1. INCORPORATION OF TERMS
    • The terms set out in this document (“Terms”) are incorporated into each and every agreement for the Manufacture of Products (“Agreement”) by use of the words incorporating them on any Quote.
    • Any additional terms and conditions set out in a Quote will form part of the Agreement and where the terms and conditions in a Quote contradict these Terms, the Quote will prevail but only to the extent of the inconsistency.
  2. Formation Of Agreement
    • An Agreement is formed between the Client and Pharmascope upon these Terms when the Client accepts a Quote in writing.
    • No Agreement will be formed if the Client purports to accept a Quote more than 30 days after the date of the Quote unless Pharmascope specifically agrees in writing to honour that Quote after receipt of the purported acceptance.
  3. Payment Of Contract Fee
    • General Payment Obligations
      • The Client shall pay the Contract Fee at the time or times specified in the Quote or within 7 days of invoice where no time is stated
      • If payments are not received in accordance with clause 3.1(a) then Pharmascope may suspend work until the relevant payment has been made and Pharmascope may extend any time for completion by a period it considers necessary to compensate for the delay and any adverse developments in its supply chain occurring prior to the payment.
      • All payments shall be made by electronic funds transfer to the Account.
      • No payment to any bank account whose details are different from those of the Account will suffice to discharge a debt due to Pharmascope unless those different bank account details have been previously verified by a director of Pharmascope on Pharmascope’s letter head in hard copy with a wet ink signature.
    • Consequence of Late Payments and Non Payment
  • If any amount payable by the Client is outstanding, then Pharmascope shall be entitled to charge interest on the outstanding amount at a rate of 10% per annum accruing daily until the amount is paid in full.
  • Pharmascope may suspend production of Products at any stage whilst amounts due to it remain unpaid.
  • The Client shall pay Pharmascope’s costs including legal costs on an indemnity basis of any recovery action in respect of amounts outstanding.
  1. mANUFACTURE & Gmp
    • Manufacture and packaging of any Product will be in accordance with the GMP for that Product.
    • The GMP for a given Product forms part of these terms and conditions in respect of the Agreement for that Product.
  2. ongoing manufacture
    • Pharmascope may honour subsequent orders (“Subsequent Order”) for any Product which it has already manufactured.
    • If Pharmascope accepts a Subsequent Order:
      • these Terms will apply; but
      • Pharmascope may issue a Quote containing a Contract Fee different from that in prior orders and require it to be accepted as a condition of accepting the Subsequent Order.
  1. commencement and period for completion of work
    • Timetable
      • Any timeframe for completion of manufacture of Products (“Timeframe”) shall be set out in the Quote.
      • Unless stated to be binding in a Quote, any Timeframe is indicative only and is not binding on Pharmascope.
      • Any variation to the Contract will extend the Timeframe by a minimum of 30 days unless otherwise agreed by Pharmascope.
    • Supply Interruption

Where any raw material is not able to be supplied within any Timeframe Pharmascope will notify the Client of that fact and any expected delay in completion of the order arising from it.

  • Completion Time

Pharmascope is not liable for any loss incurred or suffered by the Client as a result of delay in completion of any order.

