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TERMS AND CONDITIONS OF SALE

The Standard Terms and Conditions is a part of and incorporated into the associated Calantic® Digital Solutions Subscription Agreement and any documents referenced therein (collectively, the “Agreement”) between Imaxeon Pty Ltd (ABN 93 903 950 906) of Unit 1, 38-46 South Street, Rydalmere NSW 2116, referred herein as “Bayer”, and Licensee, as defined in the applicable Agreement, and is effective from the date that the Agreement is entered into between Bayer and Licensee. Unless otherwise defined herein, all capitalized terms used hereunder shall have the meanings ascribed to them in the Agreement.

Bayer may update the terms and conditions contained herein from time to time and shall provide notice of such updates to Licensee upon Licensee’s login to the Licensed Software. Licensee’s continued use of the Licensed Software shall constitute acceptance of any updated terms and conditions.

Licensed Software” as used herein refers to the software components of Calantic™ Digital Solutions , including the Edge server software, inbound and outbound interfaces, the embedded viewer, and the Calantic cloud applications (collectively the “Calantic Software”), and Licensee-selected clinical applications (collectively the “Application Software”). Licensed Software will include all Calantic Software and Application Software listed on Schedule 1 of the Subscription Agreement. The Licensed Software may be updated from time to time upon agreement of the parties. Licensed Software will consist of Bayer owned software (“Bayer Licensed Software”) and software (platform and application software) created and owned by Bayer contracted third parties (“Contracted Third Parties”) that is licensed by Bayer for use on the platform (“Third Party Licensed Software”).

 

  1. Grant of Licence


    Bayer grants to Licensee a non-exclusive, non-transferable and non-sublicensable license (“License”) to use the Licensed Software for the term described in the Agreement, solely for Licensee’s own internal business purposes. For the avoidance of doubt, Licensee can exercise its License rights through its employees, agents, contractors, consultants and representatives who perform services for Licensee in its ordinary course of business (“Authorized Users”). Licensee will be responsible and liable for: (i) each Authorized User’s use of the Licensed Software and Documentation (as defined below) and compliance with the terms of the Agreement; and (ii) any other Person to whom Licensee or an Authorized User may provide access to or use of the Licensed Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.

     

  2. Ownership, Restriction on Use and Licensee Representations


    1. Ownership

      Licensee is receiving only a license to use the Licensed Software under this Agreement, and no title or ownership of the Licensed Software or any portion thereof is transferred by Bayer to Licensee hereunder. All rights, title and interest in and to the Licensed Software are and will remain with Bayer. Licensee shall use commercially reasonable efforts to safeguard all Licensed Software (including any copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Bayer if Licensee becomes aware of any infringement of Bayer's intellectual property rights in the Licensed Software and fully cooperate with Bayer in any legal action taken by Bayer to enforce its intellectual property rights

    2. Restrictions on Copies

      Bayer may provide user manuals, technical manuals and other written materials that describe the installation, operation, use or technical specifications of the Licensed Software (“Documentation”). In accordance with the Documentation, Licensee may access the Licensed Software locally on the Licensee’s Platform and via deployment in the cloud. Licensee will not use or copy the Licensed Software, including any use on behalf of or for the benefit of any other individual or entity (“Person”) (including any affiliate of Licensee) except as expressly authorized in this Agreement. Notwithstanding the forgoing, if any copies of the Licensed Software are made by the Licensee, the copies:

      1. will be the exclusive property of Bayer;
      2. will be the subject to the terms and conditions of this Agreement; and
      3. must include all trademark, copyright, patent and other intellectual property notices contained in the original.
    3. Additional Restrictions on Use

      Licensee will not, and will require its Authorized Users not to, directly or indirectly:

      1. use or copy the Licensed Software or Documentation, in whole or in part, beyond the scope of the License granted under Section 1;
      2. use or copy the Licensed Software or Documentation, in whole or in part, beyond the scope of the License granted under Section 1;
      3. remove, alter or obscure any of the trademarks or proprietary notices on the Licensed Software or the Documentation;
      4. provide any other Person, other than Authorized Users, either access to or use of the Licensed Software or Documentation;
      5. modify, translate, adapt, re-create, reverse engineer, decode, decompile or disassemble or otherwise attempt to derive or gain access to the source code of the Licensed Software or make derivative works or improvements, of the Licensed Software;
      6. combine the Licensed Software or any part thereof with, or incorporate the Licensed Software or any part thereof in, any other programs;
      7. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Licensed Software, or any features or functionality of the Licensed Software, to any person other than Licensee or Bayer (“Third Party”) for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
      8. use the Licensed Software or Documentation in violation of any law, regulation or rule; or
      9. use the Licensed Software or Documentation for purposes of competitive analysis of the Licensed Software, the development of a competing software product or service, or any other purpose that is to Bayer's commercial disadvantage. All rights not expressly granted to Licensee herein are reserved by Bayer.
    4. Licensee Representations

      Licensee represents and warrants that the patient data uploaded to the Licensed Software is obtained from the Licensee’s clinical practice (collectively “Patient Data”) and is collected in accordance with the Privacy Act 1988 (Cth) (“Privacy Act”). Licensee will comply with the Privacy Act and all other applicable laws, as maybe amended from time to time, with respect to its collection, storage, use and disclosure of Patient Data. Licensee represents and warrants that it has the authority to share the Patient Data with Bayer (and any Contracted Third Parties as necessary) for the purposes outlined in the Agreement. Licensee further represents and warrants that it will maintain and monitor a comprehensive, written information security program that contains administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of Confidential Information, Patient Data, Licensed Software and the Licensee’s Platform (“Information Security Program”). These safeguards must be no less rigorous than accepted industry practices, including ISO/IEC 27000 standards, NIST 800 standards, and Center for Internet Security (CIS) Controls, and any successors thereto.

     

  3. Confidential Information.


    1. During the term of the Agreement, the Parties may each have access to computer programs, Documentation, product plans, flow charts, marketing and sales information, contractor and supplier lists, patient information, know-how, trade secrets, pricing, product data and other confidential information owned by or entrusted to the other Party (“Confidential Information”). Each of the Parties agrees (a) to use commercially reasonable efforts to protect the Confidential Information of the other Party from unauthorized use or disclosure and to use at least the same degree of care with regard thereto as it uses to protect its own confidential information of a like nature; (b) to use and reproduce the Confidential Information of the other Party only as permitted under this Agreement or as needed to perform its duties hereunder; and (c) not to disclose or otherwise permit access to the Confidential Information of the other Party to any Third Party, without the other Party’s prior written consent. Information will not be considered to be Confidential Information if it: (i) was known by one Party prior to its receipt from the other, (ii) is or becomes public knowledge without the fault of the recipient, (iii) is rightfully received by the recipient from a source other than a Party to the Agreement, or (iv) is disclosed with the written consent of the other Party.
    2. A Party may disclose Confidential Information as required by law (including the rules and regulations of any national stock exchange on which such Party's or its affiliate’s securities are or may be traded), provided that such Party provides reasonable prior notice to the other Party to enable such other Party to attempt to prevent or limit the disclosure and assists such other Party upon request in seeking relief from or limiting the disclosure. Bayer may also disclose Licensee’s Confidential Information to any affiliate or Contracted Third Party engaged by Bayer in furtherance of the services required hereunder.

