Terms and Conditions
In these Conditions, unless the context otherwise requires:
Australian Consumer Law means the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth).
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Sydney, New South Wales.
Company means Dentavision Pty Ltd (ABN 73 003 960 156).
Conditions means these terms and conditions of sale.
Confidential Information means, in respect of a party, all information belonging or relating to the party, in whatever form, that is not generally available to the public at the time of disclosure other than by reason of a breach of a Contract or that is in fact, or should reasonably be regarded as, confidential to the party to whom it belongs or relates.
Contract means each separate contract between the Company and the Customer pursuant to which Goods are supplied by the Company to the Customer, as constituted under clause 2.
Customer means the entity to whom the Company supplies Goods.
Force Majeure Event means any circumstance beyond the reasonable control of the affected party, including accident, fire, earthquake, flood, extreme weather, act of God, explosion, casualty, riot, strike, lock-out, warfare or act of any public enemy.
Goods means the articles or things supplied or to be supplied by the Company to the Customer under a Contract.
GST means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means, in relation to a party, when:
(a) an application is made to a court for an order, or an order is made, that the party be wound up;
(b) a liquidator, administrator, trustee administrator, receiver or receiver and manger is appointed in relation to the party or any of its assets; or
(c) the party becomes bankrupt, goes into liquidation (whether voluntary or compulsory), enters into administration, offers to make or enters into any arrangement or composition with any of its creditors or is, or is deemed to be, insolvent within the meaning of the Corporations Act 2001 (Cth).
Intellectual Property Rights means all intellectual and industrial property rights, conferred by statute, at common law, in equity or otherwise, including copyright and neighbouring rights, all rights in relation to inventions, patents, plant varieties, trademarks, designs, circuit layouts, know how, brand names, domain names, product names and trade secrets (whether or not registered or capable of registration and including any right to apply for registration under a statute in respect of those or like rights).
Invoice means the document sent by the Company to the Customer setting out the payment due for Goods purchased from the Company.
Purchase Order means a purchase order issued by the Customer to the Company for the supply of Goods.
Quote means a quoted price for the Goods by the Company for the Customer.
2. Contract formation
2.1 Except as otherwise agreed in writing by the Company, the terms of a Contract between the Company and the Customer are constituted by:
(a) these Conditions;
(b) any Quote; and
(c) any Purchase Order accepted by the Company.
2.2 The order of precedence will be these Conditions will prevail over the terms of any Quote and any Purchase Order and a Quote will prevail over a Purchase Order.
2.3 A binding contract for the supply of Goods by the Company to the Customer only comes into existence when the Company accepts a Purchase Order for Goods, whether or not a Quote has been provided, or the Company supplies the Goods in response to a Purchase Order. A separate and independent Contract arises in respect of each Purchase Order and the Contract constitutes the entire written agreement between the parties in connection with the supply of the Goods between the Company and the Customer.
3.1 The Customer may submit a Purchase Order to the Company. The Company may accept or refuse a Purchase Order. In the event the Customer places a Purchase Order prior to 12pm on a Business Day, the Company will make reasonable commercial efforts to ensure same Business Day processing of the Order.
3.2 Whilst the Company will use its reasonable endeavours to supply Goods according to a Purchase Order, the Company is not liable for any loss or damage arising through non-availability of the Goods.
3.3 Once the Company has accepted a Purchase Order, the Customer cannot cancel or change the Purchase Order without the prior written consent of the Company.
4. Price and Invoices
4.1 The Price of Goods will be as specified in the Company price list, but if a Quote has been provided, in the Quote. The Company reserves the right to vary its price list from time to time. Quotes will remain valid for 14 days from the date of the Quote.
4.2 Unless otherwise expressly stated, the price of Goods is exclusive of any customs duty, GST or similar taxes, and the Customer is liable for these in addition to the price of the Goods. If a supply of Goods by the Company to the Customer constitutes a taxable supply, the Customer must pay to the Company an additional amount equal to the GST, subject to the Company providing a tax invoice.
4.3 Freight charges for standard freight will be included in the price. Express or courier options will be charged as quoted to the Customer.
5. Terms of payment
5.1 Unless otherwise agreed by the Company in writing, the Customer must pay an Invoice within 30 days from the end of the month of the Invoice, provided that payment becomes due on demand upon the occurrence of any of the events referred to in clause 11.1(a) or 11.1(b).
5.2 Neither party is entitled to exercise any set-off, lien or any other similar right or claim.
5.3 Without prejudice to any other rights, the Company may charge interest on any overdue amounts at a rate equal to 3% above the Current Base Rate of Westpac Banking Corporation from time to time. Interest payments will accrue on a daily basis from the due date for payment until payment in full (including interest), is received by the Company, whether before or after any judgement.
