**Interpretation**
In these terms and conditions (Terms) and in any contract to which these Terms apply, unless inconsistent with the context:
a) **Act** means the Competition and Consumer Act 2010 as amended from time to time.
b) **Business Day** means any day except Saturday or Sunday or a day that is a public or bank holidays.
c) **Claim** means any claim, demand, action, expense, cost, loss, damages, or proceeding.
d) **Consequential Loss** means loss, expense, or damage arising from a breach of contract, tort (including negligence), under statute, or any other basis in law or equity including, but not limited to, loss of profits, revenue, contracts or anticipated contracts, opportunity, access to markets, goodwill, business reputation, future reputation or publicity, damage to credit rating, or loss of use; indirect, remote, abnormal, or unforeseeable loss, or any similar loss whether or not in the reasonable contemplation of the parties at the time of the contract formation.
e) **Contract** means the contract between Synergy Healthcare Australia Pty Ltd and the Purchaser for or in relation to the sale and purchase of goods and services.
f) **Force Majeure Event** includes (but is not limited to) any acts of God, war, military action, terrorist attack, riots, strikes, lockouts, trade disputes, fires, floods, breakdowns, mechanical failures, interruptions of transport, Government action, or any other cause whatsoever that is beyond the reasonable control of Synergy Healthcare Australia Pty Ltd, whether or not of a like nature to those specified above.
g) **Goods** means any item of whatsoever nature which is sold or to be sold by Synergy Healthcare Australia Pty Ltd to the Purchaser.
h) **Government** means, whether local or overseas, a government or government department or other body; a governmental, semi-governmental, or judicial person; international organization regulating international trade; or a person who is charged with the administration of a law.
i) **Insolvent** means any application, agreement, resolution, or appointment being made for a distress, execution, composition, or arrangement with creditors, insolvency proceedings, winding up, dissolution, administration, liquidation, receivership (administrative or otherwise), bankruptcy, the suspension of payments, any form of seizure not lifted within two months, a moratorium of indebtedness, or any similar proceedings in any jurisdiction in respect of that party.
j) **PPSA** means the Personal Property Securities Act 2009 as amended from time to time.
k) **PPS Register** means the personal property securities register established under section 146 of the PPSA.
l) **Purchaser** means the person or corporation who buys or has agreed to buy the Goods from Synergy Healthcare Australia Pty Ltd.
m) **Sales Confirmation** means the document so titled issued by Synergy Healthcare Australia Pty Ltd that formally accepts the order for the Goods from the Purchaser.
n) **Security Interest** has the meaning given under the PPSA.
o) **Specifications** means specifications as displayed on the Sales Confirmation.
p) **Words** importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.
q) The **headings** in these Terms are provided for convenience only and do not affect the interpretation thereof.
General
a) These Terms together with the relevant Sales Confirmation embody the sole terms and conditions of the Contract between Synergy Healthcare Australia Pty Ltd and the Purchaser and supersedes all other conditions, representations, and agreements between the parties (whether oral or in writing and whether made prior to the date of the Contract), unless expressly amended in writing by Synergy Healthcare Australia Pty Ltd. In the event of any inconsistency arising between these Terms and the relevant Sales Confirmation, the terms of the relevant Sales Confirmation shall prevail to the extent of such inconsistency.
b) These Terms shall without further notice apply to all future transactions between Synergy Healthcare Australia Pty Ltd and the Purchaser in relation to the sale and purchase of the Goods, whether or not this document is delivered or executed in the course of the transaction, except to the extent otherwise agreed in writing by the parties.
c) None of the terms and conditions contained in any document or other instrument supplied by or on behalf of the Purchaser (including without limitation those included in any purchase order or like document from the Purchaser) shall apply to or form part of the Contract, except to the extent otherwise agreed in writing by Synergy Healthcare Australia Pty Ltd.
d) All purchase orders provided by the Purchaser are subject to acceptance by Synergy Healthcare Australia Pty Ltd and no Contract between Synergy Healthcare Australia Pty Ltd and the Purchaser comes into existence until Synergy Healthcare Australia Australia Pty Ltd issues a Sales Confirmation in relation to each and every purchase order. The Purchaser must notify Synergy Healthcare Australia Australia Pty Ltd in writing within two (2) Business Days if a Sales Confirmation contains any errors or omissions.
