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Term and Conditions
Joya Medical Australia Pty Ltd ACN 637 602 914 (Joya)
The entity described as the Customer in the Supply Form (Customer)
These Terms & Conditions form part of each and every Supply Agreement between Joya and the Customer
In these Terms & Conditions:
Approved Customer means a Customer who is:
(a) is located in New South Wales, the Northern Territory, Queensland, South Australia, Victoria or Western Australia; and
(b) is either:
(1) a Healthcare Professional; or
(2) an Approved NSP.
Approved NSP means a needle and syringe program that is:
(a) authorised at law to supply needles and syringes to Members of the Public; and
(b) purchasing Restricted Medical Products pursuant to and in accordance with that authorisation.
Authorised Officer means, in relation to a corporation which is a party:
(a) an employee of the party whose title contains either of the words Director or Manager;
(b) a person performing the function of any of them;
(c) a solicitor acting on behalf of the party; or
(d) a person appointed by the party to act as an Authorised Officer for the purposes of these Terms & Conditions and notified to the others.
Billing Period has the meaning given to it in clause 7.1.
Business Day means a day on which banking institutions generally are open in Brisbane but excludes Saturdays, Sundays and public holidays.
Charge means any amount payable by the Customer to Joya under clause 6.1.
Claim means, in relation to a person, any action, allegation, claim, demand, judgment, liability, proceeding, remedy, right of action or right of set-off made against the person concerned however it arises whether:
(a) it is present, unascertained, immediate, future or contingent; JOYA Medical Australia Pty Ltd
(b) it is based in contract, tort, statute or otherwise; or
(c) it involves a third party or a party to any Supply Agreement.
Completed Supply Form means a Supply Form which has been fully completed (to Joya’s satisfaction) by the Customer.
Cost means any charge, cost, expense, outgoing, payment or other expenditure of any nature including legal fees on a full indemnity basis (whether calculated on a time charge basis or otherwise).
Credit Application has the meaning given to it in clause 9.1.
Credit Facility means a Credit Application which has been accepted by Joya under clause 9.2.
Customer Details means any contact details for the Customer contained in a Completed Supply Form.
Damage means any award, Cost, damage, injunction, injury, judgment, Liability, Loss or order.
Delivery Requirements has the meaning given to it in clause 4.5(g).
Disputed Matter has the meaning given to it in clause 26(a).
Dispute Notice has the meaning given to it in clause 26(a).
Emergency Delivery Charge means $150.00.
Event of Default means an event as described in clause 19.2.
General Sale Agreement has the meaning given to it in clause 3.2.
Government Body means:
(a) any person, body or other thing exercising an executive, legislative, judicial or other governmental function of any country or political subdivision of any country;
(b) any public authority constituted by or under a law of any country or political subdivision of any country; or
(c) any person deriving a power directly or indirectly from any other Government Body.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and/or associated Commonwealth legislation, regulations and publicly-available rulings.
Healthcare Professional means a registered doctor, nurse, pharmacist or healthcare worker purchasing Restricted Medical Products in the course of their profession for a lawful purpose.
Insolvency Event means:
(a) in relation to any corporation:
(1) the appointment of an administrator or provisional liquidator in respect of it;
(2) its winding up (whether voluntary or involuntary);
(3) dissolution occurs; JOYA Medical Australia Pty Ltd
(4) a receiver, receiver and manager or trustee is appointed in respect of the corporation or its property;
(5) a ground for winding up occurs in relation to the corporation;
(6) the corporation ceases or threatens to cease to carry on its business;
(7) the corporation being deemed to be or stating that it is unable to pay its debts when they fall due;
(8) the corporation enters into, or resolves to enter into any arrangement, composition or compromise with or an assignment for the benefit of all or any class of its creditors; and
(9) an application being made which is not dismissed or withdrawn within ten (10)
Business Days for an order, resolution being passed or proposed, a meeting being convened or any other action being taken to cause anything described above;
(b) in relation to an individual, that person becoming an insolvent under administration as defined in Section 9 of the Corporations Act 2001 (Cth); and (c) in relation to any person, anything analogous to or having a similar effect to anything described above in this definition under the law of any relevant jurisdiction.
Invoice means an invoice issued under clause 7.1.
Invoice Date has the meaning given to it in clause 7.2(b).
Joya Details means:
(a) Address: C/- Joya Medical Australia Pty Ltd 263 Benowa Road Benowa, Qld 4217
(b) Electronic Mail: firstname.lastname@example.org
Liability means a debt, liability or Obligation, quantified or unquantified, whether:
(a) actual, contingent or prospective;
(b) present or future;
(c) qualified or unqualified; or
(d) incurred jointly or severally with any other person.
Loss means any loss (including loss of profit and loss of expected profit), diminution in value or deficiency of any kind whether indirect, consequential or otherwise.
Manufacturer Warranty has the meaning given to it in clause 14.1.
Manufacturer Warranty Period has the meaning given to it in clause 14.1(c).
Mediation has the meaning given to it in clause 26(e).
Medical Product means any good supplied under a Supply Agreement
Member of the Public means a Customer that is not an Approved Customer. JOYA Medical Australia Pty Ltd
Non-excludable Rights has the meaning given to it in clause 15.1.
