Terms and Conditions of Sale
The goods and services described on this website are available for you to make an offer to us via our website to purchase at the specified price, and should we accept your offer, we will sell the goods or services to you in accordance with these Terms and Conditions of Sale.
Unless the context otherwise requires:
• the terms “our”, “us” or “we” refer to Proactive Injury Management Solutions Pty Ltd (ABN 18 101 253 874) trading as Perceptive Health;
• the terms “you” or “your” refer to the user or viewer of our website and, where applicable, the purchaser of goods or services on our website;
• "Order" means an offer made by you in response to an invitation to treat made by us via our website;
• words importing the singular include the plural and vice-versa;
• the word ‘includes’ or ‘including’ is not a word of limitation;
• no rule of construction applies to our disadvantage because we prepared these Terms and Conditions of Sale;
• headings are for convenience only and do not affect the interpretation of these Terms and Conditions of Sale;
• the term ‘person’ includes a company, association, partnership, joint venture and trust; and
• all references to “$” or “Dollars” or “AUD” on our website refer to Australian Dollars.
Orders and Cancellations
We do not publish, make or authorise any offer or representation on this website and we do not represent that any goods or services displayed or advertised for sale on this website will be available at the specified price, or at all. The display and advertising of goods and services for sale on our website is an invitation to treat and does not constitute an offer by us to provide same to you at the specified price, or at all.
You may make an offer to us via our website to purchase goods and services at the specified price, subject to these Terms and Conditions of Sale.
A contract shall only be or be deemed to have been entered into between us and you when:
• you place an electronic Order on our website in accordance with the procedures on the website (including but not limited to clicking ‘I accept’ on these Terms and Conditions of Sale and making the relevant payment); and
• we accept the Order (which may be done in writing, verbally, or by us delivering the goods or performing the services).
You will receive an email confirmation from us as soon as practicable after you have confirmed your Order and made the relevant payment. If, however, your Order is not accepted by us or if we cannot supply the goods or services the subject of the Order, then we will notify you by telephone or email and arrange for a full refund of any payment made by you.
We may refuse to accept an Order, or cancel a contract at any time prior to supply of the goods or services, in our absolute discretion without having any liability to you apart from refunding any amounts already paid by you. Without limiting the foregoing, we may reject an Order if there has been:
• an error in the advertised price displayed on our website;
• a misdescription of the goods or services on our website; or
• an error in your Order.
Unless otherwise stated, you cannot unilaterally cancel, amend or revoke an Order or contract once it is made. You agree that we:
• may act on and process all completed electronic instructions transmitted or issued by you through the website without further consent from or reference to you; and
• may treat an electronic instruction as authentic and we are under no obligation to investigate the authenticity or authority of persons issuing or transmitting such electronic instructions, or to verify the accuracy and completeness of such electronic instructions.
Prices and Payments
Unless otherwise stated, all prices displayed on our website are expressed in Australian Dollars and are exclusive of GST. If GST is applicable then you must pay such GST in addition to the amount payable at the same time as the amount to which it relates is payable. Delivery and handling charges for goods sold on our website may be charged separately and in addition to the quoted prices.
All prices on our website are subject to change without notice to you. We reserve the right to correct any errors in prices published on our website.
Unless otherwise stated, all payments must be made in full through our website prior to supply of the goods or services. All payments made via the website will be subject to the terms and conditions of relevant third party service providers. Where payment is made by credit card, merchant fees may apply.
If however we provide you with a customised quote we may agree to you paying an upfront deposit with the balance to be paid before or after delivery of the goods or services. All payments must be made in accordance with the payment terms specified in the invoice, or if no payment terms are specified then within 30 days from the date of the relevant Invoice. All times for payment of all amounts are of the essence. If you fail to make payment by the due date then, without prejudice to any other rights or remedies we may have:
• we may charge interest on the overdue amount at the rate of 10% per annum, calculated daily, for the relevant period; and/or
• we may suspend performance of our obligations and render an invoice to you for the value of the services performed or goods supplied to date, together with any other fees you are liable to pay.
