Terms & Conditions of Sale
1.1 This document sets out the Terms and Conditions of Trade (“Terms”) between:
1.1.1 Australian Medical Systems ABN 38 107021910 hereinafter referred to as AMS
1.1.2. Any person or corporation (“Customer”) acquiring goods and services from AMS.
1.1.2 References to "you" or "your" shall relate to the Customer; references to "AMS" shall relate to Australian Medical Systems.
1.1.3 This Sale Agreement is a legal contract between AMS and the Customer.
1.1.4 The terms and conditions of this Sale Agreement are subject to change without prior notice.
1.1.5 This Sale Agreement constitutes the entire agreement between the Customer and AMS relating to the sale of goods or services.
1.1.6 The Sale Agreement may only be modified or terminated in writing and signed by the Management of AMS, with regard to goods or services that have been purchased, that are otherwise valid, shall be accepted under the Sale Agreement.
1.1.7 The Customer consents to receiving electronic records, which may be provided via a web browser or e-mail application connected to the Internet. Customers may withdraw consent to receiving electronic records or have the record provided in non-electronic form by notifying AMS.
1.1.8 In the event of any conflict between the terms and conditions stated on your purchase order and this Sale Agreement or any terms and conditions on the Invoice, you agree that the provisions of this Sale Agreement and our invoice shall control.
2.1 Any instructions received by AMS from the Customer for the supply of Goods and/or the Customer’s acceptance of Services and/or Goods supplied by AMS shall constitute acceptance of the terms and conditions contained herein.
2.2 Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with the terms and conditions or with the written consent of the AMS Manager.
2.3 None of AMS's agents or representatives are authorized to make any representations, statements, conditions or agreements not expressed by the management of AMS in writing nor is AMS bound by any such unauthorized statements.
2.4 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of AMS and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgment.
3. Description of Goods
3.1 In these Terms unless the context otherwise indicates the term "Goods" means those goods which the Customer requests AMS to supply.
3.2. The Goods, the subject of this contract shall be those Goods (including any product, stock or other items supplied by AMS) described in AMS’s written quotation or, in the absence of a written quotation, on AMS’s delivery slip or invoice. If the description on these documents differs from the description on any order form provided by the Customer, the description on the AMS invoice or delivery slip shall prevail.
3.3 Specifications of Goods given in any brochures, letters, price lists, data sheets, or other documents of AMS or supplied by AMS are given to identify the Goods generally and do not form part of the description of the Goods.
3.4 "Special Orders" are high value products not held in stock. These products are indicated on the invoice as "Special Order" and imported by Special request, and it is the Customer's responsibility to verify that the products meet their required specifications before making payment. Once payment has been made, the order can not be changed. It is the customers responsibility to notify AMS in writing of any special requirements, specifications or additional accessories required prior to paying the invoice. Once payment has been made for a "Special Order", it is assumed by AMS that the customer has reviewed the specifications and that these specifications as stated on the invoice meet the customers requirements and that the product is fit to be used for it's intended purpose.
4.1 Orders may be placed by the Customer by telephone, or in writing by facsimile or letter, or via electronic means.
4.2 AMS reserves the right to insist upon written confirmation of any order placed by the Customer.
4.3 The Customer must order the minimum shipping quantity shown on the price list current at the order date or in a multiple of that quantity. AMS has the right to supply a quantity equal to the nearest or lower multiple.
4.4 AMS has no obligation to accept an order for Goods placed by the Customer by one of the methods in clause 4.1 above. Supply of the Goods ordered by the Customer by AMS constitutes acceptance of the order.
4.5 AMS shall make every reasonable endeavour to satisfy the Customer’s order in accordance with the Customer’s requirements. The Customer acknowledges and agrees that AMS does not warrant or represent the availability of further or larger quantities of the Goods.
4.6 AMS reserve the right to change prices without notice.
4.7 AMS reserves the right to refuse or cancel any orders, whether or not the order has been confirmed and payment made. If the payment has being made for the purchase and your order is cancelled, we will notify you immediately and refund the amount paid for.
