Trading terms
Intervet Australia Pty Limited, known as MSD Animal Health
(ACN 008 467 034)
TERMS OF TRADE
January 2012
1. Definitions and Interpretation
1.1 Definitions
The following definitions apply unless the context requires otherwise:
Act means the Competition and Consumer Act 2010 (Cth).
Business Day means a day which is not a Saturday, Sunday or a public holiday in Sydney.
Consumer has the same meaning as in the Act.
Force Majeure Event means an act of god, war, sabotage, riot, insurrection, act of terrorism, civil commotion, national emergencies (whether in fact or law), strikes, lock-outs or other industrial disturbance, accidents, uncontrollable delays in transportation, inability to obtain any necessary materials, equipment, facilities or qualified employees, or the effect of any applicable laws, orders, rules or regulations or other matters beyond the reasonable control of Intervet Australia Pty Limited, known as MSD Animal Health.
Goods means all goods supplied by Intervet Australia Pty Limited, known as MSD Animal Health to the Purchaser or as the Purchaser may direct.
GST has the meaning given by the GST Law.
GST Group has the meaning given by the GST Law.
GST Law has the meaning given by the A New Tax Systems (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
Input Tax Credit has the meaning given by the GST Law and a reference to an Input Tax Credit entitlement of a party includes an Input Tax Credit for an acquisition made by that party but to which another member of the same GST Group is entitled under the GST Law.
Insolvency Event means an event whereby:
(a) except for the purposes of a solvent reconstruction or amalgamation previously approved by Intervet Australia Pty Limited, known as MSD Animal Health in writing:
(i) an application or an order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting or an application to a court or other steps are taken for the winding up, dissolution, official management or voluntary administration of the Purchaser; or
(ii) the Purchaser enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them;
(b) the Purchaser ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than in the ordinary course of its business;
(c) the Purchaser is, or is deemed under any applicable legislation (including section 95A of the Corporations Act 2001 (Cth)) to be, unable to pay its debt when they fall due (other than as a result of the failure to pay a debt or claim the subject of a good faith dispute) or stops or suspends or threatens to stop or suspend the payment of all or any class of its debts or; or
(d) a receiver, a receiver and manager, administrator or similar officer is appointed to the Purchaser or any part of its property or a distress, attachment or other execution is levied or enforced.
Main Delivery Point has the meaning given to that term in clause 4.4.
Major Failure has the same meaning as in the Act.
Purchaser means a person placing an order with Intervet Australia Pty Limited, known as MSD Animal Health for the purchase of Goods.
Intervet Australia Pty Limited, known as MSD Animal Health means Australia Pty Ltd (ACN 008 467 034).
Terms means these Terms of Trade.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise.
(a) The singular includes the plural and conversely;
(b) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(c) A reference to a person includes a body corporate, an unincorporated body or other entity; and
(d) Mentioning anything after includes or including or similar expressions does not limit what else might be included.
2. General
2.1 Applications of Terms
These Terms shall apply to all orders for Goods placed by the Purchaser, and all Goods supplied to the Purchaser or supplied as the Purchaser may direct.
2.2 General Exclusions
These Terms shall apply to the exclusion of all other terms and conditions (express or implied), except to the extent that the exclusion of any such terms and conditions is contrary to law.
2.3 Entire Agreement
Except as expressly provided in these Terms, these Terms constitute the entire agreement between Intervet Australia Pty Limited, known as MSD Animal Health and the Purchaser with respect to sales of the Goods, despite any provisions to the contrary in any of the Purchaser's order forms or other documents. These Terms supersede all prior written or oral arrangements.
2.4 Amendment
Intervet Australia Pty Limited, known as MSD Animal Health may change these Terms at any time by 30 days written notice in writing to the Purchaser.
2.5 No Waiver
No failure to exercise nor any delay in exercising any right, power or remedy under these Terms operates as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
2.6 Governing Law
These Terms, and any contract for the sale of the Goods pursuant to these Terms, are to be governed and construed in accordance with the laws of New South Wales. Intervet Australia Pty Limited, known as MSD Animal Health and the Purchaser accept the non-exclusive jurisdiction of the courts exercising jurisdiction there in relation to any dispute between them.
