Ypsomed Australia Pty Limited
Effective 1 September 2016
1. OPERATION OF THESE TERMS
1.1 These Terms apply to Orders made by Customers directly to Ypsomed Australia Pty Limited (ABN 98 611 300 693) ("YPSOMED") and do not apply to Orders for Products placed by Customers through agents, wholesalers or distributors, nor where other contractual arrangements are in place.
1.2 These Terms, and an Order which is placed pursuant to these Terms, will form the entire agreement between the parties in relation to its subject matter. In the event of any inconsistency between the Terms and an Order, the Terms will prevail.
2.1 A supply of Product by Ypsomed Australia to a Customer shall be initiated by an Order. Such Order must not stipulate that Products are to be delivered inconsistently with the Delivery Lead Times unless it is an Urgent Order.
2.2 Orders may be sent by facsimile to: 02 803 93554 or by email to:
firstname.lastname@example.org. For enquiries phone: 1800447042.
2.3 The Customer acknowledges and warrants that it:
- has the authority to purchase any Products for which it has placed an Order, and
- has complied with any applicable corporate governance rules in placing an Order,
and the Customer indemnifies Ypsomed Australia in relation to any action, loss or proceeding which may be brought against Ypsomed Australia as a result of a breach of these warranties by the Customer.
2.4 Ypsomed Australia, in its sole discretion, may refuse to accept any Order.
3. DELIVERY LEAD TIMES
3.1 Delivery Lead Times will be as notified by Ypsomed Australia to the Customer from time to time. Where no Delivery Lead Times have been notified by Ypsomed Australia to the Customer, Products the subject of an Order will be dispatched within a reasonable time.
3.2 The Customer may place Urgent Orders. Ypsomed Australia may use reasonable endeavours to deliver the Products consistently with the Urgent Order but gives no warranty and makes no representation about the timing or manner of the Delivery of Products the subject of an Urgent Order.
3.3 Preparation and delivery requirements for non-standard Products will be as reasonably determined by Ypsomed Australia, which may, in its sole discretion, consult with the Customer on such preparation and delivery requirements.
4. DELIVERY TERMS
4.1 Place of delivery of the Products shall be advised by the Customer to Ypsomed Australia at the time of placement of the Order for the Product.
4.2 Orders will be shipped via a transportation mode selected by Ypsomed Australia in its sole discretion.
4.3 Urgent Orders will incur a freight charge. The freight charge will be:
- $15 for delivery within a metropolitan area;
- $30 for delivery outside a metropolitan area, other than delivery to a remote area; and
- $100 for delivery to a remote area,
or such other amount as reasonably determined by Ypsomed Australia.
4.4 Title in the Products will pass to the Customer upon its full payment for the Products.
4.5 Risk in the Products will pass to the Customer immediately upon delivery of the Products by Ypsomed Australia to the Customer.
4.6 The Customer will be deemed to have accepted the Products as delivered unless it has notified Ypsomed Australia within 2 Business Days of receipt of the Products that they are defective or otherwise do not match the Order given by the Customer to Ypsomed Australia.
4.7 Deliveries within Delivery Lead Times will be made at no cost (other than the Price) to Customer.
5.1 Payment shall be made to Ypsomed Australia within 30 days of Ypsomed Australia rendering a valid tax invoice to the Customer. Ypsomed Australia reserves the right, in the event of payment in full not being received within 7 days of the due date, to charge the Customer at 1.5% per month or the highest rate allowed by law, whichever is lower, on any amount outstanding, calculated on a daily basis from the invoice date for payment to the actual date of payment. Any assertion by the Customer that the invoice is disputed, contains discrepancies or is defective in any way must be made within 14 days of date of invoice.
5.2 The Price includes the cost of packaging, storage insurances and any other expenses unless otherwise stated in these Terms or agreed between the parties.
5.3 The obligation of the Customer to pay any amount falling due pursuant to these Terms will be unaffected by the existence of any dispute in connection with these Terms or the Products.
5.4 If the Customer has no existing account with Ypsomed Australia, Ypsomed Australia may require, in its sole discretion, a credit card payment with each Order and the merchant fee, if any, will be charged to the Customer.
