Company

PHILIPS HEALTHCARE A SECTOR OF PHILIPS ELECTRONICS AUSTRALIA LIMITED
GENERAL TERMS AND CONDITIONS OF SALE AND SOFTWARE LICENSE (‘CONDITIONS OF SALE’)

1.  Initial Provisions

 

1.1   The Products are offered and sold 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’) to you (‘You’ or ‘Customer’) under the terms and conditions described below (the 'Agreement').

 

1.2      The Customer hereby represents that it is acquiring the Product from Philips for its own use and will not resell the Product without the prior written consent of Philips.

 

1.3     The Contract Sum is net of any taxes, including, but not limited to, value added tax, goods and services tax, sales tax, excise tax, and similar import and export duties, fees and taxes. All taxes on the Product will be borne by the Customer. Unless otherwise stated by Philips, all prices quoted are Delivery Duty Paid to the Site, according to Incoterms 2010, and apply to all Products. Unless otherwise agreed, Philip’s freight pricing includes standard sea freight and/or standard land freight. Unless otherwise agreed, the price includes standard packing as defined by Philips. The price of special packing (either requested by Customer, or rendered necessary due to Delivery to Site or Work on Site being delayed or interrupted) will be charged to Customer. Prices quoted for optional items are valid only when ordered at the same time and as part of the main system.

 

1.4      All documents and manuals related to the Product shall be delivered by Philips to the Customer and shall be written in English and/or the local language and shall contain all user-oriented information required by applicable Laws.

 

2.  Invoicing, Quotation and Order

 

2.1 Unless otherwise stated by Philips, any quotation on the Product will be open for acceptance within the period indicated in the quotation, or, if no period is stated, then within thirty (30) days after the date of the quotation and may be amended or revoked by Philips  prior to Customer's acceptance. An updated or revised Philips quotation shall render all previous Philips quotations as invalid in their entirety

 

2.2  Purchase orders, whether or not arising from a quotation, are subject to written confirmation from Philips. Any terms and conditions set forth in the Customer's purchase order or otherwise issued by the Customer will be rejected and will not apply to the sale of the Product, unless it is clearly stated in the quotation.

 

2.3 Unless otherwise specified in the quotation, Philips will send an invoice to the Customer, and the Customer shall pay it within 30 days from the date of the invoice. Orders are subject to Philips ongoing credit review and approval.

 

2.4 Where payment is overdue Philips may charge interest at the rate of 3% plus the overdraft rate charged by Philips’ bankers at the time of default calculated on a daily basis on any monies due but unpaid. In the event the Customer fails to pay any amounts due, Philips will be entitled to cease the performance of the Works, the delivery of the Product and any related services, or to deduct the unpaid amount from any amounts owed to the Customer by Philips or by any of its affiliates under any agreement with the Customer, in addition to any other rights or remedies available to Philips. In addition, Philips or its designated representative may, without prior notice to the Customer, 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. In any action commenced to enforce these Conditions of Sale following a Customer default or otherwise, Philips shall be entitled to recover, as part of its damages, all costs and expenses, including reasonable legal fees related to such action.

 

2.5 To the extent permitted by law, the, Contract cannot be cancelled. Delivered Products and Other Services and materials are not subject to return. Collected payments are not subject to refund. If the Customer cancels an order prior to the delivery of the Product and the Customer has the legal right to do so, the Customer shall pay any costs incurred by Philips up to the date of cancellation, including, but not limited to, manufacturing costs for the Product, any training, educational services or other services provided to the Customer in connection with the order, a nominal resupply fee and the costs for returning or cancelling any Product ordered from a third party. In other cases of cancellation, the agreed price shall remain as due and payable.

 

2.6 Invoicing of Products only: If the Work includes supply of Products only, and if the Contract Sum consists of an itemised price for the supply of Products, the invoices for the full price of each item of the Products will be issued 100% upon Delivery.

 

2.7 Invoicing of Installation only: If the Work includes Installation of Products only, and if the Contract Sum consists of an itemised price for Installation of the Products, the invoices for the full price of each item of Installation will be issued 100% upon Practical Completion.

 

2.8 Invoicing of Product and Installation: If the Work includes the supply and Installation of Products, and if the Contract Sum consists of an itemised price for supply and Installation of the Products, the invoices for the full price of each item of supply & Installation of Products will be issued as:

 

(a)  Installation will be issued upon Practical Completion.

(b)  Products:

 

i.   90% upon Delivery or when the Products are available for Delivery (whichever occurs earlier), and;

 

ii.    10% upon Practical Completion.

 

2.9 Invoicing of Other Services: If the Work includes the provision of other materials and/or Other Services (excluding Products and Installation), and if the Contract Sum consists of an itemised price for the provision of such other materials or Other Services, the invoices will be issued as a percentage of the price corresponding to the percentage ofWork completed for the provision of such other material or Other Services.
 

2.10 Invoicing of lump sum contracts: If the Contract Sum does not include itemised pricing of the Products, Installation or other services or materials which comprise the Work, both parties agree that the Products shall be valued at 90% of the Contract Sum, and the Installation and other services and materials shall be valued at 10% of the Contract Sum, and the invoicing terms are:

 

(a)  30% of the Contract Sum upon placement of order to Philips;

(b)   60% of the Contract Sum upon Delivery of Products or when the Products are available Delivery (whichever occurs earlier); and

(c)  10% of the Contract Sum upon Practical Completion.

1.2           Philips may at any time require any amount that has become payable to be paid immediately and before Delivery or any other performance by Philips, if Philips considers the Customer to be a credit risk.

