Terms & Conditions of Sale

THESE GTC AND ANY ADDITIONAL TERMS DO NOT APPLY TO DISTRIBUTORS WHO HAVE ENTERED INTO A SEPARATE DISTRIBUTION AGREEMENT WITH LAERDAL. THE TERMS OF THE DISTRIBUTION AGREEMENT SHALL APPLY TO THOSE DISTRIBUTORS INSTEAD.

 

GTC1.  DEFINITIONS 

In addition to the definitions elsewhere in the Agreement, the following definitions also apply..

Additional Terms: the additional terms governing the sale or supply of a specific Laerdal item indicated by the relevant abbreviation (for example, EH, HWLL, MS, P, S, SL, SAAS, SC SAAS, SCOPE, TP) when incorporated by way of reference into the LAERDAL Quote or Agreement.  .

Agreement:   the agreement between Laerdal and the Customer for the sale and purchase of Laerdal items comprising either the Signed Terms and all documents incorporated by reference therein or,  in the absence of any Signed Terms, the LAERDAL Order Confirmation with Special Conditions (if any) and all documents incorporated by reference therein including these General Terms and Conditions and any specific Additional Terms.

Business Day:  a day other than a Saturday, Sunday or public holiday in Victoria, Australia, when banks in Victoria, Australia are open for business.

Business Hours:  the period from 9.00 am to 5.00 pm on any Business Day.

Customer:  the business, entity or firm who purchases LAERDAL items from LAERDAL identified as Customer in the Order Confirmation.

Effective Date: means the date of the last signature to the Signed Terms or, in the absence of any Signed Terms, the date defined in Clause GTC2.2.

  

Equipment Hire: the Additional Terms for specific hire of LAERDAL equipment (if any) as set out in a LAERDAL Quote, Order or in the Agreement   identified as “EH” or as “Equipment Hire”.

Force Majeure Event:  has the meaning given to it in Clause GTC9.

General Terms and Conditions:  these general terms and conditions also referred to as “GTC”.

LAERDAL: the party identified as Laerdal in the Order Confirmation being Laerdal Pty (ACN 003817 490) for all transactions where the Customer is located in Australia and Laerdal (New Zealand) limited for all transactions where the Customer is located in New Zealand.

LAERDAL items: any or all of the LAERDAL Products (“P), Services (“S), Software Licenses (“SL”), Software as a Service licenses (“SAAS”), SCOPE Services (SPOC), Equipment Hire (EH), Hardware with LLEAP licenses (HWLL) or SimCapture Subscription Services (“SC SAAS”) with individual catalog numbers as specified in the LAERDAL Quote or Agreement with the corresponding abbreviations (for example, EH, HWLL, MS, P, S, SL, SAAS, SC SAAS, etc).

LAERDAL Quote: any quotation issued by LAERDAL to the Customer for any LAERDAL items.

Managed Services: the specific LAERDAL services as set out in a LAERDAL Quote, Order or in the Agreement   identified as “MS” or as “Managed Services”.

Price(s): means the prices or Fees or Subscription Fees in respect of the corresponding LAERDAL items indicated as prices in the Agreement.  Prices, Fees and Subscription Fees have the same meaning and can be used interchangeably.

Product(s):  Laerdal’s product(s) (or any part of them) as set out in the LAERDAL Quote ore Order or in the Order Confirmation   identified as “P” or as “Product(s)”. 

Product with LLEAP: the specific LAERDAL simulators with LLEAP software as set out in a LAERDAL Quote, Order or in the Agreement   identified as “HWLL” or as “Product with LLEAP”.

Order:  the Customer’s order for the supply of any specific LAERDAL items  as set out in the Customer’s purchase order form or other communication or in LAERDAL’s Quote as the case may be.

Order Confirmation: has the meaning given to it Clause GTC2.2.

Sanctions:  any laws or regulations relating to economic or financial, trade, immigration, aircraft, shipping or other sanctions, export controls, trade embargoes or restrictive measures from time to time imposed, administered or enforced by a Sanctions Authority.

