Untitled
unknown
plain_text
3 years ago
92 kB
7
Indexable
<p><strong>CONDITIONS OF SUPPLY & INSTALLATION</strong></p> <p><strong>1. DEFINITIONS & INTERPRETATION</strong></p> <p><strong>1.1 Definitions</strong><br /> In these Conditions, unless otherwise indicated to the contrary:<br /> <strong>Australian Consumer Law</strong> means the law set out in schedule 2 of the Competition and Consumer Act 2010 (Cth);<br /> <strong>Authorisation</strong> means an approval, consent, declaration, direction, exemption, notarisation, licence, permit, certificate, waiver or other authorisation, however described, required by any Law and includes any renewal or amendment;<br /> <strong>Authority </strong>means any:</p> <ol style="list-style-type:lower-alpha"> <li>government, government department or government agency;</li> <li>governmental, semi-governmental or judicial person including a statutory corporation; or</li> <li>other person (whether autonomous or not) charged with the administration of a Law;</li> </ol> <p><strong>Business Day</strong> means Monday through Friday (inclusive) excluding gazetted public holidays in the State or Territory where the Work is performed;<br /> <strong>Certificate of Practical Completion</strong> means a certificate in the form prescribed or approved by Siemens evidencing that Practical Completion has been reached and specifying the Date of Practical Completion;<br /> <strong>Conditions</strong> means these conditions of supply and installation which form part of Siemens’ Offer in which they are referred or to which they are attached;<br /> <strong>Confidential Information</strong> has the meaning given in clause 3.2(a);<br /> <strong>Consumer</strong> has the meaning given in the Australian Consumer Law;<br /> <strong>Contract</strong> means a contract between Siemens and the Purchaser consisting of Siemens’ Offer (including all documents attached by Siemens or which Siemens agrees are incorporated by reference); these Conditions; any amendments to Siemens’ Offer or these Conditions agreed between the parties in writing and Siemens’ order confirmation (if any);<br /> <strong>Contract Sum</strong> means the price payable for the Work under the Contract;<br /> <strong>Date for Practical Completion</strong> means the date specified in the Contract for Practical Completion (as may be extended in accordance with the Contract) or if not specified at the time of contract, as subsequently communicated by Siemens to the Purchaser in writing;<br /> <strong>Date of Practical Completion</strong> means the date evidenced in the Certificate of Practical Completion as the date upon which Practical Completion is reached;<br /> <strong>Defect </strong>means an error or defect in the Equipment due to Siemens’ faulty material or workmanship;<br /> <strong>Defects Liability Period</strong> means (unless otherwise stated by Siemens):</p> <ol style="list-style-type:lower-alpha"> <li>for reagents and consumables, 28 days from date of delivery;</li> <li>for spare parts to be delivered to Site, 90 days from the date that Siemens delivers those spare parts to Site;</li> <li>in respect of Equipment (excluding spare parts) to be delivered to the Site (but not requiring Installation), 12 months from the Delivery Date;</li> <li>in respect of Equipment (requiring supply and Installation), 12 months from the Date of Practical Completion; and</li> <li>in respect of refurbished or second hand Equipment, the period stated in the Offer (if any) from the Delivery Date for Equipment not requiring installation and from the Date of Practical Completion, for Equipment requiring installation.</li> </ol> <p><strong>Delivery Date</strong> means for any Equipment to be supplied without Installation, the final date by which Equipment must be delivered to the Site pursuant to the Contract;<br /> <strong>Equipment</strong> means all goods or other materials (including reagents and consumables) to be supplied by Siemens under the Contract;<br /> <strong>Excepted Risk</strong> means:</p> <p> </p> <ol style="list-style-type:lower-alpha"> <li>any act or omission of the Purchaser (or the Purchaser’s Personnel); and</li> <li>a Force Majeure Event;</li> </ol> <p><strong>Force Majeure Event</strong> means any event beyond the reasonable control of a party including the following events:</p> <p> </p> <ol style="list-style-type:lower-alpha"> <li>acts of war, invasion, acts of foreign enemies, hostilities insurrection, or terrorism;</li> <li>ionising radiation or contamination by radioactivity;</li> <li>contamination caused by any hazardous or toxic materials or waste (including asbestos);</li> <li>shipping congestion at port of loading/unloading, blockades, embargos, shortage of transport, general shortage of materials including worldwide shortage of helium that directly affects the site or the supply and installation of the equipment, import restrictions or currency restrictions;</li> <li>act (or failure to act) of Authorities (unless such act is the requirement of Authorities to either party to comply with any mandatory Law in force at the time of signature of the Contract), non-approval of export licence for the Work under the Contract, or epidemic;</li> <li>sabotage, cyber attacks, strikes, lockouts, go-slow or any other industrial dispute or disturbance; and</li> <li>acts of God including all natural disasters, earthquakes, volcanic activity, hurricanes, cyclones, floods, fires, tsunamis and lightning strikes;</li> </ol> <p><strong>GST Law</strong> means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any regulations made pursuant to that Act;<br /> <strong>Insolvency Event</strong> means:</p> <ol style="list-style-type:lower-alpha"> <li>in relation to a company, that the company is: (i) insolvent; (ii) has an administrator, controller, liquidator, provisional liquidator; receiver, receiver and manager, mortgagee in possession or other like officer appointed to it or over all or any of its assets; or (iii) experiences any analogous event having a substantially similar effect; and</li> <li>in relation to an individual, that he or she: (i) is insolvent; (ii) enters into a debt agreement or personal insolvency agreement; or (iii) commits an act of bankruptcy or is bankrupt;</li> </ol> <p><strong>Installation </strong>means any installation, commissioning, inspections and/or acceptance testing of Equipment required to be performed as part of the Work;<br /> <strong>Interface </strong>means an electronic connection where two or more systems or pieces of equipment exchange information;<br /> <strong>Latent Condition</strong> means physical conditions or influences on, around or otherwise affecting the Site which differ materially from the conditions which should have been reasonably anticipated by Siemens at the date of the Contract if Siemens had inspected the Site and its immediate surrounds;<br /> <strong>Law </strong>means applicable:</p> <ol style="list-style-type:lower-alpha"> <li>statutes, rules, regulations, by-laws, orders, awards, codes, standards, ordinances and proclamations of the jurisdiction where the Work or a particular part is being carried out;</li> <li>Authorisations and requirements of Authorities or organisations having jurisdiction where the Work or a particular part is being carried out; and</li> <li>fees, charges, taxes, tariffs, and duties payable in connection with the foregoing;</li> </ol> <p><strong>Major Failure</strong>, has the meaning given in the Australian Consumer Law;<br /> <strong>Normal Business Hours</strong> means between 8.30am and 5.00pm AEST on Business Days in the State or Territory where the Work is being performed;<br /> <strong>Personnel </strong>means the employees, officers, agents, consultants, other contractors and subcontractors of a party to the Contract;<br /> <strong>PPSA</strong> means the Personal Property Securities Act 2009 (Cth);<br /> <strong>Practical Completion</strong> means that stage in the carrying out of any Work involving supply and Installation of Equipment when Siemens is of the reasonable opinion that:</p> <ol style="list-style-type:lower-alpha"> <li>the Work is complete except for minor Defects which do not prevent the Equipment from being reasonably capable of being used for its stated purpose;</li> <li>those inspections and acceptance tests which are required to be carried out under the Contract before the Work reaches Practical Completion have been carried out and passed; and</li> <li>all documents and other information required under the Contract which are essential for the use of the Equipment have been supplied;</li> </ol> <p><strong>Purchaser </strong>means the person or entity for whom Work under the Contract is performed or “You” for the purposes of clause 12 and Customer for the purposes of Annexures 1 and 2;<br /> <strong>Related Body Corporate</strong> has the meaning given in the Corporations Act 2001 (Cth);<br /> <strong>Resolution Institute</strong> means the Resolution Institute (ACN 008 651 232) of Suite 602, Level 6, Tower B, Zenith Centre 821-843 Pacific Highway, Chatswood, NSW 2067; Siemens means Siemens Healthcare Pty Ltd (ABN 83 604 853 938);<br /> <strong>Siemens’ Offer</strong> means the offer by Siemens to provide the Work (and includes any special conditions contained in it);<br /> <strong>Siemens’ Personnel</strong> means all persons engaged by Siemens to perform the Work;<br /> <strong>Site </strong>means:</p> <ol style="list-style-type:lower-alpha"> <li>the delivery destination for the Equipment specified in the Contract or otherwise directed by the Purchaser; and</li> <li>the land and other places to be made available to Siemens by the Purchaser for the purposes of performing any Work involving Installation or other services under the Contract;</li> </ol> <p><strong>Smart Remote Services</strong> means any services provided remotely by Siemens (via analogue/ISDN telephone line and/or internet connection) to diagnose or troubleshoot or resolve an Equipment fault without attending the Site;<br /> <strong>Software</strong> means any software supplied by Siemens to the Purchaser for use in or in connection with the Equipment and includes, as applicable: (a) the machine-executable object code version of the software; (b) any microcode (firmware) embedded in the Equipment; (c) any related user documentation; and (d) any adaptation, copy, derivation, development, enhancement, improvement, modification, translation, Update or Upgrade of that software;<br /> <strong>Update </strong>means any software supplied by Siemens which has been produced primarily to overcome defects in, or to improve the operation of the Software (including bug fixes and patches) without significantly improving the functionality or performance of that software;<br /> <strong>Upgrade </strong>means any software supplied by Siemens which has been produced primarily to extend, alter or improve the Software, by providing additional functionality or performance enhancements; and<br /> <strong>Work </strong>means: (a) the delivery of the Equipment to the Site (for Equipment to be supplied only and not Installed); (b) the delivery and Installation of that Equipment by Siemens (for Equipment to be supplied and Installed); (c) rectification of any Defects; and (d) the provision of such other services as may be agreed between the parties from time to time in writing.