These Conditions are the terms and conditions under which Hallmark Surgical Limited (NZBN 9429041667637) (us or our or we) supplies Goods to the purchaser named in the applicable online order, order form, purchase order, quotation or invoice for the Goods (you or your). These Conditions prevail over any additional or inconsistent conditions specified by you, or appearing in any purchase order from you, and no variation to these Conditions will be binding on us, unless specifically accepted by us in writing.

1. DEFINITIONS

1.1 For the purposes of these Conditions, the following terms have the following meanings:

Conditions means these goods supply terms and conditions; Goods means the goods as more particularly described in the applicable online order, quotation, order form, invoice, packing slip or purchase order for those goods; GST means goods and services tax payable under the Goods and Services Tax Act 1985 (New Zealand) or A New Tax System (Goods and Services Tax) Act 1999 (Australia) (as applicable); and PPSA means the Personal Property Securities Act 1999 (New Zealand) or Personal Property Securities Act 2009 (Australia) (as applicable).

2. QUOTATIONS

2.1 No quotation for Goods will be binding on us if it is not given in writing.

2.2 Any quotation given by us for the Goods will lapse and be invalid if it has not been accepted by you by the date for acceptance specified on the quotation form. If no date for acceptance is given on the quotation form, then the quotation will lapse and be invalid if it has not been accepted by you within 30 days following the date of issue of the quotation.

2.3 We may, but are not required to, agree to extend the date for acceptance of any quotation. No extension will be binding on us unless it has been given in writing.

2.4 We may withdraw a quotation at any time before acceptance by you. No quotation will be binding on us if the quotation was given based on incomplete, inaccurate or misleading information provided by you.

2.5 In the event of any conflict or inconsistency between any terms and conditions of any quotation and these Conditions, the relevant terms and conditions of the quotation will prevail.

2.6 We reserve the right to alter any quotation as a result of circumstances beyond our control.

3. PRICE

3.1 The price for the Goods will be the price set out in the applicable quotation or written order confirmation from us, or as otherwise agreed by the parties in writing. Pricing errors may be corrected at any time. All prices are in New Zealand dollars unless otherwise set out in the applicable quotation or agreed by the parties in writing.

3.2 All prices are exclusive of GST (if any), which will be payable by you to us in addition.

4. ORDERS

4.1 All orders for Goods must be submitted to us via the online ordering process on our website, or by such other means as we may specify or agree with you from time to time. We are not obliged to acknowledge or process any order for Goods not submitted by such means.

4.2 Your acceptance of a written quotation from us, or our written acceptance of an order from you, will create a legally binding order by you for the Goods. You may not cancel any order without our consent, which consent (if any) may be given on such terms as we may determine at our discretion.

5. PAYMENT TERMS

5.1 The invoicing and payment terms for the Goods will be as follows, except as set out in clauses 5.2 and 5.3 or otherwise agreed by the parties in writing:

(a) if you order the Goods online via the online ordering process on our website, you must pay for the Goods at the time of your order; and

(b) for all other orders for Goods, we will invoice you for the Goods prior to delivery, and you must pay all such invoices in full before such delivery.

5.2 If you have a trade account with us, we will invoice you for the Goods on or before delivery, and you must pay all such invoices in full on or before the 20th day of the month following the month in which the invoice was issued. We may at any time and for any reason suspend or cancel that trade account, or modify the invoicing and payment terms applicable to that trade account. Any such modification will only apply to those Goods ordered after the date we notify you of the modification.

5.3 We reserve the right to require you to pay a deposit for any Goods to be provided, and our invoice for any such deposit must be paid in full before we accept an order for those Goods.

5.4 All sums due to us under these Conditions will be paid without deduction or set-off of any kind, to the credit of a bank account to be designated in writing by us, failing which:

(a) we may charge interest on any outstanding amount on a daily basis at an annual rate equivalent to our banker’s standard annual interest rate for commercial overdrafts plus 3%, from the due date until the date of actual payment;

(b) you will reimburse us for all costs and expenses that we incur in connection with any actions or proceedings for recovery of any amounts required to be paid by you, including all reasonable accounting costs, attorney costs (on a solicitor and own client basis), court costs and debt collection costs; and

(c) we may elect to terminate any orders for Goods then in progress, or to suspend any such orders until the failure to pay has been rectified.

