Terms and Conditions

Australia Only

CONDITIONS OF SALE

1. INTERPRETATION

In these conditions:

‘Buyer’ means the buyer of the Goods specified above.
‘Corporation’ as defined in section 57A of the Corporations Act 2001 (Cth).
‘Goods’ means the product and, if any, services supplied by the Seller which are specified in a Purchase Order.
‘Purchase Order’ means an order form provided by the Seller and completed by the Buyer.
‘Seller’ means Advanced Skin Technology Pty Ltd (ACN 007 203 447).
Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified.

2. GENERAL

These conditions (which shall only be waived in writing signed by the Seller) prevail over all conditions of the Buyer’s order to the extent or any inconsistency.

3. TERMS OF SALE

The Goods and all other products sold by the Seller are sold on these terms and conditions.

4. CONDITION OF SUPPLY OF GOODS

4.1 The Buyer acknowledges and agrees that the Buyer shall:

Only supply the Goods to its customers within Australia;
Not, either directly or indirectly, sell the Goods to any individual agent or retail agent situated outside Australia or New Zealand;
Not exhibit or sell any Goods at flea markets, sidewalk sales or any area outside the Buyer’s business premises; and
Not sell any Goods which are testers or displays.
Not sell via internet to general consumers.

5. SELLERS QUOTATIONS

5.1 The Seller shall provide to the Buyer a price list with the recommended retail prices including GST.

5.2 Unless previously withdrawn, the Seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within thirty (30) days only after its date. The Seller reserves the right to refuse any order based on this quotation within seven (7) days of receipt of the Purchase order.

5.3 The Buyer must send a Purchase Order, by facsimile to the Seller or register the Purchase Order on the Seller’s website at www.advancedskintechnology.com.au.

5.4 The Buyer must allow at least two (2) to four (4) working days for the Seller to receive and process a Purchase Order.

5.5 The Buyer agrees that all orders will incur a handling and/or freight fee which is payable by the Buyer.

5.6 The Buyer agrees that any handling and/or freight fee is subject to change without notice to the Buyer.

6. SUB-DISTRIBUTION OF GOODS

Goods are purchased on the understanding that the Buyer agrees that said goods are for sale to Clients/Patients of their Clinic(s)/Practice(s) and are not sub-distributed in any way to another Clinic/Practice.

7. PACKING

The cost of any special packing and packing materials used in relation to the Goods are at the Buyer’s expense notwithstanding that such cost may have been omitted from any quotation.

8. DRAWINGS, ETC

All specifications, drawings and particulars of weights and dimensions submitted to the Buyer are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller.
Except as referred to in para 14.1 herein, the descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
Where specifications, drawings or other particulars are supplied by the Buyer, the Seller’s price is made on estimates or quantities required. If there are any adjustments in quantities above or below the quantities estimated by the Seller and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in quotations.

9. PERFORMANCE

Any performance figures given by the Seller are estimates only. The Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

10. DELIVERY

The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
The Seller is not liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods.
The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an agreement in writing to the effect that the Buyer will not take delivery by instalments.
If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason.
It is not a repudiation of the contract of sale formed by these conditions and
The defective instalment is a severable breach that gives rise only to a claim in accordance with para 15.1(a).
The Buyer agrees that if the Seller has a claim for loss or damage or shortage of Goods delivered to the Buyer by instalments, the Buyer must submit a claim to the Seller in accordance with para 12.

11. PASSING OF RISK

Risk in the Goods passes to the Buyer upon the earlier of:

Actual or constructive delivery of the Goods to the Buyer; or
Collection of the Goods from the Seller or any bailee or agent of the Seller by the Buyer’s agent, carrier or courier.

12. LOSS OR DAMAGE OR SHORTAGE OF GOODS IN TRANSIT

The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not the Seller is legally responsible for the person who caused or contributed to that loss or damage).
The Buyer must notify the Seller in writing of loss or damage or shortage of Goods delivered to the Buyer, within seven (7) days of the date of receipt of the Goods. If any Goods received by the Buyer are different to the Goods specified on a Purchase Order, the Buyer must notify the Seller within twenty-four (24) hours of the date of receipt of the Goods.
Provided the Buyer has notified the Seller in accordance with para 12(b) and the Seller is satisfied that the Buyer has submitted a genuine claim, the Seller will replace the Goods which have been damaged or lost or the Goods which are different to the Goods specified on a Purchase Order with equivalent or similar Goods.
The Buyer waives any claim for loss or damage or shortage of Goods or for Goods which are different to the Goods specified on a Purchase Order, if the Buyer fails to notify the Seller within the period specified in para 12(b) above.

