W&H AUSTRALASIA PTY LIMITED
TERMS AND CONDITIONS OF SALE
ABN 33 108 399 800
In these Terms:
1.1. “Agreement” means any agreement between W&H Australasia and the Customer for the sale of Goods.
1.2. “W&H Australasia” means W&H Australasia Pty Limited ABN 33 108 399 800.
1.3. “W&H Australasia’s Premises” means 10 Konando Terrace, Edwardstown SA 5039.
1.4. “Customer” means any person or entity who acquires Goods from W&H Australasia.
1.5. “Excluded Loss or Damage” means any:
1.5.1. loss of profit, revenue (including anticipated revenue), use, product or production (including delayed, postponed, interrupted or deferred production and/or inability to produce, deliver or process), bargain, contract, expectation or opportunity, access to markets, goodwill and/or business reputation even if such loss is a direct loss or a loss that flows naturally from the relevant breach;
1.5.2. cost of removal or storage of defective goods or plant or materials;
1.5.3. indirect loss;
1.5.4. loss consequential on other loss;
1.5.5. remote or unforeseeable loss or damage;
1.5.6. liquidated sums including liquidated damages, penalties, losses or damages arising under any contracts or agreements other than the Agreement;
1.5.7. kind of loss or damage considered other than loss arising in usual course of things; and
1.5.8. any similar loss or damage, whether or not in the reasonable contemplation of the Parties at the time of execution of the Agreement,
and in each case arising from or in connection with the performance of the Agreement, whether arising from a breach of contract or tort (including negligence) or under any statute or any other basis, in law or equity, and whether or not foreseeable by W&H Australasia or the Customer at the time of entering into the Agreement.
1.6. “Goods” means all goods including spare or repair parts, accessories consumables sold and/or delivered by W&H Australasia to the Customer from time to time.
1.7. “GST” means the Goods and Services Tax imposed by A New Tax System (Goods & Services Tax) Act 1999 in Australia and the Goods and Services Tax Act 1985 in New Zealand and any related acts and/or regulations of either statute.
1.8. “PPSA” means the Personal Property Securities Act 2009 (Cth) and, if the Customer is based and/or the Goods are located in New Zealand, a reference to a section of the PPSA includes a reference to the equivalent section, if any, of the Personal Property Securities Act 1999 (NZ).
1.9. “PPSR” means the personal property security register created under the PPSA.
1.10.“Terms” means these Terms and Conditions of Sale.
1.11.“W&H E-Store” means a website or mobile app operated or provided by W&H Australasia for the purpose of enabling the Customer to acquire Goods from W&H Australasia.
2.1. These Terms apply to the sale of Goods to the Customer by W&H Australasia and the Customer acknowledges having received a copy of these Terms.
2.2. No amendment, alteration, waiver or cancellation of these Terms is binding on W&H Australasia unless confirmed in writing by W&H Australasia.
2.3. The Customer acknowledges and agrees that:
2.3.1. no employee or agent of W&H Australasia may make any representation, warranty or promise in relation of the Goods other than as contained in these Terms; and
2.3.2. the Customer has determined that the Goods are fit for the purpose for which they are required;
2.3.3. the Customer has not relied on the skill and judgement of W&H Australasia in selecting the Goods; and
2.3.4. the Customer has checked the Goods for suitability, functionality and completeness.
3. REGISTRATION ON W&H E-STORE
3.1. The Customer acknowledges and agrees that before placing any order through the W&H E-store, the Customer must be registered with an account on the W&H E-store.
3.3. W&H Australasia may, in its absolute discretion, refuse the registration of a Customer or terminate an existing registration for any reason whatsoever.
3.4. W&H Australasia may also de-activate the registration of a Customer if a registered account has not been used for a period of three (3) years and
accumulated points and/or e-vouchers, if any, will be forfeited on de-activation.
3.5. For the registration and for continued and safe access to the W&H E-store, the Customer must:
3.5.1. provide with accurate, complete and up to date registration information;
3.5.2. enter the Customer’s clinic or dental lab business name and address with registration access code as a professional account; and
3.5.3. safeguard the Customer’s username and password to prevent misuse.
3.6. The Customer further acknowledges and agrees that W&H Australasia is entitled to assume that any person accessing the W&H E-store using the Customer’s username and password is authorised by the Customer to do so.
4. TERMS OF PAYMENT
4.1. Payments must be made in full, without any deduction or discount other than as stated in these Terms or in the relevant invoice or statement to the Customer.
