Terms & Conditions
General Terms & Conditions of Sales - HOYA Surgical Optics Australia Pty. Ltd., Version 1.0, August 2025
1. Defintions:
(a) Agreement means the contract between HOYA and the Customer which is set out in the Customer Agreement (including any schedule to it) and these Terms;
(b) Australian Consumer Law means Schedule 2 to the Competition and Consumer Act (as amended or replaced from time to time);
(c) Competition and Consumer Act means the Competition and Consumer Act 2010 (Cth) (as amended or replaced from time to time);
(d) Customer means the party who enters into these Terms with HOYA, for the supply of Goods from HOYA to the Customer;
(e) Customer Agreement means the form titled “Sales and Purchase Agreement” submitted to the Customer by HOYA and includes any such form submitted online through HOYA’s website;
(f) Effective Date means the date on which the Customer Agreement is accepted by the Customer (either by signing or by its conduct including by issuing any purchase order) and a representative of HOYA (or if the Customer Agreement has been submitted online, when HOYA has provided the Customer with an order confirmation or commences providing the Goods).
(g) Goods means ”Products” supplied by HOYA to the Customer pursuant to these Terms;
(h) HOYA means Hoya Surgical Optics Australia Pty. Ltd. with ABN: 76 688 173 337;
(i) Terms means these terms of trade.
2. Acceptance:
These Terms will apply to all Goods provided by HOYA. The acceptance of any purchase order by HOYA is expressly conditional upon the Customer’s acceptance of these Terms. These Terms replace any additional or conflicting terms that may appear in the Customer’s purchase order, documents, or communications related to the order or goods. By accepting any part of the Goods, or by making any payment for them, the Customer is deemed to have agreed to these Terms. These Terms cannot be modified, replaced, or waived except through a written agreement signed by an authorized representative of HOYA. Any established business practices between HOYA and the Customer will not modify or override these terms. If the Customer includes any conflicting terms in their documents, HOYA’s failure to object to those terms shall not be interpreted as acceptance of or agreement to them. For invoices, any discrepancies must be communicated to HOYA within two (2) days of receiving the invoice. If no such communication is received within this timeframe, the invoice will be considered as accepted by the Customer.
3. Term and Termination:
(a) Term: The Agreement will commence on the Effective Date and continue until the earlier of:
(i) earlier termination as provided in these Terms.; or
(ii) the Expiry Date (set out in the Customer Agreement). Upon reaching the Expiry Date, the Agreement will automatically renew on an annual basis for up to three (3) additional years. Notwithstanding the foregoing, HOYA may terminate the Agreement at any time by giving thirty (30) days’ written notice.
(b) Termination: Either Party may terminate the Agreement upon giving thirty (30) days’ prior written notice to the other Party. HOYA may terminate the Agreement immediately and without prior notice if Customer refuses to make any payment more than 30 days or the Customer becomes insolvent or bankrupt, or any court action is threatened or commenced (or resolution proposed or passed) to place that party under any form of bankruptcy, insolvency, administration, receivership or liquidation.
(c) Effects of Termination: Upon termination of the Agreement, all rights and duties of the parties toward each other shall cease except:
(i) termination of the Agreement does not affect the accrued rights of the parties as at the date of termination;
(ii) that the Customer shall be obligated to pay all amounts owed to HOYA, if any, and any invoices issued by HOYA within thirty (30) days from the effective date of termination of the Agreement; and
(iii) Survival: the Sections 3, 4, 5, 6, 7, 8 and 11 shall survive the termination of the Agreement.
4. Delivery and Risk:
(a) The Goods shall be delivered under the standard practice of HOYA, which may include delivery by HOYA or its designated third party service provider from its warehouse. HOYA shall use its reasonable effort to fulfil the orders. Risk of the Goods shall pass to Customer upon delivery by HOYA or its designated third party service provider to Customer. The Customer shall be responsible for any loss, theft, or damage to consignment Goods while in its possession and shall reimburse HOYA. The Customer shall maintain insurance coverage for consignment Goods in its possession for their full insurable or replacement value. Title to the Goods shall remain with Hoya until the earlier of (i) full payment by Customer, or (ii) in the case of consignment Goods, the use of the Goods, including implantation, opening of packaging, or other forms of consumption by the Customer, which shall constitute deemed use of the Products and result in the transfer of title and associated risks to Customer. HOYA reserves the right to audit the Customer’s consignment inventory upon reasonable notice to verify stock levels and usage. Customer shall cooperate with HOYA or its designated third party service provider to return any unused Product as requested by HOYA. Goods shall be stored as per the instruction for use or as guided by HOYA.
