General Terms & Conditions

General Terms and Conditions

1. Scope

1.1 The General Terms and Conditions (GTC) shall apply to all contracts with AusDiagnostics Pty Ltd (hereafter, referred to as AusDx) unless otherwise agreed in writing.
1.2 The GTC apply exclusively to any Customer of AusDx, who is submitting an order to purchase goods or services, including but not limited to, businesses, public and private entities, hereinafter referred to as “Customer”. Customer and AusDx are jointly referred to as “Parties” herein.
1.3 The GTC become part of the contract upon AusDx acceptance of an order for goods or services from the Customer.
1.4 Customer’s general terms and conditions of purchase or business that contradict these GTC do not apply, even if not expressly contradicted, unless there is an express contrary agreement in writing.
1.5 These GTC, as revised from time to time, apply to all present and future transactions between AusDx and its Customers. Existing customers will receive prompt notice of changes and updates to such GTC.

2. Order Acceptance

2.1 A Purchase Order (PO) is required for goods or services issued via E-Mail using the contact details provided by AusDx orders@ausdx.com
2.2 Orders for goods or services, regardless of form are legally binding only if confirmed by AusDx through E-Mail (“Confirmation”).
2.3 Delivery of ordered goods, commencement of services, or acceptance of payment by AusDx from Customer is deemed confirmation.

3. Delivery Terms

3.1 Delivery and performance is made EXW (Incoterms® 2020) from AusDx, 290-292 Coward Street Mascot, NSW 2020.
3.2 Customer accepts partial delivery of goods or performance.
3.3 Delivery and performance is as soon as practicable, conditional upon adequate stock, supply of material and parts or as agreed in writing.
3.4 AusDx will provide email notice of new times, in case of unusual delays.
3.5 AusDx reserves the right to charge a surcharge fee for express delivery services.
3.6 Delivery and freight charges are itemised on the invoice.

4. Passing of Title

4.1 Title to the goods or services constituting an order passes to the Customer free of encumbrances and all other adverse interests upon receipt by AusDx of payment in full of the Price, unless otherwise agreed in writing. Until title to the goods or service constituting an order passes to the Customer, AusDx holds a security interest in the goods or services and all proceeds from the sale of the goods or service as contemplated under the Personal Property Security Act 2009 (Cth).
4.3 If there is a default in payment, Customer may only resell goods upon transfer of title to Customer.

5. Export Controls

5.1 Customer acknowledges that all goods, services, software, and technology obtained from AusDx, as a wholly owned subsidiary of R-Biopharm AG of An der neuen Bergstraße 17, 64297 Darmstadt and its affiliate companies, together referred to as R-Biopharm Group, their activities, as well as the know-how, trade secrets, or other protectable intellectual property contained therein (together “Product”), may be subject to ever varying national and international trade regulations, export controls, economic sanctions, embargoes, or other foreign trade regulations, as well as R-Biopharm Group policies which may restrict or prohibit (direct or indirect) Distribution as well as transactions with certain financial institutions, currency export or swaps, direct and indirect credit or loan extensions, assumptions, guarantees, or purchases (together “Export Controls”). R-Biopharm Group complies with all Export Controls to which it may be subject, including those which restrict availability of certain Products (“Restricted Product”) for use in or distribution into the Russian Federation, the Republic of Belarus, or areas controlled by them, as well as EU and US regulations in general.

Distribution or “to Distribute” as used herein refers to any acts or sequence of acts which make Product (and any part thereof), as well as related support, services, know-how, trade secrets and other protectable intellectual property, directly or indirectly available to others, including but not limited to supply, (re)sale, (re)export, (sub)licensing, any other transfer, granting of or acquiescence to use or access rights, post-sale support, service, spare parts supply or technical assistance, and warranty services.

