Terms and Conditions

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 Scope of Application, General

1.1 Any delivery of goods and provision of services (hereinafter collectively “Goods”) by Dräger to the Customer shall be subject to these GTC set forth herein. These GTC form a constituent part of all offers, orders and agreements between Dräger and the Customer, to the full extent permitted by law, to the exclusion of other agreements, statements or collateral warranties and/or representations.

1.2 Alternative deviating terms and conditions, unless agreed to in writing by both parties, do not apply. Dräger and the Customer may agree to terms and conditions deviating from these GTC only if in writing and signed by Dräger, such terms shall then have priority over these GTC to the extent of any inconsistency. These GTC have precedence and apply even if Dräger provides the Goods with knowledge but without actual written confirmation and acceptance of the alternate deviating terms and conditions of the Customer.

1.3 Dräger is entitled to withdraw at any time from this agreement fully or partly by written notice without cause and without any further liability to the Customer. Any and all other rights pursuant to the GTC of sale remain unaffected,

2 Scope of Performance

2.1 Offers to Dräger shall always be non-binding. Orders shall be deemed accepted only if Dräger confirms in writing same or carries out the order. The description of Goods as stipulated on invoices or orders or brochures are provided by way of identification only and the use of that description shall not constitute a description under any contract of sale by description. The offer by Dräger shall govern the scope of performance. Statements as to weight and measurements in brochures and offers are according to best knowledge but are not guaranteed properties. Dräger reserves the right to reasonable performance modifications. The functions of any software shall be limited to the description in the performance specifications. Dräger may use components that are as good as new or that have been rendered/refurbished as good as new.

2.2 Offers and contracts that require an export license or approval by export control authorities (e.g. due to embargo) are subject to the condition precedent that such export license or approval is granted. The performance of a contract will be subject to the granting of export licenses by the competent export control authorities.

2.3 The Customer acknowledges that any export or use of Dräger Goods outside of Australia and/or New Zealand without the prior written consent of Dräger is strictly prohibited.

2.4 Technical norms serve as performance specification only, provided Dräger does not expressly provide a separate guarantee in writing for compliance with such technical norm. All warranties as to properties or shelf-life must be provided separately and in writing by Dräger.

2.5 Dräger shall retain, without limitation, any and all ownership rights, copyrights and intellectual property rights included in drawings, technical documents and other data, information and documentation, including in electronic form; and these may not be disclosed to third parties without Dräger‘s prior written consent.

2.6 In all instances of resale of Goods, the Customer is responsible to comply with all applicable rules and regulations (eg. export). The Customer shall defend and indemnify Dräger from all costs and claims based on the violation of rules and regulations by the Customer.

2.7 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 any pandemic. Such causes include, without limitation, non-punctual 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.

3 Software

3.1 Should software be included in the scope of delivery, Dräger grants to the Customer subject to the following terms a non- exclusive and non-transferable right of use therein.

3.2 All rights in know-how and products including intellectual property right (e.g. inventions, copyrights) are retained by Dräger. Dräger owns and may use know-how acquired in connection with the performance of its contractual obligations without limitation for its own commercial purposes.

3.3 If software is delivered as a component of a Good or intended for a specific Good (eg. firmware), the Customer may use the software/firmware only with the specified Good. Use of software/firmware together with other equipment shall require Dräger's express written consent.

3.4 User documentation is provided in adequate form for the software’s intended purpose. Any further documentation, in particular software/firmware documentation or documentation for maintenance purposes shall require a separate express written agreement.

3.5 Unless Dräger expressly grants the Customer a multiple user License (see Clause 10.4), the Customer shall receive a single user License (see Clause 10.4) in the software (i.e. the Customer may simultaneously use the software on only one end device). However, solely for backup purposes, the Customer may make one backup copy. In the event of a multiple user License, the Customer shall comply with the installation instructions furnished by Dräger and shall keep a record of the location of every installation. Such records shall be submitted to Dräger upon request.

3.6 Software shall be furnished exclusively in machine readable form as object code.

3.7 Except where expressly allowed by Dräger in writing, the Customer may not modify, engage in reverse engineering, translate, extract or otherwise link the software to other programs. The Customer may not remove from any data carriers alpha-numerical and other labels and manufacturer information in particular, copyright notices and shall transfer same without modification to any backup copy.

3.8 The Customer may not lease the software or grant sublicenses. Software acquired in conjunction with a device may only be transferred to third parties together with sale of said device.

Software may be transferred to third parties only if the Customer does not grant to the third party rights to use the software exceeding the License granted to the Customer by Dräger. In the event of resale, the Customer may not retain any copy of the software. Multiple user Licenses may be transferred only in their entirety.

3.9 If Dräger provides third party software, such as Open Source Software, (i.e. software for which Dräger holds only a derivative license), the terms and conditions of use agreed between Dräger and its licensor shall apply in addition and shall have priority. Dräger shall submit such terms and conditions of use to the Customer upon request. Should such terms and conditions of use be violated by the Customer, both Dräger and the licensor shall be entitled to assert any resultant claims and rights in their own name.

3.10 The Customer agrees to store the software and any documentation carefully in order to preclude any abuse.

3.11 The sale/transfer of software does not include an obligation by Dräger to provide software maintenance services. This shall require a separate written agreement.

4 Prices & Payment Terms

4.1 Prices are excluding valued added tax (e.g. GST). Prices do not include packaging carriage insurance, storage, installation and shipping which are payable by the Customer.

4.2 Unless otherwise agreed in writing, Orders shall be payable upon placement without any deductions in the agreed currency (unless advised otherwise A$). The Customer shall bear any costs associated with payment and payment methods.

4.3 Dräger reserves the right without notice to alter the price of Goods whether or not a deposit or part payment has been received by Dräger for such Goods 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.

4.4 Unless otherwise Dräger agrees in writing, all invoice issued by Dräger will be payable within 30 days for Goods delivered and is also payable in respect of every part-delivery notwithstanding that the balance of the Order has not been or will not be delivered.

4.5 If the Customer fails to make any payment when due, Dräger is entitled to charge a late premium charge of two (2) percent per month on all monies outstanding and/or discontinue/suspend the supply of Goods to the Customer.

5 Shipping, Packaging, Passing of Risk

5.1 Risk in the Goods shall pass to the Customer no later than upon shipping of the Goods, even if freight prepaid delivery is agreed, and even if deliveries by instalments are made or Dräger has agreed to provide other services, such as commissioning or installation.

Should shipment be impossible or delayed without any fault on the part of Dräger, risk shall pass to the Customer upon notification that the Goods are ready for shipment.

5.2 Should Dräger carry out commissioning or installation of the Goods being delivered within the framework of the supply agreement, risk shall pass to the Customer upon acceptance by the Customer. Should acceptance not be effected within twelve (12) days following written notification of readiness for acceptance, risk shall pass to the Customer upon expiry of such period, unless Dräger is responsible for the non-acceptance. Should commissioning or installation be delayed for any reason whatsoever, risk shall pass to the Customer no later than three months after shipment.

5.3 Should software be furnished by way of electronic communications media (e.g. via the Internet), risk shall pass when the software leaves Dräger's control.

5.4 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.

6 Delivery and Delivery Time

6.1 Dräger will endeavour to deliver/provide the Goods within the Customer’s required delivery period, but subject to Clause 6.2 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.

6.2 Dräger shall not be liable for any loss or damage resulting from any delay or failure to give notice of any delay in delivery. Any cause of delay beyond the reasonable control of Dräger, shall entitle Dräger to extension of time for the period of delay.

6.3 Dräger reserves the right to deliver the Goods by instalments at its absolute discretion and in such circumstances the Customer shall accept delivery of such Goods by instalments.

6.4 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 (and for collection, Goods are complete and ready to collect).

6.5 The Customer shall be responsible for providing adequate labour and/or material handling equipment for the loading and unloading of Goods at its premises or delivery point.

6.6 The deadline for provision of Goods shall be reasonably extended in the event of Force Majeure, in particular, in the case of natural events, mechanical damage and other unforeseeable operational disruptions, measures within the context of industrial disputes, in particular, strike and lockout, and in the event of unforeseeable hindrances and incorrect or late self-delivery, provided Dräger is not responsible therefor. Should the relevant delivery or service become impossible or a hardship due to the aforementioned circumstances, Dräger may rescind the agreement fully or partially.

6.7 Any voluntary return of Goods must have the prior written consent of Dräger and be within 10 days of delivery to the Customer and be returned at the sole expense of the Customer (including any re-stocking fee of at least 15 percent of entire Order applied by Dräger).

6.8 If the Goods are voluntarily returned to Dräger which then 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.

7 Retention of Title

7.1 Notwithstanding any credit granted to the Customer or anything contained in these GTC, Dräger shall retain the full legal and beneficial ownership and title in and to all the Goods delivered to the Customer by Dräger (including products into which the Goods have been incorporated) until the Customer has paid to Dräger the full amount due on all outstanding invoice(s) to Dräger (“Retained Goods”). Until then the Customer will hold and sell the Retained Goods as agent and fiduciary for Dräger and the Customer shall store the Retained Goods separately and with the interest of Dräger as owner clearly marked on the Retained Goods and the area in which they are stored.

7.2 The Customer will ensure that the Retained Goods are kept in good and serviceable condition. The Customer will secure the Retained Goods from risk, damage and theft; and keep the Retained 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’s own goods.

7.3 Regardless of any processing or reworking of the Retained Goods, Dräger shall retain ownership in the products at any stage and level of processing. Such reworking or processing shall be affected free of charge to Dräger and without any obligation on the part of Dräger.

Any processing, linking or combination by the Customer with other items not owned by Dräger shall give rise to co-ownership by Dräger in the new object in proportion to the invoice value of the Retained Goods to the other objects used by the Customer at the time of such processing, linking or combination. Moreover, the provisions concerning the Retained Goods shall apply mutatis mutandis to any new object created as a result of such processing, fixing or combination.

Should the Retained Goods be fixed with buildings or other components of real property belonging to the Customer or otherwise, the Customer agrees the Retained Goods are not a fixture and agrees to separate the Retained Goods in the event of any default in payment at Dräger's request, and to acknowledge/transfer ownership in such items to Dräger. Such items shall continue to be deemed Retained Goods within the meaning of these GTC. Any rights of retention, in particular, based on reimbursement of outlays for maintenance or improvement of such items shall be excluded as against Dräger.

7.4 The Customer may resell Retained Goods during the ordinary course of business if it retains title in the Retained Goods in accordance with the provisions of this Clause 7. The Customer shall hold any proceeds of sale as trustee for Dräger to the extent of the unpaid invoiced price of those Retained 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 the Customer hereby assigns to Dräger any and all receivables based on resale of the Retained Goods and under the retention of title agreed to by it to secure any and all receivables of Dräger (including future receivables) under the business relationship, irrespective of whether the Retained Goods are resold without or following processing and irrespective of whether they are sold to one or more purchasers. Dräger hereby accepts such assignment. Upon request by Dräger the Customer shall notify its purchasers about this assignment.

Until revocation by Dräger, the Customer is authorised to collect the assigned receivables. Dräger is entitled to revoke this direct debit authorisation if the Customer fails to meet its payment obligations towards Dräger. Upon revocation the Customer shall identify the receivables and the respective debtors and submit all information and documents required to collect the receivables and to inform the debtors about the assignment. Dräger is entitled to inform the debtors about the assignment itself.

7.5 The Customer may not make any dispositions/encumbrances over the Retained Goods, in particular, pledges, liens or transfers by way of security, other than those specified in Clauses 7.3 and 7.4.

7.6 In case of breach of contract by the Customer, in particular, in the event of a default in payment, Dräger may rescind the agreement upon written notice without liability to the Customer and repossess the Retained Goods. The Customer shall be obliged to return the Retained Goods. Dräger may (and/or in particular when any application to commence insolvency proceedings over the Customer's assets) demand the immediate return of the Retained Goods.

7.7 Levies of execution, attachments and other dispositions and interventions by third parties shall be notified by the Customer to Dräger without undue delay.

7.8 If the Customer does not pay for any Retained Goods 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 Retained Goods are stored at such premises) and use reasonable force to take possession, custody or control of the Retained Goods without liability for the tort of trespass, negligence or payment of any compensation to the Customer whatsoever and such retaking possession, custody or control shall be at the expense of the Customer.

7.9 The Customer agrees that where the Retained Goods have been retaken into the possession of Dräger, Dräger has the absolute right to sell or deal with the Retained Goods, and if necessary sell the Retained Goods with the name of the Customer on those Retained Goods and the Customer hereby grants an irrevocable license to Dräger to do all things necessary to sell the Retained Goods bearing the name of the Customer.

7.10 The Customer shall provide Dräger with extensive support in order to protect Dräger's ownership rights in the Retained Goods in accordance with the domestic legal system of the delivery location and destination. Consequently, the Customer acknowledges that by virtue of Clause 7.1 and 7.4 (above), Dräger has a security interest (including purchase money/price security interest and/or first ranking security interest) in the Retained Goods for the purposes of the Personal Property Securities Act 2009 (Cth) (PPS Act) (or other equivalent local legislation) and to the extent applicable the PPS Act (or other equivalent local legislation) applies.

7.11 The Customer acknowledges that Dräger may do anything reasonably necessary, including but not limited to registering any security interest which Dräger has over the Retained Goods on the Personal Property Security Register (or other equivalent local registry) established under the PPS Act (or other equivalent local legislation) in order to secure and perfect the security interest and comply with the requirement of the PPS Act (or other equivalent local legislation) at the Customer’s expense.

7.12 The Customer agrees to do all things reasonably necessary to assist Dräger to undertake the matters set out in Clause 7.11 (above).

7.13 The Customer hereby waives any rights or entitlements in respect of Retained Goods provided by the PPS Act (or equivalent local legislation) to any notification or information required to be provided by Dräger under the PPS Act (or any equivalent local legislation).

7.14 Except to the extent that the Customer is an individual purchasing Goods wholly or predominantly for personal domestic or household purposes, in order to secure the Customer's due and punctual performance of all its obligations to Dräger (including the payment of all monies owing) under the Contract or otherwise, the Customer charges all of its legal and beneficial interest (present and future) in any and all real property and all present and after acquired property. On Dräger‘s request, the Customer must at its cost execute any documents and do all things required by Dräger to more fully document or better secure a charge arising under this clause on such terms as it sees fit or to register a charge or security interest in respect of any of the Customers real and personal property including, effect and maintaining registrations on the PSS Act. The Customer also consents to Dräger lodging caveats in respect of any of the Customer's property. The Customer appoints Dräger or an authorised office of Dräger to be its attorney for the purpose of executing and registering such documents.

8 Notice of Defects, Acceptance

8.1 The Customer shall inspect deliveries without undue delay following receipt in order to ascertain acceptance and any quantitative errors and transport damage. In the event of transport damage, a damage record shall be prepared in order to secure any compensatory damage claims against the carrier (post, rail, shipping agent, etc.). Such damage record shall be sent to Dräger without undue delay.

8.2 Defects can be asserted in writing only within ten (10) days of receipt of the Goods, unless the relevant defect is latent. Latent defects and defective performance of other services shall be notified to Dräger in writing immediately following discovery thereof, provided that such notice is given prior to Warranty Period expiration in Clause 9.

8.3 Should the Customer be prevented from taking delivery and/or acceptance due to Force Majeure circumstances (Clause 6.6), the deadline for notice of defects and/or acceptance, shall be reasonably extended by no more than that period of Force Majeure.

8.4 Dräger may notify the Customer about readiness for acceptance (but in default, upon delivery). Should acceptance not take place within ten (10) days following notification of readiness for acceptance (but in default, upon delivery), the Goods shall be considered accepted by the Customer upon expiry of such period. The same shall apply to any partial delivery/acceptance of Goods.

9 Defects Liability

9.1 Should there be a defect in any Goods provided by Dräger and should notice thereof have been given in a timely manner within the meaning of Clause 8.2 of the GTC, Dräger shall, at its choice, remedy the defects without charge or deliver defect-free replacement or pay for the cost of replacing the Goods (“Substitute Performance“), provided the defect was solely the responsibility of Dräger. In the event of a defect in software, Dräger may also provide a new software release in lieu of repair.

9.2 There shall be no defect if the Goods are suitable for normal use and manifest the quality that is normal for items of the same kind that could be expected by the Customer. In particular, the Customer is aware that given the current state of technology it is not possible to create software that is fully free and clear of errors. Moreover, there shall be no quality defect in assembly/installation instructions if assembly/installation could have been carried out free and clear of any errors/defects. Moreover, no quality defect shall lie in the event of inappropriate or improper use, incorrect storage, erroneous assembly/installation or start-up by the Customer or third parties, regardless of wear and tear, erroneous or negligent handling, improper maintenance, use of inappropriate operating resources, defective construction work, or chemical, electrochemical or electrical influences for which Dräger is not responsible, software errors that cannot be reproduced and in the event of defects that do not arise in last software release furnished to the Customer by Dräger, provided the Customer can be reasonably expected to use the last software release provided. The delivery of a marginally different item or a marginally different number of items than agreed, shall not entitle the Customer to claim damages or rescind the agreement.

9.3 The Customer shall provide Dräger with the necessary time and opportunity to perform any and all remedial measures. In particular, upon request, the Customer shall send the delivered Goods to Dräger or a workshop to be specified by Dräger. Otherwise Dräger shall be discharged from liability for any consequences. Defects in delivered software shall be described in as much detail as possible. Only in urgent cases where safety is at risk or in order to prevent unreasonably excessive damage (with prior written notification to Dräger) may the Customer remedy the defect itself.

9.4 Any claims on the part of the Customer based on the expenses required for Substitute Performance, in particular, transport, travel, work and material costs shall be excluded, including if such expenses occur because the Customer moved the delivered Goods to a different destination than the agreed delivery destination, unless the removal of the Goods conforms to the intended use of the Goods. Moreover, Dräger may refuse to render Substitute Performance if this would be associated with unreasonable costs.

9.5 Any parts that are removed and replaced by Dräger within its defect-related liability, those removed/replaced parts shall become the property of Dräger.

9.6 Should the Customer or a third party perform improper repairs, Dräger shall not be liable for any resulting damages. The same shall apply to any modifications to the delivered Goods performed without Dräger's prior written consent including to any software extension effected by the Customer or a third party over and above the interface provided by Dräger.

9.7 Any defect-related liability shall be excluded for used goods, except for components that are sold as good as new or that have been rendered/refurbished as good as new.

9.8 Claims on the part of the Customer for defect-related liability pursuant to this Section 9 and 11 to the extent legally possible, shall become time barred twelve (12) months (“Warranty Period”) following delivery of the Goods in the event of a purchase and work performance contract (or if otherwise agreed in writing, following start up of the delivered item or acceptance of performance).

9.9 To the extent legally possible and notwithstanding Dräger’s liability under Clause 11 of these GTC, any additional claims or claims other than those governed by this Clause 9 on the part of the Customer during the Warranty Period against Dräger or its vicarious agents based on defect-related liability shall be excluded.

