TERMS & CONDITIONS OF SALE - LARGE EQUIPMENT (by Contract)
(Edition 1 November 2024)
These are the terms and conditions (“T&Cs”) on which Dentsply Sirona Pty Limited (“we”, “us” and “our”) supplies large equipment (“Equipment”) and services associated with the supply and installation of such Equipment (“Services”) to its customers (“you” and “your”). We reserve the right to update these T&Cs from time to time. Updated T&Cs will be displayed at https://www.dentsplysirona.com/en-au/legal/terms-and-conditions-large-equipment.html, and each Contract (as defined in clause 1.1 below) incorporates the T&Cs in force as at the time the Contract is formed. We will also update the above ‘Edition’ date of the T&Cs when we update these T&Cs. You agree to check these T&C regularly and before entering into each Contract with us. If you purchase Equipment and Services from us on or after the ‘Edition’ date stated above, you will be deemed to have accepted the updated T&Cs.
1 WHOLE AGREEMENT
1.1 The agreement between us and you (collectively “the Parties”) for each supply of Equipment and Services (“Contract”) is wholly documented by:
(a) the T&Cs that are in force as at the time that the Contract is formed in accordance with clause 3.2;
(b) the quotation given to you for the relevant Equipment and Services (“Current Quotation”);
(c) the Large Equipment Order & Confirmation of Acceptance form for the relevant Equipment and Services (“Order”); and
(d) our invoice for the relevant Equipment and Services (“Invoice”),
save that any terms and conditions that you have included in the Order, or otherwise communicated, displayed or referenced by you (collectively “Your Terms”) shall not form part of the Contract unless we have agreed to such terms in writing.
1.2 The Contract constitutes the whole of the agreement between you and us for the supply of the relevant Equipment and Services. All of the agreements and understandings between you and us in relation to the supply of the relevant Equipment and Services are set out in the Contract and they supersede all prior agreements, understandings and statements, whether written or oral. Without limiting the generality of the foregoing, these T&Cs will prevail over Your Terms, and you agree that Your Terms shall be of no legal force or effect unless we have agreed to them in writing.
1.3 If the Order includes a bundled sale of our small products or consumables, the Parties agree that the supply of those small products and consumables will be governed separately by our Terms and Conditions of Sale for small products and consumables, a copy of which can be accessed here: https://www.dentsplysirona.com/en-au/legal/terms-and-conditions-small-products-and-services.html (“Small Products T&Cs”). For the avoidance of doubt, the parts of the Order that refer to the sale of the small products or consumables will be deemed to be a separate ‘Order’ as defined in the Small Products T&Cs.
2 GOVERNING LAW AND JURISDICTION
2.1 Each Contract shall be governed by the laws of the State of Victoria and the Parties submit to the non-exclusive jurisdiction of the Courts of that State and of the Commonwealth of Australia (including any Courts having appellate jurisdiction) in respect of any dispute between them.
3 ORDER AND ACCEPTANCE
3.1 You can order Equipment and Services by signing the applicable Order and providing a signed copy of the Order to us. All Orders that you submit to us for Equipment and Services will be subject to these T&Cs.
3.2 After we receive a signed Order from you for the relevant Equipment and Services, we may in our absolute discretion decide whether to accept or decline the Order. If we decide to accept the Order, the Order will be countersigned by an authorised officer, at which point a binding Contract shall be formed between the Parties for the supply of the Equipment and Services set out in the Order. All Orders must include an agreed delivery date and a preferred installation date.
4 PRICE
4.1 The price for the Equipment and Services that you have ordered (“Price”) will be as set out in the Current Quotation. The Price will also be confirmed in the Order. You agree that, unless stated otherwise, the Price is exclusive of all charges, tax or duty that is imposed on the sale, delivery and/or installation of the Equipment and the delivery of the Services.