e) Synergy Healthcare Australia Australia Pty Ltd may vary these Terms from time to time with notice by republishing them online on the Synergy Healthcare Australia Australia Pty Ltd website, together with the date on which the new terms and conditions of sale become effective. It is the Purchaser’s obligation to check the Synergy Healthcare Australia Australia Pty Ltd website or ask Synergy Healthcare Australia Australia Pty Ltd to provide a copy of the most up-to-date terms and conditions of sale at the time the Purchaser enters into a Contract. By placing a purchase order after the date upon which the new terms and conditions of sale become effective, the Purchaser accepts and is bound by the changed terms and conditions of sale for that Contract. If the Purchaser does not accept the changes to the new terms and conditions, it may notify Synergy Healthcare Australia Australia Pty Ltd to request amendments or to close its account. No variation or abrogation of these Terms, other than amendment or variation to these Terms as set out in this clause, is valid or binding on a party unless made in writing and signed by both parties.
Payment
a) Unless otherwise agreed in writing by the parties, payment shall be made within thirty (30) days from the end of the month in which the invoice is dated.
b) Time for payment of the price of the Goods is of the essence of the Contract. If the Purchaser fails to make payment when due, Synergy Healthcare Australia Australia Pty Ltd may treat the Contract as repudiated by the Purchaser or may, unless payment in full is made, suspend delivery of the Goods and any goods subject to any other contract with the Purchaser without incurring any liability whatsoever to the Purchaser. In addition, without prejudice to such rights, the Purchaser shall (if so required by Synergy Healthcare Australia Australia Pty Ltd) pay interest on the outstanding amount of the price at the rate of 12% per annum from the due date until the price is paid in full. The granting of credit by Synergy Healthcare Australia Australia Pty Ltd to the Purchaser is subject to the approval of Synergy Healthcare Australia Australia Pty Ltd’s credit department. In the event that the Purchaser’s credit is refused at any time during the Contract, Synergy Healthcare Australia Australia Pty Ltd may, at its discretion, suspend delivery of Goods until the Purchaser pre-pays for each delivery or until the Purchaser’s credit has been approved.
c) Notwithstanding any rights of lien to which Synergy Healthcare Australia Australia Pty Ltd may otherwise be entitled, Synergy Healthcare Australia Australia Pty Ltd shall have a specific lien (including a right of sale) over the Goods and any goods subject to any other Contract with the Purchaser until the price of the Goods has been paid in full. The Purchaser shall not be entitled to make any deductions from the price of the Goods in respect of any set-off or counterclaims without the prior written consent of Synergy Healthcare Australia Australia Pty Ltd.
Delivery
a) Any time or date specified by Synergy Healthcare Australia Australia Pty Ltd for completion, delivery, dispatch, shipment, or arrival of the Goods or for tender of any documents is an estimate only and does not constitute a condition of the Contract or part of the description of the Goods and is not of the essence of the Contract.
b) Unless otherwise stated in writing, Synergy Healthcare Australia Australia Pty Ltd may make partial deliveries or deliveries by instalments in any amount it may determine, and each such partial delivery or delivery by instalments shall be deemed to be a separate Contract, and these Terms shall apply to each partial delivery or delivery by instalments.
c) Synergy Healthcare Australia Australia Pty Ltd may deliver up to 5% more or less than the amount specified for delivery, subject only to an appropriate adjustment to the amount payable, in full satisfaction of Synergy Healthcare Australia Australia Pty Ltd’s obligations pursuant to the Contract.
d) The Purchaser shall notify Synergy Healthcare Australia Australia Pty Ltd within seven (7) days of delivery of any surplus, shortfall, non-compliance with the guaranteed Specifications, or loss or damage to the Goods delivered, provided that it procures competent evidence of such surplus, shortfall, non-compliance, or loss or damage. Failure to so notify (and procure competent evidence as required under this clause) shall disentitle the Purchaser to any remedy with respect to the shortfall in non-compliance or loss or damage to the Goods delivered.
e) Subject to clause (d), the Purchaser is deemed to accept the Goods on delivery into the care, custody, and control of the Purchaser or its agent, carrier, or contractor.
f) Synergy Healthcare Australia Australia Pty Ltd is not responsible for damage to the Goods caused by or which arises from ordinary wear and tear, misuse, abuse (including improper or unsuitable use, storage, or handling) by or on behalf of the Purchaser.
g) In the event that any delivery to the Purchaser is futile, the Purchaser refuses to accept any part of the Goods which have been dispatched to the Purchaser, or the Goods cannot otherwise be delivered to the Purchaser on the delivery date, Synergy Healthcare Australia Australia Pty Ltd may at its absolute discretion require the Purchaser to pay on demand a futile delivery fee comprising, where applicable, handling, storage, transport, and restocking costs.