 

2.11 Trade-ins & RCTIs: The parties may, from time to time, agree to an arrangement whereby, at or about the same time that the Customer purchases the Product from Philips, the Customer will trade in an old or used product or equipment of its own. The parties each acknowledge and agree that:

 

(a)  the GST Act treats the trade-in (referred to in this clause 2.12) from the Customer to Philips, as a separate supply from the supply of the Product from Philips to the Customer;

(b)  this clause 2.12 applies to all supplies by the Customer to Philips, including those referred to in this clause 2.12, during the term of this Agreement;

(c)  that it is registered for GST purposes under Part 2-5 of the GST Act, and will notify the other party if it for any reason ceases to be registered for GST purposes;

(d)  Philips may issue RCTIs to the Customer in respect of these supplies, and the Customer will not issue tax invoices in respect of these supplies;

(e)  Philips will issue a copy of each RCTI and will retain the original RCTI;

(f)  each RCTI will be provided to the Customer within 28 days of the relevant Philips invoice issued under clause 2.8(a); and

each RCTI will show the ABN of the Customer, any GST payable in respect of the supply and otherwise be in a form that complies with the requirements of the GST Act.

 

3. Rental

 

If the Customer wishes to convert the purchase of any Product into a rental agreement, the Customer shall cause the preliminary rental agreement and all related documentation to be reviewed and approved by Philips within ninety (90) days prior to the availability date for the delivery of the main components of the Product. If this is the preference of Philips, Philips may provide a preliminary rental agreement.

 

4.  Retention of title until full payment

 

4.1 The title to the Products shall remain vested in Philips until the full payment of the Contract Sum by the Customer. If Philips becomes entitled to exercise its rights under clause 2.5 it may also or instead, then or thereafter, and notwithstanding any previous waiver, without notice retake possession of the Products and for that purpose may enter any premises in which the Products are for the time being located.

 

4.2 Upon Delivery, the Products shall be at the Customer’s risk, notwithstanding that Philips may be required to perform Installation or Other Services in connection with the Products.

4.3 Title to and risk of accidental damage to or loss of equipment and material of any kind provided by the Customer shall at all times remain with the Customer, except where such damage or loss has resulted from negligence by Philips.

4.4 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.

 

5. Technical changes; obsolescence of the Product

 

Philips shall be entitled to make changes to the design or specifications of the Product at any time, provided that such change does not adversely affect the performance of the Product. During the validity period of a quotation, the Product may become obsolete. In this situation, Philips will make efforts to substitute it with an equivalent Product at similar prices but shall not be held responsible if no suitable replacements are available.

 

6.  Shipment and Delivery

 

6.1 If the Work includes supply of Products to the Delivery Address only (without Installation by Philips), Philips shall make reasonable efforts to deliver the Products by the Delivery Date.

 

6.2 If the Work includes supply of Products to the Delivery Address and Installation of Products, Philips shall make reasonable efforts to deliver the Products by the Delivery Date, and perform Installation of the Products by the Practical Completion Date.

 

6.3 Any other delivery, installation or completion date or period is an estimate only, and is not to be construed as a fixed date unless explicitly agreed in writing by the Philips authorised representative.

 

6.4 Philips will make reasonable efforts, but will not be liable, to meet the Delivery Dates quoted or confirmed by Philips. If Philips is unable to deliver the Products by the Delivery Dates, no penalties will apply to Philips.

 

6.5 If the Delivery of Product is delayed for more than 14 days from the date of Delivery Notification by any act or omission of the Customer or the Customer’s agents, consultants, employees, officers, representatives, Authorities, or other contractors, Philips may arrange for storage of the Products at a third party storage provider or elsewhere. The Customer shall bear all associated costs incurred by Philips including all applicable storage, insurance, demurrage, handling and administrative costs. The warehouse receipts will replace the shipping documents, and the Customer hereby agrees to reimburse, within 14 days from Philips’ first request, any and all expenses.

 

6.6 If the provision of any Works (other than Delivery) is delayed due to the Customer or the Customer’s agents, consultants, employees, officers, representatives, Authorities, or other contractors for more than 14 days after the notification by Philips that Philips is ready to perform the Work, the Customer shall pay the full Contract Sum for the delayed Works immediately to Philips.

 

6.7 Delivery is completed at the point the freight vehicle arrives at the Site Address and makes the Products available for unloading, but not unloaded. Unless otherwise agreed, Philips will not be responsible for unloading the Products and moving it to the place of Installation. The Customer is responsible for receiving the Products at the Delivery Address on the Delivery Date, and bears the risks and costs of failing to do so.

 

6.8 Unless otherwise agreed, Philips’ delivery pricing excludes: (a) all costs associated with cranes and forklifts; (b) all costs associated with enabling large vehicle access to the unloading point at the Delivery Address (such as, but not limited to, barricading of roads, traffic management, safety management, construction of ramps); (c) site inductions; (d) Authorisations from Authorities or 3rd parties; and (e) costs associated with transporting any Products into a building (such as, but not limited to, dilapidation reports, construction of ramps, provision of tools, structural reinforcement, modifications to the building, safety management).

 

6.9 Change of Delivery Date: Any Customer request to change a Delivery Date will only be agreed if Philips has not commenced manufacturing of the Products (or procurement of any part of the Products) and if such a requested change is  agreed in  writing by the Philips authorised representative.

 

6.10 Change of Delivery Address: Any Customer request to change a Delivery Address will only be agreed if Philips has not completed shipment documentation and secured freight services and if such a requested change is agreed in writing by Philips authorised representative.

 

6.11 Partial Deliveries: Philips reserves the right to make partial deliveries and to separately invoice the same, unless otherwise agreed.

 

6.12 Separate Portions: These Conditions Of Sale shall apply to any separable portions of the Work.

 

7.  Customer’s Obligations

 

7.1 Provision of Information:  The Customer shall do all things reasonably required by Philips and provide Philips with all approvals and information reasonably required by Philips to enable fulfilment of all Philip’s obligations under the Contract without delay or interruption.

 

7.2 Incorrect Information: The Customer shall be responsible for and bear the cost of any alteration to the Work necessitated by any discrepancy, error or omission in any drawings, specifications or other information supplied or approved by the Customer.

 

7.3 Customer Acceptance Testing: Philips’ Installation includes Philips standard testing procedures of the Products according to Philips’ published specifications, which upon completion 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.

 

7.4 Authorisations: Unless otherwise agreed, the Customer shall be solely responsible for obtaining and providing all Authorisations necessary for the fulfilment of the Contract 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.

