Terms and Conditions
STANDARD TERMS AND CONDITIONS OF SALE
(a) These terms and conditions of sale ("Terms") shall form part any agreement for the supply of Goods and Services to the Customer by Hospira Pty Ltd (ABN 13 107 058 328) or any associated Company ("Hospira").
(b) By making payment, or taking delivery of Goods, the Customer shall be deemed to agree in full to these Terms.
(c) In the event that these Terms conflict with any other written offer made by Hospira for the sale of Goods or Services ("Offer"), or the terms and conditions issued by the Customer ("Customer Terms"), the terms and conditions of the Offer will prevail followed by these Terms, followed by the Customer Terms.
(d) In these Terms:(i) "Goods" means any product supplied by Hospira to the Customer; (ii) "Customer" means the purchaser of Goods or Services from Hospira; (iii) "Order" means an order for the supply of Goods or Services pursuant to these Terms; and (iv) "Services" means any service supplied to the Customer by Hospira.
(a) Orders are not binding on Hospira until they have been accepted in writing or performed by Hospira.
(b) The Customer agrees to limit its Orders for Goods to a maximum of 1 Order per week per wholesaler branch, except by prior arrangement with Hospira.
(c) No changes to processed Orders will be accepted.
(d) If a delivery address provided by the Customer is incorrect Customer must pay any freight costs incurred by Hospira as a result of the incorrect address
(e) All Orders are subject to a minimum order value which is $2,000 for wholesalers and $250 for hospitals or other non wholesaler customers. Where an Order is for less than the applicable minimum order value the Customer will incur a $50 surcharge.
(a) If a delivery date is specified, Hospira will endeavor to deliver within the time specified but in no circumstances will Hospira be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any delay or failure of delivery in whole or in part.
(b) Hospira does not offer a free same day delivery service. Hospira May invoice the Customer for any additional freight and handling charges if the Customer requires delivery on an expedited or emergency basis.
(c) Air Freight will be used in emergency situations only. Orders that require an Air Freight service must be approved by the Hospira Customer Service Manager and will be subject to additional fees.
(d) Hospira may make part deliveries of any Order and each part delivery shall constitute a separate sale of Goods upon these Terms.
(e) Hospira may suspend or cancel deliveries to any Customer without notice where the Customer's account has exceeded the due date for payment and/or the Customer's credit account limit.
(f) The Customer shall inspect the Goods upon receipt for any damage and conduct a piece count before carrier departs. Customer must give notice to Hospira Customer Service of any matter by which the Customer alleges that the Goods are not in accordance with the Customer's Order within 5 working days from receipt of Goods. In the absence of such notice, and to the extent permitted by law, the Goods are deemed to have been delivered and accepted by the Customer. The quantity, date, time and place of delivery as indicated on the carrier's consignment note or copies thereof shall be deemed to be conclusive evidence of quantity, date, time and place of delivery of Goods.
(g) Requests for "Proof of Delivery" (POD) received after three months of delivery will be subject to a $50.00 processing fee.
4. RETURN OF STOCK AND CLAIMS FOR CREDIT
(a) Customer must notify Hospira Customer Service within 5 working days of delivery of Goods if Customer intends to return Goods (including returns for replacement or credit).
(b) These Terms and Hospira's Return Policy 5.5 apply to all returned goods requests. If there is any inconsistency between Return Policy 5.5 and these Terms, these Terms will prevail.
(c) The requirements for returned goods requests are as follows: (i) No return of Goods will be accepted without prior authorization from Hospira Customer Service; (ii) A separate "Returned Goods Authority" (RGA) number must be issued by Hospira Customer Service prior to the return of Goods; (iii) The RGA must accompany each item returned; (iv) Customer must complete the storage conditions statement provided by Hospira as part of the RGA; (v) when returning Goods, Customer must certify that the Goods concerned have been stored in accordance with the requirements of the Australian Code of Good Manufacturing Practice (GMP) for Medical Products issued by the Therapeutic Goods Administration ("Code"); and (vi) Every return of Goods (except in the case of Medical Device Products) must be accompanied by a temperature monitor.
(d) Claims for Credit are subject to the following conditions but in some instances may be accepted at the discretion of Hospira Management: (i) If goods are ordered in error by Customer then the customer is liable for a re-stocking fee of $250; (ii) If goods are delivered in error by Hospira the
incorrect delivery will be returned to a Hospira warehouse at no cost to the Customer and a full credit will be issued; (iii) If goods are damaged in transit: photographic evidence of damaged goods must be supplied for any claims over the value of $500. Upon receipt of photographic evidence Hospira reserves the right to reject any claim. Hospira may request physical return of Goods, especially if alleged product tampering is suspected; (iv) Incorrect pricing has been applied by Hospira: pricing queries received more than six months from the original invoice date may be subject to a search fee; or (v) Goods are short-dated or expired: a credit will be issued if the Goods have an expiry date of less than nine months from the date of delivery.
