Terms and Conditions of Sale - Small Products and Services (On Account) - Australia
(Edition 9 November 2023)
These are the terms and conditions (“T&Cs”) on which Dentsply Sirona Pty Limited (“Seller”, “we”, “us” and “our”) supplies small products / consumables (“Products”) and services associated with the Products (“Services”) to its customers (“Customer”, “you” and “your”).
We reserve the right to update the T&C from time to time. Updated T&Cs will be displayed at: https://www.dentsplysirona.com/en-au/legal/terms-and-conditions-small-products-and-services.html, and each Contract (as defined in clause 1.1) incorporates the T&Cs that are in force as at the time that 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 Products 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 Products and Services to you (“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 2.2;
b) if applicable, the supply agreement or bundled sales contract that:
i) refers to the T&Cs; and
ii) is entered into by the Parties in relation to the relevant Products and Services,
(collectively, “Supply Agreement”), including any annexures to the Supply Agreement;
c) your purchase order for the relevant Products and Services (“Order”);
d) if applicable, the quotation given to you for the relevant Products and Services (“Current Quotation”); and
e) our invoice for the relevant Products and Services (“Invoice”),
save that any terms and conditions contained within your 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 Each Contract constitutes the whole of the agreement between you and us for the supply of the relevant Products and Services. All agreements and understandings between you and us in relation to the supply of the relevant Products and Services are set out in the Contract, and the Contract supersedes all prior agreements, understandings and statements, whether written or oral between the Parties in relation to the relevant Products and Services.
1.3 Without limiting the generality of the foregoing, the T&Cs and the terms of any applicable Supply Agreement shall prevail over Your Terms, and you agree that Your Terms shall be of no legal force or effect unless we have agreed to them writing.
2 ORDER AND ACCEPTANCE
2.1 Any Order that you submit to us for the Products and Services will be subject to the T&Cs and any applicable Supply Agreements. Your Order shall, at a minimum, set forth the quantities of the Products and Services that you intend to purchase, your requested delivery date and your shipping address.
2.2 All Orders are subject to acceptance by us (which may be declined in our absolute discretion). Once an Order is accepted by us in writing, a binding Contract shall be formed between the Parties for the supply of the Products and Services specified in the Order.
3 PRICE
3.1 Subject to clause 3.2, the price charged for the Products and Services (“Price”) will be as set out in the Current Quotation for the Products; or, if no Current Quotation has been provided, as set out in our current price list as at the date when you submitted your Order to us.
3.2 Where the Parties have signed a Supply Agreement as part of the Contract that provides a different Price for the relevant Products and Services, the Price for such Products and Services will be as set out in the Supply Agreement for the duration of the Supply Agreement. You will also be entitled to any discounts on the Price for the relevant Products and Services as detailed in any applicable Supply Agreement for the duration of the Supply Agreement.
3.3 All Prices specified in the Current Quotation will be honoured for the validity period specified in the Current Quotation. You acknowledge that, if you do not accept a Current Quotation within the validity period, the Prices are subject to change at our discretion.
3.4 The Parties hereby agree that the Prices do not include GST and additional freight charges.
4 PAYMENT AND INTEREST
4.1 Unless otherwise agreed by the Parties in writing, all amounts owing to us on account of Products and Services supplied on credit are due and payable by the last working day of the month following despatch of the Invoice to you.
4.2 All payments must be made without set-off, deduction or counterclaim.
4.3 If any payment is not made in accordance with this clause 4, then (without prejudice to any other rights we have under law) we will be entitled to:
a) suspend any further delivery of Products and Services to you under any other Order until such time that payment has been made in full;
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 initial payment due date, cancel any further delivery of Products and Services to you under any other Order.
4.4 If you ask us to cancel an Order due a change of mind after we have already accepted the Order, and we agree in writing to the cancellation, you acknowledge that we may charge you a reasonable restocking fee that is proportionate to the losses and costs that we will incur as a result of the cancellation.
5 DELIVERY & RISK
5.1 Subject to clause 5.2:
a) you must accept delivery of the Products within 7 days after receiving a notification from us that the Products are ready for delivery (“Delivery Notification”). If you fail to take delivery within 7 days after receiving the Delivery Notification, you shall pay to us all reasonable storage / handling costs arising from your failure to take delivery; and
b) if you fail to take delivery of the Products within 14 days after receiving the Delivery Notification, we may also at our reasonable discretion cancel the Order for the Products by giving written notice to you.
5.2 Clause 5.1 does not apply if you were unable to accept delivery of the Products within the applicable timeframes due to our failure or delay in delivering the Products to you.
5.3 The risk of loss of, or damage to, the Products will pass to you upon delivery of the Products to you.
5.4 You should contact us as soon as possible if the delivered Products are not in accordance with your Order. Please note that requests for returns, exchanges or refunds for:
a) non-defective Products will be processed in accordance with our Returns Policy; and
b) defective Products will be processed in accordance with clause 8, clause 9, our product complaints policy and our warranty policy (as applicable). Please contact us at clientservices@dentsplysirona.com for more information about our product complaints and warranty policies.
