Sales Agreement

OPERATIVE PART

1 DEFINITIONS AND INTERPRETATION

• 1.1 Definition

AEST means Australian Eastern Standard Time.

Agreement means this agreement and any schedule, appendix or variation to it.

Balance Amount means a balance payment amount to be made by the Customer, set out in Item 5 of the Reference Schedule.

Balance Payment Period means a payment period for the Balance Amount to be paid by the Customer, set out in Item 5 of the Reference Schedule.

Business Day means a day on which banks are open for business in Sydney excluding a Saturday, Sunday or public holiday.

Claim means any claim, demand, remedy, suit, action, proceeding, right of action, claim for compensation or claim for abatement of any monetary obligation, whether arising under contract (including this Agreement), in tort (including negligence), at common law, in equity, under statute, under an indemnity or otherwise.

Confidential Information includes but is not limited to all and any information, documents, statements, financial records, product information, trade secrets, reports, business contacts, customer list, ideas, know-how, concepts, systems, computer programs, models, databases and any other information whether oral, written or in machine readable form pertaining to Osstem, its products and services, its operation, related entities and customers, but does not include information that is already in, or subsequently comes into, the public domain other than in breach of this Agreement, or is required to be disclosed by operation of law or a government authority.

Corporations Act means the Corporations Act 2001 (Cth).

Defective Product means a Product that contains a defect, error, omission, failure or irregularity, which does not comply with this Agreement in all material respects, except to the extent caused by the Customer.

Delivery Address means the delivery address of the Product set out in Item 5 of the Reference Schedule.

Delivery Costs means the delivery costs for the Product, including transport costs, packing costs, duties, Tax and customs charges, set out in Item 2 of the Reference Schedule.

Encumbrances means any mortgage, lien, hypothecation, charge, bill of sale, caveat, pledge, claim, trust arrangement, preferential right, right of setoff, title retention or other form of encumbrance.

Government Agency means any governmental, administrative, fiscal, or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Implant Product means dental implant products sold under this Agreement.

Initial Amount means an initial payment amount to be made by the Customer for the Product, set out in Item 5 of the Reference Schedule.

Initial Payment Date means the payment due date for the Initial Amount to be made by the Customer for the Product, set out in Item 5 of the Reference Schedule. Intellectual Property means all Intellectual Property Rights in the Product held by Osstem conferred by statute, at common law or in equity and wherever existing.

Intellectual Property Rights means all present and future intellectual, industrial or proprietary rights conferred by statute, at common law or in equity anywhere in the world, whether issued or pending, registered or unregistered, including all forms of copyright, patents, trademarks, designs, trade secrets, know-how, confidential information and circuit layouts, as may be modified or amended from time to time.

Laws means any law, statute, regulation, ordinance, authorisation, ruling, judgment and any order or decree of any Government Agency in any jurisdiction.

Loss means any damage, claim, action, liability, cost, expense, outgoing, payment, fine or penalty or other loss of whatever nature.

Original Product Price means the original price for the Product, including GST, before applying the discount offered to the Customer in consideration of entering this Agreement as set out in Item 1 of the Reference Schedule.

Other Costs means any additional costs incurred or to be incurred by Osstem in selling the Product, reasonably charged to the Customer, including insurance set out in Item 3 of the Reference Schedule.

Product means all Osstem’s products set out in Item 1 of the Reference Schedule, subject to change with fewer or additional products as agreed in writing between the parties from time to time.

Product Price means the price for the Products, including GST, as set out in Item 1 of the Reference Schedule.

Purchase Price means the total sum of the Product Price, the Delivery Cost and the Other Costs, set out in Item 4 of the Reference Schedule.

Specifications means specifications set out in Schedule 2.

Tax means a tax (including any goods and services tax), rate, levy, duty or impost and any interest, penalty, expense or fine in connection with any of them.

Warranty means the warranty defined in set out in clause 7.1.

Warranty Period means, in respect of the Warranty Product delivered pursuant to this Agreement, the period set out in Schedule 1.

