APPLICATION OF TERMS AND CONDITIONS
1.1 These Terms and Conditions apply to all supplies of goods and/or services by Getz Healthcare to you (Customer) and represent the complete agreement of the parties in relation to each supply, regardless of anything stated to the contrary (either verbally or in writing) by either party, except as provided in clause 1.2. Any reference to goods means goods and/or services unless the context otherwise requires. By dealing with Getz Healthcare (including by placing an order for the supply of goods) after receipt of these Terms and Conditions the Customer is deemed to have accepted these Terms and Conditions.
1.2 Getz Healthcare may amend these Terms and Conditions from time to time by written notice to the Customer, signed by Getz Healthcare. Such notice will be effective upon receipt by the Customer.
PRICE AND PAYMENT
2.1 The price of the goods and services is as stated in the Schedule to these Terms and Conditions. If no Schedule is attached to these Terms and Conditions, the price is Getz Healthcare’s current price for those goods and services as at the date that Getz Healthcare accepts the Customer’s order, plus GST, unless otherwise agreed in writing with the Customer. The price, unless otherwise stated, does not include GST or other taxes, import duties or other levies or tariffs, freight costs, freight insurance or installation charges, each of which, if applicable, will be an extra charge payable by the Customer to Getz Healthcare in accordance with clause 2.4.
Changes in Prices and Availability of Goods
2.2 Unless a law states that Getz Healthcare is not entitled to do so, prices and the availability of goods are subject to alteration without notification. The continuing availability of goods is not guaranteed.
2.3 Where goods are imported into New Zealand, Getz Healthcare may, in addition to the stated price, charge the Customer for any increase in the cost of such importation between the date of acceptance of the Customer’s order and the date of importation, including increases in costs due to transportation costs, delivery costs, shipping costs, import duties, export duties (if any) in the country of origin and fluctuations in currency rates, and the Customer agrees to pay these additional costs in accordance with clause 2.4.
2.4 Unless otherwise stated in the Schedule to these Terms and Conditions, payment of any invoice issued by Getz Healthcare to the Customer is due on the 20th day of the month following the date of the invoice.
No Set-off or Deduction
2.5 The Customer must pay all amounts payable to Getz Healthcare under these Terms and Conditions in accordance with clause 2.4 without set-off or deduction of any kind.
ORDERS AND DELIVERY Orders
3.1 Getz Healthcare will not accept any orders for a value greater than $5000.00 unless that order is confirmed in writing by the Customer.
3.2 Delivery of any goods will be deemed to have taken place upon Getz Healthcare delivering the goods either:
to the Customer; or
to the Customer’s nominated carrier for transportation to the Customer; or
to the address nominated by the Customer, and delivery will be complete and the Customer will be deemed to have accepted the goods notwithstanding that the Customer is not physically present at the place or time of delivery and notwithstanding that there has been no receipt obtained for the goods upon delivery.
3.3 Any delivery date or installation date notified by Getz Healthcare (notified date) is an estimate only. Getz Healthcare will use its reasonable endeavours to meet notified dates, but the Customer may not cancel any order or these Terms and Conditions if Getz Healthcare does not deliver or install the goods on the notified date or dates. Getz Healthcare is not liable to the Customer or to any other person for any direct, indirect or consequential loss or damage (including loss of profit or loss of opportunity) arising out of any failure to deliver and/or install the goods on any notified date or at all. The Customer indemnifies and holds Getz Healthcare harmless from any claim, cost, expense, damage which Getz Healthcare may suffer or incur as a result of any third party seeking compensation for any alleged late delivery of the goods. Without limiting the above, if Getz Healthcare is unable to deliver or install the goods within a period of 30 days from the notified date Getz Healthcare may, by giving written notice to the Customer, cancel the order prior to delivery and neither party will have any right of action or claim for damages (including any claim for loss of profit or loss of opportunity) against the other party.
3.4 Getz Healthcare may make delivery of goods by instalment. The Customer may not reject a delivery merely because the order is not complete, and the Customer must pay for goods delivered when payment falls due regardless of whether all goods that have been ordered have been delivered.
Claims for Discrepancy
3.5 No claims for credit for discrepancy or shortage in goods delivered, or claims for any other reason, will be considered unless verbal notice of such claim (including the invoice/ packaging slip number and date) is received within 24 hours of delivery, and any excess goods are returned, in original packing and original condition, within 7 days of delivery.