Personal Property Securities Act 2009
a) For the purpose of this clause, the defined terms used have the meanings given in the Personal Property Securities Act 2009 (PPSA).
b) The Purchaser acknowledges and agrees that acceptance of these Terms, which form part of the Contract, constitutes a Security Agreement for purposes of the PPSA:
i) Synergy Healthcare Australia Australia Pty Ltd holds (as Secured Party) a Security Interest over all the present and after-acquired goods supplied by Synergy Healthcare Australia to the Purchaser, any goods into which such goods are commingled by the Purchaser, any goods which were manufactured by the Purchaser with the aid of the Goods but do not form part of the end goods, and any Proceeds from the sale of those goods (“Collateral”);
ii) Any purchase by the Purchaser on credit terms from Synergy Healthcare Australia Australia Pty Ltd or retention of title supply pursuant to clause 5 hereof will constitute a purchase money security interest (PMSI) as defined under section 14 of the PPSA;
iii) The PMSI granted herein will continue to apply to any goods coming into existence or proceeds of sale of goods coming into existence;
iv) Synergy Healthcare Australia Australia Pty Ltd will continue to hold a Security Interest in the Goods in accordance with and subject to the PPSA, notwithstanding that the Goods may be processed, commingled or become an accession with other goods;
v) Any Synergy Healthcare Australia Australia Pty Ltd Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all other registered or unregistered Security Interests;
vi) Until title in the Goods passes to the Purchaser, the Purchaser will keep all goods supplied by Synergy Healthcare Australia Australia Pty Ltd free and ensure all such goods are kept free of any charge, lien, or other Security Interest and not otherwise deal with the Goods in a way that will or may prejudice any rights of Synergy Healthcare Australia Australia Pty Ltd under the Contract or the PPSA;
vii) In addition to any rights Synergy Healthcare Australia Australia Pty Ltd may have under these Terms and Chapter 4 of the PPSA, Synergy Healthcare Australia Australia Pty Ltd may, without notice, enter any premises where it expects the Goods may be located and remove them without committing a trespass, and the Purchaser authorizes Synergy Healthcare Australia Australia Pty Ltd to enter onto the premises where the Goods are kept to take possession of the Goods for that purpose at any time. The Purchaser indemnifies Synergy Healthcare Australia Australia Pty Ltd from and against all Claims as a result of exercising rights under this clause.
c) The Purchaser undertakes to:
i) Sign any further documents and provide such information which Synergy Healthcare Australia Australia Pty Ltd may reasonably require to register, amend, or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;
ii) Indemnify and upon demand reimburse Synergy Healthcare Australia Australia Pty Ltd for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or releasing any Security Interests;
iii) Not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of Synergy Healthcare Australia Australia Pty Ltd.
d) Synergy Healthcare Australia Australia Pty Ltd and the Purchaser agree that sections 96, 125, and 132(3)(d) and 132(4) of the PPSA do not apply to the Security Agreement created under the Contract.
e) The Purchaser acknowledges and agrees that it waives its rights to receive any notices under the PPSA (including the notice of a verification statement) unless the notice required by the PPSA cannot be excluded.
f) This clause will survive the termination of the Contract to the extent permitted by law.