4.8 AMS will inform you as soon as possible of any changes in prices, or cancellation of orders.
4.9 Terms of payment are within AMS’s sole discretion.
4.10 Invoices are due and payable within the time period noted on the invoice.
4.11 At AMS’s sole discretion, orders will not be shipped until after funds are cleared.
4.12 AMS may invoice parts of an order separately.
4.13 Customer agrees to pay interest on all past-due sums at the highest rate allowed by law.
4.14 The Customer is responsible for sales and all other taxes associated with the order.
4.15 Non Stock Items
4.15.1 Orders of non-stock items are subject to a 20% non-refundable deposit. To reiterate, 20% of the invoiced amount is non-refundable
4.15.2 The balance of payment will become due prior to shipment of the goods to the Customer.
4.15.3 Delivery dates will be as set out in the quotation
4.16 Cancellation of orders or Change of orders
4.16.1 AMS may not refund in full simply because customer changes his/her mind whether or not the item has being shipped.
4.16.2 Once an item has been ordered a restocking fee will apply if the customer wishes to change or cancel the order.
4.16.3 AMS reserves the rights to keep up to 20% of the full invoice amount in such cases.
4.16.4 This includes change of orders.
4.17 Orders that require installation or setup of equipment supplied
4.17.1 Orders that require installation or setup of equipment supplied, will be treated as a seperate cost from the cost of thier installation or setup. The customer is still liable for the cost of goods even if they have not yet been installed.
4.17.2 It is not the responsibility of AMS to install the goods that they supply. There will be no refund for goods supplied that have not yet been installed.
4.17.3 Used or demonstration goods that have been fully or in part paid for, that require installation, will not be refunded in part or in full.
5. Delivery and Freight
5.1. AMS will use all reasonable efforts to deliver Goods for accepted orders, to the address specified on the order or quotation, on or before any estimated date, but AMS does not represent or warrant that it will do so.
5.2 AMS shall under no circumstances be held liable whether for direct, indirect or consequential loss or damage arising by reason of any delay in delivery of the Goods or any failure to deliver the Goods ordered by the Customer for whatever reason.
5.3. AMS will arrange transportation of the Goods to the Customer at its own cost, unless the Customer is advised prior to delivery that the Customer is required to pay for delivery. Any additional freight costs arising due to the unavailability of the Customer
to accept delivery shall be borne by the Customer.
5.4. AMS may however in its absolute discretion, allow the Customer to arrange transport of the Goods. If the Customer arranges its own transport of the Goods, AMS may invoice the Customer for any differential in freight cost, between the actual freight cost, and that which AMS would have incurred. If the customer uses his own courier then the Customer takes responsibility for any loss or damage of the goods.
5.5. On delivery of the Goods, the Customer shall check the quantity, quality and description of the Goods delivered against the description on the delivery slip(s) or invoice, and shall give written notice to AMS of any alleged deficiency or irregularity in quantity, quality or description within 48 hours from the time of delivery. Should such notice not be given within that time, the Goods actually delivered shall be deemed to be in accordance with the delivery slip and free from any defect or damage and the Customer shall not thereafter make any such claim or take any action in relation to any alleged deficiency or irregularity.
5.6. Delivery of the Goods to a carrier either named by the Customer or, failing such naming, to a carrier at the discretion of AMS for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
5.7. AMS may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.8. Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.9. The failure of AMS to deliver shall not entitle either party to treat this contract as repudiated.
5.10 Signature on Delivery
5.10.1. The Customer or his Agent must be present to sign for delivery.
5.10.2 If the Customer or his agent is not present to sign for delivery, the parcel may be taken back to the couriers warehouse and you may need to go there to pick it up yourself. Any subsequent re-delivery charges will be for the Customer’s account.