5 PAYMENT
5.1 We will notify you of the date when we intend to dispatch the ordered Equipment to you from our storage location (“Dispatch Date”). Subject to clause 7.2, you must pay the full amount of the Price at least 48 hours prior to the Dispatch Date regardless of whether there have been delays in other equipment or work that are extraneous to the Order (eg. plumbing or electrical works). If we do not receive the full amount of the Price by this due date, we will postpone the dispatch of the Equipment until after we have received the full amount.
5.2 All payments to us must be done without set-off, deduction or counterclaim.
5.3 If you ask us to cancel an accepted Order due to a change of mind, and we agree in writing to the cancellation, you acknowledge that we may charge you the reasonable costs and losses that we will incur in restocking the ordered Equipment (which may be up to 30% of the Price for the Equipment).
6 DELIVERY & RISK
6.1 Subject to you complying with your obligations under clause 5.1, and unless otherwise agreed by the parties in writing, we will deliver the Equipment to you on the agreed delivery date and to the delivery address as set out in the relevant Order. You acknowledge that delivery of the Equipment may be delayed in certain circumstances due to production issues, and we will use commercially reasonable efforts to meet the agreed delivery date if the delivery of the Equipment is impacted by production issues.
6.2 Risk of damage to, or loss or theft of, or deterioration of, the Equipment (and the need to insure it) passes to you once the Equipment is delivered to you irrespective of whether the Equipment has been installed.
6.3 You should contact us as soon as possible if the delivered Equipment is not in accordance with the Order.
7 DELAYED DELIVERIES AND STORAGE
7.1 If we are ready to deliver the ordered Equipment on the agreed delivery date, but:
(a) you notify us that you are not ready for the Equipment to be delivered on this date; or
(b) we have postponed the dispatch of the Equipment because you have failed to pay the Price in accordance with clause 5.1,
we will store the Equipment for you for up to 30 days after the agreed delivery date (“Additional Storage Period”) at no additional cost to you.
7.2 If upon the expiry of the Additional Storage Period, you are still not ready for the ordered Equipment to be delivered or you still have not paid the Price in full, we will issue you with the Invoice for the Price (if we have not already done so), and you agree to pay the Price in full by no later than 7 days after the expiry of the Additional Storage Period.
7.3 If any payment is not made in accordance with clause 7.2, then (without prejudice to any other rights we have under law) we will be entitled to:
(a) suspend any further deliveries of Equipment and/or any other products and services to you under any other order;
(b) charge interest (calculated daily and compounding monthly) on the overdue amount at the rate of 1% per month; and
(c) if the overdue amount and any applicable interest is not paid within 30 days after the applicable due date, cancel any further deliveries of Equipment and/or other products and services to you under any other order.
7.4 If we store any Equipment for you beyond the Additional Storage Period, we may also charge you a reasonable storage fee at our then-current standard storage rates (which can be provided upon request).
8 INSTALLATION
8.1 Only our authorised personnel may install the Equipment, unless we agree in writing to the contrary.
8.2 The cost of installation or any related compliance testing is not included in the Price of the Equipment unless otherwise specified in the Order. For the avoidance of doubt, you will be required to pay the Price for any installation and compliance testing Services in accordance with the payment terms as set out in clauses 5 and 7 if the cost of these Services is not already included in the Price of the Equipment.
8.3 Subject to clause 11, if we are to install the Equipment, we will not be liable for any costs or losses suffered by you as a result of any delay in the installation to the extent that such costs or losses were caused or contributed to by your failure to comply with your obligations under these T&Cs.
8.4 Installation will be deemed to be complete when the Equipment operates successfully using its standard test procedure (as signed off by an authorised person).
8.5 We will notify you in advance of the specifications for the sites and services (e.g. power, water, air, I.T. systems and other external connections) that will be required for the correct installation and operation of the Equipment. It is your sole responsibility to ensure that these sites and services are prepared to our specifications. Without limiting the effect of clause 8.3, if these sites and/or services do not meet the specifications to allow a safe and complete installation, then you may be liable for additional, reasonable costs arising from the delays and difficulties in the installation of the Equipment.
9 RETENTION OF TITLE
9.1 Neither ownership of, nor property in, any Equipment sold by us passes to you until you have paid to us all monies owing by you in connection with the relevant Equipment.