6.1 Terms which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meanings in this clause 6.
6.2 All Prices are exclusive of GST. If GST is payable by Ypsomed Australia on any sale the Customer will pay to Ypsomed Australia an amount equal to the GST. Ypsomed Australia will supply all Customers with a tax invoice showing the GST component and any other charges incurred by the Customer under these Terms.
6.3 Ypsomed Australia may change the Prices and specification of Products time to time in its sole discretion.
7. RETURN OF PRODUCTS FOR CREDIT
7.1 Subject to clauses 7.2 and 7.3, Ypsomed Australia will accept return of Products for credit in circumstances where:
- the Product was delivered in error by Ypsomed Australia and the Customer notifies Ypsomed Australia within 2 Business Days of receipt;
- the Product was damaged in transit and the damage is noted on the Customer’s copy of the delivery documentation and countersigned by the delivery driver;
- the Product is defective and the Customer has notified Ypsomed Australia within 2 Business Days of receipt.
7.2 Ypsomed Australia must accept return of Products for credit where the following criteria have been met:
- the Customer has requested Ypsomed Australia to issue a unique returned goods authority ("RGA") number;
- an RGA number has accompanied each Product being returned for credit;
- the Customer has completed a storage condition certificate (to certify that the Products have been stored in accordance with any instructions or technical information relating to the storage or stability of Products supplied with the Products or otherwise provided to the Customer in writing by Ypsomed Australia), such certificate to be provided by Ypsomed Australia for completion at the time it arranges pick-up of the Product to be returned; and
- an Ypsomed Australia Quality Assurance representative has inspected all Products returned and has authorised return of defective or contaminated Products.
7.3 Ypsomed Australia will not accepta return of a Product for credit in the following circumstances:
- the Product is returned in packaging that is damaged, written upon or otherwise marked and/or is in an unsalable condition;
- the Product is returned more than 5 Business Days after the RGA number was issued;
- the Product is returned in opened packages/cartons;
- the Product has a remaining expiry dating of 6 months or less;
- the Product has had patient contact or has been delivered to a home patient environment; and/or
- any other requirement in this clause 7 has not been satisfied.
7.4 Any Product received by Ypsomed Australia without an RGA number, or which does not comply with the requirements of the Code, may be destroyed by Ypsomed Australia in accordance with the Code and no credit will be issued by Ypsomed Australia.
8. INSPECTION AND PROOF OF DELIVERY
8.1 The Customer shall inspect the Product immediately upon receipt. Thereafter quantity, description, date, time and place of delivery of the Product as indicated on Ypsomed Australia’s invoice or delivery docket or copies thereof shall be conclusive evidence of quantity, description, date, time and place of delivery of the Product.
8.2 Requests by the Customer for proof of delivery will only be accepted by Ypsomed Australia within 14 days from the date of statement, and proof of the delivery shall constitute proof of the total delivery indicated on Ypsomed Australia’s delivery documents.
9. WARRANTIES AND LIABILITY
9.1 A Product distributed, but not manufactured, by Ypsomed Australia may be warranted by its manufacturer. Each unit of equipment supplied by Ypsomed Australia shall be subject to the warranties notified to the Customer, if any, at the date of the purchase of the equipment.
9.2 The Products come with guarantees that cannot be excluded under the ACL. The Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. Where the Customer is not a “consumer” within the meaning of the ACL, the guarantees referred to in this clause do not apply.
9.3 Except to the extent required by law, Ypsomed Australia makes no express or implied warranties or guarantees in relation to these Terms, the Products or the delivery of such Products. To the maximum extent permitted by law, Ypsomed Australia’s liability pursuant to:
- any warranty, term or condition expressed or implied in these Terms; and
- any other rights (including, for the avoidance of doubt, section 274 of the ACL or any similar provision),
shall be limited, at Ypsomed Australia’s option, to (i) replacement of the Products or supply of equivalent products (ii) repair of the Products (iii) payment of the cost of replacing the Products or acquiring equivalent products or (iv) payment of the cost of having the Products repaired.
9.4 Ypsomed Australia shall not be liable for proximate, incidental, indirect or consequential loss, including without limitation loss of business, loss of profits, loss of contract or goodwill, increased financing or insurance costs, increased operating costs or business interruption.