10 Intellectual Property Rights and Copyrights

10.1 Dräger shall supply the Goods free and clear of third party intellectual property rights and copyright ("Intellectual Property Rights"). Should a third party assert legitimate claims against the Customer based on the infringement of Intellectual Property Rights by the Goods delivered by Dräger and used in accordance with this Agreement, Dräger shall be liable towards the Customer in accordance with the following provisions.

10.2 Dräger shall, at its choice and at its expense, either arrange a license for the relevant Goods, modify them such that the relevant Intellectual Property Right is not infringed, or exchange them. Clause 11 of the GTC shall apply to compensate the damages claim. The foregoing obligations shall lie only if the Customer notifies Dräger immediately in writing of the claims asserted by the third party, and does not acknowledge any infringement to the third party, and Dräger retains a discretion in relation to any and all measures in mounting a defence and settlement negotiations without notice to the Customer. Should the Customer cease use of the service, it shall notify the third party that cessation of use does not constitute an acknowledgement of any infringement of an Intellectual Property Right.

10.3 Claims on the part of the Customer shall be excluded if the Customer is responsible for the infringement of any Intellectual Property Right or if the infringement of the Intellectual Property Right is caused by use by the Customer or by an application not authorised in writing by Dräger, by a modification by the Customer, or by use of the service in conjunction with products not delivered by Dräger.

10.4 Unless agreed otherwise in writing, Dräger grants to the Customer a revocable, non-exclusive, non-transferable, royalty-free, license (but not to reverse engineer, change, modify or vary) to use and to allow the Customer the full use and enjoyment of those Goods purchased in accordance with this Agreement (“License”) of any Intellectual Property Rights.

10.5 To the extent legally possible and notwithstanding Dräger’s liability under Clause 11 of these GTC, any additional claims or claims other than those governed by this Clause 10 on the part of the Customer against Dräger or its vicarious agents based on legal defect in Intellectual Property Rights shall be excluded.

11 Liability and Warranties

11.1 All rights, representations, guarantees, warranties, conditions, undertakings, remedies or other terms in relation to the Goods that are not expressly set out in this Agreement to the maximum extent permitted by law are excluded and no terms shall be implied into this agreement as a matter of fact or law.

11.2 To the extent legally possible and notwithstanding any other clause, Dräger's aggregate liability to the Customer arising under or in connection with this Agreement, whether based in contract, (including negligence), equity, statute, by way of indemnity or contributions, warranty, guarantee or otherwise, is limited to the lesser of the value of the Goods ordered or A$50,000.00.

11.3 To the extent legally possible and notwithstanding any other clause, Dräger will not be liable to the Customer for any indirect or consequential loss, however it arises or for any loss of profit, loss of revenue, loss of opportunity, loss of use, loss of anticipated profits, damage to goodwill, loss of customers or loss of anticipated savings.

11.4 The Customer shall take any and all necessary and reasonable steps in order to prevent or limit damage. In particular, the Customer shall ensure the regular backing up of software, programs and data. Therefore, Dräger shall be only liable for reasonable effort and expense for the re-procurement of data subject to the requirements of Clauses 11.1 to 11.3 and subject to the Customer having ensured that such data can be reconstructed from other data material backup.

11.5 Compensatory damage claims against Dräger or its vicarious agent other than those governed by this Clause 11, whatever legally permissible, shall be excluded. No other warranties or conditions either express or implied by law are made with respect to these Goods. Dräger is not liable for any non-compulsory and/or excludable local law statutory provisions.

12 Compliance with Laws, Anti-Corruption

12.1 The Customer warrants that it is acting in accordance with applicable laws, including antitrust laws and regulations on anticorruption and money laundering, antibribery, antislavery and other criminal law provisions.

12.2 If there is reason to suspect that the Customer is in breach of above obligations, Dräger is entitled to terminate the Agreement without notice. In the event of such termination,

(i) Dräger is released from any obligation to execute the Agreement,

(ii) the Customer shall indemnify and keep harmless Dräger and its employees against any and all damages to the extent such damages are based on the Customer’s violation of its obligations under this Clause 12.

13 International Trade Compliance

13.1 The Customer certifies that:

(i) the Goods will not be used for any restricted activity that supports the development, production, handling, usage, maintenance, storage, inventory or proliferation of any weapons of mass destruction and its delivery systems or participation in transaction with the persons engaged in such activities;

(ii) it will not subsequently export or otherwise re-sell the Goods to any person or country that is subject to any sanction imposed pursuant to a decision of the United Nation Security Council

14 Export Control Regulations 

14.1 The Parties undertake to comply with all applicable export control regulations of international and national authorities. This may include screening business partners with regard to current sanctions lists by the UNO or other organisations. In order to conduct export control checks the Customer, upon request by Dräger, shall provide to Dräger all information pertaining to the ultimate buyer and/or end user of the Goods, as well as any existing export control restriction regarding the Goods.

14.2 Dräger is not obliged to perform deliveries, orders and other obligations under this Agreement, if that performance is hindered by the applicable export laws and regulations of international and national authorities. The Customer is not entitled to claim damages or compensation if Dräger refrains from deliveries for above reasons.

15 Safety Provisions & Indemnity

15.1 The Customer shall be responsible for compliance with applicable local/domestic statutes, regulations and safety provisions, in particular, in relation to admission, installation, operation, maintenance and repair of the delivered Goods and agrees to comply therewith. The Customer shall indemnify Dräger against any and all claims deriving from non-compliance with such provisions by the Customer.

15.2 In the event of the Customer has resold the Goods:

(i) the Customer shall at its own cost, maintain records for 11 years after resale of the Goods to the third party purchaser, containing product no. and serial no., name and address of the third party purchaser, date of dispatch, location and installation, handing-over, training and after-sales service performances. If Dräger requests access to such records for Goods tracing, recall purposes or corrective actions, the Customer shall immediately make such records available to Dräger.

(ii) the Customer shall without delay notify Dräger in writing of any incident associated with Goods that may have caused or contributed to a third party purchaser or any other person’s harm, and of any event that might require Dräger to trace back or recall any Good or to undertake corrective action because of a serious quality deficiency of a Good;

(iii) Dräger may instruct the Customer to perform recall actions or corrective actions for Goods which may include appropriate information disclosure as collected under Clause 13.2 (“Corrective Actions”). The Customer shall perform all actions as instructed by Dräger for a Corrective Action, in particular maintenance measures and documentation, and shall inform Dräger in writing about completion of such Corrective Actions.

(iv) The Customer shall not support any unauthorised or arrange service agents to service the Goods and will not supply any service, repair or parts to any third party purchaser or arranged service agents without Dräger prior written approval.

15.3 To the full extent permitted by law the Customer

(i) 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.

(ii) agrees that the indemnity in Clause 13.3(i) 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.

16 Forum and Applicable Law

16.1 These GTC and the contract shall be governed by and construed in accordance with the laws from time to time, of the State of Victoria and to the exclusion of the United National Convention on International Sale of Goods and its conflict of laws rules.

16.2 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts sitting in Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

16.3 In the interpretation of the Agreement, no rule of construction applies to the disadvantage of the party preparing the document on the basis that it prepared the documents forming part of the Agreement or any part of it.

16.4 If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.

16.5 None of the terms of the Agreement shall be varied, amended, waived, discharged or released except with the prior written consent of Dräger. No action, consent, conduct or representation by Dräger, other than prior written consent, shall constitute any amendment, variation, waiver, discharge or release of the Customer’s obligations to strictly comply with the Agreement.

16.6 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 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.

17 Privacy and Waiver

17.1 Any 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.

17.2 The Customer hereby consents to the terms of Dräger‘s Data Protection and Privacy Statement and the local law in relation to any personal information provided by the Customer.

17.3 The Customer agrees that Dräger may seek a credit report and may give to and seek from other credit providers 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 personal information, and 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 (Cth).

Revision: 16 May 2024

Draeger Group and any of its subsidiaries (“Draeger") 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 force majeure. Such causes include, without limitation, unpunctual or incorrect delivery by suppliers, impairment of Draeger's own production due to employee absences or precautionary measures. In such cases the delivery time shall be extended automatically.

Draeger 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.

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

In these terms and conditions Draeger 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 Draeger to the Lessee.

1.2 This SRTC and the agreed quote constitute the entire agreement between Draeger and the Lessee. All previous negotiations, understandings, representations, warranties, memoranda or commitment about the subject matter of the rental agreement are merged in this SRTC and are of no further effect except where Draeger and the Lessee expressly agree in writing to incorporate other terms.

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

1.4 If there is any ambiguity, inconsistency or conflict between the provisions of any of the documents that comprise the SRTC (as set out in clause 1), those documents take precedence in the following order:

a) these SRTC terms;

b) the agreed quote, and;

c) the account-holder (credit) application.

2 Delivery and Terms of Use

2.1 Transport costs for delivery of the Rented Equipment will be billed by Draeger 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. The Lessee is deemed to be satisfied as to the suitability, condition and fitness for purpose of the Rented Equipment unless Draeger is notified in writing within 24 hours of the delivery of the Rented Equipment. In the event of transport damage, Draeger is to be notified within 24 hours in order to safeguard any damages claims that may be pursued by Draeger against the carrier (postal service, rail service, Freight Company, etc.).

2.3 The Lessee will not move the Rented Equipment from the delivery location and must immediately 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 Draeger reserves and the Lessee grants the right to access, inspect, maintain and/or repair the Rented Equipment at the Lessee's premises (if the Lessee is not the owner of the relevant premises, it acknowledges it is the agent of the owner), at any time during business hours provided that reasonable notice has been provided. The Lessee must assist Draeger (and its representatives) in exercise of this right.

2.5 In the exercise of the right to access, inspect, maintain and/or repair the Rented Equipment at the Lessee's premises, the Lessee shall provide full and safe access to Draeger and shall be liable for and indemnify Draeger 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 Lessee to ensure the said full and safe access.

2.6 If Draeger require access or to enter upon the Lessee’s premises, Draeger will be entitled to use reasonable force to retrieve the Rented Equipment with any costs or damages thereby caused or any requirement to make-good being indemnified by the Lessee and/or any such liability being waived by the Lessee.

2.7 When using the Rented Equipment, the Lessee shall

a) follow the operating instructions and comply with the applicable common law, statutory and regulatory provisions and will not permit the Rented Equipment to be used for any illegal purpose or in any manner that would amount to a breach of any law or the SRTC;

b) operate the Rented Equipment safely, only for its intended use and in accordance with manufacturer’s instructions;

c) ensure persons operating the Rented Equipment are suitably instructed in its safe and proper use and where necessary, hold a current certificate of competency and/or licensed to use the Rented Equipment;

d) ensure the Rented Equipment is not operated by any person under the influence of alcohol and/or drugs.

2.8 The Lessee will

a) ensure that the Rented Equipment is not defaced, tampered with or any safety equipment/guards and safety information/signage is not removed, altered or covered/obscured;

b) ensure the Rented Equipment is operated in a safe and suitable environment;

c) ensure that the Rented Equipment is kept safe and secure.

2.9 If the Rented Equipment is contaminated with hazardous substances, the Lessee must promptly notify Draeger in writing providing, amongst any other relevant information, full details of the contamination and hazardous material. At Draeger'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.

2.10 The use of the Rented Equipment outside the jurisdiction specified in clause 9.4 is only allowed after prior consultation with Draeger and permission is received in writing.

2.11 Possession of the Rented Equipment may only be transferred to third parties - e.g. by way of a sublease - with Draeger'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 or terminated pursuant to SRTC, 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 and a maximum term of 1 year less one day shall apply.

3.2 The Lessee shall return the Rented Equipment to Draeger in good condition (subject to fair wear and tear) at the end of the Lease Term. Draeger expressly reserves the right to charge the Lessee for any costs incurred by Draeger 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 If the Lessee fails to return the Rented Equipment when required by the SRTC or within 24 hours of oral or written demand to the Lessee, the Lessee will be deemed to be in unlawful possession of the Rented Equipment without Draeger’s consent.

3.4 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, Draeger 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 Where any amount payable under the SRTC becomes overdue, all outstanding amounts whether due to Draeger under the terms of the SRTC or under any other agreement between Draeger and the Lessee will become immediately due and payable by the Lessee to Draeger within 7 days of the date of default.

4.3 Draeger may charge the Lessee interest calculated on a daily basis and compounded monthly on overdue amounts from the date the relevant payment was due, to the date of actual receipt of payment at an interest rate which is 5% greater than the rate published by the Reserve Bank of Australia calculated daily and compounded monthly.

4.4 If the Rented Equipment or part thereof is returned late, the terms of this SRTC will apply month to month and additional pro-rata rental charges will apply at the same rate as the existing rental but Draeger is entitled to demand the return of the Rented Equipment.

4.5 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 totaling 15% of the agreed rental payments for the Lease Term will be charged to the Lessee including if the Lessee cancels or terminates the Lease prior to the Rented Equipment being delivered.

4.6 The Lessee will, in addition, also be liable for any taxes, duties (including stamp duty), levies, charges, fines or imposts in connection with the SRTC including any amount of GST charged by Draeger on any supply made by Draeger under or in connection with SRTC.

5 Servicing and Maintenance of the Rented Equipment

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

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 Draeger and/or the manufacturer.

5.3 If the Rented Equipment breaks-down or becomes unsafe to operate, the Lessee shall immediately stop using the Rented Equipment, ensure it does not sustain any further damage and prevent the Rented Equipment from causing injury, loss or damage to any person or property.

5.4 If the Rented Equipment is damaged, lost, stolen, breaks-down or becomes unsafe to operate, the Lessee must immediately inform Draeger in writing with sufficient details to enable Draeger to determine a reasonable cause of action to assist the Lessee at Draeger’s discretion. All expenses, subject to the SRTC, will be at Lessee expense with any equipment supplied as replacement will be supplied for the unexpired balance of the Lease Term and under the SRTC.

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

5.6 Only Draeger is authorised to approve any third party 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").

5.7 The Lessee is required to deliver Rented Equipment as directed by Draeger for any necessary Servicing and Maintenance. Draeger will provide the Lessee with substitute equipment if Servicing and Maintenance is being carried out by Draeger.

5.8 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.

5.9 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.

5.10 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 Draeger 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.

5.11 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. The Rented Equipment is a chattel and shall not be affixed to any land or building. 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 acknowledges it is the agent of the land owner and it must immediately notify the land owner that the Rented Equipment is being affixed or installed for a temporary purpose only.

5.12 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 upon collection or delivery to Lessee and during the Lease Term until collected or delivered to Draeger. If the Rented Equipment is lost or destroyed, the Lessee shall pay the replacement value based on the annual published list price.

5.13 The Lessee will not at anytime without the prior written consent of Draeger release or dispose or loose custody, possession or control of the Rented Equipment during the Lease Term.

6 End of lease

6.1 The Rented Equipment is to be returned to Draeger immediately on the end of the Lease Term or any termination of the SRTC to the address nominated by Draeger.

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 Draeger as a result of any damaged including transport damage.

6.4 Draeger is entitled to recover from the Lessee on demand as a debt due and payable:-

a) any payment of the rental or other monies payable to Draeger under the SRTC (until the Rented Equipment is delivered to or repossessed by or accepted as lost by Draeger);

b) the cost of any renovations or repairs performed by Draeger to return the Rented Equipment to good order and repair, fair wear and tear excepted;

c) all costs incurred by Draeger in re-taking possession of the Rented Equipment (including make-good if applicable);

d) any storage fees paid in respect of the Rented Equipment;

e) any transport costs in respect of the Rented Equipment;.

7 Termination

7.1 Draeger 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 or fails to renew 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/lapses 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 term of this SRTC and fails to rectify such failure within 14 days of written notice from Draeger;

i) an event of default (however described) occurs under any other agreement or arrangement between the Lessee and Draeger or between any related body corporate (as used under Corporations Act 2001 (Cth)) of the Lessee and Draeger;

j) the Lessee ceases to carry on business or ownership or control materially changes of the Lessee; or

k) if the Lessee's conduct indicates that the Lessee no longer intends to be bound by this SRTC.

If Draeger's right to terminate the SRTC under paragraphs (d) (e) or (j) of clause 7.1 is unenforceable as a matter of law, that unenforceability does not limit Draeger's right to terminate the SRTC on any other grounds permitted by the SRTC.

7.2 If Draeger terminates this SRTC under clause 7.1, the Lessee must:

a) on receiving notice of termination, deliver the Rented Equipment back to Draeger in accordance with Clause 6 without undue delay, otherwise Draeger has the rights to repossess the Rented Equipment. The Lessee is solely responsible for the costs (including any make-good) associated with returning the Rented Equipment pursuant to the SRTC;

b) pay to Draeger 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;

c) allow any recovery and repossession of the Rented Equipment;

d) allow Draeger to take any and all actions it is entitled to take notwithstanding that Draeger may have waived any previous breaches or defaults by the Lessee under the SRTC;

If the Lessee wishes to terminate this SRTC before the Lease Term expires, the Lessee can apply to Draeger in writing. Draeger 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 or otherwise that Draeger 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 Draeger, Draeger fails to pay its debts as they fall due, Draeger 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 Draeger or any part of Draeger's assets or an administrator is appointed to Draeger;

c) Draeger 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) Draeger ceases to carry on business or ownership or control materially changes; or

e) Draeger'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. Upon request and at least annually, the Lessee must provide Draeger with proof of insurance cover for the Rented Equipment for the full new replacement value.

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. The Lessee will not do or permit or allow to be done anything which might or could prejudice any insurance of the Rented Equipment and will immediately inform in writing Draeger of any such occurrence.

8.3 The Lessee will promptly pay all premiums and stamp duty in respect of such insurance policy and not compromise any insurance claim without Draeger’s consent and irrevocably authorises Draeger to receive all such insurance monies.

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

8.5 The Lessee is liable for damage to and theft of the Rented Equipment and unconditionally and irrevocably indemnifies Draeger 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 Draeger to administer, exercise, enforce or preserve any of Draeger'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 Draeger 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).

8.6 The Lessee indemnifies and releases Draeger, 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 Draeger to exercise, enforce or preserve Draeger's rights under or in connection with this SRTC.

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

8.8 The indemnity in clause 8.6 is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of the SRTC. It is not necessary for Draeger to incur expense or make any payment before enforcing the right of indemnity conferred by the SRTC. The Lessee must pay on demand any amount it must pay under an indemnity in the SRTC.

8.9 To the extent permitted by law, and notwithstanding any other provision of the SRTC, the maximum aggregate liability of Draeger under the SRTC shall not exceed the total amount of the annual rental received by Draeger in relation to the applicable agreed quote as at the date the claim arose.

8.10 Without derogating from clause 8.9, Draeger, to the extent permitted by law, shall not be liable for:

a) any loss or anticipated loss of profit, income, revenue, saving, production; business, good will, contract or opportunity increase in financing or operating costs; liability for loss or damage suffered by third parties; legal costs (on a solicitor and client basis); fines levied; loss of reputation or any other financial or economic loss; and

b) any indirect, special or consequential loss, damage, cost, expense or penalty not expressly referred to in the preceding paragraph, howsoever arising.

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, 5 business days following the date on which the notice or demand was sent; and

c) if transmitted by facsimile or email, 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 laws of the State of Victoria Australia shall govern this Agreement. and all disputes shall be heard in Victoria Australia. The parties submit to the non-exclusive jurisdiction of the Courts of Victoria Australia.

