Sunshine Dental Laboratory Pty Ltd – Terms & Conditions of Trade
1. Definitions
1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments
expressed to be supplemental to this Contract.
1.2 “Manufacturer” means Sunshine Dental Laboratory Pty Ltd ATF The S.D.L Trust T/A Sunshine Dental Laboratory Pty Ltd, its successors and
assigns or any person acting on behalf of and with the authority of Sunshine Dental Laboratory Pty Ltd ATF The S.D.L Trust T/A Sunshine Dental
Laboratory Pty Ltd.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Manufacturer to provide
the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a part of a trust, shall be bound in their capacity as a trustee; and
(c) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Incidental Items” means any treatments, goods, documents or materials supplied, consumed, created or deposited incidentally by the
Manufacturer in the course of it conducting, or supplying to the Client, any Services.
1.5 “Services” mean all Services supplied by the Manufacturer to the Client at the Client’s request from time to time.
1.6 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this
Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client
information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic
contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous
credit applications, credit history) and pricing details.
1.7 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal
Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does
not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable /
disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.
1.8 “Fee” means the price payable (plus any GST where applicable) for the Services as agreed between the Manufacturer and the Client in
accordance with clause 4 of this contract.
1.9 “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2. Acceptance
2.1 Any instructions received by the Manufacturer from the Client for the provision of treatments (including the making of an appointment with the
Manufacturer) and/or the Client’s acceptance of treatments provided by the Manufacturer shall constitute acceptance of the terms and conditions
contained herein.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties
have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client undertakes to give the Manufacturer at least fourteen (14) days’ notice of any change in the Client’s name, address and/or any other
change in the Client’s details, the patient shall be liable for any losses or costs incurred by the Manufacturer as a result of the Client’s failure to
comply with this clause.
2.5 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic
Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that the Manufacturer shall, without prejudice, accept no liability in respect of any alleged or actual error(s)
and/or omission(s):
(a) resulting from an inadvertent mistake made by the Manufacturer in the formation and/or administration of this contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Manufacturer in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct
of the Manufacturer; the Client shall not be entitled to treat this contract as repudiated nor render it invalid.
4. Fee and Payment
4.1 At the Manufacturer’s sole discretion, the Fee shall be either:
(a) as indicated on invoices provided by the Manufacturer to the Client in respect of treatments provided; or
(b) the Manufacturer’s specified Fee as applicable to the individual Treatment Plan offered to and accepted by, or on the behalf of, the Client. All
Treatment Plan offers are only valid for thirty (30) days from the date when they are first offered to the Client and are subject to Fee review if
the Client wishes to accept a Treatment Plan after that period.
4.2 The Client acknowledges that the Manufacturer shall be entitled to vary the Manufacturer’s Fee where the Client requests any change to the
treatments which are to be provided by the Manufacturer, or where the Manufacturer is required to revise the Fee due to circumstances beyond
the reasonable control of the Manufacturer such as variations to the cost of materials and or labour (in which event the Manufacturer undertakes
to immediately advise the Client revised Fees before the provision of any further treatment(s)).
4.3 Time for payment for the Services being of the essence, the Fee’s will be payable by the Client on the date/s determined by the Manufacturer,
which may be:
(a) the first (1st) day following the end of the month in which a statement is posted to the Client’s address or address for notices;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is thirty (30) days following the date of any invoice given to the Client by the Manufacturer.
4.4 Payment will be made by cheque, or by bank cheque, or by Electronic/On-line banking, or by credit card (a surcharge may apply per transaction),
or by any other method as agreed to between the Client and the Manufacturer.
4.5 The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by the Manufacturer
nor to withhold payment of any invoice because part of that invoice is in dispute.
4.6 GST and other taxes and duties that may be applicable shall be added to the Fee except when they are expressly included in the Fee.
5. Provision of the Services
5.1 At the Manufacturer’s sole discretion provision of the Services shall take deemed to be completed once the Incidental Items are supplied to the
Client at the Client’s nominated address.
5.2 At the Manufacturer’s sole discretion the cost of Delivery is either included in or is in addition to the Fee.
5.3 The Manufacturer may provide the treatments by separate instalments. Each separate instalment shall be invoiced and paid for in accordance
with the provisions in these terms and conditions.
5.4 Any time or date given by the Manufacturer to the Client is an estimate only. The Client must still accept delivery of the Goods/treatments even if
late and the Manufacturer will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
6. Risk
6.1 Irrespective of whether the Manufacturer retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such
items are delivered to the Client and shall remain with the Client until such time as the Manufacturer may repossess the Incidental Items in
accordance with clause 8.3(f). The Client must insure all Incidental Items on or before delivery.
6.2 The Manufacturer reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental
Items as a result of the Client’s failure to insure in accordance with clause 6.1.
7. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
7.1 The Client must inspect the Manufacturer’s Services on completion and must within seven (7) days of such time notify the Manufacturer in writing
of any evident defect/damage, shortage in quantity, error or omission, or failure to comply with the Quotation or this Contract. The Client must
notify any other alleged defect in the Manufacturer’s Services or Incidental Items as soon as is reasonably possible after any such defect
becomes evident. Upon such notification the Client must allow the Manufacturer to inspect/review the Services or Incidental Items that were
provided.
7.2 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).
7.3 The Manufacturer acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
7.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Manufacturer makes no warranties
or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. The
Manufacturer’s liability in respect of these warranties is limited to the fullest extent permitted by law.
7.5 If the Client is a consumer within the meaning of the CCA, the Manufacturer’s liability is limited to the extent permitted by section 64A of Schedule
2.
7.6 If the Manufacturer is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do
so, then the Manufacturer may refund any money the Client has paid for the Services but only to the extent that such refund shall take into
account the value of Services and Incidental Items which have been provided to the Client which were not defective.
7.7 If the Client is not a consumer within the meaning of the CCA, the Manufacturer’s liability for any defective Services or Incidental Items is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Manufacturer at the Manufacturer’s sole discretion;
(b) otherwise negated absolutely.
7.8 Notwithstanding clauses 7.1 to 7.7 but subject to the CCA, the Manufacturer 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 Incidental Items;
(b) the Client using the Incidental Items for any purpose other than that for which they were designed;
(c) the Client continuing to use any Incidental Items after any defect became apparent or should have become apparent to a reasonably prudent
operator or user;
(d) interference with the Services by the Client or any third party without the Manufacturer’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by the Manufacturer;
(f) fair wear and tear, any accident, or act of God.
7.9 Nothing in this Contract is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States
and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where
applicable.
7.10 Subject to clause 7.1, customised, or non-stocklist items or Incidental Items made or ordered to the Client’s specifications are not acceptable for
credit or return.
8. Title
8.1 The Manufacturer and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership
shall not pass until:
(a) the Client has paid the Manufacturer all amounts owing for the Services; and
(b) the Client has met all other obligations due by the Client to the Manufacturer in respect of all contracts between the Manufacturer and the
Client.
8.2 Receipt by the Manufacturer 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 the Manufacturer’s ownership or rights in respect of the incidental items shall continue.
8.3 It is further agreed that:
(a) the Client is only a bailee of the Incidental Items and must return the Incidental Items to the Manufacturer immediately upon request by the
Manufacturer;
(b) the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for the Manufacturer and must pay to the Manufacturer the
proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes or parts with
possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for the Manufacturer and
must pay or deliver the proceeds to the Manufacturer on demand.
(d) the Client should not convert or process the Incidental Items or intermix them with other goods, but if the Client does so then the Client holds
the resulting product on trust for the benefit of the Manufacturer and must dispose of or return the resulting product to the Manufacturer as the
Manufacturer so directs.
(e) the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental
Items while they remain the property of the Manufacturer;
(f) the Client irrevocably authorises the Manufacturer to enter any premises where the Manufacturer believes the Incidental Items are kept and
recover possession of the Incidental Items.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the
PPSA.
9.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security
agreement for the purposes of the PPSA and creates a security interest in all Incidental Items and/or collateral (account) – being a monetary
obligation of the Client to the Manufacturer for Services – that have previously been supplied and that will be supplied in the future by the
Manufacturer to the Client.
9.3 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 the Manufacturer 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 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Manufacturer 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 Incidental Items charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Manufacturer;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or
collateral (account) in favour of a third party without the prior written consent of the Manufacturer.
9.4 The Manufacturer 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.
9.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by the Manufacturer, the Client waives their right to receive a verification statement in accordance with
section 157 of the PPSA.
9.8 The Client must unconditionally ratify any actions taken by the Manufacturer under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of
the provisions of the PPSA.
10. Intellectual Property
10.1 Where the Manufacturer has designed, drawn or developed Incidental Items for the Client, then the copyright in any designs and drawings and
documents shall remain the property of the Manufacturer. Under no circumstances may such designs, drawings and documents be used without
the express written approval of the Manufacturer.
10.2 The Client agrees that the Manufacturer may (at no cost) use for the purposes of marketing or entry into any competition, any documents,
designs, or digital images of the Incidental Items which the Manufacturer has created for the Client.
11. Default and Consequences of Default
11.1 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 the Manufacturer’s sole discretion such interest shall compound monthly at such a rate) after as well
as before any judgment.
11.2 If the Client owes the Manufacturer any money the Client shall indemnify the Manufacturer from and against all costs and disbursements incurred
by the Manufacturer in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis,
the Manufacturer’s contract default fee, and bank dishonour fees).
