Terms and Conditions
Definitions
"User" means the person or entity using the website.
"Owner" means the company that owns the website, McFarlane Medical
"Service Provider" means the company providing the website content management system and hosting services to the Owner for the website.
"Website" means "https://www.mcfarlanemedical.com.au/"
McFarlane Medical Equipment (Holdings) Pty Ltd
A.B.N. 73 006 561 002
Trading as McFarlane Medical & Scientific
1. These terms and conditions apply to all supplies of goods and services by McFarlane Medical Equipment (Holdings) Pty Ltd (A.B.N. 73 006 561 002) Trading as McFarlane Medical & Scientific (MM&S) including all Users of the Website. The Customer accepts these terms if it:
(a) advised McFarlane Medical & Scientific that it accepts these terms and conditions; or
(b) places an order for the purchase of goods and/or services from McFarlane Medical & Scientific including on the Website or
(c) after it receives these terms and conditions.
The supplies may be goods or services or both. References to McFarlane Medical & Scientific include references to all related bodies corporate of McFarlane Medical Equipment (Holdings) Pty Ltd (A.B.N. 73 006 561 002), such that those clauses are separately for the benefit of, and may be separately enforced by, each of them.
2. MM&S reserves the right to correct clerical errors in any document used with its customers and to amend these terms and conditions.
Definitions
3. In these terms and conditions, unless the context otherwise requires: GST:
(a) has the same meaning as in the GST Law;
(b) includes any other goods and services tax or any Tax applying to this Agreement in a similar way; and
(c) includes any additional tax, penalty tax, fine, interest or other charge under a law for such a tax.
GST has the meaning given to that term in Section 195 1 of the A New Tax System (Goods and Services Tax) Act, 1999 (Cth, as amended).
"Owner" means the company that owns the website, McFarlane Medical Equipment (Holdings) Pty Ltd (A.B.N. 73 006 561 002) Trading as McFarlane Medical & Scientific
"Service Provider" means the person, organisation or company providing the website content management system and hosting services to the Owner for the website.
"User" means the person or entity using the website.
"Website" means https://www.mcfarlanemedical.com.au/
Ordering Procedures
4. Supplies may only be ordered using MM&S's approved ordering procedures and relevant forms. MM&S may choose to accept a non-complying order.
5. There is no contract for the supply of supplies until MM&S accepts an order by notifying the Customer that it will supply the supplies or despatching the supplies.
Price
6. Prices are subject to change without notice and are variable in accordance with Manufacturer's prices and exchange rate variations. Prices are F.O.B. (Free on Board) from Surrey Hills, Victoria, Australia.
7. Due to the fact that some medical items are GST exempt, GST is not inclusive in the prices; all prices are GST exclusive.
8. Special bulk prices can be arranged where the customers indicates their needs over a specific period. Where large volumes are required, special prices can be offered.
9. Special prices at MM&S's discretion.
10. Subject to paragraph 6, unless otherwise agreed in writing, the price payable for the supplies shall be the price set out on the quotation or, if no price is set out on MM&S price list at the date of acceptance of the order plus transportation, packaging and any other expense incurred in delivering the supplies. For the avoidance of doubt, the price payable does not include GST.
11. A statement of the Customer's account by MM&S is prima facie evidence of its contents.
12. Where the quotation states that no monetary consideration is payable by the Customer for the supplies, the Customer's consideration is the Customer's agreement not to unreasonably decline to enter a further contract with MM&S or its dealers for the further supply contemplated by the supplies.
13. In addition to the price payable under the preceding clauses, the Customer, upon provision of a tax invoice by MM&S, must pay to MM&S any GST payable by MM&S in respect of any taxable supply made by MM&S under these terms and conditions.
Payment Terms
14. If the Customer applies for a credit facility and MM&S approves it, then
(a) MM&S will invoice the Customer for each order; and
(b) The Customer must pay each invoice in accordance with the terms of its respective credit facility. Payment terms are generally C.O.D. (cash on delivery), or 14 days from date of invoice for approved accounts. Some accounts allow payment terms of 30 days from date of invoice. The terms period are stated on the invoice.
