GENERAL TERMS AND CONDITIONS OF SALE AND SOFTWARE LICENSE ("Conditions of Sale")

1. Initial Provisions

1.1 The Products (equipment, service, and software) offered on the quotation are supplied by Philips Healthcare, a sector of Philips Electronics Australia Limited of 65 Epping Road, North Ryde NSW 2113 Australia ABN 24 008 445 743 (“Philips”) and purchased by the purchasing entity stated in the quotation (“You” or “Customer”) in accordance with these Conditions of Sale and the quotation (Contract). Where there is an existing written and executed agreement between the Customer and Philips referred to in the quotation, the existing agreement will prevail to the extent there is a conflict or inconsistency between the Contract and the existing agreement.

1.2 The purchase prices set out on the quotation are net of all taxes. All taxes on the Products will be borne by the Customer.

2. Quotation, Order and Payment

2.1 Any quotation on the Products will be open for acceptance within the period indicated therein and may be amended or revoked by Philips prior to Customer's acceptance. Any purchase orders shall be subject to Philips' confirmation in writing. Any terms and conditions set forth on the Customer’s purchase order or otherwise issued by the Customer shall not apply to the Products. If no period is stated in the quotation, the quotation will be open for acceptance within sixty (60) days after the date of the quotation. The quotation may be amended or revoked by Philips prior to Customer’s acceptance. Only the quotation with the latest date may be accepted. An updated or revised Philips quotation revokes all previous Philips quotations in their entirety.

2.2 The prices and payment terms are set out on the quotation. Orders are subject to Philips’ ongoing credit review and approval.

The Customer shall pay Philips as per the payment milestones set out in the Billing Plan in the quotation, unless Philips and the Customer have agreed to vary the milestones in writing. Unless otherwise specified in the Contract, the Customer shall pay invoices within thirty (30) days from the date of the invoice. Philips does not accept payment by AMEX, Diners or cheques.

For each item, the Billing Plan “X/Y/Z” are defined as follows:

X is the percentage invoiced upon the Customer’s acceptance by signing the quotation or upon Philips’ acceptance of Customer’s purchase order (as applicable);

Y is the percentage invoiced upon Philips being ready to deliver the Product (notwithstanding the order may be delivered over multiple deliveries)

Z is the percentage invoiced upon the earlier of the completion of installation and when the Product is available for first clinical use.

Notwithstanding clause 2.1, all quotations provided for Demo Products are not open for acceptance but are an estimate only. All quotations provided for Demo Products shall not be binding on Philips until Philips confirms the price and availability of Demo Products upon receiving a purchase order from the Customer. Philips reserves the right to withdraw Demo Products from sale at any time and without prior notice to the Customer.

2.3 Interest will apply to any late payments. The interest applying to any monies remaining unpaid past the due date will incur immediately as from the due date at the maximum rate permitted by applicable law at a rate equal to 2% above the the Citibank (Australia) Prime Rate (https://www.citi.com/australia/corporate/cash.html), calculated daily and compounding monthly, on such amounts unpaid after the due date for the payment. If the Customer fails to pay any undisputed amounts due or materially breaches the Sale Agreement, Philips will be entitled to cease the performance of the Works, suspend the delivery of the Product and any related services, or to deduct the unpaid amount from any amounts owed to the Customer by Philips under the Contract, in addition to any other rights or remedies available to Philips. In addition, Philips or its designated representative may, with reasonable prior notice to the Customer and during business hours, enter any facilities in which the Product may be found and render it inoperable, or remove it and retain and sell it in accordance with applicable law.

2.4 Customer has no right to cancel an accepted order, except where Customer has a right to cancel in accordance with Consumer Law Rights, in which case the Customer shall pay any reasonable costs incurred by Philips up to the date of cancellation.

2.5 Philips reserves the right to adjust customer list price and/or net list price, in accordance with the Consumer Price Index published by the relevant government Department of Statistics. Philips shall give at least thirty (30) days prior written notice to Customer before implementing any adjustment to pricing, such adjustment shall not be retroactive, and shall not apply within 1 year from the date of the quote.

2.6 All payments required to be made by the Customer pursuant to the Sale Agreement shall be made without set-off or counterclaim and without any deduction or withholding for or on account of any tax unless the Customer is required by law to make any such deduction or withholding.

2.7 Where the Customer is permitted to pay by way of letter of credit:

(i) the Customer shall establish the letter of credit by a first-class bank to be determined by Philips that has adopted the Uniform Customs and Practice for Documentary Credits issued by the International Chamber of Commerce, prior to shipment and in favour of Philips on the basis of 100% of the value of the respective order.

(ii) the letter of credit must be valid for such duration covering the payment terms specified in the Billing Plan, must allow for partial shipments and must allow at least thirty (30) days for presentation.

(iii) the Customer shall pay all bank charges.

(iv) If the Customer requests that shipment be made other than the agreed delivery conditions, the letter of credit must be drawn in an amount sufficient to pay for any additional shipping costs, if any.

(v) Philips reserves the right to reject the Customer’s purchase order and/or not to deliver the Product if – (1) the Price is not paid by the Customer by the due date; and/or (2) the validity period of the letter of credit (if applicable) is not extended in accordance with Philips’ reasonable requirements. If Philips exercises such rights, the Contract shall be terminated with immediate effect upon Philips’ notice to the Customer and Philips shall, subject to your Consumer Law Rights, not be liable to the Customer for any damages, costs (including legal costs on an indemnity basis) or losses or any other liabilities whatsoever arising directly or indirectly (including consequential losses).

3. Retention of title until full payment

3.1 The title to the Products shall remain vested in Philips until the payment of the purchase price by the Customer has been paid in accordance with the applicable payment terms. Until title passes to the Customer in accordance with the Conditions of Sale, the Customer shall provide any assistance in taking any measures required to protect Philips' property rights, including but not limited to, obtain insurance for the Products, at the Customer’s cost and to the reasonable satisfaction of Philips, against liability, claims and risk of loss, theft, damage or destruction equal to the full replacement value of the Product (as determined by Philips) and ensure that all legal requirements as to insurance of the Product are complied with and that such insurance remains valid and in full force and effect.

