Terms of Trade
1.1 Every Contract is governed by these terms.
1.2 Ottobock agrees to supply the Goods to the Customer in accordance with these terms and any Contract and in consideration for payment for the Goods and all other amounts payable to Ottobock by the Customer.
1.3 These terms between Ottobock and the Customer constitute the entire agreement between the parties and supersede all prior contracts, arrangements, purchase orders or understandings (if any) between the parties in relation to the Goods unless expressly agreed to the contrary in writing and signed by Ottobock.
1.4 Ottobock may vary these terms with 1 months’ notice to the Customer.
2. Quotations And Orders
2.1 All information about the Goods and other documentation including quotations provided by Ottobock to the Customer are invitations to do business.
2.2 Orders from the Customer are deemed to be offers to purchase on these terms.
2.3 Ottobock may in its absolute discretion choose to accept or reject an order received from the Customer. Such acceptance may be made by written notice or by the supply of Goods to the Customer.
2.4 Orders under A$300 attract an order handling fee
3. Prices & Payment
3.1 Prices of the Goods will be set out in the relevant Invoice and unless otherwise expressly stated all prices quoted to the Customer are exclusive of GST, Delivery, handling and modification charges.
3.2 The Customer must pay the GST payable in respect of Ottobock's supply of Goods.
3.3 Payment by the Customer of the price of all Goods supplied and of all other amounts on the Invoice must be made before, or immediately on, Delivery unless Ottobock has agreed to grant credit to the Customer where payment must be made by the end of the month following the month of the date of Invoice, or such other date as agreed by Ottobock in writing.
3.4 All payments by the Customer must be made without any set off.
3.5 The Customer acknowledges and agrees that interest at standard lending rates shall accrue on any balance of any overdue account.
4. Risk, Retention of Title & PPS Act
4.1 Unless a contrary intention appears, words or expressions used in this clause 4 that are defined in the PPS Act have the same meaning as given to them in the PPS Act.
4.2 If, at any time, Ottobock determines that these terms (or any of the Contract contemplated by or under it) creates a security interest in its favour over any personal property, Ottobock may apply for any registration, or give any notification, in connection with that security interest and the Customer must promptly, upon Ottobock's request, do anything (including, without limitation, signing and producing documents, getting documents completed or signed, obtaining consents and supplying information) to:
(a) provide more effective security over the relevant personal property;
(b) ensure that any such security interest in favour of Ottobock:
(i) is at all times enforceable, perfected (including, where applicable, by control as well as by registration) and otherwise effective; and
(ii) ranks as a first priority security interest;
(c) enable Ottobock to prepare and register a financing statement or a financing change statement or give any notification in connection with that security interest; and
(d) enable Ottobock to exercise any of its rights or perform any of its obligations in connection with any such security interest or under the
4.3 If Chapter 4 of the PPS Act would otherwise apply to the enforcement of the security interest created under these terms, the Customer agrees that the following provisions of the PPS Act will not apply:
(a) section 95 (notice of removal of accession), to the extent that it requires Ottobock to give a notice to the Customer.
(b) section 121(4) (enforcement of security interests in liquid assets - notice to grantor);
(c) section 125 (obligation to dispose of or retain collateral);
(d) section 130 (notice of disposal), to the extent that it requires Ottobock to give a notice to the Customer;
(e) paragraph 132(3)(d) (contents of statement of account after disposal);
(f) subsection 132(4) (statement of account if no disposal);
(g) section 142 (redemption of collateral); and
(h) section 143 (reinstatement of security agreement).
4.4 Ottobock does not need to give the Customer any notice required under the PPS Act (including, without limitation, a notice of a verification statement under section 157 of the PPS Act) unless the requirement for the notice cannot be excluded.
4.5 Neither party will disclose to a person or entity that is not a party to these terms or a Contract information of the kind mentioned in section 275(1) of the PPS Act unless section 275(7) of the PPS Act applies or that information is publicly available.
4.6 The risk in the Goods passes to the Customer when the Goods are loaded at the Ottobock warehouse for delivery to the Customer.
4.7 The Ottobock's rights under this clause 4 secure:
(a) the Ottobock's right to receive the price of all the Goods sold under these terms; and
(b) all other amounts owing to the Ottobock under these terms or any other agreement between the Customer and the Ottobock.
4.8 All payments received from the Customer may be applied by the Ottobock in the manner the Ottobock, in its absolute discretion, determines.
