Terms and conditions of the sale of goods, supply and services for Getinge Australia Pty Ltd ABN 67 009 673 518 (Getinge)

    1. Binding terms and conditions

The only terms which are binding upon Getinge are those set out in these terms and conditions or otherwise agreed to in writing by Getinge and those, if any, which are imposed by law and which cannot be excluded.

    1. Status of price list

Any quotation or price list of Getinge is not an offer to sell but is an invitation to treat only and Getinge reserves the right to accept or reject in its absolute discretion any orders which may be received by it.

    1. Acceptance by Getinge

All orders are subject to acceptance by Getinge within 30 days of receipt of the Purchaser's order.

    1. Cancellation of orders

Orders cannot be cancelled without Getinge’s written consent and then under terms that will indemnify Getinge against any loss.

    1. Goods and services tax

Unless GST is expressly included, the purchase price for any supply made under or in connection with these terms and conditions does not include GST in which case, the purchase price is increased by the GST payable and must be paid at the same time.

    1. Delivery at store

Unless otherwise specified in writing, delivery is at Getinge’s store, and the cost of transportation of the goods must be paid by the Purchaser.

    1. Delivery charges where not at store

Where a place of delivery other than at Getinge’s store is specified in writing, the Purchaser must pay the costs of transportation of the goods to the place of delivery at the same time as, and in addition to, the price.

    1. Delivery date

Any specified delivery date is an estimate only. Getinge is not liable for any delay in delivery.

    1. Acceptance by Purchaser

The Purchaser must inspect the goods immediately upon delivery and must within 7 days give written notice to Getinge of any claim that the goods are not in accordance with the contract. Otherwise, to the extent permitted by law, the goods must be treated as accepted by the Purchaser and the Purchaser must pay for the goods in accordance with these terms and conditions.

  1. Variations
    1. 10.1. If the Purchaser requires any variation to an order after acceptance it must notify Getinge of the variation required but such variation will not be effective unless and until Getinge and the Purchaser agree in writing as to the amount by which or manner in which the price is to be varied as a consequence.
    1. 10.2. Getinge may make changes to its products, their delivery or packaging:
      1. without notifying the Purchaser if the changes improved the products or do not substantially deviate from the original specifications for the products; or
      2. in any other case, with the Purchaser’s approval.
    1. 10.3. Any attempt by the Purchaser to unilaterally vary the content of an order or these terms and conditions is void.
  1. Payment terms
    1. Subject to clause 9, the purchase price will be as specified in the quotation.
    2. Payment is required at time of purchase.
    1. Terms applying to all returns

The Purchaser must not return any goods which the Purchaser claims are not in accordance with the contract (whether or not the goods are treated as accepted by the Purchaser) unless Getinge has first given its written approval. Their return must then be with freight and cartage prepaid by the Purchaser.

    1. Returns where goods accepted

If Getinge has given its written approval to the return of goods treated as accepted under clause 8:

    1. credit will only be given for goods returned in a saleable condition; and
    2. a handling charge equivalent to 25% of the price of the goods returned may be charged.
    3. If the return is due to the customer’s request they will not be refunded the freight and will be charged a restocking
    4. If the return is due to Getinge’s request (eg. fault or recall) the customer will be refunded the full amount of their original order
    1. Returns where goods not accepted

If Getinge has given its written approval to the return of goods which are not treated as accepted by the Purchaser under clause 8 Getinge must refund the freight and cartage to the Purchaser if the Purchaser’s claim is found to be valid.

    1. Risk and insurance

Goods supplied are at the Purchaser’s risk immediately on delivery to the Purchaser, into the Purchaser’s custody or to a storage location because the Purchaser is unable to take custody of the goods (whichever is the sooner). The Purchaser must insure the goods at its cost from delivery of the goods and when the Goods are in storage, until they are paid for in full against such risks as it thinks appropriate (noting Getinge’s interest on the policy) and produce a certificate to this effect to Getinge on request.

    1. Retention of title

Regardless of delivery or possession, property in goods supplied does not pass to the Purchaser until the money owing for those goods, and any other money owing by the Purchaser to Getinge, has been fully paid. The Purchaser in the meantime takes custody of the goods and retains them as Getinge’s fiduciary agent and bailee. The Purchaser and Getinge agree that this retention of title clause constitutes a Security Interest and a Purchase Money Security Interest pursuant to the Personal Properties Securities Act 2009 (Cth) (PPSA) and that the security interest applies in respect of the goods and also the proceeds from sale of the goods pursuant to other clauses of these terms and conditions.

