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Terms and Conditions

  1. Scope: These terms apply in any contract of supply of Products or Consignment Products (together, “Products“) between Orbital Medical Pty Ltd (Orbital Medical) as supplier and you as Purchaser. By accepting deliveries made in accordance with any order for Products placed upon Orbital Medical, the Purchaser is deemed to have accepted the terms and conditions of this Agreement. Orbital Medical may alter the range of Products on offer without notice.

  2. Products Purchased and Consigned & Re-Stocking Procedure:

    Orbital Medical shall deliver to the Purchaser the Products in the Quantities described on the delivery note. For Consignment Product, the Purchaser shall notify Orbital Medical if at any time the level of Consigned Product reaches a level below that required (“Restocking Level”). Orbital Medical shall as soon as practicable, deliver the additional quantities of such Consignment Product requested to the Purchaser. Supply of Consignment Product to the Purchaser shall be consistent with Orbital Medical capacity to supply and deliver the Consignment Products. Orbital Medical may allocate the available supply of Product in a manner that Orbital Medical considers most equitable, having regard to factors such as historical purchasing patterns, forecast demand and contractual commitments. Orbital Medical reserves the right at any stage to deny Customer requests for Consignment Product if such requests are not in the best interest of Orbital Medical.

  3. Delivery & Risk: The cost of transporting Products to the Purchaser shall be paid for by Orbital Medical and the risk of loss and damage in the product shall pass to the Purchaser upon delivery. Once the Product or Consignment Product is delivered, the risk of loss and damage shall pass to the Purchaser, whatever the cause or circumstance. Should the Purchaser choose to further transport the products to a location outside the delivery site, the purchaser does so at its own risk and expense.

  4. Acceptance: The Purchaser may accept or reject the Products within 7 Days from receipt. If the Purchaser fails to notify Orbital Medical in writing of its rejection within such time period, the Purchaser will be deemed to have accepted the risk for the Products. For the avoidance of doubt, the Purchaser may reject any Products that are damaged or do not conform to the agreed specifications, provided that written notice of such damage or non-conformity is given to Orbital Medical within the 7 Day period, accompanied by reasonable evidence of the damage or non-conformity.

  5. Title, Use and Taxes: Title to Products, excluding Consignment Products, passes on delivery, subject to payment in accordance with Clause 9. and Orbital Medical’s Payment terms stated on the invoice. Title to all Consignment Products shall remain with Orbital Medical until Consignment Product is used by the Purchaser. Consignment Product Returned to Orbital Medical with (i) Opened or damaged packaging; (ii) broken sterile seals; or (iii) compromised integrity due to removal of temperature gauges will constitute use (“Use”). The Purchaser will not pledge or encumber the Consigned Products and will keep the Consigned Products free from liens and encumbrances. Until the Consigned Products are purchased by the Purchaser, (i) all taxes or assessments based on ownership of the Consigned Products shall be paid by Orbital Medical, (ii) Orbital Medical shall include the value of the Consigned Products in any Tax return of personal property required to be filed with local taxing authorities.

  6. Purchase: The Purchaser agrees to Purchase Products at the price listed on the Delivery Note. The Purchaser must purchase all Consignment Product that has been Used (“Purchased Product”). Such Purchased Product shall be paid for in accordance with Clause 8.

  7. Storage and Insurance: Until Consignment Product is Used by or on behalf of the Purchaser, the Purchaser must, at its own expense: (i) conspicuously identify the Consignment Product as Orbital Medical Property; (ii) store the Consignment Product in a safe and secure manner; and (iii) maintain all risk insurance coverage on the Consignment Product at full replacement value, for the benefit of Orbital Medical, and provide satisfactory evidence upon Orbital Medical’s reasonable request. The Purchaser shall promptly notify Orbital Medical of any event that may give rise to a claim under such insurance.

  8. Inventory & Payment: Orbital Medical may, with the Purchaser’s consent which must not be unreasonably withheld, access the Purchaser’s premises for the purpose of conducting audits or inventory counts on the Consignment Product.

    Orbital Medical may take an inventory of the Consignment Product in the Purchaser’s possession on the last business day of each month, in a manner consistent with reasonable business procedures. During inventory counts, Orbital Medical must ensure that items of inventory nearing its expiry date are moved to a location of higher usage.

    Within 10 days of Use, as the term is defined in clause 5, the Purchaser shall submit a purchase order (“Purchase Order”) to Orbital Medical for all Purchased Product, itemising the quantity of Purchased Products covered by such Purchase Order. On receipt of the Purchase Order Orbital Medical shall issue invoice for payment. The Purchaser shall also remit payment for such Purchased Products concurrently with submission of the relevant Purchase Order, such payment to be calculated in accordance with the prices quoted on the Delivery Note. Failure to make payment within 30 days of receiving the invoice from Orbital Medical will result in a service charge of 10% per month, which will be added to all amounts past due.

    Orbital Medical shall not be bound by any term or condition contained in the Purchaser’s Purchase Orders. In the event of any discrepancies between the inventory taken by Orbital Medical and the inventory and records of the Purchaser, the Purchaser shall use its best efforts to co-operate with Orbital Medical in resolving such discrepancy. If the discrepancy cannot be resolved the discrepancy shall be resolved in favour of Orbital Medical, it being agreed that the Purchaser bears the risk of the Consigned Product upon delivery and Acceptance. Payment must be made to Orbital Medical by electronic funds transfer to the bank account specified on the delivery note, at the price stated on the delivery note, unless otherwise agreed to by Orbital Medical.