5.5 You shall be responsible for ensuring that all hoisting facilities that may be required to accept delivery (“Hoisting Facilities”) are available upon delivery. The Products shall not be disassembled to suit the Hoisting Facilities unless agreed to by us in writing.
5.6 Subject to production capacity and you complying with your obligations under the relevant Contract, we will use commercially reasonable efforts to fulfil all accepted Orders by the requested delivery date specified in the Order (or such other date as agreed by the Parties). You agree that delivery of an Order after the requested delivery date would not entitle you to refuse to take delivery of the Order.
5.7 We will not be liable for any failure or delay in delivering your Order to the extent that such failure or delay was caused by your failure to comply with your obligations under the relevant Contract.
6 RETENTION OF TITLE
6.1 Neither ownership of, nor property in, any Products sold by us passes to you until you have paid to us all monies owing by you in connection with the relevant Products. These monies include, without limitation, any GST and freight charges that may be payable.
6.2 Until payment of all monies owed by you to us in connection with the relevant Products has been made in full, you hold such Products as fiduciary bailee and agent for us and must keep these Products physically separate from all other goods purchased or owned by you, and clearly identified as owned by us (“Unpaid Products”).
6.3 In the event that you fail to make payment in accordance with the relevant Contract for any Unpaid Products 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 Products are stored so that we may recover the Unpaid Products. You must comply with such demands within 3 business days of receiving the written notice under this clause.
6.4 In the event that you sell any of the Unpaid Products while money is owed to us for the Unpaid Products, you must hold the proceeds of sale or disposal on trust for us to secure payment of any amounts you owe us for the Unpaid Products. You must keep the proceeds of the sale in a separate account and not mix them with any other funds.
6.5 If you mix the Unpaid Products with other goods so that the Unpaid Products are no longer separately identifiable, the Parties will be owners in common of the mixed goods.
7 PERSONAL PROPERTY SECURITIES ACT
7.1 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 the T&Cs) has the meaning given to it in the PPSA.
7.2 You acknowledge and grant us a security interest for the purposes of the PPSA in all Unpaid Products and any proceeds that you have received from the sale of Unpaid Products. This security interest secures all moneys owing by you to us for the Unpaid Products.
7.3 You acknowledge and agree that the security interest is a continuing and subsisting interest in the Unpaid Products with priority over any registered or unregistered general (or other) security interest and any unsecured creditor.
7.4 You grant to us a security interest over Unpaid Products or their proceeds arising under this clause 7 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 Products.
7.5 For the avoidance of doubt and without prejudice to our rights under the PPSA:
a) you may process the Unpaid Products supplied by us to you and accession or commingle them with other property in which case we will have a security interest in any processed, accession and commingled Products; and
b) you may sell the Unpaid Products to your customers and if you do so, then we will have a security interest in the proceeds of sale.
7.6 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.
7.7 The security interests arising under this clause 7 will be perfected by us prior to you obtaining possession (on delivery of the Products) and the parties confirm they have not agreed that any security interest attaches at any later time.
7.8 Any time you make a payment to us, irrespective of whether the payment is made under or in connection with the Unpaid Goods, 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;
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).
7.9 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 and 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.
7.10 If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interests created under these T&Cs, 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.
7.11 The Parties 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 the Parties.
7.12 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 data required to register a financing statement under the PPSA.
7.13 You agree, until title in the Unpaid Products passes to you, to keep and maintain all Unpaid Products free of any charge, lien, or security interest except as created under these T&Cs and not otherwise to deal with Unpaid Products in a way that will, or may, prejudice our rights under these T&Cs or the PPSA.
7.14 You irrevocably grant to us the right to enter any premises of yours if we have cause to exercise our rights under the PPSA (and in particular section 123 of the PPSA).
8 PRODUCT WARRANTY AND LIMITATION OF LIABILITY
8.1 In this clause 8, "ACL" means the Australian Consumer Law contained within the Competition and Consumer Act 2010 (Cth) and all equivalent State and Territory legislation.
8.2 IMPORTANT: 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.
8.3 The Products supplied to you under each Contract will:
a) conform to its description;
b) be of merchantable quality and fit for any purpose held out by us;
c) be free from defects in design, material and workmanship and remain so for the warranty period that is applicable to each Product; and
d) comply with all applicable statutory and regulatory requirements in the ACL.
8.4 Subject to clauses 8.2 and 8.3, 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 Products and Services to you are expressly excluded.
8.5 To the fullest extent permitted by law, any liability of us to you arising out of or relating to the supply of Products 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; or
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; or
ii) the payment of the cost of having the services supplied again.
8.6 Without limiting the generality of clauses 8.4 and 8.5, 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 Products or Services, or any 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.
8.7 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.
9 EXCEPTIONS TO DEFECTS WARRANTY
9.1 Subject to clause 9.2, we are not liable for a Product’s failure to comply with the warranty set out in clause 8.3(c) in any of the following events:
a) a defect in the Product arises because you failed to follow our oral or written instructions for the storage, commissioning, installation, use or maintenance of the Products or generally accepted industry practice;
b) you alter or repair the Product without our prior written consent;
c) a defect in the Product arises as a result of fair wear and tear, wilful damage by you, your negligence, or abnormal storage or working conditions.