3.2 Risk of the Product shall pass to the Customer upon delivery in accordance with the applicable Incoterm specified in the Contract, notwithstanding that Philips may be required to perform Installation or Other Services in connection with the Products. In the case of any postposed or delayed delivery by the Customer, the risk of the Products shall pass to the Customer upon Philips’ delivery of the Products to the warehouse of a third party provider.

4. Technical changes; obsolescence of the Product

Philips shall be entitled to make changes to the design or specifications of the Products at any time, provided such change does not adversely affect the performance of the Products and that Philips has provided the Customer with thirty (30) days’ written notice. If a Product becomes obsolete before the delivery date, Philips shall us reasonable endeavors to provide equivalent replacement Products, or the Customer is not satisfied with the replacement Product provided, Customer will be entitled to receive a refund in respect of any amounts paid for the obsolete Product.

5. Lease and Trade-In

5.1 If the Customer desires to convert the purchase of any Products to a lease, the Customer shall within ninety (90) days prior to the delivery of the Products provide all relevant rental documents for review and approval by Philips. Philips may provide the rental agreement at its discretion.

5.2 In the event Customer will be trading-in equipment ("Trade-In"), the Customer will provide the following:

5.2.1 Customer undertakes to possess good and marketable title to the Trade-In as of the date of the quotation and when Philips takes possession of the Trade-in from Customer’s site. In the event Customer is in breach of this undertaking, Customer shall not be entitled to keep a trade-in credit for such Trade-In and shall promptly refund Philips such credited amounts upon receipt of an invoice from Philips.

5.2.2. The trade-in value set forth on Philips quotation is conditioned upon Customer providing Trade-In no later than the date Philips makes the new Product listed on such quotation available for first patient use. Customer shall bear the costs of any reduction in trade-in value arising due to a delay by the Customer causing the trade-in not to occur by the expected date and promptly pay the revised invoice. For any trade-in values to be valid, the Customer is required to sign and return the Trade-in Declaration which forms part of this quotation.

5.2.3 In the event Philips receives a Trade-In having a different configuration (including software version) or model number than the Trade- In described on the Philips quotation, Philips reserves the right to adjust the trade in value and revise the invoice accordingly and Customer shall pay such revised invoice promptly upon receipt.

5.2.4 Customer undertakes to (i) clean and sanitize all components that may be infected and all biological fluids from the Trade-In; (ii) drain any applicable chiller lines and cap any associated plumbing and (iii) delete all personal data in the Trade-In. Customer agrees to reimburse Philips against any out-of-pocket costs incurred by Philips arising from Customer’s breach of its obligations herein.

6. Shipment and delivery date

6.1 Philips shall deliver the Products in accordance with the Incoterms set forth on the quotation. If Philips and the Customer agree any other terms of delivery, additional costs shall be for the account of the Customer. If no Incoterms are set forth on the quotation, CIP 2020 Carriage and Insurance Paid To Delivery Address shall apply. Delivery is contingent on the Customer obtaining (at its own cost and expense) all approvals from the relevant authorities and achieving Site Readiness (if applicable). Unless stated otherwise in the Contract, Site Readiness shall be sole responsibility of the Customer.

6.2 Philips will make reasonable efforts to meet delivery dates quoted or acknowledged. Subject to your Consumer Law Rights, failure to deliver by the specified date will not be a sufficient cause for cancellation nor will Philips be liable for any penalty, loss, or expense due to delay in delivery, except where failure to deliver by the specified date is caused by Philips’ negligent acts or negligent omissions. If there is a delay in delivery and such delay is caused by or attributable to the Customer and is more than thirty (30) days from the agreed delivery date, Philips shall have the right to invoice the Customer the full amount due pursuant to the applicable milestone for delivery as specified in the Billing Plan, and any cost of storage on the expiry of the said thirty (30) days. The Customer shall pay the amount invoiced in full within thirty (30) days from the date of Philips’ invoice, failing which, in addition to the rights set out in Clause 2.3 of the Conditions of Sale and any other rights or remedies available to Philips, the Customer shall pay the legal interest incurring immediately as from the due date at the maximum rate permitted by applicable law at a rate equal to 2% above the Citibank (Australia) Prime Rate (https://www.citi.com/australia/corporate/cash.html), calculated daily and compounding monthly, payment on the amount due pursuant to the applicable milestone for delivery as specified in the Billing Plan or part thereof that remains unpaid until receipt of such payment by Philips in full.

7. Installation

7.1 If Philips has undertaken any Work which the Work includes any on-Site activities (such as, but not limited to delivery into premises or building on Site, or installation of Products) by Philips, the Customer shall be responsible for the following at the Customer's sole cost and risk:

7.1.1 The provision of adequate and lockable storage on or near the installation Site for the Products in order to ensure protection against theft and any damage or deterioration. Any item lost or damaged during the storage period shall be repaired or replaced at the Customer's cost.

7.1.2 Provision of adequate and dry lockable storage space considered reasonable by Philips for the storage of machinery, equipment, materials, tools and instruments.

7.1.3 Provide Philips or its (affiliate’s) representative prompt access to the Site, to start the Work at the scheduled date without obstacle or hindrance.

7.1.4 Provision of 240 Volt 50 Hertz A/C power supply terminating at a point to be specified by Philips, that is adequate to enable installation and operation of the Products. The power supply must include the necessary main switch, fuses, amperages, and earthing, and must be provisioned according to the latest versions of the Standards Australia Wiring Rules (currently AS/NZS 3000:2018) and Electrical Installations Patient Areas (currently AS/NZS 3003:2018), and to the requirements of relevant Authorities.

7.1.5 Provision of Internet Protocol addresses, Port forwarding setup, Routing assignments, and other Information Systems support, that may be necessary for the storage Philips’ remote support during Installation and Philips’ remote diagnostics during warranty period.

7.1.6 Adequate lighting of all areas necessary to perform the Work.

7.1.7 Use of lifts, pathways, scaffolding, first aid facilities, toilet facilities, washing facilities and other amenities, drinking water, rest areas, furniture for meals and rest, by Philips staff and representatives.

7.1.8 The timely provision of the Authorisations required by the pertinent Authorities for or in connection with the installation and the operation of the Products.

