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Terms and conditions for the provision of laboratory services

1. AGREEMENT

1.1.    All contracts, agreements, arrangements and dealings between the Provider and any person using the Website or ordering any Services (Client) provided and supplied by the Provider are subject to the terms and conditions of trade set out herein.

1.2.    These Terms shall be deemed to be incorporated into all agreements for the supply of Services by the Provider to the Client. These Terms supersede all prior understandings, arrangements and agreements relating to such supply. In the event that there is any inconsistency between these Terms and any other communication from the Provider, these Terms shall prevail unless specified otherwise in writing by the Provider.

1.3.    By ordering or purchasing any Services You agree to be bound by these Terms.

1.4.    If You do not agree to any provisions of these Terms, You must not make any order for Services.

1.5.    The Provider may amend these Terms at any time at its sole discretion. By continuing to place orders for Services, the Client will be deemed to have accepted any revised terms published from time to time on the Website.

2. ORDERING SERVICES

2.1.    The Client shall request that The Provider supply the Services by issuing a completed Order Form to The Provider by way of email to lab@trakortho.com.au or such other email address nominated by The Provider to the Client from time to time.

2.2.    The Order must be in writing and clearly identify the Services requested and the quantity of such Services. If in The Provider’s opinion there is any ambiguity in respect of Order, The Provider will endeavour to contact the Client to clarify such ambiguity.

2.3.    In the event that there are technical issues that prevent either the Client or The Provider from submitting or receiving an Order, The Provider may in its sole discretion accept orders made by alternative methods, including by telephone.

2.4.    In making an Order, the Client will be making an offer to The Provider to purchase the Services referred to in the Order. The agreement to sell the Services comes into existence upon The Provider’s acceptance of an Order, which occurs when The Provider:

(a)  notifies the Client in writing that it accepts the Order; or

(b)  supplies the Services contained in an Order to the Client,

whichever is earlier.

2.5.    The Provider reserves the right to accept or reject the whole or any part of an Order for any reason.

3. PERFORMANCE OF THE SERVICES

3.1.    General requirements

(a)  In providing the Services, The Provider shall endeavour to:

(i)    comply with all laws, regulations and standards applicable to the provision of the Services, including but not limited to the occupational health and safety standards required by relevant legislation or authorities;

(ii)   provide the Services in a reputable and business-like manner;

(iii)  obtain and keep current any registrations, licenses or permits required to provide the Services.

(b)  The Client must

(i)    allow The Provider access to its premises and systems as reasonably required by The Provider to properly provide the Services;

(ii)   not do any act or thing that would prevent The Provider from providing the Services in accordance with these Terms.

3.2.    Independent Contractors

The Client and The Provider acknowledge that:

(a)  they are independent contractors;

(b)  no fiduciary obligations are owed by one to the other; and

(c)   nothing in these Terms constitutes a relationship of employer and employee, principal and agent, joint venturer, franchisor and franchisee or partnership between them.

4. SERVICES AND FEES

4.1.    Services

The Services and associated Service Fees are set out in the Service and Pricing List. The Provider may amend the Service and Pricing List at any time at its sole discretion. By continuing to place orders for Services, the Client will be deemed to have accepted any revised Service and Pricing List published from time to time on the Website.

4.2.    Service Fee

In consideration of The Provider providing the Services, the Client must pay to The Provider the Service Fee.

4.3.    Invoice

The Provider shall issue a tax invoice to the Client in respect of an Order made by the Client within 10 Business Days of its receipt of that Order.

4.4.    Payment of fees

The Client must make payment to The Provider within 10 Business Days of receipt of a tax invoice, or such other due date specified in that tax invoice without set-off or deduction.

4.5.    Interest on overdue amounts

Without prejudice to The Provider’s other rights under these Terms, The Provider may charge the Client interest on all overdue amounts payable under these Terms at the interest rate fixed from time to time by the Penalty Interest Rates Act 1983 (Vic).

5. INTELLECTUAL PROPERTY AND CONFIDENTIALITY

5.1.    Intellectual Property

(a)  The Client acknowledges that all Intellectual Property Rights in any material prepared by The Provider (including in its performance of the Services) shall at all times belong to, vest in and remain vested in The Provider, despite any provision to the contrary in these Terms.

