&geometry(180x112) "Great Western Animal Hospital")
1. Definitions
1.1 “GWAH” shall mean Great Western Animal Hospital Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Great Western Animal Hospital Pty Ltd.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by GWAH to the Client.
1.3 “Guarantor” means that person (or persons) who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean all Goods supplied and Services undertaken by GWAH to the Client and are as described on the invoices, quotation, work authorisation or any other forms as provided by GWAH to the Client.
1.5 “Services” shall mean all Services supplied by GWAH to the Client and includes any advice or recommendations.
1.6 “Animal” shall mean any animal owned by the Client which is brought to GWAH by the Client for boarding and/or other care Services.
1.7 “Price” shall mean the Price payable for the Goods and/or Services as agreed between GWAH and the Client in accordance with clause 3 of this contract.
2. Acceptance
2.1 Any instructions received by GWAH from the Client for the supply of Goods and/or Services and/or the Client’s acceptance of Goods and/or Services supplied by GWAH shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of GWAH.
2.4 The Client shall give GWAH not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by GWAH as a result of the Client’s failure to comply with this clause.
2.5 Goods and/or Services are supplied by GWAH only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3. Price and Payment
3.1 At GWAH’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by GWAH to the Client in respect of Goods and/or Services supplied; or
(b) the Price as at the date of delivery of the Goods according to GWAH’s current price list.
3.2 GWAH reserves the right to change the Price in the event of additional Services, provided the variation to the Price is within the limit agreed to between GWAH and the Client, whether the agreement of cost range is in writing or verbally, during the course of the treatment.
3.3 At GWAH’s sole discretion a deposit may be required.
3.4 At GWAH’s sole discretion payment shall be due before delivery of the Goods and/or Services.
3.5 At GWAH’s sole discretion payment shall be due before delivery of the Goods and/or Services.
3.6 The Client acknowledges and agrees that full payment for the Goods and/or Services shall be due upon release of the Animal/s.
3.7 Payment will be made by cash, or by credit card or by direct credit, or by any other method as agreed to between the Client and GWAH.
3.8 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery of Goods and/or Services
4.1 At GWAH’s sole discretion delivery of the Goods shall take place when the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by GWAH or GWAH’s nominated carrier).
4.2 At GWAH’s sole discretion the costs of delivery are for the Client’s account.
4.3 The Client shall make all arrangements necessary to take delivery of the Goods and/or Services whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods and/or Services as arranged then GWAH shall be entitled to charge a reasonable fee for redelivery.
4.4 The failure of GWAH to deliver shall not entitle either party to treat this contract as repudiated.
4.5 GWAH shall not be liable for any loss or damage whatsoever due to failure by GWAH to deliver the Goods and/or Services (or any of them) promptly or at all, where due to circumstances beyond the control of GWAH.
5. Risk in the Goods
5.1 If GWAH retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, GWAH is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by GWAH is sufficient evidence of GWAH’s rights to receive the insurance proceeds without the need for any person dealing with GWAH to make further enquiries.
5.3 Where the Client expressly requests GWAH to leave Goods outside GWAH’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk and it shall be the Client’s responsibility to ensure the Goods are insured adequately or at all.
6. Title of Goods
6.1 GWAH and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid GWAH all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to GWAH in respect of all contracts between GWAH and the Client.
6.2 Receipt by GWAH of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then GWAH’s ownership or rights in respect of the Goods shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until GWAH shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from GWAH to the Client GWAH may give notice in writing to the Client to return the Goods or any of them to GWAH. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) GWAH shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to GWAH then GWAH or GWAH’s agent may (as the invitee of the Client) enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as GWAH has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Client owes to GWAH for the Goods, on trust for GWAH; and
(f) the Client shall not deal with the money of GWAH in any way which may be adverse to GWAH; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of GWAH; and
(h) GWAH can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that GWAH will be the owner of the end products.
7. Personal Property Securities Act 2009 (“PPSA”)
7.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Client and GWAH by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
7.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
(i) all Goods previously supplied by GWAH to the Client (if any);
(ii) all Goods that will be supplied in the future by GWAH to the Client.