7.1.9 Philips assumes that no hazardous material exists at the Site. If any such material exists, the Customer shall be responsible for the proper removal and disposal of any hazardous material at the Customer’s expense prior to the scheduled installation of Products.

7.1.10 The timely supply of materials and equipment (which are the responsibility of either the Customer or others) and the execution and provision of building services and infrastructure that may be applicable and associated with the Prepared Room and outside the scope of the Work, such as but not limited to: air-conditioning, mechanical exhausts, chilled-water, mains electrical power, information systems (IT) systems, security, quench pipe, shielding.

7.1.11 The timely execution and completion of the preparatory works, in conformity with Philips’ installation requirements. The Customer shall ensure that the prepared site shall comply with all safety, electrical and building codes relevant to the Products and installation thereof.

7.1.12 The timely provision of all documentation, information, instructions, cooperation, access, work or any other permits and licenses reasonably necessary to enable the safe entry and import and export of tools, equipment, Products and materials required by Philips’ or Philips’ representatives’ personnel necessary for the installation works and subsequent testing.

7.1.13 The assistance to Philips or Philips’ representative for moving the Products from the entrance of the Customer's premises to the installation site. The Customer shall be responsible, at its expense, for rigging, the removal of partitions or other obstacles, and restoration work.

7.2 If Products are connected to a computer network, the Customer shall be responsible for network security, including but not limited to, using secure administrative passwords, installing the latest security updates of operating software and web browsers, running a Customer firewall and maintaining up-to-date drivers, anti-virus and anti-spyware software.

7.3 If: (i) any of the conditions in this clause 7 are not complied with to Philips’ reasonable satisfaction or within agreed timeframes, or (ii) Philips or Philips representative is not given access to the Site, or (iii) if the Work and subsequent testing are interrupted for reasons not attributable to Philips, the parties shall extend the period for completing the Work. Any additional costs that are attributable to the Customer causing delay shall be for the Customer's responsibility and Philips shall, subject to the Consumer Law Rights, have no liability for any damage resulting from or in connection with the delayed Work.

7.4 Customer acknowledges and agrees that it is soley responsible for, and that Philips will not be liable for and offers no warranty in relation to:

7.4.1 maintaining operating environment within Philips’ specification for the Site, including but not limited to temperature and humidity control, incoming power quality, incoming ater quality and fire protection system; and

7.4.2 designing rooms or spaces intended to house the Products or Philips’ medical equipment.

7.5 Unless otherwise agreed in the Contract, the Customer shall be solely responsible for obtaining and providing all Authorisations necessary for the installation of the Products at the Site at the Customer’s cost. Unless otherwise agreed, the Customer is solely responsible for all aspects of the Site’s design and the compliance of those designs with the Law. The Customer agrees that, notwithstanding any information provided, advice given or other actions or inactions performed by Philips during the execution of the Contract, under no circumstances will any act or omission by Philips be construed as Philips acquiring responsibility for any aspect of the Site’s design and compliance to Law.

7.6 If the Work excludes provision of a Prepared Room (or part thereof) by Philips, then the Customer is obligated to fulfil the requirements of a Prepared Room at Customer’s cost, prior to Philips commencing Work. The Customer’s obligations to provide a Prepared Room shall include, but are not limited to:

(i) The timely execution and completion of all preparatory works in accordance with: the Philips Site Preparation guides that are applicable to the Products; the agreed Philips Site Layout drawings; the agreed Statement of Work (if any); and in conformity with any requirements that Philips shall indicate to the Customer in due time, to meet the requirements of a Prepared Room.

(ii) Ensuring that Philips personnel and contractors are able to commence the Work immediately upon arrival at the Site.

(iii) Ensuring that Philips personnel and contractors can perform the Work in an uninterrupted manner.

(iv) Ensuring Philips has unrestricted and unimpeded access to the Site.

(v) Ensuring (where appropriate) the ready availability of necessary roads and other access ways (including, but not limited to, elevators, stairs, corridors, door entries, ceilings) to the Site and ensuring that such roads and access ways are suitable for the movement of heavy and/or specialised equipment to and from the Site.

(vi) Supplying Philips with accurate forecasts and all relevant information, in a timely manner, that may impact Philips’ performance of the Work, including without limitation the location and capacities of power cables, gas and water pipes, drawings, and static data of structures.

(vii) Ensuring adequate power supply terminating at a point to be specified by Philips, including the necessary main switch and fuses, all according to Standards Australia Wiring Rules (currently AS/NZS 3000:2017) and to the requirements of other Authorities.

(viii) Ensuring that the Site conditions are within the Operational Conditions before the delivery of Products, and that correct Operational Conditions of the Site are maintained throughout the entire duration of the Products being located in the Site.

(ix) Doing all things necessary to ensure that outside influences do not adversely affect the function of any Products located at the Site, and that any Products located at the Site do not adversely affect the outside environment or others.

8. Acceptance

8.1 Philips shall notify the Customer of the completion of the installation to enable the Customer to participate in the tests and confirm, by signing a certificate, the acceptance of the Products and compliance with the agreed specifications.

Installation by Philips includes Philips standard testing procedures of the Products according to Philips’ published specifications, the completion of which by Philips is sufficient to handover the Products to the Customer for clinical use. To the extent the Customer requires additional tests, inspections, documentation, forms or protocols as part of the Customer’s own requirement for Customer acceptance, the Customer shall submit to Philips all the additional testing and acceptance requirements within ten (10) days from the Customer’s order placement to Philips. To the extent Philips has the capability to fulfil the Customer’s additional testing and acceptance requirements, the Customer and Philips shall endeavour to agree the scope, cost and time extension for the additional requirements for the Customer Acceptance Testing protocol, however under no circumstance shall the foregoing delay or interfere with the performance of the Work.

