Terms and Conditions

  • DEFINITIONS

The following definitions apply in this document and the Application:

  • “ACL” means the Australian Consumer Law contained in Schedule 2 of the CCA as amended, re-enacted or replaced, and includes any subordinate legislation.
  • “CCA” means the Competition and Consumer Act 2010 (Cth) as amended, re-enacted or replaced, and includes any subordinate legislation.
  • "Contract" means a contract of sale by HECSA to the Customer of the Goods incorporating these terms and conditions.
  • “Credit Application” means an application submitted by the Customer to HECSA for credit in relation to the supply of Goods, incorporating these terms and conditions.
  • "Customer" means the person or entity that is purchasing the Goods from HECSA or any employee, agent or representative of that person or entity.
  • “FTA” means the Fair Trading Act 1989 (Qld) as amended, re-enacted or replaced and includes any related or subordinate legislation.
  • “Goods” means the goods sold by HECSA to the Customer, pursuant to these terms and conditions.
  • “GST” means the goods and services tax as determined in accordance with the A New Tax System (Goods and Services) Act 1999 (Cth).
  • “HECSA” means Health Equipment and Consumable Supplies Australia Pty Ltd ACN 632 755 670.
  • “Invoice” means the invoice delivered by HECSA to the Customer for the provision of Goods.
  • “Manufacturer” means a person or entity that produces, processes, assembles or provides the Goods for the benefit of, or under the direction of, HECSA.
  • “PPSA” means the Personal Property Securities Act 2009 (Cth).
  • “Website” means HECSA’s website hecsa.com.au.
  • FORMATION OF CONTRACT
    • An order submitted by a Customer to HECSA is binding on the Customer and HECSA, if:
      • a written acceptance or acknowledgement of that order is signed by on behalf of HECSA; or
      • Goods are supplied by HECSA in accordance with the order.
    • No order given by a Customer to HECSA is binding on HECSA until HECSA accepts the order in accordance with clause 1.
    • By submitting an order the Customer is deemed to accept these terms and conditions.
    • Unless otherwise agreed in writing between the Customer and HECSA, the Customer and HECSA agree that these terms and conditions take precedence over any terms and conditions contained within, or contemplated by the Customer’s order, any terms and conditions of the Customer which the Customer purports to apply to the provision of Goods or any other document.
    • The failure by HECSA to object to any contrary or inconsistent provisions contained in any request for proposal, purchase order or other written communication from the Customer shall not be deemed to be a waiver or modification of these terms and conditions or acceptance by HECSA of any such contrary or inconsistent provisions.
    • Any act or omission by HECSA which constitutes, or could be construed as, a waiver of any of these terms and conditions shall be deemed as non-continuing in nature and not deemed a waiver of future application of the terms and conditions.
  • PRICING
    • Unless otherwise agreed in writing, the price charged by HECSA is the price listed on HECSA’s Website at the time of placing the order.
    • All prices listed are in Australian dollars and exclusive of GST. All taxes, duties and shipping expenses are in addition to prices shown.
    • Prices and specifications are subject to change without notice. HECSA will use its best endeavours to notify Customers of price variations 30 days prior to any changes.
  • PAYMENT TERMS
    • All payments are due prior to or upon delivery, unless a Credit Application has been completed and accepted by HECSA prior to delivery.
    • If a credit account has been approved in writing by HECSA, payment is due on the 14th day of the month following the month in which the Invoice is issued unless otherwise agreed in writing between the parties.
    • Payment must be made free of any setoff, deduction, counterclaim or withholding whatsoever.
    • HECSA reserves the right to charge the Customer a fee on any payment by the Customer that attracts any transaction fee for HECSA.
    • Payment shall be deemed to be made when it has been received by HECSA as clear funds.
    • HECSA may terminate or suspend further deliveries should the Customer fail to comply strictly with payment terms and HECSA may charge interest at the rate of the ANZ Banking Group overdraft base rate plus 2% on any amount which remains unpaid from the due date for payment until the date of payment of all arrears and interest.
