Terms of trade
In these terms and conditions:
“Company” means ‘iOrthotics Pty Ltd (ACN 157 671 568)’.
“Customer” means the person(s) or body(ies) corporate to whom these terms & conditions are directed.
“custom made foot orthotics” means orthotics which are manufactured by the Company on prescription supplied by a podiatrist or other health practitioner.
“goods” means all goods ordered from the Company by the Customer (including but not limited to the custom made foot orthotics and/or prefabricated devices).
“GST” means the same as it does within the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“PPSA” means Personal Property Securities Act 2009 (Cth).
“prefabricated device” means foot orthotics which are not manufactured by the Company but which are otherwise sourced by the Company for supply to the Customer.
“services”, whether in isolation or in conjunction with the goods, means the services of supply, delivery, fitting, maintenance and/or repairs provided by the Company in relation to the goods.
“tax” means, any tax or duty imposed pursuant to legislation on any supply made in accordance with these Terms and Conditions of Sale.
2. APPLICATION OF TERMS:
The placement by the Customer of an order for goods and/or services with the Company, whether written or verbal, is deemed acceptance of these Terms and Conditions by the Customer.
The Company may vary these Terms and Conditions of Sale from time to time. The Customer agrees that the ordering of any goods and/or services after the notice of variation has been issued to the Customer will constitute an acceptance by the Customer of the variation of any of these Terms and Conditions.
No variation of any of these Terms and Conditions of Sale made by the Customer shall be binding on the Company unless agreed by an authorised officer of the Company in writing. No agent or representative of the Company has the authority to waive or alter these Terms and Conditions of Sale.
In the event of conflict between these Terms and Conditions of Sale and those conditions which may be included in, or implied by, any document forming part of any enquiry, specification, order or contract, then these Terms and Conditions of Sale shall prevail. If any condition expressed herein is deemed to be contrary to or excluded by law, then these Terms and Conditions of Sale shall be modified, but only to the extent of those parts of the Terms and Conditions of Sale affected.
A quotation shall remain open for acceptance for thirty (30) days from the date thereof. A quotation is not to be construed as an offer or obligation to sell to a Customer and the Company reserves the right to accept or decline any order for goods and/or services (wholly or partially) at any time prior to the delivery of goods and/or services, in which event the Company shall be under no further obligation in respect of the order for the goods and/or services. The acceptance of any quotation must be accompanied by sufficient information to enable the Company to proceed with the order to completion.
Any prices quoted by the Company to the Customer apply only if all of the goods and/or services included in the quotation are purchased. Should the Customer require part supply only, the Company reserves the right to submit a revised quotation.
If the Customer requests any variation to the quotation, the Company may increase the quotation to account for the variation.
All prices are based upon current manufacturing costs and current costs of materials, labour and insurance, current rates of freight, import duty and currency exchange and all other costs and charges prevailing at the date of the quotation. Should there be any variation in any such costs, rates or charges, the Company shall have the right to vary the quoted price to enable it to enjoy the same profit margin as if no variation in the said costs, rate or charges, had taken place.
5. TERMS OF PAYMENT:
Time for payment for any goods and/or services is of the essence.
The Company reserves the right to require cash payment in full on delivery of the goods and/or supply of the services to the Customer.
Subject to clause 2 unless agreed otherwise payment is required within 30 days from the date of manufacture and/or sourcing by the Company of the goods.
Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
Payment terms may be revoked or amended at the Company’s sole discretion immediately upon giving the Customer written notice.
The Company may at its discretion charge interest on any overdue invoiced amount at a rate of 1.5% per month (18% per annum), calculated pro rata, until the invoiced amount is received in full.
The Company reserves the right to commence recovery action on an overdue amount without notice to the Customer. Any legal or collection costs incurred in the recovery of any overdue amounts will be recoverable from the Customer on an indemnity basis.
The Company will endeavour to deliver goods within five (5) working days from the receipt by the Company of an uploaded scan and prescription or receipt of physical moulds however, delivery time is not guaranteed nor is it of the essence.
Delivery charges will apply where an order with a value of less than $200.00 is placed by a Customer in any one order.
In the event a Customer requests express delivery the Company will endeavour to deliver the goods within two (2) business days however, the Company will not be liable to the Customer should an express delivery timeframe not be achieved. Express delivery orders must be received by 12.00 pm on any one day. In the case of express delivery the cost of the goods shall be increased by an additional $30.00 per pair of orthotics. Additional delivery charges will also be incurred.