To adapt the “Warranties and Exclusions of Liability” section for Synergy Healthcare Australia Pty Ltd, you’d want to make sure that the company name, terms related to goods, and any specific references align with Synergy Healthcare Australia’s business and legal context. Here is an adaptation that suits Synergy Healthcare Australia Pty Ltd:
Warranties and Exclusions of Liability
a) Warranties: Synergy Healthcare Australia Pty Ltd warrants that the Goods, when delivered to the Purchaser, will comply with the description and specifications stated in the relevant Sales Confirmation. Synergy Healthcare Australia is not obligated to provide Goods that deviate from the specified descriptions or guaranteed values in the Specifications. Please note that typical values stated in the Specifications are not guaranteed and may vary from batch to batch.
b) Acknowledgments and Warranties by the Purchaser:
i) The Purchaser acknowledges that the use of the Goods is beyond the control of Synergy Healthcare Australia, and they have satisfied themselves that the Goods will be suitable for their intended or any special purposes, even if such purposes have been communicated to Synergy Healthcare Australia.
ii) The Purchaser is responsible for conducting all necessary and prudent tests and quality control checks to ensure that the Goods, and any products derived from them, are without defect and fit for their intended use.
iii) Any samples provided by Synergy Healthcare Australia are for indicative purposes only, and no guarantee is made that all Goods will match the sample unless it is from the same batch. The Purchaser agrees that they have not relied on any sample as a guarantee of future quality.
iv) The Purchaser affirms that they have not relied on any representations, warranties, or advice from Synergy Healthcare Australia outside of those explicitly included in the Contract.
c) Indemnification: The Purchaser shall indemnify and hold harmless Synergy Healthcare Australia and its employees, agents, and officers from any claims arising from the Purchaser’s breach of warranties as outlined in subsection b).
d) Exclusions:
i) Except as expressly provided in the Contract, all implied conditions, warranties, and obligations concerning the Contract or the Goods supplied are excluded to the fullest extent permitted by law.
ii) Synergy Healthcare Australia makes no warranty regarding the suitability or fitness of the Goods for a specific purpose unless explicitly stated in the Contract.
e) Limitation of Liability:
i) For any failures covered under consumer protection laws where liability cannot be excluded, Synergy Healthcare Australia’s liability will align with those statutory provisions.
ii) For other failures, liability is limited to replacing or repairing the Goods, or providing equivalent Goods, or refunding the cost involved in obtaining equivalent Goods or services, as determined by Synergy Healthcare Australia.
iii) For all other claims, Synergy Healthcare Australia’s total liability is capped at $10,000.
f) General Liability Exclusion: Subject to applicable law, neither party shall be liable to the other for any special, indirect, or consequential losses arising out of the Contract.
Standard Terms and Conditions of Sale
1. Interpretation
a) In these terms and conditions, “Synergy Healthcare Australia Australia Pty Ltd” (hereinafter referred to as “Synergy Healthcare Australia”) refers to the seller of the goods and the “Purchaser” refers to the buyer of the goods.
b) The “Goods” refer to the items and services provided under the terms of the contract between Synergy Healthcare Australia and the Purchaser.
2. Application
a) These Terms and Conditions shall apply to all contracts for the sale of Goods by Synergy Healthcare Australia to the Purchaser to the exclusion of all other terms and conditions including any terms or conditions which the Purchaser may purport to apply under any purchase order, confirmation of order or similar document.
b) All orders for Goods shall be deemed to be an offer by the Purchaser to purchase Goods pursuant to these Terms and Conditions.
c) Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Purchaser’s acceptance of these Terms and Conditions.
3. Price and Payment
a) The price shall be the price quoted on the invoice issued by Synergy Healthcare Australia to the Purchaser, exclusive of Goods and Services Tax (GST).
b) Payment of the total purchase price (including GST and any other charges) must be made in full before dispatch of the Goods, unless otherwise agreed in writing between the parties.
4. Delivery
a) Delivery of the Goods shall be made to the Purchaser’s address. The Purchaser shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
b) The risk in the Goods shall pass to the Purchaser upon delivery of the Goods. Title in the Goods shall not pass to the Purchaser until Synergy Healthcare Australia has received payment in full.
5. Return of Goods
a) Goods supplied to the Purchaser are not returnable except as provided in these Terms and Conditions.
b) If the Purchaser wishes to return the Goods after delivery, Synergy Healthcare Australia may, at its discretion, accept the return of the Goods provided that the Purchaser pays a cancellation fee which includes handling, storage, transport, interest (for delayed payments) and disposal costs.
6. Indemnity
The Purchaser shall indemnify Synergy Healthcare Australia against all claims and liabilities of whatsoever nature arising from the manufacture, sale, export, import, or use of the Goods unless caused directly by the negligence of Synergy Healthcare Australia.