Unless otherwise stated, any accessories shown in any images of goods are not included in the price and are sold separately.
Supply and Delivery
Subject to our acceptance of your Order and your compliance with these Terms and Conditions of Sale, we will supply the goods and/or services to you as shown on your Order confirmation.
Unless otherwise stated, all services will be provided online via appropriate software such as Zoom, Skype, or similar software (as agreed by us in advance) which will allow us and you to communicate online using audio-visual technology. It is a condition of the supply of the services that you have appropriate software installed on your device for these purposes. We shall not be liable to you for any failure to deliver the services due to any software errors (including software incompatibility with your device) or failure by you to install the agreed software.
Where online delivery of the services is impracticable, we may agree to perform the services at an agreed physical location such as your home or workplace. It is your responsibility to ensure that your home or workplace is safe, free of hazards and suitable for performance of the services. We make no representation or warranty that your home or workplace will be suitable for performance of the services. If we determine (acting reasonably) that the place where the services are to be performed is unsafe or unsuitable, then you will be responsible for remediating any safety hazard and ensuring such place is suitable so that the services can be safely performed. We may suspend performance of our obligations until such time as any safety hazards have been safely remediated and the place is suitable for provision of the services.
When you order goods through our website you will be prompted to provide the delivery address for the goods. The delivery address must be an address within Australia and cannot be a PO Box. If you wish to change the delivery date or delivery address you must contact us prior to dispatch of the goods. We shall not be liable for any loss or damage of any kind suffered by you due to any incorrect address details provided by you. We will also not be liable for any failure to deliver or delay in delivery of goods caused by any third party delivery contractor engaged by us.
Although we will use our reasonable endeavours to supply the goods or services by the due date specified in the contract, this time is not of the essence. Deliveries and supplies of goods at any time are subject to availability of stock and we will not be liable to you for any loss or damage of any kind due to product unavailability. To the fullest extent permitted by law, we shall not be liable to you for any loss or damage of any kind suffered or incurred by you as a result of our failure to deliver and/or supply the goods or services or for any delay in delivery and/or supply of the goods or services. If we quote a time for delivery or supply, it is an estimate only.
You will not be relieved of any obligation to accept or pay for the goods or services because of any delay in delivery or supply.
We may suspend the supply or delivery of the goods or services or terminate a contract if you fail to comply with these Terms and Conditions of Sale.
Retention of Title
Risk in respect of loss, damage or destruction of any goods supplied passes to you upon delivery. Despite the passing of risk, we retain full title to the goods until such time as all payments due by you under the relevant contract are received by us. We reserve the right, in the event of non-payment of any amounts due under the relevant contract, to retrieve the goods from you including by entering any premises where the goods are located, and you agree that we are not liable for trespass or for any damage caused in removing the goods from the premises. If it is or becomes necessary to register this clause or the relevant contract on the Personal Property Securities Register in order to give effect to the retention of title created by this clause, then you agree to promptly sign such reasonable documentation and promptly perform all reasonable acts necessary in order to enable us to register the security interest created hereby.
Suspension and Termination
If you default or delay in performing any of your obligations under a contract then, in addition to and without prejudice to any other rights or remedies we may have (including exercising a right of termination after suspension), we may suspend the performance of our obligations under the relevant contract (and also under any other contract or agreement between us and you) until such breach is rectified without (to the fullest extent permitted by law) being liable to you for any loss or damage of any kind suffered by you as a result of such suspension.
If a party: (i) has a receiver, receiver and manager, administrator, liquidator, provisional liquidator or any form of external controller appointed to or over it or in respect of any of its assets; (ii) becomes bankrupt, insolvent or is wound-up; (iii) has a resolution passed for its winding-up, commits an act of insolvency or bankruptcy, or has an application or order made to a court for its winding-up; (iv) enters into any scheme, compromise or arrangement with its creditors; (v) breaches an essential term of the contract; (vi) breaches a term of the contract that is not capable of remedy; or (vii) subject to the foregoing, breaches a term of the contract that is capable of remedy but is not so remedied within 14 days of written demand, then the other party by written notice may terminate the contract immediately.