TITLE AND RISK Risk
4.1 The Customer agrees that risk of loss of or damage to any goods supplied by Getz Healthcare to the Customer will pass when goods are delivered to the Customer in accordance with clause 3.2, but legal and beneficial ownership in any goods that Getz Healthcare supplies to the Customer is retained by Getz Healthcare (notwithstanding any period of deferred payment) until all amounts the Customer owes to Getz Healthcare have been received by Getz Healthcare in full. Payment by cheque will not be deemed to be received until the cheque in payment has been duly and fully honoured.
Proceeds of Sale
4.2 The Customer must not sell, dispose of or otherwise part with possession of the goods prior to payment for those goods in full. If the goods are sold or otherwise disposed of by the Customer in breach of this provision, then the Customer must account to Getz Healthcare for any proceeds of sale. Getz Healthcare will be legally and beneficially entitled to such proceeds, which the Customer must pay into a separate bank account established for this purpose which bank account must never be overdrawn.
Storage of Goods
4.3 Until payment for the goods is made in full by the Customer, the Customer holds the goods solely as a fiduciary bailee for Getz Healthcare and must store the goods in such a way that they are clearly identifiable as Getz Healthcare’s property. The Customer must keep separate records in respect of the goods until such time as the goods have been paid for in full.
Personal Property Securities Act (PPSA)
4.4 The Customer acknowledges and expressly agrees that these Terms and Conditions constitute a security agreement in respect of a retention of title arrangement with respect to the goods which creates a security interest in favour of Getz Healthcare in all goods supplied by Getz Healthcare to the Customer. The Customer acknowledges and agrees that:
Getz Healthcare may, without providing notice to the Customer, register Getz Health care’s security interest pursuant to the Personal Property Securities Act 1999 (PPSA) and it is the intention of both parties that Getz Healthcare’s security interest will be registered on the personal properties securities register;
upon Getz Healthcare’s request, the Customer will promptly sign any documents, provide any further information and do anything else reasonably required by Getz Healthcare to enable perfection of Getz Healthcare’s security interest or registration of its security interest pursuant to the PPSA; and
the Customer will not grant any other security interest or any lien over the goods.
4.5 The Customer must insure the goods for their full replacement value in Getz Healthcare’s and the Customer’s names for their respective rights and interests from the time of delivery until payment is made in full for those goods.
Mixture of Goods
4.6 Should the goods become constituents of or be converted into other products while title remains with Getz Healthcare, the ownership of such products will at the time of production vest in, and thereafter remain with Getz Healthcare until full payment is made, as if such products were solely and simply the goods of Getz Healthcare, and accordingly the foregoing provisions of this clause will apply, with all necessary modifications, to such other products.
5.1 Provided the Customer has complied with clauses 5.4 and 5.5, and subject to clause 5.2, Getz Healthcare warrants that at the time of delivery the goods conform to their product description and are free from defects in materials and workmanship and that services will be provided free from defects in workmanship. To the extent permitted by law, Getz Healthcare’s sole obligation or liability in the event of a breach of this warranty will be to repair or replace goods (at Getz Healthcare’s option) in order to remedy the defect in the goods to the extent reasonably possible, or, where Getz Healthcare considers that repair or replacement is not practicable, to refund the purchase price for the goods.
5.2 Where an express written warranty signed by Getz Healthcare is given by Getz Healthcare to the Customer, or where Getz Healthcare provides the benefit of a
manufacturer’s warranty to the Customer, that warranty will apply instead of and not in addition to the warranty set out in clause 5.1.
No Other Warranty
5.3 Subject to clauses 5.1 and 5.2, to the extent permitted by law, no warranty or condition will be implied against Getz Healthcare by any statute, at common law, or otherwise, and no representation, condition or warranty will bind Getz Healthcare unless it is in writing and signed by Getz Healthcare.
Notification of Warranty Claims
5.4 The Customer must notify Getz Healthcare in writing within 7 days of the discovery of anything giving rise to a warranty claim (or of the date that such warranty claim should have been discovered, whichever is the earlier) and such notification will state:
the date of delivery of the goods or services; and
full details of the basis of the warranty claim.
Customer Not to Use or Repair Goods
5.5 The Customer must not:
use the goods in any way whatsoever after it becomes aware of any defect or fault in the goods until the goods have been repaired or replaced by Getz Healthcare; or
take any step to repair or alter any goods without Getz Healthcare’s prior written consent.