  1. Conditions and warranties required to be Binding

    The only conditions and warranties which are binding on Getinge in respect of:

    1. the services supplied by it, its employees, servants or agents to the Purchaser; or
    2. the state, quality or condition of the goods supplied by it to the Purchaser; or
    3. advice, recommendations, information or services supplied by it, its employees, servants or agents to the Purchaser regarding the goods, their use and application; are as set out in any written warranty provided by Getinge to the Purchaser or those imposed and required to be binding by statute (including the Competition and Consumer Act 2010).
  1. Limitation on liability

    To the extent permitted by law, Getinge’s liability (if any) arising from the breach of the conditions or warranties referred to in clause 16 is, at Getinge’s option, limited to and completely discharged:

    1. in the case of the goods, by either the supply by Getinge of equivalent goods or the replacement of the goods supplied;
    1. in the case of advice, recommendations, information or services, by supplying the advice, recommendations, information or services again; and
    1. in the case of services, by paying the cost of resupply of the services or supplying the services again.
    1. Exclusion of other conditions and warranties

Except as provided in clauses 16 to 19 all conditions and warranties implied by law in respect of the services and the state, quality or condition of the goods which may otherwise be binding on Getinge are excluded.

  1. Exclusion of consequential loss

    Except to the extent provided in clauses 16 to 18, Getinge has no liability (including liability in negligence) to any person for:

    1. any loss or damage consequential or otherwise suffered or incurred by that person in relation to the goods or advice, recommendations, information or services; and
    2. without limiting clause 19 (1) any loss or damage consequential or otherwise suffered or incurred by that person caused by or resulting directly or indirectly from any failure, defect or deficiency of any kind of or in the goods or advice, recommendations, information or services.
  1. Indemnity
    1. 21.1. The Purchaser indemnifies Getinge, regardless of any negligence of Getinge, against:
      1. all losses incurred by Getinge;
      2. all liabilities incurred by Getinge; and
      3. all costs actually payable by Getinge to its own legal representatives (whether or not under a costs agreement) and other expenses incurred by Getinge in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal); arising directly or indirectly as a result of or in connection with the supply of goods or services by Getinge to the Purchaser unless caused by wilful misconduct on the part of Getinge or any of its employees or agents acting within the scope of their employment.
    1. 21.2. The Purchaser must pay to Getinge all liabilities, costs and other expenses referred to in clause 20.1, whether or not Getinge has paid or satisfied them.
  1. PPSA
    1. 22.1. Words in this clause 37 have the meaning given to them by the PPSA. The Purchaser agrees to, upon request by Getinge, cooperate in good faith and provide all assistance necessary including signing documentation, to enable the registration, maintenance and amendment if necessary of any Security Interest arising because of this agreement in the Goods or the Proceeds of any dealing with the Goods including Goods purchased after the date of this agreement.
    1. 22.2. The Purchaser hereby waives the right to receive notice of a Verification Statement in relation to any registration of a Security Interest in respect of the Goods or the Proceeds.
    1. 22.3. The Purchaser must not register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the Goods in favour of a third party.
    1. 22.4. If Chapter 4 of the PPSA would otherwise apply to the enforcement of a Security Interest arising under or in connection with this agreement and:
      1. Section 115(1) of the PPSA allows for the contracting out of provisions of the PPSA, the following provisions of the PPSA will not apply and the Purchaser will have no rights under them:
        1. section 95 (to the extent that it requires the secured party to give notice to the grantor);
        2. section 96;
        3. section 118 (to the extent that it allows a secured party to give notice to the grantor);
        4. section 121(4);
        5. section 125;
        6. section 130;
        7. section 132(3)(d);
        8. section 132(4);
        9. section 135;
        10. section 142; and
        11. section 143; and
      1. Section 115(7) of the PPSA allows for the contracting out of provisions of the PPSA in relation to controllers, the following provisions of the
        1. PPSA will not apply and the Purchaser will have no rights under them:
        2. section 127;
        3. section 129(2) and (3);
        4. section 130(1);
        5. section 132;
        6. section 134(2);
        7. section 135;
        8. section 136(3), (4) and (5); and
        9. section 137.
      1. 22.5. Unless the Purchaser and Getinge otherwise agree and to the extent permitted by the PPSA, the Purchaser and Getinge agree not to disclose information of the kind referred to in section 275(1) of the PPSA to an interested person, or any other person requested by an interested person.

