These terms and conditions (“Rebate Terms”), together with the applicable rebate detail document Rebate Detail Document (as defined below), form the agreement (“Agreement”) between Medisca Australia Pty Ltd (ACN 158 703 836) (“Medisca”, “we”, “us” or “our”) and you, the person or entity that accepts the Terms or the Rebate Detail Document in accordance with clause 2.4, or (where applicable) the person or entity stated in the Rebate Detail Document (“Customer”, “you” or “your”), together the Parties and each a Party.
1. Background
1.1 Customer purchases certain products from Medisca (the “Products”).
1.2 Medisca has agreed to provide Customer with a rebate on Customer's purchases of the Products, calculated in accordance with the rebate program set out in the Rebate Detail Document (“Rebate Program”).
1.3 The Parties wish to set out their respective rights and obligations in respect of the Rebate Program applicable to Customer's purchases of the Products.
2. Application of this Agreement
2.1 This Agreement applies in addition to, and does not replace, any other terms agreed between the Parties, including any terms governing the sale of the Products as set out in clause
2.2 Unless Customer has entered into a separate signed supply or short form agreement with Medisca governing the sale of Products, the Terms and Conditions of Purchase available at https://www.medisca.com.au/terms-and-conditions (“Online Terms”) apply to all sales of Products.
2.3 In the event of any inconsistency between this Agreement and the Online Terms (or any signed supply agreement, as applicable) in respect of the Rebate Program, this Agreement will prevail to the extent necessary to resolve the inconsistency. For all other matters, including confidentiality, intellectual property, dispute resolution and governing law, the Online Terms (or signed supply agreement, as applicable) apply.
2.4 Customer accepts this Agreement by doing any of the following, whichever occurs first:
(a) placing, or continuing to place, orders for Products with Medisca after being notified that a Rebate Program applies to Customer's account; or
(b) signing the Rebate Detail Document, where the Rebate Detail Document is provided to Customer as a separate document,and this Agreement takes effect on the date on which either (a) or (b) first occurs (“Commencement Date”).
3. Applicable Rebates
3.1 Medisca agrees to grant Customer the rebate benefits described in the Rebate Detail Document (“Rebate”), calculated by reference to Customer's purchases of Products, on the terms set out in this Agreement.
3.2 The benefits, rights and obligations under this Agreement commence on the Commencement Date and continue until terminated in accordance with clause 7.
3.3 Customer is solely responsible for correctly accounting for, and complying with any tax, reporting or regulatory obligations that arise in connection with, any Rebate received under this Agreement.
3.4 The Parties agree to keep the terms of this Agreement confidential and not disclose them to any third party unless required by Law.
3.5 If there is any change in Law applicable to Medisca or Customer that affects the basis on which the Rebate may lawfully be calculated or paid, the Parties will amend this Agreement as reasonably necessary to ensure ongoing compliance.
3.6 Medisca may, at its discretion, review and amend the Rebate calculation and Baseline Sales methodology set out in the Rebate Detail Document, by giving Customer no less than 30 days' written notice before the amended terms take effect. If Customer continues to purchase the Products after the amended Rebate Detail Document takes effect, Customer will be deemed to have accepted the amendment.
4. Compliance with Laws and Codes
4.1 Each Party must comply, and must ensure the Rebate and Rebate Program are structured and administered so as to comply, with all Laws including without limitation:
(a) the Therapeutic Goods Act 1989 (Cth) and associated regulations;
(b) the National Health Act 1953 (Cth) and any rules applicable to products supplied under the Pharmaceutical Benefits Scheme ("PBS"), including restrictions on rebates, discounts or other benefits given in connection with the supply of PBS medicines;
(c) the Medicines Australia Code of Conduct as in force from time to time, including its provisions on inducements, financial and non-financial benefits, and interactions with healthcare professionals and organisations;
(d) applicable State and Territory poisons, medicines and pharmacy legislation and any rules of the relevant Pharmacy Board or Pharmacy Council restricting or regulating rebates, benefits or inducements offered to, or accepted by, pharmacies or pharmacists; and
(e) the Health Practitioner Regulation National Law, and any relevant guidelines or codes issued by the Australian Health Practitioner Regulation Agency ("AHPRA") or the Pharmacy Board of Australia concerning conflicts of interest, inducements, or financial relationships with health practitioners.