 

7.5 On-Site Preparation Work: If the Work includes any on-Site activities (such as, but not limited to into-Site delivery or Installation of Products) by Philips, the Customer shall be responsible for the following at Customer's sole cost and risk:

 

(a)   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.

 

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

 

(c)   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.

 

(d)   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.

 

(e)  Adequate lighting of all areas necessary to perform the Work.

 

(f)  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.

 

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

 

(h)  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 the material at the Customer’s expense.

 

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.

 

7.6 Requirements for Prepared Room. 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:

 

(a)   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.

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

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

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

(e)   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.

(f) 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.

(g)    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.

(h)    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.

(i)  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.

7.8  In case any or all of the above conditions are not properly or timely complied with, or Philips or Philips representative is not given access to the Site, or has to interrupt the installation and subsequent testing for reasons not attributable to Philips, the period of completion shall be extended accordingly  and any and all additional costs resulting therefrom shall be for the Customer's account.

 

7.9   PHILIPS NEITHER ASSUMES LIABILITY NOR OFFERS ANY WARRANTY FOR THE FITNESS OR ADEQUACY OF THE PREMISES OR THE UTILITIES AVAILABLE AT THE PREMISES IN WHICH THE PRODUCT IS TO BE INSTALLED, USED OR STORED.

 

8.  Installation

 

8.1 If Installation of the Product will take place by Philips, the Customer shall be responsible for:

 

i.    Providing adequate and protected storage for the Product at or near the Site in order to ensure protection against theft and any damage or deterioration. Any item that may be lost or damaged during the storage period must be repaired or replaced at the Customer’s expense.

ii.     Making available, at the Site or nearby, appropriate and protected rooms equipped with sanitary facilities for Philips’ installation team and for the storage of their tools and instruments.

iii.    Carrying out and completing the preparation work in a timely manner in accordance with any requirements that Philips may provide the Customer upon reasonable notice.

iv.    The Site preparation shall be in compliance with all relevant Laws, and safety and electrical regulations, and building codes for the Product and its installation. The sufficiency of such plans and specifications shall be the sole responsibility of the Customer. Philips shall have access to the installation site in a timely manner to being the installation work on the scheduled date.

v.    Properly removing and disposing of any hazardous material prior to the installation by Philips.

vi.    Adequate provision of all visas, entrances, exits, residence, work or any other necessary authorisation for the Philips team and for the import and export of tools, equipment, products and materials required for subsequent installation and testing work.

vii.    Giving Philips assistance in the handling of the Product from its entrance to the premises to the installation site. The Customer shall, at its expenses, be responsible for handling, removing partitions or other obstacles and restoration work.

 

8.2 If the Product is connected to a computer network, the Customer shall be responsible for the network security.

 

8.3   If any of the above conditions is not properly fulfilled, and Philips is required to discontinue the Installation and subsequent testing, the completion period for the installation will be extended. Any and all resulting costs shall be the Customer's responsibility, and Philips shall not have any responsibility for such event.

 

8.4 Installation shall commence after:

 

(a)  the Products have been delivered to Site, and;

(b)    Customer has fulfilled all their obligations including on-Site preparation works and obligations under Clause 7 and pre-Installation obligations under clause 8, and;

(c)    the location of Installation of the Products  has fulfilled the requirements of a Prepared Room (if applicable).

 

8.5 Site Conditions: If, in Philips’ sole opinion, the Site environmental conditions are not suitable for the Installation of the Products, a safe working environment does not exist on Site or if Customer fails to have provided any facility or assistance to be provided by it under the Contract, Philips’ obligations to provide on-Site Work shall be suspended (without liability to Philips) until the conditions have been rectified to Philips’ satisfaction and any time limits for completion of the Site Work shall be appropriately extended.

 

8.6 If the performance of any Installation is delayed for twelve months (12 months) or longer, by the Customer or the Customer’s agents, consultants, employees, officers, representatives, Authorities, or other contractors, from the initially agreed date of Practical Completion of the Work, then Philips shall be released of all obligations to perform Installation.

 

8.7     If any failure of the Customer to perform On-Site Preparation Work or to meet the requirement of a Prepared Room, in accordance with Clause 7, causes Philips to be delayed in performing the Work or necessitates the Work to be performed outside Standard Business Hours, Philips may without limiting any other remedies available to Philips under the Contract and at Law, arrange for the Work to be performed at the Customer’s cost and the Customer shall indemnify Philips upon demand of all such additional costs, charges and expenses incurred by Philips in doing so.

 

8.8    Unless otherwise agreed, the Customer shall give Philips at least three (3) weeks written prior notice of the date upon which access into the Site will be made available to Philips for the commencement of on- Site works.

 

8.9      Latent Conditions: Philips shall promptly notify Customer upon becoming aware of any Latent Condition while performing the Work and shall give details of the Latent Condition encountered. To the extent Philips is capable to resolve the Latent Condition, then Philips shall provide details of the additional work, resources, extension of time, and reasonable price which Philips estimates to be necessary to resolve the Latent Condition, which the Customer and Philips shall promptly agree – otherwise the Customer shall be responsible to resolve the Latent Condition.

 

8.10  If the Customer does not provide or procure the provision of the above goods, facilities and services to the satisfaction of Philips, Philips may do so (at Customer’s expense) provided that the Customer has first been informed of the non-compliance and been given an opportunity to remedy the non-compliance.

 

8.11   Requests to perform additional work. The Customer shall not request Philips’ personnel to perform any work not specified in the Contract without obtaining Philips’ prior written approval.

 

8.12 Confirmation of hours worked. Where any provision of the Contract enables Philips to charge the Customer for hours worked by Philips’ personnel, the Customer shall at least monthly or upon Philips’ request confirm the number of hours worked by Philips’ personnel as shown on Philips’ records or other documents. If the Customer does not provide such confirmation without reasonable cause, Philips may invoice the Customer on the basis of such unconfirmed records and the Customer shall be liable accordingly.

