1. Definitions and Interpretation

1.1 Definition

In these Terms and Conditions:

“HENRYCARE” means HenryCare Pty Limited, ABN 86 122 277 730, ACN 122 277 730 and its successors and assigns.

“HENRYCARE” can assign this agreement without the consent of the customer and also without notice to the customer.

“Buyer” means the person or company placing an order with HENRYCARE for the purchase of products and or services.

“Handling Fees” means the handling fees nominated by HENRYCARE from time to time for handling the products.

“Re-Stocking Fees” means the fees nominated by HENRYCARE from time to time for handling and crediting returned products.

“Cancellation Fees” means the fees nominated by HENRYCARE from time to time for cancelling ordered products and or services.

“Products” means all products supplied by HENRYCARE in accordance with these Terms and conditions, to the Buyer or as the Buyer may direct.

“Services” means all labour service supplied or arranged by HENRYCARE in accordance with these Terms and conditions, to the Buyer or as the Buyer may direct.

“Terms and Conditions” means these terms and conditions.

1.2 Interpretation

In these Terms and Conditions, headings are included for convenience only and do not affect interpretation.

2. Orders

2.1 These Terms and conditions shall apply to all orders for products or services placed by the buyer with HENRYCARE to the exclusion of all other terms and conditions unless otherwise expressly agreed in writing. If the terms of the buyer’s order are inconsistent with these Terms and Conditions, the acceptance of the delivery of the products by the buyer carries with it acceptance of these Terms and conditions.

3. HENRYCARE may decline orders

HENRYCARE reserves the right to accept in whole or part any order or decline any order for products.

4. Cancellation of orders

Once lodged with HENRYCARE, the buyer may not cancel or delay delivery of an order without HENRYCARE’s prior written agreement. If Cancellation is accepted by HenryCare Cancellation fees to cover HenryCare’s out of pocket costs will apply.

5. Despatch

Every endeavour will be made to despatch products ordered for immediate delivery no late than forty-eight (48) hours following receipt of the order by HENRYCARE.

6. Price

Prices are subject to alteration without notice and will be those prices, which are applicable on the day of the buyer’s order.

7. Alterations to Terms and Conditions

HENRYCARE may, at any time and from time to time, alter these Terms and Conditions.

8. Back Orders

Products, which are temporarily out of stock, will only be placed on back order.

9. Delivery

9.1 At HENRYCARE’s option, deliveries of products may be made on behalf of HENRYCARE.

9.2 Products will be delivered using methods and carriers selected by HENRYCARE or the Purchaser’s designated Carrier if requested and available to HenryCare.

9.3 If a buyer requests arrangements for the transportation and delivery of products other than those selected by HENRYCARE. HENRYCARE will accept no responsibility for loss or damage (including but not limited to economic or consequential loss) of any kind whatsoever occurring during or arising out of or incidental to such transportation or delivery.

9.4 Unless otherwise agreed to by HENRYCARE, products will be delivered during HENRYCARE’s normal business hours. Deliveries of products outside the normal business hours of HENRYCARE may be subject to additional delivery changes determined by HENRYCARE.

9.5 Where delivery of products is affected by way of part delivery, HENRYCARE shall invoice the buyer only for those products delivered.

9.6 HENRYCARE shall not be liable for any loss or damage (including but not limited to consequential loss or damage) arising from delay in deliver or failure to deliver products due to circumstances beyond its reasonable control and the buyer shall accept and pay for products notwithstanding late delivery.

9.7 Delivery of product shall be deemed to be effected as follows:

(a) FOB – when products are loaded onto the buyer’s or HENRYCARE’S nominated carrier’s vehicle at HENRYCARE’s premises.

(b) FOR – when products are made available to the rail carrier.

9.8 The buyer shall be responsible for and shall indemnify HENRYCARE for loss or damage to products from the time of delivery until paid for in full.

9.9 the buyer must report shortages in delivery of products to HENRYCARE within five (5) business days of receipt of those products.

9.10 The buyer shall report products damaged upon delivery to HENRYCARE within five (5) business days of receipt of those products.

10. Claims

HENRYCARE will only accept claims in respect of pricing errors, short delivery, damaged products or delivery of incorrect products.

11. Return of Products

11.1 No products shall be returned without the prior consent of HENRYCARE and then only by the carrier nominated by HENRYCARE. Where products are returned without such consent the same shall be returned to the buyer at the buyer’s expense.

11.2 All goods authorised to be returned, must be accompanied with a Credit Returns Advice, a copy of the original invoices or packing slip (signed and dated), reason for return and the number of cartons being returned.

11.3 All claims of whatsoever nature shall be deemed waived unless made in writing within seven (7) business days of the buyer’s receipt of the products.