     

  4. Limitations of Liability.


    1. Except as otherwise specifically set forth in the Agreement, Licensee acknowledges that the Licensed Software and all services provided hereunder are provided on an “as is” basis and Bayer does not warrant that the Licensed Software or services will meet Licensee’s requirements, be error free or operate without interruption. Licensee is solely responsible for determining whether the Licensed Software will achieve the results it desires. Bayer makes no other warranties to Licensee, express or implied, and specifically disclaims any implied warranty of merchantability, fitness for a particular purpose or non-infringement.
    2. The maximum total liability of Bayer for any claim under or relating to the agreement whatsoever, including without limitation claims for breach of contract, tort (including, without limitation, negligence) or otherwise, will be limited to direct, provable damages not to exceed the amounts paid hereunder by Licensee to Bayer for the Licensed Software that is the subject of the applicable claim. In no event will Bayer be liable for any indirect, special, exemplary, incidental, punitive or consequential damages, including loss of revenue or business profits, business interruption, use, interruption, delay or inability to use the licensed software, delays or loss of services, business or goodwill, loss or corruption of data or information, loss resulting from system or system service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to update or provide correct information, system incompatibility or provision of incorrect compatibility information or breaches in system security, or any other commercial loss, even if advised of the possibility of such damages.
    3. The Licensed Software does not provide medical advice and is not intended to be a substitute for professional medical judgment, diagnosis or treatment.
    4. The remedies provided in the Agreement are the sole and exclusive remedies of the Parties and shall apply even if Licensee’s remedies under this Agreement fail of their essential purpose.
    5. Licensee agrees that any breach by if of any restrictions on use or confidentiality obligations contained in the Agreement may cause serious and irreparable harm to Bayer and that in the event of such a breach by Licensee, Bayer will be entitled to seek injunctive relief as well as any and all other remedies available at law or in equity.

     

  5. Indemnity.


    1. Bayer will defend Licensee from any claim by a Third Party that any Bayer Licensed Software furnished and used in accordance with this Agreement infringes a Third Party’s intellectual property rights provided such alleged infringement does not result from (a) any modification of the Licensed Software not made by Bayer, or (b) use of the Licensed Software in combination with any software, hardware or data not provided by or approved in writing by Bayer, or (c) failure of Licensee to install and use all updates provided by Licensee; and further provided that Licensee (i) gives Bayer prompt written notice of such claim; (ii) allows Bayer to direct the defense and settlement of the claim; and (iii) cooperates with Bayer as necessary for defense and settlement of the claim. In the event the Licensed Software is held by a court of competent jurisdiction to be, or is believed by Bayer to be, infringing, Bayer will have the option, at its expense, to: (i) obtain for Licensee the right to continue using the Licensed Software; (ii) replace or modify the Licensed Software so that it becomes non-infringing; or (iii) terminate the License and no additional fees will be due.
    2. The indemnity and remedies provided in this section constitute Bayer’s entire obligation and Licensee’s exclusive remedy regarding infringement of any intellectual property rights.

     

  6. General


    1. Notice

      All notices, requests, demands, claims, and other communications hereunder will be in writing. Any notice, request, demand, claim, or other communication hereunder will be deemed duly given (a) when delivered, if personally delivered, (b) when receipt is electronically confirmed, if e-mailed or (c) one (1) day after deposit with a reputable overnight courier, in each case addressed to the respective parties at the addresses listed above.

    2. Force Majeure

      Bayer will not be responsible or liable to Licensee, or deemed in default of this Agreement for any delay or failure to perform its obligations hereunder due to strikes, labor disputes, riots, storms, floods, explosions, act of God, terrorism, war, failure of suppliers or communications systems, pandemics or quarantines, governmental/regulatory actions, fluctuations or non-availability of electrical power, heat, light, air conditioning, internet connectivity, or Licensee equipment, loss and destruction of property or other cause beyond the reasonable control of Bayer, provided Bayer notifies Licensee immediately and in detail of the nature of such cause and the probable consequences thereof, and provided further that Bayer uses its reasonable efforts to render performance in a timely manner

    3. Assignment

      The Agreement may not be assigned by either Party without the prior written consent of the other, such consent not to be unreasonably withheld, except that Bayer may assign this Agreement to an affiliate or successor in interest without prior written consent. The rights and obligations under the Agreement will be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assigns.

    4. Use of Name

      Neither Party shall use the name or any logo or trademark of the other and shall not make any public announcement relating to the Agreement without the other Party’s prior written approval. Notwithstanding the above, Bayer may use Licensee’s name and the corresponding logo or trademark solely in connection with a representative list of customers

    5. Schedules and Referenced Documents

      All schedules attached to the Agreement and all other documents referenced herein, are hereby incorporated and form an integral part of the Agreement.

    6. General Representations and Warranties

      Each Party represents and warrants to the other as follows:

      1. it has the full right, power, legal capacity and authority to perform its obligations under the Agreement;
      2. the entering into of the Agreement will not conflict with, or result in, a breach of the terms, conditions or provisions of, or constitute a default under, any agreement to which it is bound; and
      3. the person signing the Agreement on its behalf has been duly authorized by all necessary company action, and the Agreement has been duly and validly executed and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms.
    7. Legal Compliance

      Each Party will comply with all federal, state, local laws and regulations applicable to its performance hereunder, including, without limitation, any applicable laws and regulations governing the security and privacy of personal information, including electronically stored personal health information.

    8. Governing Law

      This agreement shall be governed by the law of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

    9. Entire Agreement and Amendment

      The Agreement, including all schedules and other documents incorporated herein, represent the complete statement of the agreement of the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, negotiations and representations, oral or written, between the Parties with respect to the subject matter hereof. The Agreement may be amended by Bayer from time to time as provided for herein.

    10. Severability and No Waiver

      If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force. The waiver by either Party of a breach of any provision of the Agreement will not operate as a waiver of any other breach. No delay or failure of Licensee or Bayer to exercise any right or remedy will operate as a waiver, except where specifically provided to the contrary.