9.5 This SRTC is governed by the jurisdictional law in clause 9.4, subject to the exclusion of the UN Convention of Contracts for the International Sale of Goods and conflict of law provisions.

9.6 For the avoidance of any doubt, the Lessee understands and agrees that the SRTC will prevail over, and Draeger will not be bound by, any terms and conditions of purchase (express or implied) submitted by the Lessee, whether printed on or sent with any purchase order or otherwise, unless agreed in writing by Draeger.

9.7 The expiry or termination of the SRTC does not affect the rights, which have accrued before that expiry or termination or any rights and obligations of the parties which survive expiry or termination.

9.8 No delay or omission to exercise any right, power or remedy accruing to Draeger upon any continuing breach or default under the SRTC shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any right of Draeger to take action or make a claim in respect of a continuing breach or default or to be acquiescence to it.

10. Ownership and Risk

10.1 Notwithstanding anything contained in this SRTC, Draeger shall retain the full legal and beneficial ownership and title in and to all Rented Equipment and the rights of the Lessee to use the Rented Equipment are as bailee only. The Lessee is not entitled to offer, sell, assign, transfer, sublet, mortgage, create any type of security interest over, pledge or otherwise deal with the Rented Equipment in any way which is inconsistent with the right of Draeger as owner of the Rented Equipment.

10.2 The Lessee acknowledges and agrees that in certain circumstances the SRTC constitutes a Security Agreement under the Personal Property Security Act 2009 (Cth) (PPSA) and that Draeger will have a Security Interest in the Rented Equipment (and in any Proceeds in that Collateral), and the Lessee consents to the registration of those Security Interests on the Personal Property Securities Register.

10.3 The Lessee agrees to execute any and all documents required to enable Draeger to register a Financing Statement or Financing Change Statement as may be required from time to time under the PPSA to perfect the Security Interests under this SRTC. All fees and costs associated with those Financing Statements and Financing Change Statements, plus any fees and costs incurred in relation to the maintenance, enforcement or discharge of those Security Interests, must be promptly paid by Lessee (or promptly repaid to Draeger where Draeger incurs those fees or costs).

10.4 The Lessee acknowledges and agrees that the Security Interests created under this SRTC are granted for value and attach to the Rented Equipment on the Lessee first obtaining possession of the Rented Equipment and not at any other time.

10.5 To the maximum extent permitted by law:

a) for the purposes of sections 115(1) and 115(7) of the PPSA:

i) Draeger need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4) of the PPSA; and

ii) sections 142 and 143 of the PPSA are excluded;

b) for the purposes of section 115(7) of the PPSA, Draeger need not comply with sections 132 and 137(3); and

c) if the PPSA is amended after the date of the SRTC to permit the Lessee and Draeger to agree to not comply with or to exclude other provisions of the PPSA, Draeger may notify the Lessee that any of these provisions are excluded, or that Draeger need not comply with any of these provisions, as notified to the Lessee by Draeger, and that notice will be binding on the Lessee.

10.6 As far as the law permits, the Lessee waives any right it may have to receive a notice of the registration of the Security Interest granted to Draeger, by the Lessee under the SRTC.

10.7 The Lessee will not change its name or ACN, ARSN or ABN or any other identifying characteristics of the Lessee without first giving Draeger 15 business days notice of the change or relocate its principal place of business outside Australia or change it place of registration or incorporation.

11 Privacy

11.1 The Lessee agrees that Draeger may obtain, disclose and use information:

a) about the Lessee's credit worthiness for the purpose of obtaining and maintaining credit information about the Lessee or collecting overdue payments;

b) about the Lessee for the purpose of providing services to the Lessee, including sharing information with Draeger's related companies and advisors.

11.2. The Lessee consents to Draeger recording the details of the Lessee and of this SRTC and any other agreement between the Lessee and Draeger on the Personal Property Securities Register.

12      International Trade Compliance

The Lessee certifies that:

12.1 the Rented Equipment will not be used for any restricted activity that supports the development, production, handling, usage, maintenance, storage, inventory of proliferation of any weapons of mass destruction and its delivery systems or participation in transaction with the persons engaged in such activities; 

12.2 it will not subsequently export or otherwise re-sell the Rented Equipment, including but not limited to, any person or country that is subject to any sanction imposed pursuant to a decision of the United Nation Security Council.

Revision: 16 May 2024

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

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 In addition to clause 6.1, these TCP

(a) to the extent of any inconsistency, ambiguity or conflict, shall prevail; and

(b) shall exclusively apply provided that Draeger and the Supplier have not entered into an alternative written agreement signed by both parties.

1.4 In the event of any inconsistencies between the terms of an alternative written agreement signed by Draeger and the Supplier, then the interpretation in that alternative written agreement as sign shall prevail.

1.5 There shall be no variation/modifications 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 Draeger 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. The acceptance by the Supplier of any Purchase Order whether in writing or by the supply of any Goods or performance of any Services shall be deemed to be acceptance of these TCP.

3. Goods and Services specification

3.1 The basis for the Purchase Ordering of Goods and/or 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 uncertainty including any specifications or instructions.

3.3 It shall at all times remain the responsibility of the Supplier to ensure and clarify any Goods or Services specification provided by Draeger.

3.4 The Supplier must comply with all laws, permits, licenses and other government requirements affecting the Goods and/or Services under TCP.

4. Modifications/Variations

4.1 Draeger may from time to time and without notice vary specifications (e.g. drawings, packaging), or modify dates and delivery destinations (“Site(s)”). The Supplier shall implement such modifications/variations without delay.

4.2 Draeger may delay, defer or suspend its Purchase Order for Goods and Services at anytime without cause and/or liability/penalty.

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

4.4 If any Draeger required modification or variation causes an increase or decrease in Prices shown on the Purchase Order, the Supplier must notify Draeger in writing within 5 business days of receipt of the variation/modification.

5. Prices & Payment

5.1 Prices shown in the Purchase Order shall prevail according to the last quoted price provided by the Supplier, and represents the full compensation payable by Draeger for the Goods/Services and cannot be escalated unless otherwise agreed in writing and signed by Draeger.

5.2 The Supplier hereby agrees to afford to Draeger any reduction or discount in prices given to the Supplier’s other customers and Supplier shall be required to provide proof thereof to Draeger upon demand.

5.3 Unless this Agreement provides otherwise, any consideration that may be provided for under the Purchase Order is inclusive of GST (the goods and services tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).

5.4 Invoices, quoting Draeger Purchase 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.

5.5 Payments shall be due and payable pursuant to formal acceptance of the Goods and/or Services by Draeger. Payment will not be made earlier than the end of calendar month following the month during which the Goods and/or Services are delivered and invoiced, unless prior written agreement by Draeger for payment on delivery or on any advance payment terms.

5.6 Payment by Draeger does not constitute a confirmation or acceptance that the Goods and/or Services conform to the specifications or are free of defects. Draeger shall be entitled to reject Goods and/or Services after delivery and payment thereof at anytime.

5.7 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/Site, unless Draeger specified different delivery terms or a different delivery destination/Site. Agreed prices shall be fixed prices and shall cover all costs to be borne by the Supplier according to DDP or agreed delivery terms.

5.8 The compensation for Goods/Services shall cover any and all costs arising in conjunction with the relevant Goods/Service including any insurance, fees, charges, duty, taxes, levies, freight, imposts, packaging and packing costs and any other costs and expenses associated with manufacturing, delivering and/or supplying the Goods and the cost of the Service and any items used/supplied in conjunction with the Services.

5.9 If Draeger disputes an invoice, Draeger will pay the undisputed part of the relevant invoice (if any) and dispute the balance until a resolution is reached.

5.10 The Supplier must provide all relevant records to enable Draeger to calculate and/or verify the amount of the invoice.

5.11 Draeger may reduce any payment due to the Supplier under the Agreement by any amount for which the Supplier is liable to Draeger under this Agreement, including costs, charges, damages and expenses, and will notify the Supplier in writing of any amounts deducted and the basis for the deduction. This clause does not limit Draeger’s right to recover those amounts in other ways.

5.12 Neither payment of moneys nor an acceptance of those moneys will be evidence that the work or Goods and/or Services described in the invoice 

have been performed or delivered satisfactorily. Payment will be payment on account only.

6. Delivery & Late Delivery Charge

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 a date. No amendments or other terms and conditions of sale of the Supplier will be accepted by Draeger other than the TCP, no acceptance by Draeger of a Supplier order confirmation or other document shall be effective to alter these TCP.

6.2 The Supplier shall provide a copy of delivery note upon delivery and Goods should be appropriately marked to ensure ease of identified along with all relevant documentation and information as reasonably required for the installation, commissioning, operation, use and maintenance of the Goods..

6.3 As time is of the essence, if delivery is not made on the date or within the period specified in the Purchase Order, Draeger reserves the right to with seven (7) days written notice to:

a) terminate the whole or any part of the Purchase Order without compensation, but such termination shall be without prejudice to the rights of Draeger hereunder; and/or

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

6.4 The Supplier must use its best endeavours to avoid and mitigate the effects of any delay in the supply of the Goods and/or Services. The Supplier must immediately notify Draeger in writing of any delay (or potential delay) after becoming aware of such delay (or potential delay) and provide details of the anticipated length of the delay.

6.5 Any Goods delivered before the time specified for delivery may be accepted (with or without conditions) or rejected at the sole discretion of Draeger.

6.6 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 reasonable control, Draeger shall be entitled to defer the date or dates of delivery and/or payment until the stoppage, interruption or restriction has ceased. The Supplier shall hold the Goods in safe custody at Supplier’s risk and cost and ensure that they are in good condition until the actual delivery.

6.7 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 and quality officially confirmed as satisfactory by Draeger will be accepted.

7.2 Draeger reserves the right to request either or in combination replacement for rejected Goods or repeat of Services or to claim deduction/credit for same, all at Draeger’s discretion.

7.3 Goods rejected by Draeger and returned/stored (at Supplier’s cost) will be credited to Draeger by the Supplier upon rejection.

7.4 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.

7.5 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 Notwithstanding any inspection or acceptance, the Supplier warrants that all Goods and/or Services furnished under the Purchase Order are free from any encumbrances, free from any defects in design, materials and workmanship and that the Goods and/or Services fully comply with any supplied or referenced specifications and drawings. Draeger relies on this warranty clause by the Supplier in purchasing the Goods and/or Services covered by the Purchase Order.

8.2 Notwithstanding any inspection or acceptance, the Supplier warrants:

a) that Goods delivered under this Agreement will be of merchantable quality and fit for their intended purpose, comply with all regulatory requirements and be free from all defects in design, performance, workmanship and makeup;

b) the Services will be performed in accordance with best practice standards of diligence, skill, care and efficiency expected of a competent contractor performing services of a similar nature to the Services and comply with all regulatory requirements;

c) it will, and will ensure that its employees, agents, contractors and sub-contractors will, at all times be suitably qualified and experienced and entitled to supply the Goods or perform the Services; and

d) Draeger’s use of the Goods or Services will not infringe any intellectual property rights,

e) that any claim made against Draeger by any of the Supplier’s employees, agents, contractors and/or sub-contractors in respect of any relevant legislation concerning income tax, workers compensation, annual leave, long service leave, superannuation or any applicable award, determination or agreement of a competent industrial tribunal is the Supplier’s sole responsibility;.

8.3 The Warranty Period shall commence on the date of receipt and acceptance of the Goods by Draeger or performance and acceptance of the Services by Draeger. The length of the warranty period shall be twelve (12) months or such period as agreed in writing with Draeger.

8.4 At anytime 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), immediately replace, rectify or completely repair the damaged or defective Goods or Services at no cost or inconvenience to Draeger.

8.5 Draeger can at its option during the Warranty Period make good any defects in the Goods or Service and require the Purchaser to re-imburse Draeger for any expenses it incurs, including cost of repair and any associated costs.

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

8.7 The provisions relating to any warranty for Goods and/or Services specified under this Agreement shall be in addition to and shall not limit any conditions or warranties expressed or implied by statute or common law. The Supplier’s liability under this Agreement shall be in addition to any condition or warranty in Draeger’s favour implied by statute or common law as to the quality or the fitness for any particular purpose of the Goods and/or Services and each part thereof

8.8 All warranties referred to above are in addition to any express warranty provided by the Supplier or the manufacturer, including any warranty against defects.

9. Title & Risk

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

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).

9.3 If Draeger pays any amount for the Goods prior to delivery or make part payment for the Goods:

a) Title to the Goods or if the Goods are incomplete, title in the partly completed Goods and any material and parts to be used in their manufacture or assembly and then on hand) passes to Draeger; and

b) Clauses 9.5(c) to (h) inclusive apply.

9.4 If Draeger considers that the Supplier has failed, or if the Supplier has indicated that it may be unable to fulfil any obligation under this Agreement, Draeger or its agent may at any time enter the Supplier’s premises and remove the Goods and any materials or parts to which Draeger has title.

9.5 Where:

a) Draeger has provided the Supplier with any item of its property that relates to the Goods and/or performance of the Services and that property of Draeger is in the Supplier’s possession in order to undertake the work under the Purchaser Order; or

b) Draeger has made part payment to the Supplier for the Goods and/or the performance of the Services, then the Supplier:

c) acknowledges that it holds the relevant Goods (or raw materials or part or component of the Goods) as bailee for Draeger;

d) must provide to Draeger details of any applicable serial number (or identification numbers or marks) that relate to the relevant Goods (or raw materials or part or component of the Goods);

e) at all times prior to delivery and acceptance of such Goods (or raw materials or part or component of the Goods):

(i) must ensure that the relevant Goods (or raw materials or part or component of the Goods) remain clearly identifiable as property of Draeger, are stored in a designated area that is separate from all other goods, and are kept in a good and merchantable condition;

(ii) must not part with possession of the relevant Goods (or raw materials or part or component of the Goods) otherwise than in accordance with this Agreement (or as otherwise agreed by Draeger in writing);

(iii) must comply with all requirements of Draeger in relation to the storage, maintenance and preservation of the relevant Goods (or raw materials or part or component of the Goods); and

(iv) must not grant, create, give or allow to come into existence any encumbrances over the relevant Goods (or raw materials or part or component of the Goods) other than an encumbrance in favour of Draeger;

f) grants a Security Interest (as defined under the Personal Property Securities Act 2009 (Cth) (PPSA) over the relevant Goods (or raw materials or part or component of the Goods) in favour of Draeger to secure the performance by the Supplier of its obligations in connection with this Agreement (whether past, present or future);

g) acknowledges that Draeger may register a financing statement in relation to Draeger’s Security Interest; and

h) must do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which Draeger requests for the purposes of:

(i) ensuring that Draeger’s Security Interest is enforceable, perfected and otherwise effective;

(ii) enabling Draeger to apply for any registration, or give any notification, in connection with Draeger’s Security Interest so that the Security Interest has the priority required by Draeger; or

(iii) enabling Draeger to exercise any rights in connection with Draeger’s Security Interest.

10. Tools

10.1 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 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.

10.2 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 and entitlements.

10.3 The Supplier shall permanently mark any tools owned by Draeger 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.

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

11. Intellectual Property Rights

11.1 Any drawings and samples provided 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. All Draeger pre-existing intellectual property including drawings and data supplied or used by the Supplier are confidential and must be kept by the Supplier 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.

11.2 Insofar as any work to be performed by the Supplier under the Purchase Order may involve contract created intellectual property right (such as creation of documents, drawings, designs, models, inventions, technical data, equipment, information, other data and patentable material), all rights in any such item are owned by Draeger upon creation 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 items 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.

11.3 All intellectual property rights in clause 11.1 and 11.2 that are owned by Draeger and/or provided to the Supplier by Draeger in connection with this Agreement, to the extent reasonably required to enable the Supplier to fully complete this Agreement, is under a non-exclusively licensed to the Supplier solely for this purpose of completion of the Agreement and shall not be used for any other purpose.

11.4 The Supplier grants Draeger free of charge an unlimited, perpetual, irrevocable, transferable license in any and all intellectual property rights required for Draeger to use, modify, reproduce, maintain, repair and/or obtain the full unrestricted benefit of the Goods and/or Services.

11.5 The Supplier warrants that the Goods and/or Services shall not infringe any third party intellectual property rights. Should third party intellectual property rights be infringed, the Supplier shall remedy the infringement of intellectual 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. All other rights accrued on the part of Draeger shall remain unaffected.

11.6 The Supplier indemnifies and keeps harmless Draeger against all any loss, damage, liability, costs or expenses which Draeger may suffer or incur by reason of any intellectual property breach/infringement and/or any claim, action or damage arising therefrom.

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

12. Indemnity

12.1 The Supplier is solely responsible for and indemnifies and holds harmless Draeger, its officers, employees and contractors against all suits, proceedings or demands, damages, actions, losses, costs or expenses of any kind that Draeger its officers, employees and contractors may suffer, sustain or incur arising, without limitation, from any one or more of the following:

a) personal injury or death of any persons;

b) loss or damage to real or personal property;

c) any damage to the Site, Goods or any property whether located on the Site or otherwise;

d) a breach by the Supplier of any laws in operation in the Territory;

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

f) any negligent act or omission or wilful misconduct by the Supplier arising out of the performance of the Purchase Order. if the loss or damage arises in connection with, caused or contributed by any act, error or omission of the Supplier or its employees, agents, contractors and sub-contractors or any breach of the Agreement or

g) any claim made against Draeger by any of the Supplier’s employees, agents, contractors and/or sub-contractors in respect of any relevant legislation concerning income tax, workers compensation, annual leave, long service leave, superannuation or any applicable award, determination or agreement of a competent industrial tribunal; or

h) any claim that the Goods, the Services or the results of the Services, or Draeger’s (or any person claiming through Draeger) use of the Goods or the results of the Services infringes or allegedly infringes the intellectual property of any person.

12.2 Each indemnity in this Agreement is a continuing obligation separate and independent from any other obligations and survives termination of this Agreement

13. Packaging

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

14. Shipping Mark

14.1 On the surface of each package, the following shipping marks shall be stencilled legibly in fadeless paint in English:

a) Draeger; c: Part Number; e: Measurement; g : Net Weight;

b) Order Number; d: Package Number; f: Gross Weight; h: Caution Marks (if needed).

15. Confidentiality

15.1 The Supplier may not disclose to any third parties, 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.

15.2 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.

15.3 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, Draeger or its Associated Entity (as defined in the Corporations Act 2001 (Cth)), including, but not limited to, any information relating to section 275(1) of PPSA, 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 any purpose and which is identified as confidential. Confidential Information shall include any proprietary or confidential information disclosed to the Supplier by or on behalf of Draeger, 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.

15.4 If Confidential Information received by the Supplier contains any Personal Information (as defined under the Privacy Act 2008 (Cth)), the Supplier must, with respect to that Personal Information:

a) comply with the Privacy Legislation (including Privacy Act 2008 (Cth) and other local applicable legislation);

b) comply with Draeger's policies with respect to handling any Personal Information (or the Supplier's own procedures, provided these are consistent with Draeger's policies); and

c) establish effective measures (and as may be directed by Draeger) to:

(i) safeguard Personal Information from unauthorised access, modification, use, loss or disclosure;

(ii) ensure that any Personal Information will be held, used and disclosed in a manner consistent with the Privacy Legislation; and

(iii) ensure accurate and complete records are kept of the Supplier's handling of Personal Information.