  1. CHANGE TO RAW MATERIAL PRICE
    • If Pharmascope’s cost of acquisition of raw materials changes at any time prior to the complete manufacture of Products under any order (“Materials Price Increase”), the balance of this clause will apply.
    • If there is a Materials Price Increase, Pharmascope will within 5 business days inform the Client of:
      • the fact of the Materials Price Increase;
      • the amount of the Materials Price Increase; and
      • the increase to the Contract Fee.
    • If the Client receives a notification under clause 7.2, the Client shall within 5 business days confirm they accept the increase in the Contract Fee or reject it.
    • if the Client:
      • Accepts the increase in the Contract Fee, the increased fee will apply and any additional balance over and above the initial Contract Fee shall be payable within 7 days of invoice.
      • Rejects the increase in the Contract Fee, the Contract will end for any Products which include the raw materials to which the Materials Price Increase applies.
      • Does not respond to the notification in clause 7.2, they will be deemed to have rejected the increase in the Contract Fee as if they had given a rejection notice under clause 7.4(b).
  1. TITLE & RISK
    • Title to Products does not pass to the Client until the Contract Fee is paid in full.
    • Subject to clause 8.4, risk in the Products passes to the Client upon their being loaded onto Pharmascope’s carrier’s vehicle in the case of delivery or upon loading onto a vehicle arranged by the Client in the case of collection.
    • From the time (if any) that clauses 10.3(b) or 10.5(b) (as the case may be) apply, the Products will be at the Client’s risk.
  2. TESTING
    • Where has quoted to do so (and not otherwise) Pharmascope will conduct testing of Products in accordance with the GMP.
  3. CLIENT SUPPLIED RAW MATERIALS
    • If the Client sources and supplies raw materials to Pharmascope for incorporation into a Product, then the Client at its own cost shall arrange for any testing of those raw materials for such contaminants and bacteria as Pharmascope shall recommend.
    • If the Client fails to comply with a recommendation under clause 10.1, then at its option, Pharmascope may:
      • manufacture the Product; or
      • refuse to manufacture the Product.
    • If clause 10.2 applies and Pharmascope refuses to manufacture the Product, the Client shall compensate Pharmascope in full for any costs incurred by it preparatory to manufacture of the order for the Product prior to the client’s failure to comply with the recommendation in clause 10.1.
    • If clause 10.2 applies and Pharmascope elects to manufacture the Product, the Client acknowledges that:
      • the Product may be unsaleable due to the presence of contaminants which could have been detected by proper testing; and
      • the Contract Fee will be payable in full regardless of whether the Product is rendered unsaleable due to factors in clause 10.4(a) or not.
  1. COLLECTION AND DELIVERY
    • Unless otherwise stipulated in the Quote Pharmascope will notify the Client when the Products are ready for collection and the Client shall collect them no later than 7 days (“Collection Date”) after receipt of that notification.
    • the Client will be responsible for the costs of collection of the Products; and
    • If the Client does not arrange collection of the Products by the Collection Date then Pharmascope shall charge the Client the Storage Fee and the Client shall:
      • pay the Storage Fee prior to collection of the Products; and
      • insure the Products from the Collection Date until collection.
    • Where a Quote states that Products will be delivered, or words to that effect, Pharmascope will inform the Client of the date on which they will be delivered (“Delivery Date”).
    • If the Client does not or cannot accept delivery on the Delivery Date, the Client shall:
      • pay the Storage Fee until the Product is delivered and Pharmascope may hold delivery until the Storage Fee is paid; and
      • insure the Product from the Delivery Date.
  1. unused raw materials and packaging
    • The Client acknowledges that after a manufacturing run there may be a Surplus.
    • The Client must collect any Surplus within 14 days of receipt of Pharmascope’s request.
    • If the Client breaches clause 12.2, they will pay Pharmascope’s costs of disposal of the Surplus.
  2. Warranty Claims
    • Subject to clause 13.2, Pharmascope warrants that Products are free from defects for 12 months from the manufacturing date.
    • Pharmascope specifically provides no warranty against defects determined to be caused by a Product:
      • being unstable when subjected to variations in ordinary room temperatures where the Client did not require Pharmascope to conduct Stability Testing or where the product has been exposed to temperatures exceeding 40 degrees centigrade for more than 2 hours;
      • having bacteria quantities making it unsuitable for sale where the Client did not require Preservative Efficacy Testing;
      • which contains raw materials which have been supplied by the Client unless the client has had those raw materials tested for quality and contamination by a testing facility approved by Pharmascope and the raw materials have passed testing.
    • To be valid, a warranty claim must be made within 12 months from the date of delivery or collection and must be accompanied or supplemented by samples of the relevant Product in a quantity necessary for Pharmascope to conduct its own testing.
    • Pharmascope shall investigate the claim and either accept or reject it, acting in good faith
    • If the claim is accepted Pharmascope shall remanufacture the Product in quantities sufficient to replace the quantity of Product the subject of the claim.
  3. LIMITATION OF LIABILITY
    • Except as expressly stated in this Agreement, all warranties, conditions, and terms, whether express or implied by statute, common law or otherwise (including fitness for purpose and suitability) are hereby excluded to the maximum extent permitted by applicable law.
    • Any liability Pharmascope has to the Client for Loss in contract or tort or under the Australian Consumer Law is limited to (at the Client’s option):
      • An obligation to re-supply the Product under the Agreement; or
      • An amount equivalent to the cost of having Pharmascope re-supply the Product under the Agreement; or
      • An amount equivalent to the reasonable cost of the Client in acquiring the same Product as those in the Agreement from another supplier; or
      • Pharmascope paying the reasonable cost of the Product under the Agreement being provided by another supplier.
  1. INDEMNITY