If Customer Acceptance is delayed for whatever reasons solely due or attributable to the Customer for more than thirty (30) days from the acceptance date or extension agreed by the parties, Philips shall have the right to invoice the Customer the full amount due pursuant to the applicable milestone for acceptance as specified in the Billing Plan and deem Practical Completion or Customer Acceptance (as applicable) on the expiry of the said thirty (30) days. The Customer shall pay the amount invoiced in full within thirty (30) days from the date of Philips’ invoice, failing which, in addition to the rights set out in Clause 2.3 of the Conditions of Sale and any other rights or remedies available to Philips, the Customer shall pay the legal interest incurring immediately as from the due date at the maximum rate permitted by applicable law at a rate equal to 2% above the the Citibank (Australia) Prime Rate (https://www.citi.com/australia/corporate/cash.html), calculated daily and compounding monthly, on the amount due pursuant to the applicable milestone for acceptance as specified in the Billing Plan or part thereof that remains unpaid until receipt of such payment by Philips in full.

8.2 In case of absence of the Customer, Philips shall start the tests according to Philips’ standard testing procedures and on completion, the test certificate shall indicate acceptance.

8.3 In case of rejection of the Products, the Customer shall submit the reasons to Philips in a detailed written form within ten (10) days from the completion of the acceptance tests, and Philips shall correct such failures by repeating the relevant steps of the acceptance test within a reasonable time.

8.4 If, within ten (10) days from the completion of the acceptance test, Philips has not received the signed certificate of acceptance or a rejection report with the justified reasons, the Product shall be considered accepted by the Customer.

8.5 In case the Customer starts making clinical use of the Products, this shall be considered a deemed acceptance by the Customer.

8.6 Minor defects or deviations that do not affect the operational use of the installed Products shall be stated on the certificate of acceptance but shall not prevent acceptance. Philips shall be obligated to remedy such defects within a reasonable time.

9. Complaints and returns

The Customer shall notify Philips in writing substantiating its complaints within ten (10) days from its receipt of the Products. If Philips accepts the claim as valid, Philips shall issue a return authorization notice, and the Customer shall return the Products. Each returned Product shall be packed in its original packaging.

10. Product warranty

10.1 In the absence of any specific Product warranty in the quotation, the following warranty provisions will apply to the Product. Additional prepaid extended warranty and/or service agreement coverage (if any), are separately specified in the Contract.

10.2 Hardware Products. Philips warrants to Customer that the Product shall be free from defects arising solely from faulty materials or workmanship, for a period of one (1) year from the date of acceptance, deemed acceptance or first clinical use, whichever occurs first, but under any circumstances, no more than fifteen (15) months from the date of shipment, provided the Product has been subject to proper use and maintenance. Any disposable Product intended for single use supplied by Philips to the Customer will be of good quality until the expiration date applicable to such Product. This warranty is only valid and enforceable in Australia and does not apply to spare parts, hardware upgrades, software and/or consumables to which specific warranty conditions apply.Extended warranty for any Ultrasound transducers does not cover the following transducers, unless stated otherwise: TOE/TEE Transducers (ie: x7-2t, x8-2t, s7-3t, s8-3t xMATRIX transesophageal transducers, or any updated transducers with a similar nature. Specialty Transducers (ie: xMatrix x5-1, x6-1, xL14-4, and 3D/4D range V6-2, V9-2 & 3D9-3v transducers, or any updated transducers with a similar nature).

10.3 Stand-alone Licensed Software Products. Philips warrants that the Stand-alone Licensed Software shall substantially conform to the technical specification for a period of ninety (90) days from the date Philips makes such Stand-alone Licensed Software available to the Customer. “Stand-alone Licensed Software” means Licensed Software sold without a contemporaneous purchase of a server for the Licensed Software.

10.4 Service. Philips warrants that all services will be carried out with reasonable care and skill. Philips’ sole liability for breach of this warranty shall be at its option to give credit for or re-perform the services in question. This warranty shall only extend for a period of ninety (90) days after the completion of the services.

10.5 Customer shall only be entitled to make a Product warranty claim if Philips receives written notice of the defect during the warranty period within ten (10) days from the Customer discovering the defect, and, if required, the Product or the defective parts shall be returned to an address stated by Philips. Such defective parts shall be the property of Philips after their replacement.

10.6 Philips’ warranty obligations for the Product shall be limited at Philips’ option to the repair or replacement of the Product or any part thereof, in which case the spare parts shall be new or equivalent to new in performance, or to the refund of a pro rata portion of the purchase price paid by the Customer.

10.7

Philips’ warranty obligations shall not apply to any defects resulting from:

10.7.1 improper or unsuitable maintenance, configuration or calibration by the Customer or its agents.

10.7.2 use, operation, improper handling, modification, or maintenance of the Product not in accordance with the Product specification and the applicable written instructions of Philips or performed prior to the completion of Philips’ validation process.

10.7.3 abuse, negligence, accident, damages (including damage in transit) caused by the Customer.

10.7.4 improper site preparation, including corrosion to Product caused by Customer.

10.7.5 any failure of electrical power, telecommunication networks, air conditioning, chilled water supply, humidity control or any environmental factor,

10.7.6 any damage to the Product or any medical data or other data stored, caused by an external source (including viruses or similar software interference) resulting from the connection of the Product to a Customer network, Customer client devices, a third party product or use of removable devices.

10.8 Philips is not responsible for the warranty for the third-party product provided by Philips to the Customer. However, if Philips, under its license agreement or purchase agreement with such third party, has right to warranties and service solutions, Philips shall make reasonable efforts to extend to the Customer the third-party warranty and service solutions for such Products.

10.9 During the term of the warranty and any customer service arrangement the Customer shall provide Philips with a dedicated high-speed broadband internet connection suitable to establish a remote connection to the Products in order for Philips to provide remote servicing of the Products by:

10.9.1 supporting the installation of a Philips approved router (or a Customer-owned router acceptable for Philips) for connection to the Products and Customer network (which router remains Philips property if provided by Philips and is only provided during the warranty term).

10.9.2 maintaining a secure location for hardware to connect the Products to the Philips Remote Service Data Center (PRSDC).

10.9.3 providing and maintaining a free IP address within the site network to be used to connect the Products to the Customer’s network.

10.9.4 maintaining the so established connection throughout the applicable period.

10.9.5 facilitating the reconnection to Philips in case any temporary disconnection occurs.If Customer fails to provide the access described in this section and the Product is not connected to the PRSDC (including any temporary disconnection), Customer accepts any related impact on Products availability, additional cost, and speed of resolution.