Warranty Product means products set out in Schedule 1 that are covered by the warranty under clause 7.

• 1.2 Interpretation

In this Agreement, headings and boldings are for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires:

• (a) words importing the singular include the plural and vice versa;
• (b) words importing a gender include any gender;
• (c) other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
• (d) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency;
• (e) a reference to a clause, party, annexure or schedule is a reference to a clause of, and a party, annexure and schedule to, this Agreement and a reference to this Agreement includes any annexure and schedule;
• (f) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it and a reference to a statute includes all regulations, proclamations, ordinances and by-laws which are issued under that statute;
• (g) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document;
• (h) a reference to a party to a document includes that party's successors and permitted assigns; and
• (i) no provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision.
• 1.3 Independence

This Agreement shall not imply or create any relationship between the parties other than the contractual relationship of a seller and a buyer pursuant to the terms and conditions contained in this Agreement.

2 SALE OF PRODUCTS AND TRAINING

• 2.1 Scope of sale

In consideration of the Customer entering into this Agreement, Osstem as a legal and beneficial owner agrees to, at the Purchase Price, and in the manner provided for in this Agreement, sell the Product, in compliance with the Specifications and free from any Encumbrance to the Customer.

• 2.2 Osstem’s Obligations

Osstem agrees:

• (a) to deliver the Product to the Delivery Address; and
• (b) to report to the Customer any claimed or suspected defects in the Product.

3 PAYMENT

• 3.1 Osstem will issue an invoice upon the Products being dispatched to the Delivery Address.
• 3.2 The Customer must make the payment of the following amount in full without any deduction or set-off:
• (a) the Initial Amount on the Initial Payment Date; and
• (b) the Balance Amount over the Balance Payment Period with equal monthly instalments commencing on the First Balance Payment Date.
• 3.3 Without prejudice to any other rights or remedies available to Osstem under this Agreement, at law or in equity, if the Customer fails to make any payment, Osstem reserves the right to:
• (a) charge the Customer the following:
• (i) the Original Product Price, instead of the Product Price;
• (ii) interest accrued on any amount owing at a rate of 10% per annum, calculated daily from the due date until the full amount owing is paid in full;
• (iii) all reasonable costs, fees and expenses incurred by Osstem in pursuing any amount owing by the Customer to Osstem (including debt recovery and legal costs on an indemnity basis);
• (b) cancel or amend any provision of credit to the Customer;
• (c) provide details of the Customer’s default to a debt recovery and credit reporting agency or institution; and
• (d) commence legal proceedings against the Customer for any outstanding amount owed to Osstem under this Agreement.
• 3.4 The Customer acknowledges and agrees that it is obliged to make the payment in accordance with clause 3.2, regardless of whether or not:
• (a) there is any dispute arising between the parties in relation to this Agreement; or
• (b) the Customer may have an offset claim against any outstanding amount owing to Osstem.

4 PACKING AND DELIVERY

• 4.1 Packing

Osstem will properly and carefully pack and mark all Products for delivery in accordance with reasonable industry practices, having regard to the status of the Product supplied, method of carriage and handling to be used and to the climate and conditions through and over which the Product will pass and arrive.

• 4.2 Delivery
• (a) Osstem will use its reasonable endeavours to make delivery of the Product to the Delivery Address within a reasonable time upon the Customer’s payment of the first instalment amount of the Balance Amount, subject to clause 1.1.
• (b) The Product shall be delivered, by Osstem on the basis that the Customer pays for the relevant Delivery Cost.
• (c) Osstem shall organise and carry out delivery of the Product to the Delivery Address, using a freight carrier, service or any mode of delivery of its choice.
• (d) The Customer acknowledges and agrees that:
• (i) delivery of the Product is completed and deemed accepted by the Customer upon actual delivery to the Customer or anyone appearing to act on its behalf at the Delivery Address; and
• (ii) in the event that the Customer is unable to accept delivery of the Product as arranged, Osstem is entitled to charge all reasonable costs and expenses for demurrage, storage and redelivery.
• (e) The Customer is not entitled to cancel or terminate this Agreement due to any such failure or delay to deliver the Products at a specific time and date. Osstem shall not be liable to the Customer for any loss or damage the Customer suffers as a result of any such failure or delay if the cause of the failure or delay is not within Osstem’ control.
• (f) Upon request of the Customer, Osstem at the Customer’s costs may affect and maintain the policies of insurance, with coverage limits of not less than the replacement value of the Product and provide a certificate of currency for the insurance required under this clause confirming such insurance to be in force.

