1.1 “AMSL” means Australasian Medical and Scientific Ltd ABN 28 051 991 372, its successors and assigns or any person acting on behalf of and with the authority of AMSL.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means the Dexcom G6 supplied by AMSL to the Customer.
1.4 “Payment Due Date” means date of processing of the product order by AMSL and every thirty (30) days thereafter.
1.5 “Subscription Fee” means the monthly payment of $330.00.
1.6 “Subscription Date” means the date from which a subscription for the Good is dispatched by AMSL, which will be stated on the product order.
1.7 “Subscription Deposit” means the amount of $400.00.
1.8 “Subscription Period” means a 12-month period commencing from the Subscription Date.
1.9 “Terms” means these terms and conditions.
2. Acceptance of Terms
2.1 These terms and conditions apply to any order for Goods placed by a Customer.
2.2 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for the Goods.
2.3 These terms and conditions may only be amended with AMSL‘s consent in writing and prevail to the extent of any inconsistency with any other document or agreement between the Customer and AMSL.
2.4 The Customer acknowledges and accepts that AMSL at its discretion, reserves the right not to supply Goods if, for any reason (including but not limited to, where the Goods are not or cease to be available, account disputes or conditions placed on AMSL by its suppliers). AMSL will not be liable to the Customer for any loss or damage the Customer suffers due to AMSL exercising its rights under this clause.
2.5 Where there is more than one Customer that has entered into the Terms and Conditions, the Customers are jointly and severally liable for all payments.
3. Subscription Deposit
3.1 Prior to the commencement of the Subscription Period, the Customer must pay the Subscription Deposit which will be held by AMSL until the earlier of the following events occurring:
(a) the expiry of the Subscription Period; or
(b) the Customer cancelling the Subscription during the Subscription Period; or
(c) AMSL (or the third-party gateway) unsuccessfully charging the nominated credit or debit card for the Subscription Fee, for the relevant month in accordance with clause 4.1;
i. on the Payment Due Date, and if unsuccessful;
ii. seven (7) days from the Payment Due Date, and if again unsuccessful;
iii. fourteen (14) days from the Payment Due Date.
3.2 The Subscription Deposit will be released to:
(a)the Customer within fourteen (14) days from the date in clause 3.1(a); or
(b)AMSL within fourteen days (14) days from the date in clause 3.1(b).
(c)AMSL within fourteen days (14) days from the date in clause 3.1(c).
4. Subscription Fee
4.1 The Customer agrees to pay the Subscription Fee on the Payment Due Date monthly in advance for each monthly period.
4.2 The Customer agrees that the Subscription Fee is non-refundable.
4.3 Unless otherwise agreed in writing, AMSL will not Deliver any Goods ordered by the Customer until such time as AMSL receives payment of the Subscription Fee and Subscription Deposit.
5. Payment Methods
5.1 The Customer agrees that the payment of the Subscription Fee and Subscription Deposit is to be paid by a credit card processed online using a secure third-party gateway as nominated by the Customer in the order form.
5.3 AMSL’s third party payment gateway and website hosting providers employ secure technology for transactions with Customers, although AMSL accepts no responsibility for any damages, including consequential losses (whether direct or indirect), that may be suffered by a Customer whose credit or debit card or bank account information is used in a fraudulent or unauthorised manner by any person other than AMSL.
6.1 The Terms commence from the Subscription Date and terminate at the earlier of:
(a) the expiry of the Subscription Period; or
(b) the Customer cancelling the Subscription during the Subscription Period; or
(c) satisfaction of clause 3.1(c).
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that AMSL (or AMSL’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
7.2 At AMSL‘s sole discretion the cost of delivery of Goods may be either included in the Subscription Fee being Ex Works (pickup from AMSL‘s premises) or be in addition to the Subscription Fee
7.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then AMSL will be entitled to charge a reasonable fee for redelivery and/or storage.
7.4 AMSL may deliver the Goods in separate instalments. Each separate instalment must be invoiced and paid in accordance with the provisions in these terms and conditions.
7.5 AMSL will take all reasonable endeavours to ship any ordered Goods within 2 business days of receipt of payment; however this time is an estimate only. AMSL will only deliver Goods between 9am and 5pm on a business day. The Customer must still accept delivery of the Goods even if late and AMSL will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
7.6 The failure of AMSL to deliver does not entitle either party to treat this contract as repudiated.
7.7 Backorders will be shipped as soon as they are available.
8.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer is responsible for insuring the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, AMSL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by AMSL is sufficient evidence of AMSL’s rights to receive the insurance proceeds without the need for any person dealing with AMSL to make further enquiries.