10.9.6 The warranties set forth in these Conditions of Sale and quotation are the sole warranties made by Philips in connection with the Product, are expressly in lieu of any other warranties, whether written, oral, statutory, express or implied, including any warranty of non-infringement, quiet enjoyment, merchantability or fitness for a particular purpose. Philips expressly disclaims the implied warranties of merchantability and fitness for a particular purpose. Moreover, Philips does not warrant any Product using the cloud to be uninterrupted or error free. The limitations and exclusions in this clause are made to the full extent by law and are subject always to clause 10.11 and your Consumer Law Rights.

10.10 Any Products which have been used for demonstration purposes ("Demo Products") is pre-used and is therefore offered “as is”. There may be minor scratches on the unit, such minor scratches of the unit will not be considered as a defect. To the extent permitted by law, Philips excludes all implied or expressed warranties. The Customer acknowledges that Demo Products are supplied “as is”, without any warranties as to condition, performance or suitability of the Demo Product. No warranty of merchantability or fitness for a particular purpose applies to the Demo Product. The Customer is responsible for conducting its own investigations to ensure that the Demo Product meets its requirements. The limitations and exclusions in this clause are made to the full extent by law and are subject always to clause 10.11 and your Consumer Law Rights

10.11 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:

(i) to cancel your service contract with us; and

(ii) to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replace 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. The warranties and rights of return granted to you under clauses 9 and 10 are additional to your rights under the Australian Consumer Law.

10.12 The exclusions and limitations of Philips’ liability in this Sale Agreement are made to the fullest extent permitted by law. Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Products or service by Philips to you which cannot be excluded, restricted or modified (“Consumer Law Rights”). To the extent that you are a consumer (as that term is defined in the Australian Consumer Law) or otherwise have rights under that law, nothing in these Conditions of Sale excludes those Consumer Law Rights.”

Where Philips is legally entitled to do so, Philips’ liability in respect of such Consumer Law Rights, is limited at its option to:

(i) in the case of goods:

(a) the replacement of the Product or the supply of an equivalent Product;

(b) the repair of the Product;

(d) the payment of the cost of having the Product repaired; and

(ii) in the case of services:

(a) the supplying of the services again; or

(b) the payment of the cost of having the services supplied again.

11. Limitation of Liability

11.1 Subject to any Consumer Law Rights, and clauses 11.2 and 11.3, each party’s liability to the other under the Contract, whether arising in contract, tort (including negligence), equity, statute, under an indemnity or otherwise, will not:

(i) in relation to all Claims made in respect of a Product, exceed the total amount paid by the Customer to Philips for the Product under the Contract; and

(ii) for all Claims in the aggregate, exceed the total amount paid by the Customer to Philips under the Contract.

11.2 Nothing in the Contract operates to exclude or restrict:

(i) either party’s liability for personal injury and death, property loss or damage caused by that party’s negligence, any breach of confidentiality or privacy laws, or any liability, which cannot be limited under law;

(ii) the Customer's liability for any misuse of the Intellectual Property provided to the Customer by Philips under the Sale Agreement; and

(iii) Philips' liability for any Claim that the Customer's use of the Products (in a manner permitted by the Contract) infringes the Intellectual Property or other rights of any third party.

11.3 Despite anything to the contrary, to the maximum extent permitted by law, each party’s liability under the Sale Agreement (including under any indemnity) will be reduced proportionately to the extent the relevant liability was caused or contributed to by the acts or omissions of the other party, including any failure by that party to mitigate its losses.

11.4 To the extent permitted by law, and subject always to you Consumer Rights, neither party shall be liable for any indirect, punitive, incidental, exemplary, special or consequential damages and/or for any damages including, loss of data, profits, revenue, business interruption or use in connection with or arising out of the Sale Agreements , regardless of whether they are foreseeable or not and whether the claim is made in tort (including negligence), breach of contract, at law or in equity. Neither Philips nor Philips’s suppliers shall be liable for any loss or inability to use medical or other data stored on or by the Product.

11.5 This clause 11 will survive the termination or expiry of the Sale Agreement.

12. Infringement of Intellectual Property Rights to the Products

12.1 Philips will, at its option and expense, defend or settle any suit or proceeding brought against Customer based on any third party claim that any Product or use thereof for its intended purpose constitutes an infringement of any intellectual property rights in the country where the Product is delivered by Philips.

12.2 Customer will promptly give Philips written notice of such claim and the authority, information and assistance needed to defend such claim. Philips shall have the full and exclusive authority to defend and settle such claim. Customer shall not make any admission which might be prejudicial to Philips and shall not enter a settlement without Philips’ prior written consent.

12.3 If the Product is held to constitute infringement of any intellectual property right and its use by Customer is enjoined, Philips will, at its option and expense, either: (i) procure for Customer the right to continue using the Product; (ii) replace it with an equivalent non-infringing Product; (iii) modify the Product so it becomes non-infringing; or (iv) refund to the Customer a pro rata portion of the Products’ purchase price upon the return of the original Products.

12.4 Philips will have no duty or obligation under this clause 12 if the infringement is caused by a Product being:

(i) supplied in accordance with Customer's design, specifications or instructions and compliance therewith has caused Philips to deviate from its normal course of performance.

(ii) modified by Customer or its contractors after delivery.

(iii) not updated by Customer in accordance with instructions provided by Philips (e.g. software updates).

(iv) combined by Customer or its contractors with devices, software, methods, systems, or processes not furnished hereunder and the third-party claim is based on such modification or combination.

The above states Philips’ sole liability and Customer’s exclusive remedy in respect of third-party intellectual property claims.

13. Use and exclusivity of Product documents

All documents and manuals including technical information related to the Products and its maintenance as delivered by Philips is the proprietary information of Philips, covered by Philips’ copyright, and remains the property of Philips, and as such, it shall not be copied, reproduced, transmitted or disclosed to or used by third parties without the prior written consent of Philips. Philips owns copyright in all Philips site planning information, architectural drawings, statements of works, and other site-specific project information produced by Philips for the purpose of planning and fulfilling the Customer’s order, and these materials remain Philips' property.