5.10.3 Parcels are not authorised to be left without a signature, if the Customer directs AMS to leave a parcel when the Customer is not present, AMS will not be held liable for any lost, stolen or damaged goods.
5.11 Freight Charges
5.11.1 Freight charges to the Customer will be for AMS’s account, unless otherwise stated.
5.11.2 The freight will be calculated on a best terms basis.
5.11.3 Some products may require specialised packing for safety and security.
5.11.4 Some products may require specialised Couriers to transport.
5.11.5 AMS will determine the best freight method.
5.11.6 Shipping of replacement or exchanged items will be at AMS's discretion.
5.12 Return Freight
5.12.1 The purchases remain the responsibility of the customer.
5.12.2 Freight charges on returned items are the customer's responsibility, unless otherwise agreed to in writing by AMS.
5.12.3 Notwithstanding the fact that returns freight and freight insurance is for the customer’s account, written pre-approval is required by AMS prior to returning the purchased goods.
5.12.4 For returned purchases, it is the customers responsibility to ensure:
126.96.36.199 That a courier is pre-approved by AMS and
188.8.131.52 That there is adequate freight insurance on any returned goods and
184.108.40.206 That the courier is able to provide proof of delivery and
220.127.116.11 That the goods must be sent inside another box or suitable packaging to prevent any damage during transit.
18.104.22.168 Returned goods with freight stickers or any other damage to the original packaging could be refused credit.
5.12.5 No items will be considered for credit until they have been received safely and in an undamaged condition by AMS.
6.1. AMS will invoice the Customer for the Goods at the price shown on the price list, which is current at the date of the invoice.
6.2. Any special prices will apply to specific Goods only for as long as the stock lasts or the duration of the newsletter in which they are advertised or for the date that the price was presented if no duration is stated. Prices are linked to the $AU to $US exchange rate on the date of invoice.
6.3. AMS shall not be bound by any typographical errors that may occur with prices advertised in the current price list, newsletter, invoice, statements or any other document published by AMS.
6.4. The price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent those taxes are expressly included in any quotation given by AMS.
6.5 All prices are expressed in Australian dollars. All prices are subject to GST (goods & services tax - currently 10%) unless otherwise stated.
6.6 Any fluctuation in GST as regulated by the Authorities will apply at the date of invoice.
6.7 The Customer is responsible for their own GST costs.
6.8 Price / Availability / Advertising Disclaimer
6.8.1 AMS will strive to ensure all prices and stock availability are accurate and up-to-date at all times, however
6.8.2 Pricing may be subject to change without notice.
6.8.3 If a change in price has occurred, all orders will be confirmed as available and at the amended price prior to billing and shipping.
6.8.4 While AMS uses reasonable efforts to include accurate and up-to-date information, AMS makes no warranties or representations as to information accuracy.
6.8.5 AMS assumes no liability or responsibility for any errors or omissions in the content on any advertising material. Accuracy of advertising material should be determined by the specifications and prices on the invoice.
7.1 Terms of payment are at AMS’s sole discretion.
7.2Terms of payment will be indicated on the invoice.
7.3. The Customer may pay invoices by cash on delivery or by direct entry into the AMS bank account. The due date for payment will be shown on all invoices and statements and will differ depending on the payment method chosen.
7.4. At AMS’s sole discretion, payment can be made by other methods by mutual agreement and stated on the invoice.
7.5. At AMS’s sole discretion, all payments are due within 7 days of the date of invoice.
7.6 Any Customer operating a cash only account (VCA) as a private person or individual is required to pay for the goods at the time of ordering. Operating a VCA account does not entitle the Customer to convert automatically to a normal trading account - normal conditions of the trading account, such as trade references, are required to be met before opening a normal trading account regardless of size or turnover of a VCA account. Where turnover is expected to be less than $1,000 per month no trading account will be made available and the Customer will be required to purchase goods using a VCA account.
7.7 Non-receipt of an invoice does not constitute a reason for late payment. It is the Customer’s responsibility to ensure that goods ordered are paid for within the required time.