Termination of a contract shall not affect any provision of the contract expressed or capable of operating or having effect subsequent to termination and shall be without prejudice to any accrued right or remedy of a party in relation to any breach of or default by the other party occurring prior to termination.
Guests and Registered Users
You may access and/or use the website as a guest.
If we allow you to become a member of this website, then you must provide your:
• telephone number
• valid email address (only one registration per email address)
• nominated password (which must conform with our requirements concerning password security)
In registering as a member you warrant that the information you have provided is accurate and complete. You indemnify us against any loss or damage arising from the information you supplied being inaccurate or incomplete. You agree to keep your membership details current at all times by updating your account details (where necessary) via the website.
You must not use another member’s account without permission.
You must keep your password secure as you are solely responsible for any activity on your account. You agree to notify us immediately if you become aware of any security breach or any unauthorised use of your password or account.
We reserve the right to terminate your account without notice for any reason whatsoever including, without limitation, if you breach these terms.
Capacity and Authority
You must be at least eighteen (18) years’ old to register as a member or to purchase goods or services on our website.
If you submit an Order and/or make a purchase on this website then you warrant to us that you:
• are at least eighteen (18) years’ old;
• are authorised to make the purchase on behalf of the customer stated in the Order;
• accept these Terms and Conditions of Sale; and
• agree that you have entered into a contract with us, and that these Terms and Conditions of Sale, together with the relevant Order, constitute the entire agreement between us and you in connection with the supply of the goods or services.
Limitation of Liability
To the fullest extent permitted by law:
• all express and implied warranties, terms and conditions in relation to our obligations including those implied by use, trade, custom or otherwise are hereby excluded;
• we do not warrant that the goods or services are suitable for any use or purpose;
• we shall not be liable to the you for any consequential, special, incidental or other indirect loss or damage including loss of profit, loss of opportunity, business, revenue, goodwill or anticipated savings arising out of the performance, non-performance or defective performance of our obligations irrespective of whether or not we were made aware of the possibility of such loss or damage;
• you must use your best endeavours to mitigate any loss or damage you suffer or incur arising from any contract;
• we shall not be liable for any injury, illness or death of any person or damage to or loss of real or personal property arising from or relating to the supply of goods or services by us to you; and
• subject to all of the foregoing, our maximum liability to you whether under contract, in tort (including due to negligence) or otherwise is limited at our election to: (a) in the case of goods, replacing or re-supplying the goods or paying for the cost of replacing or re-supplying the goods; (b) in the case of services, supplying the services again or paying for the cost of having the services supplied again; or (c) refunding you any amounts paid under the relevant contract (but not any GST paid by you).
For clarity, where our liability under any provision of these Terms and Conditions of Sale is expressed to be “to the fullest extent permitted by law”, then to the extent such liability cannot be fully excluded, our maximum liability under such provisions is limited as set out in this clause. Nothing in these Terms and Conditions of Sale is intended to exclude, restrict or modify any of our statutory obligations that cannot be lawfully excluded, restricted or modified.
To the fullest extent permitted by law, you agree to indemnify us and keep us indemnified from and against all claims, demands, suits, actions, litigation, judgments, proceedings, losses, costs, damages, liabilities and expenses (including legal costs and disbursements on the higher of a solicitor/own client or full indemnity basis as well as any debt collection agency fees on a full indemnity basis) of whatever description that may be suffered, paid, incurred, instituted or defended by us, resulting from or arising out of:
• any breach of these Terms and Conditions of Sale by you; and
• any negligent or wilful act or omission by you.
Australian Consumer Law
If you acquire the goods or services from us as a “consumer” within the meaning of that term in the Australian Consumer Law, then the following applies:
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:
• to cancel your service contract with us; and
• 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.
