Terms & Conditions of Trade Part 1 (Please see Part 2 below)
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1. Application
These Terms apply to all Contracts and orders for the supply of Products by the Seller to the Buyer.
2. Definitions and Interpretation
(a) For the purpose of these Terms, unless the context otherwise necessarily requires:
(i) Buyer means the person or entity described as the customer in any relevant quote details, or any other person, firm or corporation including successors, administrators and assignors who have requested the supply of Products by the Seller;
(ii) Contract means any agreement between the Buyer and the Seller for the supply of Products, including any acceptance of any quote details by the Buyer on these Terms;
(iii) Force Majeure Event means any event that materially and adversely affects the ability of a party to perform its obligations under this agreement, which is outside the reasonable control of the affected party and that could not have been prevented by that party taking all reasonable steps;
(iv) GST has the same meaning as in A Tax System (Goods and Services Tax) Act 1999 (Cth);
(v) order means any request for the supply of Products received by the Seller from the Buyer;
(vi) PPSA means the Personal Properties Securities Act 2009 (Cth);
(vii) PMSI means a purchase money security interest as defined by the PPSA;
(viii) parties means each of the Seller and the Buyer;
(ix) Price means the amount payable by the Seller to the Buyer for the Products;
(x) Products means any products that the Seller has agreed to supply to the Buyer;
(xi) Security Interest and purchase money security interest, and all related terms have the meanings given them by the PPSA;
(xii) Seller means Pro Pharmaceuticals Group Pty Ltd ACN 605 457 430 or its nominee;
(xiii) Services means services provided by the Seller to the Buyer in relation to any Products supplied by the Seller; and
(xiv) Terms means these trading terms and conditions Part 1.
(b) A reference to a person includes a reference to a corporation and vice verse if appropriate. Use of a gender or the plural includes all other genders and the singular and vice verse as appropriate.
3. Orders
(a) Any order by the Buyer for the supply of Products must:
(i) if in writing, be signed by an authorised representative of the Buyer;
(ii) identify the Products ordered;
(iii) be subject to these Terms and such additional terms as the Seller may in its absolute discretion require; and
(iv) specify the required date of delivery.
(b) All orders for Products must be accepted in writing by the Seller and are subject to availability and lead times, and the Seller reserves the right to suspend or cancel any order at any time.
(c) The Buyer may not vary, amend or cancel any order it has made unless agreed to in writing by the Seller. If the Buyer cancels any order after it has been accepted, the Buyer must pay:
(i) for any Product procured by the Seller for the order; and
(ii) a cancellation fee of 5% of the price of the order on any Product not procured.
4. Price / Payment
(a) Unless otherwise agreed to in writing by the Seller and subject to clause 4(b), all Products are sold to the Buyer at the Seller’s ruling Price at the time the order is placed. Amounts shown for Products in any quote details or on the Seller’s website are shown for convenience only and are subject to change, including to account for any change in pricing from the Seller’s supplier or manufacturer, passing on any storage costs for the Products that are incurred by the Seller, or any currency exchange or banking transaction fees. In the event of any change to these amounts, the Buyer will be responsible for and will pay the full amounts due.
(b) Unless otherwise agreed in writing, the Buyer shall pay the Price to the Seller within 30 days of the date on which the Buyer is invoiced for the Products.
(c) The Buyer must pay accruing interest to the Seller on any overdue invoices from the date when payment becomes due until the date of actual payment at a rate of 2.5% per calendar month. All payments made by the Buyer will first be applied by the Seller to the accrued interest (if any).
(d) If more than one Buyer enters into any Contract, then each Buyer is jointly and severally liable for the payment of the Price to the Seller.
(e) All Prices are exclusive of any applicable GST and other statutory charges or levies, including all customs and import/export duties. The Buyer indemnifies the Seller in respect of any such taxes, charges or duties payable as a result of any supply of Products by the Seller to the Buyer.
(f) Unless specifically agreed otherwise in writing between the Seller and the Buyer, all prices are provided EXW (see Incoterms 2020 <https://iccwbo.org/resources-for-business/incoterms-rules/incoterms-2020>) from the Seller’s warehouse in Tullamarine, Australia, and do not include any delivery fees or charges, which must be borne by the Buyer.