</p> <p><strong>1.2 Interpretation</strong><br /> In these Conditions, unless otherwise indicated to the contrary:</p> <ol style="list-style-type:lower-alpha"> <li>a reference to the Contract or any other document or agreement, includes any variation, replacement or novation of them;</li> <li>the use of the word “include”, “includes” or “including” shall be interpreted to mean “include”, “includes” or “including” without limitation;</li> <li>headings are for ease of reference only and do not affect interpretation;</li> <li>the singular includes the plural and vice versa and reference to a gender includes the other gender;</li> <li>a reference to “$” or “dollars” is to Australian dollars;</li> <li>a reference to a party to the Contract or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives);</li> <li>where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase shall have corresponding meanings;</li> <li>a reference to all or any part of a Law includes that Law as amended, consolidated, re-enacted or replaced from time to time;</li> <li>if a payment or other act is required to be made or done on a day which is not a Business Day, the payment or act must be made or done on the next following Business Day; and</li> <li>a reference to a ‘person’ includes a firm, partnership, joint venture, association, unincorporated body, corporation or other entity.</li> </ol> <p><strong>2. OFFER, ACCEPTANCE & VARIATIONS</strong><br /> <strong>2.1 Offer & acceptance</strong><br /> Unless previously revoked by written notification to the Purchaser, Siemens’ Offer shall remain open for acceptance for the period stated in Siemens’ Offer or, where no such period is stated, for 30 days from the date of Siemens’ Offer after which Siemens’ Offer shall lapse unless extended by Siemens in writing.</p> <p><strong>2.2 Variations</strong><br /> The Purchaser may request Siemens to vary the Work to be performed by Siemens under the Contract to an extent contemplated by, and capable of being carried out under, the provisions of the Contract. Siemens shall as soon as practicable after receiving such request notify the Purchaser:</p> <ol style="list-style-type:lower-alpha"> <li>whether the proposed variation can be effected; and</li> <li>if it can be effected: <ol style="list-style-type:lower-roman"> <li>Siemens’ offer including its quote for the cost of performing the proposed variation, including any delay or disruption costs; and</li> <li>Siemens’ estimate of the impact of the variation on the Delivery Date and the Date for Practical Completion.</li> </ol> </li> </ol> <p>If the Purchaser accepts Siemens’ Offer for the proposed variation, Siemens shall perform the variation and the cost shall be added to or deducted from the Contract Sum. The Delivery Date and Date for Practical Completion shall be extended as a result of any delay incurred by Siemens due to the performance of the requested variation.</p> <p><strong>3 SPECIFICATIONS AND DRAWINGS</strong><br /> <strong>3.1 Not part of Contract</strong><br /> Unless expressly agreed in writing all descriptions, specifications, drawings, dimensions and weights submitted with Siemens’ Offer are approximate only. All descriptions, illustrations and data contained in catalogues, price lists and other promotional material are only intended to present a general idea of the products described and do not form part of the Contract.</p> <p><strong>3.2 Confidential Information</strong></p> <ol style="list-style-type:lower-alpha"> <li>Each party shall keep confidential all information (in any form or media) of the other party which is disclosed in connection with the Contract that is identified as confidential or that is of a confidential nature (including information comprised in or relating to intellectual property, data, drawings, specifications and other written information, samples and the like) or is information of the type specified in section 275(1) of the PPSA. This confidentiality obligation shall not apply to information: <ol style="list-style-type:lower-roman"> <li>which is already in the public domain (other than through a breach of a confidentiality obligation); or</li> <li>which a recipient is required to disclose to comply with any Law other than section 275(1) of the PPSA or under the rules of a stock exchange provided that the discloser is given a reasonable opportunity to prevent the disclosure (including by making representation to a court or other body as to why the information should not be disclosed).</li> </ol> </li> <li>A recipient may disclose the Confidential Information of the other party to the recipient’s Related Bodies Corporate and to such of their agents, advisors, auditors, consultants, employees, officers, representatives and other contractors as have a specific need to have access to the Confidential Information in connection with the Contract provided that those persons are put on notice of and agree to be bound by the confidentiality provisions of this clause.</li> <li>If a recipient is required to disclose Confidential Information under clause 3.2(a)(ii), the recipient must only disclose the minimum amount necessary to comply with the Law or the rules of the stock exchange.</li> <li>Unless otherwise agreed in writing between the parties, Siemens shall not be required to provide the Purchaser with any manufacturing drawings, know-how, software source codes or details of manufacturing practices, processes or operations.</li> </ol> <p><strong>3.3 Provision of necessary information</strong><br /> The Purchaser shall, within 7 days from the date of the Purchaser’s order, provide Siemens with all information and other things reasonably required by Siemens from the Purchaser to enable Work under the Contract to start and be carried out without delay or interruption, otherwise clause 5.4 shall apply.</p> <p><strong>3.4 Approval of drawings</strong><br /> Drawings or other information requiring the Purchaser’s approval shall be approved, amended or rejected and returned to Siemens within 7 days of the date of receipt (or within other such other time period as may be agreed in writing by Siemens), otherwise clause 5.4 shall apply.</p> <p><strong>3.5 Incorrect information</strong><br /> The Purchaser 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 Purchaser.</p> <p><strong>3.6 Responsibility for Authorisations</strong><br /> In the absence of any agreement to the contrary and subject to clause 14, the Purchaser shall be responsible for obtaining and providing all Authorisations necessary for performance of the Contract at the Purchaser’s cost.</p> <p><strong>4. PERFORMANCE, INSPECTIONS AND TESTS</strong><br /> <strong>4.1 Performance</strong></p> <ol style="list-style-type:lower-alpha"> <li>Siemens shall carry out and complete the Work in accordance with the Contract.</li> <li>Any performance figures given by Siemens are based on Siemens’ experience and are such as Siemens expects to obtain on testing. Subject to recognised tolerances applicable to such figures, Siemens shall not be liable if such figures are not attained unless Siemens has specifically guaranteed them in writing.</li> <li>Where Siemens has agreed to performance figures but does not achieve such figures, that shall be regarded as a Defect and Siemens shall make good any such Defect in accordance with clause 12. Siemens' liability, if any, shall in any case be limited as provided for in clause 13.</li> <li>Equipment identified as pre-owned, refurbished, remanufactured or demonstration Equipment is not new and may have received reconditioning to meet Specifications.</li> </ol> <p><strong>4.2 Inspections and acceptance tests</strong></p> <ol style="list-style-type:lower-alpha"> <li>If Siemens has agreed to perform any inspections or acceptance tests under the Contract, they will be performed in accordance with Siemens’ standard inspection and acceptance testing procedures and will be carried out at the place of manufacture or at another location at Siemens’ option. Siemens shall bear the cost of performing any inspections and acceptance tests which Siemens specifies will be borne by Siemens in Siemens’ Offer.</li> <li>Siemens may agree to carry out additional inspections or acceptance tests requested by the Purchaser. If Siemens does so, the Purchaser shall bear the cost of such additional inspections and acceptance tests and Siemens shall be granted an extension of time to the Delivery Date and the Date for Practical Completion equal to the time required to perform such additional inspections or acceptance tests.</li> <li>Siemens shall not be responsible for any expenses incurred by the Purchaser or the Purchaser’s representative arising out of or in connection with any witnessed inspections and acceptance tests.</li> <li>If during any such inspections or tests, Work is found to have any Defect, Siemens shall make good such Defect (as if it had occurred during the Defects Liability Period) in accordance with clause 12.</li> </ol> <p><strong>5. TIME AND PROGRESS</strong><br /> <strong>5.1 Base date</strong><br /> All times offered for delivery, Installation or completion shall be calculated from the later to occur of:</p> <ol style="list-style-type:lower-alpha"> <li>the date that Siemens accepts the Purchaser’s order;</li> <li>the date that all information referred to in clause 3.3 is provided to Siemens; and</li> <li>if on-Site access is required as part of the Work, the date that access to Site is given to Siemens.</li> </ol> <p><strong>5.2 Delivery Date, Date for Practical Completion & date estimates</strong></p> <ol style="list-style-type:lower-alpha"> <li>If the Work constitutes delivery of Equipment to Site only, Siemens shall deliver the Equipment to Site by the Delivery Date.</li> <li>If the Work constitutes supply of Equipment to Site (with Installation), Siemens shall perform the supply and Installation by the Date for Practical Completion.</li> <li>Any other delivery, installation or completion date or period offered is a bona fide estimate only and is not to be construed as an agreed fixed time unless expressly incorporated into the Contract as such.</li> </ol> <p><strong>5.3 Practical Completion</strong></p> <ol style="list-style-type:lower-alpha"> <li>When Practical Completion has been reached, Siemens shall provide the Purchaser with a Certificate of Practical Completion.</li> <li>Notwithstanding any other clause, Practical Completion shall be deemed to have occurred on the date of first clinical use by the Purchaser or its Personnel.