Conditions Of Sale

1.            DEFINITIONS AND INTERPRETATION

In the following conditions of sale ("Conditions of Sale")

a)   "the Seller" means Fresenius Medical Care Australia Pty Limited (ACN 067 557 877);

b)   "the Buyer" means the person purchasing the goods the subject of these Conditions of Sale;

c)    “the Goods" means the goods and services the subject of these Conditions of Sale or any part thereof and is strictly limited to those goods and services;

d)   "A$" means the lawful currency of Australia;

e)   a document shall be deemed to be in writing if it is written, printed or reproduced in hard copy by any mechanical or electronic means including by facsimile or telex.


2.            GENERAL

The only contractual terms which are binding upon the Seller are those set forth in these Conditions of Sale or those otherwise agreed to in writing by the Seller and those, if any, which are imposed and which cannot be excluded by law.


3.            WARRANTIES

3.1         The only conditions and warranties which are binding on the Seller in respect  of the state, quality or condition of the Goods supplied to the Buyer are those imposed and required to be binding by statute (Including the Trade Practices Act  1974) and to the extent permitted thereby the liability, if any, of the Seller arising from the breach of such conditions or warranties shall, except in cases where the Goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, at the Seller's opinion, be limited to and completely discharged by either the replacement of the Goods or refund of the purchase price of the Goods by the Seller. Otherwise all other conditions and warranties whether express or implied by law in respect of the state, quality or condition of the Goods which may apart from this clause be binding on the Seller are hereby expressly excluded and negatived.

3.2         Any liability of the Seller pursuant to Clause 3.1 hereof is conditional upon the Buyer Within seven (7) days of delivery making a written claim to the Seller setting out the full particulars of such claim and where possible returning to the Seller part of the Goods sufficient to enable a proper examination of the Goods by the Seller.

3.3         Except to the extent provided above the Seller shall have no liability (including liability in negligence) to any person for any loss or damage consequential or otherwise howsoever suffered or incurred by any such person in relation to the Goods and without limiting the generality thereof in particular any loss or damage consequential or otherwise howsoever suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, breakdown, defect or deficiency of whatsoever nature or kind of or in the Goods.


4.            ADVICE

Subject to Clause 3, any advice, recommendation, information or assistance provided by the Seller in relation to the Goods or their use or application (except to the extent that the Seller has expressly agreed in writing to provide the same) is given in good faith and is believed by the Seller to be appropriate and reliable.  However, any such advice, recommendation, information or assistance is provided without liability or responsibility  on the part of the Seller.


5.            QUOTATIONS

5.1         Any quotation made by the Seller shall not be construed or operate as an offer or obligation to sell but shall be an invitation to treat only. The Seller reserves the right to accept or to reject in its absolute discretion any order which may be received by it. The Buyer shall submit a written purchased order which IS subject to acceptance by the Seller. Acceptance by the Seller may, at the discretion of the Seller, be by notification in writing or by the supply of Goods in accordance with the purchase order.

5.2         Unless otherwise specified by the Seller in writing and subject to Sections 13 and 14, all quotations are valid for twenty-eight (28) days from the date hereof.


6.            DELIVERY

6.1         The Seller will make all reasonable efforts to have the Goods delivered to the Buyer on the date(s) agreed between the parties as the date(s) for delivery of the Goods, but the Seller shall be under no liability whatsoever should delivery not be made on the said date(s) for whatsoever reason nor shall the Buyer be entitled to terminate any contract arising herein for such reason. Each delivery of the Goods or part hereof, is a separate contract and the Buyer is bound to accept and make payment for partial deliveries thereof.

6.2         Where the full or partial cost of delivery is expressly included in prices contained " the Seller's quotation, price list or sales literature, the Seller will be responsible for the cost thereof and shall deliver the Goods in accordance with the terms of the said quotation, price list or sale literature and using the mode and method of transport normally utilised by the Seller. In all other circumstances the Buyer will be responsible for the full cost of freiqht.

6.3         Where the Seller is required to make delivery it is agreed and declared that the Seller is not a common earner and that in the event of loss or damage to the Goods in transit caused by or resulting from an act neglect or default attributable to the Seller, the Seller's liability to the Buyer shall be limited to and completely discharged by either the replacement or the repair of the Goods so lost or damaged. Any claims against the Seller for such loss or damage of the Goods must be made within seven (7) days of the date of delivery.