Obligation means any commitment, covenant, duty, obligation or undertaking whether arising by operation of law, in equity or by statute and whether express or implied.
Payment Details has the meaning given to it in clause 8.2.
PPS Act means the Personal Property Securities Act 2009 (Cth).
Premises means 263 Benowa Road, Benowa, Qld 4217.
Pre-Payment means payment of a Charge payable under clause 6.4 in advance of any Medical Products being provided to the Customer by Joya.
Purchase Price has the meaning given to it in clause 4.5(d).
Quantity has the meaning given to it in clause 4.5(c).
Recipient has the meaning given to it in clause 21.1.
Register has the meaning given to it in the PPS Act.
Response has the meaning given to it in clause 26(d).
Restricted Medical Product means a syringe or needle.
Restricted Sale Agreement has the meaning given to it in clause 3.3.
Returns Form has the meaning given to it in clause 13.5.
Sale Medical Product means any Medical Product which is sold to the Customer by Joya.
Security Interest means:
(a) an interest in or right:
(1) reserved over property (including any retention of title to property or any right to set off or withhold payment of any deposit or other money);
(2) created or otherwise arising over property under a mortgage, charge, bill of sale (as defined in any relevant statute), lien, pledge, trust or right; or
(3) by way of security for the payment of a debt or other monetary Obligation or the performance of or compliance with any other Obligation;
(b) any instrument or transaction which reserves, constitutes or evidences the interests and rights referred to in paragraph (a); and
(c) any other interest which constitutes a security interest as that term is defined in the PPS Act.
Supplier has the meaning given to it in clause 21.1.
Supply Agreement means the contract formed upon Joya’s acceptance of a Completed Supply Form, the entire terms of which contract are constituted by these Terms & Conditions in conjunction with the Completed Supply Form.
Supply Category has the meaning given to it in clause 3.1.
Supply Charge has the meaning given to it in clause 6.1. JOYA Medical Australia Pty Ltd
Supply Form has the meaning given to it in clause 4.1.
Supply Item has the meaning given to it in clause 4.5(b).
Tax Invoice means a document that complies with the requirements of the GST Law for a tax invoice.
Taxable Supply has the meaning given to it under the GST Law.
Unrestricted Medical Product means a Medical Product sold by Joya that is not a Restricted Medical Product.
Validation Charge has the meaning given to it in clause 8.4(a).
Verification Statement has the meaning given to it in the PPS Act.
In these Terms & Conditions, unless the contrary intention appears:
(a) a reference to:
(1) these Terms & Conditions or another document includes any variation or replacement of it notwithstanding any change in the identity of the parties;
(2) any statute, ordinance, code or other law includes regulations and other statutory instruments under any of them and consolidations, amendments re- enactments or replacement of any of them;
(3) a person, firm, corporation, association or Government Body includes any other of them;
(4) a person includes the person’s successors, executors, administrators, substitutes (including a person who becomes a party by novation) and assigns;
(5) a time is a reference to Brisbane time unless otherwise specified; and
(6) a right includes a benefit, remedy, authority, discretion and power;
(b) the singular includes the plural and vice versa;
(c) headings shall not affect the construction;
(d) if the day on which:
(1) anything, other than a payment, is to be done is not a Business Day, that thing shall be done on the preceding Business Day; and
(2) a payment is to be made is not a Business Day it shall be made on the next Business Day but if the next Business Day falls in the next calendar month it shall be made on the preceding Business Day;
(e) if an act is required to be done on a particular day and the act is done after 5.00pm on that day, it will be deemed to have been done on the following day;
(f) where two or more persons are defined as a party to a Supply Agreement that term means each of the persons jointly, each of them severally and any two or more of them jointly; and JOYA Medical Australia Pty Ltd
(g) an agreement, covenant, Obligation, representation or warranty on the part of two or more persons binds them jointly and severally and an agreement, covenant, Obligation, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally.
3.1 Supply Categories
These Terms & Conditions apply to any past, present or future agreement between the parties which falls into one of the following categories (each a Supply Category):
(a) General Sale Agreement; or
(b) Restricted Sale Agreement.
3.2 General Sale Agreement
An agreement is a General Sale Agreement if it contemplates the purchase of Unrestricted Medical Products by a Customer.
3.3 Restricted Sale Agreement
An agreement is a Restricted Sale Agreement if it contemplates the purchase of Restricted Medical Products by a Customer.
4.1 Supply Forms
Joya may, from time to time, prescribe a standard form (Supply Form) by displaying that Supply Form on its website or otherwise making it available to the Customer.
4.2 Submission of Supply Forms
(a) The Customer may submit a Completed Supply Form to Joya using whatever method of submission that Joya may prescribe from time to time.
(b) The submission of a Completed Supply Form by the Customer constitutes an offer by the Customer to enter into a Supply Agreement on the terms set out in the Completed Supply Form and these Terms & Conditions.
4.3 Right to refuse
Joya reserves the right to supply or decline to supply, in whole or in part, any Medical Products requested by the Customer in a Completed Supply Form.