The Client hereby indemnifies and keeps indemnified Pharmascope against any Loss it suffers due a Product being contaminated, dangerous, unsaleable or of insufficient shelf life where:

  • Clause 10.4 applies; or
  • the Client has declined to have Stability Testing and Preservative Efficacy Testing of a Product; and

a person suffers Loss from a cause which could have been detected and avoided had the Client arranged for testing in accordance with clause 10.1 or engaged Pharmascope to conduct Stability Testing or arrange for Preservative Efficacy testing as the case may be.

  1. Client Representations & OBligations

The Client hereby warrants and represents to Pharmascope that:

  • it will co-operate with Pharmascope and provide Pharmascope with such information and assistance as Pharmascope may require to enable it to comply with its obligations under these terms.
  • If Pharmascope considers either that the Client is in breach of any obligations or that Pharmascope is otherwise unable to perform any obligations because of any other act or relevant omission of the Client Pharmascope shall be entitled to rely on such breach act or relevant omission as relieving it from the performance of any of its obligations.
  • The Client is the owner of or has the right to use any formula or part of a formula it provides to Pharmascope for the manufacture of any Product and that Pharmascope will infringe no third party rights by using it.
  • The Client hereby indemnifies and keeps indemnified Pharmascope for any Loss it suffers arising out of or connected with the Client’s breach of the Agreement to the extent that the Loss is caused by the breach.
  1. TERMINATION For Client’s Breach
    • Without limiting the generality of any other clause in the Agreement, Pharmascope may terminate this Agreement immediately by notice in writing if:
      • any payment due from the Client to Pharmascope pursuant to this Agreement remains unpaid for a period of 14 days; or
      • the Client breaches any clause of this Agreement and such breach is not remedied within 7 days of written notice by
    • Notwithstanding the preceding clause Pharmascope may terminate this Agreement immediately by notice in writing to the Client if:
      • the Client becomes, threatens, or resolves to become or is in jeopardy of becoming subject to any form of insolvency or administration;
      • the Client, being a partnership, dissolves, threatens, or resolves to dissolve or is in jeopardy of dissolving;
      • the Client dies; or
      • the Client ceases or threatens to cease conducting its business in the normal manner.
    • If notice is given to the Client pursuant to the preceding clauses, Pharmascope may, in addition to terminating the Agreement:
      • claim liquidated damages equivalent to the Contract Fee; and
      • pursue any additional or alternative remedies provided by law.
  1. Termination For Pharmascope’s Breach
    • If Pharmascope breaches any of its obligations under this Agreement, then the Client may only terminate this Agreement if:
      • the Client has notified Pharmascope of the alleged breach in writing; and
      • Pharmascope has failed to remedy the default within 28 days of receiving the notice of default from the Client.
    • If the Client terminates this Agreement in accordance with clause 18.1 above then the Client shall pay any invoice issued under clause 3 for work carried out by Pharmascope up to the date that the Agreement is terminated and have no right to set off any amount it claims Pharmascope owes it against that invoice.
  2. VARIATION

This Agreement may be varied at any time in writing between the Client and Pharmascope, but not otherwise.

  1. LIEN

The Client hereby grants to Pharmascope a lien over any Product which it has manufactured for the Client which shall subsist over all of the Product until the Contract Fee as varied under these Terms has been paid in full.