6.4         Delivery to the Buyer shall be deemed to take place where the Goods are delivered into the Buyer’s custody or to any person acting on the Buyer's behalf or, when the Buyer is responsible for the cost of freight, to a carrier nominated by the Buyer whichever event occurs first


7.            ACCEPTANCE

The Buyer shall inspect the Goods immediately upon delivery. The Buyer shall within seven (7) days after the date of delivery give written notice to the Seller of any matter or thing by reason whereof the Buyer alleges that the Goods are not in accordance with the contract, it being agreed that all goods are supplied subject to the usual trade tolerances relating to weight, dimension and processing. If the Buyer fails to give such notice then to the extent permitted by statute the Goods shall be deemed to have been accepted by the Buyer and the Buyer shall pay for the same in accordance with the provisions hereof and the Buyer shall not be entitled to rescind this contract.


8.            RETURN OF GOODS CREDIT

8.1         Subject to Clause 7, the Seller shall not receive or accept Goods for credit unless prior arrangement has been made with and authorisation received from the Seller.  This condition shall apply irrespective of who is at fault. The Seller shall not be held responsible by way of claim or otherwise, for any Goods returned to the Seller otherwise than in accordance with this above condition.

8.2         Notwithstanding Clause 8.1 Goods returned for credit shall be accepted subject to inspection at the Seller's factory or store. The cost of quality control inspection or analysis, where necessary, and a restocking charge, if applicable, shall be deducted at the Seller's discretion from its credit note.


9.            RISK

Unless  otherwise  agreed in  writing  the  risk  in  the  Goods  shall  pass  to  the  Buyer  immediately  upon delivery to the  Buyer, its agent,  representative  or carrier.


10.        PROPERTY

10.1     Notwithstanding that risk in the Goods shall pass to the Buyer as provided herein property in the Goods shall remain with the Seller and the Seller reserves the right to retake possession of and dispose of the Goods until such time as the Buyer has paid in full all amounts owing by the Buyer to the Seller (whether such moneys are in respect of moneys payable under a specific contract or on any account whatsoever).

10.2     If the Buyer fails to pay my amount of the Buyer's total Indebtedness to the Seller when it is due to the Seller or an event of default as specified in Clause 16.3 hereof occurs the Seller may without notice and without prejudice to any of its other rights and remedies recover and/or resell the Goods or any of them may enter upon the Buyer’s premises by its servants or agents for that purpose.

10.3     Until full payment is made to the Seller the Buyer shall store the Goods in a way that clearly manifests the Seller's title and shall not sell, change, dispose of or otherwise deal with the Goods or any of them without the consent of the Seller

10.4     The Buyer acknowledges that until his total indebtedness to the Seller is charged he holds the Goods as bailee of the Seller.


11.        PRICE AND PRICE VARIATION

11.1     The price charged shall be the Seller's  selling  price  ruling at the date  of  delivery  unless otherwise agreed in writing. The Seller reserves the right to vary the price payable on delivery from that contained in any price list or sales literature.


12.        SALES TAX

All price indications, quotations and price lists are exclusive of at Commonwealth sales and other taxes unless specifically Indicated in writing to the contrary.


13.        CUSTOMS DUTY

All price indications, quotations and price lists are based on the rate of customs duty applicable to imported components, if any, applicable at the date of publication. All Increased costs incurred by the Seller between the date of price Indication, quotation or price list and the date of delivery, resulting from an increase in customs duty, are to the Buyer's account.


14.        EXCHANGE RATE FLUCTUATIONS

14.1     If the Seller gives a quotation in A$ for the supply of goods to be imported then unless stated otherwise in the quotation, the A$ price for the goods shall be indicative only and the following provisions shall apply:

(a)         if no exchange rate is included in the quotation then, as soon as possible after receipt of a written purchase order from the Buyer and acceptance in writing by the Seller, the Seller, unless requested otherwise by the Buyer in writing, shall arrange for forward exchange cover in respect of the price and the costs of the importation of the Goods and the price payable by the Purchaser shall be equal to the total price to the Seller in A$ as the forward exchange cover.