15.5 Immediately when this Agreement ends or at any time upon demand by Draeger, the Supplier will at Draeger's direction either return to Draeger or destroy any and all Confidential Information, materials and property (including intellectual property) of Draeger provided or generated as a result of the Agreement that may be in the possession or control of the Supplier.

15.6 The Supplier shall indemnify Draeger and keep Draeger indemnified from and against all liabilities, losses, damages, actions, suits, proceedings, claims, costs (including legal costs) and expenses arising from any breach of this clause 15 by the Supplier whatsoever.

16. Breach and Termination

16.1 In the event of the Supplier's failure to comply with the terms of the Purchase Order, Draeger reserves the right to terminate 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 termination. Under no circumstances (to the full extent of the law) will Draeger be liable for any indirect or consequential loss to the Supplier.

16.2 Draeger may at any time terminate any Goods or Services covered by a Purchase Order which are yet to be delivered or provided. Upon receipt of a termination notice, the Supplier must cease to manufacture the Goods or provide the Services and mitigate its costs..

16.3 Either party may immediately terminate the Purchase Order by notice in writing to the other party if the other party:

(a) does not carry out its obligations under the Purchase Order, and such breach is not remedied within 14 days of notice being given to the party to remedy the breach; or being the Supplier,

(b) breaches any law relating to the supply of the Goods or performance of the Services;

(c) commits any act of misconduct or willful neglect in discharge of its obligations under the Agreement;

(d) becomes Insolvent or unable to pay its debts as and when due; or

(e) has a receiver or receiver and manager appointed to any of its assets; or

(f) dies or becomes incompetent, incapable or otherwise prevented from discharging any obligation hereunder.

16.4 Draeger may immediately terminate the Purchase Order for its convenience by notice in writing to the Supplier. Draeger must pay the Supplier, as the Supplier's sole remedy in relation to the termination;

(a) all amounts due and payable to the Supplier for Goods supplied and Services performed at the date of termination; and

(b) the cost of Goods properly ordered for which the Supplier has paid, or is legally bound to pay, provided that the Supplier cannot otherwise recover the cost of the Goods and title to those Goods vest in Draeger upon payment.

16.5 Termination will not affect any other rights or obligations that may have accrued prior to termination;

17. Work on Site

17.1 The Supplier acknowledges that Draeger is committed to eliminating work related injuries and occupational illnesses with a view to achieving the vision of Zero Harm.

17.2 The Supplier must, in performing the Services or undertaking anything related to the Goods on Site:

(a) use its best efforts not to interfere with any of Draeger’s activities, or the activities of any other person, on the Site;

(b) take all necessary action to ensure the health and safety of its employees, agents, contractors and sub-contractors and others at the Site, including that those persons are not exposed to an unacceptable level of risk;

(c) comply with, and ensure that its employees, agents, contractors and sub-contractors comply with:

(i) Draeger’s policies and Site procedures relating to workplace health and safety and the environment;

(ii) all applicable laws, government requirements and industrial awards and agreements; and

(iii) all directions and orders given by Draeger’s representatives and any other person with a concurrent safety duty, in relation to health and safety;

(d) report any incident relating to workplace health and safety or the environment to Draeger as soon as reasonably possible;

(e) ensure that the premises are left secure, clean, orderly and fit for immediate use; and

(f) so far as is reasonably practicable, comply with any Draeger direction including consult co-operate and co-ordinate activities with Draeger, any suppliers or contractors or other persons engaged in or associated with the Services to

(i) achieve effective co-ordination of activities to ensure optimal health and safety risk management; and

(ii) enable Draeger and the Supplier and other relevant parties to comply with their respective obligations under all relevant safety legislation.

(g) provide information/records and complete induction and/or ongoing training requirements on any system as reasonably directed by Draeger at the Supplier’s own expense.

17.3 Draeger may, at any time in its absolute discretion, direct the Supplier to withdraw any of its employees, agents and sub-contractors from providing any part of the Goods and/or Services and the Supplier must promptly arrange for the person to cease being involved in any way in the provision of the Goods and/or Services notwithstanding any provision in any other contract. If so directed by Draeger, the Supplier must replace the person with a person of suitable ability, experience and qualifications within a time period specified by Draeger at no cost to Draeger.

18. Anti-Corruption Code

18.1 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 governmental or non-governmental 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.

18.2 The Supplier shall comply with all anti-slavery, anti-corruption, anti-bribery and anti-money laundering laws and Draeger policies applicable and will also comply with global anti-corruption and anti-slavery legislation to the extent that it relates to the Goods and Services being provided by the Supplier.

18.3 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.

18.4 The Supplier must immediate inform Draeger in writing of any breach or suspicion of breach of this clause.

18.5 The Supplier understands and accepts that Draeger will take appropriate measures against any suppliers not complying with the obligations hereunder. Draeger is entitled to terminate all existing agreements with Supplier with immediate effect if the Supplier breaches this clause.

19. Code of Conduct

19.1 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 Business Partner Code of Conduct, available at https://www.draeger.com/en_aunz/Terms-Conditions/Business-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).

19.2 The Supplier must (at its cost):

a) ensure that the Supplier and its employees, agents, contractors and sub-contractors do not engage in any conduct or omission which would amount to a breach of the Business Partner Code of Conduct;

b) comply with and ensure its employees, agents, contractors and sub-contractors comply with any Draeger policy relating to Business Partner Code of Conduct;

c) maintain appropriate records relating to the performance of the activities required by the Purchase Order;

d) promptly notify Draeger if it discovers or suspects any event or circumstance within its supply chain or involving the Supplier, its employees, agents, contractors and sub-contractors or a Related Body Corporate (as defined in the Corporations Act 2001 (Cth)) that could give rise to an audit or investigation relating to any Business Partner Code of Conduct. The Supplier must provide Draeger with an update on the event or circumstance or the results of any audit or investigation by the Supplier if requested by Draeger;

e) establish and maintain policies and procedures to act against any breach of the Business Partner Code of Conduct; and

f) provide all reasonable assistance to Draeger, including access to inspect the Supplier's premises, the provision of information and access to interview the Supplier’s employees, agents, contractors and sub-contractors about their labour conditions.

19.3 The Supplier warrants that it has not been convicted of any offence, or been the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence, of or in connection with any requirements of the Business Partner Code of Conduct, including Modern Slavery Act 2018 (Cth).

19.4 The Supplier must immediate inform Draeger in writing of any breach or suspicion of breach of this clause.

20. Governing Law

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

21. Insurance

21.1 The Supplier must obtain and maintain any insurance that a reasonable and prudent supplier of Goods and/or 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, public liability insurance and professional indemnity/product liability insurance applicable to the performance of the Goods and/or Services. Upon Draeger’s request, the Supplier must provide evidence of, or certificates of currency with respect to, the insurance policies held by the Supplier that are relevant to the supply of the Goods and/or the Services the subject of the Purchase Order.

22. Assignment, Subcontracting and Proportionate Liability

22.1 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, 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 if the jurisdiction is in Western Australia and, to the extent permitted by law, the 

equivalent provision of any legislation for proportionate liability in each other state and territory have no operation.

23. Limitation of Liability

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

24. Right to Audit Supplier

24.1 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 and the Supplier must assist in any such endeavour.

25. Notices

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

26. Severability, entirety and relationship

26.1 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 to the extent and in a manner that best gives effect to the remaining provisions.

26.2 The relationship between the parties is that of principal and independent contractor. This Agreement and the relationship between the parties does not constitute a contract of employment between Draeger and the Supplier (nor any employee or agent of the Supplier) in the provision and performance of the Goods and/or Services. The Supplier has no authority to and will not bind Draeger to any agreement or otherwise hold itself out or deal as an agent of Draeger.

26.3 If the Supplier executes this Agreement as trustee of a trust (Trust), whether or not the fact of the Trust is disclosed to Draeger and whether or not the Supplier is expressed in this Agreement to be a trustee, the Supplier acknowledges that this Agreement is binding on the Supplier in its own capacity and as trustee of the Trust and that Draeger has recourse to both the assets of the Supplier and the assets of the Trust if the Supplier breaches this Agreement. The Supplier warrants that it is fully authorised to enter into this Agreement, is acting within its powers under the Trust deed and can be indemnified from the assets of the Trust.

26.4 This Agreement constitutes the entire agreement and understanding between the parties with respect to its subject matter. It replaces all previous agreements between or undertakings by either of the parties with respect to its subject matter

27. Waiver

27.1 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.

27.2 Failure of Draeger to insist upon strict performance of any of the terms of this Agreement shall not be deemed a waiver of any subsequent default of them.

27.3 If Draeger does not exercise a right, remedy or power at any time, this does not mean that it cannot exercise it later.

27.4 The shipping or receiving of any Good and/or Service under the Purchase Order shall not be deemed a waiver of any rights for any prior failure by the Supplier to comply with any of provision of this Agreement.

27.5 Draeger’s rights, powers and remedies provided in this Agreement are in addition to any rights, powers and remedies provided by law.

27.6 Draeger may exercise a right, remedy or power in any way it considers appropriate.

27.7 In the interpretation of the Agreement, no rule of construction applies to the disadvantage of the party preparing the document on the basis that it prepared the documents forming part of the Agreement or any part of it.

Revision: 12-Apr-2023

1 General; Subject of the Agreement

1. Contractual partner for users ordering Online Learning Courses under these General Terms of Use for Online Learning Courses at Dräger Online Academy (hereafter referred to as “Terms of Use”) is Draeger Australia Pty Ltd,8 Acacia Place, Notting Hill Victoria 3168 ; Telephone: +61 (03) 9265 5000; E-Mail: customer.service@draeger.com (hereafter referred to as “Draeger”).

2. Draeger offers Online Learning Courses in the framework of its Dräger Academy to train users in the proper use and maintenance of products manufactured and/or distributed by Draeger or Draeger affiliates (hereafter referred to as “Online Learning Courses”). The Online Learning Courses can be booked on the Dräger website through a web shop (hereafter referred to as “Web Shop”). These Terms of Use govern the booking process and use of any Online Learning Courses whether on the Dräger website or otherwise by the user.

3. The offer of the Web Shop and/or the Online Learning Courses is exclusively directed towards individuals, i.e. natural or legal persons or partnerships with legal personality who or which, when entering into a legal transaction, acts in exercise of his/her or its trade, business or profession. Therefore, only individuals are entitled to book Online Learning Courses.

4. Any terms and conditions of a user deviating from these Terms of Use shall not apply.

2 Online Learning Courses

1. Draeger undertakes to provide the Online Learning Courses with the functionalities required to achieve the intended learning goals. Draeger reserves the right to further develop the functionalities in the future and to introduce additional functionalities to the Online Learning Courses.

2. Draeger will make the booked Online Learning Course available online for the user within 24 hours upon confirmed payment of the course fee (if applicable). Each Online Learning Course shall remain available online for the user for a minimum period of one (1) year following the booking.

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3. The right to access the booked Online Learning Courses only exists within the scope of the current technical and operational standards. The booked Online Learning Courses are available for a 97% monthly average. Due to the performance of necessary maintenance works and improvements it is possible that the Web Shop and Online Learning Courses or individual functionalities thereof may be unavailable for short periods of time, such reasonable maintenance times being excluded from the calculation of the monthly availability. Draeger will take into consideration the justified interests of the user, in particular by way of advance-communication of maintenance time in a timely manner. Draeger has the right to suspend the availability of the Online Learning Courses for the fulfilment of certain security precautions.

3 Booking Process

1. Online Learning Courses can be booked via the Web Shop or any other authorised means. Users can either login with an existing Dräger Academy account or enter the required contact (and payment, if applicable) details in the booking process at the Web Shop or any other authorised means, which can often lead to the creation of a new Dräger Academy account. Where appropriate, the selected Online Learning Course(s) will be displayed in the user’s virtual shopping cart. The order details will be summarised once again in an overview before the order is confirmed/sent. The user can view all the data there and correct it using the edit functionality.

2. Acceptance of the user’s offer and thus the conclusion of the contract with the user is dependent on the payment (where appropriate):

3. Credit Card (applicable where payment is required) When the user places his/her order, he/she also sends his/her credit card details to Draeger payment service provider. After legitimization of the user as the legitimate cardholder, Draeger – through its payment service provider – requests the user’s credit card company to initiate the payment transaction and thereby accepts the user’s offer.

4. Upon acceptance of the offer according to the aforementioned process, the user will receive a notification/email confirming his/her booking together with (i) confirmation of these Terms of Use, and (ii) information on how to access the Online Learning Course(s).

4 Payment (when applicable)

1. Course fees can be paid at the point of booking by credit card (VISA, MasterCard). In any case payment must be received prior to the user being able to access the Online Learning Course(s).

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2. If the user does not provide accurate payment details or if the respective credit card company does not authorise the payment, the order will be cancelled by Draeger and deemed void.

3. All payments are due in Australian dollars (AUD$) at the time the order has been placed. Any taxes, in particular GST, are charged at the statutory rate.

5 Certificates

Upon successful completion of the booked Online Learning Course, the user receives a certificate/notification certifying his/her successful completion of the respective Online Learning Course. Where certificates are provided, the certificate will be made available for download in the user’s account on the Dräger website upon successful completion of the booked Online Learning Course.

6 Warranties

Draeger warrants that the Online Learning Courses are available to the user in the scope and with the availability agreed in § 2. Beyond this, Draeger does not assume any warranties and gives no independent guarantee. In the event of any defects, Draeger will undertake the necessary measures to remove the defect within an appropriate period of time.

7 Copyright and Rights of Use

1. The user acknowledges that any and all rights existing in respect of the Online Learning Courses, including any and all intellectual property rights such as copyrights and trademark rights and any and all other protective rights are exclusively and completely vested in Draeger or, as applicable, third-party licensors of Draeger.

2. The user is not entitled to take screenshots or other images of the contents displayed during the Online Learning Courses, download the content of the Online Learning Course or parts thereof or copy or distribute the content of the Online Learning Courses in any other way. This shall apply only to the extent that such activity is not expressly permitted in accordance with applicable law.

3. The user may not allow anyone else to access the Online Learning Courses via his/her log-in details.

8 Limitation of Liability

1. Draeger shall be liable for breach of contract, tort, and any other liability that cannot by law be excluded or limited. Nothing shall exclude Draeger’s liability for (i) death or personal injury resulting from

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negligence, (ii) fraud or fraudulent misrepresentation (iii) breach of the Australian Consumer Law.

9 Confidentiality

1. Except as otherwise set forth in these Terms of Use, each party may disclose to the other party certain confidential information under these Terms of Use.

2. Each party agrees that all code, know-how, business, technical and financial information or any information specifically designated as confidential or that would be understood to be confidential or proprietary by a reasonable person disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”).

3. Any Draeger technology and any performance information relating to the Online Learning Courses shall be deemed Confidential Information of Draeger without any marking or further designation.

4. Except as expressly authorised herein, the Receiving Party will use (and will ensure that its employees, affiliates, agents, contractors and any approved third parties also use) reasonable efforts (which shall be no less than the efforts used to protect its own confidential information of a similar nature) to prevent the disclosure of any Disclosing Party’s Confidential Information for any purpose other than providing the training contemplated by these Terms of Use unless authorised by the Disclosing Party.

5. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can document:

• was rightfully in its possession or known to it prior to receipt of the Confidential Information;
• is or has become public knowledge through no fault of the Receiving Party;
• is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
• is independently developed by employees of the Receiving Party who had no access to such information.

10 Data Protection

1. Draeger processes such user’s personal data that is required to process bookings of Online Learning Courses (including through the Web Shop) and perform the Online Learning Courses. When processing personal

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data, Draeger observes the applicable statutory provisions and in accordance with its privacy statement. Draeger takes technical and organisational measures to warrant data security. Further information on data protection can be found in our privacy statement. Draeger’s contact details as the controller of personal data can be found under § 1(1) above. 2. In order to process the user’s personal user data technically, Draeger uses external service providers. For the technical operation of the Web Shop, the processing of orders submitted through the Web Shop and the execution of the Online Learning Courses, the user’s personal data most likely be processed by PlusPort B.V., Gevers Deynootweg 61, 2586 BJ Den Haag, Netherlands, on behalf of Draeger.

3. In the course of any payment process, payment data (possibly including personal data) will also be processed by the payment service provider Adyen N.V., Simon Carmiggeltstraat 6-50, 1011 DJ, Amsterdam, The Netherlands.

4. The laws relating to data privacy in the Netherlands are different to those in Australia. Draeger reasonably believes that the recipient of information is subject to law that has the effect of protecting your information in a way that, overall, is at least substantially similar to the way in which the Australian Privacy Principles protect your information, and there are mechanisms that you can access to take action to enforce that protection .

5. In case that the user submits personal data of other persons (e.g. employees) when booking Online Learning Courses through the Web Shop in order to grant them access to the booked Online Learning Courses, the user must ensure that such submission complies with applicable data protection laws.

11 Choice of Law, Place of Performance, Place of Jurisdiction

1. These Terms of Use are, in respect of application and interpretation, exclusively subject to the laws of Victoria, Australia.

2. Place of performance shall be Victoria. In respect of all claims in connection with the Online Learning Courses, the courts in Victoria shall have exclusive place of jurisdiction.

12 Miscellaneous

1. Except as they may be supplemented by additional terms and conditions, these Terms of Use constitute the entire agreement with the user pertaining to the subject matter hereof and supersede any and all prior oral or written understandings or agreements with the user in

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relation to the access to and use of the Web Shop and/or Online Learning Courses. 2. Any changes, amendments or additions to these Terms of Use, including this written form clause, must be in written form to be valid.

3. The invalidity of individual provisions of these Terms of Use does not affect the validity of the other provisions. The invalid provisions or portions thereof shall in the first place be interpreted/replaced by such provisions that commercially correspond as much as possible in a legally effective way to the invalid provisions. The same shall apply in the event of any omissions.

4. In cases of force majeure, Draeger shall be released from its obligation to perform under these Terms of Use. All unforeseen events and events having impact on the performance of these Terms of Use for which neither of the parties is responsible shall be deemed force majeure. Such events shall include without limitation lawful means of industrial action, also in third-party companies, official measures taken by authorities, the failure of communication networks and gateways of other operators, disruptions in the area of network sellers or other technical malfunctions.

These Terms of Use (hereinafter “T&C”) apply to the use of cloud based software services (hereinafter “Service”) offered by Draeger Australia Pty Ltd (hereinafter “Provider”) to the entity commissioning the use of this Service (hereinafter “Customer”) Provider and Customer are referred to collectively as the “Parties”.

The following documents and their contents form an integral part of the T&C:

- Specification of the booked Services as set out on the product websites, the offer sheet (hereinafter “Order Form”) and documents available under https://www.draeger.com/termsandconditions, (collectively hereinafter “Specification of Services”),

- Service-specific Service Level Agreement in the respective current version (hereinafter “Service-specific SLA”), available at https://www.draeger.com/termsandconditions.

The T&C, the Specification of Services, the Service-specific SLA and other conditions and contracts referred to in these T&C form the “Agreement”.