Sanctions Authority:  the UK, the EU, the US and the United Nations (UN) and any other governmental authority with jurisdiction over a party or any part of its business or operations or subcontractors used in the performance of this Agreement, and in each case their respective governmental, judicial or regulatory institutions, agencies, departments and authorities, including (without limitation) the UN Security Council, Her Majesty’s Treasury and the UK’s Office of Financial Sanctions Implementation and Department of International Trade, the US Department of the Treasury’s Office of Foreign Assets Control, the US Departments of State or Commerce or any other US government authority or the European Union.

Sanctions List:   any of the lists issued or maintained by a Sanctions Authority designating or identifying persons that are subject to Sanctions, in each case as amended, supplemented or substituted from time to time, including (without limitation) the UK Sanctions List, Consolidated List of Financial Sanctions Targets in the UK and the Consolidated United Nations Security Council Sanctions List, the European Commission, the European Union Consolidated Financial Sanctions List and the US Office of Foreign Assets Control (OFAC): Consolidated Sanctions List.

Sanctions Target:  a person that is: (a) listed on a Sanctions List; (b) Owned or Controlled by a person listed on a Sanctions List; (c) resident, domiciled or located in, or incorporated or organized under the laws of, a country or territory that is subject to any Sanctions; or (d) otherwise identified by a Sanctions Authority as being subject to Sanctions.

SCOPE: the LAERDAL project services for SimCapture installation and/or implementation and/or integration as set out in a LAERDAL Quote, Order or Agreement also identified with as “SCOPE” or as “SimCapture implementation”.

Service(s): the LAERDAL Service(s) (if any) incorporated in the Agreement also identified as “S” or as “Services”.

Signed Terms: is defined in clause GTC 2.1Software Licenses: the LAERDAL Software License(s) as set out in the Order or in a LAERDAL Quote, Order or in the Agreement identified as “SL” or as “Software License(s)”.

Software as a Service(s): the LAERDAL Software as a Service(s) as set out   in a LAERDAL Quote, Order or in the Agreement identified as “SAAS” or as “Software as a Service” (excluding SimCapture Subscription).

“SimCapture Subscription” means the LAERDAL SimCapture Subscription Service as set out in in the LAERDAL Quote, Order or Agreement also identified with the abbreviation “SC SAAS” or as SimCapture Subscription.

“Special Conditions” means the special conditions (if any) as specified and incorporated either into the Signed Terms or, where there are no Signed Terms, into the Order Confirmation.

 

GTC2. BASIS OF AGREEMENT  

GTC2.1 (a)  Where the parties expressly agree to terms and conditions in writing which are signed by the duly authorized representatives of both parties, those signed terms and conditions shall be the Agreement between the parties (“Signed Terms”) and shall prevail over any other document. Any reference in the Agreement to the Order Confirmation shall be deemed to be a reference to the Signed Terms and the Effective Date will be the date of the last signature to the Signed Terms.

(b) In the absence of any Signed Terms, the Order Confirmation and any documents incorporated by reference therein (including any Special Conditions, these General Terms and Conditions and any Additional Terms) shall constitute the entire Agreement between the parties for the sale or supply of all LAERDAL items listed in a LAERDAL Quote or Order Confirmation. Each Order constitutes an offer by the Customer to purchase LAERDAL items indicated therein. GTC2.2 The Order shall only be deemed to be accepted when the parties either enter into Signed Terms or, in the absence of Signed Terms, when LAERDAL issues written acceptance of the Order as an Order Confirmation at which point and on which date the Agreement shall come into existence (Effective Date). 

GTC2.3 LAERDAL may issue LAERDAL Quotes to the Customer from time to time. LAERDAL Quotes are invitations to treat only and do not constitute an offer to supply any LAERDAL items and are incapable of being accepted by the Customer. Where a Customer places an Order via email or over the telephone for the purchase of LAERDAL Products and/or Services, LAERDAL shall issue written acceptance of the Order by issuing an Order Confirmation which shall be subject to and shall incorporate LAERDAL’s General Terms and Conditions and Additional Terms for Products and/or Additional Terms for Services (as applicable). Such Order Confirmation and all documents incorporated by reference therein shall constitute the entire Agreement between the parties for the sale and purchase of the particular LAERDAL Products and/or Services described in the Order Confirmation.