9.2 Until payment of all monies owed by you to us in connection with the relevant Equipment has been made in full, you hold such Equipment as fiduciary bailee and agent for us and must keep the Equipment physically separate from all other goods purchased or owned by you, and clearly identified as owned by us (“Unpaid Equipment”).
9.3 In the event that you fail to make payment in accordance with these T&Cs for any Unpaid Equipment for more than 30 days after receiving a written notice from us to do so, then without prejudice to our other rights, whether under the Contract or at law, we may issue a written notice to demand that you grant us or our authorised representatives access to any premises where the Unpaid Equipment is located so that we may remove the Equipment from any part of the premises to which they have been fixed. You must comply with such demands within 3 business days of receiving the written notice under this clause.
9.4 In the event that you sell any of the Unpaid Equipment while money is owed to us for the Unpaid Equipment, you must keep the proceeds of the sale in a separate account and not mix them with any other funds.
9.5 If you mix the Unpaid Equipment with other goods so that the Unpaid Equipment is no longer separately identifiable, the Parties will be owners in common of the mixed goods.
10 PERSONAL PROPERTY SECURITIES ACT
10.1 Unless otherwise stated, a term contained in these T&Cs that is defined in the Personal Property Securities Act 2009 (Cth) (“PPSA”) (but not otherwise defined in these T&C) has the meaning given to it in the PPSA.
10.2 You acknowledge and grant us a security interest for the purposes of the PPSA in all Unpaid Equipment and any proceeds that you have received from the sale of the Unpaid Equipment. This security interest secures all moneys owing by you to us for the Unpaid Equipment.
10.3 You acknowledge and agree that the security interest is a continuing and subsisting interest in the Unpaid Equipment with priority over any registered or unregistered general (or other) security interest and any unsecured creditor.
10.4 You grant to us a security interest over the Unpaid Equipment or its proceeds arising under this clause 10 and acknowledge that the security interest is a ‘purchase money security interest’ (“PMSI”) under the PPSA to the extent that it secures payment of the amounts owing in relation to the Unpaid Equipment.
10.5 You will do everything reasonably required of you by us to enable us to register our security interests with the priority we require and to maintain those registrations including:
(a) signing any documents and/or providing any information which we may reasonably require to register a financing statement or a financing change statement in relation to a security interest; or
(b) to correct a defect in a statement.
10.6 The security interests arising under this clause 10 will be perfected by us prior to you obtaining possession (on delivery of the Equipment) and the Parties confirm they have not agreed that any security interest attaches at any later time.
10.7 Any time you make a payment to us, irrespective of whether the payment is made under or in connection with the Unpaid Equipment, we may apply that payment:
(a) first to satisfy an obligation that is not secured;
(b) second, to satisfy an obligation that is secured, but not by a PMSI;
(c) third, to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI; and
(d) fourth, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source; or
(e) despite the foregoing, in any manner we see fit (acting reasonably).
10.8 We do not need to give you any notice under the PPSA (including notice of the single financing statement or verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded. If we are required to give a notice to you under the PPSA, and you may, under the PPSA, waive your right to receive that notice, then you hereby waive that right.
10.9 If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interests created under these T&C, you agree that sections 95, 120, 121(4), 125, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply to the enforcement of those security interests.
10.10 You agree not to disclose to an ‘Interested person’ (as defined in section 275(9) of the PPSA) or any other person, any information of the kind described in section 275(1) of the PPSA including the security agreement between you and us.
10.11 You will notify us immediately in writing if you change your name and address for service, contact details or if there are any changes to the data required to register a financing statement under the PPSA.
10.12 You agree, until title in the Unpaid Equipment passes to you, not to sell, lease or otherwise deal with the Unpaid Equipment and to keep and maintain the Unpaid Equipment free of any charge, lien, or security interest except as created under these T&Cs and not otherwise to deal with the Equipment in a way that will, or may, prejudice our rights under these T&Cs or the PPSA.