(b)  The Client must:

(i)    not use, sell, lease, loan, distribute or in any manner commercially exploit any of The Provider's Intellectual Property Rights or any part of them except as expressly permitted in these Terms;

(ii)   not infringe The Provider’s Intellectual Property Rights and not cause or permit anything which may be damage or endanger such rights and not assist or allow others to do so;

(iii)  not apply for registration of any of The Provider's Intellectual Property Rights;

(iv)  promptly notify The Provider of any suspected infringements of The Provider‘s Intellectual Property Rights; and

(v)   take such reasonable action as The Provider may direct in relation to any infringement of The Provider 's Intellectual Property Rights or breach of this clause.

5.2.    Confidential Information

(a)  Each party must not, and must ensure that its employees, agents and contractors do not:

(i)    disclose any Confidential Information of the other party to any person except with the other party's written consent; or

(ii)   use the Confidential Information of the other party other than in accordance with these Terms.

(b)  Clause 5.2(a) does not apply to the extent that disclosure is required by law or the information is already public knowledge.

5.3.    Remedy for Breach

The parties acknowledge that damages are inadequate compensation for any breach of this clause 5 and that a party shall be entitled to apply to any court of competent jurisdiction for interim and permanent injunctive relief restraining the other party from committing any breach or threatened breach without showing or proving any actual damage sustained by the first party, which rights and remedies shall be cumulative and in addition to any other rights or remedies which the first party may be entitled at law or in equity.

5.4.    Survival

The parties' obligations pursuant to this clause continue after the expiration or termination of these Terms.

6. GOODS AND SERVICES TAX

6.1.    Definitions

Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.

6.2.    Supplies are GST exclusive

(a)  If a party makes a supply to another party under, or in connection with, these Terms, then (unless the consideration is expressly stated to be inclusive of GST) the consideration for that supply is exclusive of GST.

(b)  In addition to paying consideration for a supply (unless the consideration is excusive of GST) the person making the payment must:

(i)    pay to the supplier an amount equal to any GST for which the supplier is liable on that supply, without deduction or set-off of any other amount; and

(ii)   make that payment as and when the consideration must be paid or provided.

7. STATUTORY CONDITIONS AND WARRANTY

7.1.    Where the Client resells the Services or any products created by the provision of the Services by The Provider to consumers in the ordinary course of its business, certain guarantees that cannot be excluded under the Australian Consumer Law and will apply to the Services and any products created in the provision of those Services.

7.2.    Nothing in these Terms aims to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other laws which cannot be modified or excluded.

7.3.    Where any law implies a warranty in respect of the Services or any products created in the provision of the Services which may not be lawfully excluded and in respect of which imposes a liability or obligation upon The Provider, then to the extent allowed by law any liability imposed upon The Provider in respect of a breach of warranty will at its option be limited to:

(a)  the resupply of the Services or the supply of equivalent Services;

(b)  the payment of the cost of replacing the Services or of acquiring equivalent Services; or

(c)   refund of the Service Fee.

7.4.    To the extent permitted by law, the following are not covered by warranty unless otherwise specified in the particular warranty relevant to the Services purchased or any products created by the Provider in the course of providing the Services:

(a)  failure or defect resulting from improper assembly, care or use;

(b)  normal wear and tear or effluxion of time;

(c)   any modification, installation or alteration not conducted or authorised by The Provider.

7.5.    To the extent permitted by law, The Provider shall not be liable for any indirect or consequential damage, losses or expenses suffered or incurred by the Client or its own customers or clients, howsoever caused.

7.6.    The Provider will not refund, replace or resupply any Services or any products created by the Provider in the course of providing the Services where in its sole and reasonable opinion those Services or products have become of unacceptable quality due to fair wear and tear, effluxion of time, misuse, failure to properly use or failure to take reasonable care.

7.7.    To issue a Warranty claim, the Client will be required to:

(a)  contact the Provider within 10 Business Days of delivery of the Service or the product (Notification Period), by email to lab@trakortho.com.au;

(b)  identify the defect in the product or Service; and

(c)   if required by the Provider, return the product to the Provider for assessment.