    • Invoices must be paid by cash, cheque, bank cheque, depositing cleared funds into HECSA’s nominated bank account, credit card or any other method agreed between HECSA and the Customer in writing.
    • The Customer charges all of its present and after acquired property in favour of HECSA to secure the payment of all monies by the Customer owing to HECSA and the performance by the Customer of all of its obligations under these terms and conditions or any other arrangement between HECSA and the Customer.
    • The Customer shall be liable for all costs incurred by HECSA in recovering amounts owing by the Customer (including legal costs on an indemnity basis).
  • PASSING OF RISK
    • Unless otherwise agreed in writing, if:
      • Goods are held by HECSA – risk in the Goods passes to the Customer immediately upon the Goods leaving HECSA’s premises; or
      • Goods are held by the Manufacturer and supplied directly to the Customer – risk in the Goods passes to the Customer immediately upon the Goods leaving the Manufacturer’s premises.
    • The Customer must take out and maintain a suitable insurance policy or insurance policies to cover any damage or loss that may occur to the Goods after they leave the premises under clause 1.
  • RETENTION OF TITLE
    • The title to all Goods supplied by HECSA to the Customer remains with HECSA until payment for the Goods is received in full.
    • Any monies received by the Customer for the sale of the Goods must be held for the benefit of HECSA and paid to HECSA until the Goods are paid for in full.
    • If the Customer fails to make payment for the Goods when due, then HECSA or its authorised agent may enter the premises where the Goods are located and seize those Goods and, at HECSA’s discretion, sell the Goods to recover the amount of the debt owing by the Customer.
    • The retention of title arrangement described in this clause 0 constitutes the grant of a purchase money security interest by the Customer in HECSA’s favour in respect of all present and after-acquired Goods supplied by HECSA to the Customer.
  • PERSONAL PROPERTY SECURITIES
    • Terms in this clause have the same meaning as in the PPSA.
    • The Customer acknowledges and agrees that these terms and conditions:
      • constitute a security agreement for the purposes of the PPSA; and
      • where HECSA sells Goods to the Customer, a security interest arises in all Goods supplied (whether already supplied or to be supplied) by HECSA to the Customer, the proceeds of the sale of all Goods (whether already supplied or to be supplied) by the Customer and all of the Customer’s present and after acquired property.
    • The Customer acknowledges that HECSA may:
      • register its security interest as a purchase money security interest to the extent that it secures payment of all or part of the Price; and/or
      • register its security interest as a general security interest to the extent that it secures payment of all or part of the Price or performance of obligations.
    • The Customer undertakes to:
      • promptly execute any further document and/or do such further acts and things and provide such further information (such information to be completed, accurate and up-to-date in all respects) which HECSA may reasonably require to:
        • register a financing statement or financing change statement in relation to a security interest and otherwise do all things necessary and required by HECSA to ensure that any security interest registered by HECSA is a perfected security interest under the PPSA;
        • register any document on any register reasonably necessary to secure HECSA’s security interests arising under, or in connection with, these terms and conditions;
        • register any other document required to be registered under the PPSA; or
        • correct a defect in a statement referred to in sub-clauses (i), (ii) or (iii);
      • indemnify, and upon demand reimburse, HECSA for all expenses incurred in registering a financing statement or financing change statement or releasing any Goods that are the subject of a security interest;
      • not make any amendment demand in respect of a security interest, apply to the Registrar to register a financing change statement in respect of a security interest, without HECSA’s prior written consent; and
      • not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without HECSA’s prior written consent.
    • The Customer and HECSA agree that section 96, 116, 125, the second sentence only of 126(2) of the PPSA do not apply to the security interest created by these terms and conditions.
    • The Customer hereby waives its rights to receive notices, information or statements (as the case may be) under sections 95, 118, 120, 121(4), 123(2), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA and the Customer’s rights as a grantor and/or a customer under section 142 and 143 of the PPSA.
    • Unless otherwise agreed in writing by the Customer and HECSA, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
    • The Customer acknowledges that HECSA has a caveatable interest in any real property of the Customer under this clause and HECSA may lodge a caveat over the Customer’s real property.