11.3 Further to any other rights or remedies the Manufacturer may have under this contract, if a Client has made payment to the Manufacturer by
credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any
further costs incurred by the Manufacturer under this clause 11 where it can be proven that such reversal is found to be illegal, fraudulent or in
contravention to the Client’s obligations under this Contract.
12. Cancellation
12.1 Without prejudice to any other remedies the Manufacturer may have, if at any time the Client is in breach of any obligation (including those
relating to payment) under these terms and conditions the Manufacturer may suspend or terminate the supply of Services to the Client. The
Manufacturer will not be liable to the Client for any loss or damage the Client suffers because the Manufacturer has exercised its rights under this
clause.
12.2 The Manufacturer may cancel any contract to which these terms and conditions apply or cancel the provision of the treatments at any time by
giving notice to the Client. On giving such notice the Manufacturer shall repay to the Client any sums already paid to the Manufacturer in respect
of the Fee, less any amount owing by the Client to the Manufacturer for treatments already provided. The Manufacturer shall not be liable for any
loss or damage whatsoever arising from such cancellation.
12.3 The Manufacturer requires no less than five (5) days’ notice that the Client wishes to either cancel or reschedule an appointment where the
scheduled appointment is for two (2) hours or longer, for all other appointments the Manufacturer requires no less than twenty-four (24) hours’
notice that the Client wishes to either cancel or reschedule the appointment (notice shall not be accepted if given on weekends or public
holidays). Appointments cancelled with less than the required notice will (at the Manufacturer’s sole discretion) incur a broken appointment fee
equal to the FULL cost of the booked appointment.
12.4 In the event that the Client wishes to cancel the provision of treatments after treatments by the Manufacturer have already commenced then the
Client shall be liable to pay the Manufacturer for all treatments already provided (including any loss of profits).
13. Privacy Policy
13.1 All emails, documents, images or other recorded information held or used by the Manufacturer is Personal Information, as defined and referred to
in clause 15.3, and therefore considered Confidential Information. The Manufacturer acknowledges its obligation in relation to the handling, use,
disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy
Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”),
under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The
Manufacturer acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held
by the Manufacturer that may result in serious harm to the Client, the Manufacturer will notify the Client in accordance with the Act and/or the
GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by
the Client by written consent, unless subject to an operation of law.
13.2 Notwithstanding clause 15.1, privacy limitations will extend to the Manufacturer in respect of Cookies where transactions for purchases/orders
transpire directly from the Manufacturer’s website. The Manufacturer agrees to display reference to such Cookies and/or similar tracking
technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to the Manufacturer when the Manufacturer sends an email to the Client, so the Manufacturer may collect and review
that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies
first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via the Manufacturer’s website.
13.3 The Client agrees for the Manufacturer to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g.
name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or
next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit
provided by the Manufacturer.
13.4 The Client agrees that the Manufacturer may exchange information about the Client with those credit providers and with related body corporates
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 including the Client’s repayment history in the preceding two (2) years.
13.5 The Client consents to the Manufacturer being given a consumer credit report to collect overdue payment on commercial credit.
13.6 The Client agrees that personal credit information provided may be used and retained by the Manufacturer for the following purposes (and for
other agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
13.7 The Manufacturer may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
13.8 The information given to the CRB may include:
(a) Personal Information as outlined in 15.3 above;
(b) name of the credit provider and that the Manufacturer is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and
the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60)
days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client
no longer has any overdue accounts and the Manufacturer has been paid or otherwise discharged and all details surrounding that
discharge(e.g. dates of payments);
(g) information that, in the opinion of the Manufacturer, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
13.9 The Client shall have the right to request (by e-mail) from the Manufacturer:
(a) a copy of the Personal Information about the Client retained by the Manufacturer and the right to request that the Manufacturer correct any
incorrect Personal Information; and
(b) that the Manufacturer does not disclose any Personal Information about the Client for the purpose of direct marketing.
13.10 The Manufacturer will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order
to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
13.11 The Client can make a privacy complaint by contacting the Manufacturer via e-mail. The Manufacturer will respond to that complaint within seven
(7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In
the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at
​
14. General
14.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it
affect that party’s right to subsequently enforce that provision. 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.
14.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which the
Manufacturer has its principal place of business, and are subject to the jurisdiction of the courts in Maroochydore.
14.3 The Manufacturer 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 the Manufacturer of these terms and conditions (alternatively the Manufacturer’s liability
shall be limited to damages which under no circumstances shall exceed the Fee of the Services).
14.4 The Manufacturer may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract
by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Manufacturer’s subcontractors
without the authority of the Manufacturer.
14.5 The Client agrees that the Manufacturer may amend their general terms and conditions for subsequent future contracts with the Client by
disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or
otherwise at such time as the Client makes a further request for the Manufacturer to provide Services to the Client.
14.6 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.
14.7 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so,
they are not insolvent and that this Contract creates binding and valid legal obligations on them.