14. Export Control and Product Resale

14.1 Customer agrees to comply with relevant export control and sanction laws and regulations, including the UN, EU or US (“Export Laws”), to ensure that the Products are not (i) exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including military end-use, human rights abuses, nuclear, chemical or biological weapons proliferation.

14.2 Customer represents that (i) Customer is not located in a country that is subject to a UN, US or EU embargo and trade restriction; and (ii) Customer is not listed on any UN, EU, US export and sanctions list of prohibited or restricted parties.

14.3 Philips may suspend its obligation to fulfil any order or subsequent service if the delivery is restricted under Export Laws or an export/import license is not granted by relevant authorities.

15. License Software Terms

15.1 Subject to any usage limitations set forth on the quotation, Philips grants to Customer a non-exclusive, non-transferable license, without the right to grant sub-licenses, to incorporate and use the Licensed Software (as specified on the quotation, whether embedded or stand-alone) in Licensed Products and the permitted use (as referenced in the quotation) in accordance with these Conditions of Sale.

The Licensed Software is licensed and not sold. All intellectual property rights in the Licensed Software shall remain with Philips.

Customer may make one copy of the Licensed Software in machine-readable form solely for backup purposes. Philips reserves the right to charge reasonable costs for backup copies created by Philips. Customer may not reproduce, sell, assign, transfer or sublicense the Licensed Software. Customer shall preserve the confidential nature of the Licensed Software and shall not disclose or transfer any portion of the Licensed Software to any third party.

Customer shall maintain Philips’ copyright notice or other proprietary legends on any copies of the Licensed Software. Customer shall not (and shall not allow any third party to) decompile, disassemble, or reverse engineer the Licensed Software.

15.2 The Licensed Software may only be used in relation to Licensed Products or systems certified by Philips. If Customer modifies the Licensed Software in any manner, all warranties associated with the Licensed Software and the Products shall become null and void. Customer installation of Philips’ issued patches or updates shall not be deemed to be a modification.

Philips and its affiliates shall be free to use any feedback or suggestions for modification or enhancement of the Licensed Software provided by Customer, for the purpose of modifying or enhancing the Licensed Software as well as for licensing such enhancements to third parties.

With respect to any third party licensed software, the Customer agrees to comply with the terms applicable to such licensed software. If the third party licensor terminates the third party license, Philips shall be entitled to terminate the third party license with the Customer and make reasonable effort to procure a solution.

16. Confidentiality

If any of the parties have access to confidential information of the other party, it shall keep this information confidential. Such information shall only be used if and to the extent that it is necessary to carry out the concerned transactions. This obligation does not extend to public domain information and/or information that is disclosed by operation of law or court order.

17. Compliance with Laws and Privacy

17.1 Each party shall comply with all laws, rules, and regulations applicable to the party in connection with these Conditions of Sale, including, but not limited to, privacy, health and safety, anti-bribery, and corruption laws.

17.2 Processing of personal data: In relation to the provision of services, Philips may process information, in any form, that can relate to identified or identifiable individuals, which may qualify as personal data. Philips and/or its affiliates will: a) process personal data on behalf and by instruction of the Customer, the terms, rights and responsibilities of the Parties for such processing of personal data are set forth in this clause 17; and b) process information such as log files or device parameters (which may contain personal data), to provide the services and to enable its compliance with and performance of its task as manufacturer of (medical) devices under the applicable regulations and standards (including but not limited to the performance of vigilance, post market surveillance and clinical evaluation related activities).

17.3 Customer agrees that Philips and/or its affiliates may use any data, other than personal data, generated by a Product and/or otherwise provided by Customer to Philips for Philips’ own legitimate business purposes including, but not limited to, for data analytics activities to determine trends of usage and advise on the use of products and services, for research, product and service development and improvement (including the development of new offerings), substantiation of marketing claims and for benchmarking purposes.

17.4 Scope, roles of the parties and definition

17.4.1 This data privacy clause applies when Personal Data are provided to Philips and Processed by Philips on behalf and by instruction of Customer for the provision of the services (“Customer Data”).

17.4.2 Parties acknowledge and agree that regarding the Processing of Customer Data, Philips will act as Processor for Customer, who acts as Controller (or Processor). If Customer is a Processor, Customer warrants that its instructions and actions with respect to the Customer Data have been authorized by the relevant Controller, including authorizations and consents to be provided by the relevant Controller in this Clause 17.

17.4.3 The definitions used in this clause have the same meaning as in the EU General Data Protection Regulation 2016/67 (“GDPR”), or where applicable, the relevant equivalent definition in applicable laws.

17.5 Processing of Customer Data and termination

17.5.1 The subject matter of the Processing of Customer Data is the provision of the services, as described in the quotation. The nature of the Processing of Customer Data may include: hosting and storage; computing; service change management; technical support/issue resolution and such other services set forth in the relevant documentation made available by Philips or otherwise agreed between the parties. The categories of Individuals whose Personal Data will be subject to Processing by Philips include: any individuals whose Personal Data is provided to Philips via the services, such as patients or Customer’s personnel, suppliers, and end-users. The categories of Customer Data may include: any Personal Data provided to Philips such as health-related data.

17.5.2 This data privacy clause remains in effect during the term of the (warranty) service being rendered by Philips and, if applicable, a period of three (3) months after the term, during which Philips may keep Processing Customer Data to enable business continuity (“Run-Out Period”) after which it will terminate by operation of law.

17.6 Obligations of Customer

17.6.1 Customer shall Process Customer Data in compliance with the applicable laws, including when acquiring Customer Data and when instructing Philips to Process Customer Data.

17.7 Obligations of Philips

17.7.1 Philips shall Process Customer Data only: (i) on behalf and for the benefit of Customer; (ii) in accordance with the instructions of Customer as documented in this privacy clause; (iii) for the provision of the services; and (iv) to the extent required by the applicable laws that Philips is subject to.

17.7.2 Philips shall ensure that its employees and any other person authorized to Process Customer Data: (i) are informed of the confidential nature of the Customer Data; (ii) will have access to Customer Data only to the extent necessary to perform the services; and (iii) have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.