4.4 Supply Agreement
If Joya notifies the Customer that a Completed Supply Form is acceptable to Joya:
(a) a Supply Agreement will come into existence between the parties upon communication of that acceptance; and
(b) the Completed Supply Form, together with these Terms & Conditions, will constitute the entire terms of that Supply Agreement. JOYA Medical Australia Pty Ltd
4.5 Contents of Supply Form
A Completed Supply Form must set out:
(a) the Supply Category that it relates to;
(b) a description for each individual Medical Product which is requested (Supply Item);
(c) the required quantity for each Supply Item (Quantity);
(d) the price payable of each Supply Item (Purchase Price);
(e) the Customer Details;
(f) the Payment Details;
(g) any details necessary to arrange the shipping or transport of the Supply Items,
including whether a request has been made for emergency delivery (Delivery Requirements); and
(h) where the Supply Form is for a Restricted Sale Agreement:
(1) the State to which the Customer has ordered delivery of the Supply Items that are Restricted Medical Products;
(2) an acknowledgment that the Customer is an Approved Customer; and
(3) the particular class of Approved Customer applicable to the Customer.
4.6 No variations in Completed Supply Form
Nothing in a Completed Supply Form or in any other document given by the Customer to Joya shall have the effect of varying any provision contained in these Terms & Conditions or creating or altering the rights, Liabilities or Obligations of any party.
4.7 Invalidity of other Agreements
Any arrangement which falls into one of the Supply Categories in clause 3.1 is void and invalid to the extent that it purports to vary any of these Terms & Conditions or create any rights, Obligations or Liabilities not contemplated by these Terms & Conditions.
The parties agree that any quotes which are provided by Joya to the Customer for the provision of Medical Products are provided by way of an estimate only and will not be binding upon any party.
By entering into a Restricted Sale Agreement, the Customer represents and warrants that the Customer:
(a) is an Approved Customer; and
(b) will not use the Sale Medical Products for any illegal purpose. JOYA Medical Australia Pty Ltd
5.2 When representations are made
The representations in clause 5.1 are made and repeated each time the Customer provides a Completed Supply Form to Joya.
The Customer acknowledges that Joya has relied on the representations in clause 5.1 in connection with the supply of Restricted Medical Products to the Customer.
The Customer indemnifies Joya, and agrees to keep Joya indemnified, against any claims or Liabilities arising directly and indirectly as a consequence of:
(a) any breach of the representations in clause 5.1; or
(b) any of the representations in clause 5.1 being untrue, inaccurate or misleading in any respect.
The Customer agrees to pay to Joya any amount which becomes payable for a Supply Item under a Supply Agreement (Supply Charge) on the terms of payment set out in these Terms & Conditions.
6.2 Supply Charges
The Supply Charge for a Supply Item will be the Purchase Price provided for that Supply Item in the Completed Supply Form.
6.3 Payment with Credit Facility
If the Customer has an approved Credit Facility with Joya, it must pay all Charges in accordance with clause 7.
6.4 Payment without Credit Facility
If the Customer does not have a Credit Facility:
(a) all Supply Charges must be paid by Pre-Payment;
(b) Joya may require the Customer to pay any further amount by Pre-Payment at any time to cover any additional Charges which may be payable under a Supply Agreement; and
(c) no Obligation in any Sale Agreement will become binding upon Joya until all Pre- Payments have been received by Joya.
6.5 Electronic payment
Subject to clause 6.6, the Customer must pay for all Charges by credit card, or any other method of electronic transfer that Joya may allow, into any account that Joya may nominate from time to time.
JOYA Medical Australia Pvt. Ltd
If any amount which is paid by the Customer exceeds the Customer’s Liabilities under a Supply Agreement, Joya may elect to either credit that amount towards the Customer’s other Liabilities or refund it to the Customer.
7.1 Issuing Invoices
Joya may, at any time:
(a) issue an Invoice to the Customer for any Charges which Joya considers to have become payable during the period of time for which that Invoice is issued (Billing Period); or
(b) amend or re-issue any Invoice which has previously been issued with respect to any Billing Period if it believes that any Charge was omitted or incorrectly calculated.
7.2 Payment of Invoices
All Charges contained in an Invoice must be paid by the Customer:
(a) within the Credit Period if the Customer has a Credit Facility; or
(b) otherwise, on the date on which the Invoice is issued (Invoice Date).
This clause 8 applies to all Supply Agreements, irrespective of the method of payment which is used by the Customer.
8.2 Required Payment Details
Prior to entering into the first Supply Agreement under these Terms & Conditions, the Customer must provide Joya with:
(a) credit card details; or
(b) a direct debit authorisation,
held by the Customer with a reputable bank or credit provider (Payment Details).
8.3 Customer’s Authority
Upon providing the Payment Details to Joya, the Customer:
(a) irrevocably authorises Joya:
(1) to retain a record of the Payment Details on file;
(2) to disclose the Payment Details to any third party gateway providers that Joya may utilise for the purpose of processing and storing the Payment Details; and JOYA Medical Australia Pty Ltd
(3) to authorise its third party payment gateway providers to use the Payment Details to process payment of any amount which is payable to Joya under any Supply Agreement, without obtaining any further consent from the Customer or any other party;
(b) warrants that the Payment Details are valid and sufficient to discharge all actual and prospective Liabilities under any Supply Agreement;
(c) warrants that they have obtained any consent in relation to the Payment Details which may be required from any third party to give effect to these Terms & Conditions;
(d) agrees to provide updated Payment Details to Joya immediately in the event that any Payment Details previously provided are no longer current and otherwise upon request by Joya; and
(e) fully indemnifies Joya against any Loss which it suffers in connection with any Claim made against Joya by any person as a result of, or in connection with, Joya exercising its rights under this clause 8.