(b)         if an exchange rate is included in the quotation then, unless the Seller has agreed in writing that the Seller will bear the exchange risk the Buyer  acknowledges that the quotation is given on the basis that the exchange risk is with the Buyer, that the quoted price and exchange rate are indicative only and that the price payable  by the  Purchaser shall be in A$ calculated as the actual selling rate of exchange  for the same currency quoted by the Seller's bank on the date upon which payment is made by the Purchaser.

14.2     If the Seller gives a quotation in foreign currency for the supply of Goods, the price payable for such Goods will be that sum of foreign currency.


15.        FORCE MAJEURE

15.1     Deliveries may be totally or partially suspended by the Seller during any period in which the Seller may be prevented or hindered from obtaining supply of goods, components or ingredients or from delivering by the Seller's normal means of supply or delivering by normal  route  through  any  circumstances outside the Seller's control, including but not limited to strikes, lockouts, raw material shortages, accidents or breakdowns of plant or machinery and the like and the Seller shall not be liable in any way whatsoever in respect of such suspension. During the period of total or partial suspension of delivery the Buyer may purchase elsewhere, at its own cost and risk, such quantities of alternative Goods as may be necessary to cover its requirements during such period in substitution for goods not delivered by the Seller

15.2     Should the Seller be prevented from delivering part of the Goods by reason of any of the causes specified in the preceding subclause, the Seller shall deliver and the Buyer shall take and pay, for such part of the Goods as the Seller shall be able to deliver in accordance with the contract.


16.        PAYMENT AND DEFAULT

16.1     Unless otherwise expressly agreed in writing by the Seller the price of the Goods and all other costs and expenses shall become owing on delivery and shall be strictly net cash payment and shall be payable on or before the end of the month, following the month of invoice.

16.2     Should the Buyer delay or default in respect of any payment due to the Seller, the Seller shall have the right, in addition to all other rights which are herein given or which are conferred by law, to charge interest at a rate equivalent to two (2%) percentum in excess of such rate shall be charged from time to time to the Seller  by its bankers for  overdraft accommodation in force at the date upon which payment was due and such interest shall be calculated from the date of delivery to the date of full and final payment by the Buyer. Any payment by the Buyer shall be credited first against the interest accrued to the date of payment.

16.3     If the Buyer makes default in any payment, commits any breach of this agreement or commits any act of bankruptcy or being an incorporated company, commits any act which would entitle any person to apply to wind up the Buyer or to appoint a receiver or receiver and manager of the Buyer, then all moneys owing by the Buyer to the Seller shall become immediately due and payable without demand and the Seller may without prejudice to its own rights either suspend further deliveries, require payment in advance for all such deliveries or terminate any contract forthwith by written notice to the Buyer.


17.        FURTHER DEALING

Unless otherwise agreed to in writing by the Seller and notwithstanding any terms appearing in documentation provided by or on behalf of the Buyer the terms appearing herein shall be incorporated by implication into all agreements by the Seller to supply the Buyer with goods.


18.        PALLETS

At all times the Seller retains the right of possession of any pallets used for delivery of the Goods. The Buyer shall return all pallets to the Seller's original point of dispatch in good order and condition within twenty-eight (28) days after the date of dispatch by the Seller. The Buyer shall indemnify the Seller in respect of all pallets not returned.


19.        WEIGHT

In the absence of a proven defect in the Seller's system of weighing, the weight  of goods sold hereinunder shall be the last weight determined by the Seller's system of weighing prior to dispatch by the Seller.


20.        PRODUCTION SPECIFICATIONS

The Seller reserves the right to supply products to its specifications current at the date of delivery.


21.        MINIMUM ORDER VALUE

The Seller reserves the right to introduce minimum order value(s) for any class or classes of products and to amend any such value without notice. The Seller reserves the right, at its discretion, to refuse to accept orders which do not satisfy the current minimum order value.


22.        WAIVER

Failure by the Seller to insist upon strict performance of any of the provisions of the contract shall not be deemed a waiver thereof or of any rights the Seller may have against the Buyer and no express or implied waiver by the Seller shall be deemed a waiver of any subsequent breach of the Buyer.


23.        GOVERNING LAW

These  Conditions  of  Sale  shall  be governed  and construed  in  accordance  with  the  laws in force  in the State of New South Wales.