</li> </ol> <p><strong>5.4 Extension of time & additional costs</strong><br /> If an Excepted Risk causes the Work to be delayed,</p> <ol style="list-style-type:lower-alpha"> <li>Siemens shall be granted such reasonable extension of time for performance of the Work as deemed necessary by Siemens to overcome the effect of such delay; and</li> <li>the Purchaser shall pay to Siemens all substantiated additional costs and expenses reasonably incurred by Siemens as a result of such delay except in the case that a Force Majeure Event has caused Siemens to be delayed; and</li> <li>the Defects Liability Period shall be reduced by the period of the Delay unless otherwise agreed.</li> </ol> <p><strong>5.5 Liquidated damages for delay by Siemens</strong></p> <ol style="list-style-type:lower-alpha"> <li>If Siemens is delayed in: <ol style="list-style-type:lower-roman"> <li>delivering the Equipment by the Delivery Date (where no Installation is required); or</li> <li>achieving Practical Completion by the Date for Practical Completion (where Installation is required) due to circumstances that are not beyond Siemens’ reasonable control, Siemens will pay the Purchaser liquidated damages for each completed week of delay at the rate of 1% of the Contract Sum payable for the delayed Work per completed week up to a maximum of 5% of the Contract Sum payable for the delayed Work. If this liquidated damages clause is found for any reason to be void or unenforceable then Siemens’ total liability arising out of delay shall in no event exceed 5% of the Contract Sum payable for the delayed Work.</li> </ol> </li> <li>The payment of such liquidated damages shall be the Purchaser’s sole and exclusive remedy and shall be in full satisfaction of any loss or damage sustained by the Purchaser arising out of delay.</li> </ol> <p><strong>5.6 Force Majeure</strong></p> <ol style="list-style-type:lower-alpha"> <li>If a Force Majeure Event prevents a party from partially or wholly complying with its obligations under the Contract (other than payment obligations) then that party shall not be obliged to perform those obligations until it is no longer prevented from doing so and shall be granted a corresponding extension of time accordingly.</li> <li>If a party is prevented by the Force Majeure Event from carrying out its obligations for more than 180 days, either party may terminate the Contract by giving written notice to the other party.</li> <li>If a party terminates the Contract 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. Upon such termination, the Purchaser shall pay to Siemens: <ol style="list-style-type:lower-roman"> <li>all amounts due to Siemens for Work carried out under the Contract;</li> <li>the cost of materials and equipment reasonably ordered by Siemens for the Work under the Contract and which Siemens is liable to accept; and</li> <li>Siemens’ reasonable demobilisation costs (if any).</li> </ol> </li> </ol> <p><strong>5.7 Storage</strong><br /> If after a period of 14 days from the date of notification that any of the Equipment to be supplied as part of the Work is ready for delivery, delivery is delayed due to an act or omission of the Purchaser or the Purchaser’s Personnel, Siemens may arrange for storage of the Equipment at Siemens’ premises or elsewhere and Purchaser shall be liable for such cost. The Purchaser shall pay all reasonable and verifiable costs in connection with the delay including all applicable storage, insurance, demurrage and handling costs.</p> <p><strong>5.8 Partial deliveries</strong><br /> Siemens reserves the right to make partial deliveries and to separately invoice same unless otherwise agreed between the parties in writing.</p> <p><strong>5.9 Separable portions</strong><br /> These Conditions shall apply to any separable portions of the Work.</p> <p><strong>6. PURCHASER’S SITE & PERSONNEL OBLIGATIONS</strong><br /> <strong>6.1 Site preparatory Work</strong><br /> If the Work includes any on-Site works, the Purchaser shall Conditions of Supply & Installation (AUS) - Version: 20220517 Page 4 prepare the Site (at the Purchaser’s expense) prior to Siemens commencing such Work in accordance with the Siemens Project Plan and the Siemens Equipment Specific Technical Planning Guides provided by Siemens to the Purchaser. The Site preparation obligations of the Purchaser may include but are not limited to:</p> <ol style="list-style-type:lower-alpha"> <li>taking all necessary measures to ensure that Siemens’ Personnel are able to commence the Work immediately upon arrival at the Site;</li> <li>ensuring that Siemens’ Personnel can perform the Work in an uninterrupted manner including ensuring that no other persons are working or otherwise present on Site in a manner that impedes Siemens’ Personnel;</li> <li>ensuring that all preparatory work including the supply of materials and equipment, (which are the responsibility of either the Purchaser or others), is sufficiently complete and/or available to enable Siemens’ Personnel to perform the Work;</li> <li>ensuring that the Site and adjacent areas are clear so that Siemens has unimpeded and unrestricted access to the Site;</li> <li>ensuring (where appropriate) the ready availability of necessary roads and other access ways to the Site and ensuring that such roads and access ways are suitable for the movement of any heavy and/or special equipment to and from the Site;</li> <li>supplying Siemens with all relevant information that may impact upon the performance of the Work including without limitation the location of underground power cables, gas and water pipes together with any necessary static data for structures;</li> <li>ensuring adequate power supply terminating at a point to be specified by Siemens including the necessary main switch and fuses all in accordance with the Standards Australia Wiring Rules (AS/NZS 3000:2018) and with requirements of other applicable Authorities, as well as providing all necessary carpentry, plumbing, painting, electrical, structural, radiation protection and other work required by Siemens’ Personnel in connection with the Work; and</li> <li>doing all necessary things to ensure that outside influences do not adversely affect the function of any installed Equipment and that any installed Equipment does not adversely affect the outside environment.</li> </ol> <p>If any failure of the Purchaser to prepare the Site in accordance with this clause causes Siemens to be delayed or necessitates the Work being performed outside of Siemens’ Normal Business Hours, Siemens may without limiting any other remedies available to Siemens under the Contract and at Law, arrange for the Work to be performed at the Purchaser’s cost and the Purchaser shall indemnify Siemens upon demand for all such additional costs, charges and expenses incurred by Siemens in doing so.</p> <p><strong>6.2 Latent conditions</strong><br /> (a) Siemens shall promptly notify the Purchaser upon becoming aware of any Latent Condition while carrying out the Work. To the extent Siemens is able to address the impact of the Latent Condition, Siemens shall give details of the Latent Condition encountered and the additional work, resources, time and cost which Siemens estimates to be necessary to address the Latent Condition. The Purchaser shall pay Siemens the reasonable increased cost incurred by Siemens as result of the Latent Condition and shall grant Siemens any reasonable extension of time to the Date for Practical Completion deemed necessary by Siemens. Purchaser shall be responsible to address Latent Conditions which may relate to asbestos.<br /> (b) Siemens shall not be liable for loss, damage, or impact in the performance of the Equipment arising directly or indirectly from a Latent Condition.</p> <p><strong>6.3 Supply of auxiliary goods, facilities and services</strong><br /> The Purchaser shall supply (at the Purchaser’s expense) all auxiliary goods, facilities and services deemed necessary by Siemens for the performance of the Work including but not limited to the provision of:</p> <ol style="list-style-type:lower-alpha"> <li>all unskilled labour (including handymen and transport workers) and skilled labour (including bricklayers, plumbers, electricians and carpenters) in such numbers and for such periods as are required by Siemens. (The Purchaser shall ensure that these Personnel receive their instructions from Siemens however the Purchaser agrees that these Personnel shall remain under the care and responsibility of the Purchaser who shall ensure that all necessary insurances as required by Law, are in force);</li> <li>all necessary excavation, foundation, building, caulking, scaffolding, painting and cleaning work together with necessary tools, equipment and materials;</li> <li>such things as lifting machinery and devices, timber, planking, strutting, cement, fuels, water and all such other things as are necessary for the performance of Work;</li> <li>adequate lighting of all areas necessary to perform the Work;</li> <li>dry lockable storage space considered suitable by Siemens for the storage of machinery, equipment, materials and tools;</li> <li>facilities considered suitable by Siemens located adjacent to the Site (if required by Siemens) with adequate lighting, washing, toilet and drinking water for use by Siemens’ Personnel. Such facilities must be heated or air-conditioned if Siemens advises the Purchaser that Siemens considers there to be adverse climatic conditions in existence at the Site;</li> <li>adequate telephone and other communication facilities requested by Siemens;</li> <li>240 volt, 50 cycle single phase power at 3 pin general purpose outlets at locations considered suitable by Siemens; and</li> <li>mains and auxiliary electrical power necessary for the operation of all equipment, capable of being isolated either by isolating switches, removal of fuses or another means approved by Siemens. If the Purchaser does not provide or procure the provision of the above goods, facilities and services to the satisfaction of Siemens, Siemens may do so (at the Purchaser’s expense) provided that the Purchaser has first been informed of the noncompliance and been given an opportunity to remedy the noncompliance (if the non-compliance is capable of being remedied).</li> </ol> <p><strong>6.4 Site access & possession</strong><br /> Unless otherwise agreed between Siemens and the Purchaser, the Purchaser shall give Siemens at least one month’s prior written notice of the date upon which access to the Site will be available to Siemens for performance of the Work.</p> <p><strong>6.5 Requests to perform additional work</strong><br /> If the Purchaser requests Siemens’ Personnel to perform additional work not specified in Siemens’ Offer or any resultant Contract such additional work shall be subject to Siemens’ prior written approval. Subject to such approval, Siemens will charge the Purchaser for any such additional work performed by Siemens’ Personnel in accordance with Siemens’ prevailing rates in existence at the time the additional work is performed. The parties will enter into a Contract variation reflecting the terms and price for the additional work.