STATEMENT OF WORK

Implementation Statement of Work

 

    1. Executive Summary


      This Implementation Statement of Work (“SOW”) serves to document the services to be performed and the deliverables to be provided in connection with the implementation and integration of the Licensed Software and application user training (“Implementation Project”). A full purchase order for the Licensed Software and associated Professional Services will be provided by the Licensee and execution of this Agreement by Licensee and Bayer (“Completion of Sale”) will be required to initiate the Implementation Project. Unless otherwise stated all Professional Services will be provided Monday – Friday, 8AM – 5PM, Local Time (“Standard Hours”).

       

    2. Implementation Strategy


      Each party is responsible for carrying out the work assigned to it in Sections 1.4 and 1.5 of this SOW for the Implementation Project.  Unless stated otherwise in this SOW all work to be completed by Bayer will be done from a remote location via Bayer.

       

    3. Resource Commitment


      A Bayer implementation team typically consists of a Project Manager, Implementation Specialist and Technical Implementation Lead.  Additional resources may be added or substituted by Bayer as needed to meet an implementation timeline or a change in scope of the Implementation Project.

       

    4. Implementation and Training Services


      Bayer shall provide services for the Implementation Project in accordance with the Licensed Software purchased by Licensee and summarized in Schedule 1. Bayer may provide application user training at a Licensee facility or from a remote location as agreed to by Bayer and Licensee.  Bayer and Licensee will work to complete the following Implementation Project tasks:

      • Project Management (Joint)
      • Deployment of a host server as a Virtual Machine (“VM”) for each server license purchased, and configuration of each VM for network connectivity to allow remote access by Bayer (Licensee)
      • Installation of the Windows Server operating system and other Windows software components onto the server VM(s) as specified by Bayer (Licensee)
      • Installation of Bayer VirtualCARE remote access onto the VM(s) (Joint)
      • Installation of Bayer Licensed Software onto the VM(s) (Bayer)
      • Installation of OpenVPN and configuration of Licensee networks to allow connectivity of on-premise and cloud License Software components (Licensee)
      • Technical configuration of the deployed Licensed Software (Bayer)
      • Integration of the VM(s) to DICOM data sources (Joint)
      • Integration of the VM(s) to HL7 Order data sources (Joint)
      • Configuration and testing of outbound reporting interfaces (Joint)
      • Development of Relevancy Rules (Joint)
      • Validation testing and acceptance (Joint)
      • Go-live support (Joint)

       

    5. Deliverables


      1. Project Management

        A Bayer Project Manager will oversee and coordinate the Implementation Project using Bayer’s standard project methodology from initiation through the completion of application user training.  The Bayer Project Manager will also set up weekly or bi-weekly project status report meetings to be conducted via conference call during the Implementation Project.

        Bayer will provide prompt notice to Licensee if it determines at any time that there will be any delay in completing the Implementation Project. Licensee acknowledges that Licensee’s timely, complete and accurate performance of its obligations hereunder is essential to Bayer meeting any targeted completion date for the Implementation Project.

      2. Project Kickoff Meeting

        Bayer will make every reasonable effort to initiate the Implementation Project at a mutually agreeable date with the Licensee within 60-days following the Completion of Sale.  

        Initiation typically consists of a Kickoff meeting with introduction of key resources from both organizations. These individuals will review the Bayer Order and SOW deliverables to verify project scope. More specific implementation details will be provided by Bayer, and requests for workflow, clinical and technical data from Licensee will be made by Bayer at the Kickoff meeting. The goal of the Kickoff meeting will be to confirm project scope, deliverables, timeline and a date to begin the Implementation Project.

      3. Kickoff Follow-Up

        Upon completion of the project Kickoff meeting, the Bayer Project Manager will document all actions pertaining to requests for technical data, installation, systems integration, validation, acceptance, and application user training.  Required action items will be highlighted.  An installation timeline and task schedule will be provided to Licensee once an agreed upon date for the Implementation Project is identified.

      4. Installation

        Licensee and Bayer Technical Implementation Specialists will complete the installation and configuration activities described in section 1.4. The VM(s) provided by Licensee will meet the specifications and requirements as described in Platform Requirements, including the VirtualCARE remote access and OpenVPN requirements.

      5. Systems Integration

        Unless otherwise indicated in Schedule 1 the Licensee and Bayer will configure and validate the connectivity of the Licensed Software to one PACS, DICOM Router, and / or (n) modalities of the Licensee, and to one source for Inbound HL7 Order messages. Integration of multiple inbound data sources will be as purchased by the Licensee and summarized in Schedule 1.  

        Licensee and Bayer Technical Specialist will also configure additional outbound interfaces connecting the Licensed Software to Third Party applications hosted on the Licensee’s Local and Wide Area Network.  Outbound interfaces connections to PACS and Worklist will be as required by the Application Software listed in Schedule 1.  Additional outbound reporting interfaces to EMR/RIS, Speech Reporting, or other components of Licensee infrastructure will be as purchased and referenced in Schedule 1.

      6. Relevancy Rules, Data Validation and Acceptance Testing

        Upon completion of installation and integration activities Licensee and Bayer will work collaboratively to develop Relevancy Rules for the Application Software listed in Schedule 1.   

        Upon completion of development and testing activities for Relevancy Rules Bayer will complete data validation and demonstrate (the “Acceptance Test”) that the Licensed Software is capturing License source data, generating results data, and passing results to target applications for reporting purposes (the “Acceptance Criteria”).  Licensee will have ten (10) business days from the conclusion of the Acceptance Test (the “Notice Period”) to notify Bayer in writing if Licensee in good faith believes that the Licensed Software did not perform in accordance with the Acceptance Criteria.  

        If Licensee provides written notice to Bayer within the Notice Period of Licensee's belief that the Licensed Software does not perform in accordance with the Acceptance Criteria, including the reasons for such belief in reasonable detail, Bayer will use its reasonable efforts to correct the non-conformity and the Parties will retest the Licensed Software. If Bayer does not correct the non-conformity within 45 days after the end of the Notice Period, then Licensee may for a period of 30 days after the expiration of such 45 day period (the “Termination Option Period”) elect to terminate this Agreement upon written notice to Bayer delivered during the Termination Option Period.  

        The Licensed Software acceptance date (the “Acceptance Date”) will be the earliest date on which any of the following occur (a) Licensee notifies Bayer that the Licensed Software has passed the Acceptance Test, (b) Licensee does not notify Bayer in writing during the Notice Period of its good faith belief that the Licensed Software has not performed in accordance with the Acceptance Criteria and (c) Licensee does not notify Bayer in writing during the Termination Option Period of its intent to terminate the Agreement.