7.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which GWAH may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 7.3(a)(i) or 7.3(a)(ii);
(b) indemnify, and upon demand reimburse, GWAH for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of GWAH;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of GWAH; and
(e) immediately advise GWAH of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
7.4 GWAH and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
7.5 The Client hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
7.6 The Client waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7.7 Unless otherwise agreed to in writing by GWAH, the Client waives its right to receive a verification statement in accordance with section 157 of the PPSA.
7.8 The Client shall unconditionally ratify any actions taken by GWAH under clauses 7.3 to 7.5.
8. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
8.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify GWAH in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow GWAH to inspect the Goods.
8.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
8.3 GWAH acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
8.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, GWAH makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. GWAH’s liability in respect of these warranties is limited to the fullest extent permitted by law.
8.5 If the Client is a consumer within the meaning of the CCA, GWAH’s liability is limited to the extent permitted by section 64A of Schedule 2.
8.6 If GWAH is required to replace the Goods under this clause or the CCA, but is unable to do so, GWAH may refund any money the Client has paid for the Goods.
8.7 If the Client is not a consumer within the meaning of the CCA, GWAH’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by GWAH at GWAH’s sole discretion;
(b) limited to any warranty to which GWAH is entitled, if GWAH did not manufacture the Goods;
(c) otherwise negated absolutely.
8.8 Subject to this clause 9, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 9.1; and
(b) GWAH has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
8.9 Notwithstanding clauses 9.1 to 9.8 but subject to the CCA, GWAH shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by GWAH;
(e) fair wear and tear, any accident, or act of God.
8.10 GWAH may in its absolute discretion accept non-defective Goods for return in which case GWAH may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
8.11 Notwithstanding anything contained in this clause if GWAH is required by a law to accept a return then GWAH will only accept a return on the conditions imposed by that law.
9. Default and Consequences of Default
9.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at GWAH’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
9.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by GWAH.
9.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify GWAH from and against all costs and disbursements incurred by GWAH in pursuing the debt including legal costs on a solicitor and own client basis and GWAH’s collection agency costs.
9.4 Without prejudice to any other remedies GWAH may have, if at any time the Client is in breach of any obligation (including those relating to payment) GWAH may suspend or terminate the supply of Goods and/or Services to the Client and any of its other obligations under the terms and conditions. GWAH will not be liable to the Client for any loss or damage the Client suffers because GWAH has exercised its rights under this clause.
9.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
9.6 Without prejudice to GWAH’s other remedies at law GWAH shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to GWAH shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to GWAH becomes overdue, or in GWAH’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
10. Cancellation
10.1 GWAH may cancel any contract to which these terms and conditions apply or cancel delivery of Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Client. On giving such notice GWAH shall repay to the Client any sums paid in respect of the Price. GWAH shall not be liable for any loss or damage whatsoever arising from such cancellation.
10.2 In the event that the Client cancels delivery of Goods and/or Services the Client shall be liable for any loss incurred by GWAH (including, but not limited to, any loss of profits) up to the time of cancellation.
11. Privacy Act 1988
11.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for GWAH to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by GWAH.
11.2 The Client agrees that GWAH may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
11.3 The Client consents to GWAH being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
11.4 The Client agrees that personal credit information provided may be used and retained by GWAH for the following purposes (and for other purposes as shall be agreed between the Client and GWAH or required by law from time to time):
(a) the provision of Goods and/or Services; and/or
(b) the marketing of Goods and/or Services by GWAH, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods and/or Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods and/or Services.
11.5 GWAH may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
11.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that GWAH is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of GWAH, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by GWAH has been paid or otherwise discharged.
12. General
12.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
12.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
12.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of Paramatta, New South Wales.
12.4 GWAH shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by GWAH of these terms and conditions.
12.5 In the event of any breach of this contract by GWAH the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods and/or Services.
12.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by GWAH nor to withhold payment of any invoice because part of that invoice is in dispute.
