Terms and Conditions

Terms and Conditions of trade – Australia

MEDICAL DESIGN INNOVATIONS PTY LTD ABN 43 082 750 374

including any of its subsidiary companies (“Medical Designs”) will supply medical goods and services (“Goods”) in accordance with the following terms and conditions (“Terms”)

  1. INTERPRETATION
    In these Terms:
    (a) “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
    (b) “Business Day” means a day in which banks are open for business and specifically excludes Saturdays, Sundays and Public Holidays in Sydney, NSW;
    (c) “Consumer” means the definition of Consumer in section 4B of the Competition and Consumer Act 2010 (Cth);
    (d) “Health Professional” means the definition of Health Professional in section 42AA of the Therapeutic Goods Act 1989 (Cth)
    (e) “Goods” means any medical goods and services supplied by Medical Designs;
    (f) “Grantor” means the grantor of any security interest in the Goods, and is usually the Purchaser;
    (g) “Order” means an order (whether in writing or orally) by the Purchaser to purchase Goods from Medical Designs;
    (h) “Purchaser” means a Health Professional that is the purchaser of the Goods;
    (i) “Purchase Order” means the written order provided to Medical Designs by the Purchaser;
    (j) “Warranty Period” means the warranty period for the Goods being in accordance with the manufacturer’s warranty period; and
    (k) “Website” means the internet-based portals that Medical Designs uses to provide information about it as a company.
    Nothing in these Terms will be read or applied so as to exclude, restrict or modify or have the effect of excluding or modifying any condition, warranty, guarantee, right or remedy implied by law (Including the Competition and Consumer Act 2010 (Cth)) and which by law cannot be excluded, restricted or modified.
  2. GENERAL
    2.1. The Goods and all other products and services sold and/or provided by Medical Designs are supplied in accordance with these Terms.
    2.2. These Terms (which may only be waived or amended in writing and signed by Medical Designs) will to the extent of any inconsistency prevail over all and any terms or conditions of the Purchaser’s Order.
    2.3. If the Purchaser accesses the Website the Purchaser is responsible for compliance with all applicable laws, regulations, and policies of all relevant jurisdictions.
    2.4. No right, title, interest or license in any of Medical Designs’ intellectual property is granted to the Purchaser unless specifically stated in writing from Medical Designs.
    2.5. Nothing contained or implied in these Terms will create a joint venture, partnership or principal and agency relationship between Medical Designs and the Purchaser.
  3. QUOTATIONS
    3.1. If a quotation is provided to the Purchaser by Medical Designs then unless withdrawn, this quotation is open for acceptance within the period stated on the quotation or, where no period is stated, within thirty (30) days after the date shown on the quotation.
    3.2. A quotation does not constitute an offer to sell and/or provide Goods but is an invitation to treat only. Medical Designs reserves the right to refuse any Order based on its quotation within seven (7) Business Days after the receipt of a Purchaser’s Order.
    3.3. A quotation will include a project schedule upon which any required deposit and progress claims for payment will be outlined.
    3.4. A contract will be formed between Medical Designs and a Purchaser on the acceptance by Medical Designs of a Purchaser’s Order and not otherwise.
  4. PRICES
    4.1. All prices included in a quotation are exclusive of all taxes, insurance and transport which will be the sole responsibility of the Purchaser, unless otherwise agreed in writing.
    4.2. Prices for Goods will be charged at:
    (a) where a quotation has been provided, the price stated by Medical Designs on a non-expired quotation; or
    (b) where there is no quotation, the pricing ruling at the date of dispatch
  5. DELIVERY
    5.1. Medical Designs only delivers to addresses in Australia.
    5.2. The Goods will be deemed to be delivered to the Purchaser at the time the Goods arrive at the Purchaser’s premises. Medical Designs may arrange for transport of the Goods to a destination nominated by the Purchaser and the cost of such transport will be added to the price of those Goods.
    5.3. Goods are at the Purchaser’s risk from the time of delivery. The Purchaser is responsible for arranging any insurance over the Goods after delivery.