5.2 Any Distribution of Product is subject to and conditional upon full Export Control compliance, even if not expressly referenced in a particular transaction. AusDx expressly reserves the right to withdraw from any order, sale, delivery, service, support, or other agreement to Distribute, if due to Export Controls Distribution is made impossible, economically impractical (e.g.: unusual or disproportionate associated risks or costs), risks access to financial accounts or institutions, or subjects AusDx to undue reputational risks. Such decision is within AusDx sole discretion and AusDx disclaims any liability for such withdrawal.
5.3 For purposes of Export Control, the act of sale or delivery by AusDx for Product Distribution in a particular territory, country, or area, does not imply or provide clearance, consent, or permission for Distribution, outside of such territory, country, or area. Product distributed for a declared end user or end use, is limited to such end user and end use. Express or implied licenses to use any protectable intellectual property are limited to permitted uses and users within the licensed territory, country, or area only.
5.4 Export Controls currently in effect and to which AusDx is subject, in particular those regarding Restricted Product, apply to any party within a commercial distribution chain, including commercial agents, re-sellers, and end users, and thus make any party within the chain responsible and liable for assuring compliance through implementation of appropriate contractual monitoring and compliance provisions.
5.5. Customer must provide AusDx with all necessary information and documents necessary to permit proper authorities to conduct export control, to ensure compliance with Export Controls and to apply for required export control permits. This includes in particular complete end user information and end user certificates when appropriate.

5.6 CUSTOMER acknowledges represents, and warrants for itself and its principals:
5.6.1 That it is not sanctioned or sanction listed under applicable Export Controls , nor directly or indirectly acting for, owned or controlled by, or benefiting persons or entities (individually or in the aggregate) sanctioned or listed, and does not directly or indirectly participate in any business, ventures, or financial transactions in areas where Product distribution is restricted or prohibited due to Export Controls, nor maintain places of business or real property interests in such areas; and
5.6.2 That it will:
a) Not Distribute or otherwise make Product its components, derivatives, related services and support available (directly or indirectly) in or for any destination, person, entity, or end use prohibited or restricted under applicable Export Controls; and
b) Comply and keep informed as to applicable Export Controls and changes; and
c) Adopt and incorporate similar contractual provisions for their own distribution chain and set up and maintain adequate record keeping and monitoring mechanisms throughout to evidence compliance and detect, prevent, and report conduct intended to circumvent or frustrate Export Controls; and
d) Defend and hold AusDx, its employees and directors harmless for and from third-party claims or damages caused by breach of contract or Export Control violations attributable to Customer.
5.7 Customer must provide AusDx with all necessary information and documents necessary to ensure compliance with Export Controls, to apply for any required export control authorization and to enable the competent authorities to carry out export control audits. This includes in particular making available a completed end use declaration and providing all necessary end user information.
5.8 Any violations of the foregoing Customer’s representations and warranties will be considered material breaches of any agreement between the parties that entitle AusDx to take one or more of the following actions, without prejudice to any other rights or remedies or showing of actual damages:
a) Order rejection, Termination, withdrawal, recall or rescission of sales, delivery, support, or service;
b) Report to applicable regulatory authorities;
c) Revocation of related use or other licenses;
d) Retention of advances and payments made;
e) Collection of a breach fine appropriate for the breach to be credited against damages later proven. The reasonableness of any amounts assessed are subject to judicial review

6. Pricing

6.1 Goods and services are provided by AusDx at the quoted prices applicable at the time of order.
6.2 All prices are in Australian Dollars (AUD).
6.3 Prices are understood not to include GST. GST has the same meaning as in the A New Tax System (Equipment and Services Tax) Act 1999 (Cth). The Customer must pay the applicable GST rate as shown in the invoice.
6.4 AusDx reserve the right to adjust prices at its discretion and to take account of changed costs, or if no specific price was confirmed; and if deliveries or services are to be provided or are delayed because of Customer for more than one month after order confirmation. This applies to cost increases related to but not limited to, the cost of raw material, energy, or transportation costs (including Tolls), collective wages, or collective and legal social benefits borne by AusDx.
6.5 Fees, commissions, and expenses charged by financial institutions for services provided are borne by the parties themselves.
6.6 The cost of delivery is not included in the price, including payment of freight, port handling fees, transit insurance, trucking charges to the Delivery Address.
6.7 Additional taxes and costs (e.g. customs duties) may be incurred when importing goods into a country, neither paid nor invoiced through AusDx, but paid directly by Customer to the respective customs or taxing authorities. These are borne by Customer.