5.6 If the Customer continues to use the goods prior to the goods being repaired by Getz Healthcare, then the Customer indemnifies Getz Healthcare and keeps Getz Healthcare indemnified for any claim made by any person whatsoever against Getz Healthcare for damages arising out of injury to any person or property, where such injury to any person or property is a direct or indirect result of the use or misuse of the goods. The Customer will have no claim against Getz Healthcare with respect to such defects or any consequential loss or damage or liability flowing therefrom.
5.7 If the Customer carries out such repairs or attempt to carry out repairs without Getz Healthcare’s consent then Getz Healthcare’s liability to repair the goods will cease. Getz Healthcare will be under no obligation whatsoever to thereafter repair or replace the said faulty goods.
5.8 All risk of damage to or loss of any property during return to Getz Healthcare for repair remains with the Customer. Replaced parts will become Getz Healthcare’s property. Getz Healthcare will use its reasonable endeavours to return the repaired or replaced property to the Customer as soon as possible.
Payment for Non-Warranty Services
5.9 Where Getz Healthcare reasonably concludes that services requested by the Customer are not covered by warranty or by a maintenance agreement entered into between Getz Healthcare and the Customer, the Customer must pay for such services at Getz Healthcare’s then current rates, which will be notified by Getz Healthcare to the Customer. If the Customer instructs Getz Healthcare to carry out the services, the service rate will be payable in accordance with clause 2.4 of these Terms and Conditions.
Limitation of Liability
5.10 Without limiting any other provision of these Terms and Conditions, Getz Healthcare’s liability in relation to the goods and/or services provided by Getz Healthcare to the Customer is limited to the price actually paid by the Customer to Getz Healthcare for the goods and/or services and is limited to liability for direct loss and damage only. Getz Healthcare will have no further liability or responsibility for any direct, indirect or consequential loss or damage (including consequential loss or damage for loss of profit or loss of opportunity) whatsoever and howsoever arising (whether in tort, contract, equity or otherwise), including any liability to any third party.
Consequences of Disposal of Goods
5.11 Getz Healthcare will immediately cease to be liable to the Customer and have no further obligation to the Customer under these Terms and Conditions upon any resale or other disposal of goods by the Customer to a third party and will not in any event be liable to any person other than the Customer.
EXCLUSIONS TO WARRANTIES
6.1 To the extent permitted by law, any warranties given by Getz Healthcare under these Terms and Conditions will not apply to any defect, fault or malfunction of goods which arises from:
the negligent, incorrect or unreasonable use of the goods, or any act of wilful damage, by any person other than Getz Healthcare;
failure by the Customer or its agents or contractors to operate, transport, store and use the goods in accordance with Getz Healthcare’s or the manufacturer’s approved instructions, procedures, environmental specifications or tolerances;
ordinary wear and tear, or lack of proper maintenance or care of the goods; or
the fitting of parts or accessories, or repair or modification of the goods, other than by Getz Healthcare or its service agents (unless Getz Healthcare’s prior written consent is obtained);
interfacing of other manufacturers’ products, consumables or accessories not supplied or approved in writing by Getz Healthcare;
faulty or defective electrical wiring, walls or structures where the goods are used or located; or
any other event not caused by the default of Getz Healthcare or any event coming within the definition of a force majeure circumstance.
Where Getz Healthcare agrees in writing to install the goods for the Customer then this clause 7 will apply.
7.1 Getz Healthcare will notify the Customer of an estimated date for installation (notified installation date) and it will be the Customer’s responsibility to ensure (at the Customer’s cost) that the walls, the building, doors and all electrical wiring and other connections have been correctly prepared and are capable of having the goods installed by that date and that free and unrestricted access is granted to Getz Healthcare for the purpose of installation.
Delay in Installation
7.2 If Getz Healthcare is unable to install the goods on the notified installation date as a result of any act or omission by the Customer then, in addition to Getz Healthcare’s right to cancel the order, Getz Healthcare will be entitled to charge the Customer a fee for storage of the goods at Getz Healthcare’s premises together with all other costs incurred by Getz Healthcare which it would not have incurred had the Customer accepted delivery of the goods and had the site been suitable for installation of the goods on the notified installation date.
Modification of Goods
7.3 Except where Getz Healthcare has agreed to carry out modifications to the goods before installation, Getz Healthcare will not be obliged to carry out any modifications to the goods which may be necessary for installation. If modifications are requested by the Customer after the date of acceptance of any order by Getz Healthcare, but before delivery, Getz Healthcare may agree to carry out such modifications but may make an additional charge for doing so. The additional fee will be payable in accordance with clause 2.4 of these Terms and Conditions.