</p> <p><strong>6.6 Appointment of Purchaser’s Representative</strong></p> <ol style="list-style-type:lower-alpha"> <li>The Purchaser shall appoint and provide Siemens with the name, address, telephone number, facsimile and email address of a qualified person authorised to represent and bind the Purchaser at least 2 weeks prior to the date upon which any Siemens’ Personnel are required on Site. Matters within the knowledge of the Purchaser’s representative shall be deemed to be within the Purchaser’s knowledge.</li> <li>The Purchaser shall ensure that the Purchaser’s representative is contactable by Siemens during Normal Business Hours and that the Purchaser’s representative attends all meetings reasonably requested by Siemens.</li> <li>The Purchaser shall notify Siemens of the details of any changes to the details of the Purchaser’s representative. If Siemens makes a reasonable objection to the appointment of a representative, the Purchaser shall terminate the appointment of that representative and shall appoint another.</li> </ol> <p><strong>7. RISK</strong><br /> <strong>7.1 When risk passes to Purchaser</strong></p> <ol style="list-style-type:lower-alpha"> <li>From the date of commencement of supply of the Work until the date of transfer of risk to the Purchaser pursuant to this clause 7.1, Siemens shall bear the risk of loss or Conditions of Supply & Installation (AUS) - Version: 20220517 Page 5 damage to the Work and shall at Siemens’ cost rectify such loss or damage (except where such loss or damage results from an Excepted Risk).</li> <li>If any loss or damage to the Work is caused by an Excepted Risk the Purchaser shall bear the cost of rectifying the loss or damage and such rectification shall be deemed a variation.</li> <li>Risk of loss or damage to Equipment (including spares) required to be delivered to Site by Siemens shall transfer to the Purchaser upon delivery of such Equipment to Site.</li> </ol> <p><strong>7.2 Purchaser’s equipment and material</strong><br /> Property in and risk of accidental damage to or loss of equipment and material of any kind provided by the Purchaser shall at all times remain with the Purchaser except where such damage or loss has resulted from negligence by Siemens.</p> <p><strong>7.3 Clinical Risk</strong><br /> Siemens has no responsibility, authority or obligation to supervise or control Purchaser’s Personnel. If Siemens is providing training or advice on the use of the Equipment, this is not to be considered clinical advice. Purchaser remains fully responsible for clinical advice, diagnosis and therapy and releases and indemnifies Siemens from and against any claims or liability arising as a result of the provision of clinical advice, diagnosis or therapy using or following the use of the Equipment.</p> <p><strong>8. TITLE</strong><br /> <strong>8.1 Passing of title</strong><br /> Title and property in all Equipment supplied as part of the Work shall remain with Siemens until such time as full payment is made to Siemens for all amounts due and owing by the Purchaser to Siemens.</p> <p><strong>8.2 Right of recovery</strong><br /> If the Purchaser fails to make payment of all amounts due and owing to Siemens, then Siemens may recover the Equipment supplied as part of the Work from the Purchaser. For that purpose Siemens’ representatives may enter upon the premises where such Equipment is located in order to effect recovery (notwithstanding any incorporation of the Equipment supplied as part of the Work into any plant, material, goods or property of the Purchaser). Siemens shall have the right to resell or otherwise dispose of the Equipment so recovered without reference to the Purchaser.</p> <p><strong>8.3 Payment due upon Insolvency Event</strong><br /> Payment shall become due immediately upon the Purchaser suffering an Insolvency Event.</p> <p><strong>8.4 Proceeds of sale</strong><br /> If the Purchaser sells the Equipment supplied as part of the Work before payment in full has been made to Siemens then the Purchaser in a position of trustee shall:</p> <ol style="list-style-type:lower-alpha"> <li>hold the proceeds of the sale separately on behalf of Siemens;</li> <li>assign to Siemens the benefit of any claim against such purchaser(s); and</li> <li>account fully to Siemens for the proceeds of the sale of the Equipment sold or any part of it until the Purchaser’s total indebtedness to Siemens is discharged.</li> </ol> <p><strong>9. PPSA</strong><br /> <strong>9.1 Enforcement Provisions of the PPSA</strong></p> <ol style="list-style-type:lower-alpha"> <li>The parties contract out of the provisions of the PPSA allowed by section 115 of the PPSA to the following extent: <ol style="list-style-type:lower-roman"> <li>an exercise by Siemens of any right, power or remedy will be taken not to be under a provision mentioned in that section to the extent that the right, power or remedy is granted under any other law or statute or under these conditions unless Siemens so elects; and</li> <li>any restriction on the exercise by Siemens of a right, power or remedy, or any obligation of Siemens to give notice, will not apply to the extent that the section so allows.</li> </ol> </li> <li>The Purchaser waives its right to receive each notice which, under section 157(3) of the PPSA, it is permitted to waive.</li> <li>The Purchaser waives its rights to receive anything from Siemens under section 275 of the PPSA and agrees not to make any request of Siemens under that section.</li> </ol> <p><strong>9.2 Further Assurances</strong><br /> The Purchaser consents to Siemens perfecting its interest in any goods provided by Siemens to the Purchaser by registration under the PPSA and agrees to do anything reasonably requested by Siemens to enable it to do so.</p> <p><strong>10. PRICES & CONTRACT SUM ADJUSTMENT</strong><br /> <strong>10.1 Price Basis</strong></p> <ol style="list-style-type:lower-alpha"> <li>The Contract Sum quoted by Siemens is based on: (i) the quantity and scope of Work specified in Siemens’ Offer and any minimum order values stated in Siemens’ Offer; and (ii) the Equipment being located at the Site to the end of the Defects Liability Period. If there is any variation in the quantity or scope of Work ordered from that offered or any Equipment is relocated prior to the end of the Defects Liability Period, Siemens may adjust the Contract Sum accordingly. If Siemens’ Offer contains a provision stating that any portion of the Contract Sum is subject to adjustment after a specified reference date due to foreign exchange rate variations, rise and fall or any other circumstance and the provision sets out the mechanism for calculating such adjustment, then Siemens may adjust the Contract Sum in accordance with such provision.</li> <li>Unless otherwise agreed between the parties in writing, Siemens will perform the Work during Normal Business Hours. Any Work, travel or waiting time incurred by Siemens outside of Normal Business Hours will be regarded as additional work and will be charged to the Purchaser at Siemens’ then prevailing rates.</li> <li>Unless otherwise stated in the Contract, all Equipment (including spare parts) to be supplied only (and not Installed) shall be Delivered Duty Paid to nominated Site according to INCOTERMS 2020 (as amended from time to time) and delivery shall take place when the Equipment is delivered to Site, cleared for import and not unloaded. The Purchaser shall do everything necessary to take delivery of the Equipment at the Site.</li> </ol> <p><strong>10.2 GST</strong></p> <ol style="list-style-type:lower-alpha"> <li>All prices or rates offered by Siemens (including the Contract Sum) is expressed on a GST exclusive basis. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in the Contract plus GST. Siemens and the Purchaser must provide each other with all documentation, including a Tax Invoice required to claim any Input Tax Credit, set-off, rebate or refund for or in relation to any GST included in any payment made under the Contract.</li> <li>In this clause 10.2, “GST”, “Input Tax Credit”, “Tax Invoice” and “Taxable Supply” have the meaning given to them in the GST Law.</li> </ol> <p><strong>10.3 Changes in Law</strong><br /> If after the date of Siemens’ Offer a Law changes, is revoked or comes into effect which causes Siemens to incur more or less cost than otherwise would have been incurred, the Contract Sum shall be adjusted by such reasonable costs to take into account the difference. If the change, revocation or introduction of the Law causes delay to Siemens, then Siemens shall be entitled to a corresponding extension of time to the Date for Practical Completion.</p> <p><strong>11. PAYMENT</strong><br /> <strong>11.1 Invoicing</strong></p> <ol style="list-style-type:lower-alpha"> <li>Unless otherwise agreed between the parties in writing, Siemens may invoice the Purchaser 100% of the Contract Sum for Work (constituting supply of reagents and consumables) upon delivery of the Equipment to Site.</li> <li>Unless otherwise agreed between the parties in writing, Siemens may invoice the Purchaser for the Work (constituting supply and Installation of Equipment) as follows: <ol style="list-style-type:lower-roman"> <li>25% deposit upon placement of the Purchaser’s order;</li> <li>50% upon delivery of the Equipment to Site; and</li> <li>25% of the Contract Sum upon Practical Completion.</li> </ol> </li> <li>Siemens may invoice the Purchaser for any variations or additional work requested by the Purchaser at the times agreed in writing between Siemens and the Purchaser.</li> <li>Where any other amount is payable to Siemens pursuant to the Contract, Siemens may invoice such amounts as and when they occur.</li> </ol> <p><strong>11.2 Certification of hours worked</strong><br /> Where any provision of the Contract enables Siemens to charge the Purchaser for hours worked by Siemens’ Personnel at Siemens’ then prevailing rates, the Purchaser shall at least fortnightly, certify the number of hours worked by Siemens’ Personnel as shown on Siemens’ records or other documents. If the Purchaser does not provide such certification without reasonable cause, Siemens may invoice the Purchaser on the basis of such uncertified records and the Purchaser shall be liable accordingly.</p> <p><strong>11.3 Payment terms and credit facilities</strong></p> <ol style="list-style-type:lower-alpha"> <li>Unless otherwise agreed between the parties, the Purchaser shall pay all amounts invoiced by Siemens within 30 days from the date of invoice.</li> <li>Siemens may provide credit facilities in its discretion. Siemens reserves the right to withdraw credit facilities at any time prior to delivery.</li> </ol> <p><strong>11.4 Payment when delivery delayed</strong><br /> If the provision of any Work is delayed by the Purchaser or the Purchaser’s Personnel, then payment of the full Contract Sum for the delayed Work shall be made by the Purchaser to Siemens within 30 days after notification by Siemens that Siemens is ready to provide the Work.</p> <p><strong>11.5 Delay or default in payment</strong><br /> Siemens may charge interest on overdue amounts (at the rate of 3% above the 90-day Bank-accepted bills daily rate published by the Reserve Bank of Australia.