(e) Hospira reserves the right to reject Claims for Credit in the following circumstances: (i) if Goods are returned in packaging that is damaged, written upon or otherwise marked or are otherwise in an un-saleable condition; (ii) if Goods are returned in opened packages / cartons; or (iii) if Goods have been made or labelled to a specific Order or are otherwise custom made for the Customer.
(f) If the Goods were received by Customer in an acceptable condition, then prior to any return of the Goods to Hospira for repair or replacement, the Customer must claim the cost of such repair or replacement through its insurer. To the extent that the Customer on-sells or distributes (without charge) to any third party, the Customer must ensure that the third party also meets this Customer must ensure that the third party also meets this condition.
5. TITLE & RISK
(a) Legal and equitable title to any of the Goods supplied by Hospira to the Customer shall only pass to the Customer upon payment to Hospira of all amounts which are owing to it in respect of such Goods.
(b) Risk in the Goods passes to Customer upon delivery and the Customer will be responsible for insuring the Goods against any loss or damage to, or destruction of, the Goods.
(c) Customer agrees to keep the Goods, pending payment for such Goods, as fiduciary for Hospira in a manner that clearly shows the ownership of Hospira. The Customer may mix the Goods with others and sell the Goods whether mixed or not as Hospira's fiduciary to a third party in the ordinary course of the Customer's business and deliver them to that third party provided that the Customer shall keep the proceeds of those sales in a separate account with separate records in accordance with its fiduciary obligations.
(d) In addition to the rights granted to Hospira in paragraph 5(c) above, if: (i) any amount payable by the Customer in respect of the Goods remains unpaid 30 days after the date it first became due and payable; (ii) the Customer breaches these Terms; or (iii) the Customer becomes insolvent or makes an assignment for the benefit of its creditors, or is placed under official administration in respect of any of its assets; then Hospira may retake possession of any Goods for which Hospira has not received payment in full wherever they are located and the Customer irrevocably authorizes Hospira to enter upon the premises of the Customer for that purpose without any court action or other process at law and then to recover the cost of that repossession from the Customer as a debt
(a) Unless otherwise agreed in writing, the price by the Customer for the Goods or Services is Hospira's current price at the time of ordering. Prices shown on any price list may be subject to alteration without notice.
(b) If the Customer is a resident of Australia: (i) where a party to an Order ("Supplier") makes a Taxable Supply under or in connection with the Order or in connection with any matter or thing occurring under the Order to another party the Order ("Recipient") and the consideration otherwise
payable for the Taxable Supply does not GST,the Supplier will be entitled to recover from the Recipient the amount of any GST on the Taxable Supply; (ii) where a party to an is entitled, under or in connection with the Order, to recover all or a proportion of its costs or is entitled to be compensated for all or a proportion of its costs, the amount of the recovery or compensation shall be reduced by the amount of (or the same proportion of the amount of) any Input Tax Credits available in respect of those costs; and (iii) defined terms used in this clause have the meaning given to such terms in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(a) The Customer is required to make payment of the amount due (without set off, counterclaim or any deduction) to Hospira within net 30 days from date of statement or invoice.
(b) If the Customer fails to make payment in accordance with this clause, after demand for payment by Hospira, all amounts owing by the Customer to Hospira on any account shall immediately become due and payable.
(c) If, in Hospira's opinion, the Customer's financial position becomes unsatisfactory, cash payments or security satisfactory to Hospira may be required by Hospira from the Customer for future deliveries and for the Goods or Services which have been previously delivered or supplied. If such cash payment or security is not provided, in addition to Hospira's other rights and remedies, Hospira may discontinue deliveries or supply.
8. WARRANTIES AND CONDITIONS
(a) Any description of the Goods or Services which appears on any invoice or other sales document or purchase order is given solely for identifying the specific Goods or Services that are the subject of these Terms and does not render the sale a sale by description.
(b) All warranties and conditions, other than those expressly set out herein, whether statutory or otherwise as to the Goods or Services and as to the quality, fitness or suitability for any purpose are hereby excluded except to the extent of any non-excludable warranty, condition or liability of Hospira provided for by the Competition and Consumer Act 2010 (Cth) or any other relevant and applicable legislation.