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5. Delivery
(a) The Buyer must provide the Seller with a minimum of 120 days’ prior notice of the date of delivery it requires for any Products. The Seller is not bound to accept any delivery date notified by the Buyer. All delivery times provided are estimates only and are not binding on the Seller. The Seller is not required to deliver any Products to the Buyer unless the Buyer has paid all monies owing to the Seller in full.
(b) Unless specifically agreed otherwise in writing between the Seller and the Buyer:
(i) all Products will be delivered EXW from the Seller’s warehouse in Melbourne, Australia; and
(ii) irrespective of any Incoterms agreed between the parties, the Buyer bears the liability for the delivery of Products, including cost of delivery and any loss or damage of Products during in transit.
(c) For Products requiring thermo-regulation in storage and transit, the Seller will endeavour to ensure that those Products are procured and stored in appropriate condition and packaged so as to maintain the integrity of the Cold Chain Supply (“CCS”), based on the manufacturer’s specifications and the timeframes quoted by the Buyer’s logistics supplier. Any break in the CCS incurred as a result of improper handling on the part of the logistics supplier is not the responsibility of the Seller. As soon as any cold chain Products leave the Seller’s warehouse, they cease to be the Seller’s responsibility. The Buyer acknowledges that the Seller may not be able to provide stability data in case of temperature excursions. All Products shipped under CCS are non-returnable and non-refundable.
6. Inspection and Acceptance of Products
(a) It is the responsibility of the Buyer to inspect the Products immediately upon delivery. Any claim for: (i) a shortage of Products; (ii) damage or defects to the Products, must be notified to the Seller within 48 hours after delivery of those Products. If the Buyer fails to advise the Seller of any shortage, damage or defect to the Products within 48 hours of delivery, the Buyer is deemed to have accepted those Products.
(b) The Seller reserves the right to inspect the Products and to seek its own assessment of any Products notified under clause 6(a).
7. Risk / Property
(a) Risk in the Products shall pass to the Buyer immediately upon delivery. Title in the Products delivered will not pass to the Buyer the Buyer has paid the Seller for those Products in full.
(b) The Buyer will hold all Products on trust and as bailee for the Seller until all amounts owed by the Buyer to the Seller have been paid in full.
(c) The Buyer authorises the Seller to enter its nominated warehouse location (or other location where the Products have been delivered or are stored by the Buyer) to take possession of the Products if they have not been paid for in full.
(d) The right of the Buyer to deal with the Products ceases immediately upon the appointment to the Buyer of any liquidator, receiver, receiver and manager, administrator, provisional liquidator, or bankruptcy trustee.
(e) The Buyer consents to the Seller perfecting any security interest under these Terms which arises by operation of the PPSA in any property by registration under the PPSA and must do anything reasonably requested by the Seller to enable it to do so.
(f) The parties contract out of each provision of the PPSA that, under section 115(1) of that Act, they are permitted to contract out of, other than: (i) sections 117 and 118 (relationship with land laws); and (ii) sections 134(1) and 135 (retention of collateral).
(g) Each party waives its right to receive each notice which, under section 157(3) of the PPSA, it is permitted to waive, and waives its rights to receive anything from any other party under section 275 of the PPSA.
(h) The Buyer must take out and maintain appropriate insurance to cover any insurance loss in respect of the Products.
(i) The provisions of this clause 7 apply notwithstanding any arrangement under which the Seller grants credit to the Buyer.
(j) The Buyer indemnifies the Seller against any liabilities arising from the misuse of products, including unauthorised human testing without obtaining prior authorisation from any applicable regulatory body.
8. End Destination and Use of Products
(a) The Buyer represents and warrants that the Products will be supplied to an appropriately licensed end destination and provide all relevant details to the Seller promptly upon request.
(b) Unless otherwise agreed by the Seller in writing, the Products must not be exported from Australia by the Seller or the Buyer for any commercial purpose, and may only be used for research and development and non-commercial purposes.
(c) The Buyer represents and warrants that all products purchased from the Seller are intended solely for non-human research or laboratory purposes and will not be used for human consumption or clinical testing without obtaining prior authorisation from any applicable regulatory body.
9. Adverse Events and Recalls
(a) An adverse event is any undesirable experience associated with the use of a medical product in a patient. The Buyer must notify the Seller of any adverse event within 48 hours of being made aware of that event, and must provide all relevant documentation and cooperate fully with the Seller in case of any such event.