9.5 Notwithstanding any other provision of these Terms, the aggregate liability of Ypsomed Australia in connection with these Terms, the Products and any Orders will be limited to:
- the Price for the Order/s in connection with which the relevant liability arises, or
- if the relevant liability does not arise in connection with an Order, the aggregate Price for all Orders placed by the Customer in the 12 months before the Customer makes its first claim or written demand in connection with the relevant liability.
10. CUSTOMER USE OF PRODUCTS
10.1 The Customer will be solely responsible for the proper use and administration of all Products. Nothing in these Terms shall have the effect that Ypsomed Australia is in any way responsible for ensuring the appropriateness or correctness of the clinically prescribed dosage or product specifications of any Products.
11.1 If the Customer receives any reports or information related to a complaint about a Product or an Adverse Event, it will forward the unassessed case information or source documents to Ypsomed Australia in accordance with this clause within 1 Business Day of first becoming aware of the report or information. Ypsomed Australia shall acknowledge receipt within 3 Business Days. If the Customer fails to receive acknowledgement of receipt from Ypsomed Australia within 3 Business Days, the Customer shall resend the information or source documents with a request for acknowledgement of receipt by Ypsomed Australia.
11.2 The Customer agrees to cooperate with any reasonable request made by Ypsomed Australia in meeting any obligations it may have to report or otherwise furnish information to, or to cooperate with, any government agency, department, authority, instrumentality or similar entity, including the Therapeutic Goods Administration.
11.3 The parties shall immediately inform each other upon receiving any information or communication regarding any possible safety actions related to the Product, including but not limited to, communications with the Therapeutic Goods Administration. The parties shall provide a copy of any such written communication to each other within 2 Business Days of receipt of the communication. The parties shall work together to respond to such communications. If specific safety measures are to be taken, Ypsomed Australia will co-ordinate such actions and the Customer will co-operate in implementing same.
11.4 Notice to Ypsomed Australia in relation to Adverse Events or safety actions should be made to:
Attention: Pharmacovigilance Manager
Telephone: +61 409409695
Facsimile: +61 2 02 803 93554
Address: Ypsomed Australia 602/20 Bungan St Mona Vale NSW 2103
12. CONFIDENTIAL INFORMATION
12.1 Neither party shall use Confidential Information for any purpose not contemplated by these Terms. Each party shall restrict access to any information supplied in relation to these Terms to personnel within its organisation or other third parties, such as consultants, who need such access in order to perform their duties and receive it under obligations of confidentiality.
12.2 The Receiving Party agrees that any of the Confidential Information disclosed to it shall be used for the sole and exclusive purpose of fulfilling its obligations in relation to these Terms. The Receiving Party shall not, without the written consent of the Disclosing Party, disclose any such Confidential Information to any other person or entity other than those of its employees or agents who must have access to such Confidential Information for the sole and exclusive purpose of fulfilling its obligations under these Terms. All such employees shall be bound to maintain such Confidential Information in confidence and the parties will take such reasonable steps to require its employees to preserve such trust and confidence. The Receiving Party shall be responsible for any breach of these obligations by its employees.
13. DISPUTE RESOLUTION
13.1 If any dispute or difference arises between the parties in connection with these Terms, an Order or the Products ("Dispute"), the party claiming there is a Dispute shall provide written notice to the other party.
13.2 Within 10 Business Days of receipt of the notice of the Dispute, the parties’ nominated representatives must meet in good faith to attempt to resolve the Dispute.
13.3 If the Dispute cannot be resolved at the meeting between the parties’ nominated representatives, either party may require that the Dispute is referred to mediation. The mediator shall be agreed between the parties, or otherwise appointed by the President of the New South Wales Law Society.
13.4 Each party will bear their own respective legal costs (as between solicitor and client) of the enforcement or attempted enforcement of respective rights, remedies and powers under these Terms, including referral of any Dispute under these Terms to mediation.
13.5 Neither party will be entitled to commence legal proceedings in respect of a Dispute, other than in respect of a claim for payment of the Price for Products the subject of an Order, until and unless the process set out in this clause 13 has been complied with and the Dispute remains unresolved.
