General Terms and Conditions

Interpretation

In these terms and conditions, except where otherwise stated, the “Buyer” means the person with whom the company is contracting, the ”Company” means Neoss Australia Ltd. ACN 108 673 141, the “contract” means the contract for the supply of the Goods between the Buyer and the Company which shall include the order and these terms and conditions, the “Goods” means the goods (or any part of them) as set out in the order sold or to be sold by the Company to the Buyer, “Installation Services” means any assistance provided by the Company to the Buyer with the installation of the Third Party Software onto the Buyer’s device and related technical support, and “Third Party Software” shall mean any software licensed by the Buyer from the manufacturer or third party supplier of the Goods which enables the Buyer to use the Goods..

Placing of orders and type of contract

The order constitutes an offer by the Buyer to purchase the Goods and the order shall only be deemed accepted when the Company either confirms its acceptance in writing or dispatches the order to All orders accepted by the Company are based upon these terms and conditions, which shall supersede and be taken to override any terms or conditions proposed or stipulated by the Buyer, or which are implied by law, trade, custom, practice or course of dealing. Any changes, additions to, or cancellation of a contract shall require the written confirmation of the Company. The purchase of the Goods does not include the purchase of any services related to the Goods, including the Third Party Software, software licences or use of data hub or storage.

Installation Services

The Company may, in its sole and absolute discretion and where applicable, provide the Installation Services to the Buyer for a period as agreed in writing between the Buyer and the Company from time to time, provided that the Buyer gives the Company full access to its devices, hardware, software, systems, premises, account login and user account as reasonably required to perform the Installation Services and provided that the Company has full rights and access to the Third Party Software and any other hardware, software, systems, information and/or support as reasonably required to perform the Installation The provision of Installation Services is not a condition of the sale of the Goods and the Company may withdraw or stop the provision of Installation Services at any time. Furthermore, the Company is under no obligation to provide any technical support or services relating to, or connected with, the Goods.

The Buyer will provide a safe area for the Company (including its employees and agents) to perform any Installation Services required to be performed at the Buyer’s premises and obtain and maintain all necessary licences, consents and permissions necessary for the Company to perform its obligations under this contract.

Price

The price of the Goods shall, unless expressly stated by the Company in writing, be the list price of the Company current at the date of In the case of an order for delivery in installments, the price of the Goods shall, unless expressly stated by the Company in writing, be the list price of the Company at the date of dispatch of the relevant installment. Unless expressly agreed to by the Company in writing, the price of the Goods shall be exclusive of costs of packaging and delivery, which must be paid by the Buyer at the same time as payment for the Goods. Prices are also exclusive of any tax which, where applicable, will be separately charged at the appropriate rate. The Company reserves the right by written notice to the Buyer given at any time before delivery to increase the price of Goods if, after the date of the contract, there is an increase in the cost of the Goods to the Company by reason of any circumstances outside the control of the Company including (without limitation) increases in the cost of materials, labor or transport, exchange rate fluctuations, increase in import levies or other taxes. If the price of the Goods is increased due to these terms and conditions, the Buyer may cancel the undelivered balance of the contract by written notice to the Company served within 3 days of the receipt of the Company’s notice hereunder and prior to shipment. If the Buyer requests that the Goods are dispatched by urgent means, the Company may make an additional charge for expedited delivery.

Cancellation

Subject to section 4, the Buyer may not cancel any contract to which these terms and conditions apply without the prior written consent of the Company which, if given, shall be deemed to be on the condition that Buyer shall fully and promptly indemnify the Company against all loss, damage, costs, claims or actions arising out of such cancellation, including overhead and expected protest.

Without affecting any other right or remedy available to it, the Company may cancel immediately any contract to which these terms and conditions apply without the prior written consent of Buyer. Upon such cancellation, the Company may choose not to fulfill any outstanding order(s) for the Goods that have not been fully paid by Buyer.

On termination of the contract, the Buyer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of the Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt.

Termination of the contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as of termination. Any provision of the contract that expressly or by implication is intended to come into or continue in force on or after termination of the contract shall remain in full force and effect.