  1. Miscellaneous
    • Quotes

Unless otherwise stated in the Quote:

  • all prices in the Quotation are exclusive of GST and sales tax; and
  • all prices are quoted in Australian dollars.
  • GST
    • The parties acknowledge that the amounts set out in this Agreement are exclusive of GST.
    • The supply of the Products made by Pharmascope to the Client will be subject to GST which will be added to invoices rendered.
    • The Client must pay to Pharmascope an additional amount equal to the amount of the consideration multiplied by the applicable GST rate.
  1. General
    • The Agreement shall constitute the whole agreement between the parties hereto in respect of its subject matter.
    • The Agreement shall be capable of being varied only by a written instrument signed by a duly authorised officer or other representative of each of the Parties.
    • The Agreement is severable in that if any provision is determined to be illegal or unenforceable by any court of competent jurisdiction such provision shall be deemed to have been deleted without affecting the remaining provisions of it.
    • No right of any Party to this Agreement can be waived unless waiver is in writing. This clause cannot be waived.
    • The Agreement shall be governed and construed in accordance with the laws of Western Australia and disputes arising under it or otherwise out of the commercial relationship between the parties (regardless of the nature of the cause of action) shall be determined solely and exclusively by the courts of Western Australia and the courts to which an appeal from a court of Western Australia may lie. If a party commences litigation in any State other than Western Australia, the other party shall be entitled to a stay of those proceedings and may the claim the costs including legal costs of the stay on an indemnity basis from the party commencing the litigation.
  2. Definitions and Interpretation
    • The terms defined have the same meanings when used throughout this Agreement.
    • Unless the contrary intention appears:
      • a reference to this Agreement or any other document includes any variation or replacement of it;
      • a reference to a statute, ordinance, code, or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments, or replacements of any of them;
      • the singular includes the plural and vice versa;
      • a reference to a person includes a reference to the person’s executors, administrators, successors, transferors, substitutes (including persons taking by novation) and assigns;
      • an agreement, representation, or warranty on the part of or in favour of two (2) or more persons binds or is for the benefit of them jointly and severally;
      • if a period of time is specified and commences from a given day or the day of an act or event, it is to be calculated exclusive of that day;
      • gender reference includes all genders.
    • Headings are inserted for convenience and do not affect the interpretation of this Agreement.
    • The following words have the following meanings:

“Account”

Means account BSB 016 270 A/C 4982 82788

 

“Agreement”

means a contract for the sale of Products formed between Pharmascope and the Client pursuant to clause 2.1 of these Terms;

 

“Business Day”

means any day on which trading banks in Western Australia are open for business;

 

“Client”

means any Person to whom Pharmascope provides Products;

“Contract Fee”

means the aggregate amount payable by the Client to Pharmascope under the Agreement as varied from time to time in accordance with the Agreement;

“Day”

means the period commencing at midnight and ending 24 hours later;

“GMP”

Means a document headed “Pharmascope GMP” dealing with manufacture of a Product for the Client

“Loss”

means any delay, loss, liability, damages, expenses, or costs (including legal costs), and includes, without limitation, direct or consequential loss or damage and loss due to personal injury.

“Person”

includes a firm, a body corporate, an unincorporated association, and an authority;

“Pharmascope”

means Pharmascope Pty Ltd ACN 111 664 674

“Preservative Efficacy Testing” or (“PET”)

means testing of the Product to confirm that preservatives in the Product are sufficient to keep bacteria in the Product sufficiently limited to make the Product appropriate for distribution for its expected shelf life;

“Product”

means any product which a Client engages Pharmascope to manufacture;

“Quote”

Means a document purporting to be such bearing Pharmascope’s logo, directed to the Client and stating a price and other conditions on which Pharmascope will manufacture a Product;

“Stability Testing”

Means testing of a Product to confirm that as manufactured, it has the necessary resistance to heat and cold to allow it to maintain its integrity and utility in instances of ordinary temperature indoor temperature ranges;

“Storage Fee”

Means the sum of $20 per day plus GST

“Surplus”

Means raw materials or packaging materials left over after a manufacturing run.