GTC2.4  Any samples, drawings, descriptive matter or advertising issued by LAERDAL and any descriptions of the LAERDAL items contained in LAERDAL’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the LAERDAL items described in them. They shall not form part of the Agreement nor have any contractual force.  

GTC2.5  Any quotation given by LAERDAL shall not constitute an offer and is only valid for a period of 30 Business Days from its date of issue.  

GTC2.6  No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase conditions, Order, specification or other document shall form part of the Agreement except to the extent that LAERDAL otherwise agrees in writing in Signed Terms. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with the Agreement.

GTC2.7 The supply of LAERDAL items shall only be upon either the Signed Terms or, in the absence of Signed Terms, upon the terms of the Order Confirmation and acceptance of delivery of the relevant LAERDAL item(s) shall be confirmation of the Agreement by the Customer thereto in default of any prior agreement.

GTC2.8 If there is any inconsistency, conflict or ambiguity between any of the provisions of the documents listed in the Agreement, a term contained in a document higher in the list below has priority over one contained in a document lower in the list below. The list comprises of (1) Signed Terms (if any) (2) Order Confirmation with any Special Conditions (if any) (3) Additional Terms applicable to a particular LAERDAL item (4) these General Terms and Conditions.

 

GTC3.  CHARGES AND PAYMENT  

GTC3.1  The price or fees for the LAERDAL items set out in LAERDAL’s Quote or in the Agreement shall be the corresponding price or fee for that specific LAERDAL item as set out in LAERDAL’s Quote or in the Agreement or if no price or fee  is quoted, the price or fee set out in LAERDAL’s published price list as at the date of the Order Confirmation; and shall be payable in accordance with the provisions of “Charges and Payments” clause in the Additional Terms applicable to the specific LAERDAL item as well as the general provisions below for all LAERDAL items.

GTC3.2  The Customer shall pay each invoice submitted by LAERDAL:

(a)  within 30 days of the date of the invoice or in accordance with any credit terms agreed by LAERDAL and confirmed in writing to the Customer; and

(b)  in full and in cleared funds to a bank account nominated in writing by LAERDAL, and time for payment shall be of the essence of the Agreement.

GTC3.3  All amounts payable by the Customer as prices or fees under the Agreement are inclusive of GST but exclusive of any other applicable taxes 

GTC3.4  If the Customer fails to make a payment due to LAERDAL under the Agreement by the due date, then, without limiting LAERDAL’s remedies under Clause GTC8, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause GTC3.4  will accrue each day at the lesser of 2% per month or the highest rate permissible under law, calculated daily and compounded monthly.

GTC3.5  All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

GTC3.6 LAERDAL may elect to allow credit to the Customer if the Customer has completed a credit application and provided any information required by LAERDAL from time to time. Where LAERDAL permits credit, the maximum period of credit for any purchase is 30 days after the date of the invoice in respect of that purchase. LAERDAL reserves the right at any time to withdraw credit or to require payment earlier than the time allowed in any credit arrangement or to require cash on delivery.

 

GTC4. CONFIDENTIALITY

GTC4.1 Each party undertakes that it shall not at any time,  disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause GTC4.2.

GTC4.2 Each party may disclose the other party's confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause GTC4 and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

GTC4.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.

 

GTC5. COMPLIANCE WITH LAWS 

GTC5.1 Customer shall at all times comply with all laws applicable to this Agreement, Customer's performance of its obligations hereunder and Customer's use or sale of the LAERDAL items. Without limiting the generality of the foregoing, Customer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the LAERDAL items(s) and (b) not engage in any activity or transaction involving the LAERDAL items, by way of shipment, use or otherwise, that violates any law.

GTC5.2 Customer warrants that it is in compliance with Sanctions against Sanctions Targets. Customer is not a Sanctions Target or otherwise subject to any Sanctions Law.

GTC5.3 Without limiting the generality of clause GTC5.1, Customer shall comply with all Sanctions. Without limiting the generality of the foregoing, Customer shall not:

(a) directly or indirectly export, re-export, transship, or otherwise deliver LAERDAL items or any portion of the LAERDAL items to a Sanctions Target; or

(b) broker, finance, or otherwise facilitate any transaction in violation of any Sanctions.