6. DELIVERY

6.1 Unless otherwise agreed by the parties in writing:

(a) we will deliver the Goods to the address for delivery in New Zealand or Australia specified by you when you order the Goods; and

(b) we will not deliver any Goods outside New Zealand or Australia.

6.2 In some cases we may agree to make the Goods available for pickup by you or your nominated agent or carrier at an agreed location. In such cases, delivery will be deemed complete when possession of the Goods has passed to you or your nominated agent or carrier.

6.3 You acknowledge and agree that we may deliver the Goods in instalments.

6.4 Unless otherwise agreed by the parties in writing, you will reimburse us for all freight, shipping, insurance, transportation and customs clearance costs and expenses incurred by us in delivering the Goods to you. For online orders, these costs and expenses will be notified to you during the ordering process and will be added to the total price for the Goods. In other cases, we will invoice you for these costs and expenses at the time we invoice you for the Goods.

6.5 Any delivery or lead times given by us are estimates only, and we will not be liable for failure to deliver Goods within any estimate timeframe. Time for delivery will not be of the essence.

6.6 In the event of any delay by you in taking delivery of the Goods, we will be entitled to charge you for our reasonable costs incurred in storing them.

7. FORCE MAJEURE

7.1 We will not be liable for any failure to perform the contract or any part of it due to an event of Force Majeure. We may cancel the order if the cost to us of supplying any Goods is increased materially as a result of such Force Majeure and the parties cannot agree on how the additional cost is to be borne. For the purposes of this clause 7, Force Majeure includes any inability to obtain supplies or labour, industrial disputes, delays, act of God, fire, flood, storm, adverse weather conditions, pandemic or other matters beyond our reasonable control.

8. RISK AND TITLE

8.1 Risk of loss of or damage to the Goods will pass to you as follows

(a) if we deliver the Goods to an address nominated by you, then risk will pass upon delivery of the Goods to that address; and

(b) if we make the Goods available for pickup by you or your nominated agent or carrier, then risk will pass once the Goods have been picked up. If we assist you to load any Goods onto any carrier, then that will be at your own risk.

8.2 Title in the Goods will not pass to you until all Goods provided by us to you have been paid for in full. Until such title passes:

(a) you will keep the Goods clearly identified as our property in a separate part of your premises, in good order and condition, and fully insured with a reputable insurer for their full replacement value;

(b) you will not sell or dispose of the Goods, other than in the ordinary course of your business, and you will hold the proceeds of such sale or disposal in a separate account on trust for us;

(c) you will return the Goods to us immediately if called upon by us to do so; and

(d) we or our agents may, where we have any concerns about your creditworthiness or consider the Goods to be at risk of being destroyed, damaged, endangered, disassembled, removed, concealed, sold, or otherwise disposed of other than in the ordinary course of your business, enter your premises or any other place where the Goods are situated at any time in order to take possession of them, and you will indemnify us and our agents against any claim or demand that may be brought in relation to such entry and taking of possession.

8.3 You acknowledge that clause 8.2 is a Security Agreement that creates a Security Interest in the Goods. You agree that such Security Interest is taken in all present and after-acquired Goods supplied by us to you from time to time and in the Proceeds, as security for all amounts payable by you to us.

8.4 You agree to our registering a Financing Statement to Perfect our Security Interest under these Conditions, and you:

(a) agree to promptly execute any documents and provide any information that we may require from time to time to enable us to Perfect such Security Interest; and

(b) waive your right to receive a verification of such Financing Statement.

8.5 For the avoidance of doubt, the terms Security Agreement, Security Interest, Financing Statement, Perfect and Proceeds set out in this clause 8 will have the meanings set out in the applicable PPSA.