Getz Healthcare will not be liable for delay in performing or failure to perform its obligations if it is unable to do so as a result of an act of God, refusal to licence, government action or inaction, fire, flood, accident, industrial dispute, failure or delay of suppliers, transport delays or impossibility of obtaining materials or other circumstance of a similar nature beyond its reasonable control (force majeure circumstance) In any such circumstances Getz Healthcare may, at its option, cancel any order in whole or in part or extend the time for the delivery or installation of goods or performance of services for such period as may be reasonable in the circumstances.
DEFAULT AND TERMINATION General Remedies
the Customer commits any breach of these Terms and Conditions or of any other agreement between it and Getz Healthcare;
the Customer ceases or threatens to cease to carry on business;
the Customer enters into any negotiations for any arrangement or composition with its creditors;
the Customer is unable to pay its debts as they fall due;
the Customer becomes insolvent or bankrupt or commits an available act of bankruptcy or goes into receivership or liquidation;
the Customer does anything or fails to do anything which would allow a receiver or manager to be appointed or which would entitle any person to present an application for liquidation;
the Customer is placed under statutory management or enters into a scheme of arrangement with its creditors or any class thereof;
the Customer suffers any distress or execution to be levied on it; or
Getz Healthcare has reasonable concerns about the Customer’s ability to pay, then, notwithstanding any other provision of these Terms and Conditions, Getz Healthcare may, without prejudice to its other rights and remedies, and acting personally or through servants or agents:
cease without notice to provide any goods and/or services to the Customer; and/or
cancel any order; and/or
require cash payment for all future supplies, including for orders already accepted by Getz Healthcare; and/or
in the case of late payment, require the Customer to pay interest on demand (as liquidated damages) on such unpaid amounts at an interest rate of 12% per annum calculated daily and compounding monthly from the due date for payment until the receipt of payment by Getz Healthcare; and/or
recover and/or resell any of the goods and enter any premises at any time and without notice where it believes the goods are stored, using reasonable force if necessary, and the Customer grants Getz Healthcare an irrevocable right and authority to do so. Getz Healthcare will not be liable to the Customer or any third party in damages in respect of such recovery and/or resale, but will account to the Customer for any excess after all sums payable to Getz Healthcare have been paid. The Customer indemnifies Getz Healthcare from any claim, cost, expense, damage which Getz Healthcare may suffer or incur as a result of any third party seeking compensation for any alleged late delivery of the goods.
9.2 In the event of any default in payment the Customer will be liable to Getz Healthcare for all costs of collection that are incurred by Getz Healthcare including (but not limited to) costs incurred prior to any legal action, collection agency costs, Court costs, solicitor’s costs on a solicitor/client basis and search costs.
Cancellation by the Customer
9.3 The Customer must not cancel any order once accepted by Getz Healthcare except with Getz Healthcare’s express written agreement. If Getz Healthcare agrees to accept the Customer’s request for cancellation the Customer will be liable to pay Getz Healthcare (as liquidated damages) a restocking charge for all indented goods and non-stock items included in the order at the rate of 25% of the total order value for such goods and items. The Customer agrees that this amount represents a genuine pre-estimate of Getz Healthcare’s loss and damage in the circumstances of the Customer’s cancellation.
PRIVACY ACT Customer’s Acknowledgement
10.1 The Customer acknowledges that Getz Healthcare may collect personal information (as that term is defined in the Privacy Act 1993) about the Customer and/or its officers and employees. Such personal information may be held, used and disclosed to enable Getz Healthcare to process the Customer’s account with Getz Healthcare, to ascertain at any time the Customer’s creditworthiness and obtain at any time credit reports or character references to administer the Customer’s account, to give credit references, to provide to the Customer or have provided to the Customer advice or information concerning products and services Getz Healthcare believes may be of interest to the Customer, and to communicate with the Customer for any purpose.
Rights of Access and Authorisation
10.2 The Customer has the right to obtain access to and request correction of any personal information concerning it held by Getz Healthcare. The Customer authorises Getz Healthcare to obtain at any time from any person or entity, any information Getz Healthcare may require to assess this or any other application for a trading account by the Customer, or for any of the other purposes for which the Customer has provided personal information to Getz Healthcare. The Customer authorises any such person to release to Getz Healthcare any personal information concerning the Customer.