7.8.    The Notification Period may be extended by the Provider at its sole discretion upon request by the Client.

7.9.    Except if and to the extent the law requires otherwise, replacement of Services or products or refund of Service Fee will not be made until the Provider verifies a warranty claim. If a warranty claim is verified, the Provider will endeavour to make the refund or replacement within 20 Business Days of the completion of such verification.

8. LIMITATION OF LIABILITY

8.1.    Except as expressly set out in these Terms and the Australian Consumer Law, to the extent that it applies to these Terms, if at all, The Provider makes no warranties or other representations in relation to the supply of Services or products created by the Provider in the course of providing the Services to the Client. The Provider’ liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.

8.2.    The Client acknowledges and agrees that to the maximum extent permitted by law, The Provider will not be liable to the Client or any other person (including the Client’s own customer or clients) under any circumstances for any loss or damage suffered or incurred by the Client or any other person for any injury, illness or death to any person, or for any indirect, incidental or consequential damages sustained or incurred, whether such liability arises directly or indirectly as a result of:

(a)  any negligent act or omission or wilful misconduct of The Provider or its employees or agents;

(b)  the supply, performance or use of any Services or products; or

(c)   any breach by The Provider of its obligations under these Terms.

8.3.    The Client acknowledges and agrees that no other term, condition, agreement, warranty, representation or understanding (whether express or implied) in any way binding upon The Provider, other than as set out in these Terms, is made or given by or on behalf of The Provider.

8.4.    The Client is solely responsible for making an assessment that any Service is reasonably fit for its intended purpose and required use, and such purpose or required use is in accordance with all applicable laws.

8.5.    The Provider will endeavour to provide the Services to the Client with due care and skill but does not warrant that all Services or any products created by the Provider in the course of providing the Services will be free from defects or that the merchantability or fitness for any purpose will be to a particular standard.

8.6.    The Client agrees that The Provider’ total aggregate liability under these Terms shall be an amount equal to the Service Fee paid by The Provider in the 3 months preceding the incursion of the liability.

9. INFORMATION ON THE WEBSITE

9.1.    The Client shall make their own enquiries to assess the suitability of Services or products before it places an Order with The Provider. The Provider is not responsible for any typographical, technical, or descriptive errors of Services or products on the Website or the Service Pricing List. If The Provider becomes aware of the existence of such an error it will do all things reasonably necessary to rectify such an error. To the extent permitted by the Australian Consumer Law, The Provider will not be liable to any Client for any loss or damage arising out of a Client’s reliance upon any typographical, technical, or descriptive errors of Services or products on the Website or the Service Pricing List.

9.2.    The Provider has endeavoured to display as accurately as possible the colours of products shown on the Website or the Service Pricing List, however does not guarantee that a Client’s monitor display of any colour will be accurate.

9.3.    Images contained on the Website are for illustration purposes only.

10. MISCELLANEOUS

10.1.    Entire Agreement

These Terms constitutes the entire agreement between the parties as to its subject matter and unless otherwise agreed in writing by the Provider supersedes all previous agreements and understandings, whether verbal or in writing.

10.2.    Variation

These Terms or any part of it may be varied, modified, amended or added to only in writing executed by the parties.

10.3.    Waiver

No provision of these Terms shall be deemed to be waived except by express written consent executed by the party which is claimed to have waived the relevant provision.

10.4.    Approvals and consent

If the doing of any act, matter or thing under these Terms is dependent on the approval or consent of a party, that party may give conditionally or unconditionally or withhold its approval or consent in its absolute discretion, unless these Terms expressly provides otherwise.

10.5.    Severability

If a provision or part of a provision of these Terms is held invalid, unenforceable or illegal for any reason, then such provision or part, as the case may be, shall be deemed to be severed from the Agreement and the Agreement shall otherwise remain in full force. 

10.6.    Further assurances

Each party must do all things and execute all further documents necessary to give full effect to these Terms.

10.7.    Assignment

Either party not assign its rights and obligations with the prior written consent of the Client.

10.8.    Jurisdiction and Governing Law

(a)  The law of the State of Victoria, Australia governs these Terms.

