INVACARE AUSTRALIA PTY LTD TERMS AND CONDITIONS OF TRADE FOR CLEARANCE SALE PRODUCTS
“Invacare” means AUSTRALIA PTY LTD ACN 074 676 378, including any agents or third parties acting on Invacare's behalf.
"ACL" means the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth).
“Contract” means these Terms as amended from time to time, together with any and every invoice or other document evidencing or describing, whether by item or kind or otherwise, the Goods including the Order.
"Customer” means the party placing the Order with Invacare on the Website.
“Goods” means any goods, equipment, parts, accessories or materials purchased by the Customer on the Website
"Order" includes an order and confirmation of order between Invacare and the Customer which refers to the Goods.
"Personal Information" has the same meaning given to it under the Privacy Act 1988 (Cth).
“Purchase Information” means all records of the Customers' sales of the Goods, including (but not limited to) the Customer's name, address and telephone number (including cash sales); a description of the Goods, including the serial, reference or Unique Product Code number; lot number or batch number or any other information that may identify traceability of the Goods, the date of sale to the Customer and the date of purchase from Invacare.
“Terms” means these Terms and Conditions of Trade as amended from time to time, which are applicable solely in respect of the Goods sold on the Website, which form a contract between Invacare and Customer.
"Website" means Invacare's clearance store website at https://www.invacareonline.com.au as updated from time to time.
2.1 Each Order of the Goods by the Customer on the Website constitutes acceptance by the Customer of the terms and conditions of the Contract.
2.2 No Orders may be cancelled by the Customer except with the express consent of Invacare.
2.3 These Terms will override any conditions contained in the Customer’s order. Invacare reserves the right to accept any Order in whole or in part. No Order may be cancelled or varied unilaterally by the Customer after acceptance by Invacare. No Goods are held, allocated to or promised to the Customer until acceptance of the Order by Invacare. Invacare is not obliged to accept an Order.
3.1 The Customer may notify Invacare if any special packaging is necessary. The Customer will be required to pay for additional packaging requirements, unless Invacare agrees that such packaging is required to ensure safety of the Goods during the shipment.
4. Measurements and weight of the Shipment
4.1 If required, Invacare will inform the Customer about the overall measurements and weight of the shipment once the Order is packaged. Any measurements and weight communicated by Invacare prior to the Order being packaged are estimated and may be changed.
5. Delivery/Acceptance/ Price and Terms
5.1 Delivery of the Goods will be made to the address specified in the Order.
5.2 To the extent permitted by law, the Customer acknowledges and agrees that Invacare:
(a) does not accept any liability in respect of any delay in the Customer receiving the Goods pursuant to any Order; and
(b) does not agree or warrant to provide the Goods by any specific date or time. Any dates for expected delivery of the Goods provided by Invacare are estimates only.
5.3 The Customer must make all arrangements necessary to accept delivery of the Goods whenever they are tendered for delivery.
5.4 In the event that the Customer is unable to accept delivery of Goods as arranged, then Invacare shall be entitled to charge a reasonable fee for redelivery plus storage fees from the date the Goods were tendered for delivery until the date delivery is accepted if the delay is more than 24 hours. The failure of Invacare to deliver the Goods by a time specified by the Customer does not entitle the Customer to treat that contract as repudiated.
6.1 The price payable by the Customer for any Goods pursuant to any Contract will be the price set out on the Website.
6.2 The Customer acknowledges and agrees that the prices and charges for the Goods are subject to any costs and expenses additional to the ordinary costs of effecting delivery caused by war, government action, acts of terrorists, act of God, increased transport charges, epidemic, pandemic or any other circumstances beyond the control of Invacare.
6.3 Invacare reserves the right to change its prices (as advertised on the Website) without notice.
6.4 Administrative fees may be charged for sales below certain dollar values as determined by Invacare from time to time.
7. Delivery and Handling charges
7.1 The charges for delivery and handling of the Goods shall be set out in the Order.
8.1 All amounts expressed or described in the Contract or in invoices are inclusive of GST.
9. Passing of Risk and Title
9.1 Risk of the Goods passes to the Customer upon delivery of the Goods to the Customer.
9.2 Title in the Goods passes to the Customer upon Invacare receiving payment for the Goods in full and title to any particular Goods shall remain with Invacare until there are no longer any amounts owing to Invacare for those Goods.
10. Inspection, Claims and Returns
10.1 The Customer will inspect and check all Goods received as soon as practicable and must within 48 hours notify Invacare in writing of any shortage in quantity, defect, incorrect specification, damage or Goods not in accordance with the Customer’s Order. The Customer is responsible for checking that Goods comply with those Ordered prior to use and must not use the goods from immediately after suspecting there is any
10.2 If the Customer wishes to return any Goods, such claim must be made in accordance with Invacare's returns policy on the Website as updated from time-to-time.
11.1 The Customer is not entitled to set off against or deduct from the price of Goods of any sums owed or claimed to be owed to the Customer by Invacare.
11.2 Invacare may at any time or times, without notice to the Customer, set off any liability of the Customer to Invacare against any liability of Invacare to the Customer, whether any such liability is present or future, liquidated or unliquidated, under these Terms or not. Any exercise by Invacare of its rights under this clause shall be without prejudice to any other rights or remedies available to it under these Terms or otherwise.