(c) If those statutory provisions apply, to the extent which Hospira is entitled to do so, its liability will be limited at its option to the replacement of the Goods or Services; the re-supply of equivalent Goods or Services; or the payment of the cost of replacing the Goods or Services or acquiring equivalent Goods or Services.
(d) To the extent permitted by law, Hospira will under no circumstances be liable to the Customer for any loss, damage, liability, expense, injury or death sustained or incurred by the Customer or any other party, including without limitation any loss of profits, or economic, special, indirect or consequential loss or damage, whether resulting directly or indirectly out of any negligence of Hospira, the supply, performance or use of any Goods or Services or out of any breach of Hospira under any contract incorporating these Terms or any other cause. (e) In no event shall the liability of Hospira, whether under paragraphs (c) or (d) above, or otherwise, exceed the purchase price of the goods or Services supplied by Hospira.
(a) Hospira may terminate any agreement or arrangement to supply Goods or Services to the Customer by giving notice to the Customer if:(i)the Customer breaches any of its obligations under any agreement with Hospira and does not rectify the failure (where the failure is rectifiable) within 14 days of notice; or (ii) a receiver, receiver and manager, administrator, trustee, mortgagee or similar official is appointed over any of the assets or undertakings of the Customer, any application/order/steps are made or taken to pass a resolution for the liquidation of the Customer, or the Customer enters or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them.
(b) Termination will not affect any rights or obligations which may have accrued prior to termination.
(a) The Customer consents to the disclosure by or to Hospira (and to persons with whom Hospira may have a legitimate reason to share such information) of any personal or other information of the Customer by it or others.
(b) The construction, operation and performance of any contract subject to these Terms shall be governed by the laws of the State of Victoria and the parties accept the jurisdiction of the Courts of that State for resolution of any dispute.
(c) Hospira reserves the right to vary these Terms at any time. Customers will be advised of any changes in the Terms through trade account receipts, notices on, or with price lists, account statements or invoices, via Hospira's website or other such means.
(d) Hospira may transfer all or any part of its rights, interests, obligations or liabilities under this Agreement by assignment or by notation without the Customer’s consent. Customer may transfer only with the prior written consent of Hospira.
(e) No waiver of any provision of these Terms or any Agreement will be of any force or effect unless confirmed in writing, signed by the parties.
(f) Time is of the essence in respect to all of Customer's payment obligations
(g) Any provisions of these Terms that are prohibited or unenforceable under the laws of a jurisdiction shall not apply in that jurisdiction and will not affect the validity or enforceability of the other provisions of these Terms.
(h) The rules of the United Nations Convention on Contracts for the International Sale of Goods are expressly excluded and are not applicable in respect of the Goods supplied by Hospira to the Customer
11. PPSA SECURITY INTERESTS
(a) In this clause "commercial property", "proceeds", "security agreement" and "security interest" have the meanings given to those by the Personal Property Securities Act 2009 (PPSA).
(b) The Customer acknowledges and agrees that these terms and conditions: (i) constitute a security agreement for the purpose of the PPSA; and (ii) create a security interest in: (A) all goods supplied by Hospira to the Customer on retention of title terms; and (B) the proceeds of sale of goods supplied on retention of title terms by Hospira to the Customer.
(c) The Customer must act immediately when requested by Hospira to do such acts and provide such information as Hospira reasonably considers necessary or desirable to enable Hospira to perfect any security interest created or provided by these provisions in the goods or any proceeds, with first priority or such other priority that Hospira requires.
(d) The following provisions of the PPSA do not apply – section 95 (notice of removal of accession, to the extent that it otherwise requires Hospira to give a notice to the Customer), section 130 (notice of disposal, to the extent that it otherwise requires Hospira to give a notice to the Customer), section 132(3)(d) (statement of account), section 132(4) (statement of account if no disposal), section 135(1)(a) (notice of retention, to the extent that it otherwise requires Hospira to give notice to the Customer), and section 143 (reinstatement).
(e) The Customer waives its right under section 157 PPSA to receive a notice in relation to any registration event in connection with any collateral that is commercial property.
(f) Hospira may delay disposing of, or taking action to retain, the whole or part of the collateral beyond the period mentioned in section 125(2) of the PPSA for as long as Hospira sees fit provided Hospira acts honestly.
(g) Hospira reserves all rights and powers in relation to any security interest that is in addition to any right or power conferred under the PPSA.
(h) Hospira may choose between its various rights and powers, including for enforcement of its security interest, as Hospira sees fit and without limiting other rights and powers.