In respect of the Personal Property Securities Act (“PPSA”): (a) each contract and all relevant tax invoices constitute a “security agreement” for the purposes of the PPSA; (b) for the purposes of s115 of the PPSA, the parties agree that to the fullest extent permitted by law, they have agreed to contract out of ss95, 117, 118, 120, 121(4), 123, 125, 128, 129, 130, 132(3)(d), 132(4), 134, 135, 142 and 143 of the PPSA and contract out of all matters permitted to be contracted out of pursuant to s115(7) of the PPSA; and (c) to the fullest extent permitted by law, you hereby waive your right to receive any notice under s157 of the PPSA pursuant to s157(3)(b) of the PPSA.
Trade Credit and Privacy
We may in our absolute discretion provide you with trade credit in respect of any purchase of goods or services from our website. If we provide you with trade credit then, to the fullest extent permitted by law, you agree that:
• we may make such enquiries as we see fit in order to satisfy ourselves as to your creditworthiness and to assess any application for trade credit;
• the enquiries we may make may include applying to and obtaining from any credit reporting agency a credit report in respect of you which may contain personal information, in accordance with the Privacy Act 1988 (Cth) (“Privacy Act”), and to obtain a report containing information from a person or business which provides information about the commercial creditworthiness of a person in relation to credit provided by us, in accordance with the Privacy Act;
• we are authorised in terms of the Privacy Act to disclose information from a report received by us and to exchange information with other credit providers for the purpose of notifying other credit providers of any default by you, assessing an application for credit by you, assessing your creditworthiness and for any other purpose as permitted by the Privacy Act;
• we may give information about you or your business to a credit reporting agency for the purpose of obtaining a credit report and/or to allow the credit reporting agency to create or maintain a credit information file about you or your business including details of any default by you; and
• you consent to us disclosing your information to a credit reporting agency as outlined above.
If by reason of any fact, circumstance, matter or thing beyond our reasonable control (including but not limited to any electronic, mechanical, software, computer or telecommunications failure or interruption or any interruption to the electrical supply, electronic or bank payment system or postal service – “Force Majeure Event”) we are unable to perform in whole or in part any obligation under a contract between us and you, then we shall be relieved of that obligation to the extent and for the period that we are unable to perform and, to the fullest extent permitted by law, we shall not be liable to you for any loss or damage of any kind suffered by you arising out of such inability to perform.
Should a Force Majeure Event prevent, delay or hinder us directly or indirectly from performing our obligations under a contract, then, at our election, either the due date for delivery or supply of the goods or services shall be extended until the Force Majeure Event has ceased or we may cancel the contract. You shall not be entitled to cancel any contract due to any delay arising from a Force Majeure Event. To the fullest extent permitted by law, we shall not be liable for any loss or damage of any kind suffered by you due to the resultant delay or cancellation of a contract.
Any provision of these Terms and Conditions of Sale which is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability, without invalidating the remaining provisions of these terms or affecting the validity or enforceability of that provision in any other jurisdiction.
The failure to exercise or delay in exercising by any party of any right conferred by these Terms and Conditions of Sale or at law shall not operate as a waiver thereof, and the single or partial exercise of any right by that party shall not preclude any other or further exercise of that or any other right by that party.
You cannot assign any of your rights or obligations under an Order or contract.
We may sub-contract or assign any of our rights or obligations under a contract without requiring your consent.
These Terms and Conditions of Sale are governed by, and you agree to submit to, the laws applicable in the State of New South Wales, Australia.
If you access this website in a jurisdiction other than New South Wales, Australia, you are responsible for compliance with the laws of that jurisdiction, to the extent that they apply. We make no representation or warranty that the content of this website comply with the laws of any country outside Australia.
You agree to submit to the jurisdiction of the courts of New South Wales, Australia and any Federal Courts of Australia in respect of any legal action or proceedings with respect to these Terms and Conditions of Sale.