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Terms and Conditions

Dräger Group and any of its subsidiaries („Dräger“) shall not be responsible for any delay or other failure in performing its contractual obligations, if the performance of such obligations is prevented or materially affected as a direct or indirect result of the corona virus pandemic. Such causes include, without limitation, unpunctual or incorrect delivery by suppliers, impairment of Dräger’s own production due to employee absences or precautionary measures. In such cases the delivery time shall be extended automatically.

Dräger is entitled to withdraw from this agreement fully or partly by written notice, should the contractual performance become impossible.

Any and all other rights pursuant to the standard terms and conditions for sales and service of remain unaffected.

Draeger Australia Pty. Ltd.

Terms and Conditions of Sale for Goods & Services for Draeger Australia Pty. Ltd.

In these terms and conditions Dräger means Draeger Australia Pty Ltd ACN 098 885 539 or any related corporation or legal entity. The Customer means the person, firm, corporation, government or semi-government authority purchasing goods and/or services from Dräger. Goods means such products as Dräger may at its discretion agree.


1. GENERAL TERMS

1.1 These terms and conditions shall apply to the supply of goods and/or services by Dräger to the Customer.

1.2 Dräger is not bound by any terms or conditions contained in any purchase order, purchase form or other similar document of the Customer delivered to Dräger with respect to the purchase of or order for goods, services or otherwise which are at variance with, in derogation from or additional to these general terms and conditions. The Customer is bound by these general terms and conditions notwithstanding anything to the contrary in such purchase order, purchase form or other similar document.


2. THE CONTRACT

2.1 The matters referred to in these terms and conditions constitute a contract between Dräger and the Customer. These terms and conditions shall prevail over any other terms and conditions that may contain terms and conditions that may be inconsistent or contrary to those contained herein.

2.2 These terms and conditions shall apply to the exclusion of all other agreements and prior representations, unless subsequently evidenced in writing by Dräger and the Customer, and, together with each invoice and any supplementary agreement or other agreed document that references or is ancillary to this agreement, shall be the whole of the agreement between Dräger and the Customer.


3. DESCRIPTION OF GOODS

3.1 The description of goods and/or services as stipulated on invoices or order forms is provided by way of identification only and the use of that description shall not constitute a description under any contract of sale by description. Any description of any goods in any brochure, document or other sales literature used by Dräger shall not form part of any agreement between Dräger and the Customer.


4. DESIGN CHANGES

4.1 Dräger shall have no obligations to make alterations in the design and construction of goods previously accepted and delivered even though design changes are incorporated in the goods subsequently being delivered.


5. PRICE VARIATION

5.1 Subject to paragraph 5.2 hereof the price shall be as quoted in writing by Dräger. If a price is not quoted then it shall be in accordance with Dräger’s current price list. Verbal quotations are subject to written confirmation.

5.2 Dräger reserves the right without notice to alter the price of goods and services whether or not a deposit or part payment has been received by Dräger for such goods or service and to invoice the Customer for any such extra amount where the costs of the goods to Dräger has altered due to circumstances beyond its control including but without limiting the generality of the foregoing any variation in Dräger’s exchange rates, GST or other taxes, levies, imposts, duties, premiums, fees or charges however designed and to correct errors and omissions.


6. PAYMENT

6.1 Payment is to be made to Dräger for goods and services within thirty (30) days from the date of invoice.

6.2 If the Customer fails to comply with the terms of payment in paragraph 6.1 hereof then:

6.2.1 the Customer agrees that it will pay Dräger a late premium charge amounting to two (2) per centum per month on all monies from time to time in respect of goods and/or services including all charges from time to time owing by the Customer.

6.2.2 the Customer shall be liable for all costs including GST relating to any legal action taken by Dräger to recover moneys due from the Customer, these costs including GST will be payable by the Customer to Dräger on demand.

6.2.3 Dräger reserves the right to discontinue or suspend the supply of goods and/or service to the Customer.

6.3 No discount shall be allowed except where otherwise agreed by Dräger in writing.

6.4 Invoices may be issued by Dräger and will be payable by the Customer in respect of every delivery notwithstanding that the balance of the order has not been nor will not be delivered for any reason.


7. APPLICATION FOR A CREDIT ACCOUNT

7.1 The Customer agrees that for the purpose of processing my/our application for commercial trade credit account, the Customer agrees to Dräger receiving from a credit reporting agency a credit report containing personal financial information about them (Privacy Act, 1988)

7.2 The Customer agrees that Dräger may give to and seek from other credit providers named in this credit application and any providers that may be named in a credit report issued by a credit reporting agency information about their credit arrangements. The Customer understands that this information may include any information about their credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive under the Privacy Act,1988.

7.3 Where a Customer opens a credit account with Dräger the Customer may be required to nominate referees or guarantors (that shall be acceptable to Dräger) prior to credit being approved by Dräger.

7.4 Dräger reserves the right to withdraw at any time any credit facilities extended to the Customer where payment is not received or where such other acts or omissions of the Customer are objectionable to Dräger.


8. DELIVERY AND RETURN OF GOODS

8.1 Unless Dräger otherwise agrees in writing GST, delivery, carriage insurance, handling, storage and packaging and any other expenses relating to the goods shall be charged to and paid by the Customer.

8.2 In the absence of specific instruction from the Customer, Dräger will select the carrier and make such agreement with the carrier on behalf of the Customer as Dräger in its absolute discretion deems appropriate.

8.3 Dräger will endeavour to deliver the goods (or provide services) within the Customer’s required delivery period, but subject to Clause 8.4 shall not in any event be liable for any loss or damage directly or indirectly sustained from any failure to deliver within such period. Time shall not be the essence of this contract and any delay shall not be the basis of the Customer’s cancellation of this contract.

8.4 Dräger shall not be liable for any loss or damage resulting from any failure to give notice of any delay in delivery.

8.5 Dräger reserves the right to deliver the goods by installments at its absolute discretion and in such circumstances the Customer shall accept delivery of such goods by installments.

8.6 Where in order to deliver or collect goods, Dräger or its carrier enters upon the Customer’s premises the Customer shall provide full and safe access to Dräger or its carrier and shall be liable for and indemnify Dräger and its carrier against the cost of all loss, damage to property and injury to persons, occurring directly or indirectly as a result of the failure by the Customer to ensure the said full and safe access.

8.7 The Customer shall be responsible for providing adequate labour and/or material handling equipment for the loading and unloading of goods at its premises.

8.8 Where Dräger agrees to collect goods from the Customer’s premises the Customer shall ensure that the goods are all available for collection at an easily accessible central point and that they are ready for loading at the time Dräger arrives to collect them.

8.9 The Customer’s return of goods to Dräger for credit requires the prior written approval of Dräger and issuance of a Returned Goods Authorisation Number (RGA).

8.10 Where goods are being returned to Dräger, the Customer shall ensure that they are returned complete, together with all operations manuals and accessories, in a safe condition, having regard to the risk to:-

8.10.1 persons handling them and in their vicinity; and

8.10.2 damage to the goods themselves.

8.11 Claims by the Customer for short, damaged or incorrect deliveries must be made within fourteen (14) days from the date of invoice.

8.12 Dräger will not be liable or responsible for any loss or damage, cost or expense suffered by the Customer resulting directly or indirectly from any failure by Dräger to fulfil any of the terms and conditions herein, including Page | 2any obligation or liability in respect of any damage to or malfunction of any item supplied, if such failure damage or malfunction is due to any delay or other cause beyond the control of Dräger.

8.13 Where goods are incorrectly ordered by the Customer, supplied and subsequently returned, a restocking fee of fifteen (15) percent of the purchase price of the goods shall be paid together with any delivery fee and GST incurred by Dräger as a result thereof within thirty (30) days from the date of invoice.

8.14 No return of goods will be accepted or a credit note issued by Dräger, for any goods and/or services specifically acquired for the Customer.

8.15 If Dräger is of the opinion that goods when returned are otherwise than in the same condition as when they were delivered to the carrier or directly to the Customer a charge equal to the cost necessary to restore the goods to their original condition shall be payable by the Customer upon demand by Dräger.

8.16 If goods are returned to Dräger which Dräger is unable to resell to a third party or resell for the same amount as was sold to the Customer then Dräger may charge the Customer an amount equal to the loss incurred as a result of the Customer returning the goods.


9. OWNERSHIP AND RISK

9.1 Notwithstanding any credit granted to or anything contained in these terms and conditions to the Customer, Dräger shall retain the full legal and beneficial ownership and title in and to all the goods delivered to the Customer by Dräger until the Customer has paid to Dräger the full amount due on all outstanding invoice(s) to Dräger. Until then the Customer will hold and sell the goods as agent for Dräger and the Customer shall store the goods separately and with the interest of Dräger as owner clearly marked on the goods and the area in which they are stored.

9.2 The Customer will ensure that the goods are kept in good and serviceable condition.

9.3 The Customer will secure the goods from risk, damage and theft; and keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Customer.

9.4 Any proceeds received by the Customer from the resale of the goods shall be held by the Customer as trustee for Dräger to the extent of the unpaid invoiced price of those goods and the proceeds of the sale shall be forwarded to Dräger in full as soon as is reasonably practicable after receipt by the Customer and where the proceeds of sale are less than the amount owing by the Customer to Dräger, such proceeds shall be applied in practical satisfaction to the invoiced price or amount outstanding until all monies owing to Dräger for all goods and services supplied by Dräger to the Customer have been paid for in full by the Customer to Dräger.

9.5 Should the goods supplied by Dräger to the Customer be lost or damaged after delivery and prior to payment, the Customer hereby agrees to indemnify Dräger for such loss and damage.

9.6 After the goods leave Dräger’s premises they shall be at the risk of the Customer and any damage to the goods shall be at the expense of the Customer.

9.7 If the Customer does not pay for any goods and/or services on the due date then Dräger is hereby irrevocably authorised by the Customer to enter the Customer’s premises (or any premises under the control of the Customer or as agent of the Customer in which the goods are stored at such premises) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Customer whatsoever.

9.8 If Dräger is unable to resell the goods at the same price or more as was invoiced to the Customer by Dräger, then Dräger shall be entitled to make claim, demand or institute, if necessary, an action to recover any loss or damage sustained by Dräger due to Dräger not being able to obtain the invoiced price plus the added expenses incurred by Dräger as a result of non-payment by the Customer.

9.9 The Customer acknowledges that by virtue of 9.1 and 9.4 (above), Dräger has a security interest in the goods for the purposes of the Personal Property Securities Act 2009 (Cth) (PPS Act) and to the extent applicable the PPS Act applies.

9.10 The Customer acknowledges that Dräger may do anything reasonably necessary, including but not limited to registering any security interest which Dräger has over the goods on the Personal Property Security Register established under section 147 of the PPS Act in order to perfect the security interest and comply with the requirement of the PPS Act.

9.11 The Customer agrees to do all things reasonably necessary to assist Dräger to undertake the matters set out in 9.10 (above).

9.12 The Customer and Dräger agree that, pursuant to section 115 of the PPS Act, the following provisions do not apply in relation to a security interest in the goods to the extent, if any, mentioned (words in this provision have the same meaning as in the PPS Act):

i. section 95 (notice of removal of accession), to the extent that it requires the secured party to give a notice to the grantor;

ii. subsection 121(4) (enforcement of liquid assets--notice to grantor);

iii. section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor and other secured parties before disposal;

iv. paragraph 132(3)(d) (contents of statement of account after disposal); and

v. subsection 132(4) (statement of account if no disposal).


10. CANCELLATION

10.1 To the full extent permitted by law, orders for goods specifically acquired by Dräger for the Customer shall not be cancelled by the Customer without Dräger’s written consent. The cancellation of any order shall be made on terms which indemnify Dräger against all loss.


11. CUSTOMER’S SPECIAL REQUIREMENTS

11.1 Changes to the specifications at the Customer’s request either at the time of placing the order or thereafter will only be accepted at Dräger’s discretion. Such changes will only take effect when agreed in writing by Dräger and which may result in a price increase.


12. WARRANTIES AND EXTENT OF LIABILITY

12.1 In any event Dräger limits its liability for breach of condition or warranty to:

12.1.1 In the case of goods, any one (at Dräger’s election) of the following:

12.1.1.1 the replacement of the goods or the supply of equivalent goods;

12.1.1.2 the repair of goods;

12.1.1.3 the payment of the cost of replacing the goods or of acquiring equivalent goods;

12.1.1.4 the payment of the cost of having the goods repaired; or

12.1.2 In the case of services either (at Dräger’s election) of the following:

12.1.2.1 the supplying of the services again; or

12.1.2.2 the payment of the cost of having the services supplied again.

12.2 The warranties set out in Clause 12.2.1 shall be additional to any non-executable warranties to which the Customer may be entitled pursuant to any statute.

12.2.1 Subject to clause 12.1.1 Dräger warrants that the goods sold are free from defective materials and workmanship.

12.3 Dräger will repair, or at its option replace or credit (at its discretion) those of the goods which, upon examination are found by Dräger to be defective in workmanship and/or materials.

12.3.1 The warranty does not apply if:

12.3.1.1 the defect becomes apparent more than twelve (12) months after the date of the invoice;

12.3.1.2 the goods have not been used or stored in accordance with instructions issued by Dräger;

12.3.1.3 the defects are in a manufactured component supplied by Dräger to another;

12.3.1.4 the defective part is made of rubber, glass, synthetic or ceramic materials;

12.3.1.5 the goods have been subject to any alteration or repair by any person other than authorised in writing by Dräger. If the alteration or repair is unrelated to the defect then the warranty remains applicable;

12.3.1.6 the Customer fails to notify Dräger of its claim under this clause within fourteen (14) days of the defect becoming apparent and to return the goods to Dräger on its request to do so;

12.3.1.7 the indicated shelf life of the goods has expired.

12.4 Except as provided in Clause 12.2.1 and 12.3.1 above, Dräger will not be liable for economic or consequential loss, injury, expense or damage to the Customer or any person to whom the goods are transferred, or in respect of any person to whom the Customer or the person using the goods make them available or their property, arising from any defect in or failure of the goods, notwithstanding negligence on the part of Dräger, its suppliers, servants, agents, successors or assigns.

12.5 If goods are repaired under warranty they will be returned to the purchaser or ultimate user carriage paid.

12.6 The Customer warrants that the goods purchased by the Customer will not be used predominantly for personal, domestic or household use.


13. REPAIRS AND PARTS

13.1 Dräger does not promise the ready availability of parts for such goods as may be required to be repaired from time to time.


14. TESTING OF CYLINDERS

14.1 Dräger may at the Customer’s expense inspect the test cylinders prior to each refill in order to determine compliance of the cylinders with all relevant standards of the Standards Association of Australia. Dräger may refuse to fill a cylinder if in Dräger’s opinion it does not comply with such standard, whereupon the cylinder will be destroyed in accordance with Australian standards.


15. GOVERNING LAW AND JURISDICTION

15.1 These terms and conditions and the contract governed thereby shall be governed by and construed in accordance with the laws from time to time, of the State of Victoria which is where the head office of Dräger is located.


16. INDEMNITY

To the full extent permitted by law the Customer:-

16.1 agrees to indemnify and at all times hereafter to keep indemnified and hold Dräger, its servants and agents and each of them harmless against all claims for loss or damage (whether as a result of negligence or otherwise) arising directly or indirectly out of the Customer’s use, possession, ownership or resale to a third party or out of the use, possession or ownership by such third party of the goods or any part or parts thereof whether separately or in combination with any other equipment or material.

16.2 agrees that the indemnity in Clause 16.1 shall survive the termination of this contract and shall extend to cover all alleged defaults or defects in the goods or part(s) thereof or instruction supplied for use in connection with the goods or out of any failure of the goods to perform a particular task or to achieve a particular result or to comply with any particular specification.


17. FORCE MAJEURE

17.1 To the extent permitted by law the Customer releases Dräger from all and any liability for and in relation to or occurring out of any failure or transaction in performance of its obligation hereunder due in part or in whole to any cause whatsoever beyond Dräger’s reasonable control.


18. IMPLIED CONDITIONS AND WARRANTIES

18.1 All implied conditions and warranties (statutory or otherwise) are hereby expressly excluded from this contract insofar as they are capable of being excluded by agreement.


19. COLLATERAL WARRANTIES AND REPRESENTATIONS

19.1 All prior statements and representations or collateral warranties that may have been given whether oral or in writing by Dräger or its servants or agents prior to the delivery of the goods and/or services are expressly excluded to the full extent allowed by law and accordingly Dräger is released by the Customer from any liability as a result of such statement or representation.