13.6 Nothing in this clause 13 will prevent either party from obtaining urgent interlocutory relief at any time.
14.1 Either party will have the right to terminate these Terms immediately by notice in writing in the event of the other party committing:
- an Insolvency Event;
- any breach of these Terms where the breach is not capable of being remedied;
- any breach of these Terms which is capable of being remedied, but which is not remedied by the breaching party upon 30 days’ notice from the non-breaching party requiring the breach to be remedied.
14.2 Either party may terminate these Terms by mutual agreement of the parties with a minimum period of 30 days notice to both parties.
14.3 Termination of this Agreement shall not relieve Ypsomed Australia or the Customer of its obligations to pay all money owed by it to the Customer or Ypsomed Australia respectively, on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived. Termination of these Terms shall be without prejudice to any rights and remedies of the Customer or Ypsomed Australia that accrued prior to the date of termination and shall not relieve Ypsomed Australia or the Customer respectively from liability arising from any antecedent breach of these Terms.
15. PERSONAL PROPERTY SECURITIES ACT 2009
15.1 The following provisions with respect to the PPSA shall apply (terms used in this clause that are defined in the PPSA have the same meaning as in the PPSA):
- The Customer grants to Ypsomed Australia a security interest in all Products supplied by Ypsomed Australia to the Customer as security for payment of all the Customer’s indebtedness to Ypsomed Australia under these Terms from time to time and for the performance by the Customer of the Customer’s other obligations from time to time to Ypsomed Australia.
- The Customer agrees to do anything that Ypsomed Australia may require to ensure that Ypsomed Australia has an enforceable, perfected, maintained and otherwise effective purchase money security interest in the Products, or to exercise any of Ypsomed Australia’s rights in connection with the security interest or under these Terms.
- The Customer shall reimburse Ypsomed Australia for all costs and/or expenses incurred or payable by Ypsomed Australia in relation to registration of any financing statement or any other document in respect of the Products.
- Ypsomed Australia may allocate all amounts received from the Customer in any manner it determines including any manner required to preserve any purchase money security interest in the Products.
- While the Products continue to secure the Customer’s indebtedness, the Customer must store the Products separately and clearly identify the Products as being subject to Ypsomed Australia’s security interest.
- The Customer waives its rights to receive a copy of any verification statement(s) or financing change statements under the PPSA and, as between the Customer and Ypsomed Australia, the Customer agrees it will have no rights under sections 95, 118, 121 130, 132, 135, 142 and 143 of the PPSA.
- The Customer must advise Ypsomed Australia immediately of default or any action by third parties (including any of its creditors) affecting Ypsomed Australia’s security interest in the Products.
- The Customer agrees that Ypsomed Australia is under no obligation to dispose of or retain any secured property Ypsomed Australia seizes within a reasonable time under section 125 of the PPSA.
- The Customer agrees that Ypsomed Australia does not need to give any notice to the Customer under the PPSA unless the notice is required by the PPSA and that requirement cannot be excluded.
16.1 Each notice given by one party to the other pursuant to these Terms, other than a notice to Ypsomed Australia in relation to a pharmacovigilance matter as set out in clause 11 of these Terms, must be made in accordance with this clause 16.
16.2 All notices must be in writing and addressed in accordance with clauses 16.4 and 16.5.
16.3 Any notice given pursuant to these Terms will be effective upon:
- where the notice is given by post – 3 business days after the notice is posted;
- where the notice is given by hand – at the time of delivery;
- where the notice is given by email – at the time the email enters the system of the recipient;
- where the notice is given by facsimile – at the time the giver of the notice receives electronic confirmation of successful transmission.
16.4 Notices to Ypsomed Australia must be made pursuant to the details below, or such other details as notified by Ypsomed Australia to the Customer from time to time:
- Attention: James Mayjor
- Postal address: Ypsomed Australia, 602/20 Bungan St Mona Vale NSW 2103
- Address for hand delivery: Ypsomed Australia, 602/20 Bungan St Mona Vale NSW 2103
- Email address: email@example.com
- Facsimile number: +61 2 803 93554
16.5 Notices to the Customer must be made pursuant to the details of the contact person, postal address, hand delivery address, email address and facsimile number notified by the Customer to Ypsomed from time to time, or if no notification has been given, pursuant to the details stated in the last Order received by Ypsomed Australia from the Customer.