9. WARRANTIES

9.1 We warrant that there are no liens, encumbrances or other interests in the Goods that would prevent title to the Goods passing to you upon payment pursuant to clause 8.2.

9.2 We warrant that the Goods supplied to you will be free from defects in materials and construction.

9.3 No warranty is given for the Goods where any defect results from any of the following:

(a) use, installation, maintenance, modification or alteration of the Goods other than as recommended or authorised in writing by us;

(b) normal wear and tear during normal use of the Goods;

(c) physical damage caused to the Goods following delivery; or

(d) misuse or negligence on the part of any user following delivery.

9.4 Some Goods may be supplied subject to additional warranty limitations or exclusions. These limitations or exclusions will be notified to you prior to sale.

9.5 We will not be obliged to honour any warranty for so long as any amount owing to us for Goods is overdue.

9.6 Any modification of any Goods or attempt by any person to repair any Goods, without our prior written authorisation, will invalidate the warranty in clause 9.2 for those Goods.

9.7 Your sole remedy against us for any Goods that do not comply with the warranty in clause 9.2 will be (at our option and cost) for us to replace such Goods or their defective components, or provide you with a credit for such Goods, provided that:

(a) you must notify us in writing of the non-compliance promptly following the date you first became aware of the non-compliance. You must also provide us with such information as we may reasonably request in relation to your warranty claim; and

(b) you must give us the opportunity to investigate the alleged non-compliance, and you will if we request you to, return to us the relevant Goods (or defective components of them) for the purposes of such inspection.
See https://www.hallmarksurgical.com/returns/ for more details of how to return any Goods to us.

9.8 We will not be obliged to accept the return of any Goods, except in the circumstances set out in clause 9.7, unless they have been sent to you in error or are clinically unsuitable. If we do agree in writing to accept the return of any Goods that are not defective, they must be returned to us in an original, unused, undamaged, resalable, unsoiled condition.

9.9 You acknowledge that except as expressly provided in these Conditions, and subject to clause 10, we give no warranties in relation to the Goods, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result. All statements, technical information and recommendations about the Goods are believed to be reliable, but do not constitute a guarantee or warranty.

10. CONSUMER LAWS

10.1 We acknowledge that the Goods come with guarantees that cannot be excluded under the Consumer Guarantees Act 1993 (New Zealand) (CGA) or the Australian Competition and Consumer Act (2010) (including the Australian Consumer Law) (ACL). These guarantees include a guarantee that the products will be of acceptable quality. Nothing in these Conditions purports to modify or exclude any of the conditions, warranties and undertakings, and other legal rights or remedies you may have under the CGA or ACL.

10.2 If the Goods are acquired by you for the purposes of a business, then you agree that the guarantees provided under the CGA will not apply. We do not otherwise seek to exclude any liability under the CGA.

11. LIABILITY

11.1 In no event will we be liable (whether in contract, tort, negligence or in any other way) to you for:

(a) loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or

(b) loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature,
arising directly or indirectly from any Goods supplied by us to you.

11.2 In no event will our total liability under any claim of whatever nature arising directly or indirectly from the Goods supplied by us to you exceed the price paid by you for the specific Goods to which the relevant claim relates.

11.3 None of the exclusions or limitations set out in these Conditions will have the effect of limiting or excluding any form of liability where such liability cannot be so limited or excluded under applicable law.

12. GENERAL

12.1 These Conditions embody the entire agreement of the parties in relation to the subject matter of these Conditions and supersede all prior understandings, communications and representations between the parties, whether oral or written.

12.2 You may not assign, transfer or sub-contract any of your rights or obligations under these Conditions, without first obtaining our written consent.

12.3 No amendment to these Conditions will be effective unless in writing and signed by an authorised representative of both parties.

12.4 The United Nations Convention on Agreements for the International Sale of Goods will not apply to the supply of any Goods under these Conditions.

12.5 These Conditions will be governed by the laws of New Zealand, and the parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.