(b) We will notify you in event of a product recall of which we are advised and will provide instructions on how to assist in returning all affected products. We may determine the recall measures required from you on a recall-by-recall basis, and you must comply with such measures, subject to applicable laws. In case of Product seizure, you must provide to us any available documentation on such actions or notices of such actions by or from public agencies. We assume no costs in connection with such Product recalls or seizures.
10. Exclusion of Liability
(a) The Seller will not, in any circumstances, be liable or responsible for any claims, liabilities, cost, expense, loss, damage or defect arising (either directly or indirectly) from or in connection with the supply of the Products, including liability for compliance with legislation in the country in which the Buyer is established or importing the Products. Any warranties and/or liabilities implied by operation of Australian law are hereby excluded. To the extent that these Terms cannot, by law, operate to exclude the liability of the Seller, then the Seller’s liability is limited at its option to:
(i) the repair or replacement of the Products;
(ii) the refund of the Price paid by the Buyer for the affected Products; or
(iii) the payment of an amount equal to the cost of replacing the affected Products.
(b) The Seller excludes any and all liability for compliance with legislation in the country in which the Buyer is established or the country into which it imports the Products. The Buyer is responsible for obtaining and maintaining any necessary marketing and/or regulatory permissions for the Products that are to be imported, marketed, used or sold by the Buyer, including, and for ensuring that the Product meets all of the requirements of the relevant jurisdiction, including (but not limited to) with respect to the origin of the Products, the derivation of their ingredients, testing, packaging, labelling or other written material language requirements, product registration, patient information leaflets, temperature requirements, presentation, and the required documents accompanying the shipment of the Product in general.
11. Indemnity
The Buyer indemnifies and holds the Seller, its officers, employees, agents, and subcontractors harmless from all claims, losses, liabilities, damages (including those arising out of a third party claim), and costs (including legal fees on a full indemnity basis) incurred as a result of any breach of these Terms or any negligent or unlawful act by the Buyer, including any misuse of products, including any unauthorised use in human testing, or failure to comply with any regulatory requirements.
12. Default by the Buyer
In the event that:
(a) any money payable to the Seller becomes overdue;
(b) in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due;
(c) the Buyer becomes insolvent;
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer,
then the Seller may cancel all or any part of any order which remains unperformed, all amounts owing to the Seller will become immediately payable, and the Seller may terminate any Contract. The Buyer shall not at any time be entitled to retain any money owing to the Seller notwithstanding any default or alleged default by the Seller of the Terms.
13. Export Compliance
For any Products exported for non-BE testing by the Buyer must adhere to all applicable local and international laws, and the Buyer assumes full responsibility for compliance with these regulations, including by indemnifying the Seller for any failure to comply with any applicable local and international laws and regulatory requirements for Products for non-BE testing.
14. General
(a) Any notices required or permitted under these Terms or any Contract(s) to which they relate will be given to the appropriate party at the address they specify in writing. Such notice shall be deemed given upon personal delivery, or if sent by certified or registered mail, prepaid postage, seven (7) days after the date of mailing, or if sent via email, upon transmission and electronic confirmation of receipt.
(b) These Terms and the Contracts to which they relate are governed by the laws of the State of Victoria. The parties submit to the exclusive jurisdiction of the courts in the State of Victoria in relation to these Terms.
(c) Prior to commencing any legal proceedings (other than any urgent proceedings for interlocutory relief), the parties must first endeavour to resolve by mediation any dispute, controversy or claim arising out of or in relation to these Terms or any Contract(s) to which they relate.
(d) The Seller reserves the right to change these Terms at any time. Any variation to these Terms must be in writing and signed by the Seller.
(e) The Buyer may not assign these Terms or any Contract(s) to which they relate without the prior written consent of the Seller.
(f) The Seller will not be liable for any breach of its obligations under these Terms to the extent that the breach resulted from a Force Majeure Event provided that the Seller promptly the Buyer and provides appropriate details of and takes all reasonable steps to work around or reduce the effects of the Force Majeure Event. If a Force Majeure Event continues for more than 90 days, the Seller may terminate this agreement with immediate effect by notice to the Buyer.
