AGREEMENT between

 

 

ODL Sleep Services Pty Ltd

 

and

 

(contracting client laboratory or dental clinic)

 

 

 

 

Cooperation for

supply of printed and finished  MAS Designs, splints, and other services for

Dental and medical solutions for Sleep Apnoea and TMD.

 

 

 

 

 

This Co-operation Agreement (the “Agreement”) is made as of the first order by the contracting client laboratory or dental clinic (the “Client”) by and between:

 

(1)          ODL Sleep Services Pty Ltd (hereinafter “ODL Sleep” or “ODL”) ABN, 75606310196 a limited liability company incorporated under the laws of Australia, having its address at 3/2 Windermere Avenue, Miranda, 2228, NSW, Australia;

AND

(client) represented by its proprietor (client rep) (hereinafter)

 

ODL and the Client are hereinafter referred to individually as a “Party” and, jointly, as the “Parties”.

 

 

      Background

 

A.             Whereas ODL and the client have been engaged in mutual discussions to enter into a long-term business relationship through a substantive cooperation agreement. Both Parties view the proposed cooperation as beneficial for each to be enabled to serve its customers better with a higher quality of service than heretofore, and to open new markets.

B.             Both Parties greatly value building relationships based on trust and professionalism and will work towards establishing a long-term mutually beneficial relationship.

C.             This Agreement is made to summarise the understanding between the Parties as regards the proposed cooperation between the Parties regarding the “Business” (as defined below).

D.             This Agreement shall supersede all previous understandings and communications, whether oral or written.

E.              The Parties have, based on their agreed roles decided to enter into this Agreement.

NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS UNDER:

1.                            Business and Co-operation:

1.1         The business covered by the scope of the cooperation between the Parties shall be the following in respect of the state or territory of the client (the “Business”):

(a)  Use of accepted designs performed by the client and subsequently supplied by ODL to the Client against measurement data provided to ODL by the Client and/or its representatives or agents.

(b)Provision by ODL to the Client of list of laboratory initial materials, know how or other means, to facilitate and enable the commencement of offering ODL-designed products by the Client to its patients.

(c) Provision of technical support, responses to queries and after-sales service by ODL to the Client as may be required by the Client as per the Standard Operating Procedure detailed in Schedule II hereunder.

(d)Any other business or extensions of the Business which the Parties may hereafter mutually agree to in writing as an addendum to this Agreement.

 

2.                            The Parties agree as under:

(a)  Subject to Clause 9.2 hereunder:

(b) ODL agrees to provide a finished and polished appliance that follows the design as supplied by the client to ODL, at the rate as chosen by the client from ODL’s service offerings.

(c) The Parties have set up mutually agreed charges (“Charges”) and a Standard Operating Procedure (“SOP”) to enable smooth functioning between them, which are appended in Schedule I and Schedule II hereunder.

 

3.      CONFIDENTIAL INFORMATION

 

3.1.1                 Confidential Information means all information not publicly known that is disclosed by one Party (Discloser) to the other Party (Recipient) during the term of this Agreement (or in contemplation of it), including without limitation, know-how and information contained in or related to designs, specifications, drawings, processes, technology, computer programs, products, pricing costs, finances, personnel, suppliers, customers, markets and business and launch plans (but will not include information specifically excluded below).

3.1.2                 Disclosures may be made in any manner, including through written documents, electronic transmissions, verbal disclosures and visual presentations.

3.1.3                 The obligation of this Agreement will apply to all information which the Recipient knows or has reason to know or believe that the Discloser considers to be Confidential Information.

3.1.4                 Information will be excluded from Confidential Information if it (1) was already rightfully in the possession and control of the Recipient prior to its receipt from the Discloser, (2) is independently derived by the Recipient without use of the Discloser’s Confidential Information, (3) is or becomes a matter of public knowledge (other than as a result of a disclosure by Recipient), or (4) is required to be disclosed under operation of applicable law or regulation provided that the Recipient notifies the Discloser as soon as reasonably possible in order for the Discloser to take action to protect the Discloser’s Confidential Information.

 

4.      PRICE AND PAYMENT:

 

4.1                        Charges: ODL shall provide to the Client an online portal by which the Client will be able to order products. This online portal will be non-exclusive to the Client for use in the relevant state or territory that the Client conducts business within, for the purpose of purchasing ODL finished products by the Client as per prices and terms agreed herein (Schedules I & II) or as otherwise mutually agreed or amended from time to time.

4.2                        Payments: the Client will use the online portal for the purchase and order of ODL products based on the Client designs for the Client’s use for itself and any other users/representative which the Client forms a supply agreement with as per the terms of this Agreement.

4.3                        All payments will be made via the portal at the time of order.

4.4                        With respect to schedule ii, In the event of any issue with the ODL products to be supplied or actually supplied, if the design cannot be rectified by ODL, the Client will promptly redesign (if it so chooses), repay and resupply to ODL a new design for processing.