20. FITNESS FOR PURPOSE

20.1 The Customer shall not rely upon Dräger’s expertise or judgement as to fitness or suitability of use for which the Customer may require the goods and or service.


21. WAIVER

21.1 Failure by Dräger to insist upon strict performance by the Customer of any terms and conditions contained herein shall not be taken to be a waiver thereof or of any rights of Dräger in relation thereto and in any event shall not be taken to be a waiver of the same terms and conditions on any subsequent occasion and shall not discharge the Customer from any of its obligations pursuant to these terms and conditions.


22. LIENS

22.1 In addition to any lien to which Dräger may be entitled by statute or common law, Dräger shall in the event of the Customer’s insolvency, bankruptcy or winding up, be thereupon entitled to a general lien on all property whatsoever owned by the Customer and in Dräger’s possession at the time.

22.2 The Customer agrees that if demand is made by Dräger the Customer receiving such a demand will immediately execute a mortgage or other instrument of security, or consent to caveat, as required, and against the event that the Customer fails to do so within a reasonable time of being so requested, the Customer hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by Dräger to be its true and lawful attorney to execute and register such instruments. Such lien will cover the unpaid price of any goods and/or services supplied by Dräger to the Customer.


23. NOTICES

23.1 All Notices on Accounts shall be in writing and may be hand delivered or mailed postage pre-paid addressed to the postal address of either Dräger or the Customer as notified to the other from time to time in writing. Any such Notice or Demand or Account shall be deemed to have been received five (5) business days after dispatch if sent by mail, or the next business day if delivered by hand or facsimile transmission or email.


24 VOIDABILITY OF TERMS AND CONDITIONS

24.1 The Customer acknowledges that these terms and conditions are subject to any rights and obligations arising between the parties pursuant to any legislation or by implication of a law and specifically acknowledge that this contract is not intended and will not operate to override any rights and obligations created by the Competition and Consumer Act 2010 as amended. To the extent that any term or condition of this contract is void, voidable or repugnant to the provisions of that Act or any other Act of the State of Victoria, or any other applicable legislation of the Commonwealth of Australia then this contract shall be read as if that term or condition were deleted and the balance of this contract shall be enforceable.


Revision: 29-Apr-2019



Terms and Conditions of Sale for Goods & Services for Draeger Australia Pty. Ltd.

Terms and Conditions for Rental for Draeger Australia Pty. Ltd.


In these Terms and Conditions, “Dräger” means Draeger Australia Pty Ltd ACN 098 885 539 or any related corporation. The “Lessee” means the person, firm, corporation, government or semi government authority renting equipment and/or services and includes its employees, contractors and agents.

1 Scope
1.1 These Standard Rental Terms and Conditions ("SRTC") apply to the rental of equipment described in further detail in the agreed quote ("Rented Equipment") by Dräger to the Lessee.
1.2 This SRTC and the agreed quote constitute the entire agreement between Dräger and the Lessee except where Dräger and the Lessee expressly agree in writing to incorporate other terms.
1.3 Dräger reserves the right to decline to rent or lease any Rented Equipment.

2 Delivery and Terms of Use
2.1 Transport costs for delivery of the Rented Equipment will be billed by Dräger separately and are not included in rent payments.
2.2 The Lessee shall unpack the Rented Equipment as soon as practicable upon its arrival in order to inspect for transport damage. In the event of transport damage, Dräger is to be notified as soon as practicable in order to safeguard any damages claims that may be pursued by Dräger against the carrier (postal service, rail service, Freight Company, etc.).
2.3 The Lessee will advise, in writing, the location (and any changes to the location) of the Rented Equipment if this differs from the delivery location specified in the agreed quote.
2.4 Dräger reserves the right to inspect the Rented Equipment at the Lessee’s premises, at any time during business hours provided that reasonable notice has been provided.
2.5 When using the Rented Equipment, the Lessee shall follow the operating instructions and comply with the applicable statutory and regulatory provisions, as well as the applicable workers' compensation scheme regulations.
2.6 If the Rented Equipment is contaminated with hazardous substances, the Lessee must promptly notify Dräger in writing providing, amongst any other relevant information, full details of the contamination and hazardous material. At Dräger’s discretion the Rented Equipment will either be professionally decontaminated or disposed of. If the contamination is caused or contributed to by the Lessee, the Lessee will bear the costs of appropriate professional decontamination or the cost of disposal and the replacement of the Contaminated Rented Equipment based on the annual published list price.
2.7 The use of the Rented Equipment outside Australia is only allowed after prior consultation with Dräger and permission is received in writing.
2.8 The Rented Equipment may only be transferred to third parties – e.g. by way of a sub-lease – with Dräger's prior written permission.

3 Term of Lease
3.1 The lease begins on the date of delivery of the Rented Equipment and ends upon expiry of the agreed Lease Term or on the agreed Return Date, as specified in the agreed quote. Where no Lease Term or Return Date has been expressly agreed, a minimum term of seven days shall apply.
3.2 The Lessee shall return the Rented Equipment to Dräger in good condition (subject to fair wear and tear) at the end of the Lease Term. Dräger expressly reserves the right to charge the Lessee for any costs incurred by Dräger as a result of the Rented Equipment having been improperly used or returned in a condition which does not comply with this clause.
3.3 The Lease Term may be extended by written agreement of the parties.

4 Rental Payments
4.1 The rental payments for the Rented Equipment and accessories and any additional services, e.g. courier costs, are set forth in the agreed quote.
For approved account holders, rental payments are due in full within 30 days of date of invoice. If the Lease Term is longer than 30 days, Dräger is entitled, but not obliged, to issue interim invoices.
For non-account holders, rental payments will be invoiced prior to delivery of the Rented Equipment.
4.2 If the Rented Equipment or part thereof is returned late, additional rental charges will apply at the same rate as the existing rental.
4.3 Where the amount of rental payments is not specifically agreed in any lease extension, the previously agreed amount of rent payments will continue to apply.
4.4 If the Rented Equipment or part thereof is returned earlier than agreed, rent payments will be calculated based on the actual term of the lease and any additional rental payments will not be more than the existing rental amounts. A fee totalling 15% of the agreed rental payments for the Rented Equipment will be charged to the Lessee if the Lessee cancels or terminates the Lease prior to the Rented Equipment being delivered.
5 Servicing and Maintenance of the Rented Equipment
5.1 The Lessee bears all of the costs of operating the Rented Equipment.
5.2 The Lessee shall treat the Rented Equipment with care, and when operating the Rented Equipment must carefully observe the operating instructions provided by Dräger or the manufacturer.
5.3 If the Rented Equipment is returned to Dräger in an unreasonably untidy state, the Lessee will be charged the necessary cleaning costs for each piece of Rented Equipment affected.
5.4 Only Dräger is authorised to carry out maintenance and repair work going beyond the calibrating, functionality testing and inspections that become necessary as a result of proper use of the Rented Equipment ("Servicing and Maintenance").
5.5 The Lessee is required to deliver Rented Equipment to Dräger for the necessary Servicing and Maintenance. Dräger will provide the Lessee with substitute equipment while Servicing and Maintenance is being carried out.
5.6 The Lessee bears the costs of Servicing and Maintenance during the Lease Term, except where the Rented Equipment is defective and the defect has not been caused by any wrongful or negligent act or omission of the Lessee.
5.7 The Lessee bears the costs of any repairs to the Rented Equipment that need to be carried out after the Lease Term arising from use during the Lease Term, unless otherwise agreed by the parties.
5.8 The Lessee shall keep the Rented Equipment free and clear of any encumbrances or security interests and defend intervening action by third parties, e.g. compulsory execution proceedings. The Lessee shall notify Dräger without undue delay of any such intervening action and provide it with the relevant documents. The Lessee will pay all fees, contributions and other charges levied during the Lease Term as a result of the lease, possession or use of the Rented Equipment, or on the basis of the Lessee's capacity as registered operator of the Rented Equipment.
5.9 The Lessee may not combine the Rented Equipment with other equipment in such a way that it becomes an essential component of such other equipment. If the Rented Equipment is affixed to any land or building, this may only be done for a temporary purpose and with the intention of being detached again at the end of the lease. If the Lessee itself is not the owner of the relevant land or building, it notify the owner that the Rented Equipment is being affixed or installed for a temporary purpose only.
5.10 As the Rented Equipment is in the Lessee's possession and therefore within the Lessee's area of responsibility, the Lessee bears the risk of any loss or damage to the Rented Equipment. If the Rented Equipment is lost or destroyed, the Lessee shall pay the replacement value based on the annual published list price.

6 End of lease
6.1 The Rented Equipment is to be returned to Dräger immediately on the end of the Lease Term to the address nominated by Dräger.
6.2 The Lessee shall at its own risk and expense, return the Rented Equipment, including any accessories and operating instructions.
6.3 The Lessee must ensure that on its return, the Rented Equipment is appropriately packaged and handled; the Lessee bears any repair or replacement costs incurred by Dräger as a result of transport damage.

7 Termination
7.1 Dräger is entitled to immediately terminate the lease of the Rented Equipment if any of the following events occur:
a. the Lessee defaults in paying any Rental Payment when due;
b. the Lessee breaches any material terms of an insurance policy in relation to the Rented Equipment;
c. the Lessee submits any of false statements or omissions in relation to this SRTC;
d. an application is made or resolution is passed to wind-up the Lessee, the Lessee fails to pay its debts as they fall due, the Lessee becomes a 'company under external administration' or an ‘insolvent under administration’ within the meaning of these terms in the Corporations Act 2001 (Cth) or otherwise becomes insolvent;
e. a receiver or other controller is appointed to the Lessee or any part of the Lessee’s assets or an administrator is appointed to the Lessee;
f. the insurance policy over the Rented Equipment is refused or cancelled or materially adversely modified;
g. the Lessee commits any act which may cause or permit or threatens the safety, condition or safe keeping of the Rented Equipment;
h. the Lessee fails to observe any material term of this SRTC and fails to rectify such failure within 14 days of written notice from Dräger;
i. an event of default (however described) occurs under any other agreement or arrangement between the Lessee and Dräger or between any related body corporate of the Lessee and Dräger;
j. the Lessee ceases to carry on business or ownership or control materially changes; or
k. if the Lessee’s conduct indicates that the Lessee no longer intends to be bound by this SRTC.
7.2 If Dräger terminates this SRTC under clause 7.1, the Lessee must:
a. on receiving notice of termination, deliver the Rented Equipment back to Dräger in accordance with Clause 6 without undue delay, else Dräger has the rights to repossess the Rented Equipment. The Lessee is solely responsible for the costs associated with returning the Rented Equipment;
b. pay to Dräger on demand the “Early Termination Amount”, being the sum of:
i. if less than 30 days left on Lease Term – full payment is due;
ii. if 30 days or more are left on the Lease Term, then payment for the month is due with the cancellation fee as listed in the agreed quote,
iii. any additional reasonable costs incurred due to the early termination such as cost of repossession;

If the Lessee wishes to terminate this SRTC before the Lease Term expires, the Lessee can apply to Dräger in writing. Dräger will reasonably consider the application and decide at its discretion, acting reasonably, whether or not to allow it. The Early Termination Amount as listed in 7.2(b) will apply. The Lessee's liability under this clause does not limit any other rights at common law that Dräger may have against the Lessee for breach of this SRTC.

7.3 The Lessee is entitled to immediately terminate the lease of the Rented Equipment if any of the following events occur:
a. an application is made or resolution is passed to wind-up Dräger, Dräger fails to pay its debts as they fall due, Dräger becomes a 'company under external administration' or ‘insolvent under administration’ within the meaning of these terms in the Corporations Act 2001 (Cth) or otherwise becomes insolvent;
b. a receiver or other controller is appointed to Dräger or any part of Dräger's assets or an administrator is appointed to Dräger;
c. Dräger fails to observe any material term of this SRTC and fails to rectify such failure within 14 days of written notice from the Lessee;
d. Dräger ceases to carry on business or ownership or control materially changes; or
e. Dräger’s conduct indicates that it no longer intends to be bound by this SRTC.

8 Liability, Indemnity and Release
8.1 The Lessee is liable for the risks associated with the Rented Equipment and will insure itself against such risks accordingly.
8.2 All insurance payments (except for third party liability insurance) are to be exclusively used for the purpose of repairing or replacing the damaged Rented Equipment.
8.3 The Lessee shall satisfy all third party claims associated with salvage and maintenance operations as and when they fall due.
8.4 The Lessee is liable for damage to and theft of the Rented Equipment and unconditionally and irrevocably indemnifies Dräger and its officers, agents and employees from and against all loss (including, without limitation, any loss of Lease Payments, residual or other revenue or capital loss or any loss of bargain or profit), damages, claims, liabilities, costs, taxes, charges and expenses (including legal expenses on a full indemnity basis) of whatever kind or nature, arising directly or indirectly from, or in respect of:
a. the delivery, installation, use or change of use, location, relocation, condition, operation, seizure, forfeiture or other confiscation of the Rented Equipment, or the loss, destruction, theft or damage of the Rented Equipment howsoever caused including loss of value resulting from insufficient, inadequate or faulty repair;
b. any claim or demand made by any third party in relation to the Rented Equipment or its possession, operation or use;
c. any damage to property or death of, or injury to, any person suffered or sustained in connection with the Rented Equipment or its possession, operation or use;
d. any failure by the Lessee to observe the Lessee's obligations under this SRTC or arising from any untrue or misleading representation, warranty or statement (including on tax matters) made by the Lessee in, or in connection with, this SRTC;
e. any reasonable steps taken by Dräger to administer, exercise, enforce or preserve any of Dräger’s rights under this SRTC;
f. any loss, reduction or disallowance of any depreciation allowance or of any tax deduction or rebate of any income or other tax upon which Dräger has relied in calculating the amount payable; or
g. the early termination of the Lease Term (to the extent not otherwise recoverable under this SRTC).
8.5 The Lessee will release Dräger, to the full extent permitted by law, from all claims and demands of every kind arising out of the delivery, installation, location, possession, operation or use of the Rented Equipment, including any liability which may arise in respect of any accident or damage to property or death of, or injury to, any person or arising out of any reasonable steps taken by Dräger’s to exercise, enforce or preserve Dräger’s rights under or in connection with this SRTC.
8.6 The indemnities and releases set out in this SRTC continue in full force and effect notwithstanding the termination (however occurring) of this SRTC.

9 General
9.1 Any notice or demand to be given by a party under this SRTC may be served on any other party by being left at or sent by pre-paid mail or transmitted by facsimile to that other party’s address set out in the agreed quote or otherwise as notified in writing by that other party for the purposes of this SRTC. The notice or demand will be treated as having been given and received:
a. if delivered, on the day of delivery;
b. if sent by pre-paid mail, on the next delivery day; and
c. if transmitted by facsimile, on the day of transmission if a Business Day, or otherwise on the next Business Day.
9.2 No waiver by a party in relation to any breach of this SRTC by the other party will be deemed a waiver of any continuing or recurring breach.
9.3 All collateral agreements, reservations of title, amendments and other agreements pertaining to this SRTC must be in writing in order to be valid. Where a term of the lease is or becomes void, this shall not affect the validity of the other terms. If any provision or part of a provision of this SRTC is held or found to be void, invalid or otherwise unenforceable, it will be deemed to be severed to the extent that it is void or to the extent of voidability, invalidity or unenforceability, but the remainder of that provision will remain in full force and effect.
9.4 The place of jurisdiction is Victoria Australia.
9.5 This SRTC is governed by Victorian law, subject to the exclusion of the UN Convention of Contracts for the International Sale of Goods and conflict of law provisions.


Revision: 29-Apr-2019





Terms and Conditions for Rental for Draeger Australia Pty. Ltd.

Terms and Conditions for Medical Service for Draeger Australia Pty. Ltd.

In these terms and conditions Dräger means Draeger Australia Pty. Ltd. ACN 098 885 539 or any related corporation or legal entity. The Customer means the person, firm, corporation, government or semi-government authority purchasing Services from Dräger. Service means any repair or maintenance activities.

1. General 

These terms and conditions shall apply to all performances of Dräger with the delivery of Service, supply of spare parts or related events.