10.13 You irrevocably grant to us the right to enter any premises of yours if we have cause to exercise any of our rights under the PPSA (and in particular section 123 of the PPSA).
11 LIMITATION OF LIABILITY
11.1 In this clause 11, “ACL” means the Australian Consumer Law contained within the Competition and Consumer Act 2010 (Cth) and all equivalent State and Territory legislation.
11.2 IMPORTANT: This clause 11.2 applies to Orders where the Price is under $100,000 including GST. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
(a) to cancel your service contract with us; and
(b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
11.3 We warrant that the Equipment supplied to you will be free from defects and remain so for the warranty period that is applicable to the Equipment. This warranty is subject to terms and conditions as outlined in our Equipment Warranties document, which can be found here: https://www.dentsplysirona.com/en-au/legal/equipment-warranties.html. Subject to clause 11.2 (if applicable), and to the fullest extent permitted by law, all other warranties and conditions, whether express or implied (whether by statute, common law, equity, trade, custom, usage or otherwise), in relation to the supply by us of Equipment and Services to you are expressly excluded.
11.4 Subject to clauses 11.2 (if applicable) and 11.3, and to the fullest extent permitted by law, any liability of us to you arising out of or relating to the supply of Equipment or Services to you, whether arising in contract, tort, equity, statute or otherwise, is in all cases (except for any liability for failure to comply with any of the guarantees under sections 51, 52 or 53 of the ACL) limited to:
(a) in the case of the supply of goods (within the meaning of the ACL), one or more of the following (at our election):
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(iv) the payment of the cost of having the goods repaired;
and
(b) in the case of the supply of services (within the meaning of the ACL), one or more of the following (at our election):
(i) the supplying of the services again;
(ii) the payment of the cost of having the services supplied again.
11.5 Without limiting the generality of clauses 11.3 and 11.4, neither Party shall (to the fullest extent permitted by law) be responsible or liable for indirect, special or consequential damages arising out of or in connection with a Contract or the use or performance of the Equipment or Services, or other damages with respect to any economic loss, loss of property, loss of revenue or profit, loss of enjoyment or use, cost of removal, installation or other consequential damage of any nature.
11.6 For the avoidance of doubt, no provision of these T&Cs shall have effect as, or be taken to be, a term referred to in section 276A(4) of the ACL, or imposing on us a liability greater than that mentioned in section 276A(1) of the ACL in circumstances where section 276A(1) of the ACL operates to limit our liability under section 274 of the ACL.
12 FORCE MAJEURE
12.1 To the fullest extent permitted by law, a Party will not be liable for failure of or delay in performing its obligations under a Contract to the extent and for so long as such performance is prevented or delayed because of an act of God, such as earthquake, hurricane, tornado, flooding, or other natural disaster, or in the case of war, action of foreign enemies, terrorist activities, labour dispute or strike, government sanction, blockage, embargo, failure of electrical service, pandemic or epidemic, disruptions to supply chains or any circumstances outside the Party’s reasonable control.
12.2 If a Party’s ability to perform its obligations under a Contract is materially affected by any of the circumstances or events mentioned in clause 12.1, the affected Party may, acting reasonably and by written notice to the other Party, either:
(a) push back the date for delivery of any affected Orders;
(b) alter the specifications for the ordered Equipment to allow the substitution of equivalent equipment (provided that this substitution has been agreed by the Parties in writing); or
(c) cancel the affected Order without liability for a breach of the applicable Contract.
13 MISCELLANEOUS
13.1 A Contract may only be varied if the variation is in writing and signed by us and you.
13.2 The sale to and purchase by you of the Equipment does not confer on you any licence or right under any copyright, patent, registered design, trademark, or any other intellectual property which is our property (or the property of our related entities) and you agree to comply with all reasonable requirements imposed by us with respect to trademarks or identification marks in respect of the Equipment.