(g) The information contained in any quote details or on the Seller’s website, including any product specifications, product origins, prices and other delivery terms agreed between the Seller and the Buyer are considered confidential information, even if no orders are placed by the Buyer. The parties must keep and maintain each other’s confidential information in strict confidence and must not disclose any such information to any third parties except as expressly required by law or as agreed with the other party. This obligation remains in force for five (5) years after the last order placed by the Buyer.
(h) If any part or clause of these Terms and the Contract(s) to which they relate is held illegal or unenforceable then that clause or part may be severed with the remaining clauses or parts remaining in full force and effect.
(i) Waiver by a party of any particular default will not constitute a waiver of any other default.
(j) These Terms and any Contract(s) to which they relate may be executed in counterparts, including by electronic scan, each of which will be deemed an original and all of which together will constitute one and the same binding document.
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Terms & Conditions of Trade Part 2
1. Application
These Terms apply to all Purchase Orders for the supply of Products from the Supplier to Pro Pharma.
2. Definitions and Interpretation
(a) For the purpose of these Terms, unless the context otherwise necessarily requires:
(i) Products means any products that the Supplier has agreed to supply to Pro Pharma;
(ii) Pro Pharma means Pro Pharmaceuticals Group Pty Ltd ACN 605 457 430 or its nominee;
(iii) parties means each of Pro Pharma and the Supplier;
(iv) Purchase Order means a purchase order issued by Pro Pharma to the Supplier or any request for the supply of Products from Pro Pharma to the Supplier;
(v) Supplier means the person or entity described as the supplier in any relevant quote or Purchase Order from Pro Pharma;
(vi) Terms means these trading terms and conditions Part 2 as updated from time to time.
(b) A reference to a person includes a reference to a corporation and vice verse if appropriate. Use of a gender or the plural includes all other genders and the singular and vice verse as appropriate.
The parties agree to be legally bound by the following terms:
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Order Cancellation
Pro Pharma reserves the right to cancel the Purchase Order if the Supplier cannot meet the agreed lead times or provide the originally quoted quantity.
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Product Authenticity and Acceptance
(a) The Products supplied by the Supplier must be authentic, with checks performed using Good Distribution Practise (GDP). GDP is a set of standards for the sourcing, handling, storage, and transportation of medicines for human use and their active ingredients.
(b) If the Supplier does not accept or reject the Purchase Order in writing within 24 hours, it will be considered accepted.
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Product Quality and Compliance
(a) Products must have at least a ninety percent (90%) shelf-life on delivery, unless otherwise agreed between the parties in writing.
(b) Products must be sourced directly from the original manufacturer or through authorised channels, such as licensed wholesalers, authorised distributors, or sponsors, ensuring all required documentation and statutory marks are intact.
(c) The Supplier is legally responsible for maintaining a robust and thorough supply chain, and they are obliged to conduct rigorous checks to uphold these standards.
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Supplier Responsibilities
(a) The Purchase Order is non-assignable by the Supplier.
(b) The Supplier is solely liable for the quality and timely delivery of the Products to Pro Pharma.
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Inspection and Acceptance
(a) Pro Pharma has the right to inspect and reject Products that do not meet Pro Pharma’s standards.
(b) Mere delivery does not constitute acceptance of the Products from Pro Pharma; written confirmation is required from Pro Pharma.
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Intellectual Property Warranty
(a) The Supplier warrants that the Products do not violate any third-party intellectual property rights and affirms that they have the legal right to sell the Products.
(b) Use of Pro Pharma’s intellectual property by the Supplier requires prior written consent from Pro Pharma.
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Confidentiality
(a) The Supplier must treat all information obtained from Pro Pharma as confidential.
(b) Breach of confidentiality may result in legal action, including injunctive relief and/or specific performance.
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Jurisdiction and Dispute Resolution
These Terms and the Purchase Orders to which they relate are governed by the laws of the State of Victoria. The parties submit to the exclusive jurisdiction of the courts in the State of Victoria, including for any dispute that may arise in connection with these Terms.
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General
(a) The Purchase Order does not grant any right, title, or interest to the Supplier.
(b) Pro Pharma’s rights and remedies are cumulative and not exclusive.
(c) If any part or clause of these Terms and Purchase Order to which they relate is held illegal or unenforceable then that clause or part may be severed with the remaining clauses or parts remaining in full force and effect.
(d) Pro Pharma reserves the right to change these Terms at any time and the Supplier’s continued service is deemed acceptance of the changed Terms.