Returns

In the event that return Goods are received within 30 days from the date of delivery, the Company will, at Buyer’s option, issue a credit note, which must be redeemed against further purchases from the Company, exchange the Goods for suitable alternative products produced by the Company, or issue a refund for the Goods purchased. Goods returned between 31 – 365 days from the date of delivery may only be exchanged for suitable alternative products produced by the Goods will not be accepted for credit or exchange after 365 days from the date of delivery. All returned Goods must be in their original undamaged, unmarked and unopened package with all seals intact. Goods may not be returned for credit if they, or their packaging is in any way defaced or damaged or they have been removed from their packaging or undergone any sterilization or disinfection process. Individual item(s) from a designated kit cannot be returned. Previously exchanged Goods cannot be returned. Shipping charges for any returns must be paid by the Buyer. Before returning any Goods, the Buyer shall apply for return authorization from the Company, requesting a return number and instructions. No Goods may be returned without such authorization. Please call your local Customer Experience Team and request a return number stating the Goods to be returned. All return policy conditions must be met for the return to be processed. A return number will be given to the Buyer, which must be displayed on the package with the Goods to be returned. Send all return Goods to the Company, unless otherwise notified. Credit for returned Goods will only be issued upon the Company determining that the Goods are in an acceptable condition, the Company’s decision being final regarding the condition of returned Goods. Goods supplied according to custom.

Buyer specifications cannot be returned under any circumstances. Bone Graft Material products, NeoGen® Bone Allograft, NeoGen® Collagen Membranes and NeoGen® Tape, Foam & Plugs, Scanner Trolley, Tips , Batteries, and Extended warranties are not eligible for return. NeoScan™ Scanner units and NeoTell™ units can be returned or exchanged within 30 days of shipment provided that the Product is unopened and re-mains in its original packaging. Certain Goods are ineligible for return as indicated at the time of purchase, i.e., final sale. The Company will return to Buyer any items which have been incorrectly returned or were not eligible for return, at the cost of Buyer. Buyers who choose to return Goods eligible for return and purchased at a discount must pay any difference in the cost of the replacement Goods if the price has increased since the time of the original purchase.

Payment

Except as otherwise expressly stated, the Company shall invoice the Buyer for the Goods on or at any time after the date of shipment of each order. Payment for the Goods shall be made by the Buyer in full (in cash or cleared funds) within 30 days of the date of the In the event of default, the Buyer shall promptly reimburse the Company for all costs and expenses, including reasonable professional fees, incurred by the Company in collecting sums due hereunder. If any sums become overdue, the Company may cancel the contract with regard to any Goods which remain to be delivered thereafter. Without prejudice to any of the Company’s other rights, the Company may at its sole discretion charge the Buyer interest at 2 percent per month above the base rate of the Company’s bank from time to time on any sum not paid by the Buyer on the due date, plus any accounting fee that reflects the cost to the Company of recovering the sum overdue. Such interest shall run from day to day and accrue after as well as before any judgment and shall be compounded monthly on the sum overdue until payment thereof. Where Goods are to be supplied in installments and payment therefore made by installments, the failure of the Buyer to make the installment payment by the date due shall entitle the Company to treat such a failure as a repudiation of the whole contract by the Buyer and to recover damages for such breach of contract. The Buyer shall not be entitled to withhold payment in whole or in part on the grounds that it has a claim, counterclaim or set-off against the Company.