13.3 Subject to clause 13.4, you agree to consider all information furnished by us, including in the content of each Contract and Invoice, to be confidential and will not disclose such information to any other person, or use such information by yourself for any purpose other than performing the Contract, unless: (a) you have obtained prior written permission from us to do so; (b) you are required by law to disclose such information to an appropriate authority or stock exchange; or (c) you are disclosing such information to your professional advisors solely for the purposes of seeking their advice. You agree to take every reasonable precaution to safeguard the confidentiality of such information, including implementing restrictions on access to such information, and to maintain all such information in a secure location. Without limiting the effect of this clause, you agree not to advertise or publish the fact that you have contracted to purchase Equipment and Services from us without our prior written permission.
13.4 Clause 13.3 will not apply to any information that is in the public domain (excluding information that entered the public domain as a result of a breach of a Contract or any other obligations of confidence).
13.5 The Parties warrant that they will comply with all applicable laws and regulations in relation to the execution, delivery and performance of each Contract.
13.6 No claim or right arising out of a breach of a Contract can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the aggrieved Party has agreed to the waiver or renunciation in writing. A Party’s failure to enforce at any time or for any period of time any of the provisions of a Contract will not be considered to be a waiver of such provisions or of the Party’s right thereafter to enforce each and every such provision.
13.7 If any provision of a Contract is found to be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14 X-RAY EQUIPMENT
14.1 Despite anything to the contrary, where an Order includes X-Ray equipment and the delivery location is a State or Territory of Australia that has a licence system for X-Ray equipment, you acknowledge that we cannot deliver the Equipment to you until you supply us with a valid X-Ray user’s licence number and/or documentary evidence that all relevant requirements have been met.
15 GST
15.1 Words and phrases used in this clause 15 that have defined meanings in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (“GST Law”) have the same meaning as in the GST Law, unless the context indicates otherwise.
15.2 Unless expressly stated otherwise, the consideration for any supply under or in connection with each Contract is exclusive of GST. To the extent that any supply made under or in connection with a Contract is a taxable supply (other than any supply made under another agreement that contains a specific provision dealing with GST), the amount payable by the recipient is the consideration provided under the Contract for that supply (unless it expressly includes GST) plus an amount (“Additional Amount”) equal to the amount of that consideration (or its GST-exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The recipient must pay the Additional Amount at the same time as the consideration to which it is referable.
16 DISPUTE RESOLUTION
16.1 A Party must not start arbitration or court proceedings (except proceedings seeking urgent interlocutory relief) in respect of a dispute arising out of a Contract unless it has complied with this clause.
16.2 If a Party is in dispute with the other Party over any matter arising out of or in connection with a Contract (“Dispute”), the Party must give written notice (“Dispute Notice”) to the other Party within seven (7) days of it first becoming aware of the Dispute, setting out the details of the Dispute.
16.3 Upon the receipt of the Dispute Notice, the Parties must negotiate in good faith for up to 14 days (or a longer period agreed in writing by the parties to the Dispute) with an aim to resolve the Dispute.
16.4 If the Parties to the Dispute (each a “Participant”) do not resolve the Dispute under clause 16.3, any one of them may notify the other Party to the Dispute requiring the Dispute to be referred for mediation under clause 16.5 (“Referral”).
16.5 The Participants must mediate the Dispute in accordance with the Mediation Rules of the Resolution Institute except where inconsistent with the relevant Contract. The mediator must be:
(a) agreed on by the Participants within 5 business days after the Referral; or
(b) failing agreement within that time, nominated by the Chair of the Resolution Institute at the request of any Participant.
16.6 The role of any mediator is to assist in negotiating a resolution of the Dispute. A Participant is only bound by a mediation outcome if that Participant so agrees in writing. The mediation concludes when:
(a) all the Participants agree in writing on a resolution of the Dispute; or
(b) a Participant, not earlier than 30 business days after the appointment of the mediator, has given 5 business days’ notice to the other Participants and to the mediator, terminating the mediation, and that 5 business days has expired without all the Participants agreeing in writing on a resolution of the Dispute.
16.7 The fees and expenses of the mediator will be payable by the Participants in equal proportions.
Document identifier:
LEG-TP-001 V3.0