8.4 Validation Payments
(a) Joya may from time to time charge a payment in the vicinity of $2 for the purpose of ensuring that the Payment Details are correct (Validation Charge).
(b) If a Validation Charge fails to process, Joya may elect to immediately terminate any Supply Agreements between the parties, or to suspend any Supply Agreement until alternate Payment Details have been provided.
9.1 Credit Application
The Customer may apply to Joya for a Credit Facility by completing a credit application in the form prescribed by Joya from time to time (Credit Application).
9.2 Approval of Credit Application
Joya may at its sole and absolute discretion:
(a) approve any Credit Application made by the Customer, at which point a Credit Facility
will come into existence between Joya and the Customer; or
(b) reject any Credit Application without providing any reasons for that rejection.
9.3 Credit Period
Where a Credit Facility is provided by Joya to the Customer, the Credit Period for each Invoice rendered by Joya to the Customer will be:
(a) 30 days from the end of the month in which that Invoice is rendered; or
(b) any lesser period of time that Joya may impose at its sole discretion.
9.4 Credit Reports
(a) Joya may at its sole discretion use any credit report concerning or relating to the Customer to assist Joya in assessing a Credit Application or to facilitate collection of any other Liability.
JOYA Medical Australia Pty Ltd
(b) The Customer agrees and consents to Joya receiving from any credit reporting agency of its choosing any credit report containing personal information about the Customer in relation to the collection of any outstanding amount due to Joya or any other supplier to the Customer.
9.5 Withdrawal or variation of Credit Facility
(a) Joya may decide to withdraw or vary any existing Credit Facility at any time by giving the Customer written notice of that decision.
(b) Any withdrawal or variation of a Credit Facility will take effect:
(1) immediately for all Supply Agreements which come into existence after notice of withdrawal or variation is given; or
(2) for all other Supply Agreements, at the end of the existing Credit Period.
10.1 Retention of title
Until the Customer has paid and discharged all Charges owing to Joya pursuant to the relevant Supply Agreement:
(a) legal and equitable ownership of the Medical Products shall remain with Joya; and
(b) the relationship between the parties shall be fiduciary and the Customer shall hold the Medical Products as bailee for Joya.
The Customer assumes all risks and Liability in relation to the Sale Medical Products and the use, maintenance, repair and storage of them (including Liability for injury to any person or Damage to any property, whether direct or consequential) from the time at which the Sale Medical Products leave the Premises.
(a) Until such time as ownership of the Sale Medical Products passes to the Customer, Joya authorises the Customer to on-sell the Sale Medical Products as an agent of Joya (by bona-fide sale in the ordinary course of business).
(b) Where the Sale Medical Products have been on-sold by the Customer, the Customer will be taken to hold the proceeds of sale of such Sale Medical Products on trust for Joya and to account to Joya for these proceeds until all Liabilities under the relevant Supply Agreement have been discharged.
(c) The Customer shall not represent to any parties that it is in any way acting for Joya and Joya will not be bound by any contracts with third parties to which the Customer is a party.
11.1 Delivery of Sale Medical Products
(a) Sale Medical Products are at the risk of the Customer during shipping and transport. JOYA Medical Australia Pty Ltd
(b) Joya shall use its best endeavours to have the Sale Medical Products delivered by the agreed time, but will not be liable to the Customer for late delivery, non-delivery or any Damage occasioned to the Customer for such late or non-delivery.
(c) Any delivery date stipulated in the quote or Completed Supply Form is an estimate only and the time for delivery of the Sale Medical Products shall not be regarded as of the essence.
(d) If the Customer fails to notify Joya within 24 hours of the estimated time of delivery that it has not received the Sale Medical Products, the Customer shall be deemed to have received the Sale Medical Products and shall be liable for any payments in relation to the Sale Medical Products.
(e) Under no circumstances may the Customer deny a signature evidencing receipt of the Sale Medical Products by it or any employee, agent or carrier utilised or employed by the Customer.
11.2 Cost of delivery
In addition to the Supply Charges, the Customer shall be liable for all Costs associated with delivery of Sale Medical Products, including:
(a) travel time charges from depot to depot, assessed according to time and distance involved;
(b) shipping and transport charges for delivery of Sale Medical Products, and waiting times and delays caused by the Customer;
(c) any Damage to the Sale Medical Products; and
(d) tolls, levies, or like charges paid or payable by Joya to any Government Body for delivery of the Sale Medical Products.
12.1 Emergency Delivery
(a) If requested by the Customer, and subject to this clause 12, Joya will provide ‘emergency’ delivery of Sale Medical Products within four hours of an order being placed and accepted in accordance with clause 12.2.