11.4 Non stock items are sold as non-returnable and cannot be returned.

11.5 Products returned for credit will be subject to a 19% Service and Handling Fee.

12. Terms of Payment

12.1 The buyer shall make payment for products to HENRYCARE on or before thirty (30) days from the date on which products are invoiced, notwithstanding any claims for credit.

12.2 Where payments for products are unpaid at the expiration of 90 days, HENRYCARE may, at its option, either cancel orders forthwith or suspend delivery of products.  HENRYCARE has the absolute right to terminate the buyer’s credit account at any time, and in such event the buyer will not be entitled to any compensation in respect of such termination.

12.3 On becoming a customer of HENRYCARE, the buyer agrees that HENRYCARE has the right to make any enquiries from any credit-reporting agency to ascertain the credit and financial suitability of the buyer. If another credit provider is in possession or control of a credit report about the buyer, the buyer agrees to the disclosure of the credit report to HENRYCARE for the purpose of assessing the buyer’s credit application.

12.4 All prices are net and are not subject to settlement, discount or retention.

12.5 The buyer agrees that the buyer shall pay all costs incurred by HENRYCARE in the recovery of unpaid accounts including but not limited to commissions and fees paid to HENRYCARE agents.

13. Indemnity

13.1 Without prejudice to any other rights HENRYCARE may have, the buyer shall indemnify HENRYCARE for any loss, damage or expense incurred by HENRYCARE should the buyer cancel any order or part thereof or breach any term hereof.

13.2 The buyer shall indemnify HENRYCARE against all claims, losses, liability and expenses on account of any injury or death of persons or damage to property arising out of buyer’s unloading, storage, or handling of the products.

13.3 The buyer covenants that neither it nor its agents or employees shall make any representations, statements or warranties to customers which are different, more onerous, or inconsistent with any HENRYCARE warranty or with any details set out in any product literature or other publication issued by HENRYCARE. The buyer agrees to indemnify HENRYCARE against and hold HENRYCARE harmless from all or any claims, liability, obligations, losses, expenses or damages arising out of any representations, statements or warranties made by the buyer, its agents or employees.

14. Imported Products

HENRYCARE does not warrant that the importation of products from any other country is free of infringement of any patents of the importing country, nor that use of such products in any country is free from infringement.

15. Retention of Title

15.1 Upon delivery, the goods shall be at customer’s risk.

15.2 Notwithstanding Clause 15.1, property in and title to any goods will only pass to the customer when all monies owing by the customer to HENRYCARE have been paid in full. Until such time, the customer will hold the goods as bailee for and in such a way that the goods are at all times clearly identifiable as the property of HENRYCARE.

15.3 The buyer acknowledges that until full payment is made for all products, the buyer holds products as bailee of HENRYCARE and that a fiduciary relationship exists between the buyer and HENRYCARE.

15.4 The buyer acknowledges that if it sells any products, it sells them as a fiduciary agent of HENRYCARE provided that such sales do not give rise to any obligations on the part of HENRYCARE.

15.5 The buyer in such a manner as to be identifiable as the property of HENRYCARE shall store products owned by HENRYCARE and in the possession of the buyer.

15.6 In the event that payment by the buyer to HENRYCARE is overdue or the agreement is terminated for any reason whatsoever.

(a) HENRYCARE shall be entitled to repossess products owned by it and shall also be entitled whether by itself or through its agents, without notice, to enter at any time on the buyer’s premises for this purpose, and

(b) Until payment is made for all monies owing by the buyer to HENRYCARE, the buyer shall not be entitled to dispose of, sell, charge or otherwise encumber the products without the prior written consent of HENRYCARE provided that nothing in this clause shall prevent the buyer from selling products to its customers in the ordinary course of its business.

15.7 If the buyer sells the products in a manner such that HENRYCARE’s title is extinguished or postponed, then any funds received by the buyer from such sale shall be set aside and held in trust for HENRYCARE will be entitled to trace and receive the proceeds of any such sale.

15.8 HENRYCARE may exercise any of its rights under clause 15 within thirty (30) days from the invoice date notwithstanding that monies may not yet be due for the products.

If products are used in such a manner that they become a constituent part of another object then the buyer will be deemed to have sold the product and the buyer agrees that the proceeds of such sale will be held in trust for HENRYCARE.

The buyer will insure the products for so long as they shall remain HENRYCARE’s property.

HENRYCARE will be entitled to receive insurance proceeds or trace insurance proceeds received in respect of any products.

16. Quotations

A quotation from HENRYCARE to the buyer is an offer to sell only upon these Terms and Conditions and remains current for thirty (30) days only from the date submitted unless previously withdrawn in writing by HENRYCARE.

17. Characteristics of Products

17.1 The buyer expressly agrees that if the products, which are the subject of any order, are for a particular purpose or are required to possess certain characteristics, the buyer shall specify that purpose of those characteristics in writing in the order.