      7. Licensee Requirements & Site Readiness

        Licensee will be solely responsible for obtaining, implementing and maintaining all required Platform equipment and related systems defined herein, any additional third party software to be provided by Licensee and agreed to by Bayer, network access (including remote access via Bayer VirtualCARE and VPN access between the on-premise and cloud components of the Licensed Software), physical, technical and administrative security controls, and any additional safeguards needed to promote availability, scalability, performance and dependability of any of the foregoing.  Licensee will be solely responsible for any and all costs, license fees and taxes relating to the foregoing.  

        Licensee is responsible for providing a Project Manager and additional technical staff overseeing PACS, Server VMs, Networks, Access Management and Security teams in order to help facilitate the completion of the Implementation Project.  Licensee team will participate in the project Kickoff meeting, assist with site readiness tasks, and will be available as needed to support the Implementation Project.    

       

    6. Assumptions


      The following assumptions are a part of the basis for the Implementation Project.  If any of these assumptions are determined to be incorrect, changes will be managed using the Change Management Process as described in Section 1.8.

      1. Provision of the Platform as outlined herein
      2. Bayer VirtualCARE solution will be used by Bayer during all installation and integration activities
      3. Full administrative rights will persist on all Bayer support accounts utilized by Bayer to provide Professional Services for the Implementation Project and Maintenance and Support Services for the Licensed Software
      4. Technical Implementation services will be provided during Standard Hours, excluding Alaska and Hawaii Licensees
      5. The Licensee resources assigned to the project shall possess the necessary skill sets and shall be engaged as requested by the Bayer implementation team
      6. Licensee will provide necessary third-party resources as needed to assist with DICOM configuration and applicable systems integration during the Implementation Project
      7. Customizations of the Licensed Software including specialty configuration of interfaces used by the Licensed Software are out of scope for this SOW

       

    7. Risks


      The following are potential risks to the delivery of any of the phases or milestones of this Implementation Project. If a risk is identified with the potential to cause a significant impact on the delivery and completion of the Implementation Project, it will be managed using the Change Management Process as described in Section 1.8.

      1. Delays in providing Licensee staff needed to support the Installation Project
      2. Delays in providing the Platform requirements as specified herein
      3. Delays in providing Bayer with timely remote access to the Server VM(s), or VPN access between the VM(s) and cloud components
      4. Delays in providing information needed to complete the technical configuration of the Licensed Software or the development of Relevancy Rules
      5. Delays in providing DICOM and HL7 integration resources, from data sources or two data targets, to allow data validation and acceptance
      6. Failure to make Licensee staff available at the pointed times for pre-scheduled training sessions.
      7. Contention issues with other Licensee projects or day-to-day issues

       

    8. Change Management Process.


      1. Change Order. Following execution of this SOW, any modification of this SOW or any additional services not specifically outlined in this SOW that are requested by Licensee will be managed by the Change Management Process.  Licensee and Bayer will agree and approve a Change Order to provide additional services, or to continue the Implementation Project using a modified SOW.  This will ensure that both parties are informed, participating, and in agreement as the Implementation Project moves from initiation to completion.  
      2. Modification of the SOW. The Bayer Project Manager will provide Licensee with a written Change Order specifying changes to the SOW, additional services to be provided, and any additional fees due from Licensee. Execution of a Change Order will occur when Licensee and Bayer sign the Change Order and Licensee provides Bayer with a Full or Revised Purchase Order that includes the additional fees due by Licensee.  The Project Manager will provide Licensee with a revised project plan and service deliverables to reflect the incorporation of the new requirements or modifications made to the SOW by the Change Order.  It is important to note that in many situations, project resources must shift their effort from project work in order to properly scope the required change(s).
      3. Additional Services. Any services not covered in this SOW shall be treated as Billable Professional Services unless otherwise agreed to by both parties on the Change Order.

       

    9. Client Delays.


      If the Licensee causes delays in the implementation beyond a reasonable period, Bayer reserves the right to reallocate implementation resources to another Implementation Project. Bayer resource availability would therefore not be guaranteed once the Licensee is ready to reengage or move forward with the Implementation Project

MAINTENANCE AND SUPPORT SERVICES SUMMARY

 

  1. Maintenance and Support Services. During the term of the Agreement, Bayer will provide maintenance and support services as follows:
    1. All maintenance and support services will be provided from a remote location via VirtualCare® Remote Support.
    2. Services of a qualified Bayer representative to provide technical assistance and attempt corrective actions (which may consist of providing a corrective action and/or a workaround solution) (“Error Correction”) of any failure of the Licensed Software to substantially perform the functionality described in the Documentation when hosted on the Licensee Platform and operated by Licensee in accordance with the Documentation (each failure an “Error”), which are brought to the prompt attention of Bayer by Licensee. Licensee will co-operate with Bayer and will make available a suitably qualified contact person who is knowledgeable of each Error and the Licensed Software, and who is available for discussion (“Licensee Coordinator”). Licensee Coordinator will use commercially reasonable efforts to submit and track all support requests. Licensee must permit Bayer to gain remote access to the Licensed Software, to install software and make changes to the Licensed Software that are required to provide Error Correction. Such remote access may result in the Bayer representative having access to Patient Data.  Bayer shall continue efforts to provide Error Correction only when these requirements have been met.
    3. Bayer will also provide application support (“Application Support”) to address clinical questions, including questions about application functionality, clarification on results, or any other questions that are non-technical in nature. This support is not medical advice and should not be a substitute for professional medical judgment, diagnosis or treatment.
  2. Technical Assistance and Error Correction.Bayer will provide Licensee with telephone and/or online access to request technical assistance (“Technical Assistance”) and Error Correction as follows:
    Severity Definition Response Time
    1 Customer cannot use multiple Models or there is a critical impact on the Customer’s operations for which no known workaround exists and requires immediate attention Within 2-Hrs
    M-F, 8-5, Local Time
    2 Customer can use the Bayer Solution, but an important function is not available, or there has been failure of a single Clinical Application or the Customer’s operations are severely impacted and no known work around exists Within 2-Hrs
    M-F, 8-5, Local Time
    3 Customer can use the Bayer Solution and Models with some functional restrictions, but it does not have a critical impact on the Customer’s operations, and no known workaround exists Within 4-Hrs
    M-F, 8-5, Local Time
    4 Minor problem that is not significant to the Customer’s operations, Customer can use solution but desire attention to matter. Within 8-Hrs
    M-F, 8-5, Local Time

    Technical Assistance for Severity 1 can be requested via telephone (1800 633 723,). Technical Assistance for all other severity levels, Application Support may be requested by email at dsbsupportapac@bayer.com (email is monitored 8-5 M-F eastern standard time).