(c) If the Customer defaults in payment then, without prejudice to any other right or remedy of MM&S, the Customer must pay to MM&S interest on any money overdue during the period of the default at the rate that is 4% per annum higher than reserve bank cash rate target as at the date of the default together with all of MM&S costs and expenses (including legal costs assessed on an indemnity basis and costs of a mercantile agent) incurred in connection with the default.
(d) MM&S reserves the right, at any time and in its absolute discretion, to withdraw credit facilities or impose conditions on them.
Payment of Terms
15. If MM&S has not approved a credit facility for the Customer then, at MM&S's election, the Customer shall pay the invoice for the supplies prior to MM&S despatching the supplies. The McFarlane term for this is COD.
16. All credit card orders require payment prior to dispatch. Credit card payments can be made with all major cards: Bankcard, Mastercard, Visa, Diners, American Express. EFTPOS is also available for your convenience.
No Set Off
17. The Customer shall pay any moneys owing to MM&S under these terms and conditions in full, and shall not set off such moneys against debts or liabilities owed or allegedly owed by MM&S to the Customer, except debts acknowledged in a credit invoice properly issued by MM&S.
Delivery and Quality
18. A delivery charge will be applied according to the size of order.
19. In the Melbourne (Victoria, Australia) Metropolitan area only the normal delivery charge is at a cost of $9.50 per delivery. Vaccines attract a higher fee. Melbourne metropolitan area, Victorian Country and Interstate orders delivery is charged out at cost. Please refer charge upon checkout.
20. All supplies delivered by MM&S to the Customer shall, to the extent permitted by law, be deemed to have been received by the Customer in good order and condition as soon as the delivery docket has been signed by the Customer, their carrier or agent.
21. MM&S is not responsible for the loss or damage of items delivered by outsourced courier enterprises.
22. Under no circumstances shall MM&S be liable for any loss or damage suffered by the Customer as a result of any late delivery or non-delivery of any supplies. Delivery times are estimates only.
Retention Of Title
23. Nothing in this clause is affected by the fact that MM&S gives the Customer any credit or credit facilities under these terms or any other agreement.
24. Supplies are "unpaid supplies" if:-
(a) they were supplied by MM&S;
(b) they are or have been in possession of the Customer, or under its power or control; and
(c) MM&S has not been paid in full for them or the Customer owes any money to MM&S on any account.
25. Title and property in unpaid supplies remains solely with MM&S, and the Customer or anyone else who possesses them holds them as bailee and on trust for MM&S.
26. Title and property in supplies under these terms passes to the Customer when the supplies cease to be unpaid supplies.
27. The Customer must ensure that unpaid supplies are stored separately and in a way that clearly indicates MM&S' title to them.
28. The Customer may not sell unpaid supplies except in the normal course of business as bailee and fiduciary agent of MM&S, provided that it holds all proceeds of the sale separately on trust for MM&S and must account MM&S for the proceeds of the sale unless and until MM&S has received payment in full of all amounts owing to MM&S from the Customer under this or any other agreement. MM&S shall have the right to trace the said proceeds of the sale into any moneys or property held by or for the Customer representing the said proceeds.
29. If the Customer breaches these terms (whether by failure to pay for supplies or otherwise) then the Customer hereby authorises MM&S, without notice, to enter the premises occupied by the Customer (or another premises where unpaid supplies are located) in order to inspect the unpaid supplies and recover possession of all or part of them. MM&S and its agents shall not be liable for any trespass, for any costs, losses, damages or other expenses suffered by the Customer or anyone else, and the Customer indemnifies MM&S and its agents in respect of any trespass and any costs, losses, damages or expenses suffered by the Customer or any other person in connection with the entry to such premises and/or the recovery of unpaid supplies.
30. It shall be deemed to be a breach of these terms if the Customer becomes, threatens or resolves to become, or is in jeopardy of becoming subject to any form of insolvency administration (including, but not limited to, the appointment of a liquidator, provisional liquidator, trustee, administrator, controller, receiver, or similar officer, in respect of the Customer or any of its assets) or dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving. Upon the happening of an event set out in this clause, the Customer shall immediately cease selling unpaid supplies (in the normal course of business or otherwise) and shall immediately return all unpaid supplies to MM&S.