7.8. Should the Customer fail to pay in full the amount owing to AMS within the period provided for in clause 7.1, AMS may without prejudice to its other rights either:
7.9.1 require payment in advance any future deliveries, whether of existing orders or any orders placed by the Customer in the future; or
7.9.2 Terminate any contract forthwith by written notice to the Customer.
7.10 AMS may at its absolute discretion enter into a payment arrangement with the Customer for any overdue amounts. The arrangement must be in writing, signed by the Customer and an authorized AMS employee and must not exceed a period of six months.
AMS reserves the right to vary this time limit in its absolute discretion.
7.11 Any payment to AMS by the Customer which is not specifically allocated by the Customer will be credited first against interest charged and then against amounts owing for Goods supplied with oldest balances being discharged first.
7.12 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at the highest rate allowed by law, per calendar month and shall accrue at such a rate after as well as before any judgment.
7.13 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify AMS from and against all AMS’s costs and disbursements including on a solicitor and own Customer basis and in addition all external collection agency costs.
7.14 Without prejudice to any other remedies AMS may have, if at any time the Customer is in breach of any obligation (including those relating to payment), AMS may suspend or terminate the supply of Goods to the Customer and any of its other obligations
under the terms and conditions. AMS will not be liable to the Customer for any loss or damage the Customer suffers because AMS exercised its rights under this clause.
7.15 In the event that:
7.15.1 any money payable to AMS becomes overdue, or in AMS's opinion the Customer will be unable to meet its payment as they fall due; or
7.15.2 the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
7.15.3 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer; then
(a) AMS shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(b) All amounts owing to AMS shall, whether or not due for payment, immediately become payable.
8 Risk and Title
8.1. Ownership of the Goods shall remain with AMS and AMS reserves the right to dispose of the Goods until such time as payment in full is made for all amounts owing by the Customer to AMS so that the Customer’s total indebtedness to AMS under these Terms is discharged.
8.2. If the Customer defaults under these terms AMS may without prejudice to any of its other rights and remedies require the return at the expense of the Customer of all goods not paid for and, in default of compliance, AMS is hereby irrevocably authorized by the
Customer to enter its premises or premises controlled by the Customer and use reasonable force to take possession of the Goods without liability for the torts of trespass, negligence or payment of any compensation to the Customer whatsoever.
8.3. The Customer acknowledges that until its total indebtedness to AMS under these terms and conditions of sale is discharged, it holds the Goods as bailee of AMS and that a fiduciary relationship exists between the Customer and AMS.
8.4. The Customer must pay to AMS the proceeds of sale of any Goods for which AMS has not yet received payment, and the Customer must pay those proceeds of sale into a separate bank account and hold them on trust for AMS until they are paid to AMS.
8.5. The risk in the Goods purchased will, unless otherwise agreed by AMS in writing, pass to the Customer upon delivery to the Customer or his agent or to a carrier commissioned by the Customer.
8.6. If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, AMS is entitled, without prejudice to any of its other rights or remedies under these terms and conditions of trade (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 the Contract. The production of these terms and conditions by AMS is sufficient evidence of AMS’s rights to receive the
insurance proceeds without the need for any person dealing with AMS to make further enquiries.
8.7. It is further agreed that:
8.8.1 The Customer shall not deal with the money of AMS in any way which may be adverse to AMS.
8.8.2 Receipt by AMS of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognized and until then AMS’s ownership of rights in respect of the Goods shall continue.
8.8.3 The Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of AMS.
8.8.4 AMS can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
9 Credits and Return of Goods
9.1. All new Goods are sold on the basis of “no return for credit” unless:
9.1.1. subject to clause 8.5, the Goods are received in a damaged state;
9.1.2. the Goods are supplied in the incorrect quantity;
9.1.3 incorrect Goods are received by the Customer; or
9.1.4 the Goods are faulty on delivery.