7. Invoicing and Payment Terms

7.1 Customer will receive e-mailed invoices when an order is ready for dispatch or performance can commence, provided Customer registered for electronic invoicing. Otherwise, Customer will receive paper invoices.
7.2 Payments are due 30 (thirty) days Net from the date of invoice, unless otherwise agreed in writing.
7.3 AusDx reserves the right to update payment terms to pre-payment at any time and may at its discretion conduct a credit check on Customer to verify their ability to meet payment terms and the Customer agrees to such checks.
7.4 Customer can pay before the invoices due date.
7.5 Customer payments can be made by bank transfer, to the nominated bank account as advised on the invoice.
7.6 AusDx may charge a default interest rate for late payments, accumulated monthly from the due date. If payments are not recoverable within a reasonable timeframe, AusDx may withdraw from the agreement and demand damages or compensation for expenses.

8. Force Majeure

8.1 If a force majeure event or circumstance occur after an agreement, preventing a party from meeting one or more contractual obligations (e.g. civil war, acts of terrorism, piracy, currency and trade restrictions, compliance with laws or orders, embargo, sanctions, plague, unexpected pandemic, epidemic, natural disaster or extreme natural event, general labour unrest, etc.), that party will be released from those contract obligations, damage liability, or other legal obligations for breach of contract from the point that such impediment renders performance impossible, provided the other party is informed immediately. Otherwise, such release will only apply upon receipt of actual notice.
8.2 If the effect of the impediment asserted is temporary, the relief applies as long as the impediment prevents the affected party from contract performance. A party may terminate the Contract with two (2) weeks written notice, if the effects last more than 120 (one hundred and twenty) days and result in depriving such party of its legitimate contract expectations.
8.3 A party may invoke force majeure only upon proof that the impediment is beyond its reasonable control, was not reasonably foreseeable at the time of contract entry and the effects could not have been reasonably avoided or overcome by the concerned party. An affected party must take all reasonable steps to limit the effects of the event.
8.4 Regardless of whether an unforeseen event (an event for which AusDx bears no responsibility) qualifies as force majeure, AusDx is under no duty to deliver goods or provide services if such delivery would be unreasonable under the circumstances (e.g. significant increases in production costs for a product), if delivery could violate applicable laws or regulations (e.g. embargos), or would result in violate licenses or other current contractual obligations. Damage claims are therefore excluded. Liability for intent, gross negligence, injury to life, body, health and other mandatory liability provisions remains unaffected.

9. Notice of Defect and Acceptance

9.1 Customer must examine goods or performance immediately upon risk transfer pursuant to Incoterms® (See Sec. 4.1). Customer is deemed to have accepted if no written claim is made within two (2) working days as to obvious defects (e.g. transport damage, packaging, incorrect or incomplete delivery, and similar), and five (5) working days as to defects detectable through examination. AusDx must be informed in writing by Customer at or before contract formation, if industry standard goods examination requires additional time, e.g. a time-consuming analysis. Otherwise, the above inspection and notice periods apply. Customer agrees to complete inspections as quickly as possible.
As to other defects, goods are deemed accepted by Customer, if not claimed immediately, in writing and within the limitations period of Sec. 10.3, but no later than two (2) working days after such defect became apparent. If a defect was discoverable earlier during normal use, the notice period runs from such earlier point in time. Examination must occur prior to processing if goods are intended for such further processing.
9.2 A claim not made timely or correctly precludes any Customer claim for breach due to material defect. Such limitations do not apply to damage claims from the assumption of an express warranty against defects or of procurement risks, claims for injury to life, body, or health, fraudulent, intentional, or grossly negligent acts of AusDx.
9.3 AusDx warrants against material and legal defects until their expiration date. The period is calculated from the day of the risk transfer (See Sec. 10.1), or if Customer refusal to accept goods or services, from the notice of availability. Claims are subject to timely proper notice in form and content. Such limitations do not apply to damage claims from the assumption of an express warranty against defects or of procurement risks, claims for injury to life, body, or health, fraudulent, intentional, or grossly negligent acts of AusDx, or when a longer period of limitation is mandated by law.
9.4 The determination of a defect is dependent on the subjective requirements for the goods in questions, which are determined based upon agreed quality, the suitability for the contractually stipulated or agreed use and complete delivery with agreed accessories and instructions.
9.5 Warranty expressly does not cover (a) consumable parts, damage caused by normal wear, (b) any good(s) that has been reconstructed, repaired by person(s) other than the AusDx and its authorized representatives or a third -party approved and certified to make such repair, (c) any good(s) that have been subject to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by the AusDx.
9.6 AusDx does not assume liability for (a) user changes or modifications; (b) use or processing inconsistent with contractually agreed purpose or general product safety, (c) due to incorrect or unsuitable use or storage, or through chemical, electromagnetic, mechanical or electrolytic influences, (d) or which cannot be sufficiently traced to faulty material or workmanship, design, manufacturer materials or instructions for use is especially excluded.
9.7 AusDx may in its own discretion, change or replace goods, material, or services to cure a legal defect or to provide lacking use rights to Customer. AusDx has a termination right, if this is not possible.
9.8 An acknowledgement of a duty breach requires a writing in any case.
9.9 Expiration of the use by date after delivery is not considered a material defect.

