Orders – Terms and Conditions - Specialised Therapeutics

THE ST GROUP

TERMS AND CONDITIONS OF TRADE (AUSTRALIA)

1. Definitions

In these Terms:

ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;

Agreement means any agreement for the provision of goods or services by the applicable member of the ST Group to the Customer;

Consumer is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if Customer is a consumer under the Agreement;

Customer means the person, jointly and severally if more than one, acquiring goods or services from the ST Group;

goods means goods supplied by the ST Group to the Customer including Abraxane®, Anamorelin, Gelclair®, Aplidin, Gliolan®, Iclusig®, Iluvien®, and any other goods supplied by the ST Group to the Customer from time to time;

GST means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended;

PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;

services means services supplied by the ST Group to the Customer including Oncotype DX and any other service provided by the ST Group to the Customer from time to time;

Supplier means the applicable member of the ST Group which supplies goods or services to the customer under an Agreement;

ST Group means any one or more of Specialised Therapeutics Pty Ltd, Specialised Therapeutics Australia Pty Ltd, Specialised Therapeutics H Pty Ltd, Specialised Therapeutics Pharma Pty Ltd, Specialised Therapeutics Glio Pty Ltd, Specialised Therapeutics Aria Pty Ltd, Specialised Therapeutics Alim Pty Ltd, Specialised Therapeutics GH Pty Ltd, or such other related entity nominated by a member of the ST Group from time to time which supplies goods or services to the customer under an Agreement; and

Terms means these Terms and Conditions of Trade.

2. Basis of Agreement

2.1 The Customer is taken to have exclusively accepted and is immediately bound by these Terms when the Customer places an order for or accepts delivery of the goods.

2.2 These Terms may only be amended with the Supplier’s consent in writing.

3. Pricing

3.1 At the ST Group’s sole discretion, the price for the supply of goods shall be either:

(a) as indicated on any invoice provided by the ST Group to the Customer; or

(b) the Price as at the date of delivery of the Goods according to the ST Group’s current price list; or

(c) the ST Group’s quoted price (subject to clause 3.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.

3.2 The ST Group reserves the right to change its price if a variation to the ST Group’s quotation is requested by the customer for the goods.

3.3 At the ST Group’s sole discretion a deposit for the goods may be required prior to the ST Group supplying the goods.

3.4 Unless otherwise stated the price of the goods or services includes GST and any other taxes or duties imposed on or in relation to the goods and services.

3.5 The ST Group reserves the right to set minimum order quantities as set out in the ST Group’s price list from time to time. The ST Group does not accept Customer orders which do not meet the minimum order quantity.

4. Payment

4.1. Unless otherwise agreed in writing:

(a) subject to 4.1(b), full payment for the goods or services must be made within 30 days of the date of the ST Group’s invoice.

(b) the ST Group reserves the right to require payment in full on delivery of the goods or completion of the services.

4.2 Payment by cheque is not deemed made until the proceeds of the cheque have cleared in the account nominated by the ST Group.

4.3 Payment terms may, where reasonably necessary, be revoked or amended by the ST Group ’immediately upon giving the Customer written notice.

4.4 The time for payment is of the essence.

5. Payment Default

5.1 If the Customer defaults in payment by the due date of any amount payable to the ST Group, then all money which would become payable by the Customer to the ST Group at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the ST Group may, without prejudice to any of its other accrued or contingent rights:

(a) charge the Customer interest on any sum due at 12.5% per annum calculated daily for the period from the due date until the date of payment in full;

(b) charge the Customer for, and the Customer must indemnify the ST Group from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods;

(d) by written notice to the Customer, terminate any uncompleted Agreement with the Customer.

5.2 Clauses 5.1(c) and 5.1(d) may also be relied upon, at ST’s option:

(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or

(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.

6. Delivery

6.1 Delivery of the goods is taken to occur at the time that:

(a) the Customer or the Customer’s nominated carrier takes possession of the goods at the ST Group’s address; or

(b) the ST Group (or nominated carrier) delivers the goods to the Customer’s nominated address even if the Customer is not present at the address.

At the ST Group’s sole discretion the cost of delivery is either included in the price of the goods or will be charged in addition to the price of the goods.

6.2 The Customer must take delivery by receipt or collection of the goods whenever they are tendered for delivery. If that the Customer is unable to take delivery of the goods as arranged then the ST Group shall be entitled to charge a reasonable fee for redelivery and/or storage.

6.3 The ST Group may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these Terms

6.4 Any time or date given by the ST Group to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and the ST Group will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late, except to the extent of any liability imposed by the ACL.