5. No Inducements
5.1 Neither Party will offer, provide, solicit or accept any Rebate or other benefit under this Agreement in a manner that could reasonably be regarded as an improper inducement to purchase, supply, prescribe, recommend or dispense any Product, or that could compromise the professional or clinical independence of Customer, its pharmacists, or any healthcare practitioner associated with Customer.
6. Your Warranties
6.1 You represent, warrant and agree that:
(a) you will comply with this Agreement and all Laws;
(b) you hold all licences, registrations and authorisations required to purchase, hold and supply the Products, including any pharmacy or premises registration required under applicable State or Territory law;
(c) your acceptance of the Rebate does not breach any professional, ethical or regulatory obligation applicable to you, including any obligation under the Pharmacy Board of Australia's Code of Conduct or AHPRA guidelines; and
(d) you will not pass on any benefit of the Rebate to a third party in a manner that is misleading or deceptive, or that misrepresents the price paid for the Products, or as an inducement to use a particular pharmacy.
7. Term and Termination
7.1 This Agreement will commence on the Commencement Date, and will continue until this Agreement is terminated in accordance with this clause 7 (“Term”).
7.2 Either Party may terminate this Agreement at any time by giving 30 days’ notice in writing to the other Party.
7.3 If Medisca reasonably considers that continuing to provide the Rebate, or any part of it, would breach, or cause either Party to breach, any Law, code or regulatory requirement, Medisca may suspend or adjust the Rebate Program to the extent necessary to address the non-compliance, and will notify Customer promptly of any such action and the reasons for it.
7.4 This Agreement will terminate immediately upon written notice by a Party (Non-Defaulting Party), if the other Party (Defaulting Party) breaches a material term of this Agreement and that breach has not been remedied within 10 business days of the Defaulting Party being notified of the breach by the Non-Defaulting Party.
7.5 Upon expiry or termination of this Agreement Medisca will immediately cease providing the Rebate Program to Customer.
7.6 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it. Where this Agreement is terminated other than by Medisca under clause 7.4, any accrued but unused Rebate as at the date of termination may be applied by Customer against purchases of Products from Medisca for a period of [30] days after termination, after which any unused Rebate will be forfeited. Where this Agreement is terminated by Medisca under clause 7.4, any accrued but unused Rebate is forfeited on termination. For the avoidance of doubt, termination of this Agreement does not terminate, and has no effect on, the Online Terms or any other terms or agreements that apply to Customer, including any agreement governing the sale of Products, which will continue in accordance with their own terms.
7.7 This clause 7 will survive the termination or expiry of this Agreement.
8. Liability
8.1 Despite anything to the contrary, but subject to your Consumer Law Rights, to the maximum extent permitted by law:
(a) neither Party will be liable for any Consequential Loss;
(b) a Party's liability for any Liability under, arising from, or in connection with, this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
(c) each Party's maximum aggregate liability for any Liability arising from or in connection with this Agreement will be limited to the greater of (i) the total Rebate paid or credited to Customer in the 12 months preceding the event giving rise to the claim or (ii) $1,000.
9. General
9.1 Amendment: Subject to clause 3.6, this Agreement may only be amended by written instrument executed by the Parties.
9.2 GST: If and when applicable, GST payable on any amount under this Agreement will be set out in our invoice or credit note. You agree to pay the GST amount at the same time as you pay or receive the relevant amount.
9.3 Joint and Several Liability: Where you constitute two or more individuals or entities, you will each be jointly and severally liable under this Agreement.
9.4 Survival: Each clause which by its nature survives termination will survive the termination or expiry of this Agreement.
9.5 Other Terms: For all matters not expressly addressed in this Agreement, including confidentiality, intellectual property, notices, privacy, force majeure, dispute resolution and governing law, the Online Terms (or, where applicable, Customer's signed supply agreement with Medisca) apply.
10. Definitions
10.1 In this Agreement, unless the context otherwise requires:
Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise:
(a) any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into this Agreement as the probable results of the relevant breach, act or omission; and/or
(b) without limiting subclause (a), any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data.
Consumer Law Rights means any rights, warranties, guarantees or remedies conferred on Customer under the Australian Consumer Law (set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) or any other applicable law, in each case that cannot lawfully be excluded, restricted or modified by agreement between the Parties.Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with this Agreement or the supply of any Products.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party to this Agreement or otherwise.
Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.
Rebate Detail Document means the document (however titled or described, including as Schedule A, a one-pager or similar), containing the applicable Baseline Sales Period, rebate tiers, rebate percentages, Usage Period and other commercial details of the Rebate Program applicable to Customer, whether provided to Customer online, together with a quote, or as a separately signed document.