12. Guarantees under the Consumer Guarantees Act and Exclusions
12.1 Invacare’s liability in respect of a breach of a guarantee or any warranty made under these Terms for any Goods or a consumer guarantee under the CGA is limited, to the extent permissible by law and at the option of Invacare to:
(a) replacing the Goods or the supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
(d) the payment of the cost of having the Goods repaired; or
(e) refunding the Customer the price of the Goods.
12.2 To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms are excluded.
12.3 The Customer indemnifies Invacare and its officers, employees, contractors and agents against any costs, expenses, losses, damages and liability suffered or incurred arising from the Customer’s breach of these Terms and any negligent or unlawful act or omission of the Customer in connection with the Goods.
12.4 The Customer must not on-sell the Goods to a third party without Invacare's prior written consent. Where Invacare has consented to the on-sale of Goods by the Customer to any other person, the Customer must not give or make any undertaking, assertion or representation in relation to the Goods without Invacare's prior approval in writing. The Customer shall pass on any written product information supplied by Invacare to the purchaser.
12.5 Nothing in these Terms is intended to have the effect of contracting out of the provisions of the ACL except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention.
12.6 For the avoidance of doubt, Invacare provides no warranties in respect of the Goods that are in addition to the guarantees contained in the ACL.
13. Condition of Goods
13.1 The Customer acknowledges and agrees that some Goods are used and are, or may be, defective. The Customer must:
(a) only use the Goods for the purposes for which they are sold as specified by Invacare;
(b) not adapt or modify the Goods to be used for a purpose for which they are not specifically designed, intended or instructed by Invacare or for a longer period of time than the relevant minimum safety or durability standard specified by Invacare; or
(c) not add to, repair or refurbish the Goods contrary to Invacare's description or instructions or using components not recommended by Invacare or the manufacturer
13.2 To the maximum extent permitted by law, Invacare is not responsible for any injury or damage whatsoever caused to the Goods supplied or as a result of the malfunction of the Goods if in Invacare's reasonable opinion:
(a) the Goods are used for a purpose other than that specified by Invacare (irrespective of whether they are repaired or refurbished); or
(b) the Goods are adapted or modified to a use for which they are not specifically designed, intended or instructed by Invacare or are used for a longer period of time than the relevant minimum safety or durability standard specified by Invacare; or
(c) the Goods are added to or repaired or refurbished contrary to Invacare's description or instructions or using components not recommended by Invacare or the manufacturer.
14. Requirements to Disclose Information
14.1 Where the Customer becomes aware of an incident where a person has suffered death or serious injury or illness that was caused by, or may have been caused by, the Goods (“Incident”), the Customer must immediately notify Invacare in writing of such Incident.
14.2 Where the Customer becomes aware of an Incident, the Customer must also provide sufficient information to Invacare to allow Invacare to meet its statutory reporting requirements, including but not limited to:
(a) Details as to when the Goods were purchased, and the quantity of Goods purchased;
(b) The nature of the injury or illness and the circumstances in which it occurred;
(c) Any other information that Invacare reasonably believes is required to allow it to investigate the Incident and to meet its statutory reporting obligations.
14.3 Nothing in this clause will be taken to be admission by Invacare of any liability in relation to the Goods or the Incident.
15.1 The Customer may not assign or subcontract any contract for the purchase of Goods or its obligations under these Terms.
15.2 Invacare may assign or licence or subcontract all or any parts of its rights and obligations without the Customer’s agreement or consent.
16. Force Majeure
16.1 Invacare will have no liability to the Customer in relation to any loss, damage or expense caused by Invacare’s failure to complete an order or delivery or contract as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lock out, war, pandemic, epidemic or the inability of Invacare’s suppliers to supply necessary materials or any other matter beyond Invacare’s control.
17. Privacy Information
18. Waiver of terms of contract
18.1 The failure by Invacare to exercise, or delay in exercising, any right, power or privilege available to it under these Terms will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any right or power.
19. Governing Law
19.1 These Terms are governed by and will be construed in accordance with the laws of New South Wales and the parties agree to submit to the exclusive jurisdiction of the Courts of New South Wales.
20.1 The Customer understands that the Goods may be subject to regulation by agencies of the United States (“U.S.”) government, including U.S. export controls that prohibit export or diversion of certain technical Goods to certain unauthorized countries or for certain unauthorized uses. The Customer warrants that that it will comply in all respects with the export control laws or regulations promulgated and administrated by the U.S. or the government of any other country with jurisdiction over the Customer, including the obligation not to export, re-export or otherwise disclose, directly or indirectly, Goods or technical data to any person or destination when such export, re-export or disclosure is in violation of U.S. or other applicable laws.
21.1 These Terms, together with any Order and invoice, represents the entire contract between the parties and, subject to Invacare's right to review and amend these Terms, may not be amended except in writing signed by each of the parties.
21.2 Invacare may serve any notice or Court document on the Customer by forwarding it by ordinary pre-paid post to the last known address of the Customer or alternatively to the address supplied by the Customer.
21.3 If any term of these Terms is invalid, void, illegal or unenforceable, the remaining provisions are not affected, prejudiced or impaired.
21.4 Notwithstanding any other clause in these Terms, Invacare reserves the right to review these Terms at any time. If following any such review there is to be a change in the Terms, that change will take effect from the date on which Invacare notifies the Customer of that change or at the time they are uploaded to the Website, whichever is the earliest.