14.6. Each party must act reasonably to mitigate the loss or damage it suffers under or in relation to an order of Goods.
15. Laws to govern Conditions
15.1. Unless varied by notice in writing by the Supplier these terms and conditions shall be governed by and construed in accordance with the laws of the State of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts in the capital city in Victoria, Australia.
16. PERSONAL PROPERTY SECURITIES ACT 2009 (Cth) (PPSA) Registration
16.1. The Customer agrees that the Supplier will have a Purchase Money Security Interest (as defined in the PPSA) in any Goods or other equipment supplied to the Customer under this Agreement or any related order or contract.
16.2. The Supplier may register any security interest contemplated by this Agreement and/or any related order or contract on the PPS Register (as defined in the PPSA). The Customer must supply the Supplier with any information and take any steps the Supplier requires for the purposes of effecting and enforcing such registration. The Customer irrevocably and unconditionally waives its right to receive any notice from the Supplier in connection with the registration. The Customer will not allow a security interest to be created or registered over the Goods in priority to the security interest held by the Supplier.
16.3. The Customer agrees that any action taken by the Supplier in relation to the Supplier’s security interest in the Goods is at the cost of the Customer.
16.4. The parties agree that for the purposes of section 115 of the PPSA, nothing in sections 95, 121(4), 125, 130 (to the extent that it requires the Supplier to give any notice to the Customer), 132(3)(d), 132(4) and 135 of the PPSA will apply to any collateral arising from or in connection with these Terms and/or any related order or contract. Notwithstanding section 275 of the PPSA, the parties further agree to keep confidential the contents of these Conditions and related material.
17. Force majeure
17.1. The Supplier will not be in default or breach of these Conditions or any related order or contract, or will not otherwise be liable to the Customer, for any delay or failure to perform arising from an event of Force Majeure. An event of Force Majeure means an event or cause beyond the reasonable control of the Supplier and includes any strike, lock out or industrial action; acts of God, lightening, storm, explosion, flood, fire, pandemic, landslide, bush fire or earthquake; act of public enemy, war, terrorism or sabotage; the effect of any applicable laws, orders, rules or regulations of any government or other competent authority; and embargo, inability to obtain any essential equipment or materials, power or water shortage or lack of transportation.
18. Modern slavery
18.1. Unless otherwise required or prohibited by law, the Customer warrants that:
a. it does not employ, engage or otherwise use any child labour in circumstances other than those permitted by law;
b. it does not use forced labour in any form (prison, indentured, bonded or otherwise) and its employees are not required to lodge papers or deposits on starting work;
c. it provides a safe and healthy workplace, presenting no immediate hazards to its employees, any housing provided by the Customer to its employees is safe for habitation, and it provides access to clean water, food, and emergency healthcare to its employees in the event of accidents or incidents at the Customer's workplace;
d. it does not discriminate against any employees on any ground (including race, religion, disability or gender);
e. it does not engage in or support the use of corporal punishment, mental, physical, sexual or verbal abuse and does not use cruel or abusive disciplinary practices in the workplace;
f. it pays each employee at least the minimum wage, or a fair representation of the prevailing industry wage (whichever is the higher), and provides each employee with all legally mandated benefits;
g. it complies with the laws on working hours and employment rights in the countries in which it operates; and
h. It is respectful of its employees’ right to join and form independent trade unions and freedom of association.
18.2. The Customer shall ensure that it has ethical and human rights policies and an appropriate complaints procedure to deal with any breaches of such policies and the Customer shall, subject to compliance with law, furnish the Supplier with any relevant documents requested by the Supplier.
19. Privacy
19.1. The Customer must:
a. comply with the Privacy Act 1988 (Cth) (the Privacy Act) and any relevant Australian Privacy Principles issued pursuant to it;
b. comply with any approved privacy code which applies to the Customer, and
c. Implement procedures and systems for handling personal information (including a privacy policy), to ensure that it complies with the standards and obligations contained in the Privacy Act.
20. Notices
20.1. Notices to be given by the Customer to the Supplier may be delivered personally or sent to the Credit Officer of the Supplier at the Supplier's address at 21-31 Malcolm Road, Braeside, Victoria 3195 Australia, and, unless the contrary is proved, notice shall be taken as delivered when received by the Supplier at that address. Notices to be given to the Customer by the Supplier may be delivered personally or sent to the Customer's last known address and, unless the contrary is proved, shall be taken as delivered on the second business day following posting. Invoices and statements are deemed received by the Customer on the second business day after posting by ordinary prepaid post.
21. Severance
21.1. In the event that the whole or any part or parts of any provisions in these Conditions should be held to be void or unenforceable in whole or in part, such provision or part thereof shall to that extent be severed from these Conditions but the validity and enforceability of the remainder of these Conditions shall not be affected.
22. Certificate
22.1. A statement in writing signed by the Supplier's Credit Officer stating the monies payable by the Customer to the Supplier shall be prima facie evidence of the amounts so payable.