4.2. Payments for purchases through the W&H E-store must be made by credit card or other electronic means designated by W&H Australasia from time to time at the time of placement of the order.
4.3. Other Payments must be made at the time of delivery or collection of the Goods or, if W&H Australasia has approved an account application by the Customer, in cash or by electronic means within twenty-one (21) days of the date of invoice or by credit card within fourteen (14) days.
4.4. In the absence of any specific written direction to the contrary, payments will be credited against the oldest outstanding account of the Customer with W&H Australasia to the most recent.
4.5. The Customer cannot set-off from any payment, any counter-claims that the Customer may have against W&H Australasia.
4.6. Interest is payable on all overdue accounts calculated on a daily basis at the rate of 8% from the due date until full payment is received by W&H Australasia.
5.1. Availability dates are estimates only, but W&H Australasia will use its best endeavours to maintain the respective estimate date of delivery.
5.2. Partial deliveries are permitted and will be regarded as a delivery.
6. PROPERTY IN GOODS / RETENTION OF TITLE
6.1. Legal and beneficial ownership of the Goods will not pass to the Customer and W&H Australasia will have security interest in the Goods until such time as the Goods so supplied have been paid for in full in cash or cleared funds.
6.2. Until the amount payable in respect of the Goods has been paid in full in cash or cleared funds:
6.2.1. the Customer will hold the Goods as bailee only for W&H Australasia;
6.2.2. any monies received or income generated by the Customer (up to the amount owing to W&H Australasia) through the use of such Goods will be deemed to be received on trust for W&H Australasia; and
6.2.3. the Goods must be stored in such manner that they are readily distinguishable from other goods owned by the Customer or other persons, so as to clearly show that they are the property of W&H Australasia.
7. GOODS AT CUSTOMER’S RISK
7.1. The Goods are entirely at the risk of the Customer from the moment the Goods leave W&H Australasia’s Premises even though property in and title to the Goods have not passed to the Customer.
7.2. The Customer must, at its own expense, maintain the Goods and insure them for the benefit of W&H Australasia for their full replacement value against theft, destruction, fire, water and other risks, as from the moment of collection by the Customer until property of and title to the Goods have passed to the Customer.
7.3. The Customer must take all reasonable measures to ensure that W&H Australasia’s title to the Goods is in no way prejudiced. If any of the Goods are lost, destroyed or damaged, any insurance proceeds relating to the Goods in respect of such event that are received by the Customer, must be paid to W&H Australasia immediately on receipt.
8. RE-SALE OF GOODS SUBJECT TO A RETENTION OF TITLE
8.1. If the Customer acquires the Goods through the W&H E-store, the Customer acquires those Goods as an end consumer and has no right to on-sell the Goods.
8.2. If the Customer acquires the Goods otherwise than through the W&H E-store then the Customer has the right to sell the Goods subject to a retention of title in its own name only at full market value and in the ordinary course of business.
8.3. Any sale by the Customer of Goods subject to a retention of title, whether in their original condition or incorporated into other goods, will only be effected by the Customer as trustee for W&H Australasia and the proceeds of such sale and the rights of W&H Australasia' Customer against its customer arising from such sale will be held on trust for W&H Australasia. The said proceeds must be held in a separate account or otherwise clearly identified in the books and records of the Customer.
8.4. If the Customer resells any Goods then, unless the Goods are clearly identifiable by serial numbers or other distinguishing marks, the Customer is deemed to have disposed of the Goods in the chronological order of supply by W&H Australasia to the Customer (oldest to the most recent).
9. GOODS AND SERVICES TAX
9.1. Unless specifically stated otherwise in a quote, GST is not included in the quoted price.
9.2. Where GST is imposed on W&H Australasia in respect of the supply of Goods and GST is not expressly included in the quoted price, the Customer must pay W&H Australasia the amount of such GST in addition to the quoted price.
9.3. W&H Australasia must give the Customer written notice of the amount of any GST payable under this clause and provide a tax invoice showing the amount of GST payable.
Unless the Customer has inspected the Goods and given written notice to W&H Australasia within seven (7) days after collection or delivery that the Goods are defective, do not comply with the relevant specifications or descriptions, or that the Goods are faulty or damaged, the Goods are deemed to have been accepted in good order and condition and compliant with those specifications and descriptions.