  3. Updates.For purposes of the Agreement, “Update” shall mean a new update, modification, enhancement or correction to the Licensed Software or Documentation that improves the performance of the Licensed Software and that is generally made available by Bayer from time to as an entitlement of the Agreement.
    1. For all Updates associated with on premise components of the Licensed Software, Licensee must promptly install, or at a mutually agreed upon time, agree to install, or permit Bayer to install, each Update provided by Bayer.
    2. Unless indicated otherwise by Bayer, all Application Support and training services for an Update project will be provided from a remote location.
    3. Updates may also include more current versions of existing Third Party Licensed Software, or new Third Party Licensed Software, each provided by Bayer (“Bayer Provided Third Party Software”) that are required to enable the Licensed Software to perform as intended. Bayer Provided Third Party Software will be provided on an “as is” basis and Bayer does not warrant that Bayer Provided Third Party Software will be error free or operate without interruption.
    4. Bayer may, in its sole and absolute discretion, include in Updates or other products certain features or functionality suggested or requested by or on behalf of Licensee at any time, including any customizations or modifications that may be required during the installation of the Licensed Software pursuant to the Agreement that Bayer agrees to perform, and Bayer will exclusively own all such features and functionality and may provide them to other licensees with or without charge, without any compensation due to Licensee, unless otherwise specifically agreed in writing between the Parties.
  4. VirtualCare.Bayer will use Bayer VirtualCare® Remote Support, to provide all on premise support as noted below. Detailed information on Bayer VirtualCare may be found in the VirtualCare Whitepaper.
    1. Remote Access via VirtualCare is required.
    2. VirtualCare will provide an encrypted connection between a Bayer support staff and the Licensed Software. Bayer will follow a defined process to: (i) initiate Error Correction with the Licensee; (ii) establish remote access with the Licensed Software; (iii) complete diagnostic and root cause analysis; (iv) make changes to the Licensed Software or configuration settings; (v) test and validate Error Correction; and (vi) confirm completion of Error Correction with Licensee at the conclusion of a support session (collectively “Change Control Process”).
  5. Exceptions.Bayer Services do not cover:
    1. Errors resulting from any modifications of or alterations to the Licensed Software by anyone other than Bayer or its authorized contractors;
    2. Errors due to failure by Licensee to install Updates as provided and requested by Bayer;
    3. Errors resulting from Licensee’s failure to comply with the Platform requirements outlined below and in the Documentation.
    4. Errors resulting from any installation or use of customer-provided hardware or Third Party software not specified in the Documentation or expressly authorized by Bayer in writing;
    5. Errors attributable to failure or errors of the Licensee’s environment, including but limited to outages in power, computing environment network, or other connectivity with the Licensed Software.
    6. Accident, neglect, or misuse of the Licensed Software or failure by Licensee to maintain the Licensee Platform or any other causes beyond Bayer’s control.

      Error correction provided by Bayer including reinstallation of the Licensed Software requested by the Licensee, or as needed to address a failure attributable to this Section 6 may be a billable service and additional fees may apply. Billable Professional Services are payable and due within 30 days of Bayer’s invoice thereof.

  6. Minimum platform requirements for Licensee environment.

    Licensee’s Platform shall mean equipment and software owned or utilized by Licensee that is used to host or provide a connection to the Licensed Software, including all associated Licensee third party software and support contracts. Platform specifications are specific to the installed version of the Licensed Software, and will be as indicated in the Documentation for a given release of the Licensed Software and will include requirements relating to the following:

    1. Licensee’s Platform must conform with all required inbound and outbound DICOM, HL7 and Web Services interface standards that are supported by the installed version of the Licensed Software. Specifications will be as indicated in the Documentation for the Licensed Software.
    2. Licensee’s Platform must conform with all networking and workstation requirements that are needed by the Licensed Software to receive, process, cache, and transmit data within the Licensee’s Local and Wide Area Networks, including OpenVPN facilitated communications between on-premise and cloud platform components, and as needed for VirtualCare remote support.
    3. Licensee’s Platform must conform to the requirements for physical, technical and administrative security controls (including firewall and intrusion detection software), and additional safeguards needed to promote the availability, scalability, performance and dependability of any of the foregoing.
    4. Licensee’s Platform must include any certificates needed to support encryption of data transmissions between the Licensed Software and Licensee’s third party software or Licensee users.
    5. Licensee will be solely responsible for any and all costs, license fees and taxes relating to the foregoing.
  1. Definitions and Interpretation


    In these Terms and any related Contract, unless the contrary intention appears:

    Affiliate means an entity or company which directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control, with a party.

    Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales or, for deliveries of Products, at the place of delivery.

    Contract means a contract for sale as referred to in clause 3.

    Customer means the person who orders Products from Imaxeon, whether by telephone, facsimile, email, in person, through Imaxeon's online ordering system or otherwise.

    Force Majeure means any circumstance beyond the reasonable control of a party which results in a party being unable to observe or perform on time an obligation under these Terms.

    GST has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cth) (as amended).

    Imaxeon means Imaxeon Pty Ltd (ABN 93 093 950 906) which is a part of the Radiology business of Bayer and a member of the Bayer Group of Companies.

    Insolvency Event means circumstances in which Customer is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by Imaxeon; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (c) seeks protection or is granted protection from its creditors, under any applicable legislation.

    Order means a purchase order for Products which has been accepted by Imaxeon but excluding any terms or conditions printed on or referred to in Customer’s purchase orders or other documentation unless expressly agreed to in writing by Imaxeon.

    PPSA means the Personal Properties Securities Act 2009 (Cth) (as amended from time to time).

    Price means the price for the Products as specified in the Contract.

    Products mean the goods purchased or to be purchased by Customer from Imaxeon which are the subject of a Quotation or Contract.

    Quotation means the price and any other additional terms set by Imaxeon for the Products to be purchased by Customer from Imaxeon which are or will become the subject of a Contract.

    Terms means these terms and conditions of sale.

     

  2. Quotation


    1. All Quotations are valid and will be unchanged for a period of 30 days from the date shown in the Quotation, except where:
      1. the Customer requests, and Imaxeon agree to, any variation to the Products or any other subject matter of the Quotation; or
      2. where the Quotation relates to imported third party Products, the exchange rate used in the Quotation changes between the date of the Quotation and the date of the applicable Contract, and/or the transfer price offered for the Products by the third-party supplier changes, and/or any other taxes or duties applied to the Products changes,

      in which circumstances for both (a) and (b) above the Quotation will be deemed to be effectively adjusted in accordance with such changes.