6. Delivery of Goods
6.1 Goods will be delivered by the Company to the Customer’s nominated address.
6.2 Delivery dates given by the Company in good faith but are estimates only.
6.3 The Customer will:
(a) examine the Goods as soon as reasonably practicable after delivery;
(b) notify the Company in writing of any incomplete or failed delivery, loss or damage to the Goods or other failure to comply with the Contract promptly; and
(c) preserve as far as possible for the Company’s inspection, Goods that are alleged not to comply with the Contract and will return these Goods to the Company if requested by the Company.
7. Title and risk in Goods
7.1 Risk passes to the Customer from the time of delivery of the Goods to the Customer. The Company will retain title to the Goods supplied to the Customer until all payments under the Contract have been paid in full.
7.2 Where the Customer has not fully paid the Company for Goods and the Customer enters into an Insolvency Event:
(a) the Customer may not sell, use or part with possession of the Goods; and
(b) the Company will be entitled, without prejudice to the Company’s other rights and remedies, to receive and repossess such Goods and to enter any premises without notice for this purpose.
8. Intellectual Property Rights
8.1 Each party acknowledges and agrees that the other party owns and retains all title to its own Intellectual Property Rights. Intellectual Property Rights in respect of the Goods and any improvements in the Goods will be retained by the Company.
9. Confidential Information
9.1 All Confidential Information remains the property of and is confidential to the disclosing party and must be returned or destroyed by the receiving party on demand. The receiving party must keep the Confidential Information confidential, must take all reasonable steps to keep secure all of the Confidential Information coming into its possession or control, and must not memorise, use, modify, reverse engineer, reproduce or make copies or records of the Confidential Information for any purpose other than in connection with the performance by the either party of its obligations under a Contract.
10.1 In the event that the Customer seeks to return any Goods, the Customer must contact the Company to obtain a Return Goods Authority (RGA) number.
10.2 Other than Goods that are in breach of these Conditions or that fail to meet any statutory guarantees applicable to the Goods under the Australian Consumer Law, any return of Goods will be at the discretion of the Company.
10.3 Any Goods that are returned for change of mind purposes will not be accepted unless:
(a) an RGA number has been obtained;
(b) the goods are returned less than 21 days after date of invoice; and
(c) the goods are returned in original packaging that is undamaged.
(a) the Customer fails to pay for Goods under any Contract by the due date or otherwise breaches any other term of a Contract;
(b) the Customer suffers an Insolvency Event; or
(c) contractual performance by either the Company or the Customer is delayed or prevented due to a Force Majeure Event,
the Company may, at its option, by written notice to the Customer:
(d) terminate wholly or in part any Contract between the Company and the Customer; or
(e) suspend the Company’s performance of the whole or any outstanding part of any Contract until, as relevant, all defaults by the Customer are remedied or the Force Majeure Event ceases.
11.2 Either party may terminate a Contract by giving one month’s written notice to the other party.
11.3 Termination by either party under this clause is without prejudice to that party’s other rights, remedies or claims (including the Company’s right to recover payment from the Customer for any Goods previously supplied by the Company).
11.4 The Company may give notice to the Customer varying these Conditions. The Conditions so varied only apply to any new Contract after the Company has given notice of the variation.
12. Limitation of liability and indemnity
12.1 Subject to clause 12.2, all terms, conditions, warranties and representations that are not expressly set out in these Conditions are expressly excluded.
12.2 The Company does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified, or which cannot be excluded, restricted or modified except to a limited extent, as between the Company and the Customer by law including liability under the Competition and Consumer Act 2010 (Cth). However, where such statutory provisions apply, to the extent to which the Company is entitled to do so, the Company’s liability will be limited at its option to:
(a) in the case of a supply of goods:
(i) the replacement of the goods or supply of equivalent goods;
(ii) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(iii) the repair of the goods or payment of the cost of having the goods repaired; and
(b) in the case of services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.
12.3 Neither party will be liable to the other for any indirect, consequential, special or economic loss, cost, damage, liability or expense, whether arising in tort (including negligence), contract, statute or otherwise, including any loss of profit, loss of use, loss of income, loss of production or loss of actual or potential business opportunity or otherwise.
12.4 The Customer indemnifies the Company for any loss, cost, damage, liability or expense (“Loss”) suffered by the Company arising from or in connection with:
(a) any breach of the Contract by, or negligence of, the Customer; or
(b) the death or injury to any person or loss or damage to any property arising from the performance by the Customer of its obligations under a Contract,
provided that the Customer’s liability under or in connection with this indemnity will be reduced to the extent the Company’s breach of contract, negligence or other wrongful act caused the Loss that is the subject matter of the indemnity.
(a) The Contract is governed by and must be construed in accordance with the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of that State.
(b) If the whole or any part of a provision of the Contract is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If, however, the whole or any part of a provision of the Contract is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of the Contract or affecting the validity or enforceability of that provision in any other jurisdiction.
(c) A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
(d) Any variation of a Contract must be in writing and signed by the parties.
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