(b) Joya shall use its best endeavours to have the Sale Medical Products delivered in accordance with clause 12.1(a), but will not be liable to the Customer for late delivery or non-delivery resulting from insufficient stock, traffic, weather events or any other factor beyond Joya’s control.
(c) Under no circumstances may the Customer deny a signature evidencing receipt of the Sale Medical Products by it or any employee, agent or carrier utilised or employed by the Customer
12.2 Eligibility for emergency delivery
Emergency delivery is available only to:
(a) to Customers that:
(1) are located within 90km of the Premises;
(2) have a valid Credit Facility with Joya approved pursuant to clause 9; and
JOYA Medical Australia Pty Ltd
(3) are either Healthcare Professional, medical centres or related medical service providers; and
(b) for that are:
(1) for a minimum Purchase Price of $500.00;
(2) placed at first instance by way of telephone call to Joya at the number displayed on Joya’s website; and
(3) supported by a Completed Supply Form submitted to and accepted by Joya in accordance with clause 4.
12.3 Cost of delivery
In addition to the Supply Charges, the Customer shall be liable for all Costs associated with emergency delivery of Sale Medical Products, including:
(a) the Emergency Delivery Charge;
(b) any Damage to the Sale Medical Products; and
(c) tolls, levies, or like charges paid or payable by Joya to any Government Body for emergency delivery of the Sale Medical Products.
13.1 Incorrect Product
Subject to clause 13.3 below, if the Customer receives an incorrect Sale Medical Product the Customer can return it to Joya for a refund, credit or exchange (excluding shipping charges) within 30 days of the date of purchase (as shown on the Customer’s Invoice).
13.2 Customer error or change of mind
Joya is committed to customer satisfaction. Subject to clause 13.3 below, the Customer can return a product to Joya for a refund, credit or exchange (excluding shipping charges) within 7 days of the date of purchase (as shown on the Customer’s Invoice) by reason of Customer ordering error, change of mind, unsuitability or surplus to requirements. Joya may, at its sole discretion, retain a 20% restocking fee on the Purchase Price of the item if returned for these reasons.
13.3 Faulty Product
If the Customer receives a Sale Medical Product that is damaged or faulty, the Customer must contact Joya within 24 hours of receiving the Sale Medical Product to arrange for its return.
13.4 Pre-requisites for return
Subject to mandatory legislative requirements, Joya will accept a return from the Customer if and only if the returned Sale Medical Product is:
(a) unused, undamaged and of merchantable quality;
(b) contained in its original unopened container and/or packaging with labels that are intact; and
(c) accompanied by the original Invoice.
JOYA Medical Australia Pty Ltd
13.5 Returns Form
Joya may, from time to time, prescribe a standard form (Returns Form) by displaying that Returns Form on its website or otherwise making it available to the Customer.
13.6 Returns Process
If the Customer believes it is entitled to a refund, credit or exchange, in accordance with clause 13.3, the Customer must:
(a) complete the Returns Form;
(b) pack all relevant Sale Medical Products and the Invoice in a secure carton or reuse the original packaging; and
(c) send the package via an Australia Post Office to the Premises.
13.7 Recommendation for registered post
For security and peace of mind, Joya strongly suggests the Customer return Sale Medical Products to Joya by way of insured registered post as Joya is not liable for lost return parcels.
14.1 Manufacturer Warranty
To the extent that a Sale Medical Product is the subject of a warranty provided by the manufacturer of the Sale Medical Product (Manufacturer Warranty):
(a) the Manufacturer Warranty is the only warranty provided for that Sale Medical Product;
(b) Joya will provide a copy of the Manufacturer Warranty to the Customer upon request; and
(c) Joya will do all things reasonably necessary to ensure that the Customer obtains the
benefit of the Manufacturer Warranty during the period of time for which the Manufacturer Warranty applies under the terms of the Manufacturer Warranty (Manufacturer Warranty Period).
14.2 Limitations on Joya Warranty
The Manufacturer Warranty (if any) will not apply if the Customer fails to comply with the terms of the Manufacturer Warranty.
14.3 Customer’s acknowledgements
The Customer agrees that:
(a) neither Joya nor anyone on its behalf has given any warranty or made any representation to the Customer as to the quality, fitness for any particular purpose, suitability or condition of any Sale Medical Products; and
(b) all the Customer’s Obligations under the relevant Supply Agreement will continue despite any defect in, or breakdown of, the Sale Medical Products or any other matter concerning the Sale Medical Products.
JOYA Medical Australia Pty Ltd
15.1 Non-excludable rights
The parties acknowledge that, under the Australian Consumer Law, certain conditions and warranties may be implied in Supply Agreements and there are rights and remedies conferred on the Customer in relation to the provision of Medical Products which cannot be excluded, restricted or modified by agreement (Non-excludable Rights).
15.2 Disclaimer of Obligations
Joya disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-excludable Rights.
15.3 Limitation of Liability
Joya’s Liability for a breach of any implied condition or warranty in relation to Medical Products which cannot lawfully be excluded, or any additional warranty which may be provided for in these Terms & Conditions, is limited (but only to the extent permitted by law) at Joya’s discretion to:
(a) replacing the Medical Products or supplying equivalent Medical Products; or
(b) paying the Cost of replacing the Medical Products or acquiring equivalent Medical Products.