    2. Customer indicates acceptance of the Quotation by placing an Order in accordance with clause 3.

     

  3. Orders


    1. All orders for Products must be placed in the manner and form required by Imaxeon from time to time.
    2. Imaxeon may in its absolute discretion determine from time to time a “Specified Order Quantity”, being the minimum order value or quantity for each order of Products to be supplied to Customer.
    3. All orders will be subject to acceptance by Imaxeon, which may decline an order or accept an order in whole or part in its absolute discretion. Customer acknowledges that acceptance of an order by Imaxeon will not imply that Imaxeon will accept any future order(s) placed by Customer.
    4. Once accepted by Imaxeon, an Order may not be cancelled by Customer except with the express consent of Imaxeon.
    5. Upon the acceptance of each Order by Imaxeon, a separate contract of sale will arise. Each Contract will comprise the accepted Order and these Terms. If there is any inconsistency between these Terms and another provision in a Contract then the provision in the Contract will prevail only to the extent of the inconsistency.
    6. For the avoidance of doubt no terms or conditions of Customer, including any terms or conditions printed on or referred to in Customer’s offer to purchase or order will be binding on Imaxeon or have any legal effect unless expressly agreed to in writing by Imaxeon.

     

  4. Price and Payment


    1. The price for the Products is specified in the Contract. Unless the Contract states otherwise, Imaxeon may alter the Price at any time prior to acceptance of an order without prior notice.
    2. Customer must pay GST or any other tax duty, levy, tariff or charge applicable to the supply of the Products in addition to, and at the same time as, payment of the price. Imaxeon will provide Customer with a tax invoice as required by law.
    3. Unless the Contract states otherwise, Customer must pay the Price for Products supplied to it within 30 days of the date of the invoice for such Products.
    4. Customer must not withhold payment or make any deduction from the invoiced price or any other amount owing to Imaxeon without Imaxeon’s prior written consent.
    5. Receipt of any amount will not constitute payment until such time as the amount is paid or honoured in full.
    6. Imaxeon may in its discretion allocate a payment that does not specifically identify the invoice for which such payment is made in satisfaction for monies owing under any outstanding invoices without regard to the date of those invoices.
    7. Imaxeon may charge interest on any overdue monies at the rate which is 2% above the rate charged by Imaxeon’s major banker for commercial overdraft balances of over $100,000 from time to time, calculated from the due date for payment of the outstanding amount until the date of payment by Customer. Any payment made by Customer will be credited first against any interest that has accrued.
    8. Imaxeon will be entitled to recover from Customer all legal and other costs incurred by Imaxeon arising from Customer’s default in payment and the collection of any overdue monies.

     

  5. Delivery Terms


    1. Any timeframes quoted by Imaxeon for delivery of the Products are estimates only. Imaxeon will use its reasonable endeavours to supply the Products in the quantities specified in the relevant Contract.
    2. Imaxeon will not be liable for any loss suffered by Customer arising out of any delay or failure to deliver the Products (or any part of them) or failure to deliver in the requested quantities.
    3. Imaxeon is entitled to refuse to deliver the Products to Customer if there are any outstanding monies owing to Imaxeon.
    4. Delivery of the Products will be made in the manner and at the place specified in the relevant Contract or if not specified, delivery will be made as determined by Imaxeon.
    5. Customer agrees to accept delivery of the Products at any time between 9.00am to 5.00pm on a Business Day.
    6. If Imaxeon fails to deliver some or all of the Products pursuant to a Contract, Customer will not be entitled to cancel that Contract or any other order, Contract or delivery. Imaxeon will not be obliged to accept any claims for shortages of deliveries or non-conforming Products unless written notice of the claim is given to Imaxeon within 10 Business Days after receipt by Customer of the Products at the delivery destination.
    7. If Imaxeon supplies the Products pre-packed and labelled, Customer must not sell, supply or otherwise deal with the Products unless the packaging and labelling remains intact, and Customer must not alter, remove, conceal or tamper with any batch numbers or other means of identification used in relation to the Products.
    8. If Customer does not, or indicates to Imaxeon that it will not, take or accept delivery, then the Products will be deemed to have been delivered when Imaxeon was willing to deliver them.
    9. Imaxeon reserves the right to deliver the Products by instalments. Each instalment may be invoiced separately and will be deemed to be a separate contract under the same provisions as the main Contract.
    10. Imaxeon may suspend or cancel delivery of the Products if Imaxeon reasonably believes that the Products may cause injury or damage (including for technical, scientific, medical or efficacy reasons) or may infringe the intellectual property rights of any person, or if payments owing from Customer to Imaxeon remain outstanding. No such suspension or cancellation will in any way constitute admission of liability or fault on Imaxeon’s part.

     

  6. Containers and Pallets


    1. Any pallets or containers used for the delivery, storage or display of the Products are not included in the Price unless otherwise specified and will remain the property of their owner.
    2. Customer must promptly return or exchange the pallets and containers in its custody on the day of delivery (unless otherwise agreed with Imaxeon) or reimburse Imaxeon the cost of replacement or repair of lost of damaged pallets or containers.
    3. Imaxeon may charge a deposit to Customer for a pallet or container which will be credited in full if the pallet or container is returned to Imaxeon within 3 months of dispatch and is in good order and condition.

     

  7. Risk and Title


    1. Legal and beneficial ownership in the Products will not pass to Customer until Customer has paid in full the Price for those Products.
    2. Risk of loss of or damage to the Products will remain with Imaxeon only until the first of the passing of title to the Products to Customer, or delivery of the Products by Imaxeon to Customer in accordance with clause 5. Thereafter risk of damage to, or loss or deterioration of, the Products from any cause whatsoever passes to Customer.
    3. Until all outstanding monies have been paid to Imaxeon for Products delivered to Customer:
      1. Customer must separately store those Products in such a way that makes it clear that they are the property of Imaxeon;
      2. in the event of a default (specified in clause 14), Imaxeon or its representative will be entitled, without the necessity of giving any notice, to enter premises occupied by Customer to search for and remove any of those Products without in any way being liable to Customer, and may dispose of or retain such Products as Imaxeon sees fit without being required to give notice or account to Customer. If the Products or any of them are wholly or partially attached to or incorporated in any other product, Imaxeon may (when practical) disconnect them in any way necessary to remove the Products; and
      3. all costs and expenses incurred by Imaxeon as a result of taking action in accordance with clause 7.3(b), together with transportation and storage charges, must be paid by Customer to Imaxeon on demand.
    4. Until title to the Products passes to Customer, Customer acknowledges and agrees:
      1. that the Products supplied and not resold are held by it as a bailee for Imaxeon;
      2. Customer may resell the Products without the right of Customer to bind Imaxeon to any liability to any third party (whether contractual or otherwise);
      3. any resale of the Products must only be made on the condition the purchaser is expressly made aware of the existence of Imaxeon’s rights under this clause 7;
      4. if the Products have been resold by Customer, Customer will hold so much of the proceeds of sale as does not exceed the outstanding monies on trust for Imaxeon immediately when they are receivable or received;
      5. when the proceeds held in trust for Imaxeon under clause 7.4(d) are received they must either be paid immediately to Imaxeon or held in a separate bank account as trustee for Imaxeon and they must not be used by Customer in any other way whatsoever; and
      6. the authority conferred on Customer by clause 7.4(b) may be revoked by written notice from Imaxeon at any time if Imaxeon deems the credit of Customer to be unsatisfactory or if Customer is in default in the performance of its obligations under any Contract, these Terms or any other agreement between Imaxeon and Customer.
    5. This clause 7 creates a purchase money security interest in the Products, any goods in which the Products are used as a component, and all proceeds from their respective resale by Customer. The security interest is granted to secure Customer’s proper performance of the Agreement, and comes into effect when the Customer takes possession of the Products.