31. The Customer hereby consents to MM&S recording the details of this agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by MM&S to effect such registration.
32. The Applicant waives any right or entitlement to receive notice of the registration of any security interest(s) created by this agreement on the Personal Property Securities Register.
Security / Charges
33. The Customer charges in favour of MM&S all of its estate and interest in any real property that the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
34. The Customer charges in favour of MM&S all of its estate and interest in any personal property that the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
35. No longer applicable.
36. The Customer appoints as its duly constituted attorneys each and all duly appointed Officers (directors and secretaries) of MM&S from time to time to execute in the Customer's name and as the Customer's act and deed any real property mortgage, bill of sale or consent to any caveat, MM&S may choose to lodge against real property that the Customer may own in any Land Titles Office in any state or territory of Australia, even though the Customer may not have defaulted in carrying out its obligations hereunder and the Customer agrees to pay all fees, stamp duty and other costs incurred by MM&S in relation to this clause.
37. Where the Customer has previously entered into an agreement with MM&S by which the Customer has granted a charge, mortgage or other security over real or personal property, those charges, mortgages or other security interests will continue and co-exist with the obligations and security interests created in this agreement. MM&S may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
Suitability of Supplies
38. Any description of supplies given by MM&S is for the purposes of identification only, and the Customer acknowledges that any sale of supplies under these terms is not a sale by description.
39. The Customer acknowledges that it relies entirely upon its own knowledge, skill and judgment and that of its agents and employees in selecting and ordering supplies from MM&S. MM&S will not provide any advice, express or implied, as to whether particular supplies are fit for any purpose, unless expressly agreed in writing signed by MM&S.
Claims
40. The Customer shall advise MM&S in writing of any claims: (a) in respect of deficiency or in respect of loss or damage that has occurred to supplies while they are in the custody of MM&S or MM&S' carrier - within 7 days of receipt of the supplies; and
(b) for non-delivery where MM&S' carrier was to deliver the supplies - within 14 days of the agreed delivery time (or if there was no agreed delivery time within 7 days of the reasonable delivery time).
41. In respect of clause 37(b), if the Customer does not advise MM&S as set out above, MM&S shall not be obliged to take any action in respect of that deficiency, loss or damage or non-delivery.
Warranties and Liability
42. Subject to the following sentence, all terms (whether express, implied, oral or otherwise except for mandatory legislative requirements) not expressly stated in these terms are excluded.
43. Subject to mandatory legislative requirements MM&S shall be under no liability to the Customer in respect of any loss or damage (including loss of profits, loss of revenue, loss of opportunity, loss of use, loss of goodwill or any other direct or indirect loss or damage whatsoever) whether arising in contract, tort (including negligence), equity, pursuant to statute or under any other principle of law except that
(a) in the case of supplies which are goods, where those supplies are defective, MM&S will, at MM&S' election:
i. replace the supplies or supply equivalent supplies;
ii. repair the supplies;
iii. pay the Customer the cost of replacing the supplies or of acquiring equivalent supplies;
iv. pay the Customer the cost of having the supplies repaired; or
(b) in the case of supplies which are services, where those supplies are defective, MM&S will, at MM&S's election:
i. supply the supplies again; or
ii. pay the Customer the cost of having the supplies supplied again.
Termination
44. MM&S may terminate the agreement constituted by these terms ("Agreement") immediately by notice in writing if:
(a) the Customer is in breach of any term of this Agreement and such breach is not remedied within 30 days of written notice by MM&S;
(b) the Customer becomes, threatens or resolves to become, or is in jeopardy of becoming subject to any form of insolvency administration;
(c) the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(d) the Customer, being a natural person dies; or
(e) the Customer ceases or threatens to cease conducting its business in the normal manner.
45. If such notice is given to the Customer, MM&S may in addition to terminating this Agreement:
(a) repossess the supplies from the Customer;
(b) retain any monies paid by the Customer, including any deposit;
(c) be regarded as discharged from any further obligations under this Agreement; and
(d) pursue any additional or alternative remedies provided by law.
Returns
46. MM&S shall not be obliged to accept the return of any supplies, but may, in its absolute discretion, subject to mandatory legislative requirements, accept the return of particular supplies on whatever conditions it thinks fit.