9.1.5 Other specific circumstances for the return of Goods for credit may be approved by AMS in its absolute discretion.
9.2. The original manufacturer and AMS will determine whether the goods are functioning correctly to their designed ability.
Note: The ability of a machine or product will vary according to their designed ability and value which will determine quality & performance.
Example: A product costing $10,000 cannot be expected to perform at the same specification as a $20,000 or $100,000 product.
9.3 All claims relating to incorrect supply or transport damage are to be made within 48hrs from the time the goods are received, and returned within 7 days of receipt for a return claim to be valid.
9.4. Any other claims for credit must be made within seven (7) days of receipt of the Goods and a copy of the invoice from which the Goods were supplied must be presented, failing which any such claims are deemed to be waived.
9.5. Goods that have passed their expiry date will only be accepted for credit where the manufacturer of that particular product gives credit for expired stock.
9.6. Any return of Goods by the Customer must be made to AMS using the procedures determined by AMS. The Customer will be advised of such procedures by AMS when AMS agrees to the return of the Goods for credit.
9.7. All Goods that carry a warranty or guarantee of the manufacturer shall be credited or exchanged only when so agreed by the manufacturer.
9.8. AMS will not be liable for Goods that have not been stored or used in a proper manner.
9.9 All returned products must be 100% complete and preferably contain all original manufacturer boxes with the original packing materials, all manuals, instructions, brochures, blank warranty cards, accessories and any other documentation included with the original shipment.
9.10 Training material in the form of CD, DVD or electronic format is not returnable or refundable.
9.11 Original shipping costs are not refunded on returned items except in the case of Clause 9.1.1/2/3/4.
9.12 Freight charges on returned items are the customer's responsibility. (please refer to section 5 of this contract relating to Delivery and Freight)
9.13 All other claims will be considered on merit.
9.14 Returns must be approved in writing by a Manager of AMS prior to being shipped.
9.15 If approval is not given the return will not be accepted for credit
9.16 Used or demonstration goods sold are excluded from this returns policy.
10.1 Subject to the conditions of warranty set out in Clause 10.2 AMS warrants that if any defect in any workmanship manufactured by AMS becomes apparent and is reported to AMS within six (6) months of the date of delivery (time being of the essence), then AMS will (at AMS’s sole discretion) repair the defect or replace the workmanship.
10.1.1 If there is no warranty stated on the invoice then no warranty is provided under any circumstances.
10.2 The conditions applicable to the warranty given by Clause 10.1 are:
10.2.1 The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(a) Failure on the part of the Customer to properly maintain any Goods; or
(b) Failure to provide an adequate Surge Protector; or
(c) Failure on the part of the Customer to follow any instructions or guidelines provided by AMS; or
(d) Any use of any Goods otherwise than for any application it is intended for; or
(e) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(f) The stated warranty applies to the main unit of equipment only. All equipment accessories and peripherals that are subject to wear and tear have a maximum 6 month warranty unless otherwise specified on the Invoice. This includes (but is not limited to) items such as cables, probes, batteries sensors etc.
(g) Fair wear and tear, any accident or act of God.
10.2.2 The warranty shall cease and AMS shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without AMS’s consent.
10.2.3 In respect of all claims AMS shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customer’s claim.
10.3 For Goods not manufactured by AMS the warranty shall be the current warranty provided by the manufacturer of the Goods. AMS shall be under no liability whatsoever, except for the express conditions, as detailed and stipulated in the manufacturer’s warranty. All conditions as expressed in 10.1 - 10.2.3 also applies.
10.4 In the case of second hand Goods the Customer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by AMS as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. AMS shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising. If no warranty period is stated on the invoice of used,
second hand, Ex-Demonstration or demonstration goods, then no warranty is given or implied for said goods. All subsequent fault, damage or problem arising after installation or delivery date will be the sole responsibility and liability of the Customer or owner.