Dräger is not bound by any terms or conditions contained in any purchase order, purchase form or other similar document of the Customer delivered to Dräger with respect to the purchase of or order for Service which are at variance with, in derogation from or additional to these general terms and conditions. The Customer is bound by these Service terms and conditions notwithstanding anything to the contrary in such purchase order, purchase form or other similar document.

2. Contract 

These terms and conditions shall prevail over any other terms and conditions that may be inconsistent or contrary to those contained herein.

These terms and conditions shall apply to the exclusion of all other agreements and prior representations, unless subsequently evidenced in writing by Dräger and the Customer, and, together with each invoice and any supplementary agreement or other agreed document that references or is ancillary to these terms and conditions, shall form part to the Services Agreement between Dräger and the Customer.

3. Provision of Service 

3.1. Resources
Dräger will provide Service Engineers who are deemed competent to perform the tasks for the Service quoted/agreed to.

Service functions will be carried out between 08:30 – 17:00, Monday – Friday excluding public holidays. 

Where Service functions are required outside of the contracted hours, or outside of the agreement/quote, such Service cannot be guaranteed. If it can be provided, it will be at an hourly rate in accordance with Dräger’s current price list.

3.2. Compliance
Equipment covered by these terms and conditions will be maintained by Dräger I in accordance to the manufacturer’s specification with due regard to requirements and guidelines published by the manufacturer, Australian/New Zealand Standards, Therapeutic Goods Administration, State and Federal government bodies and guidelines set forth by the Standard for Australian Healthcare Facilities (ACHS). 

3.3. Accessibility
It is the Customer’s responsibility to ensure that the equipment to be serviced is made accessible during the agreed contracted hours and for adequate time so Dräger is able to fulfil its obligations.

Should equipment not be accessible at the agreed scheduled time of servicing, Dräger, at its discretion, may charge the Customer a service fee which is a genuine pre estimate of Dräger's relevant losses.

Dräger’s repair obligation shall be suspended during any period in which Dräger does not have access to equipment as scheduled for any reason not within Dräger’s reasonable control. Dräger shall not be liable for the Customer’s equipment being out of service or any consequences or issues arising from this. 

3.4. Validity of Maintenance Training
At Dräger’s sole discretion, a company may be approved by Draeger to operate as an Authorised Service Agent. In this situation, service personnel will need to successfully complete maintenance training and any refreshers as required. 

Maintenance certification for individuals is only valid whilst in the employment of the Authorised Service Agent or company in which they received the training. Individuals are not permitted to undertake service work with a third party or on their own. 

3.5. Replacement Parts, Spare Parts and Wear and Tear Items
Where the maintenance option in the Service Agreement includes a fixed sum for provision of spare parts, this will include parts required to render the equipment operational to manufacturer standards. Consumable and operator replaceable parts are not included and will be charged separately.

Consumable and operator replaceable items include, but not limited to, flow sensors, cables, O2 fuel cells, filters, user exchangeable batteries, patient and supply hose.

3.6. Exclusions
i. Where the maintenance option in the Service Agreement is selected, the following exclusions apply: Maintenance of accessories and attachments or other devices external to the equipment;
ii. Repair of damage resulting from malicious acts, vandalism, any abnormality or failure of electrical supply, accident, transportation, War, Acts of God, including lightning, explosion, water damage (including from damaged pipes, fire sprinklers and the like), neglect or misuse, or any other cause beyond the reasonable control of Dräger;
iii. Failure to provide the appropriate operational environment for the equipment. This would include but is not limited to incorrect operational line voltage, unsuitable temperature and humidity, failure to observe manufacturer recommendations on cleaning and sterilising as detailed in the operators manual supplied with the equipment;
iv. Accessories or devices not described in, these terms and conditions or the Service Agreement; and
v. Service required as a result of modifications and/or system changes not endorsed by Dräger. 

4. Variations to Service Agreement 

In the event the Customer requests any changes to these terms and conditions and/or the quote provided by Draeger and such request is made by the Customer either at the time of placing the order or thereafter, any such change will only be accepted at Dräger’s sole discretion. Such changes will only take effect when agreed in writing by Dräger and which may result in a price variation.

In the case where Dräger needs to alter these terms and conditions or the Service Agreement, the Customer will be notified of any such occurrence with 60 day notice.

5. Pricing 

All quoted prices are exclusive of GST. 

The price for Services provided shall be as quoted in writing by Dräger. If a price is not quoted, then the price will be in accordance with Dräger’s current price list. Verbal quotations are subject to written confirmation. 

6. Payment Terms 

Payment is to be made to Dräger for Services within thirty (30) days from the date of invoice. Any credit card payments will incur a credit card surcharge fee. 

Fees payable for the Services provided are to be paid in advance on or prior to the commencement date of the agreement.

If the Customer fails to comply with the terms of payment then:
i. The Customer agrees that it will pay Dräger a late premium charge amounting to two (2) per centum per month on all monies from time to time in respect of goods and/or Services including all charges from time to time owing by the Customer.
ii The Customer shall be liable for all costs including GST relating to any legal action taken by the Dräger to recover moneys due from the Customer, these costs including GST will be payable by the Customer to the Dräger on demand; and
iii. Dräger reserves the right to discontinue or suspend any future Service to the Customer. 

7. Cancellation 

i. The Customer may terminate the supply of Services at no charge provided written notice is received by Draeger no later than 1 week before the commencement date of the Services. After this date, Draeger is entitled to charge the Customer for any reasonable expenses incurred by Draeger for the provision of Services. 

ii. Subject to (i), either party can terminate these terms and conditions on 90 day written notice and Dräger is entitled to charge the Customer for any reasonable expenses incurred or work undertaken pursuant to these terms and conditions since the commencement date. 

iii. On cancellation of these terms and conditions pursuant to this clause 7, any amounts in credit will be refunded to the Customer. 

8. Intellectual Property 

"Intellectual Property Rights" means all intellectual property rights including all course material, copyright, patents, registered and unregistered trademarks, trade secrets and know-how, and all other intellectual property rights resulting from intellectual activity. 

Dräger owns all Intellectual Property Rights in anything which is undertaken during the provision of Services including, but not limited to, all service documents and presentations which may be provided in training or in any other circumstances. 

9. Confidentiality 

The party ("Receiving Party") to whom Confidential Information is disclosed by another party ("Disclosing Party") must not disclose Confidential Information to any person without first obtaining the disclosing party's written consent. 

The Receiving Party may disclose Confidential Information if:
i. it is legally required to do so;
ii. if the Confidential Information is needed for the performance of duties or directly related to the Service being delivered; and
iii. the Receiving Party first notifies the proposed disclosure to the Disclosing Party and receives consent to do so. 

The Receiving Party must declare the confidential nature of the Confidential Information and require the person receiving this to treat it confidentially.

It is a condition of any permitted disclosure that the Receiving Party must notify the Disclosing Party promptly if the Receiving Party becomes aware of any unauthorised disclosure by a third party. The Receiving Party must give the disclosing party all assistance reasonably required by that party in connection with any proceedings which it may institute against any persons for the disclosure. 

10. Insurances 

For the term of provision of the Services, the Customer must effect and maintain with a reputable insurer, the following insurance policies:
i. Public Liability
ii. Plant and Equipment; and
iii. Worker’s Compensation. 

The Customer acknowledges and agrees that it is the Customer’s responsibility to assess and consider the risk and scope of insurances to ensure that Services provided delivered on the Customer's site are undertaken with full coverage.

11. Warranties 

Dräger warrants that the goods sold and Services delivered are free from defective materials and workmanship.

In the event of equipment failure arising during the warranty period, Dräger will repair, or at its option replace or credit (at its discretion) those of the goods which, upon examination are found by Dräger to be defective in workmanship and/or materials. 

The warranty period for Service is 12 months on parts and labour from the date of Service. Any goods requiring repair, maintains its original warranty period but the parts and labour will have the Service warranty period.

The warranties apply if:
i. Dräger product is used, maintained and inspected as outlined in the manufacturer’s instruction for use manual or other information sheets as supplied by Dräger.
ii. the original purchaser or end-user’s obligation to have all repairs to the Dräger product and/or replacement of parts carried out promptly; and
iii. All corrective maintenance must be performed by Dräger authorised personnel. 

The warranties do not apply where there is/are:
i. failure to comply with the all applicable use, maintenance and training requirements, including but not limited to exposure to certain chemicals, improper decontamination, excessive heat, misuse, abuse, misapplication, improper installation, improper operation, negligence, accidental damage or normal wear and tear.
ii. any unauthorised repairs, alterations, modifications or adjustments to the items or its components;
iii. the defect becomes apparent more than 12 months from date of Service;
iv. the goods have not been used or stored in accordance with instructions issued by Dräger;
v. the Customer fails to notify Dräger of the claim under this clause within fourteen (14) days of the defect becoming apparent and to return the goods to Dräger on its request to do so;
vi. the indicated shelf life of the goods has expired. 

12. Liability 

12.1 In any event Dräger limits its liability for breach of condition or warranty to either of the following (at Draeger's election):
12.1.2.1 the supplying of the Services again; or
12.1.2.2 the payment of the cost of having the Services supplied again. 

Dräger will not be liable for any loss, injury, expense or damage to the Customer or any person to whom the Service is delivered on the part of Dräger, its suppliers, servants, agents, successors or assigns. 

12.2 The warranties set out above shall be additional to any non-executable warranties to which the Customer may be entitled pursuant to any statute. 

13. Indemnity

To the full extent permitted by law, the Customer is liable in respect of, and agrees to indemnify and at all times hereafter keep indemnified and hold Dräger and its officers, employees and agents and each of them harmless, against any claim, loss or expense (including a claim, loss or expense ar ising out of personal injury or death or damage to property) which is paid, suffered, incurred or is liable for (including legal costs on a solicitor and client basis) (together “the loss”) as a result of any unlawful, negligent, reckless or deliberately w rongful act or omission of the Customer (or its employees, agents, subcontractors or the subcontractors employees) in the performance of the equipment on which the Service is performed. The Customer agrees that this indemnity survives termination of these terms and conditions.

The Customer’s liability in respect of, and indemnity given in, this clause will be reduced proportionally to the extent that any unlawful, negligent, or deliberately wrongful act or omission of Dräger, its officers, employees or agents caused or directly contributed to the loss.

14. Fit for Purpose 

The Customer shall not rely upon Dräger’s expertise or judgement as to fitness or suitability of use for which the Customer may require the goods and or Service. 

15. Governing Law and Jurisdiction 

These terms and conditions and the Service Agreement are governed thereby shall be governed by and construed in accordance with the laws from time to time, of the State of Victoria. 

16. Force Majeure 

To the extent permitted by law, the Customer releases Dräger from all and any liability for and in relation to, or occurring out of, any failure or transaction in performance of its obligation hereunder due in part or in whole to any cause whatsoever beyond Dräger’s reasonable control. 

17. Waiver 

Failure by Dräger to insist upon strict performance by the Customer of any terms and conditions contained herein shall not be taken to be a waiver thereof or of any rights of Dräger in relation thereto and in any event shall not be taken to be a waiver of the same terms and conditions on any subsequent occasion and shall not discharge the Customer from any of its obligations pursuant to these terms and conditions. 

18. Notices 

All notices on accounts shall be in writing and may be hand delivered or mailed postage pre-paid addressed to the postal address of either Dräger or the Customer as notified to the other from time to time in writing.

Any such notice or demand or account shall be deemed to have been received five (5) business days after dispatch if sent by mail, or the next business day if delivered by hand or facsimile transmission or email. 

19. Severance 

If at any time a provision of these Terms and Conditions for Service is, or becomes, illegal, invalid or unenforceable in any respect under the laws of Australia, that will not affect or impair the legality, validity or enforceability of any other provisions of these terms and conditions. 

20. Voidability of Terms and Conditions 

The Customer acknowledges that these terms and conditions are subject to any rights and obligations arising between the parties pursuant to any legislation or by implication of a law and specifically acknowledge that these terms and conditions are not intended and will not operate to override any rights and obligations created by the Australian Consumer Law as amended. To the extent that any term or condition is void, voidable or repugnant to the provisions of that Act or any other Act of the State of Victoria, or any other applicable legislation of the Commonwealth of Australia then these terms and conditions herein shall be read as if that term or condition were deleted and the balance of these terms and conditions shall be enforceable.


Revision: 23-May-2019

Terms and Conditions for Medical Service for Draeger Australia Pty. Ltd.

Terms and Conditions of Purchase for Draeger Australia Pty. Ltd.

1. Application
1.1 These General Terms and Conditions of Purchase ("TCP") shall apply to the purchase of goods ("Goods") and/or work performed and/or services ("Services") by Draeger Australia Pty Ltd (“Draeger”) from a supplier ("Supplier'') and shall form an integral component of any enquiries, offers, orders, contracts and agreements relating to such purchase.
1.2 Any deviating terms and conditions of the Supplier shall not apply unless expressly agreed to such terms in writing and the same has been signed by Draeger .
1.3 These TCP shall apply provided that Draeger and the Supplier have not expressly entered into an alternative signed written agreement.
1.4 In the event of any inconsistencies between the terms of an alternative signed written agreement expressly consented to and signed by Draeger and these TCP, then the interpretation in that alternative agreement shall prevail.
1.5 There shall be no variation to the TCP unless expressly agreed to in writing and signed by Draeger.

2. Offers
2.1 The Supplier shall be bound by its offer for a period of six months from receipt of the offer by Draeger.
2.2 Any offer by the Supplier must be accepted by Draeger in writing either in the format of a purchase order or in any other written format acceptable to Draeger (“Purchase Orders”).
2.3 All Purchase Orders issued by Draeger shall be subject to these TCP.

3 . Goods and Services specification
3.1 The basis for the ordering of Goods and Services shall be the item numbers, revision indices and/or material specifications of Draeger, which the Supplier shall use in all delivery papers and correspondence.
3.2 The Supplier shall request Draeger without undue delay for clarification in the event of unclear item numbers and/or material specifications or instructions.
3.3 It shall at all times remain the responsibility of the Supplier to clarify any Goods or Services specification provided by Draeger.

4 . Modifications
4.1 Draeger may from time to time and without notice modify specifications (e.g. drawings, packaging), dates and delivery destinations. The Supplier shall implement such modifications within a reasonable period.
4.2 In the event of force majeure (in particular, labour disputes or other contingencies beyond Draeger's control), Draeger may suspend or cancel its Purchase Order for the Goods and Services.
4.3 Modifications to the Supplier's Goods or Services by the Supplier that may affect the form, fit, function, or certification must be notified to Draeger no less than four months prior to the desired commencement date. Modifications shall not be implemented without Draeger's written consent.

5. Prices & Payment
5.1 Prices shown in the Purchase Order shall prevail according to the last quoted price provided by the Supplier, unless otherwise agreed in writing and signed by Draeger.
5.2 The Supplier hereby agrees to afford to Draeger any general reduction or discount in prices given to their other Customers and Supplier shall be required to provide proof thereof to Draeger.
5.3 Invoices, quoting Draeger order number and the Supplier's delivery note number, shall be sent as soon as practicable after the dispatch of Goods or completion of Services.
5.4 Payments shall be due and payable pursuant to f o r m a l acceptance by Draeger. Payment will not be made earlier than the calendar month following the month during which the Goods or Services are delivered, unless on cash or advance payment terms.
5.5 Payments by Draeger do not constitute a confirmation that the Goods or Services conform to the specifications or are free of defects. Draeger shall be entitled to reject Goods or Services after delivery and payment thereof.
5.6 Goods shall be delivered DDP (and in accordance with the latest version of the ICC Incoterms 2010) with Draeger's registered office being the delivery destination, unless Draeger specified a different delivery destination. Agreed prices shall be fixed prices and shall cover all costs to be borne by the Supplier according to DDP.
5.7 The compensation for Services shall cover any and all costs arising in conjunction with the relevant Service (e.g. travel costs, expenses).