</p> <p><strong>11.6 Trade-ins</strong><br /> The Purchaser warrants and covenants that any goods traded-in by the Purchaser in accordance with a written agreement between Purchaser and Siemens, are the Purchaser’s absolute and unencumbered property and the Purchaser agrees that any such items will become the absolute property of Siemens free from all charges, liens and encumbrances from the date on which Siemens takes possession of the goods and until such time risk of loss or damage to the goods shall remain with the Purchaser.</p> <p><strong>11.7 Financing</strong><br /> If the Purchaser informs Siemens that finance is to be arranged in respect of the Equipment, the following shall apply:</p> <ol style="list-style-type:lower-alpha"> <li>the Purchaser agrees to procure a finance company to purchase the Equipment and to notify Siemens of the name and address of the finance company;</li> <li>Siemens shall forward the invoice for the Equipment to the finance company and all payments by the finance company of the invoiced amount shall discharge the Purchaser’s corresponding payment obligations for the Equipment under the Contract, but all other provisions of the Contract shall remain in full force and effect;</li> <li>if the nominated finance company does not pay the full invoiced amount that is due and owing to Siemens by the due date, then Siemens may forward the invoice to the Purchaser who shall be bound to purchase the Equipment from Siemens and to pay for the Equipment in accordance with the Contract; and</li> <li>the Purchaser acknowledges that no discussion, correspondence or other communications between Siemens and the Purchaser concerning the sources or availability of finance shall in any way affect the Purchaser’s obligations under the Contract.</li> </ol> <p><strong>12. DEFECTS LIABILITY</strong><br /> <strong>12.1 Defects generally</strong><br /> Subject to clause 12.5, Siemens shall rectify any Defects which occur during the Defects Liability Period, at its option, by repair, replacement or supply of equivalent goods (or by payment of the cost of doing so), provided that:</p> <ol style="list-style-type:lower-alpha"> <li>the Purchaser notifies Siemens of the Defect in writing within 7 days after the Purchaser becomes aware of or should have become aware of the Defect;</li> <li>such Equipment has been properly handled, used, operated and maintained in accordance with instructions issued by Siemens or if no instructions have been issued, in accordance with good industry practice;</li> <li>such Defects are not caused by incorrect use of operating material or lubricants, faulty civil or mechanical work, unsuitable soil conditions or any other chemical, electrochemical and/or electrical influences which have not been provided for in the Contract;</li> <li>the Equipment is not a consumable, not liable to deterioration or does not have a low rated service life such as electric lamps, rubber items, intensifying screens, batteries, films, chemicals flexible leads, x-ray tubes, vacuum elements, crystals, electronic valves and glass components;</li> <li>no unauthorised repair or alteration to the Equipment has been made;</li> <li>the Defects have not resulted from any refusal by the Purchaser to accept an Update or Upgrade recommended by Siemens;</li> <li>such Defects are not caused by the use of other equipment and/or material supplied by the Purchaser; and</li> <li>such Defects are not due to fair wear and tear, improper storage, excessive heating, mechanical vibration, overloading or contravention of the rules established in standard electrical practice.</li> </ol> <p>The obligation to rectify Defects in this clause 12.1 shall not apply to vacuous devices, digital acquisition devices, CT detectors, molecular imaging crystals and flat panel monitors which are subject to the terms of any special pro-rata warranty set out in Siemens’ Offer. To the extent Siemens supplies Equipment at the Site, the Purchaser agrees to Siemens providing Smart Remote Services in accordance with Annexure 1 to these Conditions.</p> <p><strong>12.2 Purchaser’s obligation with respect to repair or replacement</strong></p> <ol style="list-style-type:lower-alpha"> <li>Where the Purchaser has notified Siemens of an alleged Defect in accordance with clause 12.1, the Purchaser shall, at Siemens’ request do those things necessary to enable Siemens to repair or replace the Defective part on behalf of the Purchaser (including giving Siemens access to any premises where the Defective parts are located).</li> <li>Where any Defective part has been replaced, that Defective part shall become the property of Siemens upon its removal. All replacement parts shall become the property of the Purchaser upon installation.</li> </ol> <p><strong>12.3 Exclusive remedy</strong><br /> To the extent permitted by Law and subject to clauses 12.4 to 12.6:</p> <ol style="list-style-type:lower-alpha"> <li>Siemens’ obligation to rectify Defects in accordance with this clause 12 shall be the Purchaser’s sole and exclusive remedy and represents the full extent of Siemens’ liability for Defects; and</li> <li>all representations, warranties and conditions of any kind, whether express or implied (including any warranties and conditions of merchantability and fitness for a particular purpose or arising from a course of dealing or usage or trade) relating to the Work that are not contained in the Contract are excluded.</li> </ol> <p><strong>12.4 Implied conditions, warranties and consumer contracts</strong><br /> Nothing in this clause 12 is intended to exclude any conditions, guarantees or warranties implied into the Contract, or any remedies made available to the Purchaser, by the provisions of the Australian Consumer Law or by any other Federal, State or Territory Laws to the extent that such implied conditions, guarantees, warranties or remedies may not be excluded by express agreement.</p> <p><strong>12.5 Where goods/services supplied to a Consumer</strong><br /> In addition to the above, if any supply of goods and/or services under the Contract to the Purchaser is a supply to a Consumer, then, subject to clause 12.6, the following applies:</p> <ol style="list-style-type:lower-alpha"> <li>Siemens goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: i. to cancel your service contract with us; and ii. to a refund for the unused portion, or to compensation for its reduced value;</li> <li>You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a Conditions of Supply & Installation (AUS) - Version: 20220517 Page 7 major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service;</li> <li>Siemens provides the Defects Liability Period cover under clause 12.1 in addition to your rights under the Australian Consumer Law. You must make any claim under that cover by notifying Siemens in accordance with clauses 12.1(a) in writing at the address set out under clause 12.5(d), unless otherwise notified under clause 17.1;</li> <li>The Defects Liability cover is given by:<br /> Name: Siemens Healthcare Pty Ltd (ABN 83 604 853 938)<br /> Business Address: Level 3, 141 Camberwell Road, 3123, Victoria<br /> Telephone Number: 1800 310 300<br /> Email address: ccc.au@siemens-healthineers.com</li> </ol> <p><strong>12.6 Supply to a Consumer of goods or services not ordinarily for personal, domestic or household use or consumption</strong><br /> If the Purchaser is a Consumer or deemed to be a “consumer” under the Laws referred to in clause 12.4 above, and the goods or services to be supplied by Siemens are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then Siemens’ liability for breach of any condition, guarantee or warranty implied by such Law shall to the extent permitted by such Laws be limited to:</p> <ol style="list-style-type:lower-alpha"> <li>in the case of goods - to the repair of the goods, or, at Siemens’ option, the replacement of the goods or the supply of equivalent goods or to the payment of the cost of repair, replacement or supply of equivalent goods; and</li> <li>in the case of services - to the resupply of those services or payment of the cost of having those services resupplied.</li> </ol> <p><strong>13. LIABILITY</strong><br /> <strong>13.1 Limitation of liability</strong><br /> Notwithstanding any other provision of the Contract and except to the extent that liability cannot legally be limited or excluded:</p> <ol style="list-style-type:lower-alpha"> <li>Siemens’ total aggregate liability arising out of or in connection with the Contract shall be limited to the Contract Sum in total aggregate (or such other amount as agreed between the parties in writing); and</li> <li>Siemens shall under no circumstances be liable for economic loss; loss of contract; loss of profit or revenue; business interruption; loss of production; loss of data; costs of data reconstruction and Equipment reset; indirect or consequential loss or damage or for special or exemplary damages.</li> </ol> <p>This limitation and exclusion of liability shall apply whether the liability claim is based on breach of contract, tort (including negligence), under a warranty or an indemnity, under statute, in equity or otherwise. 13.2 Third party benefit Siemens holds the rights under clause 13.1 for itself in its own capacity and as agent of and trustee for its Related Bodies Corporate, its Personnel and the Personnel of its Related Bodies Corporate and suppliers ("Associates") respectively. For the purpose of this clause 13.2, each of the entities comprising the Associates must be treated to this extent as a party to the Contract and may plead the Contract as a bar to any claims by the other party under the Contract. 14. INTELLECTUAL PROPERTY RIGHTS 14.1 Ownership of intellectual property rights (a) Title to the Software and all intellectual property rights subsisting in the Equipment and the Software (including designs, drawings and patents) shall remain the exclusive property of Siemens or Siemens’ third party suppliers or licensors. The Purchaser will not take any action that jeopardises such proprietary rights or acquire any right in the Software, other than pursuant to a Software licence of the type referred to in clause 14.2. (b) The Purchaser shall not remove any confidentiality, copyright, trademark or other proprietary notices appearing on the Equipment or included in the Software or any media upon which the Software is provided. (c) The Purchaser shall not permit any intellectual property rights subsisting in the Equipment to be reproduced or disclosed in any way without Siemens’ prior written consent. (d) To the extent permitted by Law, as between the parties, Siemens shall own all rights in any adaptation, copy, derivation, development, enhancement, improvement, modification, translation, Update or Upgrade of or to the Equipment or Software. 