5 RISK AND TITLE

• 5.1 Risk of loss or damage in or to the Product passes to the Customer on delivery of the Products at the Delivery Address.
• 5.2 Title to all Products delivered to the Customer shall remain with Osstem until the Customer makes the payment in full for the Products.
• 5.3 If the Customer does not pay all amounts due and payable to Osstem, without prejudice to any other rights or remedies available to Osstem, Osstem:
• (a) may suspend performance of or terminate this Agreement; and
• (b) will have the right to enter (or for its agent to enter) the Customer's premises and repossess the Products for which payment has not been received in full and any documentation, data and records of information relating to such Products.

6 DEFECT, RETURN, REFUND AND RECALL

• 6.1 Defective Product
• (a) The Customer must conduct an inspection of the Product immediately upon the delivery and any claim pertaining to the Defective Product, including but not limited to delivery shortage or damaged Product, must be made by the Customer to Osstem in writing within seven (7) days of the delivery of the Product.
• (b) Where the Customer notifies Osstem in accordance with clause 6.1, and Osstem accepts that they are the Defective Products, Osstem agrees to, at its election and within a reasonable period:
• (i) replace the Defective Products or supply equivalent goods; or
• (ii) refund or credit the amount paid by the Customer.
• (c) The Customer agrees and acknowledges that any claim for the Defective Product shall not be considered by Osstem if such claim is made after seven (7) days of the delivery of the Product.
• 6.2 General Return of Implant Products
• Osstem agrees that the Customer may return to Osstem the Implant Product provided that:
• (a) the Implant Products are in the original packaging, unopened and in a merchantable condition; and
• (b) the Customer meets the requirements set out in clause 6.4.
• 6.3 Surgical Fail Return of Implant Product
• Osstem agrees that the Customer may return to Osstem the Implant Product due to surgical failure provided that:
• (a) the Implant Products are cleaned, decontaminated and sealed in the sterile pouch indicating that it has finished a sterilisation cycle;
• (b) the Implant Products are returned with relevant documentations and/or information to be included in TGA medical device annual report as well as adverse event report to comply with regulatory reporting requirements; and
• (c) the Customer meets the requirements set out in clause 6.4.
• 6.4 Return Requirements for Implant Products
• (a) The Customer agrees and acknowledges that it must meet the following requirements when returning the Implant Products:
• (i) the Implant Products are not damaged or unpacked;
• (ii) the Customer returns the Implant Product to Osstem, not to any sales representative of Osstem, within twelve (12) months of the delivery via courier or trackable post service;
• (iii) the Customer pays Osstem for the return freight or delivery costs, including any transportation insurance;
• (iv) the Implant Products have more than six (6) months expiry date on the date of receiving the returned Implant Products by Osstem;
• (v) the Customer provides Osstem with a return request in an approved form when returning the Implant Products; and
• (vi) the Implant Products were originally purchased from Osstem, not from a third party.
• (b) Surgical fail is not applicable to the superstructure such as prosthetics and restoration components.
• (c) If the Customer returns the Implant Product but fails to meet the requirements set out in clause 6.4(a) above or relevant conditions set out in clause 6.2 or 6.3, Osstem may reject and return such Implant Product to the Customer at the Customer’s costs. Any costs incurred for returning the rejected Implant Product to the Customer must be paid by the Customer or be deducted from credits owned by the Customer.
• 6.5 Refund and Credits

Unless the Product returned is the Defective Product in accordance with clause 6.1, all refunds of the returned Product shall be made by way of credits to the Customer, equal to the amount paid by the Customer less any costs including the costs incurred under subclause 6.4(b).