10. Returns, and Claims Handling

10.1 Warranty claims related to faulty Goods should be communicated in writing to AusDx technical services available at the AusDx homepage or via email to support@ausdx.com. Prior authorisation is required by AusDx before any returns can be made. Customer will not receive credit for returns without AusDx prior written consent. If a return is authorized in AusDx sole discretion, the goods must arrive at AusDx in satisfactory resale condition in original packaging and, stored in the prescribed conditions. Authorised return of Goods must be shipped DDP (Incoterms® 2020) to AusDx 290-292 Coward Street Mascot NSW 2020, and must arrive weekdays between 9 a.m. and 5 p.m.
10.2 Returns are generally only available for cause, in particular in case of material defects within the warranty period.
Returns for other reasons, e.g. mistakenly ordered goods, are not accepted.
10.3 Customer must consult with AusDx as to the process to be followed when initiating a claim:
10.4 Personal information must be removed and only the data necessary for processing a claim must be communicated, if material examination is necessary in the course of claims processing. Material may be destroyed after process completion.
10.5 AusDx may demand a fee equal to 25% of the respective gross sales price for return processing, goods verification, re-stocking or disposal (Return Fee), should it make an exception and accept a return without being obligated to do so. The return fee, shipping, and other costs (e.g. customs duties) of such a good will return will be deducted from the total amount credited or billed to the Customer as a consequence.
10.6 Customer claims pursuant to Sec. 10 as to incorrect deliveries, or defective, or damaged goods, as well as AusDx liability pursuant to Sec. 11 remain unaffected.

11. Liability

11.1 Notwithstanding anything to the contrary contained herein, AusDx or any of its affiliates shall under any circumstances, be liable to the customer or any of its affiliates for any indirect or consequential loss, incidental, special or exemplary damages of any kind, arising out of or related to any transaction contemplated hereunder, including but not limited to the costs arising from the loss of use of the goods or services, the costs of any substitute goods or services which the Customer acquires, lost profits or loss of business, even if Customer, or their affiliates are apprised of the likelihood of such damages occurring.
11.2 Damages against AusDx for ordinary negligent breach of material contract obligations (obligations that are essential for achieving the purpose of the contract and on whose compliance the contractual partner can regularly rely) is limited to damages typically foreseeable under the agreement.
11.3 To the full extent permitted by law, the liability of the AusDx in respect to damages in connection with its obligations under this agreement will not exceed the amount received from the Customer for payment of the goods or service, even if AusDx has been advised by the Customer as to the possibility of such losses being incurred.
11.4 Liability for ordinary negligent breach of non-material obligations is excluded. Liability for damages resulting from injury or grossly negligent acts of AusDx, failure to meet expressed warranties of quality, specific results, and legally imposed liability, in particular under Australian Consumer Law remains unaffected.
11.5 All further defect claims, or for consequential damages, regardless of reason, exist only pursuant to Sec. 10.