6 . Delivery & Contractual penalty
6.1 The Supplier shall acknowledge the Purchase Orders issued by Draeger, such as issuing an official order confirmation or returning a copy of the Purchase Order with acknowledgement stamp and signature with date. No amendments or other terms and conditions of sale of the Supplier will be accepted by Draeger other than the TCP even if inadvertently accepted by Draeger in a Supplier order confirmation or other document.
6.2 The Supplier shall provide a copy of delivery note upon delivery and Goods should be appropriately marked to ensure that they are easily identified.
6.3 If delivery is not made on the date or within the period specified in the Purchase Order, Draeger reserves the right to:
a) cancel the whole or any part of the Purchase Order without compensation, but such cancellation shall be without prejudice to the rights of Draeger under conditions 12 and 13 below;
b) apply late delivery charge of 0.5% per day (up to maximum 10% of the Purchase Order value).
6.4 Any Goods delivered before the time specified for delivery may be accepted or rejected at the sole discretion of Draeger.
6.5 Should Draeger's business be stopped, interrupted or restricted by riot, lock-out, strike, fire, explosion, act of God, or any other cause beyond Draeger's control, Draeger shall be entitled to defer the date or dates of delivery and payment until the stoppage, interruption or restriction be ceased. The Supplier shall hold the Goods in safe custody and ensure that they're in good condition till the actual delivery.
6.6 The cost of carriage and packaging and of all packages or other containers is at the expense of the Supplier unless otherwise specified in the Purchase Order.

7. Inspection and Rejection
7.1 All Goods will be checked and inspected by Draeger and only the quantity received and officially confirmed as satisfactory by Draeger will be accepted.
7.2 Draeger reserves the right to request replacement for rejected Goods or repeat of Services or to claim credit for same, all at Draeger’s option.
7.4 Goods rejected by Draeger and returned will be credited to Draeger by the Supplier on dispatch.
7.5 Draeger's duly authorized representatives shall have access at all reasonable times to the Supplier's facilities and shall be allowed to inspect and examine the Goods to be supplied during manufacture. Where possible, prior notice will be given of Draeger's intention to send a representative.
7.6 Where Services constitute the whole or part of the Purchase Order such Services will be subject to inspection by Draeger. No payment will become due until Draeger has inspected the Services and confirmed that the Services have been satisfactorily performed.

8 . Warranty
8.1 The warranty period shall commence on the date of receipt of the Goods by Draeger or performance of the Services by the Supplier. The length of the warranty period shall be twelve (12) months or such period as agreed in writing with Draeger.
8.2 When during the Warranty Period, any Goods or Services found to be:
a) Defective in design, materials or workmanship; or
b) Not in accordance with Purchase Order or any specifications incorporated therein by reference or otherwise; or
c) Having been installed, operated, stored and maintained in accordance with the written instructions of the Supplier, fails to function properly or fails to meet any performance guarantees set forth in the Purchase Order or specifications published by the Supplier, then unless it is shown that the foregoing is caused solely by improper use or mishandling by Draeger, the Supplier shall, at its own expense (including transportation costs), replace, rectify or completely repair the damaged or defective Goods or Services.
8.3 The Supplier must, to the maximum extent possible obtain for the benefit of Draeger any manufacturer’s warranties applicable to the Goods and Services.
8.4 These TCP are deemed to include all consumer guarantees that Draeger would be entitled to as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation (Australian Consumer Law) as if Draeger were a ‘consumer’ within section 3 of the Australian Consumer Law. The consumer guarantees are incorporated into these TCP as warranties given by the Supplier to Draeger.
8.5 The warranties referred to above are in addition to any express warranty provided by the Supplier or the manufacturer, including a warranty against defects.

9 . Title & Risk
9.1 All Goods shall remain at the Supplier's risk until Draeger issues formal written acceptance (which shall include delivery and acknowledgement of delivery or in the case where installation and commissioning is required, then upon final written acceptance by Draeger of installation and commission) by Draeger.
9.2 Title passes to Draeger on the earlier of payment or the performance or delivery in accordance with the Purchase Order (as the case requires).

10. Drawing & Samples
10.1 Any drawings and samples by Draeger in connection with the Purchase Order must be returned when called for in good condition, carriage or postage paid, by the Supplier to Draeger. Drawings so supplied are confidential and must be kept at the Supplier's works and used only for the purpose of the Purchase Order, and must not be copied or communicated to any other party without Draeger's express sanction in writing.

11. Tools
11.1 Jigs, tools or patterns made specially for the execution of the Purchase Order or supplied by Draeger to the Supplier for the purpose of the Purchase Order must not be used for any other purpose or by any person other than the Supplier without Draeger's prior written consent. All such jigs, tools and patterns shall be kept in workmanlike condition by the Supplier (fair wear and tear excepted) and shall be delivered to the order of Draeger carriage paid upon reasonable notice being given. Any Purchase Order including full and part cost tooling will be subjected to Draeger's specific terms and conditions relating thereto.
11.2 Should Draeger pay the Supplier for tools which the Supplier uses for providing the Goods and Services, the Supplier shall transfer ownership of such tools to Draeger, including any accessories, plans , documentation.
11.3 The Supplier shall mark any tools owned by Draeger permanently with "Draeger" and Draeger’s inventory and material number. The tools shall be stored appropriately, protected against any type of damage and maintained in a functional condition. The Supplier shall maintain the tools at its own cost.
11.4 Tools owned by Draeger shall be used only to manufacture Goods for Draeger. The Supplier shall return the tools to Draeger upon first request to this effect.

12. Design Rights
12.1 Insofar as any work to be performed by the Supplier under the Purchase Order may consist of design, all rights in such design shall belong to Draeger and the same shall not be used except for the purpose of the Purchase Order nor copied or communicated to any other person without Draeger' s prior written consent. All drawings and other documents delineating or recording such design shall likewise be Draeger's property and shall be handed over to Draeger immediately upon completion of the Purchase Order unless Draeger expressly authorizes the Supplier in writing to the contrary.
12.2 For Goods or Services manufactured or provided custom-made for Draeger, the Supplier shall transfer to Draeger any and all transferable intellectual property rights, in particular, rights in inventions and works subject to copyright protection. The Supplier shall, upon first request, provide Draeger free of charge with associated documents, models and drawings. The Supplier shall grant Draeger free of charge an unlimited, transferable license in any non-transferable rights. To the extent permitted by law, Draeger may process underlying Goods and Services.
12.3 The Supplier warrants that its Goods and Services shall not infringe any third party industrial property rights. Should third party industrial property rights be infringed, the Supplier shall remedy the infringement of industrial property rights by modifying the Goods or Services, acquiring relevant licenses or in any other manner requested by Draeger. Failing which, Draeger may rescind the Purchase Order. Other rights on the part of Draeger shall remain unaffected.
12.4 The Supplier may not use trademarks and company designations of Draeger without prior written consent.

13. Indemnity
13.1 The Supplier is solely responsible for and indemnifies and holds Draeger harmless against all suits, proceedings or demands, damages, actions, losses, costs or expenses of any kind that Draeger suffers, sustains or incurs arising from any one or more of the following:
(a) a breach by the Supplier of any laws in operation in the Territory at the time that the Supplier accepts these TCP;
(b) a breach by the Supplier of any of the Supplier’s obligations (including any warranty) under this Purchase Order; and
(c) any negligent act or omission or willful misconduct by the Supplier arising out of the performance of the Purchase Order.

14. Packing
14.1 The Goods shall be packed in a manner which is suitable for long distance transportation and sold protected against dampness, moisture, shock, rust and rough handling. The Seller shall be liable for any damage to the Goods on account of improper packing and for any rust or other damage attributable to inadequate or improper protective measures taken by the Supplier.

15. Shipping Mark
15.1 On the surface of each package, the following shipping marks shall be stenciled legibly in fadeless paint in English: a: Draeger b: Order Number; c: Part Number; d: Package Number; e: Measurement; f: Gross Weight; g : Net Weight; h: Caution Marks (if needed).

16. Confidentiality
16.1The Supplier may not notify third parties of the contractual relationship with Draeger or any details relating to this Purchase Order, unless it is obliged to do so by public authorities or operation of law.
16.2 Supplier undertakes to use Confidential Information only for the purpose of fulfilling its contractual obligations to Draeger, and to treat such as strictly confidential and not to pass on such to any third party without the prior written approval of Draeger.
16.3 For the purposes of the TCP, “Confidential Information” shall mean any and all information and data of a confidential nature belonging to, or possessed by, a Party or its Affiliates Companies, including, but not limited to, proprietary, technical, research, development, inventions, manufacture, purchasing, engineering, marketing, sales, operating, performance, cost and know-how, whether or not patentable, business and process information, computer programming techniques, and all record-bearing media containing or disclosing such information and techniques, patents, trademarks, trade secrets and copyrightable materials, which is disclosed in connection with the Purpose and which is identified as confidential. Confidential Information shall include any proprietary or confidential information disclosed to the Receiving Party by or on behalf of the Disclosing Party, either directly or indirectly, in writing, orally or by drawings or inspection of documents or other tangible property, and shall expressly include any samples, models or prototypes, or parts thereof.

17. Breach And Cancellation
17.1 In the event of the Supplier's failure to comply with the terms of the Purchase Order, Draeger reserves the right to cancel the Purchase Order at any time by giving notice to the Supplier in writing. In the event of a satisfactory part completion of the Purchase Order by the Supplier, a fair and reasonable price shall be paid for all work in progress or Goods/ Services supplied at the time of cancellation. Draeger shall not be liable for any consequential loss to the Supplier. 

18. Patents
18.1 The Supplier warrants that the design, construction and quality of the Goods and Services comply in all respects with any relevant Statute, Statutory Rule or Order, or Regulations which may be in force at the time and further that the use or sales of the Goods and Services by Draeger will not infringe any local or foreign patent, trade mark, or registered design. The Supplier undertakes to indemnity Draeger against all any loss, damage, liability, costs or expenses which Draeger may suffer or incur by reason of any breach of the said warranties.

19. Anti-Corruption Code
19.1 The Supplier shall not, directly or indirectly, make any payment or gift or favor or advantage or promise of offering to any officer, manager or employee of a supranational, governmental or nongovernmental organization or institution or of a company for purposes of influencing any act or decision by such officer, manager or employee in order to generate or secure an improper advantage in relation to the business with Draeger.
19.2 The Supplier shall comply with all anti-corruption, anti-bribery and anti-money laundering laws and policies applicable in the territory in which it operates and will also comply with global anti corruption legislation to the extent that it relates to the Goods and Services being provided by the Supplier. Draeger believes corruption distorts competition, destroys trust with suppliers and the public and ultimately leads to higher costs. Draeger expects that none of its suppliers will ever take part in any corruptive business transaction.
19.3 The Supplier agrees to indemnify and hold harmless Draeger, its employees, customers , assigns, and others as to any claim asserted against Draeger or its employees, customers, assigns or others alleging any liability arising out of any breach by Supplier or any of the representations, obligations and warranties set forth in these TCP, or any negligent or intentional wrongful acts of the Supplier that occur during the term of these TCP. Such liability shall include, but is not limited to, damages (including punitive damages where applicable), costs, fees, and expenses.
19.4 The Supplier understands and accepts that Draeger will take appropriate measures against suppliers not complying with the obligations hereunder. Draeger is entitled to terminate all existing agreements with Supplier with immediate effect once Draeger has sufficient evidence of such violation.

20. Code of Conduct

20.1. The Supplier acknowledges that conducting business in accordance with the highest ethical standards is fundamental to Draeger. As a condition of Draeger purchasing the Goods and Services from the Supplier, the Supplier agrees to adhere to the standards set forth in Draeger's Supplier Code of Conduct, available at https://www.draeger.com/en_aunz/Terms-Conditions/Supplier-Code-Of-Conduct which is hereby incorporated into this TCP by reference (and may be amended (acting reasonably) by Draeger from time to time by notice to the Supplier).

21. Governing Law
21.1 The laws of the state or territory in which Draeger issues this TCP (the Territory) shall apply to this TCP. The Courts of that Territory shall have non-exclusive jurisdiction to decide any matter arising out of this TCP.

22. Insurance
22.1The Supplier must obtain and maintain any insurance that a reasonable and prudent supplier of Goods and Services would obtain in like circumstances to the supply under these TCP. Without limiting the condition in the previous sentence, the Supplier must obtain and maintain all statutorily required workers’ compensation insurance applicable to the performance of the Goods and Services. Upon written request from Draeger, the Supplier must provide evidence of, or certificates of currency with respect to, the insurance policies help by the Supplier that are relevant to the supply of the Goods and/or the Services the subject of the Purchase Order.

23. Assignment, Subcontracting and Proportionate Liability
23.1 The Supplier shall not without the prior written consent of Draeger assign, transfer or sub-contract the manufacture of the Goods or provision of the Services without the express written consent of Draeger. The Supplier may not subcontract the performance of any of the obligations under this TCP unless it obtains the prior written consent of Draeger, which consent may be withheld at Draeger’s discretion. Unless otherwise agreed in writing, the Supplier remains entirely responsible for the performance of all the obligations under this TCP despite any subcontracting of them allowed by Draeger. Part 1F of the Civil Liability Act 2002 (WA) has no operation of the Place is in Western Australia and, to the extent permitted by law, the equivalent provision of the written law in each other state and territory have no operation.

24. Limitation of Liability
24.1 Nothing contained herein shall deem to be construed as a limitation of Suppliers liability.

25. Right to Audit Supplier
25.1 Draeger shall upon reasonable notice to the Supplier be entitled to audit all books and records relating to the supply of Goods and Services by the Supplier.

26. Notices
26.1 Service of any notice or other communication under these TCP must be in writing and sent to the address set out in the front page of the Purchase Order.

27. Severability
27.1 A provision or part of a clause of this TCP that is illegal or unenforceable may be severed from this TCP and the remaining provisions or parts of the provisions of this TCP continue in force.

28. Waiver
28.1 No waiver of any right under this TCP will be binding on a party unless in writing and signed by the party giving that waiver.


Revision: 16-Jun-2021

Terms and Conditions of Purchase for Draeger Australia Pty. Ltd.

Supplier Code of Conduct for Draeger Australia Pty. Ltd.

Draeger New Zealand Ltd.

Terms and Conditions of Sale for Goods & Services for Draeger New Zealand Ltd.

In these terms and conditions "Dräger" means Draeger New Zealand Ltd (Company number 6253409) or any related corporation or legal entity. The Customer means the person, firm, corporation, government or semi-government authority purchasing goods and/or services from Dräger. Goods means such goods and services as Dräger may at its discretion agree to provide to the Customer from time to time.


1. GENERAL TERMS

1.1 These terms and conditions shall apply to the supply of goods and/or services by Dräger to the Customer.

1.2 Dräger is not bound by any terms or conditions contained in any purchase order, purchase form or other similar document of the Customer delivered to Dräger with respect to the purchase of or order for goods, services or otherwise which are at variance with, in derogation from or additional to these general terms and conditions. The Customer is bound by these general terms and conditions notwithstanding anything to the contrary in such purchase order, purchase form or other similar document.


2. THE CONTRACT

2.1 The matters referred to in these terms and conditions constitute a contract between Dräger and the Customer. These terms and conditions shall prevail over any other terms and conditions that may contain terms and conditions that may be inconsistent or contrary to those contained herein.

2.2 These terms and conditions shall apply to the exclusion of all other agreements and prior representations, unless subsequently evidenced in writing by Dräger and the Customer, and, together with each invoice and any supplementary agreement or other agreed document that references or is ancillary to this agreement, shall be the whole of the agreement between Dräger and the Customer.


3. DESCRIPTION OF GOODS

3.1 The description of goods and/or services as stipulated on invoices or order forms is provided by way of identification only and the use of that description shall not constitute a description under any contract of sale by description. Any description of any goods in any brochure, document or other sales literature used by Dräger shall not form part of any agreement between Dräger and the Customer.


4. DESIGN CHANGES

4.1 Dräger shall have no obligations to make alterations in the design and construction of goods previously accepted and delivered even though design changes are incorporated in the goods subsequently being delivered.


5. PRICE VARIATION

5.1 Subject to paragraph 5.2 hereof the price shall be as quoted in writing by Dräger. If a price is not quoted then it shall be in accordance with Dräger’s current price list. Verbal quotations are subject to written confirmation.

5.2 Dräger reserves the right without notice to alter the price of goods and services whether or not a deposit or part payment has been received by Dräger for such goods or service and to invoice the Customer for any such extra amount where the costs of the goods to Dräger has altered due to circumstances beyond its control including but without limiting the generality of the foregoing any variation in Dräger’s exchange rates, GST or other taxes, levies, imposts, duties, premiums, fees or charges however designed and to correct errors and omissions.


6. PAYMENT

6.1 Payment is to be made to Dräger for goods and services within thirty (30) days from the date of invoice.

6.2 If the Customer fails to comply with the terms of payment in paragraph 6.1 hereof then:

6.2.1 the Customer agrees that it will pay Dräger interest from the due date of payment to the date payment is made in full (both before and after judgement) equal to two (2) per centum per month on all monies outstanding including all charges from time to time owing by the Customer.