Packaging, freight, and insurance

Any delivery dates given by the Company are approximate Time is not of the essence in this contract, except with respect to the Buyer’s obligations, provided, however, nothing in this section is meant to exclude Buyer’s common law rights under applicable law. Unless Buyer notifies Company in writing within 14 days of Buyer’s payment of the Company’s invoice that Buyer has not received delivery of the Goods, the Buyer will have been deemed to have accepted the Goods, and Company will not be liable for any loss or expense incurred by the Buyer because of any delay in delivery for any reason other than arbitrary refusal by the Company to perform. The Company reserves the right to make partial deliveries. Risk in the Goods shall pass to the Buyer on delivery to the destination nominated by the Buyer. However, the legal and beneficial ownership of the Goods shall remain with the Company until such time as the Buyer shall have paid to the Company in cash or cleared funds the invoiced price for the Goods including any other costs as provided for in these terms and conditions. Until such time as ownership in the Goods passes to the Buyer, the Buyer shall store the Goods on its premises separately from the Buyer’s own goods or those of any other person and in a manner which makes them readily identifiable as the Goods of the Company, maintain the Goods in satisfactory condition, and keep the Goods insured against all risks for their full price from the date of delivery. At any time prior to ownership in the Goods passing to the Buyer (whether or not any payment to the Company is then overdue or the Buyer is otherwise in breach of any obligation to the Company), the Company may (without prejudice to any other of its rights) retake possession of all or any part of the Goods and enter any premises for that purpose (or authorize others to do so); or require delivery of all or any part of the Goods.

The Buyer’s right to possession of the Goods for which payment has not been made shall cease upon or after the filing by Buyer of a petition in bankruptcy or insolvency, or upon or after any adjudication that Buyer is bankrupt or insolvent, or upon or after the filing by Buyer of any petition or answer seeking judicial reorganization, readjustment or arrangement of its business under any law relating to bankruptcy or insolvency, or upon or after the appointment of a receiver for any of its property, or upon or after the making of any assignment or attempted assignment for the benefit of creditors, or upon or after the institution of any proceeding or passage of any resolution for the liquidation or winding up of Buyer’s business or for termination of its corporate life.

Force Majeure

The Company shall not have any liability under or be deemed to be in breach of these terms and conditions for any delays or failures in performance, which result from circumstances beyond its reasonable control (a “Force Majeure Event”). The Company shall be entitled in the event of a Force Majeure Event to either withdraw from the contract if the Goods or any related services (including the Installation Services) cannot be provided or extend the delivery date by a reasonable time period beyond the duration of the Force Majeure

Delivery and Acceptance

A claim by the Buyer that is based on any defect in the quality or condition of the Goods or their failure to correspond with the written specifications shall (whether or not delivery is refused by the Buyer) be notified to the Company in writing within 14 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Company accordingly, the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price for the Goods as if the Goods had been delivered in accordance with these terms and conditions. Upon a valid and timely claim with respect to the Goods, that is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these terms and conditions, the Company may repair or replace the Goods (or the part in question) free of charge or, at the Company’s sole discretion, the Company may issue a credit note to the Buyer for the price of the Goods (or a proportionate part of the price), in which case the Company shall, subject to the forgoing, have no further liability to the Buyer.

For the avoidance of doubt, the parties agree that the remedies under this section shall be the full extent of the Company’s liability under the contract, and in no event shall the entire liability of the Company under or in connection with the contract exceed the price paid for the Goods, in respect of which the claim applies.

Neoss Warranty and Complaint Programme

The Company provides a warranty and com- plaint program for certain Neoss products (“Warranty and Complaint Programme”). Further in- formation on the Warranty and Complaint Programme and whether it is applicable to the Buyer is located on the Company’s website under the Warranty & Complaints section. The specific warranty applicable to the purchased Goods is not provided to Buyer upon purchase. Buyer shall request in writing the specific warranty applicable to the purchased Goods from the Customer Experience.

Warranties

Except as expressly set forth herein, and to the maximum extent permitted by law, the company makes no warranty of merchantability or fitness for a particular purpose or any other warranty, express or implied, with respect to the goods, nor in any event will company be liable for any incidental, indirect, special or consequential damages, including, but not limited to, lost profits, resulting from the manufacture, sale or use of the goods (whether caused by the negligence of the company, its employees or agents or otherwise), which arise out of or in connection with the supply of the goods or their use or resale by the

If company receives notice from buyer in accordance with section 8, the maximum liability of company to buyer for the delay in supplying or failure to supply the goods in accordance with these terms and conditions or at all shall not exceed the total amount paid for the goods to company by buyer via the most recent invoice.

The use of the goods may be subject to other third party products and/or services such as software or data hubs. The use of such third party products and/or services are subject to the terms and conditions of those products and/or services and the buyer accepting the same. The company makes no representations and/or warranties with regards to the availability of those third party products and/or services or their continued availability.