    The Purchaser waives any right it may have, or but for this clause may have had, under section 275(7) (c) of the PPSA to authorise the disclosure of the above information.

    1. 22.6. For the purposes of section 20(2) of the PPSA, the collateral is:
      1. the Goods described in the tax invoice from Getinge to the Purchaser at the time of the sale (or delivery) of the Goods and includes any Goods specified in each and every subsequent or updated tax invoice pursuant to this agreement from time to time and includes Goods which are inventory;
      1. an interest in commingled Goods to the maximum extent allowed by the PPSA; and
      1. the Proceeds of any dealing with the Goods.
    1. 22.7 The Purchaser must pay to Getinge on demand all of Getinge's costs associated with enforcement of any Security Interest arising under this agreement.
  1. Getinge terms and conditions prevail
    1. 23.1. The Purchaser agrees that these terms and conditions prevail over any purported terms and conditions of the Purchaser which may be found on a purchase order form, sales order form or on the website of the Purchaser (Purchaser's terms) notwithstanding:
      1. These terms and conditions may be entered into prior to the execution of an order form of the Purchaser; and
      1. Anything to the contrary in the Purchaser's terms.
    1. Privacy

Where goods and services are supplied to the Purchaser on credit the Purchaser irrevocably authorises Getinge, its employees and agents to make such enquiries as it considers necessary to investigate the credit worthiness of the Purchaser including (without limitation) making enquiries from persons nominated as trade referees, the bankers of the Purchaser or any other credit providers (Information Sources) and the Purchaser authorises the Information Sources to disclose to Getinge all information concerning the Purchaser which is within their possession and which is requested by Getinge.

    1. Force majeure

If a party is prevented from or delayed in complying with an obligation (other than to pay money) by an event beyond its reasonable control, performance by it of that obligation is suspended during the time, but only to the extent that, compliance is prevented or delayed.

  1. Entire understanding
    1. 26.1. These terms and conditions:
      1. are the entire agreement and understanding between Getinge and the Purchaser on everything connected with the subject matter of these terms and conditions; and
      1. supersede any prior agreement or understanding connected with that subject matter.
    1. 26.2. Getinge and the Purchaser have entered into these terms and conditions without relying on any representation by the other or any person purporting to represent the other.
    1. Waiver

A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing. Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

    1. Governing law and jurisdiction

The law of Queensland governs these terms and conditions. The parties submit to the non-exclusive jurisdiction of the courts of Queensland and of the Commonwealth of Australia.

Warranty Statement for Getinge Australia Pty Ltd ABN 67 009 673 518 (Getinge)