7. Health, Safety, and Environment
The Purchaser is responsible for ensuring that all health, safety, and environmental regulations are observed, and that all hazards related to the Goods are communicated to those who are exposed.
8. Goods and Services Tax
a) GST will be charged at the applicable rate and must be paid by the Purchaser without deduction.
9. Intellectual Property
The Purchaser agrees not to infringe any intellectual property rights associated with the Goods and acknowledges that no trademark or patents rights are transferred by virtue of these Terms and Conditions.
10. Force Majeure
Neither party will be liable for any delay or failure in performance caused by circumstances beyond their reasonable control.
11. Notices
All notices between the parties must be in writing and delivered via mail, email, or hand.
12. Assignment
The Purchaser must not assign any rights or obligations under this agreement without prior written consent from Synergy Healthcare Australia.
13. Governing Law
These Terms and Conditions shall be governed by and construed in accordance with the laws of the state or territory in which Synergy Healthcare Australia is headquartered.
14. Termination
Either party may terminate the contract if the other party breaches these Terms and Conditions and fails to correct the breach within thirty days of written notice.
15. Rented Pallets
a) If the Goods are delivered to or collected by the Purchaser or its agent, carrier, or contractor on Rented Pallets, the Purchaser agrees to either:
i) At the time of delivery or collection, physically exchange or return the equivalent quantity of Rented Pallets either to Synergy Healthcare Australia’s carrier or agent delivering the Goods or directly to Synergy Healthcare Australia with the same type of the Rented Pallets; or
ii) Accept transfer of the same number and type of the Rented Pallets from Synergy Healthcare Australia’s account to its account of the relevant Rented Pallet company.
b) Rented Pallets will be deemed to be in the Purchaser’s possession until exchanged, returned, or transferred as envisaged in clause 20.a).
c) All risks and costs associated with the Rented Pallets vest in the Purchaser. At all times, Synergy Healthcare Australia retains the right of possession of any Rented Pallets used for delivery of the Goods and the Purchaser indemnifies Synergy Healthcare Australia for:
i) The full price of any new pallets in respect of any Rented Pallets not exchanged, returned, or transferred in good order and condition to Synergy Healthcare Australia within one (1) month of delivery of the Goods; and
ii) If exchanged, returned or transferred after one (1) month of delivery of the Goods, then all rental on those Rented Pallets that may be charged by the Rented Pallet company to Synergy Healthcare Australia.
21. Hardship
a) For the purposes of this clause, “Hardship Event” means:
i) Any changes in raw material inputs which leads to increased costs to Synergy Healthcare Australia in sourcing the Goods from an international manufacturer, including but not limited to increases in fuel prices, energy costs, or freight and transport costs; and/or
ii) Any changes to or introduction of new central or regional laws, regulations or policies which lead to increased costs to Synergy Healthcare Australia in sourcing the Goods from the international manufacturer; and/or
iii) Any changes to the Specifications from Synergy Healthcare Australia’s supplier during the term of the Contract, with which the Purchaser does not agree.
b) If, at any time during the supply period to which the Contract relates, a Hardship Event occurs, Synergy Healthcare Australia may notify the Purchaser of such occurrence and request a meeting to discuss appropriate changes to the terms of the Contract (including pricing terms or delivery dates) or adjustments to the supply price in light of such Hardship Event (“Hardship Notice”).
c) The Purchaser and Synergy Healthcare Australia will discuss possible options to minimise the impact of the Hardship Event, having regards to Synergy Healthcare Australia’s discussion with the manufacturer. If the parties are unable to reach agreement on appropriate changes to the Contract price or other terms of the Contract within fourteen (14) days of the date of the Hardship Notice, then Synergy Healthcare Australia may increase the price of the Goods to the extent required to pass on such increased costs resulting from the Hardship Event. Such cost increase shall take effect from the date of the Hardship Notice. The Purchaser is not obliged to agree to any change to the terms of the Contract as a result of a Hardship Event, however, if the parties are unable to reach agreement on appropriate changes to the Contract price or other terms of the Contract within fourteen (14) days of the date of the Hardship Notice, and Synergy Healthcare Australia is not prepared to continue supplying the Goods, then Synergy Healthcare Australia may suspend supply of the Goods for the balance of the term of the Contract.