The Company does not provide any warranty in relation to Third Party Software, or defects in any Third Party Software or for any non-performance thereof. Any claim based on, related to or arising out of the use of any Third Party Software will be governed exclusively by the terms of the Buyer’s agreement with that third party.

The Buyer shall not make any additional warranties with respect to the Goods or alter any written warranty of the Company without the prior written consent of the Company.

The Company gives no warranty and makes no representation that any sale or use by the Buyer of the Goods will be free from infringement of any patent or other intellectual property right owned or controlled by any third party and the Buyer will in this respect accept such title as the Company may have.

If the Buyer is a consumer within the meaning of Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth), there are certain rights (such as consumer guarantees) which cannot by law be excluded. This clause 12 is subject to such non-excludable rights.

If you are agreeing to the contract on behalf of an organization or entity, you represent and warrant that you are authorized to agree to the contract on that organization or entity’s behalf and bind them to the contract (in which case, the references to the “Buyer” refer collectively to you personally and to that organization or entity).

Limitation of Liability

Buyer acknowledges that the Goods are only permitted to be sold to licensed professionals practicing in dental offices, laboratories, or clinics within the country where the Goods are sold to the Buyer represents and warrants to Company that Buyer has the authority, professional credentials, and licensures necessary to purchase and use such Goods in the practice and for their affiliated patients. Buyer acknowledges that in no event shall the Company be liable to Buyer or any third parties for any of the following: (i) the practice of dentistry or any other clinical field of health care; (ii) the exercise of independent medical judgment; (iii) any patient outcomes from Buyer’s use of the Goods; (iv) Buyer’s use or supply of the Goods to any patient or individual that Buyer knows to be unsuitable for receipt of the Goods; (v) Buyer’s failure to monitor the safety of the Goods; and (vi) Buyer’s re-selling of the Goods to an individual not licensed as required by applicable law to use the Goods.

Buyer acknowledges that privacy and other laws applicable in the Buyer’s jurisdiction (including the Privacy Act 1988 (Cth)) may impose certain additional responsibilities on the Buyer and the Buyer’s use of the Goods and any related services. The Buyer agrees that it is their responsibility, and not the responsibility of the Company, to ensure that they comply with any applicable laws when using the Goods and any related services, including, but not limited to, any laws or regulations requiring that notice be given to or that consent be obtained from third parties with respect to the Buyer’s use of the Goods and any related services. If the Buyer’s use of the Goods is prohibited by applicable laws, the Buyer is not authorized to use the Goods. The Company is not responsible for and shall not be liable for the Buyer’s use of the Goods in breach of applicable laws.

Data Protection

In this section 14, the following terms shall have the meaning set out below:

1. “Buyer Data” means all Personal Information the processing of which is regulated by the Data Protection Laws, including all text, sound, video, or image files that belong to the Buyer, including any Personal Information contained in the devices belonging to the Buyer, which is processed by the Company in connection with the provision of the Installation Services.
2. “Data Protection Laws” means any laws in force in Australia from time to time that relate to data protection, the processing of personal information and privacy, including the Privacy Act 1988 (Cth) and Australian Privacy Principles; and references to “Personal Information” have the meanings set out in, and will be interpreted in accordance with, such laws.
3. “Data Security Incident” means a breach of security suffered by the Company leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, the Buyer Data transmitted, stored or otherwise processed.
4. “International Transfer” means a transfer of Personal Information to a country outside Australia.

The Buyer warrants to the Company that:

1. it has all necessary rights to authorize the Company to process the Buyer Data for the performance of the Installation Services and the Data Protection Laws;
2. its instructions to the Company relating to processing of Buyer Data will not put the Company in breach of Data Protection Laws, including with regard to International Transfers; and
3. it has complied, and will continue to comply, with the Data Protection Laws in respect of the Buyer Data.

If the Company considers that any instructions from the Buyer relating to processing of Buyer Data may put the Company in breach of Data Protection Laws, the Company will be entitled not to carry out that processing and shall immediately notify the Buyer of such determination for the Buyer to cure. The Company will not be in breach of this contract or otherwise liable to the Buyer as a result of its failure to carry out that processing.