4.9 Until full payment in cleared funds is received by the Ottobock for all Goods supplied by it to the Customer, as well as all other amounts owing to the Ottobock by the Customer under these terms, a Contract or any other agreement:
(a) legal title and property in all Goods supplied under these terms remains vested in the Ottobock and does not pass to the Customer;
(b) the Customer must store the Goods separately and in such a manner and maintain any labelling and packaging of the Ottobock, so that the Goods are clearly and readily identifiable as the property of the Ottobock;
(c) the Customer must not sell the Goods except in the ordinary course of the Customer's business;
(d) the Customer holds and agrees to hold the proceeds of any sale, lease or other dealing with the Goods for the Seller in a separate bank account with a bank which does not (and will not in the future) provide finance to the Customer;
(e) in addition to any rights the Ottobock may have under Chapter 4 of the PPS Act, the Ottobock may, at any time, demand the return of the Goods and shall be entitled without notice to the Customer and without liability to the Customer, to enter any premises where it suspects the Goods may be located in order to search for and remove the Goods without committing a trespass, even though they may be attached or annexed to other goods or land not the property of the Ottobock, and for this purpose the Customer irrevocably licenses the Ottobock to enter such premises, undertakes that it will procure any necessary authority to enter from any relevant person and also indemnifies the Ottobock from and against all loss suffered or incurred by the Ottobock as a result of exercising its rights under this clause 4.9(e). If there is any inconsistency between the Seller's rights under this clause 4.9(e) and its rights under Chapter 4 of the PPS Act, this clause 4.9(e) prevails.
(f) the Customer acknowledges and warrants that the Ottobock has a security interest (for the purposes of the PPS Act) in the Goods and any proceeds described in clause 4.9(d); and
(g) the security interest arising under this clause 4.9(g) attaches to the Goods when the Customer obtains possession of the Goods and the parties confirm that they have not agreed that such security interest attaches at any later time.
4.10 The Buyer warrants that it does not intend to use the Goods predominantly for personal, domestic or household purposes.
5. Delivery & Installation
5.1 Ottobock is not liable to the Customer for any loss or damage consequential or otherwise for late, or failure to deliver the Goods.
5.2 Ottobock is not responsible for the installation of the Goods. Ottobock's instructions in relation to the Goods must be carefully followed and in many instances the Goods should only be installed, adjusted for use or incorporated into a good for use by an enduser with the advice and assistance of appropriately qualified and experienced medical practitioners, clinicians and skilled trades people. Common or technically unavoidable deviations do not constitute a defect. Every warranty is void upon modifications to the Goods that go beyond the current state of technology or which exceed our installation and classification instructions, especially MOBIS®.
6.1 Goods may not be returned other than with Ottobock’s prior written approval. Goods without a Return Authorisation will not be accepted.
6.2 If the Customer claims that a delivery of the Goods is in anyway defective they must advise Ottobock within 48 hours of Delivery and provide Ottobock with reasonable access to review, test and assess the Goods.
7. Implied Terms & Limitation of Liability
7.1 To the fullest extent permitted by law all statutory or implied warranties and conditions are excluded from the Contract.
7.2 To the extent permitted by law, the liability of Ottobock under any warranty or condition that cannot legally be excluded from the Contract is limited at Ottobock's option to:
(a) the repair or replacement of the Goods;
(b) the supply of equivalent goods;
(c) paying the cost of repair or replacement of the Goods; or
(d) paying the cost of the supply of equivalent goods.
7.3 Subject to clause 7.1, and to the maximum extent permitted by law, Ottobock’s maximum aggregate liability for all claims under or relating to a Contract is limited to the amount paid by the Customer for the Goods under the Contract.
7.4 Except as expressly provided in clauses 7.2 and 7.3, Ottobock will not be liable to the Customer or any other person in contract or tort for direct, indirect or consequential loss, damage, expense or injury suffered by the Customer or any other person in relation to the Goods supplied pursuant to the Contract.
8. Responsibility & Indemnity
8.1 The Customer is responsible for the proper operation, handling and use of the Goods and undertakes to operate, handle, maintain and use the Goods without risk to safety, health or the environment.
8.2 Without limiting the Customer's obligations under clause 8.1, the Customer acknowledges that the Customer has familiarised itself with any recommend operating procedures contained in any and operating instructions in respect of the Goods.
8.3 The Customer warrants that it has not relied on any express or implied representation, warranty or statement made by Ottobock in relation to the Goods.
