The Customer’s attention is particularly drawn to the provisions of clause 11.

1.    INTERPRETATION

1.1  Definitions. In these Conditions, the following definitions apply:

Conditions: these terms and conditions as amended from time to time in accordance with clause 14.4.

Contract: the contract between NCC and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

Customer: the person who purchases the Goods and/or Services from NCC.

Delivery Location: NCC’s premises at Suite 5, 166 Gooding Drive, Merrimac QLD 4226 or such other location as may be advised by NCC before delivery.

Force Majeure Event: has the meaning set out in clause 14.1.

Goods: the goods (or any part of them) set out in the Order.

Goods Specification:  any specification for the Goods (including any relevant prescription) that is agreed in writing by the Customer and NCC.

Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of NCC’s quotation, or overleaf, as the case may be.

Services: the services supplied by NCC to the Customer as set out in the Order.

Service Specification:  the description or specification for the Services provided in writing by NCC to the Customer.

NCC: Mark Bellgrove (Carrara) Pty Ltd ACN 140 483 727 atf Carrara Pharmacy Trust and Matthew Bellgrove Pharmacy Pty Ltd ACN 140 521 866 atf Gooding Drive Pharmacy Trust trading as National Custom Compounding.

1.2  Interpretation. In these Conditions, the following rules apply:

(a)   a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b)   a reference to a party includes its personal representatives, successors or permitted assigns;

(c)   a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted.

(d)   any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(e)   a reference to writing or written includes faxes and e-mails.

2.    BASIS OF CONTRACT

2.1  The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.

2.2   The Order shall only be deemed to be accepted when NCC issues written or oral acceptance of the Order or commences work at which point and on which date the Contract shall come into existence.

2.3  The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of NCC which is not set out in the Contract.

2.4  Any samples, descriptive matter or advertising issued by NCC and any descriptions of the Goods or illustrations or descriptions of the Services contained in NCC’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.

2.5  These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6  Any quotation given by NCC shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

2.7  All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

3.    GOODS

3.1  The Goods are described in the Goods Specification.

3.2  NCC reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.

4.    DELIVERY OF GOODS

4.1  The Customer shall collect the Goods at the Delivery Location within one business day of NCC notifying the Customer that the Goods are ready.

4.2  Delivery of the Goods shall be completed on the collection of the Goods at the Delivery Location.

4.3  Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. NCC shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide NCC with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.4  If NCC fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. NCC shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Customer’s failure to provide NCC with adequate delivery instructions or prescription instructions for the Goods or any relevant instruction related to the supply of the Goods.

4.5  If 10 business days after NCC notified the Customer that the Goods were ready for delivery and the Customer has not taken delivery of them, NCC may resell or otherwise dispose of part or all of the Goods.

5.    DELIVERY OF GOODS

5.1  NCC warrants that on delivery the Goods shall:

(a)   conform in all material respects with the Goods Specification;

(b)   be fit for any purpose held out by NCC.

6.    TITLE AND RISK

6.1  The risk in the Goods shall pass to the Customer on completion of delivery.

6.2  Title to the Goods shall not pass to the Customer until NCC receives payment in full (in cash or cleared funds) for the Goods, in which case title to the Goods shall pass at the time of payment.

7.    SUPPLY OF SERVICES

7.1  NCC shall provide the Services to the Customer in accordance with the Service Specification in all material respects.

7.2  NCC shall use all reasonable endeavours to meet any performance dates for the Services agreed in writing between the parties, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

7.3  NCC shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and NCC shall notify the Customer in any such event.

7.4  NCC warrants to the Customer that the Services will be provided using reasonable care and skill.

8.    CUSTOMER’S OBLIGATIONS

8.1  The Customer shall:

(a)   ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;

(b)   co-operate with NCC in all matters relating to the Services; and

(c)   provide NCC with such information, prescriptions and materials as NCC may reasonably require to supply the Services, and ensure that such information is accurate in all material respects.

8.2  If NCC’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a)   NCC shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays NCC’s performance of any of its obligations;

(b)   NCC shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from NCC’s failure or delay to perform any of its obligations as set out in this clause 8.2; and

(c)   the Customer shall reimburse NCC on written demand for any costs or losses sustained or incurred by NCC arising directly or indirectly from the Customer Default.

9.    CHARGES AND PAYMENT

9.1  The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in NCC’s published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.

9.2  The charges for Services shall be on a time and materials basis and shall be calculated in accordance with NCC’s standard daily fee rates notified to the Customer at the time of making the Order.

9.3  NCC reserves the right to increase its prices for supply of Goods or Services by giving not less than 30 days written notice to the Customer.