15.4 Indirect Loss
Notwithstanding any other provision of these Terms & Conditions, Joya is in no circumstances (whatever the cause) liable in contract, tort (including without limitation, negligence) or breach of statutory duty or otherwise to compensate the Customer for:
(a) any increased Costs or expenses;
(b) any Loss of profit, revenue, business, contracts or anticipated savings;
(c) any Damage resulting from a Claim by a third party; or
(d) any special, indirect or consequential Loss of any nature whatsoever.
15.5 Force Majeure
Joya will have no Liability to the Customer in relation to any Claims caused by the failure of Joya to supply any Medical Products as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of Joya’s normal suppliers to supply Medical Products or any other matter beyond Joya’s control.
16.1 Customer’s Indemnity
The Customer indemnifies Joya, its directors, officers, employees, contractors, representatives, agents and its associated entities and keeps each of them indemnified, from and against any Claims and Damages incurred or suffered directly or indirectly from or in connection with:
JOYA Medical Australia Pty Ltd
(a) any breach of a Supply Agreement or any of the Customer’s warranties by the Customer;
(b) the termination of a Supply Agreement because of a breach by the Customer;
(c) any wilful, unlawful or negligent act or omission by the Customer;
(d) any Claim against Joya in relation to any Medical Products or the use or operation of them;
(e) any injury to or death of a natural person by the use of any Medical Products;
(f) any Claim by a third party arising directly or indirectly out of a breach of a Supply Agreement by the Customer; or
(g) any other thing in relation to which the Customer has assumed the risk or Liability, except to the extent that any Damage is caused by the wilful, unlawful or negligent actions of Joya.
In this clause 17, the terms Accession, Financing Statement, Financing Change Statement, Proceeds, Register and Security Agreement have the meanings given to them in the PPS Act.
17.2 Creation of Security Interest
The Customer acknowledges and agrees that:
(a) these Terms & Conditions constitute a Security Agreement that creates a Security Interest in all Medical Products sold or otherwise supplied by Joya to the Customer from time to time; and
(b) each Security Interest created under or in connection with these Terms & Conditions or
any transaction contemplated by them is a continuing Security Interest which will operate (despite any intervening payment or settlement of account) until Joya has signed a release.
17.3 Waivers in relation to Security Interest
(a) Joya and the Customer agree that:
(1) to the extent that section 115(1) of the PPS Act allows them to be excluded,
sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 138B(4), 142 and 143; and
(2) to the extent that section 115(7) of the PPS Act allows them to be excluded,
sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137,
do not apply to any enforcement by Joya of any Security Interest created under or in connection with these Terms & Conditions.
(b) The Customer waives its right to receive anything from Joya under section 275 of the PPS Act and agrees not to make a request of Joya under that section. JOYA Medical Australia Pty Ltd
(c) The Customer and Joya agree for the purposes of section 275(6) of the PPS Act that neither the Customer nor Joya will disclose any information in the nature of that mentioned in section 275(1) of the PPS Act.
(d) Without limiting any other provision of these Terms & Conditions, the Customer waives its right to receive any verification statement (or notice of any verification statement) in respect of any Financing Statement or Financing Change Statement relating to any Security Interest created under or in connection with these Terms & Conditions.
17.4 Customer’s undertakings for Security Interest
The Customer undertakes and agrees:
(a) to keep all Medical Products free of any charge, lien or Security Interest except as created under these Terms & Conditions;
(b) not to deal with the Medical Products in a way that may prejudice any rights of Joya under these Terms & Conditions or the PPS Act;
(c) to do anything, including sign any further documents and provide any further information (which must be complete, accurate and up-to-date in all respects) that Joya may require to:
(1) register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register;
(2) register any other document required to be registered by the PPS Act;
(3) correct a defect in a statement or document referred to in clauses 17.4(c)(1) and 17.4(c)(2); or
(4) ensure that each Security Interest created under or in connection with these Terms & Conditions, or any transaction contemplated by them, is a first ranking perfected Security Interest over all Medical Products;
(d) to indemnify, and upon demand reimburse, Joya for all fees (including actual legal fees on a solicitor/own client basis), Costs, disbursements and expenses in:
(1) registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any Medical Products charged thereby; and
(2) enforcing or attempting to enforce the Security Interest created by these Terms & Conditions; and
(e) not to register, or allow to be registered, a Financing Statement or a Financing Change
Statement in respect of the Medical Products (or Proceeds derived from, or from a dealing with, the Medical Products) in favour of a third party, without the prior written consent of Joya.
17.5 Obligation to maintain company details
Where the Customer is a business, the Customer undertakes and agrees:
(a) to immediately advise Joya of any material change in its business, including any
change to its name, ABN, address, email address, facsimile number or any other details that have been, or are required to be, recorded on the register maintained under the PPS Act in relation to any security interest created under or in connection with these Terms & Conditions;
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(b) to pay all Costs in connection with the registration, discharge or amendment of any
Financing Statement or Financing Change Statement;
(c) to not, without the prior written consent of Joya, lodge or serve a Financing Change Statement or an amendment demand in relation to any Security Interest created under or in connection with these Terms & Conditions; and
(d) that the Medical Products provided under these Terms & Conditions are not intended, and shall not be used, for personal, household or domestic purposes.
