TERMS AND CONDITIONS OF SALE

The following are Oryx’s terms and conditions for the provision of the goods and services sold through the website: www.oryxmedical.com. Please read these terms and conditions carefully. It is a condition of your use of the Goods that you (You) comply with these terms and conditions.

Application

1.1 Oryx is only prepared to provide the Goods on these Terms and Conditions and no contract will exist between Oryx and You except on these Terms and Conditions. Any order placed by You will incorporate these Terms and Conditions regardless of any inconsistencies in Your order.
1.2 If You place an order with Oryx and the order contains terms that conflict with or differ from these Terms and Conditions, the subsequent provision of Goods to You under that order will be taken to be a counter-offer to provide the Goods on these Terms and Conditions, and that counter-offer will be taken to have been accepted by You on the date on which the Goods are first provided to You.

Payment

2.1 If Oryx grants credit to You, Oryx’s terms of payment are net cash within thirty (30) days from the date of the invoice to which the payment relates.
2.2 If You wish to make a claim for adjustment in relation to any invoice, you must make the claim to Oryx in writing at the address for payment stated on the invoice within ten (10) days from the date of the invoice. Oryx is not required to consider or accept any claim made by You after the expiration of that period.
2.3 A payment due from You to Oryx will not have been made until the payment is actually received by Oryx at its address for payment stated on the invoice and, if payment is made by cheque, the cheque is cleared.
2.4 In addition to and without limiting Oryx’s other remedies for late payment, Oryx is entitled to charge and You are liable to pay interest on any payment that is overdue calculated at a rate of 20% per annum from the date of the relevant invoice and up to and including the date of payment.
2.5 You agree that in the event of any action being taken by Oryx to recover any overdue amount due and owing under this agreement any costs incurred by Oryx in recovering the debt (including without limitation any legal expenses on a solicitor/client basis, collection agency charges or any other reasonable associated costs) are payable by You to Oryx and shall be recoverable by Oryx as a separate debt.

Delivery

3.1 If any Goods are to be delivered to You under this agreement and unless Oryx and You otherwise agree, You will bear all costs and expenses incurred in the delivery to You.
3.2 Unless otherwise advised in writing by You the Goods will be delivered to the delivery address specified in the Schedule.
3.3 You will, from the commencement of delivery, bear all risk for the destruction, loss or damage of any Goods to be delivered to You.
3.4 For the purposes of this clause delivery will occur at the time when the Goods leave the place at which they are stored or kept.
3.5 The property in any Goods supplied by Oryx under this agreement will not pass to You until You pay to Oryx all money due and owing to Oryx under the agreement.

GST

4.1 For the purpose of this clause the following definitions apply:
(a) GST means any form of goods and services tax payable under the GST Law;
(b) GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
4.2 Words used in this clause that are defined in the GST Law have the meaning given in that legislation.
4.3 Unless otherwise specified, all amounts payable under this agreement are exclusive of GST and must be calculated without regard to GST.
4.4 If a supply made under this agreement is a taxable supply, the recipient of that taxable supply (Recipient) must, in addition to any other consideration, pay to the party making the taxable supply (Supplier) the amount of GST in respect of the supply.
4.5 The Recipient will only be required to pay an amount of GST to the Supplier if and when the Supplier provides a valid tax invoice to the Recipient in respect of the taxable supply.
4.6 If there is an adjustment to a taxable supply made under this agreement then the Supplier must provide an adjustment note to the Recipient.
4.7 The amount of a party’s entitlement under this agreement to recovery or compensation for any of its costs, expenses or liabilities is reduced by the input tax credits to which that party is entitled in respect of those costs, expenses or liabilities.

Warranties, Disclaimers & Liability

5.1 You warrant that You are at least eighteen (18) years of age and You have not entered into this agreement or obtained the Goods on the basis of or in reliance upon any statement or representation (whether made orally or in writing) made by Oryx concerning this agreement or any of the Goods other than any statement or representation contained in this agreement.

5.2 Conditions and warranties expressed or implied by statute, the common law, equity, trade, custom, usage or otherwise are expressly excluded from this agreement to the extent permitted by law.

5.3 If any statute implies any term into a agreement and that statute prohibits provisions in a contract excluding or modifying the application of, exercise of, or liability under, such a term, that term will be taken to be included in this agreement. However, the liability of Oryx for any breach of such a term will be limited, if permitted by the statute, at the option of the Oryx, to any one or more of the following:

(a) if the breach relates to goods:

(A) the replacement of the goods, the supply of equivalent goods or the repair of the goods;

(B) the payment of the cost of replacing the goods or of acquiring equivalent goods or the cost of having the goods repaired; and

(b) if the breach relates to services:

(A) the supplying of the services again; or

(B) the payment of the cost of having the services supplied again.