The person acting on behalf of the Customer declares: (i) he/she is authorised to validly enter into this Agreement with effect for the Customer; and (ii) he/she agrees to be bound by the Agreement.

1. Subject of the Agreement

1.1. The subject of the Agreement is the use of the Service for a limited period of time as specified below.

1.2. The Provider provides the Customer with the Service as described in the respective current Specification of Services. The Customer can access the Service via a standard web browser.

1.3. Unless stipulated otherwise in the Service-specific SLA, the Provider will provide support in accordance with the provisions in clause 2.

1.4. If the Customer wishes to add additional quantities, modules and/or functions to the Service, these will be agreed for separate remuneration.

1.5. The Provider may grant free use of the Service or of certain components thereof for test purposes on a case-by-case basis, and may restrict the range of functions in accordance with the Agreement (hereinafter “Test Version”).

1.6. The Provider retains the right to vary these T&C at any time to ensure compliance with all applicable laws or if necessary for reasons of IT security. The current T&C are available at https://www.draeger.com/termsandconditions.

2. Availability and Support

2.1. Unless stipulated otherwise in the Service-specific SLAs, the Provider will provide the Service with an availability of no less than 98% on an annual average (hereinafter “Minimum Availability”).

2.2. The following will not be considered downtimes when determining whether the Minimum Availability has been achieved:

− downtimes due to factors not under the Provider's reasonable control, including, without limitation, acts

These Terms of Use (hereinafter “T&C”) apply to the use of cloud based software services (hereinafter “Service”) offered by Draeger Australia Pty Ltd (hereinafter “Provider”) to the entity commissioning the use of this Service (hereinafter “Customer”) Provider and Customer are referred to collectively as the “Parties”.

The following documents and their contents form an integral part of the T&C:

- Specification of the booked Services as set out on the product websites, the offer sheet (hereinafter “Order Form”) and documents available under https://www.draeger.com/termsandconditions, (collectively hereinafter “Specification of Services”),

- Service-specific Service Level Agreement in the respective current version (hereinafter “Service-specific SLA”), available at https://www.draeger.com/termsandconditions.

The T&C, the Specification of Services, the Service-specific SLA and other conditions and contracts referred to in these T&C form the “Agreement”.

The person acting on behalf of the Customer declares: (i) he/she is authorised to validly enter into this Agreement with effect for the Customer; and (ii) he/she agrees to be bound by the Agreement.

1. Subject of the Agreement

1.1. The subject of the Agreement is the use of the Service for a limited period of time as specified below.

1.2. The Provider provides the Customer with the Service as described in the respective current Specification of Services. The Customer can access the Service via a standard web browser.

1.3. Unless stipulated otherwise in the Service-specific SLA, the Provider will provide support in accordance with the provisions in clause 2.

1.4. If the Customer wishes to add additional quantities, modules and/or functions to the Service, these will be agreed for separate remuneration.

1.5. The Provider may grant free use of the Service or of certain components thereof for test purposes on a case-by-case basis, and may restrict the range of functions in accordance with the Agreement (hereinafter “Test Version”).

1.6. The Provider retains the right to vary these T&C at any time to ensure compliance with all applicable laws or if necessary for reasons of IT security. The current T&C are available at https://www.draeger.com/termsandconditions.

2. Availability and Support

2.1. Unless stipulated otherwise in the Service-specific SLAs, the Provider will provide the Service with an availability of no less than 98% on an annual average (hereinafter “Minimum Availability”).

2.2. The following will not be considered downtimes when determining whether the Minimum Availability has been achieved:

− downtimes due to factors not under the Provider's reasonable control, including, without limitation, acts of God, war, acts of terrorism, riots, governmental actions, or general network infrastructure failures,

− network or equipment failures at Customer’s site or between Customer’s site and the components used to provide the Service, and

− scheduled and emergency maintenance.

2.3. Technical support can be contacted by phone 1800 372 437 between 9.00am to 5.00pm AEST

2.4. Unless stipulated otherwise in the Service-specific SLA, the scope of support essentially comprises the following components:

− support of Customer in the event of problems using the Service,

− acceptance, classification, and, if required, forwarding fault reports to downstream support levels, and

− isolating the cause of malfunctions, fault diagnosis as well as undertaking services aimed at rectifying the fault within a reasonable period of time.

3. Changes to the scope of Service

3.1. The Provider is entitled to modify the Service to the extent necessary for the Provider to protect its legitimate interests, including, without limitation, modifications that are required for reasons of IT security or due to changes in the regulatory framework.

3.2. The Provider will give the Customer reasonable advance notice of upcoming modifications affecting essential scope of performance of the Service. If a modification in an individual case has a detrimental effect on the Customer's interests to such an extent that the Customer cannot be reasonably expected to adhere to the Agreement, the Customer will be entitled to terminate the Agreement with a notice period of three (3) months, effective from the end of the month during which termination notice has been received by the Provider.

3.3. If the Agreement is not terminated with due notice pursuant to clause 3.2., the changed scope of Service will become part of the Agreement.

3.4. If the Provider releases new functionalities that require instruction according to medical product law, and provides such instruction to the Customer, the Customer is responsible for reading and complying with such instruction prior to use.

4. Intellectual property and rights of use of data

4.1. Any and all intellectual property rights to the Service remain exclusively with the Provider. The Customer may use the Service only to the extent expressly granted in the Agreement or, if applicable, by additional mandatory statutory provisions.

4.2. The Customer is granted a non-exclusive right to access the Service online and to use the Service in accordance with the Agreement. This authorisation is limited in time to the respective agreed period of use and in terms of content to what is necessary for the contractual use of the Service or as exempted under mandatory law.

4.3. No additional rights of use are granted. In particular, the Customer is not entitled to do any of the following in relation to the Service or components thereof:

− make them available to third parties;

- reproduce, sell, modify, alter, manipulate, repair or create derivative works of them;

− reverse engineer, disassemble or decompile them, or use other methods to derive the source code of the software underlying the Service;

− utilize or exploit them in such a way that no charges are incurred or usage restrictions or quotas are exceeded;

− use them in connection with a fork or derivative work, or access them using automated means, unless stipulated in the Specification of Services;

− use them while circumventing the security mechanisms in place; or

− use them to carry out any activity which is harmful to third parties or otherwise illegal.

4.4. The Customer shall ensure that data contributed to the Service do not violate the Agreement, applicable law or any third party intellectual property.

4.5. Throughout the term of the Agreement, the Customer will allow the Provider to use, free of charge, the non-personal data contributed by the Customer to the Service, where necessary for the provision and further development of the Service.

5. Remuneration

5.1. The applicable fee (hereinafter "Service Fee") will depend on the scope of the agree Service as well as on the details specified in the associated Order Form or SAP offer or similar document.

5.2. Unless stipulated otherwise in the relevant Order Form, invoices will be issued annually in advance. The Service Fee will be payable within fourteen days of invoicing.

5.3. Prices are exclusive of applicable taxes and similar charges, including sales, use, consumption, withholding and value added taxes. Where applicable law requires the Customer to withhold any amount, the Customer will be responsible for paying withholding tax. The Service Fee will be deemed increased accordingly, with the effect that all fees agreed in these T&C or in the respective Order Form are net payment amounts.

5.4. If the Service is provided free of charge, clauses 5.1. to 5.3. shall not apply. The Customer may use the Service free of charge for the period specified in the Order Form.

6. Registration and Customer account

6.1. During the registration process, the Customer must provide complete and accurate information and keep it correct and up to date at all times. Information on the number and scope of use must be accurate. Any identification information received from the Provider in advance must be used accordingly in the registration process (e.g. for the scope of user authorisations).

6.2. The Customer must not disclose its user name, password and/or two-factor authentication or other login information to unauthorised persons and must take reasonable steps to keep such information secret.

6.3. The Customer is responsible for all activities taking place in its account. This applies irrespective of whether such activities are carried out by the Customer's employees or by a third party (including contractors or representatives). The Provider and its affiliated companies are not responsible for any unauthorised access to the Customer account. The Customer must contact the Provider without undue delay if the Customer becomes aware of any indications of possible unauthorised activities on its account or if account information is lost or stolen.

7. Cloud infrastructure

7.1. As regards its infrastructure components, the scope of use of the Service is based on the contractual arrangements between the Provider and its cloud provider. The Service is hosted on the Microsoft Azure infrastructure.

7.2. The procurement of such infrastructures and the associated service level inherently are subject to certain restrictions and conditions. In particular, the Customer's use of the cloud infrastructure is governed by the conditions agreed between the cloud provider and the Provider. The scope of services for the underlying IT infrastructure is set forth in the terms and conditions of the cloud provider. The relevant license terms and conditions and service levels are available at https://www.microsoft.com/en-us/licensing/product-licensing/products.

7.3. The Customer is responsible for all data backups. The Provider does not accept any responsibility for malfunctions or impairments of any kind caused by the Service's underlying cloud infrastructure, unless they are attributable to the Provider in the individual case.

8. Third party rights and open source software

8.1. To the best of the Provider’s information, knowledge and belief, the Service is free from third party rights that would prevent contractual use.

8.2. Should third parties be entitled to and assert own rights against the Customer, the Provider will defend and hold the Customer harmless against the asserted third party claims. The Customer shall i) notify the Provider without undue delay of any assertion of such third party rights, at least in writing, (ii) issue all powers of attorney and authority to the Provider and/or give the Provider sole control over the defence and settlement claim as deemed necessary by the Provider to defend and hold itself and the Customer harmless and (iii) provide all cooperation and assistance reasonably requested by the Provider in the defence of the claim. If the Customer discontinues its use of the Service in order to mitigate potential damage, it must notify the third party that in so doing, the Customer does not acknowledge any alleged infringement. Without the Provider's consent, the Customer is not entitled to enter into any settlements for alleged infringements.

8.3. Clause 8.2. shall apply accordingly in the Provider's favour where third parties assert claims against the Provider due to content contributed by the Customer.

8.4. Excluded from the above indemnification obligations are claims to the extent arising from: (i) use of the Service or components thereof in violation of the Agreement, (ii) modification of the Service or components thereof and use of the Service or components thereof so modified, if such claim would not have arisen but for such modifications (iii) use of the Service or components thereof in combination with hardware or software not specified in the applicable documentation or otherwise approved in writing by the Provider, if such claim would not have arisen but for such combination or (iv) use of the Service or components thereof after the Provider notifies Customer to discontinue use because of an infringement claim.

8.5. Where conflicting third party rights in fact exist, the Provider will be entitled, at its option, (i) to acquire at its own expense additionally required rights of use, (ii) modify or replace the Service in such a way that it no longer infringes third party rights, without thereby significantly impairing the scope of the Service, (iii) if (i) and (ii) are not commercially or operationally viable, to terminate the Service with immediate effect and to reimburse the Customer for the Service Fee for the contract term thereby foregone.

8.6. The Service includes free and open source software. The respective current open source license terms and conditions apply with priority to the open source elements. A list of all free and open source software used as well as the respective license terms conditions, notices and acknowledgments is available at https://www.draeger.com/opensource.

8.7. The Service may contain proprietary contents of third parties, which may be subject to their own license terms for end users and apply directly to the Customer. Such license terms are available at https://www.draeger.com/termsandconditions and take precedence over the T&C in their scope of application.

9. Liability

9.1. Subject to any indemnity or warranty under the Agreement, neither party will be liable for any indirect or consequential loss suffered or incurred by the other party in connection with the Agreement.

9.2. The aggregate liability of each Party to the other Party arising out of or in connection with the Agreement whether in contract, any indemnity, tort (including negligence) by statute or otherwise at law or in equity will not exceed the Service Fee payable under the Agreement during the period of twelve months prior to the date the claim is made.

9.3. The Customer shall take all necessary and reasonable measures to prevent or limit any damages; in particular, the Customer shall ensure that programs and data are periodically secured as part of an adequate back-up protocol, unless this is contractually owed by the Provider. Accordingly, the Provider will be liable for data recovery under the aforementioned conditions only if the Customer has ensured that such data can be reconstructed with reasonable effort from other data material, and limited to a "data peak" not covered by the respective back-up.

9.4. Nothing in the Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the Australian Consumer Law or any other applicable law that cannot be excluded, restricted or modified by agreement (hereinafter "Non-Excludable Guarantee"). To the maximum extent permitted by law, the liability of the Provider for breach of a Non-Excludable Guarantee is limited, at the Provider's option, to: (i) in the case of goods, any one or more of the following: (A) the replacement of the goods or the supply of equivalent goods; (B) the repair of the goods; (C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (D) the payment of the cost of having the goods repaired; or (ii) in the case of services: (A) the supplying of the services again; or (B) the payment of the cost of having the services supplied again.

9.5. This clause 9 is subject to clause 13.

10. Term and termination

10.1. The term of use for the Service is disclosed in the respective Order Form. Unless provided otherwise in the respective Order Form, the term of use of the Service will be one year from the starting date stipulated in the Order Form. It will be renewed for a further year at a time, unless terminated by either Party in writing with at least three months' notice prior to the end of the term.

10.2. In the event that the Service is provided free of charge, the Parties may terminate the Agreement at any time – including prior to the expiry of an agreed test period.

10.3. The right to terminate for good cause will not be affected. Cause for such termination includes, for example, a material breach of an obligation under the Agreement.

10.4. In addition, the Provider may suspend access to the Service with immediate effect if the Provider has reasonable grounds to suspect that:

− the use might put the Service, the Provider and/or a third party at risk;

− the Customer's use of the Service may be unlawful;

− the Customer is insolvent or overindebted or is at risk of insolvency;

− the Customer's contractual performance appears to be at risk due to its asset situation and the Customer fails to provide written confirmation of its performance capacity or to furnish adequate security without undue delay upon request.

10.5. The rights to use of the Service will expire at the end of the term of the Agreement. The Customer will remain responsible for any fees and charges incurred or caused up to the date of termination. The Provider will not be obligated to continue storing any Customer data contained in backup snapshots or in the database after the Agreement has ended.

11. Confidentiality

11.1. The Parties undertake to treat all Confidential Information (as defined below) they become aware of during implementation of the Agreement as confidential and to use it only for contractually stipulated purposes. Confidential Information means “any and all information, documents, details and data designated as such or which, by their nature, upon reasonable assessment must be considered confidential”.

11.2. The Parties undertake to grant access to the respective other Party's Confidential Information only to those employees who have been obligated to maintain confidentiality and who for the purpose of implementing the Agreement need to or may need to know such Confidential Information.

11.3. Adequate measures shall be implemented to protect the respective other Party's Confidential Information from unauthorised third party access. Third parties as defined in this clause 11. do not include legal and tax advisers or auditors and other consultants of the respective Party. The Parties will grant access to Confidential Information only to such advisers who are subject to professional secrecy or on whom obligations corresponding to the non-disclosure obligations under the Agreement have been previously imposed.

11.4. This non-disclosure obligation does not include any Confidential Information that:

a) was demonstrably already known to the recipient upon conclusion of the Agreement or subsequently was obtained from a third party without any breach of a non-disclosure agreement, statutory provisions or regulatory orders;

b) upon conclusion of the Agreement is in the public domain or enters it subsequently, unless this is due to a breach of the Agreement; or

c) must be disclosed due to statutory obligations or due to court or regulatory order. To the extent permitted, the recipient required to disclose will notify the other Party in advance and provide it with the opportunity to proceed against the disclosure.

11.5. This non-disclosure obligation will survive for a period of five (5) years following the end of the term of the Agreement.

12. Data protection

In the course of performing the Service under the T&C, the Provider may obtain access to personal information from the Customer as defined in the Privacy Act 1988 (Cth). In this regard the Parties agree to conclude all necessary data privacy agreements.

13. Force Majeure

13.1. Neither Party shall be liable for any delay or non-performance of any obligation under the Agreement if such delay or non-performance is caused directly or indirectly by any event beyond the reasonable control of the Party affected.

13.2. This applies in particular to strikes, epidemics, floods, accidents, earthquakes, hurricanes, riots, civil commotion, acts of terrorism, armed conflicts, blockades, embargoes or other events of force majeure (hereinafter ”Force Majeure Event”). The affected Party shall notify the other Party in writing (e-mail is sufficient) within ten (10) days of the occurrence of such Force Majeure Event.

13.3. If the fulfilment of a Party's obligations is delayed by more than 180 days from the date on which the other Party received the notice under this clause 13., either Party shall be entitled to immediate termination. The terminating Party shall not be liable for any damages resulting from the termination.

13.4. As soon as there is no longer a Force Majeure Event, the Parties shall resume performance of the Agreement without delay, unless notice of termination has been given in accordance with clause 13.3.

14. Final provisions

14.1. The Service may not be used in any country that, with regard to the object of the Service, is subject to embargo regulations of the USA, the UN or the EU. Likewise, the Service may not be used if the Customer's organisation or its employees are included in any embargo lists of the USA, the UN or the EU.

14.2. The Customer's General Terms and Conditions do not apply. This also applies if these T&C are not expressly objected to. No verbal or written collateral agreements to the Agreement exist.

14.3. The Customer may assert set-off or retention rights only on the basis of counterclaims that have been established by final legal decision or acknowledged by the Provider.

14.4. The Customer may not assign the Agreement or any of its rights or obligations granted hereunder, without the prior written consent of the Provider, which shall not be unreasonably withheld or delayed. Any attempt to transfer or assign the Agreement without such written consent will be null and void. The Provider may assign the Agreement to any of its affiliates or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of the Provider’s assets.

14.5. If individual provisions of the Agreement are or become invalid as a whole or in part, this will not affect the validity of the remaining provisions. In such case, the Parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies in case of any unintentional gaps in these T&C.

14.6. The Agreement is governed by the law of New South Wales and Australia to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the rules of private international law on the conflict of laws. Exclusive place of jurisdiction for claims between the Provider and the Customer under the Agreement or use of the Service is Sydney, New South Wales, Australia.

Revision: 03/2024

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 Scope of Application, General

1.1 Any delivery of goods and provision of services (hereinafter collectively “Goods”) by Dräger to the Customer shall be subject to these GTC set forth herein. These GTC form a constituent part of all offers, orders and agreements between Dräger and the Customer, to the full extent permitted by law, to the exclusion of other agreements, statements or collateral warranties and/or representations.

1.2 Alternative deviating terms and conditions, unless agreed to in writing by both parties, do not apply. Dräger and the Customer may agree to terms and conditions deviating from these GTC only if in writing and signed by Dräger, such terms shall then have priority over these GTC to the extent of any inconsistency. These GTC have precedence and apply even if Dräger provides the Goods with knowledge but without actual written confirmation and acceptance of the alternate deviating terms and conditions of the Customer.

1.3 Dräger is entitled to withdraw at any time from this agreement fully or partly by written notice without cause and without any further liability to the Customer. Any and all other rights pursuant to the GTC of sale remain unaffected,

2 Scope of Performance

2.1 Offers to Dräger shall always be non-binding. Orders shall be deemed accepted only if Dräger confirms in writing same or carries out the order. The description of Goods as stipulated on invoices or orders or brochures are provided by way of identification only and the use of that description shall not constitute a description under any contract of sale by description. The offer by Dräger shall govern the scope of performance. Statements as to weight and measurements in brochures and offers are according to best knowledge but are not guaranteed properties. Dräger reserves the right to reasonable performance modifications. The functions of any software shall be limited to the description in the performance specifications. Dräger may use components that are as good as new or that have been rendered/refurbished as good as new.