    5.4. Medical Designs will not be liable for any loss occasioned by delay in delivery of and/or the procuring of Goods, whether consequential or otherwise.
    5.5. If the Purchaser disputes proof of delivery, details of this dispute must be provided in writing to Medical Designs within seven (7) Business Days of delivery.
  6. ADVERTISING
    6.1. All information and advertising herein related to the supply of Goods is solely intended for Health Professionals with a valid certification. A Health Professional must rely on his or her own professional clinical judgment when deciding whether to purchase or use the Goods when treating a particular patient. Health Professionals must be trained in the individual use of any of the Goods before use in a procedure or surgery. Health Professionals must refer to the packaging, product label and/or instructions for use, including the instructions for cleaning and sterilisation (if applicable), before use of any Goods.
    6.2. From time to time, Medical Designs may, at its sole discretion, choose to offer competitions or promotional terms and conditions (“Promotions”) to a Purchaser. Promotions are intended to reward customer loyalty and it is the responsibility of the Purchaser to determine if Goods are suitable for their needs, or the particular needs of their patients. Promotions are based on measured criteria and may include cost-based rewards such as a price reduction, complimentary shipping and/or complimentary samples.
    6.3. Medical Designs is part of the Device Technologies Australia Group, a member of the Medical Technology Association of Australia Limited and as such is required to adhere to the Medical Technology Industry Code of Practice https://www.mtaa.org.au/code-of-practice. Medical Designs is committed to the improvement of patients’ lives through the advancement of medical science and the contributions that high quality, effective and innovative Medical Technologies make in achieving these goals.
  7. PAYMENT
    Payment for Orders through a quotation.
    7.1. Where a quotation has been provided by Medical Designs and accepted by a Purchaser, Medical Designs’ terms of payment will be stated on its invoice.
    7.2. As clause 3.3 Medical Designs may require a deposit and progress claims as outline in the project schedule provided in a quotation.
    7.3. Interest at 10.5% is payable on amounts which are more than thirty (30) days overdue. Credit cards are accepted but surcharges may apply.
    7.4. Once payment has been processed an order email and receipt will be sent through to the Purchaser’s email address.
  8. TRANSFER OF PROPERTY
    Title to Goods
    8.1. Title to the Goods remains with Medical Designs until all monies owing to Medical Designs on any account have been paid or title to the Goods is vested in some other person by operation of law.
    8.2. Until title to the Goods passes, the Purchaser will keep the Goods free from any charge, lien or other encumbrance.
    8.3. Until title to the Goods passes, the Purchaser will:
    (a) hold the Goods on a fiduciary basis as bailee for Medical Designs;
    (b) keep the Goods separate from all other goods in its possession and marked in such a way that the Goods are clearly identified as the property of Medical Designs;
    (c) upon request deliver up the Goods (or such part of them that have not ceased to be in existence or resold) to Medical Designs (for which purpose Medical Designs’ employees or agents may enter the Purchaser’s premises) and the Purchaser is obliged to deliver up the Goods if so directed by Medical Designs in accordance with the enforcement procedures outlined in Chapter 4 of the Personal Property Securities Act 2009 (Cth); and
    (d) not intermingle any sums the Purchaser receives from any sale made by it or on its behalf of the Goods and will hold such sums as trustee on behalf of Medical Designs and account fully to Medical Designs for such sums promptly as and when required by Medical Designs.
  9. REGISTRATION OF SECURITY INTEREST
    9.1. The Purchaser as Grantor grants to Medical Designs, a security interest(s) in the Goods under the Personal Property Securities Act 2009 (Cth). If applicable, this security interest(s) will be a purchase money security interest(s).
    9.2. The Purchaser and Grantor (if different) acknowledge that Medical Designs may register the said security interest(s) in the Goods, at its discretion.
  10. WARRANTIES
    10.1. Medical Designs warrants all ‘medicalDesigns’ branded Goods sold by it are free from defects in material and workmanship for a period of one (1) year from date of installation. Other Goods sold by Medical Designs will be warranted in accordance with the relevant manufacturer’s specifications.