10.4.1 X-ray tubes, X-ray detectors and ultrasound transducers or probes are only warranted on a prorate basis over the period of the invoice stated warranty of those items. Warranty on X-ray tubes, X-ray detectors and ultrasound transducers or probes
are excluded for used, pre-owned, demo, pre-demonstration or demonstration goods.
10.4.2 The maximum warranty period for new X-ray Tubes, X-Ray Detectors or Ultrasound Transducers or probes is 6 months on a prorate basis irrespective of the overall warranty on the complete system or equipment, unless expressly or specifically stated on the invoice that a extended warranty is given for the X-ray Tubes, X-Ray Detectors or Ultrasound Transducers or probes.
10.5 Warranty on X-Ray DR Detectors and X-Ray image acquisition software:
10.5.1 All warranties on DR detectors are back to factory warranties (not back to AMS), however, AMS can facilitate between factory and client where required.
10.5.2 The Warranty is only on materials and workmanship of the detector, it does not include the wiring, rechargeable battery, plugs, sockets or software.
10.5.3 No loan unit is offered during a warranty repair or breakdown. It is the clients duty to make sure they have a suitable backup system.
10.5.4 DR Panel Image acquisition software can be affected by Windows updates, conflicting and unauthorized software.
10.5.5 Internet viruses, malware, PUP’s and adware can cause serious damage to the image acquisition software.
10.5.6 AMS is in no way responsible for errors arising from the effects of these software errors.
10.5.7 It will be determined at the sole discretion of AMS the cause of any software errors.
10.6 Warranty Conditions
10.6.1 Warranty’s are subject to the recommended maintenance program and periodic inspection of the products as per the recommendation stated on the invoice or manufacturers recommendations.
10.6.2 Failure to follow the recommended maintenance program could lead to the Warranty becoming invalid. A record of your maintenance program must be provided with your warranty claim.
10.6.3 All original invoices and warranty certificates need to be presented when warranty claims are made.
10.6.4 The Warranty is not transferable and will only be valid whilst in the possession of the original Invoiced Customer.
10.6.5 Warranty on Portable equipment is on a "Carry in" basis - All portable equipment (for example,but not limited to: portable X-Ray, portable Ultrasound, and small equipment that can be posted). Freight or transportation costs associated with sending or receiving such goods for repair or service are at the Customers cost.
10.6.6 It is the Customers responsibility to provide a UPS (uninterruptible power supply) or other power protection devices.
11. Export Policy
11.1 All Goods sold or supplied under these terms are packed and labelled in accordance with Australian regulatory requirements.
11.2 All export orders must be paid for, prior to the Goods being shipped.
11.3 In the event that the Goods are exported, delivery of the Goods may be subject to either FOB Contract or CIF Contract.
11.4 In the event of a FOB Contract the following shall apply:
11.4.1 The Goods shall be delivered to the Customer by delivery on board the agreed upon mode of transport on the delivery date. AMS shall promptly notify the Customer that the Goods have been delivered aboard. Title to and risk in the Goods shall pass to the Customer upon such delivery being affected. AMS shall promptly provide the Customer with a clean shipped bill of loading in respect of the Goods.
11.4.2 The Customer shall reserve the necessary space on board the agreed upon mode of transport and give AMS due notice of the loading berth and any revised delivery dates. The Customer shall bear any additional costs caused due to the failure of the agreed upon mode of transport to be available to load the Goods on the delivery date.
11.5 In the event of a CIF contract the following shall apply:
11.5.1 The Goods shall be delivered to the Customer by delivery on board the agreed upon mode of transport on or before the delivery date. AMS shall procure a contract of carriage and insure the Goods from dispatch until delivery on terms current in the trade for the benefit of the Customer. The Goods shall be at the risk of the Customer as they are loaded on board. AMS shall promptly tender to the Customer a clean shipped bill of loading, the insurance policy and an invoice in respect of the Goods.