2.2 Offers and contracts that require an export license or approval by export control authorities (e.g. due to embargo) are subject to the condition precedent that such export license or approval is granted. The performance of a contract will be subject to the granting of export licenses by the competent export control authorities.

2.3 The Customer acknowledges that any export or use of Dräger Goods outside of Australia and/or New Zealand without the prior written consent of Dräger is strictly prohibited.

2.4 Technical norms serve as performance specification only, provided Dräger does not expressly provide a separate guarantee in writing for compliance with such technical norm. All warranties as to properties or shelf-life must be provided separately and in writing by Dräger.

2.5 Dräger shall retain, without limitation, any and all ownership rights, copyrights and intellectual property rights included in drawings, technical documents and other data, information and documentation, including in electronic form; and these may not be disclosed to third parties without Dräger‘s prior written consent.

2.6 In all instances of resale of Goods, the Customer is responsible to comply with all applicable rules and regulations (eg. export). The Customer shall defend and indemnify Dräger from all costs and claims based on the violation of rules and regulations by the Customer.

2.7 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 any pandemic. Such causes include, without limitation, non-punctual 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.

3 Software

3.1 Should software be included in the scope of delivery, Dräger grants to the Customer subject to the following terms a non- exclusive and non-transferable right of use therein.

3.2 All rights in know-how and products including intellectual property right (e.g. inventions, copyrights) are retained by Dräger. Dräger owns and may use know-how acquired in connection with the performance of its contractual obligations without limitation for its own commercial purposes.

3.3 If software is delivered as a component of a Good or intended for a specific Good (eg. firmware), the Customer may use the software/firmware only with the specified Good. Use of software/firmware together with other equipment shall require Dräger's express written consent.

3.4 User documentation is provided in adequate form for the software’s intended purpose. Any further documentation, in particular software/firmware documentation or documentation for maintenance purposes shall require a separate express written agreement.

3.5 Unless Dräger expressly grants the Customer a multiple user License (see Clause 10.4), the Customer shall receive a single user License (see Clause 10.4) in the software (i.e. the Customer may simultaneously use the software on only one end device). However, solely for backup purposes, the Customer may make one backup copy. In the event of a multiple user License, the Customer shall comply with the installation instructions furnished by Dräger and shall keep a record of the location of every installation. Such records shall be submitted to Dräger upon request.

3.6 Software shall be furnished exclusively in machine readable form as object code.

3.7 Except where expressly allowed by Dräger in writing, the Customer may not modify, engage in reverse engineering, translate, extract or otherwise link the software to other programs. The Customer may not remove from any data carriers alpha-numerical and other labels and manufacturer information in particular, copyright notices and shall transfer same without modification to any backup copy.

3.8 The Customer may not lease the software or grant sublicenses. Software acquired in conjunction with a device may only be transferred to third parties together with sale of said device.

Software may be transferred to third parties only if the Customer does not grant to the third party rights to use the software exceeding the License granted to the Customer by Dräger. In the event of resale, the Customer may not retain any copy of the software. Multiple user Licenses may be transferred only in their entirety.

3.9 If Dräger provides third party software, such as Open Source Software, (i.e. software for which Dräger holds only a derivative license), the terms and conditions of use agreed between Dräger and its licensor shall apply in addition and shall have priority. Dräger shall submit such terms and conditions of use to the Customer upon request. Should such terms and conditions of use be violated by the Customer, both Dräger and the licensor shall be entitled to assert any resultant claims and rights in their own name.

3.10 The Customer agrees to store the software and any documentation carefully in order to preclude any abuse.

3.11 The sale/transfer of software does not include an obligation by Dräger to provide software maintenance services. This shall require a separate written agreement.

4 Prices & Payment Terms

4.1 Prices are excluding valued added tax (e.g. GST). Prices do not include packaging carriage insurance, storage, installation and shipping which are payable by the Customer.

4.2 Unless otherwise agreed in writing, Orders shall be payable upon placement without any deductions in the agreed currency (unless advised otherwise NZ$). The Customer shall bear any costs associated with payment and payment methods.

4.3 Dräger reserves the right without notice to alter the price of Goods whether or not a deposit or part payment has been received by Dräger for such Goods 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.

4.4 Unless otherwise Dräger agrees in writing, all invoice issued by Dräger will be payable within 30 days for Goods delivered and is also payable in respect of every part-delivery notwithstanding that the balance of the Order has not been or will not be delivered.

4.5 If the Customer fails to make any payment when due, Dräger is entitled to charge a late premium charge of two (2) percent per month on all monies outstanding and/or discontinue/suspend the supply of Goods to the Customer.

5 Shipping, Packaging, Passing of Risk

5.1 Risk in the Goods shall pass to the Customer no later than upon shipping of the Goods, even if freight prepaid delivery is agreed, and even if deliveries by instalments are made or Dräger has agreed to provide other services, such as commissioning or installation.

Should shipment be impossible or delayed without any fault on the part of Dräger, risk shall pass to the Customer upon notification that the Goods are ready for shipment.

5.2 Should Dräger carry out commissioning or installation of the Goods being delivered within the framework of the supply agreement, risk shall pass to the Customer upon acceptance by the Customer. Should acceptance not be effected within twelve (12) days following written notification of readiness for acceptance, risk shall pass to the Customer upon expiry of such period, unless Dräger is responsible for the non-acceptance. Should commissioning or installation be delayed for any reason whatsoever, risk shall pass to the Customer no later than three months after shipment.

5.3 Should software be furnished by way of electronic communications media (e.g. via the Internet), risk shall pass when the software leaves Dräger's control.

5.4 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.

6 Delivery and Delivery Time

6.1 Dräger will endeavour to deliver/provide the Goods within the Customer’s required delivery period, but subject to Clause 6.2 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.

6.2 Dräger shall not be liable for any loss or damage resulting from any delay or failure to give notice of any delay in delivery. Any cause of delay beyond the reasonable control of Dräger, shall entitle Dräger to extension of time for the period of delay.

6.3 Dräger reserves the right to deliver the Goods by instalments at its absolute discretion and in such circumstances the Customer shall accept delivery of such Goods by instalments.

6.4 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 (and for collection, Goods are complete and ready to collect).

6.5 The Customer shall be responsible for providing adequate labour and/or material handling equipment for the loading and unloading of Goods at its premises or delivery point.

6.6 The deadline for provision of Goods shall be reasonably extended in the event of Force Majeure, in particular, in the case of natural events, mechanical damage and other unforeseeable operational disruptions, measures within the context of industrial disputes, in particular, strike and lockout, and in the event of unforeseeable hindrances and incorrect or late self-delivery, provided Dräger is not responsible therefor. Should the relevant delivery or service become impossible or a hardship due to the aforementioned circumstances, Dräger may rescind the agreement fully or partially.

6.7 Any voluntary return of Goods must have the prior written consent of Dräger and be within 10 days of delivery to the Customer and be returned at the sole expense of the Customer (including any re-stocking fee of at least 15 percent of entire Order applied by Dräger).

6.8 If the Goods are voluntarily returned to Dräger which then 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.

7 Retention of Title

7.1 Notwithstanding any credit granted to the Customer or anything contained in these GTC, Dräger shall retain the full legal and beneficial ownership and title in and to all the Goods delivered to the Customer by Dräger (including products into which the Goods have been incorporated) until the Customer has paid to Dräger the full amount due on all outstanding invoice(s) to Dräger (“Retained Goods”). Until then the Customer will hold and sell the Retained Goods as agent and fiduciary for Dräger and the Customer shall store the Retained Goods separately and with the interest of Dräger as owner clearly marked on the Retained Goods and the area in which they are stored.

7.2 The Customer will ensure that the Retained Goods are kept in good and serviceable condition. The Customer will secure the Retained Goods from risk, damage and theft; and keep the Retained 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’s own goods.

7.3 Regardless of any processing or reworking of the Retained Goods, Dräger shall retain ownership in the products at any stage and level of processing. Such reworking or processing shall be affected free of charge to Dräger and without any obligation on the part of Dräger.

Any processing, linking or combination by the Customer with other items not owned by Dräger shall give rise to co-ownership by Dräger in the new object in proportion to the invoice value of the Retained Goods to the other objects used by the Customer at the time of such processing, linking or combination. Moreover, the provisions concerning the Retained Goods shall apply mutatis mutandis to any new object created as a result of such processing, fixing or combination.

Should the Retained Goods be fixed with buildings or other components of real property belonging to the Customer or otherwise, the Customer agrees the Retained Goods are not a fixture and agrees to separate the Retained Goods in the event of any default in payment at Dräger's request, and to acknowledge/transfer ownership in such items to Dräger. Such items shall continue to be deemed Retained Goods within the meaning of these GTC. Any rights of retention, in particular, based on reimbursement of outlays for maintenance or improvement of such items shall be excluded as against Dräger.

7.4 The Customer may resell Retained Goods during the ordinary course of business if it retains title in the Retained Goods in accordance with the provisions of this Clause 7. The Customer shall hold any proceeds of sale as trustee for Dräger to the extent of the unpaid invoiced price of those Retained 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 the Customer hereby assigns to Dräger any and all receivables based on resale of the Retained Goods and under the retention of title agreed to by it to secure any and all receivables of Dräger (including future receivables) under the business relationship, irrespective of whether the Retained Goods

are resold without or following processing and irrespective of whether they are sold to one or more purchasers. Dräger hereby accepts such assignment. Upon request by Dräger the Customer shall notify its purchasers about this assignment.

Until revocation by Dräger, the Customer is authorised to collect the assigned receivables. Dräger is entitled to revoke this direct debit authorisation if the Customer fails to meet its payment obligations towards Dräger. Upon revocation the Customer shall identify the receivables and the respective debtors and submit all information and documents required to collect the receivables and to inform the debtors about the assignment. Dräger is entitled to inform the debtors about the assignment itself.

7.5 The Customer may not make any dispositions/encumbrances over the Retained Goods, in particular, pledges, liens or transfers by way of security, other than those specified in Clauses 7.3 and 7.4.

7.6 In case of breach of contract by the Customer, in particular, in the event of a default in payment, Dräger may rescind the agreement upon written notice without liability to the Customer and repossess the Retained Goods. The Customer shall be obliged to return the Retained Goods. Dräger may (and/or in particular when any application to commence insolvency proceedings over the Customer's assets) demand the immediate return of the Retained Goods.

7.7 Levies of execution, attachments and other dispositions and interventions by third parties shall be notified by the Customer to Dräger without undue delay.

7.8 If the Customer does not pay for any Retained Goods 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 Retained Goods are stored at such premises) and use reasonable force to take possession, custody or control of the Retained Goods without liability for the tort of trespass, negligence or payment of any compensation to the Customer whatsoever and such retaking possession, custody or control shall be at the expense of the Customer.

7.9 The Customer agrees that where the Retained Goods have been retaken into the possession of Dräger, Dräger has the absolute right to sell or deal with the Retained Goods, and if necessary sell the Retained Goods with the name of the Customer on those Retained Goods and the Customer hereby grants an irrevocable license to Dräger to do all things necessary to sell the Retained Goods bearing the name of the Customer.

7.10 The Customer shall provide Dräger with extensive support in order to protect Dräger's ownership rights in the Retained Goods in accordance with the domestic legal system of the delivery location and destination. Consequently, the Customer acknowledges that by virtue of Clause 7.1 and 7.4 (above), Dräger has a security interest (including purchase money/price security interest and/or first ranking security interest) in the Retained Goods for the purposes of the Personal Property Securities Act 1999 (NZ) (PPS Act) (or other equivalent local legislation) and to the extent applicable the PPS Act (or other equivalent local legislation) applies.

7.11 The Customer acknowledges that Dräger may do anything reasonably necessary, including but not limited to registering any security interest which Dräger has over the Retained Goods on the Personal Property Security Register (or other equivalent local registry) established under the PPS Act (or other equivalent local legislation) in order to secure and perfect the security interest and comply with the requirement of the PPS Act (or other equivalent local legislation) at the Customer’s expense.

7.12 The Customer agrees to do all things reasonably necessary to assist Dräger to undertake the matters set out in Clause 7.11 (above).

7.13 The Customer hereby waives any rights or entitlements in respect of Retained Goods provided by the PPS Act (or equivalent local legislation) to any notification or information required to be provided by Dräger under the PPS Act (or any equivalent local legislation).

7.14 Except to the extent that the Customer is an individual purchasing Goods wholly or predominantly for personal domestic or household purposes, in order to secure the Customer's due and punctual performance of all its obligations to Dräger (including the payment of all monies owing) under the Contract or otherwise, the Customer charges all of its legal and beneficial interest (present and future) in any and all real property and all present and after acquired property. On Dräger‘s request, the Customer must at its cost execute any documents and do all things required by Dräger to more fully document or better secure a charge arising under this clause on such terms as it sees fit or to register a charge or security interest in respect of any of

the Customers real and personal property including, effect and maintaining registrations on the PSS Act. The Customer also consents to Dräger lodging caveats in respect of any of the Customer's property. The Customer appoints Dräger or an authorised office of Dräger to be its attorney for the purpose of executing and registering such documents.

8 Notice of Defects, Acceptance

8.1 The Customer shall inspect deliveries without undue delay following receipt in order to ascertain acceptance and any quantitative errors and transport damage. In the event of transport damage, a damage record shall be prepared in order to secure any compensatory damage claims against the carrier (post, rail, shipping agent, etc.). Such damage record shall be sent to Dräger without undue delay.

8.2 Defects can be asserted in writing only within ten (10) days of receipt of the Goods, unless the relevant defect is latent. Latent defects and defective performance of other services shall be notified to Dräger in writing immediately following discovery thereof, provided that such notice is given prior to Warranty Period expiration in Clause 9.

8.3 Should the Customer be prevented from taking delivery and/or acceptance due to Force Majeure circumstances (Clause 6.6), the deadline for notice of defects and/or acceptance, shall be reasonably extended by no more than that period of Force Majeure.

8.4 Dräger may notify the Customer about readiness for acceptance (but in default, upon delivery). Should acceptance not take place within ten (10) days following notification of readiness for acceptance (but in default, upon delivery), the Goods shall be considered accepted by the Customer upon expiry of such period. The same shall apply to any partial delivery/acceptance of Goods.

9 Defects Liability

9.1 Should there be a defect in any Goods provided by Dräger and should notice thereof have been given in a timely manner within the meaning of Clause 8.2 of the GTC, Dräger shall, at its choice, remedy the defects without charge or deliver defect-free replacement or pay for the cost of replacing the Goods (“Substitute Performance“), provided the defect was solely the responsibility of Dräger. In the event of a defect in software, Dräger may also provide a new software release in lieu of repair.

9.2 There shall be no defect if the Goods are suitable for normal use and manifest the quality that is normal for items of the same kind that could be expected by the Customer. In particular, the Customer is aware that given the current state of technology it is not possible to create software that is fully free and clear of errors. Moreover, there shall be no quality defect in assembly/installation instructions if assembly/installation could have been carried out free and clear of any errors/defects. Moreover, no quality defect shall lie in the event of inappropriate or improper use, incorrect storage, erroneous assembly/installation or start-up by the Customer or third parties, regardless of wear and tear, erroneous or negligent handling, improper maintenance, use of inappropriate operating resources, defective construction work, or chemical, electrochemical or electrical influences for which Dräger is not responsible, software errors that cannot be reproduced and in the event of defects that do not arise in last software release furnished to the Customer

by Dräger, provided the Customer can be reasonably expected to use the last software release provided. The delivery of a marginally different item or a marginally different number of items than agreed, shall not entitle the Customer to claim damages or rescind the agreement.

9.3 The Customer shall provide Dräger with the necessary time and opportunity to perform any and all remedial measures. In particular, upon request, the Customer shall send the delivered Goods to Dräger or a workshop to be specified by Dräger. Otherwise Dräger shall be discharged from liability for any consequences. Defects in delivered software shall be described in as much detail as possible. Only in urgent cases where safety is at risk or in order to prevent unreasonably excessive damage (with prior written notification to Dräger) may the Customer remedy the defect itself.

9.4 Any claims on the part of the Customer based on the expenses required for Substitute Performance, in particular, transport, travel, work and material costs shall be excluded, including if such expenses occur because the Customer moved the delivered Goods to a different destination than the agreed delivery destination, unless the removal of the Goods conforms to the intended use of the Goods. Moreover, Dräger may refuse to render Substitute Performance if this would be associated with unreasonable costs.

9.5 Any parts that are removed and replaced by Dräger within its defect-related liability, those removed/replaced parts shall become the property of Dräger.

9.6 Should the Customer or a third party perform improper repairs, Dräger shall not be liable for any resulting damages. The same shall apply to any modifications to the delivered Goods performed without Dräger's prior written consent including to any software extension effected by the Customer or a third party over and above the interface provided by Dräger.

9.7 Any defect-related liability shall be excluded for used goods, except for components that are sold as good as new or that have been rendered/refurbished as good as new.

9.8 Claims on the part of the Customer for defect-related liability pursuant to this Section 9 and 11 to the extent legally possible, shall become time barred twelve (12) months (“Warranty Period”) following delivery of the Goods in the event of a purchase and work performance contract (or if otherwise agreed in writing, following start up of the delivered item or acceptance of performance).

9.9 To the extent legally possible and notwithstanding Dräger’s liability under Clause 11 of these GTC, any additional claims or claims other than those governed by this Clause 9 on the part of the Customer during the Warranty Period against Dräger or its vicarious agents based on defect-related liability shall be excluded.

10 Intellectual Property Rights and Copyrights

10.1 Dräger shall supply the Goods free and clear of third party intellectual property rights and copyright ("Intellectual Property Rights"). Should a third party assert legitimate claims against the Customer based on the infringement of Intellectual Property Rights by the Goods delivered by Dräger and used in accordance with this Agreement, Dräger shall be liable towards the Customer in accordance with the following provisions.

10.2 Dräger shall, at its choice and at its expense, either arrange a license for the relevant Goods, modify them such that the relevant Intellectual Property Right is not infringed, or exchange them. Clause 11 of the GTC shall apply to compensate the damages claim. The foregoing obligations shall lie only if the Customer notifies Dräger immediately in writing of the claims asserted by the third party, and does not acknowledge any infringement to the third party, and Dräger retains a discretion in relation to any and all measures in mounting a defence and settlement negotiations without notice to the Customer. Should the Customer cease use of the service, it shall notify the third party that cessation of use does not constitute an acknowledgement of

any infringement of an Intellectual Property Right.

10.3 Claims on the part of the Customer shall be excluded if the Customer is responsible for the infringement of any Intellectual Property Right or if the infringement of the Intellectual Property Right is caused by use by the Customer or by an application not authorised in writing by Dräger, by a modification by the Customer, or by use of the service in conjunction with products not delivered by Dräger.