 

9.  Practical Completion and Acceptance

 

9.1  If the Work consists of Installation of Products, then when Philips has completed the Installation of the Product, Philips shall notify the Customer for the Customer to participate in the Customer Acceptance Testing (if applicable) and confirm, by signing a certificate, the acceptance of the Product and compliance with the agreed specifications.

 

9.2   In case of absence of the Customer’s representative for the Customer Acceptance Testing, the Philips technical team shall start the tests

according to the Philips’ standard testing procedures and such tests shall be considered as performed in  the presence of the Customer's representative and Philips shall deem the Work as completed. In such case the acceptance shall be based on the results indicated in the test certificate signed by Philips.

 

9.3  Insofar as a Customer Acceptance Test protocol has been agreed and deemed to apply to the Contract, Philips or its representative will perform the additionally agreed tests and shall submit the tests and forms to the Customer. Philips shall prepare and the Customer shall sign the Customer Acceptance Certificate, upon which the Products shall be made available to the Customer for first patient use.

 

9.4  In case of rejection of the Product for justified reasons, the Customer shall submit the reasons to Philips in a detailed written form within ten

(10) days from the completion of the acceptance tests. Philips shall, as a sole remedy, correct such failures as soon as practicable, and the relevant steps of the acceptance test shall be repeated within a reasonable time.

 

9.5 Insofar as a Customer Acceptance protocol applies to the Agreement, if, within ten (10) days from the completion of the Customer Acceptance Test, Philips has not received the Customer Acceptance Certificate or a rejection report with the justified reasons, the installed Product will be considered as accepted by the Customer.

 

9.6   In case the Customer starts making clinical use of the Product, this will also be considered as a confirmation of acceptance by the Customer. Customer acknowledges that it must not use the Products for clinical purposes until the Customer has signed the Customer Acceptance Certificate.

 

9.7    Minor deficiencies or deviations that do not affect the operational use of the installed Product may be stated on the Customer Acceptance Certificate, but shall not obstruct or prevent acceptance, Philips shall be obligated to remedy such defects as soon as practicable.  Notwithstanding anything to the contrary, Customer Acceptance shall be deemed to have occurred on the date of: (a) Signing of the Customer Acceptance Certificate; or (b) first clinical use by the Customer or its employees, agents or contractors; whichever occurs first.

 

9.8  Unless otherwise agreed, the Contract excludes on-Site safety testing of the Products, and excludes on-Site compliance testing to any standards defined by Law.

 

9.9     Applications Training. If the Work consists of Applications Training, the Applications Training is to occur during or immediately after Installation of the Products. In the event the Applications Training is delayed or postponed, due to reasons not attributable to Philips, beyond the agreed Practical Completion of the Work, then Practical Completion shall be deemed to have occurred and the Applications Training may be performed at a later date without affecting Philips’ right to invoice for any remaining Contract Sum upon Practical Completion.

 

10 Complaints and returns

 

For Work consisting of Supply of Products only, Customer shall notify Philips in writing substantiating its complaints within ten (10) days from its receipt of the Product, including the Philips’ invoice date and number. If Philips accepts the claim as valid, Philips shall issue a return authorisation notice and the Customer shall return the Product. Each

returned Product shall be packed in its original packaging, with insurance and transportation paid by the Customer.

 

11  Product warranty

 

11.1     Philips may offer Product-specific warranties from time to time. Philips may provide Product-specific warranties with respect to the offered Products, as set out in Philips' quotation, or as annexed hereto.

 

11.2     Philips Product warranty. In the absence of any specific product warranty, Philips warrants to the Customer that any hardware Product will be free from defects arising solely from faulty materials or workmanship, for a period of one year from the date of first patient use or Practical Completion,  whichever occurs first, but, under any circumstances, no more than fifteen (15) months from the date of Delivery, provided that the Product has been subject to proper use and maintenance.

 

11.3     Exclusions from Philips Product warranty. The warranty set out in clause 11.2 is only valid and enforceable in Australia and does not apply to:

 

(a)   Vacuum items, including, but not limited to, X-ray tubes, camera tubes and image intensifiers. These items, by their nature, have a different period of life. Therefore, these items shall be subject to payment by the Customer considering the applicable pro rata usage or lapsed time criteria;

(b)   spare parts, hardware upgrades, and/or consumables to which specific warranty conditions apply;

(c)  any defects resulting from:

 

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

ii.       Software, interfaces or supplies provided by the Customer or third parties;

iii.       use, operation, modification or maintenance of the Product not in accordance with the Product specifications and the applicable written instructions of Philips;

iv.   abuse, negligence, accident, loss;

v.   damage in transit following installation by or on behalf of Philips;

vi.    improper site preparation;

vii.   unauthorised maintenance or modification to the Product, including any unauthorized hardware and software connection;

viii.    any damage to the Product (including software) or any medical data or other data stored, caused by an external source, regardless of its nature, including, but not limited to,

 

1.        hacking; or

2.        improper or incomplete application of the Philips’ product safety instructions by the Customer and/or

3.        viruses or similar software interference resulting from the connection of the Product to a network or use of removable devices; and

(d)  third party products. 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 Product.

 

11.4 Notice of defects. Any warranty for the Product shall be made on the condition that 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 at the Customer’s sole expense, to an address or location stated by Philips. Such defective parts shall be the property of Philips right after their replacement.

 

11.5 Warranty limited to repair, replacement or refund. To the fullest extent permitted by law, the Philips’ warranty obligations for the Product shall be limited, at the discretion of Philips, 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.

 

11.6 Requirement for broadband connection. During the applicable warranty and any customer service period agreed hereunder, if any, Customer shall provide Philips at each site with a dedicated high-speed broadband internet connection suitable  to establish a remote connection to the Product and to facilitate the realisation of the required remote infrastructure in order for Philips to provide remote servicing of the Product by:

 

(a)    supporting the installation of a Philips approved router (or a Customer-owned router acceptable for Philips) for connection to the Product and Customer network (which router remains Philips property if it is provided by Philips and is only provided during the term of this Agreement);

(b)  maintaining a secure location for hardware to connect the Product to the Philips Remote Service Data Center (“PRSDC”);

(c)  providing and maintaining a free IP address within the site network to be used to connect the Product to the Customer’s network;

(d)  maintaining the so established connection throughout the applicable warranty and customer service period (including restraining from any temporary disconnection or disabling of such connection); and

(e)    facilitating the reconnection to Philips in case any temporary disconnection occurs.