7. Passing of Property

7.1 Until the ST Group receives full payment in cleared funds for all goods and services supplied by it to the Customer, as well as all other amounts owing to the ST Group by the Customer:

(a) title and property in all goods remain vested in the ST Group and do not pass to the Customer;

(b) the Customer must hold the goods as fiduciary bailee and agent for the ST Group;

(d) the Customer must hold the proceeds of sale of the goods on trust for the ST Group in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer’s obligation as trustee;

(e) in addition to its rights under the PPSA, the ST Group may without notice, enter any premises where it suspects the goods are and remove them, notwithstanding that they may have been attached to other goods not the property of the ST Group, and for this purpose the Customer irrevocably licences the ST Group to enter such premises.

7.2 The ST Group will exercise its right of entry (including the use and extent of force) in accordance with applicable laws.

8. Personal Property Securities Act

8.1 Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.

8.2 For the purposes of the PPSA:

(a) terms used in clause 8 that are defined in the PPSA have the same meaning as in the PPSA;

(b) these Terms are a security agreement and the Supplier has a Purchase Money Security Interest in all present and future goods supplied by the Supplier to the Customer and the proceeds of the goods;

(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and

(d) the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by any entities within the ST Group on the Personal Property Securities Register.

8.3 The security interest arising under this clause 8 attaches to the goods when the goods are collected or dispatched from the ST Group’s premises and not at any later time.

8.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95 (notice of removal of accession), 118 (enforcing security interests in accordance with land law decisions), 121(4) (notice to grantor in enforcement of security interests in liquid assets), 130 (notice of disposal of collateral), 132(3)(d) (statements of account following disposal), 132(4) (statements of account if no disposal), 135 (notice of retention of collateral) and 157(verification statements) of the PPSA.

8.5 The ST Group and the Customer agree to contract out of and nothing in the provisions of sections 96 (retention of accession when person has interest in the whole), 125 (obligation to dispose of or retain collateral), 129 (disposal by purchase), 142 (entitled persons’ redemption of collateral) and 143 (entitled persons’ reinstatement of security agreement) of the PPSA will apply to these Terms.

8.6 To the extent permitted by the PPSA, the Customer agrees that:

(a) the provisions of Chapter 4 (enforcement of security interests) of the PPSA which are for the benefit of the Customer or which place obligations on the ST Group will apply only to the extent that they are mandatory or the ST Group agrees to their application in writing; and

(b) where the ST Group has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.

8.7 The Customer must immediately upon the ST Group’s request:

(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and

(b) procure from any person considered by the ST Group to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the ST Group may at any time require.

8.8 The ST Group may allocate amounts received from the Customer in any manner and to any goods the ST Group determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by the ST Group.

8.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Terms and any information pertaining to the sale of goods and details of the goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Terms or the sale of the goods, except as otherwise required by law or that is already in the public domain.

9. Risk and Insurance

9.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being delivered to the Customer or taken from the ST Group’s premises.

9.2 The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.

9.3 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods sold by the ST Group, unless recoverable from the ST Group on the failure of any statutory guarantee under the ACL.

10. Liability

10.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.

10.2 If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against the Supplier for failure of a statutory guarantee under the ACL.

10.3 If the Customer on-supplies the goods to a consumer and:

(a) the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of the Supplier’s liability to the Customer;

(b) the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of the Supplier’s liability to the Customer;

howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.

10.4 If clauses 10.2 or 10.3 do not apply, then other than as stated in the Terms or any written warranty statement the Supplier and other entities in the ST Group are not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.

10.5 The Supplier and the other entities in the ST Group are not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.

10.6 The Customer acknowledges that:

(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by the ST Group in relation to the goods or services or their use or application.

(b) it has not made known, either expressly or by implication, to the ST Group any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer.

10.7 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.

11. Cancellation

11.1 If the ST Group is unable to deliver the goods or provide the services, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer.

11.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on the ST Group once the order has been accepted and processed by the ST Group.

12. Shortages, Exchanges, Returns and Refunds

12.1 Subject to clause 12.2 and 12.5, the ST Group will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Customer notifies the ST Group by submitting a completed ST Group Application for Return of Stock form within 7 days of delivery (or as otherwise agreed between the parties) otherwise the Customer is deemed to have accepted the goods.

12.2 When any shortages or claim for damaged goods or non-compliance with the Agreement specifications is accepted by the ST Group, the ST Group may, at its option, replace the goods or refund the price of the goods.