17.7.3 Philips shall maintain appropriate technical and organizational measures to safeguard security (including protection against unauthorized or unlawful Processing and Personal Data Breaches, confidentiality and integrity of Customer Data), as set forth in the relevant security documentation provided by Philips or as otherwise agreed between the parties.

17.7.4 Philips shall notify Customer, without undue delay, if Philips becomes aware of a Personal Data Breach. Such notification may be delivered to one or more of Customer’s representatives by any means Philips selects, including via email. Philips shall undertake reasonable efforts to identify the cause of a Personal Data Breach and take those steps, as Philips deems necessary and reasonable, to remediate the cause of such Personal Data Breach to the extent the remediation is within Philips’ reasonable control.

17.7.5 Taking into account the nature of the services, Philips shall take reasonable steps to assist Customer, at Customer’s expense, with appropriate technical and organizational measures, insofar as reasonably possible, in the fulfilment of Customer’s obligation to respond to requests from an Individual to exercise its rights as set forth by the applicable laws.

17.7.6 Upon the termination of the relevant services, Customer instructs Philips to delete Customer Data that are no longer required for the performance of the services or alternatively to anonymize such Customer Data in such a way that the Individual cannot be identified, unless Philips is required or permitted to retain certain Personal Data in accordance with the applicable laws. Once such Customer Data are anonymized, Customer authorizes Philips to process the anonymized data for its own purposes.

17.7.7 Where applicable, Philips shall make available to Customer all information necessary to demonstrate compliance with its obligations under Article 28 GDPR. Philips shall take reasonable steps to cooperate with and assist Customer, at Customer’s expense, to comply with Customer’s obligations under GDPR. Philips will, at its discretion: a) provide to Customer a certification issued by a qualified independent third party assessor that Philips’ business processes and procedures involving the Processing of Customer Data comply with this data privacy clause; or b) make available the facilities it uses for the Processing of Customer Data for an audit by a qualified independent third party assessor at Philips’ selection and at Customer’s cost, provided such auditor has executed a written confidentiality agreement acceptable to Philips. Audits will be conducted no more than once per year, during regular business hours and with minimal disruption to Philips’ business, and will be subject to 6 weeks prior notice to Philips and to a detailed written audit plan approved by Philips and Philips’ policies, including those on health and safety, security and confidentiality.

17.8 Sub-Processors

17.8.1 Customer hereby grants to Philips a specific authorization for the following Processors engaged by Philips and its affiliates to Process Customer Data (“Sub-Processors”): (a) Philips’ affiliates; and (b) those entities listed on https://www.philips.com/a-w/privacy.html. Customer hereby grants to Philips a general authorization to engage third party Sub-Processors. This authorization constitutes Customer’s prior written consent to the subcontracting by Philips of the Processing of Customer Data.

17.8.2 Philips shall inform Customer of any changes to the Sub-Processors on the URL specified in clause 17.8.1. Customer may object to Philips’ use of a new Sub-Processor in case of reasonable and substantiated concerns regarding the protection of Personal Data, by notifying Philips in writing within ten (10) business days after Philips’ notification to Customer. If Customer does not inform Philips of any objections within the stipulated period, the new Sub-Processor will be deemed accepted by Customer. In the event Customer objects to a new Sub-Processor, Philips will undertake reasonable efforts to find a mutually acceptable solution and if not found within sixty (60) days, Customer may terminate those services that cannot be provided without the use of the objected-to new Sub-Processor. This termination right is Customer’s sole and exclusive remedy if Customer objects to any Sub-Processor.

17.8.3 When Philips engages a new Sub-Processor, Philips: (a) shall enter into a written agreement with each Sub-Processor containing data protection obligations not less protective than those in this clause 17; and (b) subject to the terms set forth in these Conditions of Sale, shall be liable for the acts and omissions of its Sub-Processors regarding the Processing of Customer Data to the same extent Philips would be liable when performing the services of each Sub-Processor itself under the terms of this clause.

17.8.4 Transfers of Customer Data Without prejudice to any applicable data restrictions specified in these Conditions of Sale, Philips may Process Customer Data globally as necessary to perform the services. To the extent Customer transfers Customer Data to Philips or Philips’ affiliates that will Process such Customer Data outside the European Economic Area, the Philips Processor BCRs (which are incorporated by reference and form an integral part of these Conditions of Sale; and are accessible on https://www.philips.com/privacy) shall apply to such transfer. To the extent a Philips entity in the European Economic Area will make use of a third-party Sub-Processor which will Process Customer Data outside the European Economic Area, Philips shall enter into the applicable EC Standard Contractual Clauses with such Sub-Processor, unless the European Commission has issued an adequacy decision for the country in which the Sub-Processor Processes Customer Data. Where applicable, the Customer represents and warrants that all legal requirements in relation to cross-border Processing of Customer Data will be complied with.

18. Force majeure

18.1 Neither party will be liable in respect of the non-performance of any of its obligations to the extent such performance is prevented by any circumstances beyond its reasonable control, including, but not limited to, acts of God, war, civil war, insurrection, fire, flood, labor disputes, epidemics, pandemic, cyber-attack, act of terrorism, governmental regulations and/or similar acts, embargoes, export control sanctions or restrictions, Philips’ unavailability regarding any required permits, licenses and/or authorizations, default or force majeure of suppliers or subcontractors.

18.2 If force majeure prevents Philips from fulfilling any order from the Customer or otherwise performing any obligation arising out of the sale, Philips shall not be liable to the Customer for any compensation, reimbursement, or damages.

18.3 This clause will not apply to a party’s obligation to pay any amount that is due and payable to the other party under these terms.

19. Miscellaneous

19.1 Any newly manufactured Product provided may contain selected remanufactured parts equivalent to new in terms of performance.

19.2 If the Customer becomes insolvent, unable to pay its debts as they fall due, files for bankruptcy or is subject to it, has appointed a recipient, is subject to a late fee on payments (temporary or permanent), or has its assets assigned or frozen, Philips may cancel any unfulfilled obligations or suspend its performance; provided that, however, the Customer’s financial obligations to Philips shall remain in full force and effect.