 

11.7 Consequences of lack of broadband connection. If Customer fails to provide the access described in this clause 11.7 and the Product is not connected to the PRSDC (including  any temporary disconnection), Customer accepts any related impact on Product availability, additional cost and speed of resolution.

 

11.8  SUBJECT ONLY TO CLAUSE 11.9, THE WARRANTIES SET FORTH HEREIN OR IN PHILIPS’ WARRANTY DOCUMENT WITH RESPECT TO A PRODUCT ARE  THE ONLY  WARRANTIES  MADE BY PHILIPS IN CONNECTION WITH THE PRODUCT,  THE SOFTWARE,  AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS QUOTATION OR SALE, BUT ARE EXPRESSLY IN ADDITION TO ANY OTHER WARRANTIES IMPLIED OR IMPOSED BY LAW.

 

11.9   Australian Consumer Law guarantees (where applicable). Our Products come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Products repaired or replaced if the Products fail to be of acceptable quality and the failure does not amount to a major failure. The rights and remedies contained in this clause 11.9 are limited to the extent that the Australian Consumer Law applies. You may not be entitled to remedies under the Australian Consumer Law as it may not apply to You. Nothing in this Agreement shall be construed as affecting any rights the Customer may have under all the relevant laws, or Commonwealth or State legislation, which give the Customer rights which cannot be modified or excluded by agreem ent.

 

11.10 Consequences of breach of statutory warranty or guarantee. The liability of Philips for any breach of any condition or warranty implied by a relevant law or pursuant to an applicable statutory guarantee will be limited, for Products of a kind not ordinarily acquired for personal, domestic or household use or consumption, as follows:

 

(a)  If the breach relates to goods:

i.             the replacement of the Product or the supply of an equivalent Product;

ii.             the repair of the Product;

iii.             the payment of the cost of replacing the Product or of acquiring an equivalent Product; or

iv.             the payment of the cost of having the Product repaired.

(b)  If the breach relates to services:

i.             the supplying of the services again; or

ii.             the payment of the cost of having the services supplied again.

(c)   To the fullest extent permitted by law, all other remedies are excluded.

 

11.11   Clause 11.10 applies to the extent to which statutory guarantees under the Australian Consumer Law apply to the supply by Philips of the Products to Customer.

 

12.  Limitation of Liability

 

12.1   To the fullest extent permitted by law, Philips’ total liability for damages arising out of breach of this Agreement, warranty, negligence, unlawful act, indemnity, strict liability or other tort or otherwise in connection with the Product is limited to an amount not exceeding the price of the Product giving rise to the liability.

 

12.2   To the fullest extent permitted by Law, neither Philips nor its representatives shall be liable in any way for any special, indirect, incidental or consequential damages or for any damages for loss of data, profits, revenue or use in connection with or arising out of this Agreement or any resulting agreement or the operation or use by or the Customers inability to use the Product, or for any liability of the Customer to third parties in connection therewith. Neither Philips nor Philips’ suppliers shall be liable for any loss or inability to use medical or other data stored on or by the Products, including software (embedded) or other magnetic media, and neither Philips nor its representatives shall be liable for recharging the data in this case.

 

12.3  Nothing contained in this Agreement shall be deemed or construed to exclude or limit the liability of either party in respect of death or personal injury arising out of the negligence of that party or any other liability which may not, under the applicable law, be excluded or limited.

 

13.  Infringement of Intellectual Property Rights to the Product

 

13.1  If there is a claim against the Customer (“Licensee”) claiming that the Product, including but not limited to Licensed Software (defined in clause 16) infringes a valid Intellectual Property Right (“IPR”) claim of any kind, the Licensee shall (a) immediately notify Philips of the claim,

(b)  provide all information about the claim. If Philips decides to conduct the claim, the Licensee shall (i) grant Philips sole control over the claim and (ii) provide all necessary support.

 

13.2  If (a) a non-appealable judgment rendered by a court of competent jurisdiction determines that such claim is valid or (b) the Product

 

infringes such claim, Philips may, at its sole discretion, (a) grant the Licensee the right to continue using the Product and/or relevant Licensed Software, (b) replace or modify the Product and/or Licensed Software to make it free from such infringement only if this action does not affect the full functionality of the Product or Software, or (c) if none of the above options is available to Philips, accept the return of the Product and/or Licensed Software, and, after the deduction of a reasonable fee for the time the Licensee had been using the Product and/or Licensed Software, it shall reimburse the Licensee for a specified fee paid by the Licensee for the returned Product and/or Licensed Software. If Philips has any of the above options, its indemnification obligation will be fulfilled.

 

13.3   Philips shall have no obligation in connection with any claim of infringement and the Licensee shall reimburse all reasonable costs (including, but not limited to, legal fees) in the event of a claim of (i) any agreement or commitment made by the Licensee without the prior written consent of Philips, (ii) the Licensee’s use of an outdated version of the Licensed Software if the new version available prevents such infringement, or (iii) use or combination of the Product and/or Licensed Software with products not provided by Philips, where, without any combination, the Product and/or Licensed Software would not be in infringement, (iv) use of the Product and/or Licensed Software in breach of the applicable documentation for the Product, (v) Philips’ compliance with the Licensee’s design, specifications and/or instructions, or (vi) Philips’ use of technical information or technology provided by the Licensee, (vii) unauthorised modifications made by the Licensee, or, (viii) failure by the Licensee to follow the Philips’ hardware and software maintenance schedules and recommended instructions  for and/or implement mandatory (safety)  actions (FCO implementation). In addition, Philips shall not be liable for any claims where the damages are based directly or indirectly on the quantity or value of the products or services as generated through the Designated Hardware (defined in clause 16) purchased under the quotation or based on the quantity of use of the Designated Hardware regardless of such claim.