9.4  In respect of Goods or Services, NCC shall invoice the Customer on or at any time after completion of delivery.

9.5  The Customer shall pay each invoice submitted by NCC in accordance with the terms of issue.

9.6  All amounts payable by the Customer under the Contract are exclusive of amounts in respect of goods and services tax chargeable from time to time (GST). Where any taxable supply for GST purposes is made under the Contract by NCC to the Customer, the Customer shall, on receipt of a valid GST invoice from NCC, pay to NCC such additional amounts in respect of GST as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

9.7  If the Customer fails to make any payment due to NCC under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the base rate of NCC’s bank from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

9.8  The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. NCC may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by NCC to the Customer.

10.  IMPLIED TERMS

10.1  Subject to clause 10.2, any condition or warranty which would otherwise be implied in this Contract is hereby excluded.

10.2  Where legislation implies in this Contract any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Contract.  However, the liability of NCC for any breach of such condition or warranty shall be limited, at the option of NCC, to one or more of the following:

(a)    if the breach relates to goods:

(i)     the replacement of the goods or the supply of equivalent goods;

(ii)    the repair of such 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)   if the breach relates to services:

(i)     the supplying of the services again; or

(ii)    the payment of the cost of having the services supplied again.

10.3  NCC and the Customer agree that section 23(3) of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (Consumer Act) does not apply to this Contract where the supply of goods or services are not to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

10.4  Where the Contract is not a consumer contract in accordance with section 23(3) of the Consumer Act, provisions relating to ‘unfair terms’ of a consumer contract in Schedule 2 of the Consumer Act shall not apply to this Contract to the extent permitted by law.

10.5  If it is found by a court of competent jurisdiction that this Contract is a Consumer Contract under section 23(3) of Schedule 2 of the Consumer Act, then clauses 10.6 – 10.7 apply.

10.6  NCC’s liability for a breach of a condition or warranty implied by Schedule 2 Part 3-2 Division 1 of the Consumer Act is hereby limited to:

(a)   in the case of goods, any one or more of the following:-

(i)      the replacement of the goods or the supply of equivalent goods;

(ii)    the repair of such 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 services:-

(i)     the supplying of the services again; or

(ii)    the payment of the cost of having the services supplied again.

10.7  NCC’s liability under Schedule 2, Part 3-2 Division 1 s55 of the Consumer Act is expressly limited to a liability to pay to the Customer an amount equal to:

(a)   the cost of replacing the goods;

(b)   the cost of obtaining equivalent goods; or

(c)   the cost of having the goods repaired,

whichever is the lowest amount.

11.  LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

11.1  NCC shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract.

11.2  NCC’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the implied terms set out in clause 10.

11.3  The Customer indemnifies and must keep indemnified NCC from and against all liability, losses, damages, expenses and costs (including own solicitor’s costs) arising under or in connection with the Contract.

11.4   This clause 11 shall survive termination of the Contract.

12.   TERMINATION

12.1  Without limiting its other rights or remedies:

(a)   NCC may terminate this Contract at any time and without fault prior to delivering the Goods or completing the Services. Where NCC has commenced the Services it will refund the Customer pro-rata for the Services completed.

(b)   NCC may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

(c)   NCC may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and NCC if the Customer fails to pay any amount due under this Contract on the due date for payment or NCC reasonably believes that the Customer is unable to meet its debts.

12.2  On termination of the Contract for any reason:

(a)   the Customer shall immediately pay to NCC all of NCC’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, NCC shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b)   the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(c)   clauses which expressly or by implication have effect after termination shall continue in full force and effect.

13.  CONFLICT OF TERMS AND CONDITIONS

Where there is any conflict between the provisions of these Conditions and the Order or a separate agreement entered into and executed by both NCC and the Customer that sets out the terms and conditions of sale or distribution of Goods or Services (Separate Agreement), the provisions set out in the Order or the Separate Agreement will prevail.

14.  GENERAL

14.1  Force Majeure. Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply (Force Majeure Event), and the party shall be entitled to a reasonable extension of its obligations.

14.2  No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose.

14.3  Notices. Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Order or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.

14.4  Variation. This Contract may be amended by NCC from time to time. Notice is deemed given (whether or not actually received) when NCC displays the amended terms on its website www.customcompounding.com.au

14.5  Severance. If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.

14.6  Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

14.7  Assignment. The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Contract without the prior written consent of NCC. NCC may assign its rights or obligations or delegate its duties under this Contract at its sole discretion.

14.8  Waiver. The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Conditions.

14.9  Governing Law. These Conditions are governed by and construed in all respects in accordance with the law of Queensland and the Customer agrees to submit to the exclusive jurisdiction of the courts of Queensland.