8.3 If the Customer requests AMSL to leave Goods outside AMSL’s premises for collection or to deliver the Goods to an unattended location then such Goods must be left at the Customer’s sole risk.
9.1 AMSL and the Customer agree that ownership of the Goods must not pass until the Customer has paid AMSL all amounts owing to AMSL.
9.2 Receipt by AMSL of any form of payment other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 9.1 that the Customer is only abailee of the Goods and must return the Goods to AMSL on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for AMSL and must pay to AMSL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for AMSL and must pay or deliver the proceeds to AMSL within 2 business days.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of AMSL must sell, dispose of or return the resulting product to AMSL as AMSL directs.
(e) Until ownership of the Goods passes to the Customer the Customer irrevocably authorises AMSL enter any premises where AMSL believes the Goods are kept and recover possession of the Goods.
(f) Until ownership of the Goods passes to the Customer AMSL may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer must not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of AMSL.
10. Defects, Warranties and Returns, Competition and Consumer Act 2010 Cth (CCA)
10.1 The Goods come with guarantees that cannot be excluded under Australian Consumer Law (Non-Excluded Guarantees) and AMSL acknowledges that nothing in these Terms purports to exclude the Non-Excluded Guarantees.
10.2 The Customer is entitled to a replacement or refund for any major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
10.3 AMSL acknowledges that nothing in these Terms purports to modify or exclude the Non-Excluded Guarantees.
10.4 Subject to the CCA, AMSL must not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparentto a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions or guidelines provided by AMSL;
(e) fair wear and tear, any accident, or act of God.
10.5 AMSL may in its absolute discretion accept non-defective Goods for return in which case AMSL may require the Customer topay handling fees of up to thirty percent (30%) of the value of the returned Goods plus any freight costs.
11. Default and Consequences of Default
11.1 If the Customer owes AMSL any money the Customer must indemnify AMSL from and against all costs and disbursements incurred by AMSL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AMSL’s collection agency costs, and bank dishonour fees).
11.2 Without prejudice to any other remedies AMSL may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions AMSL may suspend or terminate the supply of Goods to the Customer. AMSL will not be liable to the Customer for any loss or damage the Customer suffers because AMSL has exercised its rights under this clause.
11.3 Without prejudice to AMSL ’s other remedies at law AMSL must be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to AMSL must, whether or not due for payment, become immediately payable if:
(a) any money payable to AMSL by a Customer becomes overdue, or in AMSL’s opinion the Customer will be unableto make a payment when it falls due;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangementwith creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customeror any asset of the Customer.
12. Privacy Act 1988
12.1 The Customer agrees for AMSL to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by AMSL .
12.2 The Customer agrees that AMSL may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
12.3 The Customer consents to AMSL being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
12.4 The Customer agrees that personal credit information provided may be used and retained by AMSL for the following purposes (and for other purposes as must be agreed between the Customer and AMSL or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by AMSL , its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
12.5 AMSL may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
12.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that AMSL is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of AMSL , the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100.00) or more, have been dishonoured more than once;
(h) that credit provided to the Customer by AMSL has been paid or otherwise discharged.
13.1 The failure by AMSL to enforce any provision of these terms and conditions must not be treated as a waiver of that provision, nor must it affect AMSL’s right to subsequently enforce that provision. If any provision of these terms and conditions must be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions must not be affected, prejudiced or impaired.
13.2 These terms and conditions and any contract to which they apply must be governed by the laws of the state of New South Wales, Australia, and are subject to the jurisdiction of the Court of New South Wales, Australia.
13.3 Subject to any warranty as detailed in clause 10 AMSL must be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by AMSL of these terms and conditions.
13.4 AMSL may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
13.5 The Customer agrees that AMSL may amend these terms and conditions at any time. If AMSL makes a change to these terms and conditions, then that change will take effect from the date on which AMSL notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for AMSL to provide Goods to the Customer.
13.6 Neither party must be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
13.7 The Customer warrants that it has the power to these terms and conditions and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that these terms and conditions create binding and valid legal obligations on it.
Effective date: 22 June 2020
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