8.4 The Customer indemnifies Ottobock and holds Ottobock harmless against any claim, loss or expense which Ottobock suffers or is liable for in respect of or in connection with: the Goods, or their use, operation, handling or resale by the Customer; Ottobock exercising its rights under clause 4.9(e); any failure, act or omission by the Customer; Ottobock or Ottobock’s Representative entering the Customer’s or the Customer’s Representative’s premises.
9. Privacy Statement And Consent
9.1 Ottobock collects, holds, uses and discloses personal information (and where appropriate, credit-related information) so that it can assess the Application, engage in relationships with customers and business contacts, take appropriate action in the event of a default, conduct market research, product development and quality assurance, inform customers about products and services in which it may be interested and to otherwise manage its business.
9.2 Ottobock may collect personal or credit-related information from Customer's agents and representatives, Ottobock's professional service providers, CRBs and collections agents.
9.3 If Ottobock is unable to obtain the personal information required, it may be unable to extend trade credit and provide products to Customer.
9.4 Credit-related information may be disclosed to CRBs to obtain credit reports and make notifications of overdue payments or defaults.
9.5 The Customer and any Guarantors can contact the CRBs directly to obtain access to their credit information and request that the CRBs not use such credit information for the purposes of pre-screening by a credit provider in relation to direct marketing. If the Customer and any Guarantors believe on reasonable grounds that it has been or is likely to be a victim of fraud or identity theft, it may request a CRB to not use or disclose such credit information during the ban period without prior consent, where a ban period is the 21 day period after such request is made.
9.6 Guarantor acknowledges that he or she has read and understood the matters in clause 9, and consents to Ottobock:
(a) collecting, using and disclosing his or her personal and credit-related information in accordance with this clause; and
(b) obtaining from a CRB consumer credit reports about him or her for the purposes of: assessing this application, determining whether to accept Guarantor as a guarantor of Customer, collecting any overdue payments, and maintaining the accuracy and currency of Ottobock's files as required under the Privacy Act 1988 (Cth).
In addition to any other right of termination it may have Ottobock may terminate a Contract if:
(a) the Customer fails to perform any precondition for Delivery of the Goods;
(b) the Customer:
(i) fails to pay a due amount following demand by Ottobock; or
(ii) commits an act of bankruptcy; or
(iii) a receiver is appointed to the Customer; or
(iv) goes into liquidation, administration, or any form of insolvency administration; or
(v) ceases, or threatens to cease, to carry on business; or
(vi) enters into a scheme or compromise with its creditors;
(c) the Customer purports to assign its rights under a Contract; or
(d) an event occurs outside the control of Ottobock which in Ottobock's opinion makes it impractical or impossible for it to fulfil its obligations under the Contract.
11.1 Ottobock will not be liable for any delay, breach or default under the Contract where such delay, breach or default results from causes beyond Ottobock's reasonable control.
11.2 Any indulgence which Ottobock may grant to the Customer will not prejudice or interfere with Ottobock's rights under a Contract and will not constitute a waiver.
11.3 The Customer is not a partner, joint venturer or agent of Ottobock and is not authorised to hold itself out as such or purport to incur any obligation, undertaking or warranty or representation on behalf of Ottobock.
11.4 Notices given by Ottobock may be given in writing, including by email, or through publication on Ottobock's website.
11.5 Ottobock may assign the benefit of, or sub-contract the performance of any Contract or part thereof to any person.
11.6 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
11.7 The laws of New South Wales govern this Contract.
ACL means the Australian Consumer Law as contained in schedule 2 of the Competition and Consumer Act 2010;
Customer means the entity set out in the application for credit to whom Ottobock supplies Goods;
Contract means a contract of sale of Goods resulting from the Customer's order accepted by Ottobock;
CRB means credit reporting bodies, including, without limitation, Veda Advantage and Dun and Bradstreet ;
Delivery means when the Goods have been loaded at Ottobock's warehouse for delivery to the Customer;
Goods means any goods and services supplied by Ottobock;
GST means goods and services tax as provided for in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Invoice means an Invoice issued by Ottobock in relation to a Contract;
Ottobock means Ottobock Australia Pty Ltd (ABN 35 001 242 360);
PMSI means Purchase Money Security Interest, as defined in the PPSA;
PPS Act means the Personal Property Securities Act 2009 (Cth);
PPSR means the Personal Property Securities Register); and
Representative means a party’s employees, agents and contractors.
Words importing the singular number include the plural and vice versa.