4.5                         the Client must inform ODL within 24 hours of placing the order of a cancellation for an ODL produced device. Providing ODL has not already ordered the case for printing, ODL will accept the cancellation and promptly issue a refund to the Client of the full amount paid by the Client,

4.6                        If the Client notifies ODL post ordering the case of the cancellation, the Client will receive a refund less a deducted service fee of $45.00.

4.7                        In the event any amount is owed by either party to the other, the indebted party shall remit the same to the other party within 7 days of the other party raising a debit advice on the indebted party upon notification of the same.

 

 

5.        MUTUAL REPRESENTATIONS AND WARRANTIES:

5.1                        Each Party hereby represents and warrants to the other Party as follows:

i.        Due Authorisation: Each Party has taken all necessary action on its part to be authorised for the execution and delivery of this Agreement and the performance of its obligations hereunder.

ii.       Enforcement of Obligations: This Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, binding obligation, enforceable against such Party in accordance with its terms.

iii.     No Conflict: The execution and delivery of this Agreement and the performance of such Party’s obligations hereunder do not conflict with, or prevent or in any way interfere with, or constitute a default or require any consent under, any contractual obligation of such Party.

iv.     Compliance with Laws: Each Party avers that, to the best of its knowledge, in undertaking the provisions of this agreement, none of the persons and/or entities involved in the performance of its obligations under this Agreement are or have been the subject of investigation or debarment proceedings by any Regulatory Authority, and are and shall remain in compliance with all applicable present and future laws, regulations, notifications and requirements of local authorities and agencies in their respective jurisdictions.

5.2                        ADDITIONAL REPRESENTATION AND WARRANTY BY ODL:

5.2.1                 ODL confirms that its products are of internationally recognised standards; and shall be compatible, workable and effective when applied to materials and processes specified by it; and that it shall provide replacements to the Client free of cost in the event the failure of the end product is determined to be on account of its specified production standards.

6.        BREACH

6.1                       Without prejudice to the aforesaid, in the event of a breach of any material provisions of this Agreement (“Breach”) by a Party (the “Defaulting Party”), the other Party (the “Non Defaulting Party”) may at any time after the occurrence of the breach, by a notice in writing (“Default Notice”), require that the Defaulting Party shall remedy/cure such Breach to the reasonable satisfaction of the Non Defaulting Party within 7 (seven) days of the Default Notice. If the Defaulting Party fails to so cure the Breach, then the Non Defaulting Party may terminate this Agreement forthwith.

7.        FORCE MAJEURE

7.1                        In this Clause 7, "Event of Force Majeure" means an event beyond the control of either Party, which prevents a Party from complying with any of its obligations under this Agreement, including but not limited to act of God; war, hostilities, embargo; riot, commotion, strikes, go slows, lock outs or disorder, unless solely restricted to employees of the affected Party; or acts or threats of terrorism.

 

7.2                       The failure of any Party to perform its obligation under this Agreement due to Force Majeure shall not be deemed to be a breach of this Agreement provided that such Party gives notice in writing to the other Party of such Force Majeure event as soon as is reasonably possible after its occurrence or in anticipation if the event is foreseen. The responsibility to prove the above rests with the Party affected by the Force Majeure.

7.3                       Any Party which fails because of Force Majeure circumstances to perform its obligation shall, upon the cessation or diminishment of the Force Majeure circumstances, take all reasonable steps within its power to resume, with the least possible delay, compliance with its obligations.

7.4                       Any additional costs incurred by the affected Party shall remain the responsibility of and be borne by the affected Party.

7.5                       Further provided that where such period of Force Majeure extends to beyond 15 days, the Parties shall immediately mutually agree on such further action as required to protect their respective positions and to accomplish as far as possible their respective obligations under this Agreement.

 

8.        INDEMNIFICATION:

8.1                        Indemnity by ODL: ODL agrees to indemnify, hold harmless and defend the Client and its affiliates and their respective officers, owners, employees, agents and representatives (collectively the “the Client Indemnitees”) from and against and in respect of any and all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, interest and penalties, costs and expenses arising out of a Third Party claim (including, without limitation, reasonable legal fees and disbursements incurred in connection therewith, and any amounts or expenses required to be paid or incurred in connection with any action, suit, proceeding, claim, appeal, demand, assessment or judgement) (collectively, “Losses”) resulting from, arising out of, or imposed upon or incurred by any person to be indemnified hereunder by reason of (a) any breach of representation, warranty, or agreement on the part of ODL under this Agreement; (b) any negligent act or omission or wilful misconduct of ODL, its agents, employees or its suppliers hereunder; (c) personal injury and/or medical complications and costs and expenses related thereto that are suffered by the Client’s patients attributed to products supplied or designs supplied by ODL or for claims based on violations of any local legislations. (d) any and all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, interest and penalties, costs and expenses arising out of a breach of SOP by ODL related to the MAS or splint designs provided to the Client by ODL. Notwithstanding the foregoing, ODL shall not be obligated hereunder to indemnify the Client’s indemnitees to the extent Losses result from (i) any breach of representation, warranty, or agreement on the part of the Client under this Agreement; or (ii) the negligence or wilful misconduct of any the Client indemnitee.