The Company will:

1. implement appropriate and compliant technical and organizational measures in respect of the Buyer Data that it actually processes;
2. notify the Buyer without undue delay after becoming aware of a Data Security Incident;
3. provide reasonable assistance to the Buyer (at the Buyer’s cost) in:
   1. 1. complying with the Buyer’s obligations under the Data Protection Laws relating to the security of processing Buyer Data;
      2. responding to requests under the Data Protection Laws;
      3. documenting any Data Security Incidents and reporting any Data Security Incidents to any relevant governmental authority; and
      4. conducting privacy impact assessments of any processing operations and consulting with any relevant governmental authority.

Retention of customer records

The Company will retain Buyer records and data (including transaction and delivery history and interaction with Buyer employees in this regard) for purposes such as compliance and traceability and to effectively operate the Warranty and Complaint Programme and any other warranty cover that the Company may offer from time to Such retention periods may extend to the lifetime of the goods or services or the Buyer relationship. – For further information on how the Company processes personal data and retention periods, please refer to Company’s privacy policy available on its website.

Indemnification

Buyer, to the fullest extent of the law, shall indemnify, defend and hold harmless the Company and its respective affiliates, officers, directors, managers, members, employees and agents from and against any and all claims, actions, or demands of any nature whatsoever, and including all liabilities, costs, legal, and accounting fees and other fees of any kind whatsoever associated therewith arising out of or caused by: (i) any clinical activities of Buyer;

(ii) Buyer’s compliance or non-compliance with regulatory and legal requirements, including but not limited to professional liability, privacy, employment liability, or workers’ compensation, in connection with any Buyer’s services, procedures, or treatments; (iii) any failure to ensure that a patient meets all necessary requirements and suitability for the services specified or performed by Buyer; or (vi) Buyer’s negligence or willful misconduct in the performance of its obligations under any contract with the Company.

Survival

The following sections shall survive any expiration or the termination of any contract between the Company and Buyer: Warranties; Representations; Limitation of Liability; Indemnification; and Governing Law and Jurisdiction.

Representations

All descriptions, representations, specifications, samples, colours, illustrations, and other particulars furnished or made orally by the Company, its employees, or agents or in catalogs, trade literature, price lists or other documents issued by the Company are given for general information purposes only and the Buyer acknowledges that it is not entering into the contract in reliance upon any such material.

Prohibition of Product Resale or Transfer

The Buyer understands that products are regulated medical devices and is therefore prohibited from reselling, transferring, or exchanging the product in any transaction for payment, barter or for free without the express permission of the Company.

Instructions for use 

The Company normally provides a single copy of the relevant Instructions for Use even if multiple devices are supplied to a single Buyer and/or The Buyer may in any case request further copies to be provided free of charge. The Instructions for use are also available upon request.

Severance

If any provision or part-provision of the contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the If any provision of the contract is deemed deleted under this section the parties shall negotiate in good faith to agree to a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

Waiver

The failure of the Company to enforce a provision of the contract will not be deemed a waiver of such provision or of the right of the Company thereafter to enforce such

Agency

The parties to the contract are independent of each other, and no agency, partnership, joint venture or other employer-employee relationship is intended or created by the Neither party has the power to obligate or bind the other party.

Marketing

With the Buyer’s prior written consent for each occurrence, the Company may use the Buyer’s name in describing or promoting the Goods on the Company’s website and in its marketing materials or other documents listing the Company’s qualifications, experience and companies for which the Company has supplied Goods.

UN Convention

The parties expressly exclude the application of the 1980 United Nations Convention on Contracts for the International Sale of Goods.

Assignment

The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the contract without the prior written consent of the Company.

Entire Agreement

The contract embodies the final, complete and exclusive understanding between the parties with respect to its subject matter and replaces and supersedes all previous oral or written agreements, understandings or arrangements between the

The Buyer acknowledges that in entering into the contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the contract. The Buyer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the contract.

Governing Law and jurisdiction

The contract, and any dispute or claim (including non- contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of the State of Queensland, Each party irrevocably agrees that the courts of Queensland in Australia shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the contract or its subject matter or formation.

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