3. Orders
3.1 Right to Accept or Decline
Intervet Australia Pty Limited, known as MSD Animal Health reserves the right to accept or decline in whole or in part any order placed by the Purchaser.
3.2 Handling/Distribution Fee
Intervet Australia Pty Limited, known as MSD Animal Health will charge a $50 handling/distribution fee on all orders below $1200 in value (excluding GST), irrespective of destination and carrier.
3.3 Standard Shipper Quantities
The Purchaser must order in standard shipper quantities (as set out in Intervet Australia Pty Limited, known as MSD Animal Health's standard price list from time to time).
3.4 Specific requirements
If the Purchaser requires dry ice to be shipped with any order, or if any other specific packaging is required for particular Goods, Intervet Australia Pty Limited, known as MSD Animal Health will charge for those in accordance with Intervet Australia Pty Limited, known as MSD Animal Health standard pricing from time to time.
4. Delivery
4.1 General
Delivery may be made by Intervet Australia Pty Limited, known as MSD Animal Health or its contractors or agents.
4.2 Deemed Delivery
Delivery is deemed to have been made on receipt by Intervet Australia Pty Limited, known as MSD Animal Health's authorised carrier of a delivery note signed by an authorised representative of the Purchaser.
4.3 Off-Loading Facilities
The Purchaser shall provide secure and suitable offloading facilities at each delivery point so as to facilitate the safe and timely off-loading of the Goods.
4.4 Main Delivery Point
Delivery of Goods will be made to one delivery point nominated by the Purchaser (the Main Delivery Point).
4.5 Non-Receipt of Goods
The Purchaser must notify Intervet Australia Pty Limited, known as MSD Animal Health in writing of any non-receipt of Goods within 7 days of delivery of a notice from Intervet Australia Pty Limited, known as MSD Animal Health that those Goods have been shipped. The notice must specify the delivery document number and the quantity and description of the Goods which were not delivered.
4.6 Credit for Non-Receipt of Goods
If the Purchaser does not notify Intervet Australia Pty Limited, known as MSD Animal Health of the non-receipt of any goods within 7 days, Intervet Australia Pty Limited, known as MSD Animal Health may not give credit to the Purchaser for those Goods. If notification is given within 7 days and a claim for credit is approved by Intervet Australia Pty Limited, known as MSD Animal Health, the Purchaser will be entitled to credit in accordance with clause 9(b).
4.7 Date for Delivery
The date for delivery specified by Intervet Australia Pty Limited, known as MSD Animal Health (if any) is the estimated date for delivery only. Intervet Australia Pty Limited, known as MSD Animal Health will not be liable for any loss or damage, including consequential loss or loss of profits, suffered by Purchaser arising from, or related to, any late delivery or failure to make delivery of any order whether in whole or in part. If Intervet Australia Pty Limited, known as MSD Animal Health is unable to make a delivery because of a Force Majeure Event, then the estimated date of delivery will be extended until the cessation of the effect of such Force Majeure Event.
5. Storage of Goods
5.1 Pack Requirements
The Purchaser must store the Goods in accordance with the requirements stated on each pack including refrigerated and cool, dry storage facilities where required.
5.2 Goods Able to be Distinguished
The Goods will be stored by the Purchaser in such manner that they are readily distinguishable from any other goods owned by the Purchaser or any other person.
6. Payment
6.1 Time for payment
Payment for the Goods shall be made by the Purchaser to Intervet Australia Pty Limited, known as MSD Animal Health by no later than the 30th day of the month following the date of an invoice issued by Intervet Australia Pty Limited, known as MSD Animal Health in respect of those Goods. If payment in full is not received on or before the due date then, in addition to its other rights, Intervet Australia Pty Limited, known as MSD Animal Health shall have the right to charge interest on a daily basis at the Reserve Bank's official cash rate plus 5%.