 

14.  Use and exclusivity of Product documents

 

14.1  All technical information related to the Product and its maintenance is the proprietary information of Philips, covered by Philips’ copyright, and remains in 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. Data including, but not limited to, illustrations, catalogs, colors, drawings, dimensions, weight declarations and measurements made available as (printed) information are only an approximation and the Customer will not have any rights based on such data.

 

14.2    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, is covered by Philips copyrights and remain Philips' property.

 

15.  Export Control and Product Resale

 

15.1  The supply, export or transfer of the Product or the provision of installation, maintenance, technical assistance, training, investment, financing or brokering services may be subject to export control laws and regulations, including, but not limited to, those from the UN, OSCE, the

EU and the USA, which prohibit or restrict the export or deviation of certain products, technologies and services to certain countries (hereinafter “Export Regulations”). If the delivery of the Product, technology or services is subject to the granting of an export or import license by a government or is otherwise restricted or prohibited by Export Regulations, Philips may suspend its obligations to the Customer until such license is granted or for the duration of the restriction or prohibition. If no license can be obtained, or if the prohibition restriction remains, Philips may not proceed with the relevant request without being liable to the Customer.

 

15.2    The Customer shall comply in all respects with the Export Regulations and any applicable export license for the supply of the Product or provision of services. The Customer shall impose all export control restrictions on third parties if the Product is transferred or re- exported to third parties. The Customer shall take all reasonable steps to ensure that no purchaser violates the Export Regulations. The Customer shall indemnify Philips for any and all direct, indirect and punitive damages, losses, costs (including attorneys’ fees and costs) and other liabilities arising out of breach or non-compliance with this Clause.

 

15.3    The Customer shall notify Philips in writing of any resale or (re)export of the Product in order to comply with the Export Regulations and any other regulatory responsibilities governing the sale of the Product, including, but not limited to, medical device traceability requirements, that may apply to Philips.

 

16.  Software License Terms

 

Designated Hardware is  the hardware   provided  by  Philips which the Licensed Software is designed to operate.

 

Licensed Software  is the software in object code and all copies thereof to be operated on the Designated Hardware, whether embedded in the hardware or provided on a separate data carrier, covering system, test and application functions, including the necessary supporting documentation for the software to be effectively used.

 

16.1   Subject to compliance with the terms and conditions contained herein, Philips grants the Customer a non-transferable, non-exclusive license, without the right to sublicense, to use the Licensed Software in the Designated Hardware in the Customer’s organisation. No other right to the Licensed Software or any other intellectual property right of Philips or its suppliers shall be granted to the Customer, unless it is expressly provided.

 

16.1.1   The Licensed Software shall be used in the Designated Hardware only and at the place where the Product is installed, unless it belongs to a mobile system. Separate Software License Terms are required for each Designated Hardware or central processing unit on which the Licensed Software will be used. The Customer shall use the Licensed Software only for the agreed purpose.

 

16.1.2     The Licensed Software may include or incorporate proprietary or certified technology by Philips' suppliers. These Software License Terms do not imply a right in respect of any intellectual property right of Philips’ suppliers for use of such third-party technology. The Customer agrees to obtain  a separate license from that supplier through an end-user license agreement between that supplier and the Customer if required.

 

16.1.3    These Software License Terms do not apply to any maintenance or service software provided separately or with the Product to assist Philips or its representatives in the installation, testing, and maintenance of the Designated Hardware.

 

16.2   Philips and/or Philips’ suppliers (as the case may be) have all intellectual property, title and interest in and to the Licensed Software and all modifications and derivative works and all intellectual property rights.

 

16.2.1    The Customer may copy or have a copy available in machine-readable form of the Licensed Software for backup/archiving purposes only for Customer’s own use of the Designated Hardware. The Customer shall not allow third parties to (a) copy, reproduce or distribute the Licensed Software or any part thereof, (b) assign, sublicense, lease, rent, lend, transfer, disclose or otherwise make the Licensed Software available. If and to the extent that such copy is permitted, the Customer shall not remove or alter any copyright notices, proprietary information notices or other legends or marks contained in the Licensed Software and shall reproduce in all media containing a copy of the Licensed Software all such copyright notices, proprietary information notices or other legends or marks as they may be affixed to the original media.

 

16.2.2   The Customer shall not permit the Licensed Software or any part thereof to be used or accessed by any person other than Philips’ personnel or its representatives or the Customer’s employees or agents involved in the Customer’s activities. Customer shall cause each authorised person using the Licensed Software to comply with the terms and conditions contained herein.

 

16.2.3   If the Customer uses the Licensed Software to access or use the services or features of Microsoft Windows Server products (all editions or later versions) or similar software or uses the Licensed Software to allow workstations or computer devices to access or uses services or features of Microsoft Windows Server products or similar software, the Customer may be required to (i) obtain, through Philips or directly, a Client Access License for the Licensed Software and/or for each workstation or computer device from Microsoft, or (ii) to obtain

– if similar software is used – the required license from the relevant third party for each workstation or computer device.

 

16.2.4   Philips shall have no obligation to update or upgrade any third-party software of any kind (including Microsoft software, antivirus software, etc.) provided to the Customer by Philips, unless the parties expressly agree to do so.

 

16.2.5   The Licensed Software is licensed under copyright terms and shall not be sold, and any reference to “sale” or “sold” in relation to any Licensed Software shall be deemed to be a copyright license, and not as a transfer of any intellectual property right.

 

16.2.6   The Licensed Software may be accompanied by certain open source software. This open source software shall only be governed by its own open source license terms. To the extent that Philips has provided the Customer with a copy of the relevant open source software license terms, the Customer shall comply with these open source software license terms.

 

16.3  The Customer shall not modify, unblock, organize, adapt, correct errors, translate, reverse-engineer,  decompile or disassemble the Licensed Software or fail to perform such activities. Additionally, the Customer shall not create or have created derivative works based on the Licensed Software without the prior written consent of Philips. The information necessary for interoperability of the Licensed Software with other software shall only be obtained from Philips in relation to the current standard terms and conditions and at the sole discretion of Philips.