    • The provisions of this clause 0 survive termination of these terms and conditions or any other agreement between the Customer and HECSA for the supply of Goods.
  • PURCHASE ORDERS AND DELIVERY
    • The submission of a purchase order by the Customer to HECSA shall constitute agreement by the Customer to complete the purchase of the Goods in accordance with these terms and conditions and if available for delivery, the Goods will be delivered in accordance with these terms and conditions.
    • Delivery may occur:
      • in respect of Goods collected by the Customer or its carrier or agent - at HECSA’s premises if the Goods are to be collected by the Customer or the Customer, with HECSA’s consent, has made its own arrangements for a carrier or agent organised by the Customer to collect the Goods;
      • in respect of Goods delivered by HECSA (or its carrier or agent) or the Manufacturer (or its carrier or agent) - at the address nominated by the Customer at the time of the order if HECSA agreed to deliver the Goods at that address at the time of the order.
    • Goods may be delivered in instalments, at different times and each delivery shall be deemed to be for a separate purchase order and paid for in accordance with these terms and conditions.
    • HECSA provides no guarantee as to time for delivery and the Customer may not reject Goods or claim damages for late delivery due to any cause beyond the control of HECSA. HECSA is not responsible for any loss suffered by the Customer caused by the delay of delivery of the Goods.
    • Deliveries are subject to suitable access, firm standing, storage, unloading and manoeuvring spaces, as determined by HECSA and HECSA is not liable for, and the Customer will indemnify HECSA against, any claims for damages to access ways, storage areas, plant, equipment or works during delivery.
    • Any non-delivery of an instalment of Goods in accordance with clause 0 does not repudiate or invalidate the Contract and does not give the Customer the right to reject the Goods.
  • RETURNS
    • This clause 0 does not apply to Goods purchased by Customers who are consumers within the meaning of the ACL and where the return is made because the Goods do not comply with the consumer guarantees under the ACL.
    • Any request from a Customer for return and credit for Goods supplied must be made to HECSA within seven days of delivery to the Customer or its agent. Acceptance of a request for return and credit and issue of a credit authorisation shall be, subject to the requirements of the ACL, at the sole discretion of HECSA.
    • Goods will not be accepted back without prior authorisation by HECSA and the Customer must return the Goods, freight paid and in original condition and packaging including documentation and Invoices to HECSA’s warehouse.
  • CONSUMER GUARANTEES AND WARRANTIES
    • HECSA does not make or provide any warranty or other representation to the fullest extent permitted by law including but not limited to warranties or representations regarding the quality or suitability of the Goods.
    • Except as set out in these in these terms and conditions or otherwise expressly agreed in writing between the parties, all conditions, representations, warranties, terms and undertakings (whether express or implied), are excluded to the fullest extent permitted by law.
    • Nothing in these terms and conditions is intended to have the effect of contracting out of any applicable provisions of the CCA (including the ACL) or the FTA, except to the extent permitted by those Acts.
    • The Manufacturer may offer its own warranty for Goods. HECSA has no liability to the Customer in respect of such warranties and shall not be required to seek to enforce the terms of the Manufacturer’s warranty for the benefit of the Customer.
  • DISCLAIMER
    • As HECSA is not the Manufacturer of the Goods, HECSA, to the fullest extent permitted by law, is not liable for any damaged or defective Goods distributed directly by the Manufacturer to the Customer.
  • AMENDMENT
    • HECSA reserves the right to review these terms and conditions at any time from time to time, if, following any such review, there is a change to these terms and conditions, that change will take effect from the date on which HECSA makes such change and publishes the same on its website (hecsa.com.au) or provides a copy to the Customer.
  • DISPUTE RESOLUTION
    • HECSA or the Customer may not commence legal proceedings, except proceedings seeking urgent interlocutory relief, in respect of any disputes in relation to this document without first complying with the dispute resolution procedures in this clause 0.
    • If a dispute arises, then the parties to the dispute undertake in good faith to use all reasonable endeavours to settle the dispute by negotiation.
