TERMS OF TRADE – Apex Medical NZ Limited
1.1 “Apex Medical” shall mean Apex Medical NZ Limited, its permitted assigns and successors, or any agents or employees of Apex Medical as appropriate.
1.2 “Customer” shall mean the Customer as described in these terms of trade, any person acting on behalf of and with the authority or apparent authority of the Customer, or any person purchasing goods and services from Apex Medical.
1.3 “Goods” shall mean:
(a) all goods and inventory supplied by Apex Medical to the Customer;
(b) all charges identified in any invoice issued by Apex Medical to the Customer, which invoices are deemed to be incorporated into and form part of these terms of trade;
(c) all services and advice provided by Apex Medical to the Customer and shall include without limitation the manufacture and distribution of advertising, printing and display materials including technical advice; and
(d) all charges for labour, hire charges, insurance charges, freight costs, or any fee or charge associated with the supply of Goods by Apex Medical to the Customer.
1.5 “Price” shall mean the cost of the Goods as agreed between Apex Medical and the Customer under these terms of trade and includes all disbursements Apex Medical pays to third parties on the Customer’s behalf.
2.1 Any order from the Customer for the supply of Goods shall constitute an acceptance of these terms of trade.
2.2 Any order from the Customer received by Apex Medical shall constitute an offer subject to acceptance by Apex Medical. No order accepted by Apex Medical shall be modified or cancelled except with the prior written consent of Apex Medical.
3.1 All Prices are in NZD. The Price payable by the Customer will be the billing amount shown in the shopping tray plus any additional shipping charges.
3.2 Where a Price is given by Apex Medical for Goods:
(a) that Price shall be exclusive of GST;
(b) all freight and transport charges will be borne by the Customer;
(c) Apex Medical reserves the right to alter Prices at any time; and
(d) all Prices are subject to the availability of stock.
3.3 Where no Price is stated, the Goods shall be deemed to be sold at the current amount as such Goods are advertised by Apex Medical at the time.
3.4 Where the Customer wishes to vary an order:
(a) the Customer must submit an email enquiry to Apex Medical outlining the order number and requested variation;
(b) Apex Medical must within three (3) working days, notify the Customer of any extensions to time to carry out the order, of any additional costs arising from carrying out the variation and any change to the Price;
(c) the Customer has two (2) working days from receiving Apex Medical’s notice to accept those matters set out in Apex Medical’s notice;
(d) if the Customer does not respond within the stipulated timeframe or specifically accepts the matters set out in Apex Medical’s notice, then the exchange of notices shall be deemed to be an agreed variation.
4. CHARGES AND PAYMENT
4.1 Payment is due on the 20th of the month following invoice.
4.2 Apex Medical currently does not accept credit card payments.
4.3 Payment is to be made by direct credit to the bank account specified by Apex Medical.
5. DELIVERY, RISK, AND INSURANCE
5.1 If Apex Medical has specified an anticipated delivery date, Apex Medical will use its reasonable endeavours to arrange delivery of the Goods by that date. Apex Medical is not liable for any failure to deliver, or for any delay in delivery whatsoever.
5.2 Delivery shall be made to the New Zealand address indicated in the Customer’s order form.
Delivery of the Goods to the Customer shall be deemed completed upon Apex Medical delivering the Goods to the address provided in the Customer’s order form.
5.3 Irrespective of whether ownership and title in the Goods remains vested in Apex Medical, risk in the Goods shall pass to the Customer upon delivery.
5.4 With the exception of any insurance expressly covered by Apex Medical, the Customer is responsible for the insurance of all Goods from the time of delivery.
6. RETURNS POLICY
6.1 The Customer shall inspect the Goods upon delivery and shall within seven (7) days after delivery notify Apex Medical in writing of any abnormalities (faults or damage) the Customer wishes to make a claim for. If the Customer does not notify Apex Medical as per this clause 6.1, the Customer shall be deemed to have accepted the Goods.
6.2 Goods sold by Apex Medical may be returned for store credit subject to the following conditions:
(a) all returned goods require a return authorisation number from Apex Medical prior to returning for credit;
(b) the invoice and/or packing slip number must be quoted;
(c) all Goods should be returned in the original packaging. Consumables not returned in the original packaging may not be accepted for credit;
(d) Goods classified as sterile by Apex Medical will only be credited upon inspection and subject to confirmation that the goods have been correctly stored and transported for return, and that the Goods are sufficiently within the expiry date for resale.
6.3 The Customer shall be entitled to a full credit of the Price of the order in the event of order processing or shipping error. The returns must be received within thirty (30) days in the original unopened shelf packaging. There will be no restocking charge.
6.4 Goods covered under warranty will be replaced or repaired at no charge. The value of the Goods returned must be stated as the same value as the original invoice.