11.5.2 The Customer shall accept the documents tendered by AMS if they correspond to this contract and take delivery of the Goods at the port of destination and bear all other costs and charges arising out of shipment of the Goods to the port of destination.
12.1 All quotations, invoices, statements or other documents issued by AMS to the Customer are in Australian currency unless otherwise expressly stated.
12.2 All payments by the Customer to AMS must be made in Australian currency unless otherwise specifically agreed.
13. Intellectual Property
13.1 Where AMS has designed or drawn Goods for the Customer, then the copyright in those designs and drawings shall remain vested in AMS, and shall only be used by the Customer at AMS’s discretion.
13.2 Conversely, in such a situation, where the Customer has supplied drawings, AMS in its sales conditions may look for an indemnity (the specifications and designs of the Goods, including the copyright, design right or other intellectual property in them, shall as between the parties be the property of AMS). Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of AMS then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
14. Governing Laws
14.1. These Terms shall be construed and the rights and obligations of the Customer and AMS determined according to the laws in force in the State of the AMS office at which the order was placed and the Customer and AMS submit to the non-exclusive jurisdiction of the Courts of the State.
14.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
15.1 Any clause headings contained herein are for convenience only and shall not affect the construction of these Terms.
15.2. If any of the provisions of these Terms are for any reason held by a Court of competent jurisdiction to be unlawful or invalid under any applicable statute or rule of law, then that provision or part of a provision shall be deemed to be severable and omitted from these Terms and the validity and enforceability of the remainder of these Terms shall be in no way affected.
16. Incorporation in other dealings
16.1.Subject to any express contrary agreement in writing signed by AMS, these Terms shall, so far as is applicable and making all changes necessary having regard to the context, be incorporated in any contract arising from future orders placed by the Customer with AMS.
17. Amendment and Entire Agreement
17.1 No variation, modification or alteration of any of these Terms shall be of any effect unless agreed to in writing and signed by AMS.
17.2 Subject to any such written variation, modification or alteration, these are the whole of the Terms applicable to all sales or supplies by AMS to the Customer. These Terms shall apply notwithstanding any provisions to the contrary which may appear on any documents issued by the Customer.
17.3 Subject to the provisions of the Trade Practices Act, AMS and the Customer expressly agree that all conditions and warranties implied or otherwise incorporated in contracts by statute, common law, equity, custom or usage or otherwise shall not apply and, to the maximum extent permitted by law, are excluded.
18. Claims, Limit of Liability
18.1 Paragraph 17.3 does not apply where the Customer is a consumer within the meaning of the Trade Practices Act 1974. Without derogating from any other term or condition in the agreement:
18.1.1 The Customer shall inspect the Goods immediately upon their delivery in accordance with clause 5.5. The Goods are deemed to be accepted by the Customer unless the Customer gives notice to AMS of any alleged defects in the goods, unfitness for the particular purpose for which they were supplied (if any), un-merchantable quality, or failure to meet specifications within 48 hours of delivery of the goods.
18.1.2 In default of such notice, the Goods shall be deemed to be suitable for the purpose for which they were supplied, of merchantable quality, in accordance with specifications, and otherwise free of any defect and AMS shall not recognize any claim in any of these regards.
18.2 The liability of AMS, if any, for faulty workmanship, unsuitability, un-merchantable quality, failure to meet specifications, loss or damage in transit or whatever shall (except in the case where the Goods are of a kind that might ordinarily be acquired for personal, domestic or household use or consumption) be limited to:-
18.2.1 Repair of the Goods.
18.2.2 Replacement of the Goods of equivalent value;
18.2.3 Refund of the purchase price.
18.2.4 The options to Repair, Replace or Refund will be at AMS’s sole discretion.
18.2.5 If the customer refuses Options 18.2.1 or 18.2.2, then a restocking fee of 20% of the invoiced amount will apply and be deducted from the refund.