 

16.3.1   If the Licensed Software is in any way modified by the Customer or a third party, or is combined with software or equipment not provided and/or approved in writing by Philips, all warranties associated with the Licensed Software and the Designated Hardware shall become null and void from the time of such modification.

 

16.3.2  Philips may create and license updates or upgrades to the Licensed Software from time to time. Updates and/or upgrades may be made available to the Customer under the applicable terms and conditions.

 

16.3.3    Philips may make the maintenance of the Licensed Software available to Customer, but only if agreed in a separate software maintenance/customer support agreement.

 

16.3.4    Philips shall have no obligation to provide assistance, support, maintenance or new versions, unless and to the extent Philips has expressly agreed in writing.

 

16.3.5    The Customer shall indemnify Philips and its Affiliates against any damages or costs arising from or related to any breach of the provisions of this Clause and the Customer shall reimburse all costs and expenses incurred by Philips and/or its Affiliates in defending any claim arising from or related to such breach.

 

16.4. These Software License Terms shall remain in force and will remain effective for as long as the Customer uses the Designated Hardware, except if Philips terminates these Software License Terms immediately in the event that the Customer breaches these Software License Terms, provided that Philips gives the Customer a written notice specifying such breach and in the case the Customer is unable to remedy such breach within fifteen (15) days from the date of such notice or within a longer period that may be specified in said notice. Such termination shall not release the Customer from any of its obligations incurred prior to such termination and shall not affect any of Philips’ rights accrued prior to such termination. The Customer shall remove or allow Philips to remove the Licensed Software from the Designated Hardware, and return the Licensed Software and any copies and related documentation to Philips at the Customer’s expense immediately upon termination of the License. Upon such return, the Customer shall certify to Philips that it is not retaining, directly or indirectly, in whole or in part, the Licensed Software or parts thereof.

 

16.5    In the absence of any specific warranty for the Licensed Software as defined herein (other than third-party software) and subject to clause 11, Philips warrants that, for a period of one year from the date such Licensed Software became available, such Licensed Software shall be

substantially compliant with the applicable functional specifications in force.

 

16.5.1   This software warranty is made under the condition that during the applicable warranty period: (a) the Customer notifies Philips’ non-compliance in writing within ten (10) days from discovery, providing full details of such non-compliance; (b) such non-compliance is a critical error in the current version of the Licensed Software; and (c) Philips is able to reproduce such non- compliance. Philips shall then, at its sole discretion and expense and as a sole remedy for the Customer, make efforts to correct any such non-compliance, whether by replacement, correction or modification of the Licensed Software. If Philips is not able to remedy the non-compliance, Philips may reimburse a reasonable portion or the entire purchase price of the Product. All  corrections shall be made in accordance with the correction procedures of the Philips’ Licensed Software. Philips does not warrant the effectiveness of the correction efforts and does not represent or warrant that all errors may be corrected. The warranty period for the corrected Licensed Software will not extend the warranty period as set forth above.

 

16.5.2   The Licensed Software is provided and accepted by the Customer “AS IS”, without warranty of any kind, and no, express or implied warranties, are provided.

 

16.5.3 Philips’ warranty and service obligations in this document apply to third-party software only to the extent that Philips, in accordance with its license agreement or sales agreement with such third party, is entitled to the corresponding warranties and services.

 

16.6  Philips shall offer a software license to any bona fide licensee of the Designated Hardware in which the Licensed Software is being used (hereinafter “Secondary Licensee”), in accordance with the charges, terms and conditions in force. Due to Philips’ need to protect its proprietary information, Philips reserves the right not to license the Licensed Software to any Secondary Licensee if such Secondary Licensee is deemed by Philips to be a competitor. Upon any sale of the Designated Hardware to a Secondary Licensee and the approval of the Secondary License, Philips shall uninstall such Designated Hardware at the then current Philips’ fees and reinstall such Designated Hardware for the Secondary Licensee, but only after such Secondary Licensee has agreed to the software licensing terms.

 

16.6.1   Regarding the Licensed Software to which one or more third-party suppliers may be entitled, the provisions contained in this document shall also revert for the benefit of such suppliers. The Customer agrees to indemnify Philips for any claims made by third parties resulting from breach of the License by the Customer.

 

16.6.2   The Licensed Software may contain support for programs made in Java. Java technology is not fault-tolerant and is not designed, prepared, or planned for use or resale as online control equipment in hazardous environments that require fail- safe performance.

 

17.  Confidentiality 

 

Each party shall maintain as confidential any information furnished or disclosed to one party by the other party, whether disclosed in writing, electronically or disclosed orally, relating to the Products and business of the disclosing party, its customers and/or its patients, and this quotation or sale and its terms, including any pricing information. Each party shall use the same degree of care to protect the confidentiality of the disclosed  information as that party uses to protect the confidentiality of its own like information, but not less than reasonable care. Each party shall disclose such information only to its employees having a need to know such information to perform the transactions contemplated by this quotation. Confidential information may only be disclosed if and to the extent that it is necessary to carry out the concerned transactions. This obligation does not extend to information in the public domain at the time of the disclosure nor to information that is required be disclosed by law or court order.

 

18.  Privacy 

 

18.1   During the applicable warranty period and any customer service period agreed hereunder, if any, Philips may have to access, view and/or download computer files from  the Product that might contain information in any form relating to an identified or identi fiable individual (“Personal Data”). To the extent that Philips has access to Personal Data and to the extent required by applicable mandatory law, Philips agrees to:

 

i. Process Personal Data in accordance with all Laws applicable to the processing of Personal Data and only to the extent necessary to fulfill (warranty) obligations under this Agreement. “Processing” shall mean any operation or set of operations performed by automatic means or otherwise, including, without limitation, the collection, recording, rearrangement, organisation,  storage,  loading, adaptation  or alteration, retrieval, consultation, display, use, disclosure, dissemination, removal, erasure or destruction of Personal Data;

 

ii. ensure that only persons involved in the (warranty) services shall have access to the Personal Data and shall require such persons to protect and maintain the confidentiality of the Personal Data;