17. APPLICABLE LAW
Any dispute that arises under this Agreement shall be dealt with in accordance with the law of New South Wales, and any claim or dispute arising hereunder shall be subject to the jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
18. FORCE MAJEURE
Neither party shall be liable for any failure or delay or default in performance of their obligations arising under these Terms if such failure or delay or default is caused by conditions beyond its control including but not limited to acts of god, government restrictions, wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
No delay or failure in exercising a right arising under these Terms will constitute a waiver of that right. No single or partial exercise of such a right will preclude the holder of that right from exercising that right again or in full.
Where any provision of these Terms (or a part thereof) is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision (or part thereof) must be interpreted as narrowly as possible to avoid such invalidity, illegality or unenforceability, as the case may be. If this is not possible, the provision (or part thereof) will be treated as severed from these Terms and the remaining Terms will remain in full force and effect.
21. SURVIVAL OF TERMS
Notwithstanding the termination of these Terms for any reason, the following clauses will continue to operate: clauses 9, 11, 12, 13 and 15.
22.1 "ACL" means the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth);
22.2 "Adverse Event" means any untoward medical occurrence in a patient, consumer or animal administered a medicinal product, irrespective of any causal relationship with the Product, such as any unfavorable and unintended sign, symptom, disease or outcome of death temporally associated with the use of a medicinal product, and including the following events which may be reportable to the Therapeutics Goods Administration or equivalent international regulatory authorities according to adverse event reporting regulation:
- drug or biologic overdose, whether accidental or intentional drug or biologic abuse;
- an event occurring from drug or biologic withdrawal;
- any failure of expected pharmacological action;
- exposure to a drug or biologic during pregnancy;
- inadvertent or accidental drug or biologic exposure;
- unexpected therapeutic or clinical benefit from the drug or biologic product; and
- medication errors;
22.3 "Australian Register of Therapeutic Goods" means the database established under the Therapeutic Goods Act 1989 (Cth) of information about therapeutic goods for human use approved for supply in, or exported from, Australia;
22.4 "Business Day" means a day that is not a Saturday, Sunday or public holiday in New South Wales;
22.5 "Code" means the Australian Code of Good Manufacturing Practice (GMP) for Medicinal Products issued by the Therapeutic Goods Administration;
22.6 "Confidential Information" means any information which relates to the business, assets or affairs of either party which is made available by that party ("Disclosing Party") to the other party ("Receiving Party") or is otherwise obtained by the Receiving Party and which is by its nature confidential or the Receiving Party knows, or ought to know, is confidential but does not include information that is:
- in or enters the public domain through no fault of the Receiving Party or any of its officers, employees or agents;
- received by Receiving Party from a third-party who had a legal right to provide it; or
- or was developed by Receiving Party independently of the other Party and any of its officers, employees or agents;
22.7 "Customer" means any party placing an Order under these Terms;
22.8 "Delivery Lead Time" means the delivery lead times notified from time to time by Ypsomed Australia to the Customer;
22.9 "Insolvency Events" means, in relation to a party, that party:
- the other party: being unable to pay its debts as they fall due, becoming insolvent, having an administrator, liquidator, receiver, receiver and manager, or other controller in insolvency appointed to it or any of its assets, entering into a formal arrangement with its creditors or any class of them, or suspending payment of its debts generally;
22.10 "Order" means an order in writing:
- signed by a person authorised by the Customer, or
- made using Ypsomed Australia’s electronic ordering system or Customer Self-Service website;
22.11 "PPSA" means the Personal Property Securities Act 2009 (Cth);
22.12 "Price" means the price for each Product sold to a Customer under these Terms;
22.13 "Product" means products supplied under these Terms of Sale;
22.14 "Therapeutic Goods Administration" means the unit within the Commonwealth Department of Health and Ageing responsible for administering the Therapeutic Goods Act 1989 (Cth), and the Regulations and Orders made pursuant to it, including evaluation and approval of medical products;
22.15 "Urgent Order" means an Order which does not meet the Delivery Lead Times.