19.3 If any provision of these Conditions of Sale is found to be unlawful, unenforceable, or invalid, in whole or in part, the validity and enforceability of the remaining provisions shall remain in full force and effect. In lieu of any provision deemed to be unlawful, unenforceable or invalid, in whole or in part, a provision reflecting the original intent of these Conditions of Sale, to the extent permitted by the applicable law, shall be deemed to be a substitute for that provision.

19.4 Notices or other communications shall be given in writing and shall be deemed effective if they are delivered in person or if they are sent by courier or mail to the relevant party.

19.5 The failure by the Customer or Philips at any time to require compliance with any obligation shall not affect the right to require its enforcement at any time thereafter.

19.6 A party may assign, novate or deal with the whole or any part of its rights or obligations under these terms by providing at least 45 days’ written notice to the other party. Both parties agree to execute any documents that may be necessary to complete the other party’s assignment or novation (including but not limited to acknowledging in writing, the receipt and acceptance of any notice of assignment which contains the updated payment details and instructions pursuant to which the Customer shall pay the relevant third party against the assigned receivables).

19.7 The Customer’s obligations do not depend on any other obligations it may have under any other agreement or arrangement with Philips. The Customer shall not exercise any offset right in the quotation or sale in relation to any other agreement or arrangement with Philips.

19.8 The Sale Agreement shall be governed by the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales and any courts which may hear appeal from those courts.

20. Product specific terms

Product specific schedules are incorporated herein as they apply to the Products listed in the quotation and their additional terms shall apply solely to the Products specified therein. If any terms set forth in the Product specific schedules conflict with terms set forth in these Conditions of Sale, the terms set forth in the Product specific schedule shall take precedent.

21. Definitions

(a) [Not used]

(b) “Authorisations” means an approval, consent, declaration, direction, exemption, notarisation, licence, permit, certificate, waiver, or other authorisations, however described, required by any Law and includes any renewal or amendment.

(c) “Authority” means any: (a) government, government department, government agency, or any semi or non-governmental entity claiming to have direct or indirect authority in the performance of the Work; or (b) any person (whether autonomous or not) charged with the administration of the Law.

(d) “Billing Plan” means the date or timeframe specified in a quotation for which Payment for a Product is due to Philips by the Customer.

(e) "Claim” means any claim made whether in the form of an allegation, demand, suit, action or other proceeding of any kind) under or in connection with this Agreement or its subject matter.

(f) “Customer Acceptance” applies only when Philips and Customer have explicitly agreed in writing any Customer Acceptance Testing requirements to be performed in addition to the Philips’ requirements of Practical Completion, and means that moment in performing any Work when both Philips and Customer agree that: (a) all documents and other information required under the Contract has been supplied; (b) the requirements for Practical Completion have been completed and all additional Customer Acceptance Testing has been completed; and (c) Philips has completed the Work and all other Philips obligations under the Contract, except for minor deficiencies - which do not prevent the Products from being used for its stated purpose, and (d) the Products are available for first use on patients.

(g) “Customer Acceptance Certificate” means a certificate in the form prescribed by Philips (unless otherwise agreed in writing) whereby both Customer and Philips confirm that Customer Acceptance has been achieved.

(h) “Customer Acceptance Testing” means all additional tests, inspections, documentation, forms and/or protocols, that is agreed in writing by Customer and Philips, and which is additional to the standard Philips-defined requirements of Practical Completion.

(i) “Determined Claim” means, at any point in time, a claim in respect of which a party has been held liable by any court's judgment or which a party has agreed to settle (whether under arbitration, other dispute resolution procedures or otherwise).

(j) "Demo Products” means any Products which have been used for demonstration purposes.

(k) “Intellectual Property” means any technical, scientific or intellectual property and other information whether capable of protection by statute, common law or in equity including copyright, design rights, trade marks, patents and all rights and interests of a similar nature and any and all papers and documentation relating to such rights and interests.

(l) “Practical Completion” means that moment in performing any Work, when Philips is of the reasonable opinion that: (a) the Work has been completed; and (b) whenever the Work includes Installation of Products by Philips that, (i) the Products have been electronically and mechanically tested for operation compliant to Philips’ published specifications, except for minor deficiencies, which do not affect the operational use of the Products for the stated purpose, (ii) all documents and other information in relation to the order, that are essential for the use of the Products, have been supplied, and (iii) the Products are available for first use on patients.

(m) “Practical Completion Certificate” means a certificate in the form prescribed by Philips (unless otherwise agreed in writing) whereby both Customer and Philips confirm that Practical Completion has been achieved.

(n) “Practical Completion Date” means the date specified in the Contract for Practical Completion, which may be stated in the Philips quotation, Customer order or Philips acknowledgement, or specifically agreed by Philips and Customer during the duration of the Contract. Upon reasonable completion of the Work, the actual date will be communicated by Philips to Customer in writing.

(o) “Prepared Room” means the room where the Installation of the Products is to be performed, has been constructed, prepared, cleaned and made available for the Work to be performed, in accordance to: (a) the agreed pre-requisites (if any) as stated in the Contract; (b) the agreed layout drawing (if any); (c) the agreed Statement of Work (if any); (d) the Philips site preparation guides that are applicable to the Products, and; (e) the requirements described in Clause 7 of these Conditions of Sale.

(p) “Products” means any product supplied by Philips excluding third party products furnished to the Customer by Philips under the Contract.

(q) “Site” or “Site Address” or “Delivery Address” or “Ship-To Address” means the place of delivery for the Products or Work, as specified in the Contract and is a valid address.

(r) “Site Readiness” means the completion of preparatory works to have the Site ready for the installation of Products, in accordance with Clause 7 of the Conditions of Sale (as varied).

(s) “Standard Business Hours” means Monday to Friday (inclusive) from 8:30am to 5:00pm, excluding public holidays as defined in the State or Territory where the Work is being performed.

(t) “Work” means: (a) the supply of Products (for Products to be supplied and delivered only, but not installed by Philips); (b) the Installation of Products (for those Products to be supplied, delivered and installed by Philips); (c) the rectification of any defects, and; (d) the provision of any other services including but are not limited to; provision of Clinical Applications Training, or construction services, or consultancy services, or additional transportation services, or supply of third party materials. that are not manufactured by Philips (“Other Services”).