18.1 Amendments to Terms & Conditions
Joya may amend or replace these Terms & Conditions or any part of these Terms & Conditions by giving the Customer written notice of the amendment at any time.
18.2 Time amendments effective
If Joya notifies the Customer of an amendment to these Terms & Conditions under clause 18.1:
(a) any amendments will take effect immediately for any Supply Agreement which comes into existence after notification of the amendment is given; and
(b) the Customer’s submission of any new Completed Supply Form will represent the Customer’s acceptance of the Terms & Conditions as amended.
19.1 Termination of Supply Agreement with notice
Without prejudice to any other remedies Joya may have against the Customer, Joya may terminate a Supply Agreement by giving the Customer 30 Business Days written notice of the termination.
19.2 Termination for Event of Default
Joya may terminate a Supply Agreement immediately if:
(a) the Customer:
(1) suffers an Insolvency Event; or
(2) commits any other breach of that Supply Agreement;
(b) any other event or series of events (whether related or not) occurs, including without limitation any change in the financial condition of the Customer, which has or is likely to have a material adverse effect upon:
(1) the enforceability of a Supply Agreement; or
(2) the ability of any party to comply with its Obligations under it.
19.3 Without prejudice to rights
Termination of a Supply Agreement will be without prejudice to the rights of a party accrued as at the date of termination.
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19.4 Surviving rights and Obligations
The provisions relating to indemnities, confidential information, governing law and jurisdiction, and the creation of any Security Interest in favour of Joya, survive termination of a Supply Agreement until each of those Obligations have been completely discharged.
20.1 Consequences of Termination
If Joya terminates these Terms & Conditions because of an Event of Default:
(a) any amount invoiced by Joya to the Customer becomes immediately due and payable; and
(b) the Customer agrees to indemnify Joya against all Damage (including solicitor and own client Costs, the Costs of any debt recovery agents and other commercial agent commissions, freight, insurance, Loss of profit and interest) incurred by Joya as a result of the Customer’s default.
21.1 Payments exclusive of GST
If a party (Recipient) is obliged pursuant to the GST Law to pay an amount of GST in respect of a Taxable Supply made by another party (Supplier) pursuant to a Supply Agreement, the Recipient shall pay the Supplier on demand that amount of GST upon production of a valid Tax Invoice by the Supplier in addition to the moneys otherwise payable by the Recipient to the Supplier on account of that Taxable Supply.
Any notice or other communication to or by any party must be:
(a) in writing and in the English language;
(b) addressed to the address of the recipient in clause 22.4 or to any other address as the recipient may have notified the sender; and
(c) signed by the sender or by an Authorised Officer of the sender.
In addition to any other method of service authorised by law, the notice may be:
(a) personally served on a party;
(b) left at the party’s current address for service;
(c) sent to the party’s current address for service by prepaid ordinary mail or if the address is outside Australia by prepaid airmail;
(d) sent by facsimile to the party’s current numbers for service;
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(e) sent by electronic mail to the party’s electronic mail address; or
(f) sent electronically using any portal or other submission system on the party’s website.
If a notice is sent or delivered in the manner provided in clause 22.2 it must be treated as given to or received by the addressee in the case of:
(a) delivery in person, when delivered;
(b) delivery by post:
(1) in Australia to an Australian address, the fourth Business Day after posting; or
(2) in any other case, on the tenth Business Day after posting;
(c) facsimile, when a transmission report is printed by the sender’s facsimile machine stating that the document has been sent to the recipient’s facsimile number; or
(d) electronic mail or website submission, when the sender’s computer reports that the message has been delivered to the electronic mail address of the addressee, but if delivery is made after 5.00pm on a Business Day it must be treated as received on the next Business Day in that place.
22.4 Initial details
The addresses and numbers for service are initially:
(a) for Joya, the Joya Details; and
(b) for the Customer, those set out in the Customer Details.
A party may from time to time change its address or numbers for service by notice to each other party.
23.1 Governing law
Each Supply Agreement is governed by and construed in accordance with the laws of Queensland.
Each party irrevocably:
(a) submits to the non-exclusive jurisdiction of the courts of Queensland and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating to a Supply Agreement; and
(b) waives any objection it may now or in the future have to the venue of any proceedings, and any Claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue falls within paragraph 23.2(a).
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24.1 Exercise rights
A single or partial exercise or waiver by a party of any right under or relating to a Supply Agreement will not prevent any other exercise of that right or the exercise of any other right.
If the Liability of a party to pay money under a Supply Agreement becomes merged in any deed, judgment, order or other thing, the party liable must pay interest on the amount owing from time to time under that deed, judgment, order or other thing at the higher of the rate payable under these Terms & Conditions and that fixed by or payable under that deed, judgment, order or other thing.
24.3 Fairness of Agreement
The parties acknowledge that all of the provisions contained in these Terms & Conditions are fair and reasonable in the circumstances.
24.4 Moratorium legislation
Any law which varies prevents or prejudicially affects the exercise by a party of any right, power or remedy conferred on it under a Supply Agreement is excluded to the extent permitted by law.