13. SENSITIVITY TO THE GOODS

13.1 If a customer of the Buyer claims to be sensitive to the Goods, the Buyer acknowledges and agrees that:

The Buyer will advise their customer to discontinue using the Goods immediately;
The Buyer will promptly provide to the Seller in writing, a full description of the claim made by their customer, including the customer’s contact detail, such as the customer’s full name, address and phone number (“the customer’s claim”);
Upon the Seller receiving the customer’s claim from the Buyer, the Seller will investigate the customer’s claim and if the Seller is satisfied that the Buyer’s customer has a valid claim, the Seller may offer a refund for the goods.

14. WARRANTY

14.1 The Seller’s warranty is limited to the extent of the manufacturer’s factory warranty and is subject to the manufacturer’s review and acceptance.

14.2 Para 14.1 will be operative so long as:

Defects have arisen solely from faulty materials or workmanship;
The Goods have not received maltreatment, inattention or interference;
Accessories of any kind used by the Buyer are manufactured by or approved by the Seller; and
The defective items are promptly returned free of cost to the Seller.

14.3 The Seller has no liability to remedy any defects in Goods or replace Goods where the damage arose from:

Improper use by the Buyer;
The use of accessories including consumables, which were not manufactured by or approved in writing by the Seller;
Any contamination or leakages caused or induced by the Buyer;
Any modifications of the Goods which were not authorised in writing by the Seller;
Any misuse of the Goods by the Buyer or anyone for whom the Buyer has a legal responsibility (including a minor);
Any use or operation of the Goods outside of the physical or environmental specifications of the Goods;
Inadequate or incorrect skin preparation;
Inadequate or improper maintenance of the Goods; or
Fair, wear and tear of the Goods;

14.4 The Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any goods supplied unless such design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing. In any event the Seller’s liability under this paragraph is limited strictly to the replacement of defective parts in accordance with para 14.1 of these conditions.

14.5 Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller’s negligence or in any whatsoever.

15. SELLER’S LIABILITY

15.1 The Seller’s liability for a breach of a condition or warranty implied by Div 2 of Pt V of the Trade Practices Act 1974 (other than s 69) is limited to:

in the case of Goods, any one or more of the following:
The replacement of the Goods or the supply of equivalent Goods;
The repair of the Goods;
The payment of the cost of replacing the Goods or of acquiring equivalent Goods;
The payment of the cost of having the Goods repaired; or
in the case of services:
The supplying of the services again; or
The payment of the cost of having the services supplied again;

15.2 The Seller’s liability under s 74H of the Trade Practices Act 1975 is expressly limited to a liability to pay to the purchaser an amount equal to:

The cost of replacing the Goods;
The cost of obtaining equivalent Goods; or
The cost of having the Goods repaired, whichever is the lowest amount.

16. PRICES

Unless otherwise stated all prices quoted by the Seller are net, exclusive of Goods and Services Tax (GST) and the Buyer agrees to pay to the Seller any GST in addition to the price.
Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, the quotation, cost of materials, wages and other charges affecting the cost of production ruling on the date is made.
If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer’s account.

17. PAYMENT

17.1 The purchase price in relation to Goods is payable in accordance with the terms of account agreed between the Buyer and the Seller and in default of any such agreement is payable by the Buyer to the Seller in full immediately upon notice by the Seller that the Goods are ready for delivery.

17.2 Any payment by the Buyer to the Seller for the Goods supplied, maybe made by cash, cheque, credit card or direct debit from the Buyer’s bank account.

17.3 Payment by the Buyer cannot be made by American Express or Diners Club.

17.4 If payment by the Buyer to the seller is made by cheque, the Buyer agrees that:

Cheques should be made payable to “Advanced Skin Technology Pty Ltd” and the Buyer’s name and invoice number printed on the invoice issued by the Seller to the Buyer should be written clearly on the reverse side of any cheque; and
If the seller receives a dishonoured cheque for payment of the Goods, the Buyer is to pay to the Seller a $15 administration fee and any bank fees which may be incurred by the Seller.

17.5 If payment by the Buyer to the Seller is made by direct deposit and/or internet banking facilities:

Any payment should be deposited to the following account (unless the Seller nominates another account in writing):

Account holder: Advanced Skin Technology Pty Ltd
Bank: National Australia Bank Limited
BSB no: 083 266
Account no: 518213836

A copy of the deposit slip with the Seller’s account number clearly printed must be sent to the Seller by facsimile or by another mode of delivery directed by the Seller in writing;

18. RIGHTS IN RELATION TO GOODS

The Seller reserves the following rights in relation to the Goods until all accounts owed by the Buyer to the Seller are fully paid:

Ownership of the Goods;
To enter the Buyer’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
To keep or resell the Goods including any Goods repossessed pursuant to para 18(b) above.