10.4 Unless agreed otherwise in writing, Dräger grants to the Customer a revocable, non-exclusive, nontransferable, royalty-free, license (but not to reverse engineer, change, modify or vary) to use and to allow the Customer the full use and enjoyment of those Goods purchased in accordance with this Agreement (“License”) of any Intellectual Property Rights.

10.5 To the extent legally possible and notwithstanding Dräger’s liability under Clause 11 of these GTC, any additional claims or claims other than those governed by this Clause 10 on the part of the Customer against Dräger or its vicarious agents based on legal defect in Intellectual Property Rights shall be excluded.

11 Liability and Warranties

11.1 All rights, representations, guarantees, warranties, conditions, undertakings, remedies or other terms in relation to the Goods that are not expressly set out in this Agreement to the maximum extent permitted by law are excluded and no terms shall be implied into this agreement as a matter of fact or law.

11.2 To the extent legally possible and notwithstanding any other clause, Dräger's aggregate liability to the Customer arising under or in connection with this Agreement, whether based in contract, (including negligence), equity, statute, by way of indemnity or contributions, warranty, guarantee or otherwise, is limited to the lesser of the value of the Goods ordered or NZ$50,000.00.

11.3 To the extent legally possible and notwithstanding any other clause, Dräger will not be liable to the Customer for any indirect or consequential loss, however it arises or for any loss of profit, loss of revenue, loss of opportunity, loss of use, loss of anticipated profits, damage to goodwill, loss of customers or loss of anticipated savings.

11.4 The Customer shall take any and all necessary and reasonable steps in order to prevent or limit damage. In particular, the Customer shall ensure the regular backing up of software, programs and data. Therefore, Dräger shall be only liable for reasonable effort and expense for the re-procurement of data subject to the requirements of Clauses 11.1 to 11.3 and subject to the Customer having ensured that such data can be reconstructed from other data material backup.

11.5 Compensatory damage claims against Dräger or its vicarious agent other than those governed by this Clause 11, whatever legally permissible, shall be excluded. No other warranties or conditions either express or implied by law are made with respect to these Goods. Dräger is not liable for any non-compulsory and/or excludable local law statutory provisions.

12 Compliance with Laws, Anti-Corruption

12.1 The Customer warrants that it is acting in accordance with applicable laws, including antitrust laws and regulations on anticorruption and money laundering, antibribery, antislavery and other criminal law provisions.

12.2 If there is reason to suspect that the Customer is in breach of above obligations, Dräger is entitled to terminate the Agreement without notice. In the event of such termination,

(i) Dräger is released from any obligation to execute the Agreement,

(ii) the Customer shall indemnify and keep harmless Dräger and its employees against any and all damages to the extent such damages are based on the Customer’s violation of its obligations under this Clause 12.

13 International Trade Compliance

13.1 The Customer certifies that:

(i) the Goods will not be used for any restricted activity that supports the development, production, handling, usage, maintenance, storage, inventory or proliferation of any weapons of mass destruction and its delivery systems or participation in transaction with the persons engaged in such activities;

(ii) it will not subsequently export or otherwise re-sell the Goods to any person or country that is subject to any sanction imposed pursuant to a decision of the United Nation Security Council

14 Export Control Regulations 

14.1 The Parties undertake to comply with all applicable export control regulations of international and national authorities. This may include screening business partners with regard to current sanctions lists by the UNO or other organisations. In order to conduct export control checks the Customer, upon request by Dräger, shall provide to Dräger all information pertaining to the ultimate buyer and/or end user of the Goods, as well as any existing export control restriction regarding the Goods.

14.2 Dräger is not obliged to perform deliveries, orders and other obligations under this Agreement, if that performance is hindered by the applicable export laws and regulations of international and national authorities. The Customer is not entitled to claim damages or compensation if Dräger refrains from deliveries for above reasons.

15 Safety Provisions & Indemnity

15.1 The Customer shall be responsible for compliance with applicable local/domestic statutes, regulations and safety provisions, in particular, in relation to admission, installation, operation, maintenance and repair of the delivered Goods and agrees to comply therewith. The Customer shall indemnify Dräger against any and all claims deriving from non-compliance with such provisions by the Customer.

15.2 In the event of the Customer has resold the Goods:

(i) the Customer shall at its own cost, maintain records for 11 years after resale of the Goods to the third party purchaser, containing product no. and serial no., name and address of the third party purchaser, date of dispatch, location and installation, handing-over, training and after-sales service performances.

If Dräger requests access to such records for Goods tracing, recall purposes or corrective actions, the Customer shall immediately make such records available to Dräger.

(ii) the Customer shall without delay notify Dräger in writing of any incident associated with Goods that may have caused or contributed to a third party purchaser or any other person’s harm, and of any event that might require Dräger to trace back or recall any Good or to undertake corrective action because of a serious quality deficiency of a Good;

(iii) Dräger may instruct the Customer to perform recall actions or corrective actions for Goods which may include appropriate information disclosure as collected under Clause 13.2 (“Corrective Actions”). The Customer shall perform all actions as instructed by Dräger for a Corrective Action, in particular maintenance measures and documentation, and shall inform Dräger in writing about completion of such Corrective Actions.

(iv) The Customer shall not support any unauthorised or arrange service agents to service the Goods and will not supply any service, repair or parts to any third party purchaser or arranged service agents without Dräger prior written approval.

15.3 To the full extent permitted by law the Customer

(i) 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.

(ii) agrees that the indemnity in Clause 13.3(i) 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.

16 Forum and Applicable Law

16.1 These GTC and the contract shall be governed by and construed in accordance with the laws from time to time, of New Zealand and to the exclusion of the United National Convention on International Sale of Goods and its conflict of laws rules.

16.2 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts sitting in New Zealand and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

16.3 In the interpretation of the Agreement, no rule of construction applies to the disadvantage of the party preparing the document on the basis that it prepared the documents forming part of the Agreement or any part of it.

16.4 If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.

16.5 None of the terms of the Agreement shall be varied, amended, waived, discharged or released except with the prior written consent of Dräger. No action, consent, conduct or representation by Dräger, other than prior written consent, shall constitute any amendment, variation, waiver, discharge or release of the Customer’s obligations to strictly comply with the Agreement.

16.6 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 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.

17 Privacy and Waiver

17.1 Any 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.

17.2 The Customer hereby consents to the terms of Dräger‘s Data Protection and Privacy Statement and the local law in relation to any personal information provided by the Customer.

17.3 The Customer agrees that Dräger may seek a credit report and may give to and seek from other credit providers 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 personal information, and 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 NZ.

Revision: 16 May 2024

Draeger 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 force majeure. Such causes include, without limitation, unpunctual or incorrect delivery by suppliers, impairment of Draeger's own production due to employee absences or precautionary measures. In such cases the delivery time shall be extended automatically.

Draeger 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.

Terms and Conditions for Rental for Draeger New Zealand Ltd.

In these terms and conditions Draeger means Draeger New Zealand Ltd NZCN 9429 046 070 906 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 Draeger to the Lessee.

1.2 This SRTC and the agreed quote constitute the entire agreement between Draeger and the Lessee. All previous negotiations, understandings, representations, warranties, memoranda or commitment about the subject matter of the rental agreement are merged in this SRTC and are of no further effect except where Draeger and the Lessee expressly agree in writing to incorporate other terms.

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

1.4 If there is any ambiguity, inconsistency or conflict between the provisions of any of the documents that comprise the SRTC (as set out in clause 1), those documents take precedence in the following order:

a) these SRTC terms;

b) the agreed quote, and;

c) the account-holder (credit) application.

2 Delivery and Terms of Use

2.1 Transport costs for delivery of the Rented Equipment will be billed by Draeger 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. The Lessee is deemed to be satisfied as to the suitability, condition and fitness for purpose of the Rented Equipment unless Draeger is notified in writing within 24 hours of the delivery of the Rented Equipment. In the event of transport damage, Draeger is to be notified within 24 hours in order to safeguard any damages claims that may be pursued by Draeger against the carrier (postal service, rail service, Freight Company, etc.).

2.3 The Lessee will not move the Rented Equipment from the delivery location and must immediately 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 Draeger reserves and the Lessee grants the right to access, inspect, maintain and/or repair the Rented Equipment at the Lessee's premises (if the Lessee is not the owner of the relevant premises, it acknowledges it is the agent of the owner), at any time during business hours provided that reasonable notice has been provided. The Lessee must assist Draeger (and its representatives) in exercise of this right.

2.5 In the exercise of the right to access, inspect, maintain and/or repair the Rented Equipment at the Lessee's premises, the Lessee shall provide full and safe access to Draeger and shall be liable for and indemnify Draeger 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 Lessee to ensure the said full and safe access.

2.6 If Draeger require access or to enter upon the Lessee’s premises, Draeger will be entitled to use reasonable force to retrieve the Rented Equipment with any costs or damages thereby caused or any requirement to make-good being indemnified by the Lessee and/or any such liability being waived by the Lessee.

2.7 When using the Rented Equipment, the Lessee shall

a) follow the operating instructions and comply with the applicable common law, statutory and regulatory provisions and will not permit the Rented Equipment to be used for any illegal purpose or in any manner that would amount to a breach of any law or the SRTC;

b) operate the Rented Equipment safely, only for its intended use and in accordance with manufacturer’s instructions;

c) ensure persons operating the Rented Equipment are suitably instructed in its safe and proper use and where necessary, hold a current certificate of competency and/or licensed to use the Rented Equipment;

d) ensure the Rented Equipment is not operated by any person under the influence of alcohol and/or drugs.

2.8 The Lessee will

a) ensure that the Rented Equipment is not defaced, tampered with or any safety equipment/guards and safety information/signage is not removed, altered or covered/obscured;

b) ensure the Rented Equipment is operated in a safe and suitable environment;

c) ensure that the Rented Equipment is kept safe and secure.

2.9 If the Rented Equipment is contaminated with hazardous substances, the Lessee must promptly notify Draeger in writing providing, amongst any other relevant information, full details of the contamination and hazardous material. At Draeger'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.

2.10 The use of the Rented Equipment outside the jurisdiction specified in clause 9.4 is only allowed after prior consultation with Draeger and permission is received in writing.

2.11 Possession of the Rented Equipment may only be transferred to third parties - e.g. by way of a sublease - with Draeger'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 or terminated pursuant to SRTC, 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 and a maximum term of 1 year less one day shall apply.

3.2 The Lessee shall return the Rented Equipment to Draeger in good condition (subject to fair wear and tear) at the end of the Lease Term. Draeger expressly reserves the right to charge the Lessee for any costs incurred by Draeger 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 If the Lessee fails to return the Rented Equipment when required by the SRTC or within 24 hours of oral or written demand to the Lessee, the Lessee will be deemed to be in unlawful possession of the Rented Equipment without Draeger’s consent.

3.4 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, Draeger 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 Where any amount payable under the SRTC becomes overdue, all outstanding amounts whether due to Draeger under the terms of the SRTC or under any other agreement between Draeger and the Lessee will become immediately due and payable by the Lessee to Draeger within 7 days of the date of default.

4.3 Draeger may charge the Lessee interest calculated on a daily basis and compounded monthly on overdue amounts from the date the relevant payment was due, to the date of actual receipt of payment at an interest rate which is 5% greater than the rate published by the Reserve Bank of Australia calculated daily and compounded monthly.

4.4 If the Rented Equipment or part thereof is returned late, the terms of this SRTC will apply month to month and additional pro-rata rental charges will apply at the same rate as the existing rental but Draeger is entitled to demand the return of the Rented Equipment.

4.5 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 totaling 15% of the agreed rental payments for the Lease Term will be charged to the Lessee including if the Lessee cancels or terminates the Lease prior to the Rented Equipment being delivered.

4.6 The Lessee will, in addition, also be liable for any taxes, duties (including stamp duty), levies, charges, fines or imposts in connection with the SRTC including any amount of GST charged by Draeger on any supply made by Draeger under or in connection with SRTC.

5 Servicing and Maintenance of the Rented Equipment

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

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 Draeger and/or the manufacturer.

5.3 If the Rented Equipment breaks-down or becomes unsafe to operate, the Lessee shall immediately stop using the Rented Equipment, ensure it does not sustain any further damage and prevent the Rented Equipment from causing injury, loss or damage to any person or property.

5.4 If the Rented Equipment is damaged, lost, stolen, breaks-down or becomes unsafe to operate, the Lessee must immediately inform Draeger in writing with sufficient details to enable Draeger to determine a reasonable cause of action to assist the Lessee at Draeger’s discretion. All expenses, subject to the SRTC, will be at Lessee expense with any equipment supplied as replacement will be supplied for the unexpired balance of the Lease Term and under the SRTC.

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

5.6 Only Draeger is authorised to approve any third party 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").

5.7 The Lessee is required to deliver Rented Equipment as directed by Draeger for any necessary Servicing and Maintenance. Draeger will provide the Lessee with substitute equipment if Servicing and Maintenance is being carried out by Draeger.

5.8 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.

5.9 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.

5.10 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 Draeger 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.

5.11 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. The Rented Equipment is a chattel and shall not be affixed to any land or building. 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 acknowledges it is the agent of the land owner and it must immediately notify the land owner that the Rented Equipment is being affixed or installed for a temporary purpose only.

5.12 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 upon collection or delivery to Lessee and during the Lease Term until collected or delivered to Draeger. If the Rented Equipment is lost or destroyed, the Lessee shall pay the replacement value based on the annual published list price.

5.13 The Lessee will not at anytime without the prior written consent of Draeger release or dispose or loose custody, possession or control of the Rented Equipment during the Lease Term.

6 End of lease

6.1 The Rented Equipment is to be returned to Draeger immediately on the end of the Lease Term or any termination of the SRTC to the address nominated by Draeger.

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 Draeger as a result of any damaged including transport damage.

6.4 Draeger is entitled to recover from the Lessee on demand as a debt due and payable:-

a) any payment of the rental or other monies payable to Draeger under the SRTC (until the Rented Equipment is delivered to or repossessed by or accepted as lost by Draeger);

b) the cost of any renovations or repairs performed by Draeger to return the Rented Equipment to good order and repair, fair wear and tear excepted;

c) all costs incurred by Draeger in re-taking possession of the Rented Equipment (including make-good if applicable);

d) any storage fees paid in respect of the Rented Equipment;

e) any transport costs in respect of the Rented Equipment;.

7 Termination

7.1 Draeger 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 or fails to renew 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/lapses 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 term of this SRTC and fails to rectify such failure within 14 days of written notice from Draeger;

i) an event of default (however described) occurs under any other agreement or arrangement between the Lessee and Draeger or between any related body corporate (as used under Corporations Act 2001 (Cth)) of the Lessee and Draeger;

j) the Lessee ceases to carry on business or ownership or control materially changes of the Lessee; or

k) if the Lessee's conduct indicates that the Lessee no longer intends to be bound by this SRTC.

If Draeger's right to terminate the SRTC under paragraphs (d) (e) or (j) of clause 7.1 is unenforceable as a matter of law, that unenforceability does not limit Draeger's right to terminate the SRTC on any other grounds permitted by the SRTC.

7.2 If Draeger terminates this SRTC under clause 7.1, the Lessee must:

a) on receiving notice of termination, deliver the Rented Equipment back to Draeger in accordance with Clause 6 without undue delay, otherwise Draeger has the rights to repossess the Rented Equipment. The Lessee is solely responsible for the costs (including any make-good) associated with returning the Rented Equipment pursuant to the SRTC;

b) pay to Draeger 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;

c) allow any recovery and repossession of the Rented Equipment;

d) allow Draeger to take any and all actions it is entitled to take notwithstanding that Draeger may have waived any previous breaches or defaults by the Lessee under the SRTC;

If the Lessee wishes to terminate this SRTC before the Lease Term expires, the Lessee can apply to Draeger in writing. Draeger 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 or otherwise that Draeger 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 Draeger, Draeger fails to pay its debts as they fall due, Draeger 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 Draeger or any part of Draeger's assets or an administrator is appointed to Draeger;

c) Draeger 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) Draeger ceases to carry on business or ownership or control materially changes; or

e) Draeger'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. Upon request and at least annually, the Lessee must provide Draeger with proof of insurance cover for the Rented Equipment for the full new replacement value.

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. The Lessee will not do or permit or allow to be done anything which might or could prejudice any insurance of the Rented Equipment and will immediately inform in writing Draeger of any such occurrence.

8.3 The Lessee will promptly pay all premiums and stamp duty in respect of such insurance policy and not compromise any insurance claim without Draeger’s consent and irrevocably authorises Draeger to receive all such insurance monies.

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

8.5 The Lessee is liable for damage to and theft of the Rented Equipment and unconditionally and irrevocably indemnifies Draeger 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 Draeger to administer, exercise, enforce or preserve any of Draeger'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 Draeger 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).

8.6 The Lessee indemnifies and releases Draeger, 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 Draeger to exercise, enforce or preserve Draeger's rights under or in connection with this SRTC.

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

8.8 The indemnity in clause 8.6 is a continuing obligation, separate and independent from the other obligations of the parties and survives termination, completion and expiration of the SRTC. It is not necessary for Draeger to incur expense or make any payment before enforcing the right of indemnity conferred by the SRTC. The Lessee must pay on demand any amount it must pay under an indemnity in the SRTC.

8.9 To the extent permitted by law, and notwithstanding any other provision of the SRTC, the maximum aggregate liability of Draeger under the SRTC shall not exceed the total amount of the annual rental received by Draeger in relation to the applicable agreed quote as at the date the claim arose.

8.10 Without derogating from clause 8.9, Draeger, to the extent permitted by law, shall not be liable for:

a) any loss or anticipated loss of profit, income, revenue, saving, production; business, good will, contract or opportunity increase in financing or operating costs; liability for loss or damage suffered by third parties; legal costs (on a solicitor and client basis); fines levied; loss of reputation or any other financial or economic loss; and

b) any indirect, special or consequential loss, damage, cost, expense or penalty not expressly referred to in the preceding paragraph, howsoever arising.

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, 5 business days following the date on which the notice or demand was sent; and

c) if transmitted by facsimile or email, 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 laws of New Zealand shall govern this Agreement. and all disputes shall be heard in New Zealand. The parties submit to the non-exclusive jurisdiction of the Courts of New Zealand.

9.5 This SRTC is governed by the jurisdictional law in clause 9.4, subject to the exclusion of the UN Convention of Contracts for the International Sale of Goods and conflict of law provisions.

9.6 For the avoidance of any doubt, the Lessee understands and agrees that the SRTC will prevail over, and Draeger will not be bound by, any terms and conditions of purchase (express or implied) submitted by the Lessee, whether printed on or sent with any purchase order or otherwise, unless agreed in writing by Draeger.

9.7 The expiry or termination of the SRTC does not affect the rights, which have accrued before that expiry or termination or any rights and obligations of the parties which survive expiry or termination.

9.8 No delay or omission to exercise any right, power or remedy accruing to Draeger upon any continuing breach or default under the SRTC shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any right of Draeger to take action or make a claim in respect of a continuing breach or default or to be acquiescence to it.