7. RETURNS POLICY:
The Customer shall inspect the goods on deliver and shall within seven (7) days of delivery (time being of the essence) notify the Company of any alleged defect, damage or failure to comply with the prescription supplied by the Customer. The Customer shall afford the Company an opportunity to inspect the goods within a reasonable time following delivery if the Customer believes the goods are defective in any way and/or that same fail to comply with a prescription supplied by the Customer to the Company. If the Customer shall fail to comply with these provisions the goods shall be presumed to be free of any defect or damage. For defective goods, which the Company has agreed in writing that the Customer is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the goods or repairing the goods, except where the Customer has acquired goods as a consumer within the meaning of the Trade Practices Act 1974 (Cth) or the Fair Trading Acts of the relevant States or Territories of Australia, and is therefore also entitled to, at the Company’s discretion, either a refund of the purchase price of the goods or repair of the goods or replacement of the goods.
Goods will not be accepted for return other than in accordance with clause 1 above.
8. TITLE & PROPERTY:
Unless the Company otherwise specifies in writing, all goods sold by the Company to the Customer shall be, and remain, the property of the Company until the full purchase price thereof, and of all other goods sold by the Company to the Customer, has been paid in full to the Company.
In the event that the Customer breaches the obligations set out above, the Customer agrees to hold the purchase price of the goods on trust for the Company.
The Customer gives the Company, its agents and employees an irrevocable licence to access any premises where the goods sold to the Customer by the Company are stored from time to time for the purposes of inspecting and/or repossessing the said goods. The Customer releases and discharges the Company from any and all claims which the Customer may have against the Company arising from the exercise of this right.
The Customer agrees to indemnify and hold the Company, its agents and employees harmless against any and all claims, suits or actions, including for costs (whether by the Customer or a third party) arising from the entry or repossession of the goods by the Company, its agents or employees pursuant to clause 4.
The Customer agrees to pay all costs, including legal costs on an indemnity basis, of the Company incurred in repossessing goods pursuant to clause 4.
9. RISK AND INSURANCE:
All goods will be at the Customer’s risk and will become the Customer’s insurance responsibility after they leave the Company’s premises. If the Customer requests it in writing, the Company may, at the Customer’s expense, insure the goods.
The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the goods sold by the Company, save where such liability arises from the Company’s own negligence.
Unless otherwise expressly agreed, or shown on an invoice or quotation issued by the Company, the prices specified do not include taxes. The Customer must bear and pay all such taxes.
The Company may recover from the Customer the amount of any GST in relation to any goods and/or services in addition to, and at the same time and in the same manner as, any amount that the Customer is obliged to pay for those goods and/or services.
11. INTELLECTUAL PROPERTY:
Copyright in all custom made foot orthotics manufactured by the Company shall remain vested in the Company at all times.
12. APPLICABLE LAW:
Any supply of goods and/or services by the Company to the Customer, and these Terms and Conditions of Sale, will be governed by the laws of the State of Queensland.
The Company does not give any warranty or make any representations that the goods are free from defect in workmanship and/or materials (save for those warranties which are imposed by statute, which cannot be contracted out of).
The goods will be deemed to be defective if the goods are not of merchantable quality or do not conform with any specification or other description given to the Company by the Customer. Where the goods and/or services are defective, the Company at its option may elect to:
replace the goods or refund the cost of the goods;
repair the goods or reimburse the Customer for the cost of repairing the goods;
resupply the services;
if payment of the purchase price has not been made for the goods and/or services by the Customer, release the Customer from any obligation to pay the purchase price; or
if payment of the purchase price for the goods and/or services has been made by the Customer, refund the purchase price to the Customer, subject to the Customer, where applicable, first restoring the unencumbered ownership of the goods to the Company.
The Company will make good by repair, or at the Company’s option by replacement, reimbursement or refund, any goods which break, bend or deform under proper use in the case of EnviroPoly custom made foot orthotics within twelve (12) months after original delivery and in the case of any EVA custom made foot orthotics within six (6) months after original delivery. The Company’s liability is limited to the replacement of the goods for manufacturing and/or design faults only.
All prefabricated devices supplied are subject to manufacturer’s warranty which, in general, covers replacement of parts but does not include any charges arising from labour, travel or freight.
Claims for replacement of faulty materials under manufacturer’s warranty will be referred to the respective manufacturer and all costs over and above manufacturer’s allowance to the Company are payable by the Customer.