8.2                        Indemnity by the Client:

the Client agrees to indemnify, hold harmless and defend ODL and its affiliates and their respective officers, owners, employees, agents and representatives (collectively  the “ODL Indemnitees”) from and against and in respect of any and all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, interest and penalties, costs and expenses arising out of a Third Party claim (including, without limitation, reasonable legal fees and disbursements incurred in connection therewith, and any amounts or expenses required to be paid or incurred in connection with any action, suit, proceeding, claim, appeal, demand, assessment or judgement) (collectively, “Losses”) resulting from, arising out of, or imposed upon or incurred by any person to be indemnified hereunder by reason of (a) any breach of representation, warranty, or agreement on the part of the Client under this Agreement; (b) any negligent act or omission or wilful misconduct of the Client, its agents or employees hereunder; (c) claims based on violations of any local legislations; (d) any and all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, interest and penalties, costs and expenses arising out of a breach of SOP by the Client in the design for the material goods as produced from the designs provided by the Client by ODL. Notwithstanding the foregoing, the Client shall not be obligated hereunder to indemnify ODL’s indemnitees to the extent Losses result from (i) any breach of representation, warranty, or agreement on the part of ODL under this Agreement; or (ii) the negligence or wilful misconduct of any ODL indemnitee.

 

9.                           TERM AND TERMINATION:

9.1                        Term: This Agreement shall commence on the Effective Date and shall continue in effect until terminated as permitted under this Clause 9.

9.2                        Termination: Either Party may terminate this Agreement with 90 days’ prior written notice to the other Party, giving reasons for the termination.

9.3                        Surviving Obligations: Termination or expiration of this Agreement shall not affect (a) any other rights of either Party which may have accrued up to the date of termination or expiration; and (b) all provisions of Clauses 3, 4, 8 and 10 which shall survive the termination or expiration of this Agreement as provided herein.

 

10.                       DISPUTE RESOLUTION

10.1                    Negotiation

10.1.1             Any dispute, difference, controversy or claim between ODL and the Client (each a “Disputing Party” and together the “Disputing Parties”) arising out of or relating to this Agreement or the breach, termination or validity thereof (“Dispute”) shall, upon the written request (“Request”) of either Disputing Party served in accordance with Clause 13 (Notices), be promptly resolved by the Parties in good faith. In the event that the Disputing Parties are unable to resolve the Dispute through negotiation within 30 (thirty) days after service of a Request by a Disputing Party, then the Dispute shall be resolved in accordance with the provisions of Clause 8.2 below.

10.1.2             For the avoidance of doubt, unless either Party terminates the operation of this Agreement, in the event of any Dispute each party will be obliged to fulfil in full all of its obligations under this Agreement and the provider will continue to supply the Services to the Client in accordance with the provisions of this Agreement.

10.2                    Arbitration

10.2.1             Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be referred to and finally resolved under the Rules of the presiding state or territory, and any enactments / amendments thereunder. The adjudication by the arbitrator shall be final and binding on the Parties. The place of the arbitration shall be in the courts of NSW Australia. The language to be used in the arbitration proceedings shall be English.

 

11.                       GOVERNING LAW AND DISPUTE RESOLUTION

 

11.1                   This Agreement shall be governed by and construed in accordance with the laws of the presiding state or territory, without regard to any conflict of law principles leading to the application of the laws of any other jurisdiction.

 

12.                       Independent Parties: The Parties are not employees or legal representatives of the other Party for any purpose. Neither Party shall have the authority to enter into any contracts or commitments in the name of or on behalf of the other Party.

13.                       Notice: All notices, including notices of address change, required or permitted to be given under this Agreement shall be in writing and may be sent by registered mail with acknowledgement due (deemed to be received seven days thereafter); or by courier (deemed to be received three business days thereafter); or by email, provided that the email is encrypted and secure.

The Notice shall be sent to:

        If to ODL:

Post: 3/2 Windermere Ave Miranda NSW 2228 Australia

Email: info@aerhealthcare.com.au

 

    If to the Client: via email

 

14.                       Severability: In the event any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain unaffected and in full force and effect.

15.                       Waiver: Any waiver (express or implied) by either Party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.

16.                       Entire Agreement: This Agreement constitutes the entire, final, complete and exclusive agreement between the Parties and supersedes all previous agreements and representations, written or oral, with respect to the subject matter of this Agreement.

17.                       Non-assignability, Binding on Successors:  Any attempted assignment of the rights or delegation of the obligations under this Agreement shall be void without the prior written consent of the non-assigning or non-delegating Party. This Agreement shall be binding upon, and inure to the benefit of, successors, executors, heirs, representatives, administrators and permitted assigns of the Parties hereto.

18.                       Counterparts: This Agreement may be executed by the Parties in two or more counterparts, each of which shall be deemed an original and all of which shall constitute together the same instrument.

 

The Parties hereto have duly executed this Co-operation Agreement as of the first order date.