6.2.2 the Customer shall be liable for all costs including GST relating to any legal action taken by Dräger to recover moneys due from the Customer, these costs including GST will be payable by the Customer to Dräger on demand.

6.2.3 Dräger reserves the right to discontinue or suspend the supply of goods and/or service to the Customer.

6.3 No discount shall be allowed except where otherwise agreed by Dräger in writing.

6.4 Invoices may be issued by Dräger and will be payable by the Customer in respect of every delivery notwithstanding that the balance of the order has not been nor will not be delivered for any reason.


7. APPLICATION FOR A CREDIT ACCOUNT

7.1 The Customer agrees that for the purpose of processing my/our application for commercial trade credit account, the Customer agrees to Dräger receiving from a credit reporting agency a credit report containing personal financial information about them (Privacy Act 1993)

7.2 The Customer agrees that Dräger may give to and seek from other credit providers named in this credit application and any providers that may be named in a credit report issued by a credit reporting agency information about their credit arrangements. The Customer understands that this information may include any information about their credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive under the Privacy Act 1993.

7.3 Where a Customer opens a credit account with Dräger the Customer may be required to nominate referees or guarantors (that shall be acceptable to Dräger) prior to credit being approved by Dräger.

7.4 Dräger reserves the right to withdraw at any time any credit facilities extended to the Customer where payment is not received or where such other acts or omissions of the Customer are objectionable to Dräger.


8. DELIVERY AND RETURN OF GOODS

8.1 Unless Dräger otherwise agrees in writing GST, delivery, carriage insurance, handling, storage and packaging and any other expenses relating to the goods shall be charged to and paid by the Customer.

8.2 In the absence of specific instruction from the Customer, Dräger will select the carrier and make such agreement with the carrier on behalf of the Customer as Dräger in its absolute discretion deems appropriate.

8.3 Dräger will endeavour to deliver the goods (or provide services) within the Customer’s required delivery period, but subject to Clause 8.4 shall not in any event be liable for any loss or damage directly or indirectly sustained from any failure to deliver within such period. Time shall not be the essence of this contract and any delay shall not be the basis of the Customer’s cancellation of this contract.

8.4 Dräger shall not be liable for any loss or damage resulting from any failure to give notice of any delay in delivery.

8.5 Dräger reserves the right to deliver the goods by installments at its absolute discretion and in such circumstances the Customer shall accept delivery of such goods by installments.

8.6 Where in order to deliver or collect goods, Dräger or its carrier enters upon the Customer’s premises the Customer shall provide full and safe access to Dräger or its carrier and shall be liable for and indemnify Dräger and its carrier against the cost of all loss, damage to property and injury to persons, occurring directly or indirectly as a result of the failure by the Customer to ensure the said full and safe access.

8.7 The Customer shall be responsible for providing adequate labour and/or material handling equipment for the loading and unloading of goods at its premises.

8.8 Where Dräger agrees to collect goods from the Customer’s premises the Customer shall ensure that the goods are all available for collection at an easily accessible central point and that they are ready for loading at the time Dräger arrives to collect them.

8.9 The Customer’s return of goods to Dräger for credit requires the prior written approval of Dräger and issuance of a Returned Goods Authorisation Number (RGA).

8.10 Where goods are being returned to Dräger, the Customer shall ensure that they are returned complete, together with all operations manuals and accessories, in a safe condition, having regard to the risk to:-

8.10.1 persons handling them and in their vicinity; and

8.10.2 damage to the goods themselves.

8.11 Claims by the Customer for short, damaged or incorrect deliveries must be made within fourteen (14) days from the date of invoice.

8.12 Dräger will not be liable or responsible for any loss or damage, cost or expense suffered by the Customer resulting directly or indirectly from any failure by Dräger to fulfil any of the terms and conditions herein, including any obligation or liability in respect of any damage to or malfunction of any item supplied, if such failure damage or malfunction is due to any delay or other cause beyond the control of Dräger.

8.13 Where goods are incorrectly ordered by the Customer, supplied and subsequently returned, a restocking fee of fifteen (15) percent of the purchase price of the goods shall be paid together with any delivery fee and GST incurred by Dräger as a result thereof within thirty (30) days from the date of invoice, which the parties agree and acknowledge is a genuine pre-estimate of Dräger's loss.

8.14 No return of goods will be accepted or a credit note issued by Dräger, for any goods and/or services specifically acquired for the Customer.

8.15 If Dräger is of the opinion that goods when returned are otherwise than in the same condition as when they were delivered to the carrier or directly to the Customer a charge equal to the cost necessary to restore the goods to their original condition shall be payable by the Customer upon demand by Dräger.

8.16 If goods are returned to Dräger which Dräger is unable to resell to a third party or resell for the same amount as was sold to the Customer then Dräger may charge the Customer an amount equal to the loss incurred as a result of the Customer returning the goods.


9. OWNERSHIP AND RISK

9.1 Notwithstanding any credit granted to or anything contained in these terms and conditions to the Customer, Dräger shall retain the full legal and beneficial ownership and title in and to all the goods delivered to the Customer by Dräger until the Customer has paid to Dräger the full amount due on all outstanding invoice(s) to Dräger. Until then the Customer will hold and sell the goods as agent for Dräger and the Customer shall store the goods separately and with the interest of Dräger as owner clearly marked on the goods and the area in which they are stored.

9.2 The Customer will ensure that the goods are kept in good and serviceable condition.

9.3 The Customer will secure the goods from risk, damage and theft; and keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the Customer.

9.4 Any proceeds received by the Customer from the resale of the goods shall be held by the Customer as trustee for Dräger to the extent of the unpaid invoiced price of those goods and the proceeds of the sale shall be forwarded to Dräger in full as soon as is reasonably practicable after receipt by the Customer and where the proceeds of sale are less than the amount owing by the Customer to Dräger, such proceeds shall be applied in practical satisfaction to the invoiced price or amount outstanding until all monies owing to Dräger for all goods and services supplied by Dräger to the Customer have been paid for in full by the Customer to Dräger.

9.5 Should the goods supplied by Dräger to the Customer be lost or damaged after delivery and prior to payment, the Customer hereby agrees to indemnify Dräger for such loss and damage.

9.6 After the goods leave Dräger’s premises they shall be at the risk of the Customer and any damage to the goods shall be at the expense of the Customer.

9.7 If the Customer does not pay for any goods and/or services on the due date then Dräger is hereby irrevocably authorised by the Customer to enter the Customer’s premises (or any premises under the control of the Customer or as agent of the Customer in which the goods are stored at such premises) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Customer whatsoever, and the Customer indemnifies Dräger against any claim for loss, damage or expense arising as a result of Dräger taking action under this clause 9.7.

9.8 If Dräger is unable to resell the goods at the same price or more as was invoiced to the Customer by Dräger, then Dräger shall be entitled to make claim, demand or institute, if necessary, an action to recover any loss or damage sustained by Dräger due to Dräger not being able to obtain the invoiced price plus the added expenses incurred by Dräger as a result of non-payment by the Customer.

9.9 The Customer acknowledges that by virtue of 9.1 and 9.4 (above), Dräger has a security interest in the goods for the purposes of the Personal Property Securities Act 1999 (PPS Act) and to the extent applicable the PPS Act applies.

9.10 The Customer acknowledges that Dräger may do anything reasonably necessary, including but not limited to registering any security interest which Dräger has over the goods on the Personal Property Security Register established under section 139 of the PPS Act in order to perfect the security interest and comply with the requirement of the PPS Act.

9.11 The Customer agrees to do all things reasonably necessary to assist Dräger to undertake the matters set out in 9.10 (above).

9.12 The Customer waives its rights under the PPS Act to receive a copy of any verification statement otherwise required by the PPS Act. If applicable, so far as permitted by section 107 of the PPS Act the Customer will have no rights under sections 114, 116, 120, 121, 125, 126, 127, 129 and 131 and 133 of the PPS Act, including the right to receive any notices. The Customer agrees if applicable that Dräger may exercise its rights under sections 109 and 120 concurrently, and that repossession and retention of goods under sections 120 – 123 will immediately extinguish any rights and/or interests the Customer may have in the goods and that Dräger may allocate any monies it receives to debts, charges and expenses in any priority it determines.

9.13 The Customer agrees that the Customer's account may be debited with the costs of registration of a financing statement and all other costs associated with the perfection and enforcement of the security interest (including full client/solicitor costs).

9.14 The Customer shall ensure that all third parties who may from time to time hire or lease any goods subject to a security interest in favour of Dräger (when sold on credit and not paid for in full) from the Customer are advised of Dräger's security interest in such goods.


10. CANCELLATION

10.1 To the full extent permitted by law, orders for goods specifically acquired by Dräger for the Customer shall not be cancelled by the Customer without Dräger’s written consent. The cancellation of any order shall be made on terms which indemnify Dräger against all loss.


11. CUSTOMER’S SPECIAL REQUIREMENTS

11.1 Changes to the specifications at the Customer’s request either at the time of placing the order or thereafter will only be accepted at Dräger’s discretion. Such changes will only take effect when agreed in writing by Dräger and which may result in a price increase.


12. WARRANTIES AND EXTENT OF LIABILITY

12.1 The Consumer Guarantees Act 1993 (CGA), the Fair Trading Act 1986 (FTA) and other statutes may impose warranties, conditions and obligations on Dräger which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided herein, and except as provided for under the CGA or the FTA, to the extent permitted by law, all other warranties whether implied or otherwise, not set out herein, or in other documents provided to the Customer by Dräger and which specifically relate to the goods in question, are excluded.

12.2 To the fullest extent permitted by law, Dräger limits its liability for breach of condition or warranty to:

12.2.1 In the case of goods, any one (at Dräger’s election) of the following (subject to clause 12.4):

12.2.1.1 the replacement of the goods or the supply of equivalent goods;

12.2.1.2 the repair of goods;

12.2.1.3 the payment of the cost of replacing the goods or of acquiring equivalent goods;

12.2.1.4 the payment of the cost of having the goods repaired; or

12.2.2 In the case of services either (at Dräger’s election) of the following (subject to clause 12.4):

12.2.2.1 the supplying of the services again; or

12.2.2.2 the payment of the cost of having the services supplied again.

12.3 Subject to clause 12.2.1, Dräger warrants that the goods sold are free from defective materials and workmanship.

12.4 The warranty in clause 12.3 does not apply if:

12.4.1 the defect becomes apparent more than twelve (12) months after the date of the invoice;

12.4.2 the goods have not been used or stored in accordance with instructions issued by Dräger;

12.4.3 the defects are in a manufactured component supplied by Dräger to another;

12.4.4 the defective part is made of rubber, glass, synthetic or ceramic materials;

12.4.5 the goods have been subject to any alteration or repair by any person other than authorised in writing by Dräger. If the alteration or repair is unrelated to the defect then the warranty remains applicable;

12.4.6 the Customer fails to notify Dräger of its claim under this clause within fourteen (14) days of the defect becoming apparent and to return the goods to Dräger on its request to do so;

12.4.7 the indicated shelf life of the goods has expired.

12.5 Except as provided in Clause 12.3.1 and 12.4 above, Dräger will not be liable for economic or consequential loss, injury, expense or damage to the Customer or any person to whom the goods are transferred, or in respect of any person to whom the Customer or the person using the goods make them available or their property, arising from any defect in or failure of the goods, notwithstanding negligence on the part of Dräger, its suppliers, servants, agents, successors or assigns.

12.6 Notwithstanding clause 12.1 and 12.3, the maximum aggregate liability of Dräger for any claims made by the Customer (whether in contract, tort or otherwise), shall be limited to the lesser of:

12.6.1 the amount of the price of the goods concerned; or

12.6.2 the actual loss or damage suffered by the Customer.

12.7 If goods are repaired under warranty they will be returned to the purchaser or ultimate user carriage paid.

12.8 The Customer warrants that the goods purchased by the Customer will not be used predominantly for personal, domestic or household use and it is acknowledged and agreed that:

12.8.1 the Customer is acquiring the goods for the purposes of a business in terms of sections 2 and 43(2) of the CGA;

12.8.2 the goods are supplied and acquired in trade for the purposes of the FTA and the parties agree to contract out of sections 9, 12A and 13 of the FTA; and

12.8.3 all warranties, conditions and other terms implied by the CGA or sections 9, 12A and 13 of the FTA or any other statute or common law are excluded from these terms to the fullest extent permitted by law and that such exclusion is fair and reasonable.


13. REPAIRS AND PARTS

13.1 To the fullest extent permitted by law, Dräger does not promise the ready availability of parts for such goods as may be required to be repaired from time to time.


14. TESTING OF CYLINDERS

14.1 Dräger may at the Customer’s expense inspect the test cylinders prior to each refill in order to determine compliance of the cylinders with all relevant standards including all applicable standards of Standards New Zealand and the Standards Association of Australia. Dräger may refuse to fill a cylinder if in Dräger’s opinion it does not comply with such standard, whereupon the cylinder will be destroyed in accordance with the applicable standards.


15. GOVERNING LAW AND JURISDICTION

15.1 These terms and conditions and the contract governed thereby shall be governed by and construed in accordance with the laws from time to time, of New Zealand.


16. INDEMNITY

To the full extent permitted by law the Customer:-

16.1 agrees to indemnify and at all times hereafter to keep indemnified and hold Dräger, its servants and agents and each of them harmless against all claims for loss or damage (whether as a result of negligence or otherwise) arising directly or indirectly out of the Customer’s use, possession, ownership or resale to a third party or out of the use, possession or ownership by such third party of the goods or any part or parts thereof whether separately or in combination with any other equipment or material.

16.2 agrees that the indemnity in Clause 16.1 shall survive the termination of this contract and shall extend to cover all alleged defaults or defects in the goods or part(s) thereof or instruction supplied for use in connection with the goods or out of any failure of the goods to perform a particular task or to achieve a particular result or to comply with any particular specification.


17. FORCE MAJEURE

17.1 To the extent permitted by law the Customer releases Dräger from all and any liability for and in relation to or occurring out of any failure or transaction in performance of its obligation hereunder due in part or in whole to any cause whatsoever beyond Dräger’s reasonable control.


18. IMPLIED CONDITIONS AND WARRANTIES

18.1 All implied conditions and warranties (statutory or otherwise) are hereby expressly excluded from this contract insofar as they are capable of being excluded by agreement.


19. COLLATERAL WARRANTIES AND REPRESENTATIONS

19.1 All prior statements and representations or collateral warranties that may have been given whether oral or in writing by Dräger or its servants or agents prior to the delivery of the goods and/or services are expressly excluded to the full extent allowed by law and accordingly Dräger is released by the Customer from any liability as a result of such statement or representation.


20. FITNESS FOR PURPOSE

20.1 The Customer shall not rely upon Dräger’s expertise or judgement as to fitness or suitability of use for which the Customer may require the goods and or service.


21. WAIVER

21.1 Failure by Dräger to insist upon strict performance by the Customer of any terms and conditions contained herein shall not be taken to be a waiver thereof or of any rights of Dräger in relation thereto and in any event shall not be taken to be a waiver of the same terms and conditions on any subsequent occasion and shall not discharge the Customer from any of its obligations pursuant to these terms and conditions.


22. LIENS

22.1 In addition to any lien to which Dräger may be entitled by statute or common law, Dräger shall in the event of the Customer’s insolvency, bankruptcy or winding up, be thereupon entitled to a general lien on all property whatsoever owned by the Customer and in Dräger’s possession at the time.

22.2 The Customer agrees that if demand is made by Dräger the Customer on receiving such a demand will immediately execute a mortgage with a priority amount of all monies owing by the Customer plus any interest, and otherwise on the terms and conditions contained in the then current edition of the ADLSi Memorandum of Mortgage (All Obligations) form (such form to be prepared by Dräger’s solicitor, at the Customer’s cost), or other instrument of security, or consent to caveat, as required, and against the event that the Customer fails to do so within a reasonable time of being so requested, the Customer hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by Dräger to be its true and lawful attorney to execute and register such instruments. Such lien will cover the unpaid price of any goods and/or services supplied by Dräger to the Customer.


23. NOTICES

23.1 All Notices on Accounts shall be in writing and may be hand delivered or mailed postage pre-paid addressed to the postal address of either Dräger or the Customer as notified to the other from time to time in writing. Any such Notice or Demand or Account shall be deemed to have been received five (5) business days after dispatch if sent by mail, or the next business day if delivered by hand or facsimile transmission or email.