6.2 Remedies for Non-Payment
If payment in respect of a contract for sale is not made in full within the period set out in clause 6.1 or an Insolvency Event occurs, all amounts owing by Purchaser to Intervet Australia Pty Limited, known as MSD Animal Health become immediately due and payable without demand and Intervet Australia Pty Limited, known as MSD Animal Health is entitled to (without limiting any other rights it may have against the Purchaser) do any or all of the following:
(a) terminate any contract with respect to the Goods by written notice to the Purchaser;
(b) suspend any further delivery of the Goods;
(c) require full payment in advance for any further delivery of the Goods;
(d) withhold any rebate due in respect of an invoice for the period for which the invoice remains unpaid; and
(e) recover possession of all goods to which it has retained title under clause 8.
7. Price
7.1 Price List
All Goods ordered by the Purchaser shall be sold at Intervet Australia Pty Limited, known as MSD Animal Health's list price current at the time the order is placed.
7.2 Price Reduction
No credit will be given to the Purchaser for stock on hand in the event of a price reduction.
7.3 Prices Subject to Change
Prices may be subject to change without notice. However, Intervet Australia Pty Limited, known as MSD Animal Health will endeavour to notify the Purchaser of any price increase 4 weeks prior to its implementation.
8. Risk and Title to Goods
8.1 Risk in Goods
The risk of loss of, or damage to, the Goods will pass to the Purchaser at the time and point of delivery and the Purchaser must insure the Goods until sold by the Purchaser.
8.2 Title to Goods
Property in and ownership of the Goods shall remain with Intervet Australia Pty Limited, known as MSD Animal Health until the total amount due in respect of the Goods under clause 6 and all monies owing to Intervet Australia Pty Limited, known as MSD Animal Health on any account whatsoever have been paid by the Purchaser (the Debts).
8.3 Purchaser On-Selling
The Purchaser shall have the right to sell the Goods in its own name and not as agent for Intervet Australia Pty Limited, known as MSD Animal Health by way of bona fide sale on the Purchaser's usual commercial terms and in the ordinary course of its business.
8.4 Purchaser Bailee of Goods
Until title passes to the Purchaser, the Purchaser is a bailee of the Goods only.
8.5 Sale of Goods as Bailee
Any sale of Goods by the Purchaser under clause 8.3 will be effected by the Purchaser as bailee for Intervet Australia Pty Limited, known as MSD Animal Health and the proceeds of such sale and the rights against its Customers arising from such sales shall be held on trust for Intervet Australia Pty Limited, known as MSD Animal Health. The proceeds of such sales must be held in a separate account, or otherwise clearly identified in the books and records of the Purchaser.
8.6 Remedies for Non-Payment
Without limiting any other remedies Intervet Australia Pty Limited, known as MSD Animal Health may have, if payment of the Debts is not made by the due date Intervet Australia Pty Limited, known as MSD Animal Health may, without notice to the Purchaser:
(a) terminate any contract in relation to the Goods; and
(b) enter the premises where Intervet Australia Pty Limited, known as MSD Animal Health reasonably believes the Goods are situated and re-take possession of the Goods (without being liable for any damage caused) and subsequently dispose of the Goods at its discretion.
8.7 Excess of Proceeds Following Repossession
In the event that the Goods are sold by Intervet Australia Pty Limited, known as MSD Animal Health following repossession under sub-clause 8.6(b), any excess of the proceeds of any sale (exclusive of GST and less expenses of repossession and sale) over the GST exclusive costs of the Goods as supplied to the Purchaser shall be paid to the Purchaser, after all the Debts have been paid.
8.8 Purchaser's Indemnity
The Purchaser shall indemnify Intervet Australia Pty Limited, known as MSD Animal Health against any claim, action, proceeding, damage, loss, cost, expense or liability incurred or suffered by Intervet Australia Pty Limited, known as MSD Animal Health arising out of the possession, use or disposal of the Goods by the Purchaser or repossession or attempted repossession by Intervet Australia Pty Limited, known as MSD Animal Health.
9. Return of Goods
Intervet Australia Pty Limited, known as MSD Animal Health recognises that Purchaser or a Consumer may have rights under the Act relating to such things as goods that are not of acceptable quality, defective goods, or goods that fail to comply with description, are not fit for purpose or do not correspond with sample and that these rights may include:
(a) rights to a replacement or refund for a Major Failure of the goods; or
(b) rights to a repair or replacement if the goods otherwise fail to be of acceptable quality.