14.2 Software licence and System Interface (a) If any Software is supplied by Siemens, the Purchaser’s use of that Software shall be governed by the terms of the associated licence. If there is no separate licence, the Purchaser is hereby granted a non-exclusive, nontransferable licence to use that Software in conjunction with the Equipment. This licence does not extend any right to the Purchaser in respect of source code to the Software and is without prejudice to any licence fees provided for in the Contract. (b) The Purchaser shall not directly or indirectly reverse assemble or reverse compile the whole or any part of any Software or otherwise attempt to: (i) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Software; or (ii) derive any source code from the Software. (c) The Purchaser shall not (without Siemens’ prior written consent): (i) modify the Software or merge all or any part of the Software with any other software; (ii) copy or reproduce the Software by any means or in any form; or (iii) make the Software available to any third party. (d) Subject to Siemens’ Defects Liability Period obligations under clause 12: (i) Siemens is not obliged to provide Updates or Upgrades under the Contract; and (ii) Siemens reserves the right to charge the Purchaser for any Updates or Upgrades supplied by Siemens. (e) To the extent permitted by Law, Siemens may refuse to provide maintenance or support services for the Equipment or Software if the Purchaser refuses to accept any Update or Upgrade recommended by Siemens. (f) Siemens will only provide Interface services between the Equipment and any existing systems, equipment or infrastructure at or connected to the Site to the extent identified within Siemens’ Offer. 14.3 Indemnity (a) Siemens shall indemnify the Purchaser against any claims which the Purchaser is legally liable for, in respect of any infringement of a third party’s copyright or registered design, trademark or patent, the specification of which is published prior to the date of Siemens’ Offer, relating to any part of the Work supplied by Siemens (except if the part is based on a design specified by the Purchaser, or if the claim is due to use of the part not in accordance with the Contract or use of the part in conjunction with goods not supplied by Siemens) (“Infringing Part”). (b) Siemens’ obligation to indemnify the Purchaser under the Contract shall be reduced to the extent that: (i) an act or omission of the Purchaser (or of the Purchaser’s Personnel), has contributed to the loss or damage; and (ii) the Purchaser has failed to mitigate its loss, and shall cease two years after the earlier of termination or expiry of the Contract or completion of the Work under the Contract. 14.4 Remedies (a) Siemens shall, at its option, either replace or modify the Infringing Part with a non-infringing part or procure for the Purchaser the right to use such Infringing Part. (b) The remedies set out in this clause 14 shall be the sole and exclusive remedy of the Purchaser for infringement of intellectual property rights. Conditions of Supply & Installation (AUS) - Version: 20220517 Page 8 14.5 Warranty by Purchaser The Purchaser warrants that use by Siemens of any design materials, documents and methods of working provided or directed by the Purchaser to enable Siemens to perform Work under the Contract, will not cause Siemens to infringe any third party’s intellectual property rights and the Purchaser will indemnify Siemens upon request for any loss or damage incurred by Siemens in connection with such infringement. 14.6 Indemnity Procedure (a) A party's obligation to indemnify the other party against claims under clause 14.3 and 14.5 respectively, is subject to the indemnified party: (i) giving the indemnifying party prompt written notice of the claim; (ii) not making any admission or prejudicing the indemnifying party's defence of the claim or ability to negotiate a satisfactory settlement; (iii) allowing the indemnifying party the opportunity to control at the indemnifying party's expense the conduct of the defence and any negotiations for the settlement of the claim; and (iv) giving the indemnifying party, at the indemnifying party's expense, such assistance and information as may reasonably be required by the indemnifying party to assist the indemnifying party with the conduct of the defence and any negotiations for the settlement of the claim. (b) Notwithstanding clause 14.6(a)(iii), the indemnifying party agrees to genuinely consult with the indemnified party with respect to the conduct of the defence and any negotiations for the settlement of the claim, such consultation to include providing the indemnified party with material updates and seeking the views of the indemnified party throughout the conduct of the defence and any claim settlement negotiations. 15. DISPUTE RESOLUTION 15.1 Notice of Dispute Any dispute or difference between the parties arising out of or in connection with the Contract (“Dispute”) shall be notified to the other party by written notice of that Dispute, giving details of the subject-matter of the Dispute (“Notice of Dispute”). 15.2 Escalation of Dispute Upon the giving of a Notice of Dispute, the following shall apply: (a) the Dispute shall be submitted for negotiation by a duly authorised representative of each party; and (b) if within 14 days of the giving of the Notice of Dispute (or such further period agreed by the parties) the Dispute has not been resolved: (i) if the Dispute is for an amount less than $100,000, a party may commence legal proceedings to resolve the Dispute; or (ii) the Dispute shall be referred to mediation in accordance with, and subject to, the Resolution Institute Mediation Rules by a mediator who is independent of the parties and appointed by agreement of the parties, or failing agreement within 21 days of receipt of a party’s Notice of Dispute, by a mediator appointed by the Chair of the Resolution Institute ; and (iii) subject to compliance with the steps under clauses 15.2(a) and 15.2(b)(ii), if the Dispute has not been resolved within 21 days of the date of referral to mediation under 15.2(b)(ii), either party may submit the Dispute to arbitration in accordance with, and subject to, the Resolution Institute Arbitration Rules by one arbitrator (who shall be a lawyer, be independent of the parties and give his or her decision in writing and based on legal substance) agreed by the parties, or failing agreement within 7 days of referral to arbitration, as nominated by the Chair of the Resolution Institute. 15.3 Award, seat and language of arbitration Except to the extent provided by Law, an arbitral award shall be final and binding on both parties. Unless otherwise agreed between the parties, the seat of arbitration shall be Melbourne, Victoria. The language to be used in the arbitration shall be English. 15.4 No relief from performance of other obligations Reference of a Dispute to arbitration under this clause shall not relieve either party from any other obligations under the Contract, including, if and so far as is reasonably practicable, the obligation to take steps necessary during arbitration proceedings to ensure that the progress of the Contract is maintained. 15.5 No prejudice to injunctive or declaratory relief Nothing in this clause shall prejudice the right of a party, where the law otherwise permits, to seek urgent injunctive or declaratory relief in respect of a dispute or matter arising under the Contract. 16. TERMINATION & SUSPENSION 16.1 Right to terminate Either party may terminate the Contract with immediate effect, by notice to the other party, if the other party: (a) commits a breach of the Contract and fails to remedy the breach within 30 days (or such longer period as agreed) after receipt of a notice from a party specifying the details of the breach and requesting remedy of same; (b) has not paid an amount due and owing under the Contract after having been issued with a written notice by a party to pay such amount due and owing within a period of 14 days of the written notice; or (c) suffers an Insolvency Event. 16.2 Right to suspend In the event of any of the events in clauses 16.1(a) to 16.1(c) (inclusive), Siemens may elect to suspend the performance of the whole or any part of the Work remaining to be performed under the Contract. This suspension right is in addition to any other rights and remedies available to Siemens. Siemens shall also be entitled to an extension of time to the Date for Practical Completion equal to the period of any such suspension. The Purchaser shall pay Siemens all additional costs and expenses which are suffered or incurred by Siemens by reason of any such suspension. 16.3 Retention of security If the Purchaser has provided any security under the Contract and Siemens exercises any rights under clause 16.1. Siemens may retain any security given or monies paid by the Purchaser under the Contract and apply this against the loss and/or damages incurred by Siemens as a result of having to exercise such rights. 16.4 Survival of clauses All clauses that are capable of surviving the expiration or earlier termination of the Contract shall do so. For the avoidance of doubt clauses 1, 3.2, 10, 13, 14, 15, 16, 17, 18 and 19 shall survive any expiration or earlier termination of the Contract. 17. NOTICES 17.1 Form of notices Any notice to be given under the Contract shall be given in writing and delivered personally or sent by pre-paid post (airmail if to or from a place outside Australia) addressed to the other party at such address as a party notifies the other for the purposes of this clause. 17.2 Service of notices Any notice shall be deemed to be served: (a) in the case of delivery in person, when delivered; and (b) in the case of delivery by post, 3 Business Days (7 if to or from a place outside Australia) after the date of posting. 18. GENERAL 18.1 Precedence If there is any inconsistency between the documents comprising the Contract, the following order of precedence shall apply (with the document referred to in clause 18.1(a) having the highest priority): (a) Siemens’ order confirmation (if any); (b) any amendments to Siemens’ Offer or the Conditions agreed between the parties in writing; (c) Siemens’ Offer (including all documents attached by Siemens or which Siemens agrees are incorporated by reference); and (d) these Conditions. Conditions of Supply & Installation (AUS) - Version: 20220517 Page 9 18.2 Amendment The Contract may only be varied by written agreement between the parties. Despite any acceptance by Siemens of any order from the Purchaser that may contain any provision inconsistent with or purporting to vary or reject any of these Conditions, any contract arising from such acceptance shall be subject to these Conditions unless and to the extent only that Siemens expressly agrees in writing to any variation of these Conditions. 18.3 Entire agreement The Contract sets out the entire understanding between the parties with respect to the subject-matter contained in it. All prior verbal and written agreements, representations, warranties, explanations and commitments expressed or implied, affecting that subject-matter are superseded by the Contract and have no effect. 