9.2 For the avoidance of doubt, nothing in this clause 9 will limit or otherwise vary our obligations to comply with any of the guarantees under the Australian Consumer Law or your rights under the Australian Consumer Law as referred to in clause 8.2.
10 LASER EQUIPMENT
10.1 Despite anything to the contrary, where an Order includes a laser and the delivery location is a State or Territory of Australia that has a licence system for laser equipment, you acknowledge that we cannot deliver the laser to you until you supply us with a valid laser use licence number and/or other documented evidence that all relevant requirements have been met.
11 CUSTOMER OBLIGATIONS IN RELATION TO THE PRODUCTS
11.1 If you are on selling Products, you must:
a) sell the Products in the original packaging supplied by us; and
b) not alter or interfere in any way with the products or their original packaging, including by removing any labelling or instructions provided with the Products.
11.2 You must not make any representation or give any warranty in relation to any Product that has not been expressly authorised by us in writing.
11.3 You must not do anything which might materially affect the reputation of any of the Products, us or any of our related bodies corporate.
11.4 You must:
a) promptly inform us in writing of all material complaints or claims in relation to the Products; and
b) not engage in any conduct which may cause a third party to believe that you have the right to:
i) admit liability on behalf of us in respect of any complaint or claim in relation to the Products; and/or
ii) resolve or settle any complaint or claim in relation to the Products on our behalf.
12 TERMINATION
12.1 A Contract may be terminated:
a) at any time upon the mutual written agreement of the Parties; or
b) by either Party for a material breach of the Contract by the other Party, provided that written notice of the breach has been given to the other Party and, where the breach can be cured, the other Party has not cured the breach within thirty (30) days of being notified of the breach; or
c) by either Party in accordance with the applicable laws if:
i) the other Party ceases to function as a going concern or makes an assignment for the benefit of creditors;
ii) a petition in bankruptcy is filed by or against the other Party, resulting in an adjudication of bankruptcy; or
iii) the other Party is or becomes unable to pay its debts when they are due or is presumed to be insolvent within the meaning of the Corporations Act 2001 (Cth).
13 GST
13.1 Words and phrases used in this clause 13 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.
13.2 Unless expressly stated otherwise, the consideration for any supply under or in connection with each Contract is exclusive of GST.
13.3 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.
13.4 The recipient must pay the Additional Amount at the same time as the consideration to which it is referable, and on the issue of an invoice relating to the supply.
13.5 Whenever an adjustment event occurs in relation to any taxable supply to which clause 13.3 applies:
a) the Supplier must determine the amount of the GST component of the consideration payable; and
b) if the GST component of that consideration differs from the amount previously paid, the amount of the difference must be paid by, refunded to or credited to the recipient, as applicable.
13.6 If either party is entitled under the relevant Contract to be reimbursed or indemnified by the other party for a cost or expense incurred in connection with the Contract, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by the party being reimbursed or indemnified, or by its representative member.
14 DISPUTE RESOLUTION
14.1 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.
14.2 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, and the other provisions of this clause 14 will apply.
14.3 Upon the receipt of the Dispute Notice, the parties must negotiate in good faith for up to 14 days (or longer period agreed in writing by the parties to the Dispute) with an aim to resolve the Dispute.
14.4 If the parties to the Dispute (each a “Participant”) do not resolve the Dispute under clause 14.3, any one of them may notify the other party to the Dispute requiring the Dispute to be referred for mediation under clause 14.5 (“Referral”).
14.5 The Participants must mediate the Dispute in accordance with the Mediation Rules of the Resolution Institute except where inconsistent with the relevant Contract.
14.6 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.
14.7 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.
14.8 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 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.
14.9 The fees and expenses of the mediator will be payable by the Participants in equal proportions.
15 GENERAL
15.1 The sale to and purchase by you of the Products and Services 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 Products and Services.
15.2 Subject to clause 15.3, you agree to consider all information furnished by us, including 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 the Products and Services from us without our prior written permission.
15.3 Clause 15.2 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).
15.4 The Parties warrant that they comply with all applicable laws and regulations in relation to the execution, delivery and performance each Contract.
15.5 Without limiting the generality of clause 8, and to the fullest extent permitted by law, a Party will not 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 other circumstance or event beyond the Party’s reasonable control. If a Party’s ability to perform its obligations is materially affected by any of the circumstances mention in this clause 15.5, the affected Party may, acting reasonably and by providing reasonable notice in advance to the other Party, either: (a) push back the date of delivery of any affected Order; or (b) cancel the affected Order without liability for a breach of the applicable Contract.
15.6 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 Parties have 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.
15.7 If any provisions of a Contract are 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.
15.8 The Parties hereby agree that any change and/or amendment of a Contract shall be subject to mutual agreement in writing of both Parties.
15.9 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.
Document identifier:
LEG-TP-003 v1