12.3 Subject to clause 12.2 and 12.5, ST will not under any circumstances accept goods for return that:

(a) have not been notified in writing by the Customer to the ST Group by way of a completed ST Group Application for Return of Stock form;

(b) have been specifically produced, imported or acquired to fulfil the Agreement;

(d) have been altered in any way;

(e) have been used; or

(f) are not in their original condition and packaging.

12.4 Subject to clause 12.2, the ST Group will not accept the return goods or refund the price of the goods in any circumstance, This includes, but is not limited to, incorrectly ordered goods, change of mind or goods no longer required.

12.5 If the Customer is a consumer, nothing in this clause 12 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.

13. Force Majeure

13.1 Neither party will be liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, either party may suspend or terminate the Agreement by providing written notice to the other party.

14. Miscellaneous

14.1 The law of Victoria from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.

14.2 The ST Group’s failure to enforce any of these Terms shall not be construed as a waiver of any of the ST Group’s rights.

14.3 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.

14.4 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.

14.5 The Customer must comply with the Australian Privacy Principles in connection with any personal information supplied to it in connection with this Agreement.

THE ST GROUP

PRIVACY ACT 1988 (CTH) – INDIVIDUAL ACKNOWLEDGEMENT AND CONSENT

Specialised Therapeutics Pty Ltd, Specialised Therapeutics Australia Pty Ltd, Specialised Therapeutics H Pty Ltd, Specialised Therapeutics Pharma Pty Ltd, Specialised Therapeutics Glio Pty Ltd, Specialised Therapeutics Aria Pty Ltd, Specialised Therapeutics Alim Pty Ltd, Specialised Therapeutics GH Pty Ltd, or such other entity nominated from time to time (ST Group)

Credit information that may be provided to a credit reporting body

I have applied for or been granted a commercial credit account with the ST Group.

I acknowledge and agree that the ST Group may give credit information about me to a credit reporting body before, during or after the provision of commercial credit to me, for the following purposes:

to obtain credit eligibility information about me; and/or
to allow the credit reporting body to create or maintain its records containing credit information and credit eligibility information about me.

The information that may be provided to a credit reporting body is limited to:

identity information – my name, any previous name/s and/or aliases, sex, current or last known address and previous two addresses, date of birth, name of employer, and drivers licence number;
information requests – a statement that the ST Group has sought information about me from a credit reporting body in connection with my application for commercial credit;
type of credit – the fact that I have applied for commercial credit and the amount;
credit provider – the fact that the ST Group is a current commercial credit provider to me;
court proceedings information – information about any credit-related judgments made or given against me in court proceedings; and
personal insolvency information – information about me that is entered on the National Personal Insolvency Index and which relates to my bankruptcy or personal insolvency and/or debt agreements made or proposed by me.

Assessment of Commercial Credit Application

I consent to the ST Group obtaining credit eligibility information about me from a credit reporting body and/or from another credit provider to me, and conducting a search of the Personal Property Securities Register, and using such information for the purpose of assessing my application for commercial credit.

Collection of overdue payments

I consent to the ST Group obtaining credit eligibility information about me from a credit reporting body, and using and disclosing such information for the purpose of collecting payments that are overdue in relation to the commercial credit provided by the ST Group to me.

Disclosure to guarantor

I consent to the ST Group giving credit eligibility information about me to a potential guarantor, for the purpose of that person considering whether to act as a guarantor or to offer their property as security for the commercial credit offered or provided to me.

I consent to the ST Group giving credit eligibility information about me to a guarantor of the commercial credit offered or provided to me, for the purposes of keeping them informed about the guarantee and/or the enforcement or proposed enforcement of the guarantee.

Privacy Act 1988 (Cth)

I understand that, even though I am transacting with the ST Group in relation to a commercial credit account, the credit information and credit eligibility information used and disclosed about me will or may contain information about my personal credit history and personal credit worthiness.

I understand that under the requirements of the Privacy Act 1988 (Cth):

the ST Group will ensure that all personal information about me will be collected, held, used, disclosed, stored and destroyed in accordance with the relevant Australian Privacy Principles (APPs);
the ST Group will ensure that all credit information and credit eligibility information about me will be collected, held, used, disclosed, stored and destroyed in accordance with the relevant requirements of the Australian Credit Reporting Regime and the Credit Reporting Code of Conduct (CR Code); and
I am permitted under the APPs, the Australian Credit Reporting Regime and/or the CR Code (as appropriate) to seek access to and correction of the personal information, credit information and/or credit eligibility information held about me by the ST Group.

Signing to be signed by the Customer or all directors or partners of the Customer.

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