  1. Application of warranty
    1. 1.1. This warranty statement covers:
      1. the new goods purchased through Getinge set out in clause 2.2; and
      1. workmanship required to install the goods, sales support, maintenance, education and training that is connected with the goods, if provided;
      1. but does not apply to the freight of the goods to the Purchaser's delivery location.
  1. New goods
    1. 2.1. This warranty statement covers the following new goods for the relevant specified period;
      1. single use disposable items have a warranty period of 30 days;
      1. Sterilizers (healthcare, laboratory, bio-containment or pharmaceutical), Washer Disinfectors (single and multi-chamber), Cabinet Washer Disinfectors (trolley or container), Stand-alone or integrated steam generators, Water stills and pure steam columns, Drying cabinets, ultrasonic cleaners, heat sealers and other accessories, Ventilators, Heart Lung Machines, Electro Surgery Equipment, Extracorporeal Life Support (ECLS), TEGRIS, Intra-Aortic Balloon Pumps and related equipment have a warranty period of 12 months;
      1. Operating Tables, Surgical Lights and Ceiling Supply Units have a warranty period of 24 months.
  1. Warranty
    1. 3.1. The Goods must:
      1. be fit for the purpose for which goods of the same kind are commonly supplied and any other reasonable purpose made known to the seller;
      1. be of merchantable quality and to be free from defect in material and workmanship; and
      1. carry any applicable manufacturer's warranty which passes on to any Purchaser or customer from the Purchaser without liability to the Purchaser. Getinge must assign to the Purchaser at the request of the Purchaser the benefit of any warranty or guarantee that Getinge has received from any supplied (whether under contract or by implication or operation of law).
    1. 3.2. Unless otherwise agreed in writing, Getinge undertakes to guarantee from defect the goods, including any ancillary components , supplied to the Purchaser and will at the Getinge’s discretion undertake to effect any repairs and or replacements necessary in order to maintain the goods in full working order for the relevant period specified above from the completion date of installation or commissioning (whichever is that later), subject to the following conditions:
      1. All claims are made directly to Getinge immediately on discovering the defect and the Purchaser must have taken all reasonable steps to limit further defects or damage arising to and because of the goods including following any reasonable instructions given by Getinge’s representatives at the time of reporting the defect.
      1. Such repair work, unless otherwise agreed at the time of reporting the defect, will be carried out on site during normal working hours, i.e. Monday to Friday 8.00 am to 4.00 pm. The Purchaser must at all times ensure that adequate access is made available to Getinge’s representatives to inspect and were necessary effect repairs to the goods.
      1. At the discretion of Getinge a request may be made to the Purchaser to provide an official purchase order to cover the cost of the visit. In the event of the claim falling outside of the terms stated in this warranty statement the purchase order will be used as the basis of invoicing the costs of the effected repairs.
      1. The goods or any ancillary part of it must have been properly installed and operated in accordance with the goods operating and maintenance instructions and must not have been subject to any use for which it was not originally intended. The fault or any damage sustained, must not have been caused by the inadequate provision, improper quality or the aggressive action of any of the mains supply services, i.e.: steam and it’s condensate, compressed air, water, electricity and connected drainage or vents or by any unfavourable local environmental conditions.
      1. Goods not installed or commissioned by Getinge or its appointed agent will not be covered by the warranty unless otherwise agreed in writing by Getinge.
      1. Getinge may at its sole discretion reserve the right to submit for examination to its Suppliers any part or sub-assembly deemed to require further investigation pending possible specialist repair. Whilst Getinge will endeavour to pass on the benefits of any third-party warranties, the decision of the Supplier based upon their own terms and conditions of any warranty claim shall be final and binding on all parties.
      1. Items of a consumable nature, e.g. door seals, gaskets, valve seatings, recorder charts, filters, globes, like handles, like components and printing materials are excluded from this warranty provided that these have demonstrated to have fulfilled the requirements of operational fair wear and tear.
      1. Where the goods concerned are not subject to a routine servicing agreement with Getinge, Getinge will request that satisfactory evidence is provided that demonstrates that the goods concerned has been fully maintained in accordance with the programme of planned preventive maintenance detailed and described in the appropriate sections of the technical manuals.
      1. The goods must not have been subject to unauthorised repairs, adjustments or disassembly or the incorporation of parts or materials not of the original goods manufacture or specification.
      1. Only defects brought about by deficiencies in materials, structure, and in the design, manufacturing and welding processes are covered and this warranty excludes any deterioration, fatigue or failure associated with the mechanism of stress corrosion cracking due to the adverse action of aggressive chemicals, in particular chloride ions, known or thought to be present in the connected mains supply services or the materials processed in, or otherwise exposed to, the sterilizer or washer disinfector chamber, jacket or attachments.
      1. Getinge excludes from the terms of this warranty any responsibility for the recalibration, performance of thermometric, biological or other testing or process revalidation in relation to the repaired goods other than that deemed necessary by Getinge at the time of the repair.
      1. Where there have been delays during any stage of the construction, installation and commissioning processes outside the control of Getinge, then Getinge reserves the right to take these delays into account in determining the effective warranty period of the goods.
      1. Where the claim has been invalidated by any of these conditions, Getinge reserves the right to raise charges to the Purchaser for all or part of any work or necessary inspection, or testing undertaken on the goods that was subject to the original claim or the processing of this claim.
      1. To the extent permitted at law, neither Getinge, its employees nor any authorised agents shall be liable for any loss or damage, whether or not coincidental; loss of profits or expenses of any kind whatsoever and however caused, arising in connection with the goods, materials or parts supplied by Getinge.
      1. This warranty shall apply in lieu of any warranty or condition implied by law as to the quality or fit for any particular purpose of the goods except any implied by law which by law cannot be excluded.
    1. Refurbished goods

Subject to section 2 where the goods concerned is a refurbishment or upgrade modification of existing goods originally supplied by the Company or other manufacturer, then in this case, these warranty conditions shall apply only to those items and the associated works undertaken in relation to and limited to, the extent of the modification works carried out by Getinge.