24 VOIDABILITY OF TERMS AND CONDITIONS

24.1 The Customer acknowledges that these terms and conditions are subject to any rights and obligations arising between the parties pursuant to any legislation or by implication of a law and specifically acknowledge that this contract is not intended and will not operate to override any rights and obligations that cannot be excluded at law . To the extent that any term or condition of this contract is void, voidable or repugnant to the provisions of any applicable legislation of New Zealand then this contract shall be read as if that term or condition were deleted and the balance of this contract shall be enforceable.


Revision: 29-Apr-2019

Terms and Conditions of Sale for Goods & Services for Draeger New Zealand Ltd.

Terms and Conditions for Rental for Draeger New Zealand Ltd.

In these Terms and Conditions, “Dräger” means Draeger New Zealand Limited (company number 6253409) or any related company. The “Lessee” means the person, firm, corporation, government or semi government authority renting equipment and/or services and includes its employees, contractors and agents.

1. Scope

1.1 These Standard Rental Terms and Conditions ("SRTC") apply to the rental of equipment described in further detail in the agreed quote ("Rented Equipment") by Dräger to the Lessee.

1.2 This SRTC and the agreed quote constitute the entire agreement between Dräger and the Lessee except where Dräger and the Lessee expressly agree in writing to incorporate other terms.

1.3 Dräger reserves the right to decline to rent or lease any Rented Equipment.

2. Delivery and Terms of Use

2.1 Transport costs for delivery of the Rented Equipment will be billed by Dräger separately and are not included in rent payments.

2.2 The Lessee shall unpack the Rented Equipment as soon as practicable upon its arrival in order to inspect for transport damage. In the event of transport damage, Dräger is to be notified as soon as practicable in order to safeguard any damages claims that may be pursued by Dräger against the carrier (postal service, rail service, freight company, etc.).

2.3 The Lessee will advise, in writing, the location (and any changes to the location) of the Rented Equipment if this differs from the delivery location specified in the agreed quote.

2.4 Dräger reserves the right to inspect the Rented Equipment at the Lessee’s premises, at any time during business hours provided that reasonable notice has been provided.

2.5 When using the Rented Equipment, the Lessee shall follow the operating instructions and comply with the applicable statutory and regulatory provisions.

2.6 If the Rented Equipment is contaminated with hazardous substances, the Lessee must promptly notify Dräger in writing providing, amongst any other relevant information, full details of the contamination and hazardous material. At Dräger’s discretion the Rented Equipment will either be professionally decontaminated or disposed of. If the contamination is caused or contributed to by the Lessee, the Lessee will bear the costs of appropriate professional decontamination or the cost of disposal and the replacement of the contaminated Rented Equipment based on the annual published list price.

2.7 The use of the Rented Equipment outside New Zealand is only allowed after prior consultation with Dräger and where permission is received in writing.

2.8 The Rented Equipment may only be transferred to third parties – e.g. by way of a sub-lease – with Dräger's prior written permission.

3. Term of Lease

3.1 The lease begins on the date of delivery of the Rented Equipment and ends upon expiry of the agreed Lease Term or on the agreed Return Date, as specified in the agreed quote. Where no Lease Term or Return Date has been expressly agreed, a minimum term of seven days and a maximum term of 1 year less one day shall apply.

3.2 The Lessee shall return the Rented Equipment to Dräger in good condition (subject to fair wear and tear) at the end of the Lease Term. Dräger expressly reserves the right to charge the Lessee for any costs incurred by Dräger as a result of the Rented Equipment having been improperly used or returned in a condition which does not comply with this clause.

3.3 The Lease Term may be extended by written agreement of the parties.

4. Rental Payments

4.1 The rental payments for the Rented Equipment and accessories and any additional services, e.g. courier costs, are set forth in the agreed quote.
For approved account holders, rental payments are due in full within 30 days of date of invoice. If the Lease Term is longer than 30 days, Dräger is entitled, but not obliged, to issue interim invoices.
For non-account holders, rental payments will be invoiced prior to delivery of the Rented Equipment.

4.2 If the Rented Equipment or part thereof is returned late, additional rental charges will apply at the same rate as the existing rental.

4.3 Where the amount of rental payments is not specifically agreed in any lease extension, the previously agreed amount of rent payments will continue to apply.

4.4 If the Rented Equipment or part thereof is returned earlier than agreed, rent payments will be calculated based on the actual term of the lease and any additional rental payments will not be more than the existing rental amounts. A fee totalling 15% of the agreed rental payments for the Rented Equipment will be charged to the Lessee if the Lessee cancels or terminates the Lease prior to the Rented Equipment being delivered, which the parties agree and acknowledge is a genuine pre-estimate of Dräger's loss.

5. Servicing and Maintenance of the Rented Equipment

5.1 The Lessee bears all of the costs of operating the Rented Equipment.

5.2 The Lessee shall treat the Rented Equipment with care, and when operating the Rented Equipment must carefully observe the operating instructions provided by Dräger or the manufacturer.

5.3 If the Rented Equipment is returned to Dräger in an unreasonably untidy state, the Lessee will be charged the necessary cleaning costs for each piece of Rented Equipment affected.

5.4 Only Dräger is authorised to carry out maintenance and repair work going beyond the calibrating, functionality testing and inspections that become necessary as a result of proper use of the Rented Equipment ("Servicing and Maintenance").

5.5 The Lessee is required to deliver Rented Equipment to Dräger for the necessary Servicing and Maintenance. Dräger will provide the Lessee with substitute equipment while Servicing and Maintenance is being carried out.

5.6 The Lessee bears the costs of Servicing and Maintenance during the Lease Term, except where the Rented Equipment is defective and the defect has not been caused by any wrongful or negligent act or omission of the Lessee.

5.7 The Lessee bears the costs of any repairs to the Rented Equipment that need to be carried out after the Lease Term arising from use during the Lease Term, unless otherwise agreed by the parties.

5.8 The Lessee shall keep the Rented Equipment free and clear of any encumbrances or security interests (other than security interests in favour of Dräger) and defend intervening action by third parties, e.g. compulsory execution proceedings. The Lessee shall notify Dräger without undue delay of any such intervening action and provide it with the relevant documents. The Lessee will pay all fees, contributions and other charges levied during the Lease Term as a result of the lease, possession or use of the Rented Equipment, or on the basis of the Lessee's capacity as registered operator of the Rented Equipment.

5.9 The Lessee may not combine the Rented Equipment with other equipment in such a way that it becomes an essential component of such other equipment. If the Rented Equipment is affixed to any land or building, this may only be done for a temporary purpose and with the intention of being detached again at the end of the lease. If the Lessee itself is not the owner of the relevant land or building, it must notify the owner that the Rented Equipment is being affixed or installed for a temporary purpose only.

5.10 As the Rented Equipment is in the Lessee's possession and therefore within the Lessee's area of responsibility, the Lessee bears the risk of any loss or damage to the Rented Equipment. If the Rented Equipment is lost or destroyed, the Lessee shall pay the replacement value based on the annual published list price.

6. End of lease

6.1 The Rented Equipment is to be returned to Dräger immediately on the end of the Lease Term to the address nominated by Dräger.

6.2 The Lessee shall at its own risk and expense, return the Rented Equipment, including any accessories and operating instructions.

6.3 The Lessee must ensure that on its return, the Rented Equipment is appropriately packaged and handled; the Lessee bears any repair or replacement costs incurred by Dräger as a result of transport damage.

7. Termination

7.1 Dräger is entitled to immediately terminate the lease of the Rented Equipment if any of the following events occur:
a. the Lessee defaults in paying any Rental Payment when due;
b. the Lessee breaches any material terms of an insurance policy in relation to the Rented Equipment;
c. the Lessee submits any of false statements or omissions in relation to this SRTC;
d. an application is made or resolution is passed to wind-up the Lessee, or the Lessee fails to pay its debts as they fall due;
e. the Lessee enters into or attempts to enter into any compromise or arrangement with its creditors (voluntary, informal or otherwise), has a liquidation order made against it, or passes or attempts to pass a resolution for liquidation;
f. the Lessee does any act which would render it liable to be liquidated or have a receiver or statutory manager appointed over its property, or a receiver, liquidator or other controller is appointed to the Lessee or any part of the Lessee’s assets or an administrator is appointed to the Lessee;
g. the insurance policy over the Rented Equipment is refused or cancelled or materially adversely modified;
h. the Lessee commits any act which may cause or permit or threatens the safety, condition or safe keeping of the Rented Equipment;
i. the Lessee fails to observe any material term of this SRTC and fails to rectify such failure within 14 days of written notice from Dräger;
j. an event of default (however described) occurs under any other agreement or arrangement between the Lessee and Dräger or between any related body corporate of the Lessee and Dräger;
k. the Lessee ceases to carry on business or the ownership or control of the Lessee materially changes; or
l. if the Lessee’s conduct indicates that the Lessee no longer intends to be bound by this SRTC.

7.2 If Dräger terminates this SRTC under clause 7.1, the Lessee must:
a. on receiving notice of termination, deliver the Rented Equipment back to Dräger in accordance with clause 6 without undue delay. If the Lessee fails to comply with this provision, Dräger has the right to repossess the Rented Equipment. The Lessee is solely responsible for the costs associated with returning the Rented Equipment;
b. pay to Dräger on demand the “Early Termination Amount”, being the sum of:
i. if less than 30 days left on Lease Term – full payment is due;
ii. if 30 days or more are left on the Lease Term, then payment for the month is due with the cancellation fee as listed in the agreed quote; and
iii. any additional reasonable costs incurred due to the early termination such as cost of repossession.
The parties agree and acknowledge that the Early Termination Amount is a genuine pre-estimate of Dräger's loss.
If the Lessee wishes to terminate this SRTC before the Lease Term expires, the Lessee can apply to Dräger in writing. Dräger will reasonably consider the application and decide at its discretion, acting reasonably, whether or not to allow it. Where Dräger permits the early termination of this SRTC, the Early Termination Amount as listed in clause 7.2(b) will apply.
The Lessee's liability under this clause does not limit any other rights at common law that Dräger may have against the Lessee for breach of this SRTC.

7.3 The Lessee is entitled to immediately terminate the lease of the Rented Equipment if any of the following events occur:
a. an application is made or resolution is passed to wind-up Dräger, or Dräger fails to pay its debts as they fall due;
b. Dräger enters into or attempts to enter into any compromise or arrangement with its creditors (voluntary, informal or otherwise), has a liquidation order made against it, or passes or attempts to pass a resolution for liquidation;
c. the Lessee does any act which would render it liable to be liquidated or have a receiver or statutory manager appointed over its property, or a receiver, liquidator or other controller is appointed to Dräger or any part of Dräger's assets or an administrator is appointed to Dräger;
d. Dräger fails to observe any material term of this SRTC and fails to rectify such failure within 14 days of written notice from the Lessee;

8. Liability, Indemnity and Release

8.1 The Lessee is liable for the risks associated with the Rented Equipment and will insure itself against such risks accordingly.

8.2 All insurance payments (except for third party liability insurance) are to be exclusively used for the purpose of repairing or replacing the damaged Rented Equipment.

8.3 The Lessee shall satisfy all third party claims associated with salvage and maintenance operations as and when they fall due.

8.4 The Lessee is liable for damage to and theft of the Rented Equipment and unconditionally and irrevocably indemnifies Dräger and its officers, agents and employees from and against all loss (including, without limitation, any loss of lease payments, residual or other revenue or capital loss or any loss of bargain or profit), damages, claims, liabilities, costs, taxes, charges and expenses (including legal expenses on a full indemnity basis) of whatever kind or nature, arising directly or indirectly from, or in respect of:
a. the delivery, installation, use or change of use, location, relocation, condition, operation, seizure, forfeiture or other confiscation of the Rented Equipment, or the loss, destruction, theft or damage of the Rented Equipment howsoever caused including loss of value resulting from insufficient, inadequate or faulty repair;
b. any claim or demand made by any third party in relation to the Rented Equipment or its possession, operation or use;
c. any damage to property or death of, or injury to, any person suffered or sustained in connection with the Rented Equipment or its possession, operation or use;
d. any failure by the Lessee to observe the Lessee's obligations under this SRTC or arising from any untrue or misleading representation, warranty or statement (including on tax matters) made by the Lessee in, or in connection with, this SRTC;
e. any reasonable steps taken by Dräger to administer, exercise, enforce or preserve any of Dräger’s rights under this SRTC;
f. any loss, reduction or disallowance of any depreciation allowance or of any tax deduction or rebate of any income or other tax upon which Dräger has relied in calculating the amount payable; or
g. the early termination of the Lease Term (to the extent not otherwise recoverable under this SRTC).

8.5 The Lessee will release Dräger, to the full extent permitted by law, from all claims and demands of every kind arising out of the delivery, installation, location, possession, operation or use of the Rented Equipment, including any liability which may arise in respect of any accident or damage to property or death of, or injury to, any person or arising out of any reasonable steps taken by Dräger’s to exercise, enforce or preserve Dräger’s rights under or in connection with this SRTC.

8.6 The indemnities and releases set out in this SRTC continue in full force and effect notwithstanding the termination (however occurring) of this SRTC.

9. Use of Rented Equipment

9.1 The Lessee warrants that the Rented Equipment is not acquired predominantly for personal, domestic or household use and it is acknowledged and agreed that:
a. the Lessee is acquiring the Rented Equipment for the purposes of a business in terms of sections 2 and 43(2) of the Consumer Guarantees Act 1993 ("CGA");
b. the Rented Equipment is supplied and acquired in trade for the purposes of the Fair Trading Act 1986 ("FTA") and the parties agree to contract out of sections 9, 12A and 13 of the FTA; and
c. all warranties, conditions and other terms implied by the CGA or sections 9, 12A and 13 of the FTA or any other statute or common law are excluded from this SRTC to the fullest extent permitted by law and that such exclusion is fair and reasonable.

10. Ownership and Risk

10.1 Notwithstanding anything contained in this SRTC, Dräger shall retain the full legal and beneficial ownership and title in and to all Rented Equipment.

10.2 The Lessee acknowledges that, where the term of the lease is for more than 1 year, clause 10.1 (above) creates a security interest in the Rented Equipment in Dräger's favour for the purposes of the Personal Property Securities Act 1999 ("PPS Act") and to the extent applicable the PPS Act applies.

10.3 The Lessee acknowledges that Dräger may do anything reasonably necessary, including but not limited to registering any security interest which Dräger has over the Rented Equipment on the Personal Property Security Register established under section 139 of the PPS Act in order to perfect the security interest and comply with the requirements of the PPS Act.

10.4 The Lessee agrees to do all things reasonably necessary to assist Dräger to undertake the matters set out in 10.3 (above).

10.5 The Lessee waives its rights under the PPS Act to receive a copy of any verification statement otherwise required by the PPS Act. If applicable, so far as permitted by section 107 of the PPS Act the Lessee will have no rights under sections 114, 116, 120, 121, 125, 126, 127, 129 and 131 and 133 of the PPS Act, including the right to receive any notices. The Lessee agrees if applicable that Dräger may exercise its rights under sections 109 and 120 concurrently, and that repossession and retention of the Rented Equipment under sections 120 – 123 will immediately extinguish any rights and/or interests the Lessee may have in the Rented Equipment and that Dräger may allocate any monies it receives to debts, charges and expenses in any priority it determines.

10.6 The Lessee agrees that the Lessee's account may be debited with the costs of registration of a financing statement and all other costs associated with the perfection and enforcement of the security interest (including full client/solicitor costs).

10.7 The Lessee shall ensure that all third parties who may from time to time hire or lease any Rented Equipment subject to a security interest in favour of Dräger from the Lessee are advised of Dräger's security interest in such Rented Equipment.

11. General

11.1 Any notice or demand to be given by a party under this SRTC may be served on any other party by being left at or sent by pre-paid mail or transmitted by facsimile to that other party’s address set out in the agreed quote or otherwise as notified in writing by that other party for the purposes of this SRTC. The notice or demand will be treated as having been given and received:
a. if delivered, on the day of delivery;
b. if sent by pre-paid mail, 5 business day's following the date on which the notice or demand was sent; and
c. if transmitted by facsimile, on the day of transmission if a business day, or otherwise on the next business day.