GTC5.4 Customer acknowledges that the LAERDAL items, including any software, documentation, and any related technical data included with, or contained in, such LAERDAL items and any LAERDAL items utilizing any such software, documentation, or technical data (collectively, "Regulated Product(s)") may be subject to Sanctions. Without limiting the generality of clause GTC5.1, Customer shall not, and shall not permit any third parties to, directly or indirectly, export, re-export, or release any Regulated Product(s) to any jurisdiction or country which is a Sanctions Target or to any party which is a Sanctions Target. Customer shall be responsible for any breach of this clause GTC5 by its, and its successors' and permitted assigns', parent, affiliates, employees, officers, directors, partners/members/shareholders, customers, agents, distributors, resellers or vendors that are not Customer. Customer shall provide prior written notice of the need to comply with such Sanctions to any person, firm, or entity which it has reason to believe is obtaining any such Regulated Product(s) from the Customer with the intent to export.

GTC5.5 Any software included in any LAERDAL Software License or in LAERDAL Software as a Service including Documentation may contain controlled technology or technical data (collectively “Controlled Technology”) which is subject to export control, sanctions or trade restrictions laws imposed by a Sanctions Authority. Customer shall not export, sell or otherwise provide, directly or indirectly, any Controlled Technology acquired from LAERDAL this Agreement to any Sanctions Targets and shall comply at all times with all laws, regulations and orders imposed by Sanctions Authorities. 

GTC5.6  Customer undertakes (i) to contractually oblige any third party to whom it discloses or transfers any Controlled Technology to make an undertaking similar to the one set out in clause GTC5.5 and (ii) if requested, to provide to LAERDAL with any reasonable assistance to enable it to perform any activity required by a Sanctions Authority in any relevant jurisdiction for the purpose of compliance with any laws, regulations or orders imposed by the Sanctions Authorities.

GTC5.7 Customer is in compliance with the applicable anti-bribery and anti-corruption laws, 

as amended("anti-corruption laws"). 

Customer has not:

(a) used any corporate funds for any unlawful contribution, gift, entertainment, or other 

unlawful expense relating to political activity or to influence official action;

(b) made any direct or indirect unlawful payment to any foreign or domestic government 

official or employee from corporate funds;

(c) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful 

payment; 

(d) or failed to disclose fully any contribution or payment made by Customer (or made by 

any person acting on its behalf of which Customer is aware) that violates the anti-

corruption laws.

GTC5.8 Without limiting the generality of Clause GTC5, Customer shall comply with the anti-

corruption laws, including maintaining and complying with all policies and procedures to 

ensure compliance with the anti-corruption laws.

GTC5.9 The Customer shall notify LAERDAL immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under clause GTC5. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.

GTC5.10 Any breach of clause 5 by the Customer shall be deemed a material breach of the Agreement and shall entitle LAERDAL to terminate the Agreement with immediate effect.

 

GTC6. INSURANCE 

Each party shall, at its own expense, maintain and carry in full force and effect commercial general liability (including product liability) in a sum no less than USD two million with financially sound and reputable insurers, and upon the other party's reasonable request, shall provide the other party with a certificate of insurance evidencing the insurance coverage specified in this clause. 

 

GTC7.  LIMITATION OF LIABILITY  

GTC7.1  References to liability in this Clause GTC7 include every kind of liability arising under or in connection with the Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

GTC7.2  Nothing in the Agreement limits any liability which cannot legally be limited, including liability for:

(a)  death or personal injury caused by negligence and;

(b)  fraud or fraudulent misrepresentation; 

GTC7.3 LAERDAL shall be responsible for any personal injury or death to the extent that it is shown to be caused by any negligence or wilful misconduct on the part of LAERDAL and is not caused directly or indirectly by any misuse negligence willful act or default by the Customer. Subject to this clause GTC7.2 and GTC7.3, LAERDAL’s total liability to the Customer for all loss or damage shall not exceed the amount received by LAERDAL under the Agreement.