If the Goods are resold, or Goods manufactured using the Goods are sold, by the Buyer, the Buyer shall hold such part of the proceeds of any such sale as represents the invoice price of the goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of the Seller and shall pay such amount to the Seller upon request. Notwithstanding the provisions above the Seller shall be entitled to maintain an action against the Buyer for the purchase price and the risk of the Goods shall pass to the Buyer upon delivery.

19. BUYER’S PROPERTY

Any property of the Buyer under the Seller’s possession, custody or control is completely at the Buyer’s risk as regards loss or damage caused to the property or by it.

20. STORAGE

The Seller reserves the right to charge for storage if delivery instructions are not provided by the Buyer within fourteen (14) days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.

21. RETURNED GOODS

The Seller is not under any duty to accept Goods returned by the Buyer and will do so only on terms to be agreed in writing in each individual case.
If the Seller agrees to accept returned Goods from the Buyer under para 21(a), the Buyer must return the Goods to the Seller at the Seller’s place of business referred to at the head of these conditions and on such terms as shall be agreed between the Buyer and the Seller.

22. GOODS SOLD

All Goods to be supplied by the Seller to the Buyer are as described on the Purchase Order agreed by the Seller and the Buyer and the description on such Purchase Order modified as so agreed prevails over all other descriptions including any specification or enquiry of the Buyer.

23. CANCELLATION

No order may be cancelled except with the written consent of the Seller and on terms which will indemnify the Seller against all losses.

24. INDEMNITY

The Buyer indemnifies on a continuing basis on a fully indemnity basis the Seller from and against any liability, loss, expense or demand for or arising from any false, misleading, deceptive or misdescriptive representation or statement made by the Buyer in respect of the Goods to any person. This indemnity survives termination of this agreement by either part for any reason.

25. EXCLUSION OF REPRESENTATIONS AND ARRANGEMENTS

Except as referred to in para 14.1 herein, these terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods or any part of the Goods including, but without limiting the generality of the foregoing, those relating to the performance of the Goods or any part of the Goods or the results that ought to be expected from using the Goods.

26. NO WAIVER

The failure of any party to enforce the provisions of this agreement or to exercise any rights expressed in this agreement is not to be a waiver of such provisions or rights and does not affect the enforcement of this agreement.

27. FORCE MAJEURE

If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Seller, the Seller is unable to perform in whole or part any obligation under this agreement, the Seller is relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and is not liable to the Buyer in respect of such inability.

28. BUYER ACKNOWLEDGEMENT

The Buyer acknowledges that the above provisions of these Conditions of Sale are reasonable and reflected in the price and the Buyer accepts the risks of the Buyer associated with these Conditions of sale and/or shall insure accordingly.

29. PLACE OF CONTRACT

The contract for sale of the goods is made in the state of Victoria, Australia.
The parties submit all disputes arising between them to the courts of such state and any court competent to hear appeals from those courts of first instance.

30. GUARANTEE

If the Buyer is a Corporation, the directors of the Corporation acknowledge and agree;

To be jointly and severally liable for the due payment of all Goods delivered to the Buyer and for any costs incurred by the Seller to enforce the Buyer’s obligation for the due payment of any Goods; and
To secure the payment of Goods by the Buyer or any costs incurred by the Seller to enforce the Buyer’s obligation for the payment of Goods, the Seller is entitled to claim an interest on any property (real or personal) which may be owned by any director of the Corporation and may lodge a Caveat on any real property owned by any director of the Corporation; or
If the Seller requests a charge over the assets of the Corporation, but Buyer will deliver a duly executed charge over the assets of the Corporation in favour of the Seller.

31. ASSIGNEE OR SUCCESSOR OF THE BUYER

31.1      If the Buyer is a Corporation these terms and conditions will bind any successor or assignee of the Corporation.

31.2      The Buyer must not agree to assign these terms and conditions except with the Seller’s consent in writing.

32. TRADE MARK AND COPYRIGHT

32.1      The Buyer may not make any claims in the name of the Seller.

32.2      The Buyer may only use images of the Goods in the manner directed by the Seller for the purposes of marketing the Goods to its customers.

Read and agreed by Buyer and signed by its duly authorised officer:

Buyer……………………………………………………………………………….
          (name of buyer to be printed)

Signed……………………………………………………………………………..

Name………………………………………………………………………………

Title…………………………………………………………………………………

Clinic/Business Name .........................................................................................

Date………………………………………………………………………………..

Director……………………………………………………………………………
              (name of Director to be printed if the Buyer is a Corporation)

Signed……………………………………………………………………………..

Date………………………………………………………………………………..

Director……………………………………………………………………………
              (name of Director to be printed if the Buyer is a corporation)

Signed…………………………………………………………………………….

Date………………………………………………………………………………

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