• 6.6 Recall

Osstem may recall the Product if required to do so by law or by a regulatory body. The Customer shall co-operate with Osstem regarding any Product recall whether instigated by Osstem or any authority.

7 WARRANTY AND LIABILITY

• 7.1 Warranty

Osstem agrees to provide warranty for the Warranty Products as set out in Schedule 1. Osstem also warrants that:

• (a) the quality of the Products meets the general standards set by the Laws of Australia;
• (b) the Products are of merchantable quality suitable for their intended use, and meet the standards imposed under all applicable Laws;
• (c) the Products delivered pursuant to the Agreement shall be new, authentic and not be and not contain counterfeit items;
• (d) the Products are free of all Encumbrances; and
• (e) Osstem holds all licences and permits necessary to perform its obligations under this Agreement.
• 7.2 Limitation of Liability
• (a) Despite any other provision in this Agreement, Osstem shall not be liable to the Customer, whether arising under the law of contract, of tort (including negligence), statute, in equity or otherwise for:
• (i) loss of profit, loss of revenue, loss of goodwill, loss of business opportunity, indirect or consequential Loss;
• (ii) without limiting clause 7.2(a)(i) above, losses other than those losses that may fairly and reasonably be considered as naturally flowing from the breach of the Agreement as the probable result of such breach; or
• (iii) loss or damages caused or contributed to by the act or omission, or default, of the Customer or its personnel.
• (b) In any event, Osstem’s aggregate liability in respect of all Claims arising under or pursuant to the terms of this Agreement shall not exceed the amount paid by the Customer under this Agreement for the supply of the Product, regardless of whether those claims arise out of a single event or a number of different events.

8 CONFIDENTIALITY

• 8.1 Each party acknowledges that the other party may be given access to some Confidential Information of the other party, and in consideration of being given access to Confidential Information of the other party, and the mutual promises contained in this Agreement, each of the parties agree:
• (a) to keep strictly confidential the Confidential Information of the other party; and
• (b) not to use any or all of the Confidential Information of the other party other than as expressly permitted or required by law.
• 8.2 The parties agree not to disclose to any third party, without the prior written consent of the other party, and use for any purpose other than the performance of this Agreement, any Confidential Information concerning the Product or business affairs of the other party, including but not limited to prices, discounts, terms and conditions of sale, customers, business affairs, and the Specification, which it receives directly or indirectly from the other party, or which it acquires or develops in the course of its transaction with the other party.

9 INTELLECTUAL PROPERTY

• 9.1 The Customer acknowledges that the Customer does not have or acquire any right, title or interest in the Intellectual Property under this Agreement.
• 9.2 If the Customer becomes aware of any infringement, or threatened or likely infringement of the Intellectual Property, they must immediately notify Osstem of full particulars of all relevant circumstances.

10 TERMINATION

• 10.1 Termination
• (a) This Agreement may be terminated with immediate effect by Osstem:
• (i) upon written notice, if the Customer breaches any of the terms or conditions of this Agreement, and such breach is not remedied within the period not exceeding fourteen (14) days after receipt of written notice by the Customer to remedy the same; or
• (ii) upon written notice to the Customer if the Customer goes into liquidation, has a petition for its winding up presented and not withdrawn within the period not exceeding thirty (30) days of presentation, enters into any scheme of arrangement with its creditors under the relevant provisions of the Corporations Act or under a similar or analogous Law of any applicable jurisdiction, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed.
• (b) The giving or receipt of notice of termination of this Agreement shall not affect the parties’ respective obligations in any way until the effective date of such termination.
• 10.2 Consequences of termination or expiry
• (a) All payments owed to Osstem upon termination shall become due even if the Customer or its successors has a possible set-off Claim against Osstem.
• (b) Following termination or expiry of this Agreement, the Customer must pay all outstanding amounts owed to Osstem calculated by applying the Original Product Price.
• (c) Promptly after termination or expiry of this Agreement, each party must return to the other party any of the other party's Confidential Information in its possession or control or, if it cannot be returned, permanently delete or destroy it. The parties shall not copy, reproduce, or retain any Confidential Information in any form upon the termination or expiration of this Agreement.
• (d) The termination of this Agreement shall not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this Agreement.
• (e) If any amount already paid in advance by the Customer under this Agreement exceeds the amount of damages suffered by Osstem, the Customer may apply such amount (less the amount of damages) for purchasing Osstem’s Products at the Original Product Price.