      For the avoidance of doubt the Customer acknowledges and agrees that it grants to Imaxeon a security interest in all goods supplied by Imaxeon to the Customer whether now or in the future and in any proceeds from the sale of those goods.
    6. The parties agree that pursuant to sections 115(1) and 115(7) of the PPSA the following sections of the PPSA will not apply to these Terms and any related Contract (to the extent permitted by law): Sections 95, 96, 117, 118, 121(4) 125, 127 129, 130, 132, 134(2) 135, 136(3), 136(4), 136(5), 137, 142 and 143.
    7. For the purposes of section 14(6) of the PPSA the parties agree that any payments received by Imaxeon from the Customer pursuant to or in any way connected with this Agreement will be applied in such order as Imaxeon deems fit in its absolute discretion.
    8. Customer consents and agrees that:
      1. It must sign all documents and take all steps as Imaxeon may reasonably require in connection with the registration, perfection and enforcement of this purchase money security interest; and
      2. The security interest created by this agreement or any other document relating to the subject of this agreement may be registered with the relevant authority or public register; and
      3. Imaxeon is not obliged to give any notice or documents under the PPSA unless the relevant obligation cannot be excluded. Customer waives its right to be provided with verification statements pursuant to section 157 of the PPSA.

     

  8. Warranties


    1. Imaxeon warrants that all Products manufactured by it and supplied to Customer will, subject to this clause 8, comply with Imaxeon’s specifications for those Products (or if no such specifications exist, will be free of defects in materials and manufacture), for a period of 12 months from the date of either delivery of the Products by Imaxeon to Customer or the date of installation of the Products by Imaxeon where the Products require installation (the Warranty Period).
    2. If a Product does not comply with the warranty set out in clause 8.1 and Customer notifies Imaxeon in writing of the defect during the Warranty Period within 10 Business Days of the defect coming to its notice, Imaxeon will, at its option, either exchange the Product for a new Product, or refund the Price paid for the Product.
    3. When a refund is given pursuant to clause 8.2, the Product for which the refund is provided must, at Imaxeon’s option, be destroyed or returned to Imaxeon by Customer, at Customer’s expense, and if returned becomes the property of Imaxeon.
    4. The warranty in clause 8.1 does not apply:
      1. as a result of any acts or omissions by any person other than Imaxeon or any external cause;
      2. if the defect is due to the Product being used for purposes other than for purposes for which it was intended or which do not fall within the scope of any regulatory approval;
      3. to a Product that has been modified without the written permission of Imaxeon; or
      4. if the Product has not been stored or transported in accordance with Imaxeon’s recommendations.
    5. The benefit of the warranty in clause 8.1 is personal to Customer and is not assignable without the prior written consent of Imaxeon.
    6. Except as expressly set out in these Terms, the rights set out in this clause 8 are the sole and exclusive remedies of Customer with respect to defective Products.
    7. Except as expressly set out in these Terms, and subject to any terms, warranties or conditions that by law may not be excluded (including those under sections 51, 52 and 53 of the Australian Consumer Law), all conditions, warranties, terms, and obligations expressed or implied by law or otherwise relating to the performance of Imaxeon’s obligations under these Terms, or any goods or services supplied, or to be supplied, by Imaxeon under these Terms, are excluded.

     

  9. Credits


    1. Credits sought for returned Products are at Imaxeon’s discretion. Where accepted, Imaxeon may charge a reasonable administration fee in respect of all returned Products. For the avoidance of doubt, no Products for which the shelf life has expired will be accepted for return.
    2. Products, in respect of which a credit is sought and approved by Imaxeon, must be returned to Imaxeon’s premises freight free in good and saleable condition in the original containers and packaging in which they were supplied, and accompanied by the number and date of Imaxeon’s supplying invoice.

     

  10. Assistance and Materials Supplied by Imaxeon


    1. Subject to obligations imposed on Imaxeon by the law which cannot be excluded or modified by these Terms, and subject to any contrary provisions in a Contract, any advice, recommendation, information, assistance or service provided by Imaxeon in relation to Products and their use or application is given in good faith but is provided without liability or responsibility on the part of Imaxeon and without intention that Customer should rely thereon.
    2. Any material supplied by Imaxeon for advertising and display is issued to Customer for use in its own business and is not intended for circulation or distribution to the public. Such material will remain the property of Imaxeon, must be returned by Customer to Imaxeon upon request and must not be modified without Imaxeon’s prior consent.

     

  11. Complaints and Recalls


    1. For the purposes of this clause: “Complaint” means any report about a potential or alleged failure of the Products (or medical devices) in its quality that has been distributed for patient use. The Complaint may or may not represent a potential risk to the patient or to any end user of such Products.
    2. Customer agrees to inform Imaxeon immediately upon becoming aware of any Complaint regarding the Products or any information about:
      1. a malfunction or deterioration in the characteristics and/or performance of the device; or
      2. any inadequacies in the labelling or the instructions for use which, directly or indirectly, might lead to or might have led to the death of a patient, user, or other persons or to a serious deterioration in their state of health;

      by email to: qarydalmere@bayer.com.