  9. Warranty/Limitation of Remedies: Warranties on Products and limitation of the Purchaser’s remedies are as provided in accordance with the terms of the Products Warranty provided with the Products. Orbital Medical shall not under any circumstance be liable for any direct, indirect, incidental, special or consequential loss/or damages (including, but not limited to, loss of profits, revenue or business) in any way related to the Products, whether arising from any defect in the Product/s, unsuitability for the Purchaser’s purpose, negligence by Orbital Medical or its employees or agents or in any other way, this agreement, or the termination of this agreement. To the extent the law allows, this exclusion applies regardless of whether such damages are sought based on breach of warranty, breach of contract, negligence, strict liability in tort, or any other legal theory.

    Orbital Medical warrants and agrees that (i) the Products are fit for the purpose for which they are to be used, if used according to the manufacture’s specifications; (ii) the Products comply with all relevant quality and safety standards and approved for use by all necessary authorities and all product has current TGA approval for used in Australia. The Benefits provided in the Orbital Medical warranty are additional to and do not detract from any rights and remedies that the Purchaser may have under Australian laws, including Australian Consumer Law.

    Unless otherwise agreed in writing, Orbital Medical’s liability to the Purchaser for breach of any mandatory conditions and warranties implied into the agreement between Orbital Medical and the Purchaser for the supply of the Product/s by operation of the Australian Consumer Law is limited, at Orbital Medical’s option to:

    (i) Replacing the Product/s or supplying equivalent Product/s; or

    (ii) Paying the cost of replacing the Product/s or acquiring equivalent good.

    The Purchaser shall indemnify Orbital Medical against all costs, losses and damages (including but not limited to legal costs on a solicitor / client basis, accounting costs and loss of profit) incurred or suffered by Orbital Medical as a result of any default and actions taken by Orbital Medical in respect of any default.

    To the fullest extent permitted by law, Orbital Medical shall not be held liable for any loss, claim, damage, cost, or expense (including legal fees on a full indemnity basis) arising out of or in connection with any actual or alleged medical malpractice, negligence, misdiagnosis, treatment error, or failure to meet the standard of care by any third party, practitioner, contractor, consultant, or healthcare provider engaged by or affiliated with the Purchaser or its agents.

    The Purchaser acknowledges that Orbital Medical does not provide medical advice or treatment and shall not be responsible for the clinical decisions, medical outcomes, or health consequences arising from the use of its products or services. The Purchaser agrees to indemnify, defend, and hold harmless Orbital Medical, its directors, officers, employees, and agents from and against any and all actions, proceedings, claims, demands, losses, liabilities, and expenses arising from or related to any such medical or clinical incident, including but not limited to claims of malpractice or professional negligence.

    Nothing in this clause limits any rights the Purchaser may have under the Australian Consumer Law that cannot be excluded, but to the extent permitted, such liability is expressly limited as set out in this document.

  10. Product Recall: Orbital Medical will be responsible for the costs of transport for the products subject to a product recall.

  11. Term and Termination: This Agreement is valid on a rolling basis for all Product Purchases placed by the Purchaser. This Agreement will be deemed to have expired if the Purchaser ceases to purchase Products from Orbital Medical for a period of 2 Years or greater. Orbital Medical may terminate this agreement at any time by giving the other party written notice of termination at least 30 days prior to the effective date of termination. In addition, either party may terminate this Agreement immediately upon the occurrence of any of the following events: (i) the other party has failed to remedy a breach of this Agreement within 30 days after receiving written notice of such breach from the terminating party (or 10 days where such breach related to non-payment), provided that such breach is not attributable to acts or omissions of the terminating party (ii) the other party institutes proceedings under bankruptcy or insolvency laws, for corporate reorganization, receivership, dissolution or similar proceedings, (iii) the other party makes a general assignment for the benefit of creditors, (iv) the other party assigns this Agreement or (v) if force majeure conditions have persisted for more than 30 days. A party’s notice of termination shall specify the basis of termination and the effective date of termination.

    Within 10 days of termination of the Agreement, the Purchaser shall, at Orbital Medical’s option, either purchase or return to Orbital Medical the Consignment Product. If Consignment Products are returned, the Purchaser shall pay all transport costs.

  12. General:

    1. This agreement constitutes the entire agreement between the parties with respect to its subject matter and overrides any terms and conditions of sale or consignment submitted by the purchaser, unless Orbital Medical agrees in writing to additional or alternative terms.

    2. Either party may waive performance or breach of any provisions without losing the right to require or enforce performance later.

    3. The parties will attempt to resolve all disputes by negotiation, and any unresolved dispute will be mediated promptly by a qualified mediator.

    4. This Agreement is governed by the law of Victoria, and the parties submit to the exclusive jurisdiction of the courts of Victoria in respect of all matters arising under or relating to this Agreement.

    5. All Notices may be sent by email, or mail to the addresses detailed in this Agreement.