12.7 GWAH may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
12.8 The Client agrees that GWAH may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which GWAH notifies the Client of such change. The Client shall be under no obligation to accept such changes except where GWAH supplies further Goods and/or Services to the Client and the Client accepts such Goods and/or Services.
12.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
12.10 The failure by GWAH to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect GWAH’s right to subsequently enforce that provision.
CONDITIONS APPLICABLE ANIMAL CARE AND BOARDING SERVICES ONLY
13. Acceptance
13.1 The Client understands and accepts that all Animals submitted to GWAH for boarding are to be a minimum of five (5) months old and be fully vaccinated. Two consecutive vaccinations must be shown upon admission. All cats are to be desexed.
13.2 The Client agrees to be solely responsible for any and all acts or behaviour of the Animal while it is in GWAH’s care.
13.3 The Client warrants that they are the sole owner of the Animal, free and clear of all items and encumbrances.
13.4 Where the Animal is left with GWAH, and costs are incurred to maintain the Animal, GWAH will make every endeavour to contact the Client or the Client’s authorised agent to obtain authorisation for payment of such costs. However, where the Client cannot be contacted, for whatever reason, the Client hereby authorises GWAH to act in the best interest of the Animal and/or progeny and undertake whatever procedures GWAH feels are necessary and appropriate to maintain the wellbeing and good health of the Animal and/or progeny, and the Client shall be fully liable for the costs incurred as a result thereof and shall immediately reimburse GWAH upon being notified of the procedures undertaken and the costs incurred.
14. Delivery of the Animal
14.1 Unless otherwise specified by the Client in writing, the Animal will be delivered to any person who is prepared to declare that they have the Client’s authority to do so.
14.2 Return of the Animal shall take place when the Client takes possession of the Animal at GWAH’s address.
14.3 The Client shall make all arrangements necessary to collect the Animal whenever they are due to be collected. In the event that the Client is unable to accept the return of the Animal as arranged then GWAH shall be entitled to charge a reasonable fee for the ongoing care of the Animal.
15. Animal Abandonment
15.1 If for any reason whatsoever the Client fails to collect the Animal on the scheduled day of collection and does not contact GWAH and cannot be contacted by GWAH then, after fourteen (14) days from the scheduled day of collection, the animal shall be deemed to be abandoned and GWAH may at their sole discretion re-home the Animal.
15.2 The Client shall indemnify GWAH against all costs incurred as a result of the Client abandoning their Animal.
16. Risk
16.1 GWAH will provide all care, good husbandry and attention to the Animal, but shall not be liable for any loss, damage or claims of any nature howsoever arising from injury, sickness, disease or death of the Animal whilst under the care or control of GWAH.
16.2 GWAH will not undertake responsibility for insuring the Animal. This is entirely the Client’s responsibility.
16.3 GWAH will provide all care, good husbandry and attention to the Animal, but shall not be liable for any loss, damage or claims of any nature howsoever arising from injury, sickness, disease or death of the Animal whilst under the care or control of GWAH or GWAH’s employees.
16.4 GWAH offers no guarantee as to the success or otherwise of any veterinary procedure performed at the Client’s request or GWAH’s recommendation and payment shall be due whatever the outcome of the procedure.
16.5 The Client acknowledges that there can be risks and complications with anaesthesia and surgery and accepts these risks and that GWAH will take all reasonable steps to minimise these risks. In the event of any complication arising during the procedure, GWAH shall take any action deemed necessary to control the problem and will notify the Client as soon as possible of the situation.
17. Animal Lien
17.1 Where the Client has left the Animal to perform any Service in relation with the Animal and GWAH has not received or been tendered the whole of the Price, or the payment has been dishonoured, GWAH shall have:
(a) a lien on the Animal;
(b) the right to retain the Animal for the Price while GWAH is in possession of the Animal;
(c) a right to sell the item or to surrender the animal to a Humane Society (such as the RSPCA or The Animal Welfare League).
17.2 The lien of GWAH shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