(b) The supply of Goods is subject to availability, and HOYA reserves the right to suspend or discontinue the supply of Goods to the Customer.
(c) Where a time for delivery is agreed, HOYA will take all reasonable action to deliver the Goods on time, but time shall in no circumstances be deemed of the essence, and HOYA shall not be liable for any loss or damages suffered by the Customer arising out of, or in relation to, a delay in delivery by HOYA.
(d) The Customer must effect and maintain insurance with a recognised and reputable public insurance company for Goods for their full insurable or replacement value (whichever is the higher) from delivery of the Goods to the Customer until the time title in the Goods passes to the Customer.
(e) Priority delivery charges may apply for urgent delivery. For further details, please contact the HOYA representative at the email address listed in the “Parties Contacts” column of the Customer Agreement.
5. Price and Payment:
The price of HOYA’s Goods shall be the price set out in HOYA’s price list from time to time, or, where applicable, in accordance with regulatory pricing requirements such as the Australian Government’s Prescribed List of Medical Devices and Human Tissue Products (“Prescribed List”). The Terms of Payment are outlined in the Customer Agreement with the Customer. If not stated, payment shall be made without deduction within 7 days from the date of invoice, or as otherwise agreed in writing between HOYA and the Customer. All costs and expenses incurred by HOYA in connection with the collection of overdue payments (including, without limitation, reasonable attorney's fees, court costs, and other expenses of litigation) shall be borne by the Customer. HOYA reserves the right, at its sole discretion, to apply open credits on the Customer’s account, including rebate credits, to offset any outstanding past-due amounts owed by the Customer.
6. Product Warranty and Usage Restrictions:
HOYA warrants that the Goods shall conform to the specifications as stated in the packaging provided its usage is solely for its intended purpose and to be used within the stated shelf life and maintenance. Customer is not permitted to resell the Goods.
7. Limitation and Liability:
(a) The Customer acknowledges, agrees, represents and warrants that:
(i) the use of the Goods is outside the control of HOYA, and the Customer is satisfied that the Goods have (unless the Goods are returned pursuant to clause 9) the condition, characteristics, quality and attributes that will make them suitable or fit for any ordinary or special purpose required for those Goods, even if that purpose was made known to HOYA;
(ii) the Customer has or will in a timely manner conduct all mandatory or prudent tests and apply all mandatory or prudent quality control checks and procedures to ensure the Goods and any product that is produced from or incorporates them will be without defect and suitable or fit for any purpose required for them; and
(iii) it has not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by HOYA or anyone on its behalf, or apparently on its behalf, in respect of the Goods, other than those that are expressly contained in these Terms.
(b) Subject to the remainder of this clause 7, HOYA offers no guarantee or warranty in respect of the Goods it supplies to the Customer, and all representations, conditions and warranties of any nature made in relation to the Goods are expressly excluded from these Terms and shall not bind HOYA.
(c) To the extent permitted by law, where HOYA becomes liable to the Customer in any manner for any breach of any condition or warranty expressed or implied in relation to the supply of Goods to the Customer, HOYA's liability will be limited, at HOYA's sole discretion to either:
(i) the replacement of the Goods or the supply of equivalent goods;
(ii) the repair of the 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
(d) If any action is brought by the Customer against HOYA, pursuant to Part 5.4 Division 1 of the Australian Consumer Law, HOYA's liability will be as prescribed in Part 5.4 Division 1 of the Australian Consumer Law.
(e) To the extent permitted by law, the Customer releases and indemnifies HOYA and its officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Customer and whether at common law, under tort (including (without limitation) negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness, cost or damage arising out of or in relation to any breach by the Customer of any warranty provided by it under clause 7(a).