17.2 If the buyer does not specify the particular purposes or the special uniform characteristics in accordance with Clause 17.1, HENRYCARE does not expressly confirm in writing that the products are reasonably fit for the specific purpose or that the products possess the specified characteristics, then the buyer agrees that it did not rely on the skill or judgement of HENRYCARE in relation to the suitability of the products for a particular purpose or the special or uniform characteristics possessed by the products.

18. Identification of Products

Any description of products in HENRYCARE’s price list or elsewhere shall be by way of identification only and the use of such description shall not create a sale by description. HENRYCARE reserves the right at any time to alter material specifications in its promotional literature to reflect changes made after the date of such publication.

19. Force Majeure

HENRYCARE shall under no circumstances be liable to the buyer for any loss of use, loss of profit or any loss suffered by the buyer (including but not limited to consequential loss) as a result of any delay or suspension or cancellation of delivery of the products for any reason whatsoever.

20. Defects and liability

20.1 The buyer shall notify HENRYCARE of any defects in the products within five (5) days of delivery to the buyer.

20.2 Credits for defective products will be calculated using the original net invoice price.

20.3 HENRYCARE shall not have any liability if defects have been caused by abnormal or incorrect conditions for operation, use, storage, pending use, accident, misuse or negligence by the buyer, its employees, servants or agents nor if the product is not used in accordance with HENRYCARE’s guidelines or instructions issued from time to time.

20.5 To the extent permitted by law:

(a) HENRYCARE excludes all warranties, conditions, representations or obligations of whatsoever nature relating to the products;

(b) HENRYCARE’s sole and exclusive liability is the obligation to replace products or granting the buyer credit for the value of the defective products after examination of the products and confirmation of the alleged defects by HENRYCARE.  HENRYCARE will not be liable for any loss or damage whatsoever, including incidental, special, consequential or general damages (such as, but not limited to, loss of profits, loss of business or claims by third parties) arising from any cause whatsoever and HENRYCARE’s total liability to the buyer and generally in respect of products shall be as set out in this clause (20.5 (b); and

(c) Rights may be conferred upon the buyer or a customer or obligations imposed upon HENRYCARE by state and federal legislation in Australia, which cannot be excluded.  If so, the above provisions in this clause 20.5 should be read subject to those rights, provided that HENRYCARE expressly limits its liability under any such legislation to the minimum extent permitted by law.

21. Buyer’s Advice to Customers

Whilst HENRYCARE may provide technical information and marketing assistance, it is not responsible for advising its buyers about the application of the products, the fitness for particular purposes and their use generally.

22. Changes

HENRYCARE shall not be bound to accept any change in product dimension, materials or finish, a reduction in the quantity ordered or other particulars of an order for products after HENRYCARE has ordered special materials or commenced manufacture.

23. Non HENRYCARE

In the case of products or components thereof which are not solely of HENRYCARE’s manufacture, HENRYCARE shall give the buyer, and use its best endeavours to enforce at the cost and for the benefit of the buyer, such warranties and guarantees as HENRYCARE has obtained from its suppliers.

24. Technical Advice

HENRYCARE shall not be responsible for the consequence of any technical advice given by its employees in connection with the use of the products. The buyer agrees that any representations or advice made or given are made or given on the basis that:

(a) HENRYCARE assumes no obligation or liability whatsoever for those representations or advice or for any results obtained, and

(b) The buyer entirely at the buyer’s risk accepts all such advice.

25. GST and Other Charges

Any taxes duties or Government charges (including penalties, interest and goods and services tax) imposed upon HENRYCARE relating to the products shall be an additional charge to the buyer and the buyer will indemnify HENRYCARE against any such liability however and whenever arising.

26. HENRYCARE not Subcontractor

Nothing in these terms and conditions shall constitute HENRYCARE as a subcontractor of the buyer. HENRYCARE’s obligations are limited to those of materials supplier.

27. Packing

Unless otherwise requested in writing, prices quoted provide for HENRYCARE’s standard packing.

28. Electronic Data Interchange

HENRYCARE and the buyer may conduct business by Electronic Data Interchange (EDI). The buyer agrees that if it has the capability compatible with HENRYCARE’s, EDI is the preferred method of conducting business.

HENRYCARE and the buyer agrees that EDI will be conducted in accordance with the terms of any Electronic Trading Partner Agreement to which they are parties and into which these general terms and conditions of sale are incorporated.

29. Governing Laws

These Terms and Conditions will be governed by the laws of New South Wales and the Customer and HENRYCARE agree to submit to the jurisdiction of the New South Wales Courts.

The customer agrees and acknowledges that by placing an orders it has understood the above Terms and Conditions for Sale of Goods and agrees to be bound by them.