18.4 Severance If a provision of the Contract is held to be illegal, invalid void, voidable or unenforceable by a court of law, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid void, voidable or unenforceable. If it is not possible to read down the provision in accordance with this clause, that provision shall be severed without affecting the validity or enforceability of the remaining part of that provision or the other provisions of the Contract. 18.5 Waiver A single or partial exercise or waiver of a right relating to the Contract does not prevent a further exercise of that right or the exercise of any other right. A waiver is not valid unless given in writing. 18.6 Assignment The Purchaser shall not assign, pledge or transfer its interest in the Contract (or any part of it) without obtaining Siemens’ prior written consent. Siemens may assign, pledge or transfer its rights or obligations under and in connection with the Contract (or any part of it) to another party upon written notice. 18.7 Electronic Execution The Contract may be executed in counterparts which taken together shall constitute the one instrument. The Parties agree that electronic signatures may be used for execution and that if used, shall be binding upon the executing party and have the same legal effect as handwritten signatures. 18.8 Product Safety If the Purchaser wishes to on-sell or otherwise provide the Equipment to a third party for use as an active medical device, the Purchaser shall ensure that: (a) such third party is required to notify Siemens of the third party’s name, address and contact details and of the new location of the Equipment; and (b) the Purchaser complies with clause 18.9(b). 18.9 Export controls (a) Siemens shall not be obliged to fulfil the Contract if such fulfilment is affected by any impediments arising out of national or international foreign trade or customs requirements or any embargos or other sanctions. (b) If and to the extent the sale or supply of products and services is subject to prior authorization by the competent export control authorities this agreement shall come into force only upon granting of such authorization. (c) The sale of Equipment under the Contract is fully conditional upon the end use of the Equipment being in Australia or, if the Equipment be destined for export, then: (i) Siemens being notified in each case (prior to export) of: the end-customer’s name, address and contact details; the proposed destination; the intended use of the Equipment; and any applicable export control restrictions; and (ii) there being no impediments regarding export from Australia to the proposed destination imposed by any applicable national and/or international laws. (d) If there is a breach or alleged breach of clause 18. 8(b), Siemens may without prejudice to any other remedies (and without the need for notice or further explanation) immediately suspend or terminate the Contract or any unperformed Work at Siemens’ sole discretion. (e) Purchaser shall indemnify and hold harmless Siemens from and against any claim, proceeding, action, fine, loss, cost, expense and damage arising out of or relating to any noncompliance with export control regulations by Purchaser. 18.10 Governing law & jurisdiction The Contract and, to the extent permitted by law, each security interest (as defined in the PPSA) under it, shall be governed and shall be interpreted in accordance with the Laws of the State of Victoria, Australia including the laws of the Commonwealth of Australia, as they apply there and (subject to clause 15) the parties irrevocably submit to the jurisdiction of the courts of that State and to the appeal courts from them. The application of the United Nations Convention on Contracts for the International Sale of Goods, 1980 (Vienna Convention) is excluded. 19. CYBERSECURITY OBLIGATIONS The parties shall comply with the cybersecurity obligations set out in Annexure 2 to these Conditions. 20. ADDITIONAL PROVISIONS FOR MR SYSTEMS 20.1 Scope of Supply The Scope of supply of MR systems includes all components, installation and commissioning. The magnet shall be delivered cooled to helium temperature; however this shall not apply to magnets for the Magnetom C and 7T MR systems. 20.2 Prices The Contract Sum does not include the cost of determining the magnet room shielding required and measuring the checking interference levels at the installation site. 20.3 Magnet cooling system (refrigerator) for superconducting magnets In order to reduce the installation time and Purchaser cost, the superconducting magnet is supplied in the cooled state. In order to minimise the magnet evaporation rate, the magnet cooling system must commence operation without delay. Before the magnet is delivered, the Purchaser shall ensure that the necessary connection to the electrical power supply, air conditioning system and cooling water system are secured. Additional costs for liquid helium, helium gas and filling the magnet shall be chargeable to the Purchaser if the necessary connections are supplied late. Conditions of Supply & Installation (AUS) - Version: 20220517 Page 10 Annexure 1 –Smart Remote Services 1. Definitions Unless the context otherwise provides, in this Annexure 1: “Affiliate” means any company that is directly or indirectly majority owned or controlled by Siemens Healthineers AG; “Security Concept” means the Siemens Healthineers IT security concept or Atellica Connectivity Manager Security White Paper (as appropriate) which can be found at https://www.siemens-healthineers.com/en-au/services/customerservices/connect-platforms-and-smart-enablers/smart-remoteservices (as amended from time to time); “Smart Technical Data” means correlated Technical Data derived from the Equipment to support prediction of Equipment service requirements; “SRS Conditions” means these Terms and Conditions for Remote Connection (as amended from time to time); “SRS Connection” or “Smart Remote Services Connection” is an on-line connection between Siemens or any of its Affiliates and the relevant Equipment at the Customer’s Site; and “Technical Data” means information available through an SRS Connection and may include: (a) Application logfiles; errors occurred; device properties; quality control (Technical Status Information); (b) configuration; software versions, patches, licences, network settings; device service history (Asset and Configuration Data); (c) sequences or performance of various tasks; used applications/ licences and interactions with the application (Utilisation Data); and (d) any other data explicitly agreed between Siemens and Customer, in each case not related to an identified or identifiable natural person. 2. Scope 2.1. These SRS Conditions and the Security Concept referred to in them set out the terms upon which Siemens will provide the Customer with an SRS Connection for the Equipment. Unless otherwise agreed by Siemens in writing, no other terms or conditions concerning this subject matter shall apply. 2.2. Capitalised terms used in this Annexure 1 which are not defined in these SRS Conditions shall have the meaning given to them in the General Conditions attached to this Annexure 1. 3. Customer’s Obligations 3.1. The Customer authorises Siemens, its Affiliates and any third parties engaged by them, to: (a) access and use the SRS Connection for the purposes of providing the Maintenance Services, calibration and remote training and as otherwise stated in the Contract) and to use any Technical Data collected via the SRS Connection for these purposes; and (b) carry out through the SRS Connection additional system monitoring services supported by the covered Equipment to ascertain the performance and condition of the Equipment, for the duration of the service Contract between Siemens and the Customer (and during any applicable warranty period for Equipment provided by Siemens). 3.2. The Customer shall permit an SRS Connection to be established by connecting the Equipment, at its own expense, to the secured telecommunications link via a broadband connection. The Customer shall bear the cost of any technical requirements for any such SRS Connection not being part of the Equipment (eg. for establishing a broadband connection). 3.3. The Customer acknowledges and agrees that to the extent permitted by law, the SRS Connection is provided “as is” and Siemens does not make any warranty or guarantee regarding the availability, performance or quality of the SRS Connection other than as addressed in clause 4.1 of this Annexure 1. 3.4. The Customer acknowledges and agrees that Siemens will not be able to provide an SRS Connection if: (a) the provision is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions; (b) there is a defect, malfunction or other problem with the applicable telecommunications network; or (c) there is a defect, malfunction, insufficient configuration or other problem with the Customer’s infrastructure. 4. Security Concept 4.1. Siemens shall set up the technical and organisational process for SRS Connection and the IT infrastructure used by Siemens for the establishment of the SRS Connection in accordance with the Security Concept. 4.2. Siemens may provide the Customer with information about the connectivity status of any SRS Connection and general information on how to restore the SRS Connection if it is not working properly. Siemens may vary these SRS Conditions and/or the Security Concept at any time to reflect technical progress, changes in Law and further developments to the offerings of Siemens and its Affiliates provided that: (a) such variations do not jeopardise the quality and execution of the SRS Connection; (b) Siemens gives the Customer a reasonable period of notice of at least 30 days; and (c) Siemens provides the Customer with access to any such varied SRS Conditions and/or Security Concept (as applicable). 4.3. In order to protect the Equipment against cyber threats, the Customer shall implement and continuously maintain a holistic, state-of-the-art security concept protecting the Customer’s IT infrastructure. The Customer shall also support Siemens in protecting against cyber threats. In particular, this means that the Customer shall not: (a) connect any Equipment to the SRS Connection unless the Equipment complies with state-of-the-art security policies or is otherwise approved by Siemens; (b) use the SRS Connection in a way that impairs or disrupts the integrity of the SRS Connection or Siemens’ IT infrastructure; and (c) transmit any data containing viruses, Trojan horses or other programs that may damage or impair the SRS Connection or Siemens’ IT infrastructure. 