(f) To the extent permitted by law, HOYA will have no liability to the Customer however arising, including, without limitation, under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity, arising out of or in connection with these Terms or any supply made pursuant to them.
8. Indemnity:
The Customer shall keep HOYA indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without limitation, claims of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Customer or which the Customer may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the Goods unless such costs, claim, demand, expense or liability shall be directly and solely attributable to any breach of contract or guarantee by, or negligence of, HOYA or its duly authorised employee or agent.
9. Returns and Cancellations:
Where applicable, Customers shall return unused Goods to HOYA or its designated third-party service provider, in accordance with HOYA’s return instructions.
10. Customer Responsibilities - Usage Reporting:
(a) The Customer must provide HOYA with a complete and accurate usage report for each HOYA-supplied product within two (2) business days following implantation. The report must include product identifiers (including serial number and barcode), implant date, and surgeon name. This data is required for accurate billing and inventory reconciliation.
(b) Usage reports must be submitted in the format specified by HOYA and delivered to the email address indicated in HOYA Purchase Order Form. HOYA reserves the right to update reporting requirements with reasonable notice.
(c) Failure to submit usage reports within the required timeframe may result in suspension of supply, adjustment of credit terms, or other remedial actions. HOYA may also exercise any other rights available under this Agreement or applicable law.
(d) All usage data will be handled in accordance with HOYA’s privacy policy and the Privacy Act 1988 (Cth). The Customer warrants that all data provided is accurate and compliant with applicable regulatory obligations.
11. Intellectual Property:
(a) The Customer acknowledges that the sale and purchase of the Goods does not confer on the Customer any licence or rights under any patent, trade mark, design or copyright which is the property of HOYA. The Customer shall not alter, remove or otherwise tamper with any of the trade or other marks or numbers attached to or placed upon the Goods by HOYA.
(b) The Customer warrants to HOYA that all documents provided by the Customer are accurate and that HOYA is entitled to use all such documents for the purposes of these Terms and that such use does not infringe any third party's intellectual property rights. The Customer indemnifies HOYA against all claims and all losses and damages incurred by the Company as a result of documents provided by the Customer to HOYA for the purposes of or in the course of the supply of the Goods breaching a third party's intellectual property rights.
(c) If the Customer receives any confidential information from HOYA the Customer may not use or disclose such information unless it receives the prior written consent of HOYA, such information enters the public domain (other than as a result of a breach of this clause) or the use or disclosure is required by law.
12. Waiver:
If HOYA elects not to exercise any of its rights arising as a result of a breach of these Terms, that will not constitute a waiver of any rights of HOYA relating to any subsequent or other breach.
13. Force majeure:
HOYA will not be in breach of any contract with the Customer where it results from any act, matter or thing beyond the reasonable control of HOYA.
14. Governing Law and Jurisdiction:
This Agreement shall be governed by and construed in accordance with the laws of the State of South Australia, without regard to its conflict of law principles. The parties agree that the courts of South Australia shall have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement, and each party irrevocably submits to the jurisdiction of such courts.
15. Severability:
If any provision of the Agreement is found to be illegal or unenforceable, the other provisions shall remain effective and enforceable to the greatest extent permitted by law.
16. Product Complaint Reporting:
Any adverse events or complaints regarding the Goods listed on the invoice must be reported to HOYA without delay, and no later than one calendar day after becoming aware of the issue. Complaints should be submitted via HOYA website at https://hoyafeedbacknetwork.com/.
17. Entire Agreement:
These terms and conditions of sale constitute the final entire agreement of the parties with respect to the Goods herein (including applicable rebates), and shall supersede any other agreements or proposals, whether oral or written, pertaining to the subject matter hereof, including, without limitation, any terms and conditions contained in the purchaser’s order forms (regardless of when such purchase order is issued by the purchaser). Agents and salesmen of the parties have no authority to make representations not included herein.
General Terms & CondHOYA Surgical Optics Australia Pty. Ltd., Version 1.0, August 2025