11. RETURN OF GOODS
11.1. Subject to clauses 11.2 and 11.3, W&H Australasia will only accept the return of any Goods to it by the Customer, if:
11.1.1. the Customer has applied to W&H Australasia for approval to return the Goods with seven (7) days of collection or delivery, whichever is applicable;
11.1.2. W&H Australasia has given written approval for the return of the Goods;
11.1.3. the Customer has returned the Goods to W&H Australasia’ premises (or such premises as are specified by W&H Australasia in its approval referred to in clause 11.1.2) within fourteen (14) days from the date the approval is granted.
11.2. If W&H Australasia agrees to the return of Goods:
11.2.1. the Goods, when received by W&H Australasia, must be unsoiled, undamaged and in a resalable condition as determined by W&H Australasia;
11.2.2. the Customer must pay for the delivery, freight, customs, duties, levies and/or insurance in respect of the return of the Goods and an administration fee equivalent to 15% of the invoice value of the returned Goods to W&H Australasia; and
11.2.3. the Customer must bear the risk of loss or damage of the Goods in transit until arrival of the Goods at the return address as advised by W&H Australasia.
11.3. W&H Australasia will not allow a credit or return of Goods if the Goods are:
11.3.1. imported especially for the Customer or comprise non-standard equipment made to special order; or
11.3.2. marked on W&H Australasia’ invoices as “NOT RETURNABLE”.
12.1. the Goods are not paid for in accordance with these Terms or any other applicable written agreement; or
12.2. W&H Australasia receives notice that, or reasonably believes that a third party may attempt to take possession of the Goods or attach the Goods pursuant to a writ of execution; or
12.3. any other event occurs which is likely to adversely affect the Customer's ability to pay for the Goods (including but not limited to the appointment of a receiver, administrator, liquidator or similar person [each an “insolvency representative”] to the Customer's undertaking),
then W&H Australasia may at any time thereafter, without notice to the Customer and without prejudice to any other rights which it may have against the Customer, terminate any contract relating to the Goods and the bailment referred to in clause 5.
13. RIGHT TO ENTER PREMISES
In any of the circumstances referred to in clause 12, the Customer:
13.1. authorises W&H Australasia by itself, its agents or representatives at all reasonable times, without notice, to enter onto and at all necessary time(s), to remain in and on any premises where the Goods are located in order to collect the Goods, without being guilty of any manner of trespass; and
13.2. assigns to W&H Australasia all the Customer's rights to enter onto and remain in and on such premises until all the Goods have been collected.
14. ADMINISTRATION, RECEIVERSHIP ETC.
In any of the circumstances referred to in clause 12:
14.1. neither the Customer nor its insolvency representative is entitled to sell, charge, remove, dispose of, use or otherwise deal with the Goods in any way inconsistent with W&H Australasia’s ownership of the Goods, without W&H Australasia’s prior written approval;
14.2. the Customer and its insolvency representative are obliged to return the Goods to W&H Australasia immediately or immediately on his appointment at his expense; and
14.3. the insolvency representative will become personally liable to W&H Australasia on a full indemnity basis in respect of any dealings with or use of the Goods by the Customer or the insolvency representative occurring after the date of appointment of the insolvency representative and must account to W&H Australasia or reimburse W&H Australasia for all monies received as a result of such dealings or use of the Goods.
15. W&H AUSTRALASIA’S LIABILITY LIMITED
15.1. The Customer acknowledges and agrees that:
15.1.1. the Customer has determined that the Goods are fit for the purpose for which the Customer requires them;
15.1.2. the Customer has not relied on W&H Australasia’s skill and judgment in selecting the Goods; and
15.1.3. W&H Australasia is not responsible if the Goods do not comply with any applicable safety standard(s) or similar regulation(s), and that W&H Australasia is not liable for any claim resulting from such non-compliance.
15.2. W&H Australasia is not subject to, and the Customer releases W&H Australasia from any liability (including but not limited to Excluded Loss and Damage) arising from any delay in delivery of or any defect or fault in the Goods to the full extent permitted by law.