18.3 Without derogating from the generality of the foregoing, AMS shall not be liable for any consequential loss. The Customer shall notify AMS immediately upon it’s employees or agents becoming aware of any alleged fault or defect in the Goods, unsuitability or unfitness for the proposed use of the Goods, failure to comply with or to meet specifications, loss or damage in transit, or any other alleged cause of action in relation to the Goods arising out of the delivery or failure to deliver the Goods.
19. Security and Charge
19.1 Notwithstanding anything to the contrary contained herein or other rights which AMS may have howsoever:
19.1.1 Where the Customer and/or the Guarantor (if any) is the owner of the land, realty or other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to AMS or AMS's nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that AMS (or AMS’s nominee) shall be entitled to lodge, where appropriate, a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
19.1.2 Should AMS elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify AMS from and against all AMS’s costs and disbursements, including legal costs on a solicitor and own Customer basis.
20.1 AMS may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. AMS shall not be liable for any loss or damage whatever arising from such cancellation.
21. Privacy Act
21.1 The Customer and/or the Guarantor/s agree for AMS to obtain from a credit-reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by AMS.
21.2 The Customer and/or the Guarantor/s agree that AMS may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Credit Account or named in a consumer credit report issued by a reporting agency for the following purposes:
21.2.1 To assess an application by Customer;
21.2.2 To notify other credit providers of a default by the Customer;
21.2.3 To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
21.2.4 To assess the credit worthiness of Customer and/or Guarantor/s.
21.3 The Customer consents to AMS giving a consumer credit report to collect overdue payment on commercial credit (Section 18K(1) Privacy Act 1988).
21.4 The Customer agrees that Personal Data provided may be used and retained by AMS for the following purposes and for other purposes as shall be agreed between the Customer and AMS or required by law from time to time:
21.4.1 provision of Services & Goods;
21.4.2 marketing of Services and/or Goods by AMS , its agents or distributors in relation to the Services and Goods;
21.4.3 analyzing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Services/Goods;
21.4.4 enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and Goods.
21.5 AMS may give information about the Customer to a credit-reporting agency for the following purposes:
21.5.1 to obtain a consumer credit report about the Customer; and/or
21.5.2 allow the credit-reporting agency to create or maintain a credit information file containing information about the Customer.
22. Customers Disclaimer
22.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of AMS and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgment and that AMS shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the
Customer and shall not be transferable to any subsequent Customer.
23.1 All Services/Goods supplied by AMS are subject to the laws of the relevant state and AMS takes no responsibility for changes in the law which affect the Services/Goods supplied.
23.2 AMS shall be under no liability whatsoever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by AMS of these terms and conditions.
23.3 In the event of any breach of this contract by the Service Provider the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Service Provider exceed the Price of the Services.
23.4 The Customer shall not set off against the Price amounts due from AMS.
23.5 AMS may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
23.6 Neither party shall be liable for any default due to any act of God, war, strike, lock out, industrial action, fore, flood, drought, storm or other event beyond the reasonable control of either party.
24. Service or Repair Call Outs
24.1 AMS does not respond to Service or Repair Call Outs (even for goods under Warranty) unless the Client Account is 100% up to date.
24.2 For Call Outs where goods are under Warranty, Call Out charges apply if the fault is not covered by the expressed warranty.
24.3 For chargeable Call Outs, minimum Call Out charges apply depending on the Client Location.
24.3 Call Outs on Weekends, Public Holidays or Annual Closure [ 20 Dec 2019 - 13 Jan 2020] and [18 Dec 2020 - 8 Jan 2021], are charged at double the usual rate for labour and travel.
25. Customer Training
It is the responsibility of the customer to ensure that they and any of their staff members have been suitably trained and are adequately qualified to use the equipment they have purchased. AMS will provide manuals and general information relating to the operation of the equipment that has been sold, however, it is up to the customer to obtain or provide their own training relating to safety procedures and protocol. In relation to Ultrasound Equipment, the customer should seek independent training relating to scanning techniques, image optimization and patient anatomy.