Other than any remedies the Customer may have pursuant to law or statute, the sole remedies of the Customer under or in relation to the supply of goods and/or services by the Company to the Customer, whether in contract, in tort, under statue or otherwise are only as specified in these Terms and Conditions of Sale and are subject to the limitations set out in clause 8 and the following limitations:-
the Company, the Company’s officers, employees and agents, will not have any liability or other obligation to any person or other entity, including the Customer, arising out of, or in any way directly or indirectly connected with, the matters referred to in clause 2, except to comply with its obligations (subject to the other provisions and limitations in this clause 14) under clause 14.2.
all conditions, warranties and other terms pertaining to the condition or quality of goods are excluded to the extent permitted by law;
the Customer warrants and represents that it is relying upon its own skill and judgment in relation to the quality of the goods, and their fitness for any purpose for which they may be required, and not upon any conduct or representation of the Company or any of the Company’s officers, employees or agents; and
the Customer must not make any claim or demand, or take any action or other proceeding against the Company, or any of the Company’s officers, employees or agents, for any loss of profits, loss of revenue, loss of anticipated savings, loss of contract or opportunity, loss of goodwill, any liquidated damages or any indirect, special or consequential loss of whatsoever nature, including any loss of a type described in this subclause, whether or not reasonably foreseeable, reasonably contemplatable or actually contemplated by the parties at the time of agreement to purchase/supply the goods and/or services, arising out of, or in any way directly or indirectly relating to the supply and/or use of goods and/or services, including any of the matters referred to in clause 2.
Subject to the remainder of this clause 14, the Customer:-
releases and forever discharges the Company and the Company’s officers, employees and agents, from and against all claims under or in relation to the supply of any goods and/or services by the Company; and
indemnifies the Company and the Company’s officers, employees and agents, in respect of all loss, damages and expenses relating to, or arising out of, any claim.
To the extent permitted by law, the Company’s total liability for any claim under or in relation to the supply of goods and/or services by the Company to the Customer, is limited to the price paid by the Customer for the goods and/or services the subject of any claim.
In no circumstances shall the Company be liable to the Customer in the event there was an error and/or inaccuracy contained in any prescription and/or order supplied by the Customer to the Company.
The Customer indemnifies the Company and its officers, employees, agents, consultants and contractors against all losses, claims, actions, liabilities, damages, costs, charges, expenses, outgoings or payments which the Company pays, suffers or incurs arising directly or indirectly from any:
breach by the Customer of these Terms and Conditions of Sale; or
any act or omission (including any negligence, unlawful conduct or wilful misconduct) by the Customer or any of its employees, officers, subcontractors or agents relating to the matters referred to in these Terms and Conditions of Sale; or
incorrectly prescribed custom made foot orthotics and/or prefabricated devices.
The Customer’s liability to indemnify the Company is reduced proportionately to the extent that the Company or any of its employees, officers or agents cause or contribute to the loss, claim, action, liability, damage, cost, charge, expense, outgoing or payment.
15. DESCRIPTIVE MATTER:
Descriptions and illustrations contained in the Company’s catalogues, price lists and other advertising matter including but not limited to the Company’s website are only general descriptions of the goods therein and shall not constitute a basis for, or part of, any contract and/or agreement in respect of the supply of goods by the Company to the Customer.
16. FORCE MAJEURE
Notwithstanding anything herein contained the Company shall not be liable for any loss, damage or delay caused by events beyond its reasonable control including, without limitation, industrial disputes, war, acts or threats of terrorism, strikes, lockouts, accident, breakdown, import or export restrictions, delay of or inability to obtain labour, inaccessibility to site caused by wet weather, acts of God, fire, flood or drought. If an event force majeure occurs, the Company may suspend or terminate the order by written notice to the Customer. In the event of termination of the order by virtue of any such cause arising, the Company shall not in consequence thereof be liable for damages but the Customer shall pay the Company a portion of the contract price proportionate to the work actually done and materials delivered up to the date of such termination.
Exclusions, if applicable, will be defined in any quotation issued by the Company to the Customer.
Any quotation shall remain open for a period of thirty (30) days from the date thereof, after which time it shall be subject to review and reconfirmation.
If the Company is unable to deliver or provide the goods and/or services, the Company may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer. If the Customer cancels an order, the Company shall be entitled to receive payment from the Customer for all the work performed by the Company to the date of cancellation together with an administration fee, in addition to damages which the Company may rightly recover in connection with the cancellation of the order. The Customer shall pay the amounts payable pursuant to this clause 20 to the Company within 30 days of receipt of an invoice by the Customer.
20. CUSTOMER ACKNOWLEDGEMENT
The Customer acknowledges that the Customer has ordered the goods by a web-based order. The Company shall not be liable to the Customer in the event the ordering process by the Company to the Customer fails to function and any order placed by the Customer is not received by the Company.