GTC7.4 Except for obligations to make payment under the Agreement and except for obligations under clause GTC7.2 and GTC7.3, neither party is liable for loss of revenue or loss of profits, consequential, indirect, incidental, special, exemplary, punitive or enhanced damages or diminution in value arising out of or relating to an breach of this Agreement regardless of whether (a) such damages were foreseeable (b) whether or not it was advised of the possibility of such damages and (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based and notwithstanding the failure of any agreed or other remedy of its essential purpose.

GTC7.5  Each party shall have in place agreements of insurance with reputable insurers to cover their respective obligations under the Agreement.

GTC7.6 This Clause GTC7 shall survive termination of the Agreement.

 

GTC8.  TERMINATION  

GTC8.1 Without affecting any other right or remedy available to it, LAERDAL may terminate the Agreement with immediate effect by giving written notice to the Customer if:

(a) the Customer is in material breach of the Agreement  including breaches of clause GTC4 or clause GTC5 or if the Customer fails to pay any amount due under the Agreement on the due date for payment;

(b) the Customer becomes insolvent or unable to pay its debts as they become due or takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c)  the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)  the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy.

GTC8.2  Termination of the Agreement shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

GTC8.3  Any provision of the Agreement that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

 

 

GTC9.  FORCE MAJEURE  

If LAERDAL’s ability to perform its obligations under the Agreement is limited, delayed or prevented in whole or in part by any reason whatsoever not reasonably within its control, including without limitation fire storm and tempest, pandemic, war, invasion, act of foreign enemy, hostilities (whether war be declared or not), civil war, rebellion civil strife, strikes and/or Industrial disputes or any law, rule, regulation order or other actions by any public authority, transportation delays or the refusal or delay in granting any necessary export license (each of which is a “Force Majeure Event”), LAERDAL shall be excused, discharged and released without penalty from performance of the Agreement to the extent that such performance is limited, delayed or prevented by the Force Majeure Event. In the event that the relevant LAERDAL item(s) or any part thereof have been delivered the Customer shall pay to LAERDAL the proportion of the price appropriate to what has been delivered. In the event that nothing has been delivered and the Agreement becomes impossible to perform for reasons not reasonably within LAERDAL’s control, LAERDAL's liability shall be limited to repayment to the Customer of any relevant sums paid by Customer to LAERDAL.

 

GTC10.  GENERAL  

GTC10.1  Assignment and other dealings

(a)  LAERDAL may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.

(b)  The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of LAERDAL. 

GTC10.2  Notices. Any notice given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).  Any notice shall be deemed to have been received (i)  if delivered by hand, at the time the notice is left at the proper address; (ii)  if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.  This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

GTC10.3  Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement. If any provision or part provision of the Agreement is deemed deleted under this Clause GTC10.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

GTC10.4  Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

GTC10.5  No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorize either party to make or enter into any commitments for or on behalf of the other party.

GTC10.6  Entire agreement. The Agreement constitutes the entire agreement between the parties.  Each party acknowledges that in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement. 

GTC10.7  Third party rights. Unless it expressly states otherwise, the Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

GTC10.8  Variation. No variation of the Agreement shall be effective unless it is agreed in writing and signed by the parties (or their authorized representatives).

GTC10.9  Governing law. The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of (a) Victoria, Australia (for transactions involving Laerdal Australia Pty) or (b) New Zealand (for transactions involving Laerdal (New Zealand) Limited), excluding in each case the whole of the United Nations Convention on Contracts for the International Sale of Goods where it otherwise would have applied. Either party may refer a dispute to arbitration by a single arbitrator in Melbourne, Victoria, Australia acting under the UNCITRAL rules. If the parties cannot agree on the arbitrator within 21 days after a dispute falling under this paragraph, the arbitrator shall be nominated by the President for the time being of (a) the Law Institute of Victoria for transactions involving Laerdal Pty Ltd or (b) the New Zealand Law Society for transactions involving Laerdal (New Zealand) Limited.

GTC10.10  Jurisdiction. Each party irrevocably agrees that the courts of (a) Victoria, Australia (for transactions involving Laerdal Pty Ltd) or of New Zealand (for transactions involving Laerdal (New Zealand) Limited) shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.