    10.2. Medical Designs’ Goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Purchaser is entitled to have ‘medicalDesigns’ branded Goods repaired if upon examination these Goods prove to be defective in material or workmanship. For other Goods sold by Medical Designs the Purchaser is entitled to a replacement or refund for a major failure. The Purchaser 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. Medical Designs will, at its option either repair or replace any defective Goods or parts thereof with a new or remanufactured equivalent during the Warranty Period at no charge to the Purchaser for parts or labour.
    10.4. The warranty described in this clause 10 will be the sole and exclusive warranties granted by Medical Designs and will be the sole and exclusive remedy available to the Purchaser in addition to the rights and remedies of the Purchaser under a law in relation to the Goods to which this warranty relates.
    10.5. All implied warranties are limited to the Warranty Period.
    10.6. No other person or entity is authorised to make any warranties other than those described in this clause 10, or to extend the duration of any warranties beyond the Warranty Period on behalf of Medical Designs.
    10.7. Correction of defects during the Warranty Period will constitute complete fulfillment of all liabilities and responsibilities of Medical Designs to the Purchaser with respect to the Goods and will constitute full satisfaction of all claims, whether based on contract, negligence and strict liability otherwise. In no event will Medical Designs be liable, or in any way responsible, for any damages or defects in the Goods which were caused by repairs or attempted repairs performed by anyone other than Medical Designs or an authorised service provider.
    10.8. This warranty does not apply to any appearance of the supplied Goods nor to any supplied Goods the exterior to which has been damaged or defaced, which has been subjected to misuse, abnormal service or handling, or which has been modified or altered in design or construction. In addition, the warranty coverage does not apply to defects caused by the supplied Goods being subjected to the following: unauthorised modifications or connections, unauthorised opening or repair, repair by use of unauthorised parts, exposure to improper environmental conditions, chemical treatments or after-market products, the application of sealants, accident, force majeure, or other acts beyond the reasonable control of Medical Designs.
    10.9. This warranty does not cover death or injury to persons resulting from any cause other than proven negligence of Medical Designs, its employees or representatives.
    10.10. In order to enforce the rights under this warranty, the Purchaser must provide proof of purchase to Medical Designs. The proof of purchase must state the date of the purchase, provide a description of the Goods and the price paid for the Goods.
    10.11. A claim made by a Purchaser should be made in writing to Medical Designs along with the proof of purchase. The costs of transportation of the Goods will be borne by the Purchaser. If the claim is valid Medical Designs will reimburse the Purchaser for the costs of transportation of the Goods.
    10.12. The Purchaser acknowledges that for optimal performance of the Goods they should be inspected on a six (6) monthly basis, failure to comply with these inspection requirements may result in the warranty under this clause 10 becoming void.
    10.13. The warranties outlined in this clause 10 do not extend to parts worn (expendables) or items consumed (consumables) used with the Goods. Expendables and consumables must be replaced on a routine basis through preventative maintenance, equipment operation, inspection, or a daily or weekly sequence, as described in the instructions for use. Expendables include brakes/gaskets/seals, trap elements, filters, fuses, light handles. Consumables include lubricants and test items.
    10.14. To the extent that the Purchaser is considered a Consumer under the Australian Consumer Law, then the following statement applies, “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are 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.”
  11. EXCLUSION OF LIABILITY
    11.1. To the maximum extent permitted by law, Medical Designs’ liability for breach of a condition or warranty given by Medical Designs or implied by operation of or guarantee under the Competition and Consumer Act 2010 (Cth) is limited to:
    (a) in the case of Goods, any one the following:
    (i) the replacement of Goods or the supply of equivalent Goods;
    (ii) the repair of Goods;
    (iii) the payment of the cost of replacing Goods or of acquiring equivalent Goods;
    (iv) the payment of the cost of having the Goods repaired;
    (b) in the case of services:
    (i) the supplying of the services again; or
    (ii) the payment of the cost of having the services supplied again.