(C) Except as expressly otherwise provided in these Terms and Conditions, Oryx will not be liable to You or Your employees or agents for any direct, indirect, incidental or consequential damage or loss of any nature (whether based on tort, contract or otherwise) including but not limited to loss of profits, loss of production, loss of sales opportunity or business reputation, direct or indirect labour costs and overhead expenses and damage to equipment or property or any other claim arising directly or indirectly or in any way attributable to the performance or non-performance of its obligations under this agreement (including these Terms and Conditions).

(c) To the extent permitted by law and regardless of any other provision in this agreement, Oryx’s liability for any breach of warranty under this agreement or otherwise will not exceed the Fees payable under this agreement.

Indemnity

You indemnify and hold Oryx harmless from any and all claims, demands, liabilities, losses damages, judgements or settlements, including all reasonable legal costs and expenses which may arise directly or indirectly as a result of any promise, representation, warranty, act, omission or obligation of Oryx in respect of the:

(a) the provision of the Goods to You;

(b) the use of the Goods by You;

Intellectual Property

7.1 For the purpose of this clause 7 Intellectual Property means:

(a) the business names and trade marks owned or used at any time by Oryx;

(b) the Confidential Information owned or used at any time by Oryx;

(c) the patents, patent applications, registered designs, unregistered designs, copyright and all other industrial and intellectual property rights owned or used at any time by Oryx.

7.2 You agree that you shall have no right, title, claims or interest in or to the Intellectual Property.

7.3 You may not copy, modify or translate any of the Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of the Intellectual Property to use it other than in connection with the Goods or grant any other person or entity the right to do so.

7.4 You must notify Oryx immediately on becoming aware of any act referred to in clause 7.3.

Confidential Information

8.1 Confidential Information means the terms of this agreement and all confidential information, material (including reports and recommendations) and technology disclosed or provided in any form by any party to any other party in connection with the subject matter of this agreement.

8.2 Subject to this clause 8, each party must maintain in confidence all Confidential Information and ensure that the Confidential Information is kept confidential.

8.3 A party (Recipient) may reveal Confidential Information of another party (Provider):

(a) if required by law or by any stock exchange to disclose, in which case the Recipient must immediately notify the Provider of the requirement and must take lawful steps and permit the Provider to oppose or restrict the disclosure to preserve, as far as possible, the confidentiality of the Confidential Information;

(b) if the Confidential Information is in or enters the public domain for reasons other than a breach of this agreement;

(c) if the Confidential Information is disclosed to the Recipient by a third party legally entitled to disclose that information and who is not under an obligation of confidentiality to the Provider; or

(d) to its professional advisers to obtain professional advice.

8.4 On termination of this agreement each party agrees to deliver up and/or delete as required the other party’s Confidential Information and in the event such Confidential Information cannot be delivered up or deleted each party warrants not to use such Confidential Information

8.5 This clause will survive the termination of this agreement. Termination If any one or more of the following events occurs:

(a) You commit or permit any breach of any of Your obligations under these Terms and Conditions (including but not only the obligation to pay any money due to Oryx) and You do not remedy the breach within fourteen (14) days of the breach occurring, and whether or not Oryx has made a formal demand to You to remedy the breach;

(b) You, being a natural person, becomes bankrupt;

(c) You, being a corporation, resolves or is ordered to be wound up, goes into liquidation (provisional or otherwise), enters into any scheme of arrangement or otherwise compounds with its creditors or is otherwise unable to pay its debts, then Oryx has the right to do any of the following: determine this agreement:

(d) Cease and withhold the provision of Goods to You under these Terms and Conditions; and

(e) retain any payments made by You under these Terms and Contract. All of these remedies are in addition to any right or remedy that Oryx may have against You for recovery of any money due to Oryx or in respect of any previous breach by You of these Terms and Conditions.

Force Majeure

10.1 Neither party shall be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay is due to force majeure.

10.2 If a delay or failure of a party to perform its obligations is caused or anticipated due to force majeure the performance of that party’s obligations will be suspended for the period of the force majeure.

General

11.1 Any reference in this agreement to:

(a) References to agreement refers to the these Terms and Conditions;

(b) Goods includes any associated services that may be provided by Oryx to You under these Terms and Conditions;

11.2 This agreement and its attachments constitute the entire agreement between the parties regarding the matters set out in it and supersedes any prior representations, understandings or arrangements made between the parties, whether orally or in writing.

11.3 This agreement must not be varied except in accordance with the terms of this agreement.

11.4 A right created by this agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right does not constitute a waiver of that right, nor will a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.

11.5 This agreement may be assigned or transferred in any manner by Oryx at its sole discretion.

11.6 Each party must promptly execute all documents and do everything necessary or desirable to give full effect to the arrangements contained in this agreement.

11.7 The laws applicable in Queensland, Australia govern this agreement and the parties submit to the non-exclusive jurisdiction of the courts of Queensland and any courts competent to hear appeals from those courts.

11.8 If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from this agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

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