    3. Imaxeon shall be responsible for notifying the competent authorities of any information that may affect the performance, safety, and efficacy of the Products, such as an adverse event.
    4. If Imaxeon reasonably decides to or is required by any Applicable Laws, Regulatory Authority or court of competent jurisdiction to initiate a recall, market withdrawal or field correction (“Recall”), or if there is any governmental seizure (including any threatened governmental seizure) of any device, Imaxeon shall at its sole discretion initiate such Recall and notify Customer of the details regarding such Recall.
    5. In the event of a Recall, Customer agrees to cooperate with Imaxeon to the fullest extent possible to diminish any risk to the public, which includes the following:
      1. reasonably assisting Imaxeon and providing information regarding traceability to affected Products;
      2. removing the Products that may be affected by a Recall from offer for sale to the public;
      3. complying with all laws, regulations and notice requirements in relation to any Recalls;
      4. complying with any directions and corrective action required by Imaxeon in relation to the Recall;
      5. recalling the Products that may be affected by Recall where they have been sold; and
      6. disseminating information to customers that has been approved by Imaxeon which is necessary to limit any harm, loss or damage that may be caused in any way in relation to the Recall.

     

  12. Limitation of Liability


    1. Any provision of these Terms that excludes any terms, conditions or warranties, or limits the liability of a party will apply only to the extent permitted by law and these Terms will be construed subject to such terms, conditions, warranties and limitations.
    2. Subject to clause 12.1, where any terms, conditions or warranties are implied by law into these Terms which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of Imaxeon to Customer under such implied terms, conditions or warranties is limited, at the option of Imaxeon, to the repair or replacement of goods, or payment of the cost of repairing or replacing the goods.
    3. Except as expressly provided in these Terms, to the extent permitted by law, Imaxeon will have no liability to Customer, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity.

     

  13. Indemnities


    1. If Customer gives instructions to Imaxeon with respect to the manufacture, packaging, sale or supply of the Products, Customer warrants to Imaxeon that adherence by Imaxeon to any such instructions will not infringe the intellectual property rights of any other person.
    2. Customer releases and indemnifies Imaxeon, its related bodies corporate, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of Customer’s warranties or obligations contained in these Terms, and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.

     

  14. Default


    1. If an Insolvency Event occurs in relation to Customer any other event occurs which gives Imaxeon reasonable grounds for doubting the credit of Customer, Imaxeon may by notice to Customer, at its option and without prejudice to any other right it may have, suspend or terminate a Contract or require payment before or on delivery of the Products (notwithstanding the terms of payment applicable to the Products), or cancel any undelivered or uncompleted Products under a Contract, and may retain any monies paid by Customer in relation to the Contract and apply such monies against any loss or damage incurred by it in relation to the default by Customer.

     

  15. Force Majeure


    1. Neither party will be liable for any delay or failure to perform its obligations under these Terms (other than payment obligations) if such delay is due to Force Majeure.
    2. If a delay of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.

     

  16. Confidentiality


    1. These Terms and the provisions of all Contracts are confidential and must not be disclosed by Customer to any third party without Imaxeon’s prior written consent unless such disclosure is required by law (other than section 275(1) of the PPSA).
    2. The parties agree that the provisions of this clause 16 amount to a “confidentiality agreement” referred to in section 275 (6) of the PPSA.
    3. The restrictions contained within this clause 16 do not apply to any of these Terms or provisions of Contracts that Imaxeon has itself placed in the public domain.

     

  17. Privacy


    1. Imaxeon has a published Privacy Policy which is incorporated into these Terms by reference and can be viewed at radiology.bayer.com.au.
    2. Imaxeon’s collection and use of your personal information may for purposes including:
      1. to process and administer your dealings as a customer, including assessing your credit worthiness;
      2. to provide you with the Products and services you have requested and assisting you with further relevant information including Product related information ; and
      3. to administer the transactions contemplated by the Terms.
    3. Imaxeon will generally:
      1. use personal Information provided to it for the purposes relating to the terms of this agreement;
      2. use personal information collected by it in accordance with its Privacy Policy and the Privacy Act 1988 (Cth) (the “Privacy Act”); and
      3. not sell, trade, give or pass on to any third party any personal information unless such a disclosure is contemplated by and directly related to the purpose outlined by the terms of this Agreement, or the Customer consents to such a disclosure or such disclosure is required to do so by law.
    4. Customer therefore authorises Imaxeon to disclose Customer’s personal information to third party contractors and service providers that assist Imaxeon operate its business and assist Imaxeon fulfil the terms of this agreement such as contractors and service providers involved in services including but not limited to the processing of orders, order fulfilment and the collection of outstanding debts.
    5. By entering into this agreement Customer:
      1. acknowledges that it has read Imaxeon’s Privacy Policy and consents to the terms thereof;
      2. acknowledges that Imaxeon is a global organisation and some of the activities necessary to fulfil the terms of this agreement may be conducted by Imaxeon entities located outside of Australia such as in Singapore, Philippines or Germany and as such Customer consents to the overseas transfer of its Personal Information, its employees, consultants and agents provided by Customer to Imaxeon.
    6. Customer warrants that it shall comply with the provisions of the Privacy Act and shall not (as far as practicable) knowingly do anything or permit anything to be done which might lead to a breach of any such legislation.

     

  18. General


    1. In these Terms and any Contract, unless the contrary intention appears:
      1. a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
      2. a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
      3. a reference to dollars is to Australian Dollars;
      4. the word “including” and similar expressions are not words of limitation;
      5. a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and
      6. where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
    2. Any notice given by a party in connection with these Terms or any Contract shall be in writing and will be deemed to have been given when delivered or sent by post, facsimile or email to the party to whom such notice is intended to be given at the address or facsimile number of that party provided in this agreement or as otherwise notified in writing to the other party. A notice is deemed to be given and received:
      1. if hand delivered, on delivery;
      2. if sent by prepaid post, 3 Business Days after the date of posting, or 6 Business Days if sent to or from another country; or
      3. if sent by email, when the sender’s email system generates a message confirming successful transmission of the message.
    3. If any provision of these Terms is invalid, illegal or unenforceable, these Terms take effect (where possible) as if they did not include that provision.
    4. Any failure by Imaxeon to insist upon strict performance by Customer of any provision in these Terms will not be taken to be a waiver of any existing or future rights of Imaxeon in relation to the provision.
    5. Customer must not assign or otherwise deal with its rights or obligations under these Terms or a Contract without the prior written consent of Imaxeon.
    6. These Terms and Contracts are governed by the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
    7. These Terms (together with the Contracts) contain the entire agreement of the parties with respect to its subject matter and may only be amended in writing. To avoid doubt, this includes any prior or subsequent terms and conditions attached and/or related to any purchase order, quotation, invoice or the like provided by the Customer to Imaxeon.
    8. These Terms do not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
    9. The parties agree that subject to the provisions of these Terms, the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 do not apply to the supply of Products under these Terms.