5. Access to Data and Use of Data 5.1. Unless otherwise agreed, the Customer hereby authorises Siemens, its Affiliates and any third parties engaged by them, to access and use for their own business; product surveillance; research and/or development purposes (eg to determine usage trends of products and services and to improve products, services and software); for facilitating and advising on continued and sustained use of products and services; for substantiation of aggregated product/services marketing claims and for benchmarking purposes, without restrictions in terms of time, transferability, replication or content: (a) Technical Data that is collected via the SRS Connection; and (b) Smart Technical Data that is collected via the SRS Connection from the Equipment (for the duration of any applicable commercial relationship between Siemens and the Customer including under a service contract for the Equipment or during the defects liability period for the Equipment). 5.2. Siemens (and its licensors, where applicable) will retain all IP Rights relating to the Equipment and/or Software, including improvements, thereto, including any improvements derived from Technical Data or Smart Technical Data, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer which are hereby assigned to Siemens. 6. Access to Personal Information 6.1. Personal Information shall only be accessed via an SRS Connection if and to the extent necessary for the performance of the Contract. 6.2. If Siemens is able to gain access to any Personal Information via an SRS Connection, Siemens shall notify the Customer accordingly. In such case, Siemens shall not begin Conditions of Supply & Installation (AUS) - Version: 20220517 Page 11 accessing any Personal Information before the Customer has consented to such access. 6.3. The Customer’s consent shall cover the access and use of Personal Information by Siemens, and its Affiliates and any third parties engaged by them, if and to the extent required to perform the Contract provided that: (a) they observe all applicable privacy and data protection laws; and (b) the Personal Information is only used for purposes of the Contract. 6.4. In providing such consent, the Customer shall ensure that: (a) the Customer complies with all applicable privacy and data protection Laws and with all applicable confidentiality obligations; (b) the Customer has obtained all required consents to enable Personal Information to be accessed and used for the purposes of the Contract; and (c) the person authorising such access has the requisite capacity to do so on behalf of the Customer. Conditions of Supply & Installation (AUS) - Version: 20220517 Page 12 Annexure 2 –Cybersecurity Obligations 1 Definitions Unless the context otherwise provides, in this Annexure 2: Cyberthreat means any circumstance or event with the potential to adversely impact a Product via unauthorised access, destruction, disclosure, modification of information and/or denial of service; EoS means End of Support, being the date Siemens notifies Customer from which service parts and any other services for a Product are no longer available after which support for any software components of the Product terminates; Insignificant means a categorisation of a Vulnerability the exploitation of which, taking into account the individual Product attributes and/or the respective operating environment, is not reasonably expected and/or would not result in a foreseeable impairment of the secure operation of the Product; IT Security means safeguarding the uninterrupted operation of the Product against interference caused by exploited Vulnerabilities as well as the availability, confidentiality and integrity of data and information; Patch means a software Update with a fix for a Vulnerability; Product means the products, solutions, applications and /or service offering consisting of hardware and/or software which are sold, licensed or otherwise made available to the Customer by Siemens under the Contract, whether or not Siemens is the manufacturer (also referred to as the “Equipment” and “Software” in the General Conditions attached to this Annexure 2) provided always that ‘making available’ does not include procuring of respective transactions between the Customer and any third parties, such as brokering third party Apps on the Siemens Healthineers Digital Ecosystem or other Siemens Healthineers platforms; Teamplay Fleet is an online portal which enables the Customer to manage the performance and maintenance of its Siemens Products; Vulnerability means a weakness in a Product which could be exploited by a Cyberthreat. Capitalised terms used in this Annexure which are not defined shall have the meaning given to them in the General Conditions attached to this Annexure. 2 Scope This Annexure 2 sets out the cybersecurity terms that apply between Siemens and the Customer and seek to provide a fair balance between the Customer’s co-operation duties and Siemens’ obligations with regards to appropriately handling Cyberthreats. These cybersecurity conditions are intended to supplement the General Conditions attached to this Annexure 2 and these cybersecurity conditions shall prevail to the extent of any conflict. 3 Customer’s Co-operation Duties 3.1 In order to protect Products against Cyberthreats, the Customer shall implement and continuously maintain a holistic, state-of-the-art security concept for its IT infrastructure, including undertaking regular scanning, provided however, that: (a) scanning or testing shall not be performed during clinical use; (b) the system configuration and/or IT Security controls must not be modified; and (c) if during the deployment of a Product, Vulnerabilities are identified by the Customer, the Customer shall align with Siemens regarding the severity of the Vulnerabilities taking into account the individual Product attributes and intended operating environment and shall not refuse acceptance of the Product, if Siemens classifies the Vulnerability to be Insignificant. 3.2 The Customer shall prevent unauthorised access to the Products including but not limited to changing passwords and other protective settings from their default values to individual ones. The Products shall only be connected to an enterprise network or the internet if and to the extent such a connection is authorised by Siemens in the instructions for use and only when appropriate security measures (e.g. firewalls, network client authentication and/or network segmentation) are in place. 3.3 USB-storage media and other removable storage devices shall only be connected to a Product if and to the extent such connection is authorised by Siemens in the instructions for use and only when the risk of a malware infection of the Product is minimised through malware scanners or other appropriate means. 3.4 The Products undergo continuous development to further improve their IT Security. Siemens strongly recommends that Product Updates be applied as soon as they are available and that the latest Product versions are used by the Customer. The latter might include the purchase of Upgrades of hardware and software by the Customer. Use of Product versions that are no longer supported, and failure to apply the latest Updates and/or Upgrades may increase Customer’s exposure to Cyberthreats. 3.5 Customer shall notify Siemens without delay in case of suspected or actual cybersecurity incidents or Vulnerabilities of the Product. Disclosure of such information to third parties requires prior consent by Siemens. 3.6 If the Customer resells a Product, the Customer shall inform Siemens in writing of the name and address of the new owner and shall impose upon that new owner a corresponding obligation in case of further resale. 3.7 If Siemens provides Patches via a SRS Connection or for download via Teamplay Fleet, the Customer shall promptly install all Patches in accordance with the respective installation instructions given by Siemens. Otherwise, the Customer shall permit Patches to be physically installed onSite pursuant to clause 4.2 of this Annexure 2. 3.8 In order to get access to the Teamplay Fleet and to Patches made available for download the Customer shall register and maintain its registration with Teamplay Fleet for the duration of the Customer’s Product usage. 4 Siemens’ Obligations 4.1 Except to the extent prohibited by law: (a) if Siemens becomes aware of a Vulnerability that Siemens does not classify as Insignificant, Siemens shall make available patches as set forth below for the period agreed in the Contract, or otherwise until the earlier to occur of EoS or up to ten (10) years following Product delivery, provided that: (i) the Customer’s Product version is the most recent or at least the penultimate version at the given time in accordance with clause 3.4 of this Annexure 2; and (ii) in the case of third-party software, the third party software provider has issued the respective Patch from Siemens (provided always that Siemens is not responsible for ensuring that such third-party software provider issues or continues to issue Patches). (b) Siemens will make the Patches available pursuant to clause 4.1(a) of this Annexure 2 within a reasonable period of time. In the case of third-party software patches provided by Siemens' licensors, Siemens will make the Patches available to Customer within a reasonable period of time after such Patches are made available by Siemens’ licensors and Siemens has performed the required testing and validating. Depending on the severity of the Vulnerability, Siemens may elect to provide the Patches (including third-party patches) at the time and as part of upcoming routine Updates. 4.2 If the Product is connected via an SRS Connection and the Customer enables remote distribution of Patches via the SRS Connection, or if Patches are made available for download via Teamplay Fleet (and the Customer has opened a Teamplay Fleet account), no installation fee will be charged. Otherwise, if the Patch needs to be physically installed on-Site by Siemens, then Siemens may charge the Customer for the installation at Siemens’ then current time and materials rates. 4.3 For Products covered by a valid post-warranty service contract, clauses 4.1(a) and 4.1(b) of this Annexure 2 shall Conditions of Supply & Installation (AUS) - Version: 20220517 Page 13 apply accordingly. In case of any conflict, the terms of the post-warranty service contract shall prevail. Installation of Patches by Siemens is not included in contract scope unless expressly agreed by Siemens in writing. 4.4 To the extent permitted by law, the performance by Siemens of its obligations under this clause 4 shall be the Customer’s sole and exclusive remedy for any loss or damage sustained by the Customer arising from a Cyberthreat, whether in contract, tort (including negligence) under statute, in equity or otherwise . Upon request by the Customer, Siemens shall provide commercially reasonable assistance with the Product reset at Siemens’ then current standard rates. 4.5 Notwithstanding any other clause of the Contract, Siemens is not responsible for any loss or damage caused by the following: (a) Customers’ intrusive IT Security testing; (b) unauthorised, modification of the system configuration or IT Security controls of the Product; (c) the installation of patches which are not authorised by Siemens; or (d) the Customer delaying the self-installation of Patches made available by Siemens via a SRS Connection or download via Teamplay Fleet.</p>
Editor is loading...