 

iii.implement the appropriate technical and organisational  security measures to protect the Personal Data, assist customer to fulfill its legal obligations and reasonably demonstrate Philips’ compliance to Customer;

 

iv.inform Customer immediately after becoming aware that a Personal Data breach has occurred, unless otherwise prohibited, such as where a law enforcement or supervisory authority requests Philips not to do so;

 

v. not hold Personal Data any longer than necessary for the purpose of performing any obligation hereunder and arrange at the choice of the Customer for the anonymisation or return of all the Personal Data together with the deletion or anonymisation of all copies in its possession, unless otherwise instructed by Customer or except to the extent Philips is required by law to retain such Personal Data;

 

vi. ensure that transfers of Personal Data to affiliates or sub-processors will occur on the basis of a legally recognised transfer mechanism; vii.Customer acknowledges and agrees that Philips may use and engage

 

sub-processors to Process Personal Data. Philips will ensure that sub- processors are contractually bound to similar data protection obligations with respect to the Processing of the Personal Data as those to which Philips is bound to under these Conditions of Sale.

 

18.2  Each party shall protect business contact information classifying as Personal Data against unauthorised disclosure and any other unlawful

 

Processing, and shall use such information only for legitimate business purposes in the interaction with each other.

 

19.  Force majeure

 

19.1   Each party shall have the right to suspend the performance of its obligations as a result of any delays or defaults caused by events beyond its reasonable control, including, but not limited to, acts of God, war, civil war, insurrection, fire, flood, labor disputes, epidemics, governmental regulations  and/or similar acts, freight embargoes, Philips’ unavailability regarding any required permits, licenses and/or authorisations, default or force majeure of suppliers or subcontractors ('Force Majeure Event').

 

19.2  If a Force Majeure Event prevents Philips from fulfilling any request from the Customer or performing any obligation arising from the sale, Philips shall not be liable to Customer for any compensation, reimbursement or damages whether for direct, indirect or consequential loss or otherwise.

 

19.3 If a party terminates the Contract as a result of a Force Majeure Event under this clause, the rights and obligations of the parties will cease; and the accrued rights or remedies of each party will not be affected.\

 

20.  Final Provisions

 

20.1   Any newly manufactured Product provided may contain selected remanufactured parts equivalent to new in terms of performance. Spare parts are new or equivalent to new in terms of performance.

 

20.2  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.

 

20.3    If any provision of this Agreement 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 this Agreement, to the extent permitted by the applicable law, shall be deemed to be a substitute for that provision.

 

20.4  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.

 

20.5  The Customer shall at all times comply with all applicable laws and regulations, including laws and rules on anti-bribery and corruption.

 

20.6  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.

 

20.7  The Customer shall not, without the prior written consent of Philips, transfer or assign any of its rights or obligations.

 

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

 

20.9  This Agreement and any agreement for the supply of the Product and related services shall be subject to and construed in accordance with the laws of the state of New South Wales. Competent courts in Sydney shall have exclusive jurisdiction in the event of any dispute between the parties, without prejudice to Philips right to submit any dispute to the court in  Customer´s place of registration. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

 

20.10  This Agreement is the final agreement between Philips and the Customer and supersedes any prior understandings or agreements between the parties,  whether written or oral, relating  to the transactions contemplated by this Agreement. Any additional condition or amendment to this Agreement shall be made in writing and signed by the legal representatives of the parties.

 

21.  Definitions

 

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.

 

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.

 

Contract means a contract between Philips and the Customer comprising of the Philips’ quotation (including all documents and exhibits attached, these General Conditions of Sale and any applicable schedules or attachments, Philips acknowledgments to the Customer order (if any), and any variations to the Philips proposal or these Conditions of Sale as agreed in writing between the parties). In the event of any inconsistency between the documents comprising the Contract, the following order of precedence shall apply (a) Philips order acknowledgement (if any); (b) Any variations to Philips’ quotation or the terms agreed between the parties in writing; (c) Philips’ quotation; (d) Exhibits; and (e) these Conditions of Sale.

 

Contract Sum means the total price payable for the Work under the Contract.

 

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 Philip’s 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.

 

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.

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.

 

Delivery means, unless otherwise agreed in writing, Delivery Duty Paid (DDP) to the Site, according to Incoterms 2010, and applies to all Products.

 

Delivery Date means, for any Products to be supplied by Philips, the final date by which Products must be delivered to Site pursuant to the Contract. Unless otherwise agreed in writing, the delivery date as confirmed in Philips’ acknowledgement (if any) of the Customer’s order shall supersede the delivery date as requested in Customer’s order.

 

Delivery Notification means, the notification sent by Philips (or Philips’ representative) to the Customer (or the Customer’s representative) at the Site, which announces the Delivery of Products to the Site on a specific date, in accordance with Philip’s obligations under the Contract to achieve Delivery by the Delivery Date.

 

Force Majeure Event is defined in clause 19.1.

 

GST has the meaning given in the GST Act.

 

GST Act means the A New Tax System (Goods and Services Tax) Act 1999

(Cth).

 

Installation means any installation, commissioning, inspection, and/or electrical and mechanical testing of the Products, or part thereof, required to be part of the Work; all in accordance to Philips’ published specifications.

 

Latent Conditions means physical conditions on Site and near its surroundings, including artificial things but excluding weather conditions, which differ materially from the physical conditions which should have been reasonably anticipated by Philips at the date of the Contract if Philips had inspected the Site and its near surroundings.

 

Law means applicable: (a) statutes, rules, regulations, by-laws, orders, awards, codes, standards, ordinances,  and proclamations of the jurisdiction where the Work or part of the Work is being performed; (b) Authorisations and requirements of Authorities or organisations having jurisdiction where the Work or part of the Work is being performed; and

(b) fees, charges, taxes, tariffs, and duties payable in connection with the foregoing.

 

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.

 

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.

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 Philips quotation; (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 Clauses 7 and 8.

 

Products means any product supplied by Philips excluding third party products furnished to the Customer by Philips under the Contract.

 

RCTI or Recipient Created Tax Invoice has the meaning given in the GST Act.

 

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.

 

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.

 

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”).