12. Intellectual Property

12.1 AusDx remains the sole owner of all ownership rights of their intellectual property, including current or future know-how, copyright, source code, designs, documents, trade secrets, as well as all other intellectual property, irrespective of whether it is legally protectable.
12.2 A Revocable, limited and non-exclusive, non-transferable and non-sublicensable, commercial and non-commercial use and exploitation rights for Custom Services (including but not limited to documentation, designs, concepts, diagrams and the like) and the intellectual property contained in provided goods are granted to Customer (in all known and unknown types of use) upon delivery, acceptance of the work performed or completion of other services, but limited to the contractual purposes in terms of time, space and content.
12.3 Customer may not use the name of AusDx, company logo, or trademarks of AusDx, or its affiliated companies as a reference or for self-promotion without prior written consent. If approved, Customer undertakes to comply with AusDx design specifications, and to use logos in the best possible quality and comparable prominence to other logos. Distortions, colour adjustments, retouching or other changes are not permitted. Consent can be revoked at any time, cannot be transferred to third parties, and expires upon termination of the contractual relationship.

13. Miscellaneous items and Samples

13.1 Items made available by AusDx to assist in contract performance or otherwise made available (in particular substance or material samples, or miscellaneous documents) remain the property of AusDx and may only be used to achieve the contract purpose. Reverse Engineering is not permitted.
13.2 Use for other purposes and transfer to third parties is permitted only with AusDx prior written consent. AusDx may demand the return of its items if Customer violates these obligations without waving any further claims.

14. Confidentiality

14.1 Customer is obligated to keep AusDx Confidential Information secret and to use and exploit it solely for purposes of the contract.
14.2 “Confidential Information” means all information disclosed by AusDx in respect of its business either before or after the date of this agreement including any and all knowledge, ideas and concepts not reduced to material form, know-how, programming code, software, technical information and technical drawings, trade secrets, processes, techniques, products and all other intellectual property, financial and business information, product and market information and all other commercially valuable information of AusDx which is not in the in the public domain.
14.3 Confidential Information at the time of disclosure generally known, published, part of general technical knowledge or general state of art, individually known to or in control of the receiving Customer, or Customer developed without recourse to Confidential Information, is exempt. Customer must notify AusDx in writing within 14 (fourteen) days of the relevant information disclosure, if Customer wishes to rely on such exception.
14.4 If Customer is required to disclose AusDx Confidential Information to a court, or other government authority because of a binding judicial order, official demand, or other legal requirements,
Customer must give AusDx an opportunity to protect its Confidential Information and provide immediate prior written notice to AusDx of such demands and may only disclose Confidential Information to the extent absolutely necessary to comply. If prior notice is not legally possible, AusDx must be informed as soon as permitted.
14.5 Confidential Information may be shared on a need-to-know basis within Customer’s organization solely to those who agree to comparable confidentiality and limited use. Customer may pass Confidential Information to third parties only as absolutely necessary for contract performance and provided such third party is obliged to comparable secrecy and limited use. Information transfer to competitors requires separate consent from AusDx.
14.6 Customer is obligated to prevent unauthorized disclosure, use, or exploitation of Confidential Information, in particular dissemination, publication, destruction, or loss, with the same degree of care used to protect Customer’s own comparable information.
14.7 Commercial exploitation, copying or reverse engineering of confidential information outside the scope of the permitted contract scope is not permitted.
14.8 Confidential Information is provided by AusDx as found and available. It assumes no warranties or guaranties that any Confidential Information provided is complete, accurate, customary for the trade, or can be used by Customer for contractual purposes. AusDx is not liable for Customer’s damages through use or disclosure of such Confidential Information, reliance on completeness, correctness, customary industry use, or suitability for contractual purposes. AusDx is not responsible for violations of third-party rights.
14.9 Nothing in these non-disclosure provisions may be construed as conferring any express or implied right or license as to Confidential Information or any items containing such Confidential Information. All Confidential Information and items contained therein remain the property of AusDx.
14.10 Use of Confidential Information must seize immediately upon request of AusDx, but no later than completion of contractual performance. Tangible Confidential information, in particular, but not limited to documents, objects, storage media, models, samples, and other material, must be returned to AusDx or destroyed by Customer upon request. Electronically stored confidential information must be deleted irrevocably and completely, except for automatic back-up and data recovery copies of data traffic until their deletion in the ordinary course. Customer may keep a copy in its confidential files to evidence compliance with this Sec. 14. The same applies if statutory retention periods preclude return or destruction. The provisions of this Sec. 14 apply to such retained copies.
14.11 The obligations of confidentiality under this document continue indefinitely and apply to the Customer (in addition to any permitted assignee) after assignment or termination of the contract or completion of the Performance.