11 FORCE MAJEURE

If the performance of this Agreement or any obligation hereunder including without limitation the delivery of the Product is wholly or partly prevented, restricted or interfered with by reason of any cause beyond the control of the affected party, including but not limited to fire, flood, riot, serious weather turbulences (e.g. Tsunami, typhoon), epidemics (e.g. bird flu), pandemic, or any governmental action, the party so affected, upon immediate notice to the other party specifying in detail of the cause or causes, shall be excused to the extent prevented from such performance, providing that the party so affected shall use its best efforts to avoid or remove such cause or causes of non-performance, and shall continue to perform hereunder to the extent unaffected and/or as soon as such cause or causes are removed, with utmost diligence and care.

12 DISPUTE RESOLUTION

• 12.1 Except where a party seeks urgent interlocutory relief and subject to clause
• 12.2 if a dispute arises between the parties in relation to the interpretation of or the rights or liabilities of the parties under this Agreement that cannot be settled by negotiation in good faith within twenty one (21) days of service by a party of a written notice of dispute on the other party, the parties agree to use their best endeavours to settle the dispute by mediation administered by a mutually agreed institution, which must take place in Sydney, NSW unless otherwise agreed by the Customer:
• (a) the parties will use their best endeavours to agree upon the appointment of a mediator, failing which the parties agree that the agreed mediation institution will appoint a mediator to conduct the mediation;
• (b) the parties will split the costs of the mediator and the mediation equally between them; and
• (c) the parties will co-operate to conduct the mediation as expeditiously as possible at a place where the mutually agreed mediation institution is located.
• 12.3 The parties agree that clause 12.1 does not prevent either party from commencing legal proceedings.

13 CAPACITY

• 13.1 Each party represents and warrants to each other party that:
• (a) it is validly existing under the laws of its place of incorporation or registration;
• (b) it has the power to enter into and perform its obligations under this Agreement and to carry out the transactions contemplated by this Agreement;
• (c) it has taken all necessary action to authorise its entry into and performance of this Agreement and to carry out the transactions contemplated by this Agreement;
• (d) its obligations under this Agreement are valid and binding and enforceable against it in accordance with the terms of this Agreement; and
• (e) the execution, delivery and performance by it of this Agreement (and any other agreement required to be entered into by it in connection with this Agreement) will not:
• (i) result in a breach of, or constitute a default under, any agreement or arrangement to which it is party or by which it is bound; or
• (ii) result in a breach of any law or order, judgment or decree of any court, Government Agency or regulatory body to which it is a party or by which it is bound.

14 GOODS AND SERVICES TAX

• 14.1 In this clause:
• (a) GST has the meaning as defined in the GST Act, as amended or any replacement or other relevant legislation and regulations;
• (b) words or expressions used in this clause which have a particular meaning in GST law (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning, unless the context otherwise requires;
• (c) any reference to GST payable by a party includes any corresponding GST payable by the representative member of any GST group of which that party is a member;
• (d) any reference to an input tax credit entitlement by a party includes any corresponding input tax credit entitlement by the representative member of any GST group of which that party is a member; and
• (e) if the GST law treats part of a supply as a separate supply for the purpose of determining whether GST is payable on that part of the supply or for the purpose of determining the tax period to which that part of the supply is attributable, such part of the supply is to be treated as a separate supply.
• 14.2 The following provisions of this clause apply if any supply under this Agreement is a taxable supply:
• (a) unless GST is expressly included, the consideration to be paid or provided under any other clause of this Agreement for any supply made under or in connection with this Agreement does not include GST;
• (b) to the extent that any supply made under or in connection with this Agreement is a taxable supply, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise to be paid or provided. The recipient of the taxable supply must also pay any penalties, fines, interest or statutory charges imposed in connection with the imposition of GST on the taxable supply. A party’s right to payment under this clause is subject to a valid tax invoice being delivered to the recipient of the taxable supply;
• (c) to the extent that one party is required to reimburse or indemnify another party for a Loss, cost or expense incurred by that other party, that loss, cost or expense does not include any amount in respect of GST for which that other party is entitled to claim an input tax credit; and
• (d) to the extent that any consideration payable to a party under this Agreement is determined by reference to a cost incurred by a party, or is determined by reference to a price, value, sales, revenue or similar amount, the GST exclusive amount of that cost, price, value, sales, revenue or similar amount must be used.