    • If the dispute is not settled by the parties to the dispute in accordance with clause 2 within a reasonable time of notification of dispute by either party, then the parties to the dispute must endeavour to settle the dispute by mediation using the following process:
      • either party can send notification to the other party stating that the dispute has not been resolved and therefore the dispute should be referred to mediation; and
      • within 14 days of receipt of notice under clause 3(a), the parties agree to select a mediator and, if none can be agreed, then the parties agree to the appointment of the mediator by the Chair of the Resolution Institute, (ACN 008 651 232, Level 2, 13-15 Bridge Street, Sydney NSW 2000; telephone: (02) 9251 3366, email: infoaus@resolution.institute) or the Chair’s designated representative.
    • The parties to the dispute will share the cost of the mediator equally but will each be responsible for their own costs of mediation.
    • If the dispute cannot be resolved in accordance with clause 3, either party may, by notice in writing of not less than 14 days to the other, refer the dispute to legal action. Service of a notice under this clause 13.5 is a condition precedent to the commencement of any litigation proceedings in respect of such dispute.
    • This clause survives termination of this document.
  • ATTORNEY
    • The Customer appoints HECSA to act as its duly constituted attorney from time to time to:
      • do such acts which in HECSA’s opinion (acting reasonably) are necessary to give effect to any right, power or remedy conferred on HECSA by these terms and conditions or the PPSA;
      • execute in the Customer’s name such documents which in HECSA’s opinion (acting reasonably) are necessary to give effect to any right, power or remedy conferred on HECSA by these terms and conditions or the PPSA;
      • register any security arising in HECSA’s favour under these terms and conditions or granted by the Customer to HECSA under these terms and conditions; and
      • to give effect to the matter contemplated by these terms and conditions, even though the Customer may not have defaulted in carrying out the Customer’s obligation under these terms and conditions.
    • TIME IS OF THE ESSENCE
      • Time for payment of an Invoice is of the essence in accordance with these terms and conditions.
    • GOVERNING LAW
      • These terms and conditions are governed by and construed in accordance with the laws of Queensland, Australia and, where applicable, the Commonwealth of Australia. HECSA and the Customer submit to the non-exclusive jurisdiction of the courts of Queensland.
    • ASSIGNMENT
      • The Customer may only assign its rights and obligations under a Contract with the prior written consent of HECSA.
    • SEVERABILITY
      • The invalidity or unenforceability of any provision of these terms and conditions shall not affect the validity of enforceability of any other provision of these terms and conditions, which shall remain in full force and effect.
    • FORCE MAJEURE
      • HECSA shall not be liable for any failure or delay to supply Goods due to a cause beyond HECSA’s control including, but not limited to, acts of God, strikes, lock-outs or other industrial disturbances, fire, flood, explosion, civil riot and government interference.
    • PRIVACY
      • The Customer authorises HECSA to obtain a credit report from a credit-reporting agency or insurer containing credit information about the Customer in relation to credit provided by HECSA.
      • To the maximum extent permitted by law, the Customer authorises HECSA to exchange information about the Customer with credit providers, insurers or other third parties for the following purposes:
        • to assess any Credit Application by the Customer;
        • to notify other credit providers of a default by the Customer;
        • to exchange information with other credit providers as to the status of the Customer’s account, where the Customer in default with other credit providers;
        • to assess the Customer’s credit worthiness; and
        • to assess the level of insurance that HECSA may require to adequately protect it from any insurable risks associated with the Customer and the supply of Goods to the Customer.
      • The Customer authorises HECSA to give personal or commercial information about the Customer to a credit reporting agency, insurer or third party for the following purpose:
        • to obtain a consumer credit report about the Customer; and/or
        • to allow the credit reporting agency to create or maintain a credit information file containing information file containing information about the Customer; and/or
        • taking out and maintaining credit or similar insurance in respect of insurable risks associated with the Customer and the supply of Goods to the Customer.
      • CONFIDENTIAL INFORMATION
        • If at any time HECSA discloses to the Customer or the Customer becomes aware of confidential information of HECSA relating to the Goods, material, procedures, tests or equipment, the Customer must not use the information for any purpose not approved by HECSA and not disclose that confidential information to any other person unless expressly agreed in writing by HECSA.
 

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