15.3. If the Terms or, despite clause 15.2, the provisions of the Competition and Consumer Act 2010 (Cth), the Sale of Goods Act 1923 (NSW) and, if the Customer is based and/or the Goods are located in New Zealand, the Consumer Guarantees Act 1993 and the Contract and Commercial Law Act 2017 or any other act or the general law impose on W&H Australasia a liability for a defect or fault in the Goods then, to the extent to which W&H Australasia is entitled to do so, W&H Australasia’s liability is limited, at W&H Australasia’s option, to:
15.3.1. replacement or repair of the Goods;
15.3.2. supply of equivalent Goods; or
15.3.3. payment of the cost of replacing or repairing the Goods or of acquiring equivalent products,
and in any case:
15.3.4. W&H Australasia will not be liable for any Excluded Loss or Damage; and
15.3.5. W&H Australasia’s total liability to the Customer is limited to the invoice value of the Goods.
16.1. If the Goods are acquired by a consumer, subject to clause 16.3, W&H Australasia warrants that the Goods will be of acceptable quality as defined under the Competition and Consumer Act 2010 (Cth).
16.2. If the Goods are not acquired by a consumer, subject to clause 16.3, W&H Australasia warrants that the Goods will be supplied new (except in a sale of used or second-hand Goods) and in an undamaged condition:
16.3. W&H Australasia cannot give any voluntary warranty in respect of any used or second-hand Goods and, in particular, does not promise that such Goods are free of hidden defects, safe or durable or fit for any particular purpose. Where W&H Australasia agrees to refurbish used or second-hand Goods, W&H Australasia nevertheless does not warrant the condition or performance of such used or second-hand Goods and any costs W&H Australasia incurs in repairing, modifying or replacing parts of the Goods will be payable by the Customer.
16.4. These warranties extend only to the Customer and to no other person.
16.5. The provision of any act or law implying terms, conditions, guarantees and/or warranties which might otherwise apply to or arise out of the Agreement are hereby expressly excluded to the full extent permitted by law.
16.6. On discovery of any defect in the Goods, the Customer must notify W&H Australasia in writing of such defect. All warranty claims must be received by W&H Australasia within seven (7) days of the day of discovery.
16.7. The Customer’s failure to provide written notice to W&H Australasia of any alleged breach of the above warranty within the required time will release and discharge W&H Australasia from any obligation or liability for that breach of warranty.
16.8. The Customer must not carry out any remedial work to allegedly defective Goods without first obtaining the written consent of W&H Australasia to do so otherwise all of W&H Australasia’s warranties will be voided to the full extent permitted by law.
17. PERSONAL PROPERTY SECURITY
The Customer acknowledges that if W&H Australasia has a security interest in the Goods and/or their proceeds for the purposes of the PPSA then W&H Australasia may register its security interest in the Goods and their proceeds on the PPSR and the Customer in accordance with section 157 (3) (b) of the PPSA waives the right to receive notice of such registration. The Customer also undertakes, at its own expense, to promptly do anything (such as supplying information) which W&H Australasia requests and reasonably requires the Customer to do for the purposes of ensuring that the security interest is enforceable, perfected or otherwise effective.
18. COLLECTION AND OWNERSHIP OF INFORMATION
18.1. W&H Australasia will collect, store, analyse, use and market information (except personal information or data including sensitive information)
WH Australasia - Terms and Conditions of Sale - August 2023 3
collected, gathered and retrieved by or from Goods supplied by W&H Australasia and W&H Australasia will remain or become the legal and beneficial owner of such information.
18.2.W&H Australasia will not collect, process or store personal information or data including sensitive information through its Goods.
19. CATALOGUES AND TECHNICAL DOCUMENTS
19.1.Particulars in leaflets, catalogues, drawings, brochures and other printed material are illustrations only, form no part of the contract between W&H Australasia and the Customer, and are not binding on W&H Australasia.
19.2.All technical documents such as drawings, illustrations, descriptions, etc., are the exclusive property of W&H Australasia. They must not be made available to third parties, or copied, duplicated or used to reproduce any part of the Goods.
20. FORCE MAJEURE
W&H Australasia will not be liable for any breach of contract due to any matter or thing beyond W&H Australasia’s control (including but not limited to transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention of public authority, explosion or accident).
21. WAIVER OF BREACH
No failure by W&H Australasia to insist on the strict performance of any of the terms in these Terms is a waiver of any right or remedy which W&HAustralasia may have, and is not a waiver of any subsequent breach or default by the Customer.
22. NO ASSIGNMENT
Neither the Agreement nor any rights arising under the Agreement may be assigned by the Customer without the prior written consent of W&H Australasia which is at W&H Australasia’s absolute discretion.
If any provision contained in these Terms is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.
24. CONTRACT / GOVERNING LAW
The terms of contract between the parties are wholly contained in these Terms and any other writing signed by both parties. The contract is deemed to have been made at W&H Australasia’s Premises in Sydney and any cause of action is deemed to have arisen there.
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