10. Use of Rented Equipment

10.1 The Lessee warrants that the Rented Equipment is not acquired predominately for personal, domestic or household use and it is acknowledged and agreed that:-

a.) the lessee is acquiring the Rented Equipment for the purpose of business in terms of section 2 and 43(2) of the Consumer Guarantees Act 1993 (CGA”);

b.) the rented Equipment is supplied and acquired in trade for the purpose of the Fair Trading Act 1986 (“FTA”) and the parties agree to contract out of section 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 the SRTC to the full extent permitted by law and that such exclusion is fair and reasonable.

11. Ownership and Risk

11.1 Notwithstanding anything contained in this SRTC, Draeger shall retain the full legal and beneficial ownership and title in and to all Rented Equipment and the rights of the Lessee to use the Rented Equipment are as bailee only. The Lessee is not entitled to offer, sell, assign, transfer, sublet, mortgage, create any type of

security interest over, pledge or otherwise deal with the Rented Equipment in any way which is inconsistent with the right of Draeger as owner of the Rented Equipment.

11.2 The Lessee acknowledges that, where the Lease Term is for more than 1 year, clause 11.1 (above) creates a security interest in the Rented Equipment in Draeger's favour for the purposes of the Personal Property Securities Act 1999 NZ ("PPS Act") and to the extent applicable the PPS Act applies.

11.3 The Lessee acknowledges that Draeger may do anything reasonably necessary, including but not limited to registering any security interest which Draeger 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.

11.4 The Lessee agrees to do all things reasonably necessary to assist Draeger to undertake the matters set out in 11.3 (above).

11.5 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 Draeger 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 Draeger may allocate any monies it receives to debts, charges and expenses in any priority it determines.

11.6 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).

11.7 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 Draeger from the Lessee are advised of Draeger's security interest in such Rented Equipment.

11.8 The Lessee will not change its name or NZBN or any other identifying characteristics of the Lessee without first giving Draeger 15 business days notice of the change or relocate its principal place of business outside New Zealand or change it place of registration or incorporation.

12 Privacy

12.1 The Lessee agrees that Draeger may obtain, disclose and use information:

a) about the Lessee's credit worthiness for the purpose of obtaining and maintaining credit information about the Lessee or collecting overdue payments;

b) about the Lessee for the purpose of providing services to the Lessee, including sharing information with Draeger's related companies and advisors.

12.2. The Lessee consents to Draeger recording the details of the Lessee and of this SRTC and any other agreement between the Lessee and Draeger on the Personal Property Securities Register.

13      International Trade Compliance

The Lessee certifies that:

13.1 the Rented Equipment will not be used for any restricted activity that supports the development, production, handling, usage, maintenance, storage, inventory of proliferation of any weapons of mass destruction and its delivery systems or participation in transaction with the persons engaged in such activities; 

13.2 it will not subsequently export or otherwise re-sell the Rented Equipment, including but not limited to, any person or country that is subject to any sanction imposed pursuant to a decision of the United Nation Security Council.

Revision: 16 May 2024

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

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.

These Terms of Use (hereinafter “T&C”) apply to the use of cloud based software services (hereinafter “Service”) offered by Draeger New Zealand Ltd (hereinafter “Provider”) to the entity commissioning the use of this Service (hereinafter “Customer”) Provider and Customer are referred to collectively as the “Parties”.

The following documents and their contents form an integral part of the T&C:

- Specification of the booked Services as set out on the product websites, the offer sheet (hereinafter “Order Form”) and documents available under https://www.draeger.com/termsandconditions, (collectively hereinafter “Specification of Services”),

- Service-specific Service Level Agreement in the respective current version (hereinafter “Service-specific SLA”), available at https://www.draeger.com/termsandconditions.

The T&C, the Specification of Services, the Service-specific SLA and other conditions and contracts referred to in these T&C form the “Agreement”.

The person acting on behalf of the Customer declares: (i) he/she is authorised to validly enter into this Agreement with effect for the Customer; and (ii) he/she agrees to be bound by the Agreement.

1. Subject of the Agreement

1.1. The subject of the Agreement is the use of the Service for a limited period of time as specified below.

1.2. The Provider provides the Customer with the Service as described in the respective current Specification of Services. The Customer can access the Service via a standard web browser.

1.3. Unless stipulated otherwise in the Service-specific SLA, the Provider will provide support in accordance with the provisions in clause 2.

1.4. If the Customer wishes to add additional quantities, modules and/or functions to the Service, these will be agreed for separate remuneration.

1.5. The Provider may grant free use of the Service or of certain components thereof for test purposes on a casebycase basis, and may restrict the range of functions in accordance with the Agreement (hereinafter “Test Version”).

1.6. The Provider retains the right to vary these T&C at any time to ensure compliance with all applicable laws or if necessary for reasons of IT security. The current T&C are available at https://www.draeger.com/termsandconditions.

2. Availability and Support

2.1. Unless stipulated otherwise in the Service-specific SLAs, the Provider will provide the Service with an availability of no less than 98% on an annual average (hereinafter “Minimum Availability”).

2.2. The following will not be considered downtimes when determining whether the Minimum Availability has been achieved:

− downtimes due to factors not under the Provider's reasonable control, including, without limitation, acts of God, war, acts of terrorism, riots, governmental actions, or general network infrastructure failures,

− network or equipment failures at Customer’s site or between Customer’s site and the components used to provide the Service, and

− scheduled and emergency maintenance.

2.3. Technical support can be contacted by phone 0800 372 437 between 9.00am to 5.00pm NZST

2.4. Unless stipulated otherwise in the Service-specific SLA, the scope of support essentially comprises the following components:

− support of Customer in the event of problems using the Service,

− acceptance, classification, and, if required, forwarding fault reports to downstream support levels, and

− isolating the cause of malfunctions, fault diagnosis as well as undertaking services aimed at rectifying the fault within a reasonable period of time.

3. Changes to the scope of Service

3.1. The Provider is entitled to modify the Service to the extent necessary for the Provider to protect its legitimate interests, including, without limitation, modifications that are required for reasons of IT security or due to changes in the regulatory framework.

3.2. The Provider will give the Customer reasonable advance notice of upcoming modifications affecting essential scope of performance of the Service. If a modification in an individual case has a detrimental effect on the Customer's interests to such an extent that the Customer cannot be reasonably expected to adhere to the Agreement, the Customer will be entitled to terminate the Agreement with a notice period of three (3) months, effective from the end of the month during which termination notice has been received by the Provider.

3.3. If the Agreement is not terminated with due notice pursuant to clause 3.2., the changed scope of Service will become part of the Agreement.

3.4. If the Provider releases new functionalities that require instruction according to medical product law, and provides such instruction to the Customer, the Customer is responsible for reading and complying with such instruction prior to use.

4. Intellectual property and rights of use of data

4.1. Any and all intellectual property rights to the Service remain exclusively with the Provider. The Customer may use the Service only to the extent expressly granted in the Agreement or, if applicable, by additional mandatory statutory provisions.

4.2. The Customer is granted a non-exclusive right to access the Service online and to use the Service in accordance with the Agreement. This authorisation is limited in time to the respective agreed period of use and in terms of content to what is necessary for the contractual use of the Service or as exempted under mandatory law.

4.3. No additional rights of use are granted. In particular, the Customer is not entitled to do any of the following in relation to the Service or components thereof:

− make them available to third parties;

− reproduce, sell, modify, alter, manipulate, repair or create derivative works of them;

− reverse engineer, disassemble or decompile them, or use other methods to derive the source code of the software underlying the Service;

− utilize or exploit them in such a way that no charges are incurred or usage restrictions or quotas are exceeded;

− use them in connection with a fork or derivative work, or access them using automated means, unless stipulated in the Specification of Services;

− use them while circumventing the security mechanisms in place; or

− use them to carry out any activity which is harmful to third parties or otherwise illegal.

4.4. The Customer shall ensure that data contributed to the Service do not violate the Agreement, applicable law or any third party intellectual property.

4.5. Throughout the term of the Agreement, the Customer will allow the Provider to use, free of charge, the nonpersonal data contributed by the Customer to the Service, where necessary for the provision and further development of the Service.

5. Remuneration

5.1. The applicable fee (hereinafter "Service Fee") will depend on the scope of the agree Service as well as on the details specified in the associated Order Form or SAP offer or similar document.

5.2. Unless stipulated otherwise in the relevant Order Form, invoices will be issued annually in advance. The Service Fee will be payable within fourteen days of invoicing.

5.3. Prices are exclusive of applicable taxes and similar charges, including sales, use, consumption, withholding and value added taxes. Where applicable law requires the Customer to withhold any amount, the Customer will be responsible for paying withholding tax. The Service Fee will be deemed increased accordingly, with the effect that all fees agreed in these T&C or in the respective Order Form are net payment amounts.

5.4. If the Service is provided free of charge, clauses 5.1. to 5.3. shall not apply. The Customer may use the Service free of charge for the period specified in the Order Form. 

6. Registration and Customer account

6.1. During the registration process, the Customer must provide complete and accurate information and keep it correct and up to date at all times. Information on the number and scope of use must be accurate. Any identification information received from the Provider in advance must be used accordingly in the registration process (e.g. for the scope of user authorisations).

6.2. The Customer must not disclose its user name, password and/or two-factor authentication or other login information to unauthorised persons and must take reasonable steps to keep such information secret.

6.3. The Customer is responsible for all activities taking place in its account. This applies irrespective of whether such activities are carried out by the Customer's employees or by a third party (including contractors or representatives). The Provider and its affiliated companies are not responsible for any unauthorised access to the Customer account. The Customer must contact the Provider without undue delay if the Customer becomes aware of any indications of possible unauthorised activities on its account or if account information is lost or stolen.

7. Cloud infrastructure

7.1. As regards its infrastructure components, the scope of use of the Service is based on the contractual arrangements between the Provider and its cloud provider. The Service is hosted on the Microsoft Azure infrastructure.

7.2. The procurement of such infrastructures and the associated service level inherently are subject to certain restrictions and conditions. In particular, the Customer's use of the cloud infrastructure is governed by the conditions agreed between the cloud provider and the Provider. The scope of services for the underlying IT infrastructure is set forth in the terms and conditions of the cloud provider. The relevant license terms and conditions and service levels are available at https://www.microsoft.com/enus/licensing/productlicensing/products.

7.3. The Customer is responsible for all data backups. The Provider does not accept any responsibility for malfunctions or impairments of any kind caused by the Service's underlying cloud infrastructure, unless they are attributable to the Provider in the individual case.

8. Third party rights and open source software

8.1. To the best of the Provider’s information, knowledge and belief, the Service is free from third party rights that would prevent contractual use.

8.2. Should third parties be entitled to and assert own rights against the Customer, the Provider will defend and hold the Customer harmless against the asserted third party claims. The Customer shall i) notify the Provider without undue delay of any assertion of such third party rights, at least in writing, (ii) issue all powers of attorney and authority to the Provider and/or give the Provider sole control over the defence and settlement claim as deemed necessary by the Provider to defend and hold itself and the Customer harmless and (iii) provide all cooperation and assistance reasonably requested by the Provider in the defence of the claim. If the Customer discontinues its use of the Service in order to mitigate potential damage, it must notify the third party that in so doing, the Customer does not acknowledge any alleged infringement. Without the Provider's consent, the Customer is not entitled to enter into any settlements for alleged infringements.

8.3. Clause 8.2. shall apply accordingly in the Provider's favour where third parties assert claims against the Provider due to content contributed by the Customer.

8.4. Excluded from the above indemnification obligations are claims to the extent arising from: (i) use of the Service or components thereof in violation of the Agreement, (ii) modification of the Service or components thereof and use of the Service or components thereof so modified, if such claim would not have arisen but for such modifications (iii) use of the Service or components thereof in combination with hardware or software not specified in the applicable documentation or otherwise approved in writing by the Provider, if such claim would not have arisen but for such combination or (iv) use of the Service or components thereof after the Provider notifies Customer to discontinue use because of an infringement claim.

8.5. Where conflicting third party rights in fact exist, the Provider will be entitled, at its option, (i) to acquire at its own expense additionally required rights of use, (ii) modify or replace the Service in such a way that it no longer infringes third party rights, without thereby significantly impairing the scope of the Service, (iii) if (i) and (ii) are not commercially or operationally viable, to terminate the Service with immediate effect and to reimburse the Customer for the Service Fee for the contract term thereby foregone.

8.6. The Service includes free and open source software. The respective current open source license terms and conditions apply with priority to the open source elements. A list of all free and open source software used as well as the respective license terms conditions,notices and acknowledgments is available at https://www.draeger.com/opensource.

8.7. The Service may contain proprietary contents of third parties, which may be subject to their own license termsfor end users and apply directly to the Customer. Such license terms are available at https://www.draeger.com/termsandconditions and take precedence over the T&C in their scope of application.

9. Liability

9.1. Subject to any indemnity or warranty under the Agreement, neither party will be liable for any indirect or consequential loss suffered or incurred by the other party in connection with the Agreement.

9.2. The aggregate liability of each Party to the other Party arising out of or in connection with the Agreement whether in contract, any indemnity, tort (including negligence) by statute or otherwise at law or in equity will not exceed the Service Fee payable under the Agreement during the period of twelve months prior to the date the claim is made.

9.3. The Customer shall take all necessary and reasonable measures to prevent or limit any damages; in particular, the Customer shall ensure that programs and data are periodically secured as part of an adequate backup protocol, unless this is contractually owed by the Provider. Accordingly, the Provider will be liable for data recovery under the aforementioned conditions only if the Customer has ensured that such data can be reconstructed with reasonable effort from other data material, and limited to a "data peak" not covered by the respective back-up.

9.4. Nothing in the Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on the Customer by the New Zealand Consumer Law or any other applicable law that cannot be excluded, restricted or modified by agreement (hereinafter "Non-Excludable Guarantee"). To the maximum extent permitted by law, the liability of the Provider for breach of a Non-Excludable Guarantee is limited, at the Provider's option, to: (i) in the case of goods, any one or more of the following: (A) the replacement of the goods or the supply of equivalent goods; (B) the repair of the goods; (C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (D) the payment of the cost of having the goods repaired; or (ii) in the case of services: (A) the supplying of the services again; or (B) the payment of the cost of having the services supplied again.

9.5. This clause 9 is subject to clause 13.

10. Term and termination

10.1. The term of use for the Service is disclosed in the respective Order Form. Unless provided otherwise in the respective Order Form, the term of use of the Service will be one year from the starting date stipulated in the Order Form. It will be renewed for a further year at a time, unless terminated by either Party in writing with at least three months' notice prior to the end of the term.

10.2. In the event that the Service is provided free of charge, the Parties may terminate the Agreement at any time – including prior to the expiry of an agreed test period.

10.3. The right to terminate for good cause will not be affected. Cause for such termination includes, for example, a material breach of an obligation under the Agreement.

10.4. In addition, the Provider may suspend access to the Service with immediate effect if the Provider has reasonable grounds to suspect that:

− the use might put the Service, the Provider and/or a third party at risk;

− the Customer's use of the Service may be unlawful;

− the Customer is insolvent or overindebted or is at risk of insolvency;

− the Customer's contractual performance appears to be at risk due to its asset situation and the Customer fails to provide written confirmation of its performance capacity or to furnish adequate security without undue delay upon request.

10.5. The rights to use of the Service will expire at the end of the term of the Agreement. The Customer will remain responsible for any fees and charges incurred or caused up to the date of termination. The Provider will not be obligated to continue storing any Customer data contained in backup snapshots or in the database after the Agreement has ended.

11. Confidentiality

11.1. The Parties undertake to treat all Confidential Information (as defined below) they become aware of during implementation of the Agreement as confidential and to use it only for contractually stipulated purposes. Confidential Information means “any and all information, documents, details and data designated as such or which, by their nature, upon reasonable assessment must be considered confidential”.

11.2. The Parties undertake to grant access to the respective other Party's Confidential Information only to those employees who have been obligated to maintain confidentiality and who for the purpose of implementing the Agreement need to or may need to know such Confidential Information.

11.3. Adequate measures shall be implemented to protect the respective other Party's Confidential Information from unauthorised third party access. Third parties as defined in this clause 11. do not include legal and tax advisers or auditors and other consultants of the respective Party. The Parties will grant access to Confidential Information only to such advisers who are subject to professional secrecy or on whom obligations corresponding to the nondisclosure obligations under the Agreement have been previously imposed.

11.4. This non-disclosure obligation does not include any Confidential Information that:

a) was demonstrably already known to the recipient upon conclusion of the Agreement or subsequently was obtained from a third party without any breach of a nondisclosure agreement, statutory provisions or regulatory orders;

b) upon conclusion of the Agreement is in the public domain or enters it subsequently, unless this is due to a breach of the Agreement; or

c )must be disclosed due to statutory obligations or due to court or regulatory order. To the extent permitted, the recipient required to disclose will notify the other Party in advance and provide it with the opportunity to proceed against the disclosure.

11.5. This non-disclosure obligation will survive for a period of five (5) years following the end of the term of the Agreement.

12. Data protection

In the course of performing the Service under the T&C, the Provider may obtain access to personal information from the Customer as defined in the Privacy Act 1993 NZ. In this regard the Parties agree to conclude all necessary data privacy agreements.

13. Force Majeure

13.1. Neither Party shall be liable for any delay or nonperformance of any obligation under the Agreement if such delay or non-performance is caused directly or indirectly by any event beyond the reasonable control of the Party affected.

13.2. This applies in particular to strikes, epidemics, floods, accidents, earthquakes, hurricanes, riots, civil commotion, acts of terrorism, armed conflicts, blockades, embargoes or other events of force majeure (hereinafter ”Force Majeure Event”). The affected Party shall notify the other Party in writing (e-mail is sufficient) within ten (10) days of the occurrence of such Force Majeure Event.

13.3. If the fulfilment of a Party's obligations is delayed by more than 180 days from the date on which the other Party received the notice under this clause 13., either Party shall be entitled to immediate termination. The terminating Party shall not be liable for any damages resulting from the termination.

13.4. As soon as there is no longer a Force Majeure Event, the Parties shall resume performance of the Agreement without delay, unless notice of termination has been given in accordance with clause 13.3.

14. Final provisions

14.1. The Service may not be used in any country that, with regard to the object of the Service, is subject to embargo regulations of the USA, the UN or the EU. Likewise, the Service may not be used if the Customer's organisation or its employees are included in any embargo lists of the USA, the UN or the EU.

14.2. The Customer's General Terms and Conditions do not apply. This also applies if these T&C are not expressly objected to. No verbal or written collateral agreements to the Agreement exist.

14.3. The Customer may assert set-off or retention rights only on the basis of counterclaims that have been established by final legal decision or acknowledged by the Provider.

14.4. The Customer may not assign the Agreement or any of its rights or obligations granted hereunder, without the prior written consent of the Provider, which shall not be unreasonably withheld or delayed. Any attempt to transfer or assign the Agreement without such written consent will be null and void. The Provider may assign the Agreement to any of its affiliates or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of the Provider’s assets.

14.5. If individual provisions of the Agreement are or become invalid as a whole or in part, this will not affect the validity of the remaining provisions. In such case, the Parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same applies in case of any unintentional gaps in these T&C.

14.6. These T&C and the contract shall be governed by and construed in accordance with the laws from time to time, of New Zealand and to the exclusion of the United National Convention on International Sale of Goods and its conflict of laws rules. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts sitting in New Zealand and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.

Revision: 06/2024