11.2 No waiver by a party in relation to any breach of this SRTC by the other party will be deemed a waiver of any continuing or recurring breach.

11.3 All collateral agreements, reservations of title, amendments and other agreements pertaining to this SRTC must be in writing in order to be valid. Where a term of the lease is or becomes void, this shall not affect the validity of the other terms. If any provision or part of a provision of this SRTC is held or found to be void, invalid or otherwise unenforceable, it will be deemed to be severed to the extent that it is void or to the extent of voidability, invalidity or unenforceability, but the remainder of that provision will remain in full force and effect.

11.4 The place of jurisdiction is New Zealand.

11.5 This SRTC is governed by New Zealand law, subject to the exclusion of the UN Convention of Contracts for the International Sale of Goods and conflict of law provisions.

Terms and Conditions for Rental for Draeger New Zealand Ltd.

Terms and Conditions for Medical Service for Draeger New Zealand Ltd.


In these terms and conditions Dräger means Draeger New Zealand Limited (company number 6253409) or any related company. The Customer means the person, firm, corporation, government or semi-government authority purchasing Services from Dräger. Service means any repair or maintenance activities.

1. General
These terms and conditions shall apply to all performances of Dräger with the delivery of Services, supply of spare parts or related events.

Dräger is not bound by any terms or conditions contained in any purchase order, purchase form or other similar document of the Customer delivered to Dräger with respect to the purchase of or order for Service which are at variance with, in derogation from or additional to these terms and conditions. The Customer is bound by these Service terms and conditions notwithstanding anything to the contrary in such purchase order, purchase form or other similar document.

2. Contract
These terms and conditions shall prevail over any other terms and conditions that may be inconsistent or contrary to those contained herein.

These terms and conditions shall apply to the exclusion of all other agreements and prior representations, unless subsequently evidenced in writing by Dräger and the Customer, and, together with each invoice and any supplementary agreement or other agreed document that references or is ancillary to these terms and conditions, shall form part of the Services Agreement between Dräger and the Customer.

3. Provision of Service
3.1. Resources
Dräger will provide Service Engineers who are deemed competent to perform the tasks for the Services quoted/agreed to.

Service functions will be carried out between 08:30 – 17:00, Monday – Friday excluding public holidays.

Where Service functions are required outside of the contracted hours, or outside of the agreement/quote, such Service cannot be guaranteed. If it can be provided, it will be at an hourly rate in accordance with Dräger’s current price list.

3.2. Compliance
Equipment covered by these terms and conditions will be maintained by Draeger in accordance to the manufacturer’s specification with due regard to requirements and guidelines published by the manufacturer, Australian/New Zealand Standards, the Australian Therapeutic Goods Administration, any relevant government body and the guidelines set forth by the New Zealand Medicines and Medical Devices Safety Authority and the Standard for Australian Healthcare Facilities (ACHS).

3.3. Accessibility
It is the Customer’s responsibility to ensure that the equipment to be serviced is made accessible during the agreed contracted hours and for adequate time so Dräger is able to fulfil its obligations.

Should equipment not be accessible at the agreed scheduled time of servicing, Dräger, at its discretion, may charge the Customer a service fee, which is a genuine pre estimate of Dräger's relevant losses.

Dräger’s repair obligation shall be suspended during any period in which Dräger does not have access to equipment as scheduled for any reason not within Dräger’s reasonable control. Dräger shall not be liable for the Customer’s equipment being out of service or any consequences or issues arising from this.

3.4. Validity of Maintenance Training
At Dräger’s sole discretion, a company may be approved by Draeger to operate as an Authorised Service Agent. In this situation, service personnel will need to successfully complete maintenance training and any refreshers as required.

Maintenance certification for individuals is only valid whilst in the employment of the Authorised Service Agent or company in which they received the training. Individuals are not permitted to undertake service work with a third party or on their own.

3.5. Replacement Parts, Spare Parts and Wear and Tear Items
Where the maintenance option in the Service Agreement includes a fixed sum for provision of spare parts, this will include parts required to render the equipment operational to manufacturer standards. Consumable and operator replaceable parts are not included and will be charged separately.

Consumable and operator replaceable items include, but not limited to, flow sensors, cables, O2 fuel cells, filters, user exchangeable batteries, patient and supply hose.

3.6. Exclusions
Where the maintenance option in the Service Agreement is selected, the following exclusions apply:
i. Maintenance of accessories and attachments or other devices external to the equipment;
ii. Repair of damage resulting from malicious acts, vandalism, any abnormality or failure of electrical supply, accident, transportation, war, acts of God, including lightning, explosion, water damage (including from damaged pipes, fire sprinklers and the like), neglect or misuse, or any other cause beyond the reasonable control of Dräger;
iii. Failure to provide the appropriate operational environment for the equipment. This would include but is not limited to incorrect operational line voltage, unsuitable temperature and humidity, failure to observe manufacturer recommendations on cleaning and sterilising as detailed in the operators manual supplied with the equipment;
iv. Accessories or devices not described in these terms and conditions or in the Service Agreement; and
v. Service required as a result of modifications and/or system changes not endorsed by Dräger.

4. Variations to Service Agreement
In the event the Customer requests any changes to these terms and conditions and/or the quote provided by Dräger and such request is made by the Customer either at the time of placing the order or thereafter, any such change will only be accepted at Dräger’s sole discretion. Such changes will only take effect when agreed in writing by Dräger and may result in a price variation.

In the case where Dräger needs to alter these terms and conditions or the Service Agreement, the Customer will be notified of any such occurrence with 60 day notice

5. Pricing
All quoted prices are exclusive of GST.

The price for Services provided shall be as quoted in writing by Dräger. If a price is not quoted, then the price will be in accordance with Dräger’s current price list. Verbal quotations are subject to written confirmation.

6. Payment Terms
Payment is to be made to Dräger for Services provided within thirty (30) days from the date of invoice. Any credit card payments will incur a credit card surcharge fee.

Fees payable for the Services provided are to be paid in advance on or prior to the commencement date of the agreement.
If the Customer fails to comply with the terms of payment then:

  • the Customer agrees that it will pay Dräger interest from the due date of payment to the date payment is made in full (both before and after judgement) equal to two (2) per centum per month on all monies from time to time in respect of goods and/or Services including all charges from time to time owing by the Customer.
  • the Customer shall be liable for all costs (including GST) relating to any legal action taken by the Dräger to recover moneys due from the Customer, payable by the Customer to the Dräger on demand; and
  • Dräger reserves the right to discontinue or suspend any future Service to the Customer.

7. Cancellation

(a) The Customer may terminate the supply of Services at no charge provided written notice is received by Dräger no later than 1 week before the commencement date of the Services. After this date, Dräger is entitled to charge the Customer for any reasonable expenses incurred by Dräger for the provision of Services.
(b) Subject to clause 7(a) above, either party can terminate these terms and conditions on 90 day written notice and Dräger is entitled to charge the Customer for any reasonable expenses incurred or work undertaken pursuant to these terms and conditions since the commencement date.
(c) On cancellation of these terms and conditions pursuant to this clause 7, any amounts in credit will be refunded to the Customer.

8. Intellectual Property
"Intellectual Property Rights" means all intellectual property rights including all course material, copyright, patents, registered and unregistered trademarks, trade secrets and know-how, and all other intellectual property rights resulting from intellectual activity.
Dräger owns all Intellectual Property Rights in anything which is undertaken during the provision of Services including, but not limited to, all service documents and presentations which may be provided in training or in any other circumstances.

9. Confidentiality
The party ("Receiving Party") to whom Confidential Information is disclosed by another party ("Disclosing Party") must not disclose Confidential Information to any person without first obtaining the disclosing party's written consent.

The Receiving Party may disclose Confidential Information if:

  • it is legally required to do so;
  • if the Confidential Information is needed for the performance of duties or directly related to the Service being delivered; and
  • the Receiving Party first notifies the proposed disclosure to the Disclosing Party and receives consent to do so.

The Receiving Party must declare the confidential nature of the Confidential Information and require the person receiving this to treat it confidentially.

It is a condition of any permitted disclosure that the Receiving Party must notify the Disclosing Party promptly if the Receiving Party becomes aware of any unauthorised disclosure by a third party. The Receiving Party must give the disclosing party all assistance reasonably required by that party in connection with any proceedings which it may institute against any persons for the disclosure.

For the purposes of this clause 9 "Confidential Information" includes, without limitation, all information relating to types and availability of goods and services, financial information, contracts, contractual obligations and benefits, documentation procedures, plans, client lists, designs, activities, suppliers, and agents of the owner or any related party.
10. Insurances
For the term of provision of the Services, the Customer must effect and maintain with a reputable insurer, the following insurance policies:

  • Public Liability
  • Plant and Equipment
  • Workers Compensation

The Customer acknowledges and agrees that it is the Customer’s responsibility to assess and consider the risk and scope of insurances to ensure that Services provided delivered on the Customer site are undertaken with full coverage.

11. Warranties
The Consumer Guarantees Act 1993 ("CGA"), the Fair Trading Act 1986 ("FTA") and other statutes may impose warranties, conditions and obligations on Dräger which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided herein, and except as provided for under the CGA or the FTA, to the extent permitted by law, all other warranties (whether implied or otherwise) not set out in this clause 10, or in other documents provided to the Customer by Dräger and which specifically relate to the Services are excluded. [

Dräger warrants that the goods sold and Services delivered are free from defective materials and workmanship.

In the event of equipment failure arising during the warranty period, Dräger will repair, or at its option replace or credit (at its discretion) those of the goods which, upon examination are found by Dräger to be defective in workmanship and/or materials.

The warranty period for Services is 12 months on parts and labour from the date of the provision of the Service. Any goods requiring repair, maintains its original warranty period but the parts and labour will have the Service warranty period.

The warranty set out above applies if:

  • the Dräger product is used, maintained and inspected as outlined in the manufacturer’s instruction for use manual or other information sheets as supplied by Dräger;
  • the original purchaser or end-user’s obligation to have all repairs to the Dräger product and/or replacement of parts carried out promptly; and
  • all corrective maintenance must be performed by Dräger authorised personnel.

The warranty set out above does not apply where there is:

  • failure to comply with the all applicable use, maintenance and training requirements, including but not limited to exposure to certain chemicals, improper decontamination, excessive heat, misuse, abuse, misapplication, improper installation, improper operation, negligence, accidental damage or normal wear and tear;
  • any unauthorised repairs, alterations, modifications or adjustments to the items or its components;
  • the defect becomes apparent more than 12 months from date of Service;
  • the goods have not been used or stored in accordance with instructions issued by Dräger;
  • the Customer fails to notify Dräger of the claim under this clause within fourteen (14) days of the defect becoming apparent and to return the goods to Dräger on its request to do so; or
  • the indicated shelf life of the goods has expired.

12. Liability
In any event Dräger limits its liability for breach of condition or warranty to either of the following at Draegers election:
12.1.2.1 the supplying of the Services again; or
12.1.2.2 the payment of the cost of having the Services supplied again.

Dräger will not be liable for any loss, injury, expense or damage to the Customer or any person to whom the Service is delivered on the part of Dräger, its suppliers, servants, agents, successors or assigns
12.2 The warranties set out above shall be additional to any non-executable warranties to which the Customer may be entitled pursuant to any statute.

13. Indemnity
To the fullest extent permitted by law, the Customer is liable in respect of, and agrees to indemnify and at all times hereafter keep indemnified and hold Dräger and its officers, employees and agents and each of them harmless against any claim, loss or expense (including a claim, loss or expense arising out of personal injury or death or damage to property) which is paid, suffered, incurred or is liable for (including legal costs on a solicitor and client basis) (together “the loss”) as a result of any unlawful, negligent, reckless or deliberately wrongful act or omission of the Customer (or its employees, agents, subcontractors or the subcontractors employees) in the performance of the equipment on which the Service is performed. The Customer agrees that this indemnity survives termination of these terms and conditions.

The Customer’s liability in respect of, and indemnity given in, this clause will be reduced proportionally to the extent that any unlawful, negligent, or deliberately wrongful act or omission of Dräger, its officers, employees or agents caused or directly contributed to the loss.

14. Acquisition of Services
The Customer warrants that the Services are not acquired predominantly for personal, domestic or household use and it is acknowledged and agreed that:
(a) the Lessee is acquiring the Services for the purposes of a business in terms of sections 2 and 43(2) of the CGA;
(b) the Services are supplied and acquired in trade for the purposes of the FTA and the parties agree to contract out of sections 9, 12A and 13 of the FTA; and
(c) all warranties, conditions and other terms implied by the CGA or sections 9, 12A and 13 of the FTA or any other statute or common law are excluded from this SRTC to the fullest extent permitted by law and that such exclusion is fair and reasonable.

15. Fit for Purpose
The Customer shall not rely upon Dräger’s expertise or judgement as to fitness or suitability of use for which the Customer may require the goods and or Service.

16. Governing Law and Jurisdiction
These terms and conditions and the contract governed thereby shall be governed by and construed in accordance with the laws from time to time, of New Zealand.

17. Force Majeure
To the extent permitted by law, the Customer releases Dräger from all and any liability for and in relation to, or occurring out of, any failure or transaction in performance of its obligation hereunder due in part or in whole to any cause whatsoever beyond Dräger’s reasonable control.

18. Waiver
Failure by Dräger to insist upon strict performance by the Customer of any terms and conditions contained herein shall not be taken to be a waiver thereof or of any rights of Dräger in relation thereto and in any event shall not be taken to be a waiver of the same terms and conditions on any subsequent occasion and shall not discharge the Customer from any of its obligations pursuant to these terms and conditions.

19. Notices
All notices on accounts shall be in writing and may be hand delivered or mailed postage pre-paid addressed to the postal address of either Dräger or the Customer as notified to the other from time to time in writing.

Any such notice or demand or account shall be deemed to have been received five (5) business days after dispatch if sent by mail, or the next business day if delivered by hand or facsimile transmission or email.

20. Severance
If at any time a provision of these terms and conditions is, or becomes, illegal, invalid or unenforceable in any respect under the law of New Zealand, that will not affect or impair the legality, validity or enforceability of any other provisions of these terms and conditions.

21. Voidability of Terms and Conditions
The Customer acknowledges that these terms and conditions are subject to any rights and obligations arising between the parties pursuant to any legislation or by implication of a law and specifically acknowledge that these terms and conditions are not intended and will not operate to override any rights and obligations that cannot be excluded at law. To the extent that any term or condition herein is void, voidable or repugnant to the provisions of any applicable legislation of New Zealand then these terms and conditions shall be read as if that term or condition were deleted and the balance of these terms and conditions shall be enforceable.


Revision: 29-Apr-2019





Terms and Conditions for Medical Service for Draeger New Zealand Ltd.

Terms and Conditions of Purchase for Draeger New Zealand Ltd.

1. Application

1.1 These General Terms and Conditions of Purchase ("TCP") shall apply to the purchase of goods ("Goods") and/or work performed and/or services ("Services") by Draeger New Zealand Limited (“Draeger”) from a supplier ("Supplier'') and shall form an integral component of any enquiries, offers, orders, contracts and agreements relating to such purchase.

1.2 Any deviating terms and conditions of the Supplier shall not apply unless expressly agreed to such terms in writing and the same has been signed by Draeger.

1.3 These TCP shall apply provided that Draeger and the Supplier have not expressly entered into an alternative signed written agreement.

1.4 In the event of any inconsistencies between the terms of an alternative signed written agreement expressly consented to and signed by Draeger and these TCP, then the interpretation in that alternative agreement shall prevail.

1.5 There shall be no variation to the TCP unless expressly agreed to in writing and signed by Draeger.

2. Offers

2.1 The Supplier shall be bound by its offer to supply Goods and Services for a period of six months from receipt of the offer by Draeger.

2.2 Any offer by the Supplier to supply Goods or Services may be accepted by Draeger in writing either in the format of a purchase order or in any other written format acceptable to Draeger (“Purchase Orders”). For the avoidance of doubt, Draeger is not obliged to accept any offer by the Supplier to supply Goods or Services.

2.3 All Purchase Orders issued by Draeger shall be subject to these TCP.

2.4 For the avoidance of doubt, a Purchase Order issued by Draeger under clause 2.2 shall be binding on the Supplier.

3. Goods and Services specification

3.1 The Supplier shall include in all documentation relating to the supply Goods or Services to Draeger: the item numbers, revision indices and/or material specifications of Draeger.