24.5 Remedies cumulative
The rights and remedies under a Supply Agreement are cumulative and not exclusive of any rights or remedies provided by law.
If a provision of a Supply Agreement is illegal, invalid, unenforceable or void in a jurisdiction it is severed for that jurisdiction and the remainder of these Terms & Conditions has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected.
24.7 Further assurance
Each party must promptly at its own cost do all things (including executing and delivering all documents) necessary or desirable to give full effect to a Supply Agreement and the transactions contemplated by it.
Subject to these Terms & Conditions, the indemnities in these Terms & Conditions are continuing Obligations, independent from the other Obligations of the parties under a Supply Agreement and continue after that Supply Agreement ends. It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under a Supply Agreement.
(a) Joya may assign or otherwise deal with any part of its rights or Obligations under a Supply Agreement by giving the Customer written notice of that assignment or dealing.
(b) The Customer shall not assign or otherwise deal with any part of its rights or Obligations under a Supply Agreement without the prior written consent of Joya.
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Any waiver of a particular breach of any express or implied provision of a Supply Agreement shall not constitute a waiver of any other breach of such provision or of any other express or implied provision.
Time is of the essence in respect of any Obligation under a Supply Agreement.
The documents comprising a Supply Agreement may be executed in original form and/or by facsimile transmission in any number of counterparts and all counterparts taken together shall constitute one and the same instrument.
(a) The Customer may not disclose the contents or terms of a Supply Agreement or any information or documents received by it in connection with the negotiation of a Supply Agreement or pursuant to the provisions of a Supply Agreement without the prior consent of Joya except to the extent that:
(1) disclosure is expressly permitted by the documents comprising that Supply Agreement;
(2) the information is available to the public generally (except as a result of a
previous breach of this clause);
(3) the Customer is required to make the disclosure by law; or
(4) the disclosure is made on a confidential basis to the representatives or
professional advisers of that party for the purpose of obtaining professional advice.
(b) The Customer hereby authorises Joya to collect, retain, record, use and disclose
consumer and/or commercial information about the Customer, in accordance with the Privacy Act 1988 and the Privacy Principles outlined in the Privacy Amendment Act 2012, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by Joya, a debt collector, credit reporting body and/or any other individual or organisation which maintains credit references and/or default listings.
(c) Subject to the Privacy Principles outlined in the Privacy Amendment Act 2012, the Customer further authorises Joya to collect, retain, record, use and disclose personal information about the Customer for the marketing of Medical Products.
Unless expressly stated otherwise, each party shall be responsible for all its own Costs incurred in the negotiation of, and the performance of its Obligations pursuant to a Supply Agreement including, without limitation, legal Costs.
24.15 Whole Agreement
(a) The documents comprising a Supply Agreement supersede all prior representations, arrangements, understandings and agreements between the parties and represent the entire complete and exclusive understanding and agreement between the parties relating to the subject matter of that Supply Agreement.
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(b) The parties acknowledge and agree that they have not relied on any written or oral representation, arrangement, understanding or agreement not expressly set out or referred to in the documents comprising a Supply Agreement.
Failure by Joya to enforce or delay in enforcing any right or provision of a Supply Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed in writing.
25.1 Warranties of the Parties
Both parties represent, warrant and agree that:
(a) they have the right, power and authority to enter into and perform their respective Obligations in accordance with these Terms & Conditions;
(b) all corporate and other necessary action has been taken by each of them to authorise the signing and performance of these Terms & Conditions; and
(c) each Supply Agreement is valid and legally binding on them in accordance with these Terms & Conditions.
(a) If the Customer disagrees with or is otherwise dissatisfied with any Sale Medical Products, Invoice or any other act or determination by Joya under these Terms & Conditions (Disputed Matter), the Customer must provide a notice of that dispute (Dispute Notice) which sets out:
(1) details of the Disputed Matter; and
(2) the basis for the Customer disputing each Disputed Matter.
(b) The Customer must submit the Dispute Notice within 5 Business Days of receiving any Sale Medical Products.
(c) If the Customer does not provide a Dispute Notice within the timeframe set out in clause 26(b), the Customer will be taken to have waived its right to make any Claim in respect of the Disputed Matter.
(d) If a Dispute Notice is given to Joya in accordance with clause 26(a), then Joya must give to the Customer a written response to each of the Disputed Matters as set out in the Dispute Notice within 10 Business Days (Response).
(e) If Joya and the Customer have not resolved the Disputed Matters within 10 Business Days of the Response being delivered in accordance with clause 26(d), any party may request that the dispute be referred to mediation by providing notice to the other party in writing (Mediation).
(f) If the parties fail to agree as to the appointment of a mediator within 10 Business Days of the notice provided under clause 26(e), then either party may apply to the Queensland Law Society Inc. to appoint a mediator.
(g) All costs involved in the Mediation must be paid equally by the parties.
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(h) The parties must attend the Mediation and try to resolve the dispute.
(i) A party may not start court proceedings in relation to a dispute until it has exhausted the procedures in this clause, but neither party is prevented from applying to a court at any stage for urgent injunctive or other relief.
(j) Nothing in this clause prevents any party from exercising any of its rights or permits any party to not comply with any Obligations under these Terms & Conditions.
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