    11.2. Except as provided in these Terms, Medical Designs will not be liable or in any way responsible for incidental or consequential, economic or property damage, except where Medical Designs is in breach of the guarantees provided to the Purchaser in accordance with the Australian Consumer Law, or applicable legislation from time to time provided always that nothing in this clause or elsewhere in these Terms will adversely affect the rights of the Purchaser under relevant legislation.
  12. RETURNS AND EXCHANGES FOR GOODS NOT REQUIRING INSTALLATION
    12.1. The Purchaser must inspect the Goods as soon as is reasonably practicable after delivery.
    12.2. If any or all of the Goods delivered were damaged, defective, or incorrect when delivered, then the Purchaser must give Medical Designs written notice of that fact within seven (7) Business Days after the delivery date.
    12.3. For further information, refer to Medical Designs’ Return and Exchange Policy.
  13. CANCELLATION OF ORDERS
    No Order can be cancelled or deferred without the prior written consent of Medical Designs.
  14. FORCE MAJEURE
    Medical Designs will not be liable for any failure to carry out an obligation under the Terms to the extent that the failure was caused by events or circumstances beyond its reasonable control (“Force Majeure Event”) including, but not limited to, acts of God, fire, accident, pandemic, interruptions to energy supply, strike, riot, civil commotion or war whether declared or not.
    While Medical Designs will do all things reasonably necessary to mitigate the effect of the Force Majeure Event on the performance of its obligations, it may cancel or defer Orders at its sole discretion. In a Force Majeure Event, Medical Designs will endeavor to provide notice to the Purchaser which sets out in reasonable detail the nature of the Force Majeure Event and the steps taken to mitigate its effect.
  15. RE-STOCKING CHARGE
    Goods may only be returned with the approval of and at the sole discretion of Medical Designs. Goods so returned will be subject to a re-stocking charge of 15% of their invoiced value.
  16. PRIVACY
    16.1. Medical Designs is part of the Device Technologies Australia Group, all transactions will be governed by Device Technologies’ privacy policy which can be found at https://www.device.com.au/privacy-policy.
    16.2. The Purchaser must comply with all applicable laws which apply to the collection, use and disclosure of personal information including, but not limited to, obtaining and recording relevant patient consent for personal information to be disclosed to Medical Designs or to an offshore entity for the provision of technical support services.
    16.3. Medical Designs will only ask for and use personal information reasonably necessary for or directly related to Medical Designs’ functions and activities as a provider of medical devices.
    16.4. When a Purchaser visits the Website, the web server automatically logs certain non-personally identifiable data about the visit.
    16.5. Medical Designs uses software to measure and audit activity on the Website.
    16.6. The Purchaser may contact Device Technologies’ Privacy Officer at privacy@device.com.au to find out what information Medical Designs has collected.
    16.7. Medical Designs will not provide the Purchaser’s personal information to third parties without the Purchaser’s prior written consent.
  17. MODIFICATION
    Medical Designs may modify the Terms from time to time in our sole discretion by updating the Terms on this Website. The “Modified” date at the top of these Terms will indicate when the latest changes were made. An Order which occurs following the posting of a new version constitutes acceptance of the version currently in effect.
  18. GOVERNING LAW
    These Terms are governed by and will be construed in accordance with the laws of New South Wales. Any legal action or proceeding against Medical Designs shall be brought exclusively in the courts of New South Wales and of the Commonwealth of Australia, and the Purchaser agrees to submit to the personal and exclusive jurisdiction of such courts.
  19. LEGISLATION
    These Terms are governed by the Therapeutic Goods Act 1989 (Cth) Personal Property Securities Act 2009 (Cth), Competition and Consumer Act 2010 (Cth) and the Privacy Act 1988 (Cth) (“Acts”), as amended from time to time. Any capitalised words, used in these Terms, but not defined in these Terms will take on the meaning of such defined words in the Acts and if not defined in the Acts, then its ordinary meaning.
  20. SEVERANCE
    If any of these Terms are held by a Court of competent jurisdiction to be invalid or otherwise unenforceable, that provision will be severed from the Terms and the remainder of these Terms will continue to be effective and valid notwithstanding such severance.