3.2 The Supplier shall respond, without undue delay, to any request by Draeger for clarification in the event of unclear item numbers and/or material specifications or instructions.

3.3 It shall always remain the responsibility of the Supplier to clarify any Goods or Services specification provided by Draeger.

4. Modifications

4.1 Draeger may from time to time and without notice modify specifications (e.g. drawings, packaging), dates and delivery destinations. The Supplier shall implement such modifications within a reasonable period.

4.2 In addition to the rights in clause 6.5, in the event of force majeure (in particular, labour disputes, fire, explosion, act of God or other contingencies beyond Draeger's control), Draeger may suspend or cancel its Purchase Order for the Goods and Services.

4.3 Modifications to the Goods or Services by the Supplier that may affect the form, fit, function, or certification must be notified to Draeger no less than four months prior to the desired commencement date. Modifications shall not be implemented without Draeger's written consent.

5. Prices & Payment

5.1 Prices shown in the Purchase Order shall prevail according to the last quoted price provided by the Supplier, unless otherwise agreed in writing and signed by Draeger.

5.2 The Supplier hereby agrees to afford to Draeger any general reduction or discount in prices given to their other customers and all prices provided to Draeger must be on a “preferred customer” basis. The Supplier shall be required to provide proof of its compliance with this clause 5.2 upon request by Draeger.

5.3 Tax Invoices, quoting Draeger order number and the Supplier’s delivery note number, shall be sent as soon as practicable after the dispatch of Goods or completion of Services. The Supplier must ensure that such invoices meet the requirements to be a “tax invoice” for the purposes of the Goods and Services Tax Act 1985 and meets any other requirements of Draeger.

5.4 Payments shall be due and payable pursuant to formal acceptance by Draeger. Payment will not be made earlier than the calendar month following the month during which the Goods or Services are delivered, unless on cash or advance payment terms.

5.5 Payments by Draeger do not constitute a confirmation that the Goods or Services conform to the specifications or are free of defects. Draeger shall be entitled to reject Goods or Services after delivery and payment thereof.

5.6 Goods shall be delivered DDP (and in accordance with the latest version of the ICC Incoterms 2010) with Draeger's registered office being the delivery destination, unless Draeger specified a different delivery destination. Agreed prices shall be fixed prices and shall cover all costs to be borne by the Supplier according to DDP.

5.7 The compensation for Services shall cover any and all costs arising in conjunction with the relevant Service (e.g. travel costs, expenses).

6. Delivery & Contractual penalty

6.1 The Supplier shall, as soon as possible, acknowledge the Purchase Orders issued by Draeger by issuing an official order confirmation or returning a copy of the Purchase Order with acknowledgement stamp and signature with date. No amendments or other terms and conditions of sale of the Supplier will be accepted by Draeger other than the TCP even if inadvertently accepted by Draeger in a Supplier order confirmation or other document.

6.2 The Supplier shall provide a delivery note to Draeger upon delivery of any Goods and Goods must be appropriately marked to ensure that they are easily identifiable.

6.3 If delivery is not made on the date or within the period specified in the Purchase Order, Draeger reserves the right to:

(a) cancel the whole or any part of the Purchase Order without compensation, but such cancellation shall be without prejudice to the rights of Draeger under conditions 12 and 13 below;

(b) apply late delivery charge of 0.5% per day (up to maximum 10% of the Purchase Order value).

6.4 Any Goods delivered before the time specified for delivery may be accepted or rejected at the sole discretion of Draeger.

6.5 Should Draeger's business be stopped, interrupted or restricted by an event of force majeure (in particular, labour disputes, fire, explosion, act of God, or any other cause beyond Draeger's control, Draeger shall be entitled to defer the date or dates of delivery and payment until the stoppage, interruption or restriction be ceased. The Supplier shall hold the Goods in safe custody and ensure that they are in good condition until the actual delivery.

6.6 The cost of carriage and packaging (including, without limitation, all packages or other containers) is at the expense of the Supplier unless otherwise specified in the Purchase Order.

7. Inspection and Rejection

7.1 All Goods will be checked and inspected by Draeger and only the quantity received and officially confirmed as satisfactory by Draeger will be accepted.

7.2 Draeger reserves the right to request replacement for rejected Goods or repeat of Services or to claim credit for same, all at Draeger’s option.

7.4 Goods rejected by Draeger and returned will be credited to Draeger by the Supplier on dispatch.

7.5 Draeger's duly authorized representatives shall have access at all reasonable times to the Supplier's facilities and shall be allowed to inspect and examine the Goods to be supplied during manufacture. Where possible, prior notice will be given to the Supplier of Draeger's intention to send a representative.

7.6 Where Services constitute the whole or part of the Purchase Order such Services will be subject to inspection by Draeger. No payment will become due until Draeger has inspected the Services and confirmed that the Services have been satisfactorily performed.

8. Warranty

8.1 The warranty period shall commence on the date of receipt of the Goods by Draeger or performance of the Services by the Supplier. Without limiting clause 8.4, the length of the warranty period shall be twelve (12) months or such longer period as agreed in writing with Draeger.

8.2 Without limiting clause 8.4, when during the Warranty Period, any Goods or Services found to be:

(a) Defective in design, materials or workmanship; or

(b) Not in accordance with Purchase Order or any specifications incorporated therein by reference or otherwise; or

(c) Having been installed, operated, stored and maintained in accordance with the written instructions of the Supplier, fails to function properly or fails to meet any performance guarantees set forth in the Purchase Order or specifications published by the Supplier, then unless it is shown that the foregoing is caused solely by the improper use or mishandling by Draeger, the Supplier shall, at its own expense (including transportation costs), replace, rectify or completely repair the damaged or defective Goods or Services.

8.3 The Supplier must, to the maximum extent possible, obtain for the benefit of Draeger, and transfer to Draeger, any manufacturer’s warranties applicable to the Goods and Services.

8.4 These TCP are deemed to include all guarantees that Draeger would be entitled to if the Goods and Services provided by the Supplier to Draeger were the supply of goods to a “consumer” (as that term is defined in the Consumer Guarantees Act 1993). Nothing in these terms or any other agreement between the parties will purport to contract out of the provisions of the Consumer Guarantees Act 1993.The consumer guarantees are incorporated into these TCP as warranties given by the Supplier to Draeger.

8.5 The warranties referred to in clause 8.4 above are in addition to any express warranty provided by the Supplier or the manufacturer, including a warranty against defects and are in no way limited by clauses 8.1 to 8.3.

9. Title & Risk

9.1 All Goods shall remain at the Supplier's risk until Draeger issues formal written acceptance (which shall include delivery and acknowledgement of delivery or in the case where installation and commissioning is required, then upon final written acceptance by Draeger of installation and commission) by Draeger.

9.2 Title passes to Draeger on the earlier of payment or the performance or delivery in accordance with the Purchase Order (as the case requires).

10. Drawing & Samples

10.1 Any drawings and samples by Draeger in connection with the Purchase Order must be returned when called for in good condition, carriage or postage paid, by the Supplier to Draeger. Drawings so supplied are confidential and must be kept at the Supplier's works and used only for the purpose of the Purchase Order, and must not be copied or communicated to any other party without Draeger's express sanction in writing.

11. Tools

11.1 Jigs, tools or patterns made specially for the execution of the Purchase Order or supplied by Draeger to the Supplier for the purpose of the Purchase Order must not be used for any other purpose or by any person other than the Supplier without Draeger's prior written consent. All such jigs, tools and patterns shall be kept in workmanlike condition by the Supplier (fair wear and tear excepted) and shall be delivered to the order of Draeger carriage paid upon reasonable notice being given. Any Purchase Order including full and part cost tooling will be subjected to Draeger's specific terms and conditions relating thereto.

11.2 Should Draeger pay the Supplier for tools which the Supplier uses for providing the Goods and Services, the Supplier shall transfer ownership of such tools to Draeger, including any accessories, plans, documentation.

11.3 The Supplier shall mark any tools owned by Draeger permanently with "Draeger" and Draeger’s inventory and material number. The tools shall be stored appropriately, protected against any type of damage and maintained in a functional condition. The Supplier shall maintain the tools at its own cost. The Supplier acknowledges that where the tools are located on the Supplier’s premises or are otherwise in the Supplier’s possession or control, the tools will be held by the Supplier as bailee only (under a bailee arrangement of a term of less than one year).

11.4 Tools owned by Draeger shall be used only to manufacture Goods for Draeger. The Supplier shall return the tools to Draeger immediately upon request to this effect.

12. Design Rights

12.1 Insofar as any work to be performed by the Supplier under the Purchase Order may consist of design, all rights in such design shall belong to Draeger and the same shall not be used except for the purpose of the Purchase Order nor copied or communicated to any other person without Draeger' s prior written consent.

12.2 All drawings and other documents delineating or recording such design shall likewise be Draeger's property and shall be handed over to Draeger immediately upon completion of the Purchase Order unless Draeger expressly authorizes the Supplier in writing to the contrary.

12.3 For Goods or Services manufactured or provided custom-made for Draeger, the Supplier shall transfer to Draeger any and all transferable intellectual property rights, in particular, rights in inventions and works subject to copyright protection. The Supplier shall, immediately upon request, provide Draeger free of charge all associated documents, models and drawings. The Supplier shall grant Draeger free of charge an unlimited, transferable license in any non-transferable rights.

12.4 The Supplier warrants that its Goods and Services shall not infringe any third party intellectual or industrial property rights. Should third party intellectual or industrial property rights be infringed, the Supplier shall remedy the infringement of such property rights by modifying the Goods or Services, acquiring relevant licenses or in any other manner requested by Draeger. Failing which, Draeger may rescind the Purchase Order. Other rights on the part of Draeger shall remain unaffected.

12.5 The Supplier may not use trademarks and company designations of Draeger without prior written consent.

13. Indemnity

13.1 The Supplier is solely responsible for and indemnifies and holds Draeger harmless against all suits, proceedings or demands, damages, actions, losses, costs or expenses of any kind (including, without limitation, loss of profits) that Draeger suffers, sustains or incurs arising from any one or more of the following:

(a) a breach by the Supplier of any laws or regulations;

(b) a breach by the Supplier of any of the Supplier’s obligations (including any warranty) under this TCP or under a Purchase Order; and

(c) any negligent act or omission or wilful misconduct by the Supplier arising out of the performance of the Purchase Order.

14. Packing

14.1 The Goods shall be packed in a manner which is suitable for long distance transportation and sold protected against dampness, moisture, shock, rust and rough handling. The Seller shall be liable for any damage to the Goods because of improper packing and for any rust or other damage attributable to inadequate or improper protective measures taken by the Supplier.

15. Shipping Mark

15.1 On the surface of each package, the following shipping marks shall be stencilled legibly in fadeless paint in English: a: Draeger b: Order Number; c: Part Number; d: Package Number; e: Measurement; f: Gross Weight; g: Net Weight; h: Caution Marks (if needed).

16. Confidentiality

16.1 The Supplier may not notify third parties of the contractual relationship with Draeger or any details relating to this Purchase Order, unless it is obliged to do so by public authorities or operation of law.

16.2 The Supplier undertakes to use Confidential Information only for the purpose of fulfilling its contractual obligations to Draeger, and to treat such as strictly confidential and not to pass on such to any third party without the prior written approval of Draeger.

16.3 For the purposes of the TCP, “Confidential Information” shall mean any and all information and data of a confidential nature belonging to, or possessed by, a Party or its Affiliates Companies, including, but not limited to, proprietary, technical, research, development, inventions, manufacture, purchasing, engineering, marketing, sales, operating, performance, cost and know-how, whether or not patentable, business and process information, computer programming techniques, and all record-bearing media containing or disclosing such information and techniques, patents, trademarks, trade secrets and copyrightable materials, which is disclosed in connection with this TCP and/or a Purchase Order. Confidential Information shall include any proprietary or confidential information disclosed to the Receiving Party by or on behalf of the Disclosing Party, either directly or indirectly, in writing, orally or by drawings or inspection of documents or other tangible property, and shall expressly include any samples, models or prototypes, or parts thereof.

17. Breach and Cancellation

17.1 In the event of the Supplier's failure to comply with the terms of the Purchase Order, Draeger reserves the right to cancel the Purchase Order at any time by giving notice to the Supplier in writing. In the event of a satisfactory part completion of the Purchase Order by the Supplier, a fair and reasonable price shall be paid for all work in progress or Goods/ Services supplied at the time of cancellation. Draeger shall not be liable for any consequential loss to the Supplier.

18. Patents

18.1 The Supplier warrants that the design, construction and quality of the Goods and Services comply in all respects with any relevant laws and regulations which may be in force at the time and further that the use or sales of the Goods and Services by Draeger will not infringe any local or foreign patent, trade mark, or registered design. The Supplier undertakes to indemnity Draeger against all any loss, damage, liability, costs or expenses which Draeger may suffer or incur by reason of any breach of the said warranties.

19. Anti-Corruption Code

19.1 The Supplier shall not, directly or indirectly, make any payment or gift or favour or advantage or promise of offering to any officer, manager or employee of a supranational, governmental or nongovernmental organization or institution or of a company for purpose of influencing any act or decision by such officer, manager or employee in order to generate or secure an improper advantage in relation to the business with Draeger.

19.2 The Supplier shall comply with all anti-corruption, anti-bribery and anti-money laundering laws and policies applicable in the territory in which it operates and will also comply with global anti corruption legislation to the extent that it relates to the Goods and Services being provided by the Supplier. Draeger believes corruption distorts competition, destroys trust with suppliers and the public and ultimately leads to higher costs. Draeger expects that none of its suppliers will ever take part in any corruptive business transaction.

19.3 The Supplier agrees to indemnify and hold harmless Draeger, its employees, customers, assigns, and others in respect of any claim asserted against Draeger or its employees, customers, assigns or others alleging any liability arising out of any breach by Supplier or any of the representations, obligations and warranties set forth in these TCP, or any negligent or intentional wrongful acts of the Supplier that occur during the term of these TCP. Such liability shall include, but is not limited to, damages (including punitive damages where applicable), costs, fees, and expenses.

19.4 The Supplier understands and accepts that Draeger will take appropriate measures against suppliers not complying with the obligations hereunder. Draeger is entitled to terminate all existing agreements with Supplier with immediate effect once Draeger has sufficient evidence of such violation.

20. Code of Conduct

The Supplier acknowledges that conducting business in accordance with the highest ethical standards is fundamental to Draeger. As a condition of Draeger purchasing the Goods and Services from the Supplier, the Supplier agrees to adhere to the standards set forth in Draeger's Supplier Code of Conduct, available at https://www.draeger.com/en_aunz/Terms-Conditions/Supplier-Code-Of-Conduct which is hereby incorporated into this TCP by reference (and may be amended (acting reasonably) by Draeger from time to time by notice to the Supplier).

21. Governing Law

21.1 The laws of New Zealand shall apply to this TCP and the Purchase Order. The Courts of New Zealand shall have non-exclusive jurisdiction to decide any matter arising out of this TCP.

22. Insurance

22.1 The Supplier must obtain and maintain any insurance that a reasonable and prudent supplier of Goods and Services would obtain in like circumstances to the supply under these TCP. Upon written request from Draeger, the Supplier must provide evidence of, or certificates of currency with respect to, the insurance policies help by the Supplier that are relevant to the supply of the Goods and/or the Services the subject of the Purchase Order.

23. Assignment, Subcontracting and Proportionate Liability

23.1 The Supplier shall not without the prior written consent of Draeger assign, transfer or sub-contract the manufacture of the Goods or provision of the Services without the express written consent of Draeger.

24. Limitation of Liability

24.1 Nothing contained herein shall deem to be construed as a limitation of Suppliers liability.

25. Right to Audit Supplier

25.1 Draeger shall upon reasonable notice to the Supplier be entitled to audit all books and records relating to the supply of Goods and Services by the Supplier.

26. Notices

26.1 Service of any notice or other communication under these TCP must be in writing and sent to the address set out in the front page of the Purchase Order.

27. Severability

27.1 A provision or part of a clause of this TCP that is illegal or unenforceable may be severed from this TCP and the remaining provisions or parts of the provisions of this TCP continue in force.

28. Waiver

28.1 No waiver of any right under this TCP will be binding on a party unless in writing and signed by the party giving that waiver.


Revision: 16-Jun-2021

Terms and Conditions of Purchase for Draeger New Zealand Ltd.

Supplier Code of Conduct for Draeger New Zealand Ltd.