15. Data Protection

15.1 AusDx Privacy Policy, which may be updated from time to time, can be found on the homepage https://www.ausdiagnostics.com/privacy-policy/.
15.2 Customer may disclose AusDx information and data to third parties with express written consent only.
15.3 AusDx processes transmitted data exclusively for the purpose of contractual performance with a respective customer. In some circumstances, the European Union General Data Protection Regulation (GDPR) provides additional protection to individuals located in Europe. Where this is the case, there may be additional rights and remedies available to the Customer under the GDPR if their personal information is handled in a manner inconsistent with that law.

16. Code of Conduct

16.1 Customer must always comply with the current version of AusDx Parent Company, R-Biopharm AG’s Code of Conduct, as amended from time to time, as published at https://r-biopharm.com/compliance-coc/. This Code of Conduct embodies R-Biopharm AG’s core values. Customer is responsible for providing the content to its employees and business partners and any third parties indirectly involved in its supply chain.
16.2 AusDx may terminate any order or the entire contractual customer relationship for cause and without notice, if such Code of Conduct is intentionally violated. Damage claims remain unaffected.
16.3 Customer must indemnify AusDx from all third-party claims resulting from Customer’s wilful violation of obligations and assumes all damages and expenses that AusDx may incur or has incurred in connection with such claims (16.2).

17. Software

17.1 The General Terms and Conditions or the respective user agreements in their most current version also apply to software use. Customer is expressly advised that such Terms and Conditions and user agreements are subject change when updating.
17.2 AusDx distributed software, either as a standalone products or components of other products, may be subject to additional terms and conditions of AusDx, manufacturers as well as developers. Certain software or software components are subject to foreign laws. If written sales, rental, licensing, or other terms of use deviate from these General Terms and Conditions, said terms and conditions apply. Unless otherwise agreed, AusDx software usage and licensing rights are non-exclusive, non-transferable, non-sublicensable, and revocable rights to use the software for internal company purposes on the purchased, loaned, or rented hardware at the customer’s headquarters or the device location.
17.3 AusDx will install any of its software to be utilized, unless the parties have otherwise agreed in writing. AusDx must provide updates only as legally required.
17.4 To ensure software functionality during its normal lifespan, regular maintenance and necessary updates are required. Customer is responsible for software maintenance through installation of updates provided. AusDx assumes no warranty or liability for the consequences of errors that could have been avoided through installation of provided updates. Liability for losses or damages (e.g. data loss) which were avoidable through the use of standard state of the art security technologies and procedure is disclaimed.
17.5 No permission to resell, rent, lend, license or otherwise make AusDx software code, access data, databases or license keys available to third parties is implied when providing Software. Source code is legally protected. Therefore, reverse engineering through decompiling, other changes or additions are not permitted. Reproductions (except backup copies) are only permitted with the prior written consent of AusDx.
17.6 Customer is liable to AusDx for all damages that arise from the failure to update, unauthorized third-party use which can be attributed to the acts or omissions of customer. Customer will hold AusDx harmless from any resulting third-party claims. Upon termination, the customer must immediately return software including the relevant documentation to AusDx or upon request verifiably delete the same.
17.7 AusDx endeavours to ensure trouble-free operation of the software but does not provide any software warranties or guarantees for a specific performance or outcome, suitability for a specific purpose, or a procurement risk, unless this has been expressly agreed in writing and then only to that extent. Short term service interruptions cannot be ruled out and therefore do not constitute a defect.
17.8 The warranty and indemnification provisions of Sec. 10 do not apply to purchased, rented, or other third-party software made available by AusDx. Instead, AusDx transfers all its third-party warranty rights to Customer and Customer accepts said transfer. Relevant Customer claims must be directed at such third parties.
17.9 Software is to be used in accordance with user documentation. AusDx is not liable for damages resulting from Customer’s software use inconsistent with user documentation.
17.10 AusDx is liable for data loss only to the extent of recovery expenses typical for state-of-the-art regular data backup.

18. Notice and Governing law and jurisdiction

18.1 Changes and additions must be in writing for evidentiary reasons.
18.2 This agreement shall be governed by and construed in accordance with New South Wales law. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction. Nothing in this clause is intended to oust the jurisdiction of the courts of New South Wales.