15 NOTICES

• 15.1 Service of notices

A notice demand, consent, approval or communication under this Agreement (Notice) must be in writing, in English and:

• (a) hand delivered; or
• (b) sent by prepaid post or email to the recipient's address for Notices specified in the Parties’ Details, as varied by any Notice given by the recipient to the sender.
• 15.2 Effect on receipt

A Notice given in accordance with this clause takes effect when taken to be received (or at a later time specified in it), and is taken to be received:

• (a) if hand delivered, on delivery;
• (b) if sent by prepaid post, two Business Days after the date of posting (or seven (7) Business Days after the date of posting if posted to or from a place outside Australia);
• (c) if sent by email, when sent by the sender unless the sender receives a delivery failure notification indicating that the email has not been delivered to the addressee; but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm (AEST) on a Business Day, the Notice is taken to be received at 9.00am (AEST) on the next Business Day.

16 GENERAL

• 16.1 Governing Law

This Agreement is construed and governed by the laws of New South Wales, Australia, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

• 16.2 Entire agreement

This Agreement embodies the entire understanding of the parties concerning its subject matter and there are no promises, terms, conditions or obligations oral or written, express or implied other than those contained in this Agreement, and for the avoidance of doubt, replaces and supersedes any and all oral agreements between the parties.

• 16.3 Prohibition, enforceability and severance
• (a) Any provision of, or the application of any provision of this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
• (b) Any provision of, or the application of any provision of this Agreement, which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
• 16.4 Waivers
• (a) Waiver of any right, power, authority, discretion or remedy arising on a breach of or default under this Agreement must be in writing and signed by the party granting the waiver.
• (b) A party is not entitled to rely on the conduct of another party or on a delay in the exercise or non-exercise of a right, power, authority, discretion or remedy arising from a breach of this Agreement or default under this Agreement as constituting a waiver of that right, power, authority, discretion or remedy.
• 16.5 Variation

A variation of any term of this Agreement must be in writing and signed by the parties.

• 16.6 Counterpart
• (a) This document may be executed in any number of counterparts all of which taken together constitute one instrument.
• (b) All parties agree that a facsimile of a party's signature or other electronically transmitted signature of a party is sufficient to indicate their approval of the terms of this Agreement and agree to be so bound.
• 16.7 Continuing performance
• (a) The provisions of this document do not merge with any action performed or document executed by any party for the purposes of performing this document.
• (b) Any representation in this document survives the execution of any document for the purposes of, and continues after, performance of this document.
• (c) Any indemnity agreed by any party under this document:
• (i) constitutes a liability of that party separate and independent from any other liability of that party under this document or any other agreement; and
• (ii) survives and continues after performance of this document.
• 16.8 Survival

Any obligation that is stated to survive, or by its nature survives, termination or expiry of this Agreement will continue in effect following termination or expiry of this Agreement.

• 16.9 Further assurances

Each party must do all things necessary to give full effect to this Agreement and the transactions contemplated by this Agreement.

• 16.10 Costs

Unless otherwise stated in this Agreement, each party will pay its own costs in relation to the negotiation, preparation, execution and performance of this Agreement.