47. Returns not accepted without prior agreement. All claims for return under all circumstances are to be made within fourteen (14) days of original invoice date. Goods returned are to be approved for acceptance before a credit is raised. Goods, which are non-stock items and bought in for the client are non-Returnable. Exemptions are by special arrangement only.
47A. MM&S does not accept returns for all cold-chain items (including vaccines), items advertised as discounted due to short expiry, all pandemic related products & stethoscopes. The Panbio COVID-19 Ag Rapid Test Kits are strictly non-returnable, unless deemed faulty by the manufacturer.
48. MM&S reserves the right to charge a re-stocking fee of 10% of the full invoiced amount in respect of supplies returned by the Customer provided the supplies returned were the supplies that were supplied.
Resales
49. MM&S may set out or refer to a recommended retail price for supplies. In such a case, the price set out or referred to is a recommended price only and there is no obligation for anyone to comply with the recommendation.
Force Majeure
50. If as a direct or indirect result of natural disaster, industrial dispute, accident, government restriction, war, civil disturbance or any other cause, of whatever nature, outside of MM&S' control MM&S is unable to perform its obligations under these terms MM&S is released from those obligations to the extent of such inability, and the Customer shall not be entitled to claim compensation for any such failure by MM&S to perform its obligations.
Waiver
51. Failure by MM&S to enforce any of these terms in respect of any breach by the Customer shall not be construed as a waiver of any of MM&S' rights or a waiver of MM&S' right to enforce the term in respect of that breach in the future.
Governing Law
52. These terms shall be governed by and construed in accordance with the laws in force in Victoria, Australia and the Customer submits to the exclusive jurisdiction of the courts of Victoria, Australia.
Severance
53. If any provision of this Agreement is contrary to law (for example by being illegal void or unenforceable) that provision shall be read down to the extent necessary to become valid and enforceable or, if this is not possible, shall be deemed to be severed from this Agreement, without affecting the remaining provisions of this Agreement.
Assignment and Novation
54. This agreement shall not be assigned by the Customer without MM&S' prior written consent. The Customer shall consent to such assignment or novation of this Agreement as MM&S requests.
Intellectual Property
55. The Customer shall treat all information disclosed to it by or on behalf of MM&S, or acquired by the Customer concerning MM&S or the supplies as MM&S' confidential information and shall not use or disclose the same except:
(a) to the extent necessary in order to make effective use of the supplies;
(b) to obtain professional advice concerning this Agreement;
(c) to the extent disclosure is required by law; or
(d) to the extent any relevant information shall become public knowledge other than through the Customer's act or omission.
56. All intellectual property (including copyright) in all applicable plans, drawings, designs and text, which are made available to the Customer shall be solely owned by MM&S and shall be delivered up to that company immediately on MM&S request. The Customer acknowledges that no intellectual property licence is granted by this Agreement.
Customer Warranty
57. The Customer warrants that it has acted reasonably and in good faith to MM&S in disclosing to MM&S, prior to this Agreement, all information which may have materially affected MM&S' agreement to supply the supplies to the Customer on these terms.
Privacy
58. MM&S in accordance with its Privacy Policy, collects personal information (as defined in the Privacy Act, 1988 (Cth)) such as billing and delivery contact names and addresses information to assess the Customer's credit application (if applicable) and for other credit reporting purposes set out in the credit application, to facilitate provision of the supplies requested by the Customer and, unless MM&S is told otherwise, for marketing purposes.
59. If the Customer provides to MM&S personal information about any other person, it is the Customer's responsibility to bring to their attention the contents of this clause. MM&S may disclose the personal information to its agents, contractors and external advisers (for example, transport contractors and debt collection agencies) who are bound by confidentiality obligations. Failure to provide requested personal information may mean that MM&S is unable to provide the supplies requested. Requests for access to personal information held by MM&S and for a copy of MM&S' Privacy Statement should be made to the National Operations Manager who may be contacted using MM&S' address or telephone number.
60. The Customer consents to any electronic address it has set out on the application form being used by MM&S to send the Customer electronic messages for the purposes of administering the Customer's account and, unless MM&S is told otherwise, for marketing purposes.