(b)  The parties submit to the non-exclusive jurisdiction of the courts of the State of Victoria and of the Commonwealth of Australia.

10.9.    Time of Essence

Time is of the essence of the performance of each of the obligations under these Terms.

10.10.  Cumulative Rights

The powers of a party under these Terms are cumulative and do not exclude any other right, power, authority, discretion or remedy of that party.

10.11.  Liability of parties

If any party to these Terms consists of more than one person then the liability of those persons under these Terms is a joint liability of all those persons and a separate liability of each of them.

10.12.  Non-merger

A provision of these Terms which can, and is intended to, operate after termination, expiry or completion of these Terms remains effective.

11. DEFINITIONS AND INTERPRETATION

11.1.    Definitions

(a)     Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);

(b)     Business Day means a day which is not a Saturday, Sunday or public or bank holiday in Melbourne, Victoria;

(c)      Confidential Information means all confidential information belonging to a party in whatever form including financial information, forms, specifications, processes, customer lists, sales processes, business dealings, marketing information, plans,  statements, trade secrets, drawings and data (and copies and extracts made of or from that information and data) concerning:

(i)    the terms of these Terms;

(ii)   the operations and dealings of the party in carrying on its business; and

(iii)  the organisation, finances, customers, markets, suppliers, intellectual property and know-how of the party;

which is not in the public domain (except by the failure of a party to perform and observe its obligations under these Terms);

(d)     Corporations Act means the Corporations Act 2001 (Cth);

(e)     Intellectual Property Rights means:

(i)    all trade marks, patents, copyright, rights in circuit layouts, registered designs and any right to have Confidential Information kept confidential; and

(ii)   any application or right to apply for registration of any of the rights referred to in paragraph (a).

(f)      Order means an order for Services made by the Client in accordance with the terms of these Terms;

(g)     Order Form means an Order Form for Services which can be accessed at www.drgeoffreywexler.com.au.

(h)     Provider means Geoffrey Wexler Pty Ltd (ACN 007 341 424);

(i)       Service Fee means the fee payable by the Client to The Provider for the provision of the Services, as set out in the Services Pricing List as varied from time to time in accordance with these Terms;

(j)       Services means the services to be provided by The Provider pursuant to these Terms, as set out in the Services Pricing List as varied from time to time in accordance with these Terms;

(k)      Services Pricing List means the list of Services and Service Fees which is accessible at www.drgeoffreywexler.com.au as varied by the Provider from time to time;

(l)       Terms means these Terms and Conditions;

(m)    Website means www.drgeoffreywexler.com.au.

11.2.    Interpretation

In these Terms, unless the context otherwise requires:

(a)     a word denoting the singular includes the plural and vice versa;

(b)     a word denoting an individual or person includes a corporation, firm, authority, government body and vice versa;

(c)      a word denoting one gender includes all genders;

(d)     all references to clauses, recitals, schedules, annexures and appendices are to clauses of and recitals, schedules, annexures and appendices to this document;

(e)     a reference to an agreement or document is to that agreement or document (and, where applicable, any of its provisions) as varied, novated, supplemented or replaced from time to time;

(f)      a reference to a party includes that party's executors, administrators, substitutes, successors and permitted assigns;

(g)     a reference to a thing is a reference to the whole or any part of it, and a reference to a group of things is a reference to any one or more of them;

(h)     any reference to a statute or statutory provision shall be deemed to include any statutory provision which amends, extends, consolidates or replaces the same or which has been amended, extended, consolidated or replaced by the same and any other orders, regulations, instruments or other subordinate legislation made thereunder;

(i)       where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

(j)       all reference to dates and times are to Melbourne time;

(k)      all references to "$" and "dollars" are to the lawful currency of Australia;

(l)       if a payment or other act is required by this document to be made or done on a day which is not a Business Day, the payment or act must be made or done on the next following Business Day;

(m)    specifying anything after the words "including", "includes" or "for example" or similar expressions does not limit what else is included unless there is express wording to the contrary;

(n)     a provision must not be construed against a party merely because that party was responsible for preparing this document or that provision; and

(o)     headings are for convenience of reference only and do not affect interpretation.