(a) The Customer must provide the original invoice number, serial or lot numbers, and a full description of the fault and how the fault occurred must be given.
(b) Damage caused by incorrect use or care will not be covered under warranty.
(c) Goods not covered by warranty returned for repair must be accompanied by a written purchase order or service requisition.
6.5 Apex Medical may refuse any Goods returned for credit on any of the following grounds – that the Customer:
(a) no longer wants the Goods;
(b) no longer requires the Goods;
(c) over-ordered the Goods; or
(d) ordered the wrong Goods.
6.6 Except at Apex Medical’s discretion:
(a) a Apex Medical representative or manager may authorise the return of Goods;
(b) returned Goods may be subject to a 25% restocking charge on the Price of the order;
6.7 All goods being returned should be couriered only (not posted). Apex Medical will nominate a courier address when issuing a return authorisation number
6.8 Subject to the above, Apex Medical will replace or credit to a maximum of the full value of the goods returned. Apex Medical will not be liable for the Client’s costs and losses including the loss of profits, or consequential loss.
7.1 Ownership and title in the Goods, or any proceeds from on-sale of the Goods, shall not pass to the Customer until the Customer has paid Apex Medical in full for the Goods and has paid Apex Medical in full for all other sums due to Apex Medical by the Customer on any account whatsoever in accordance with these terms of trade.
8. INTELLECTUAL PROPERTY AND USE BY THE CUSTOMER
8.1 All of the trademarks, patents, copyright, designs (including rights of drawings, calculations, models, samples, descriptions, figures, dimension specifications and the like) or other intellectual property rights (whether or not registered) in respect of the Goods (collectively “Intellectual Property”) remain Apex Medical’s property notwithstanding the sale/supply of the Goods to the Customer. The
Customer may not use, reverse engineer, remove, interfere with or alter the Intellectual Property in any way. Intellectual Property owned by Apex Medical may not be copied, reproduced, distributed, modified, published, uploaded, posted, or transmitted in any way without Apex Medical’s prior written consent.
8.2 The Customer acknowledges that it is aware that any breach of this clause 8 may result in Apex Medical suffering damages. The Customer indemnifies Apex Medical against all losses, damages, expenses and legal costs (including on a solicitor and client basis) that Apex Medical may reasonably sustain or incur as a result, whether directly or indirectly, of any breach by the Customer of the provisions of this clause 8.
8.3 The Customer may use the Goods only if paid for in full and for the purpose for which they were intended and supplied by Apex Medical.
9.1 Manufacturer’s warranties may apply to the Goods.
9.2 Apex Medical warrants that all goods are sold free from defects in material and/or workmanship at the time of delivery.
10. LIMITATION OF LIABILITY
10.1 Upon delivery, Apex Medical assumes no responsibility for any damage caused in relation to the handling or usage of the Goods.
10.2 Apex Medical assumes no responsibility for any damage to the Goods arising from any misuse, negligence or malpractice by the Customer in connection with the Goods. Misuse is defined as any use of the Goods by the Customer that falls outside of the intended purpose of those Goods.
10.3 The warranties provided in clause 9 replace all other representations or warranties (statutory, expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose) and all such representations and warranties (excepting those which may not be lawfully excluded) are specifically excluded. The exclusions and the limitations contained
in these terms of trade do not apply to rights granted to the Customer under the Consumer Guarantees Act 1993, unless the Customer is acquiring the services for the purposes of a business in which case the provisions contained in the Consumer Guarantees Act 1993 shall not apply.
10.4 Under no circumstances will any warranty express or implied relating to the Goods extend to or include nor will Apex Medical be liable (whether vicariously or otherwise) under the law of tort, contract or otherwise for:
(a) any loss or damage of any kind whatsoever, arising from the supply of Goods by Apex Medical to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by Apex Medical to the Customer; or
(b) any loss of profits or savings or any indirect, special, incidental or consequential loss or damage, however caused, arising out of or in connection with the performance or non-performance of Apex Medical and/or these terms of trade.
10.5 Notwithstanding any other provision of terms of trade, if for any reason Apex Medical becomes liable for loss or damage that would have otherwise been excluded then its total liability to the Customer arising out of any claim for damages for any cause will be limited at Apex Medical’s election to either the monetary amount of the value of the Goods giving rise to the claim or the actual damage or loss suffered by the Customer whichever is lesser.
11.1 The Client may not assign any of its rights or obligations under these terms of trade without the prior written consent of Apex Medical.
11.2 Failure by Apex Medical to enforce any of the terms and conditions contained under these terms of trade shall not be deemed to be a waiver of any of the rights or obligations Apex Medical has under these terms of trade.
11.3 If any provision of these terms of trade shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.