Nothing in this clause will override these rights. In all circumstances other than those covered by the Act, Intervet Australia Pty Limited, known as MSD Animal Health will only accept Goods for return where a goods return authority has been issued by Intervet Australia Pty Limited, known as MSD Animal Health. Except where Goods are damaged or defective, Goods with a shelf-life of 6 months or greater on the date of shipment by Intervet Australia Pty Limited, known as MSD Animal Health will not be eligible for return.
If the Purchaser wishes to make a claim for damaged or defective Goods, in order to be eligible for a credit it must notify Intervet Australia Pty Limited, known as MSD Animal Health in writing within two Business Days of receipt of those Goods, specifying the relevant Goods and the basis on which they are claimed to be damaged or defective. If the Purchaser's claim for credit is approved, the Purchaser will be entitled to a credit against the liability of the Purchaser to pay for Goods subsequently supplied by Intervet Australia Pty Limited, known as MSD Animal Health or a set-off against the liability of the Purchaser to Intervet Australia Pty Limited, known as MSD Animal Health for Goods previously supplied.
Claims for credit as a result of product recall or quality control examination must be referred to Intervet Australia Pty Limited, known as MSD Animal Health customer service.
Transportation of goods for return will be the responsibility of the Purchaser and at the Purchaser's expense unless such responsibility and expense is accepted in writing by Intervet Australia Pty Limited, known as MSD Animal Health.
10. Warranties and Product Liability
10.1 Exclusion of implied terms
Nothing in this clause limits the generality of the exclusion in clause 2.2.
10.2 Sale of Goods
In respect of Goods supplied by Intervet Australia Pty Limited, known as MSD Animal Health to a Purchaser:
(a) except for any conditions or warranties issued in writing by Intervet Australia Pty Limited, known as MSD Animal Health, the Purchaser agrees that it has not relied on any inducement, representation or statement made by or on behalf of Intervet Australia Pty Limited, known as MSD Animal Health in purchasing the Goods and that there are no implied conditions or warranties herein and no collateral contracts in connection with the Goods (except such as may be in writing and signed by a duly authorised representative of Intervet Australia Pty Limited, known as MSD Animal Health);
(b) Intervet Australia Pty Limited, known as MSD Animal Health shall not be liable to make good any expenditure, damages and/loss arising out of any user or dealing with any Goods, whether from any defect in the Goods or otherwise. Intervet Australia Pty Limited, known as MSD Animal Health's liability is strictly limited to the cost of replacing the Goods, the cost of obtaining equivalent Goods, or the cost of having the goods repaired, whichever is the lowest amount; and
(c) Intervet Australia Pty Limited, known as MSD Animal Health shall not be liable for any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred by the Purchaser except where products are supplied defective. Any adverse event reports will be handled by Intervet Australia Pty Limited, known as MSD Animal Health and, if any adverse event is reported by a consumer, or a claim concerning an adverse event is made by a consumer, Intervet Australia Pty Limited, known as MSD Animal Health will deal directly with the consumer. Purchaser should not settle any such claims on its own account but should refer all such matters to Intervet Australia Pty Limited, known as MSD Animal Health.
10.3 Manufacturers' Liability
In the event that the Purchaser calls upon Intervet Australia Pty Limited, known as MSD Animal Health to indemnify the Purchaser pursuant to a right accruing to the Purchaser under the Act in respect of any liability of the Purchaser to a Consumer as a result of a breach of a condition or warranty guaranteed by the Act in a contract for the supply of goods by the Purchaser to that Consumer:
(a) In respect of goods that are of a kind ordinarily acquired for personal, domestic or household use or consumption and are not acquired for resupply, sub-clause 10.2 will not apply and the liability of Intervet Australia Pty Limited, known as MSD Animal Health to the Purchaser is limited to indemnifying the Purchaser in accordance with the Act; and
(b) In respect of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption or which are acquired for resupply, the liability of Intervet Australia Pty Limited, known as MSD Animal Health to the Purchaser is, subject to the Act, limited to a liability to pay to the Purchaser an amount equal to the cost of replacing the Goods, or the cost of obtaining equivalent goods, or the cost of having the Goods repaired, whichever is the lowest amount.
10.4 Liability net of GST
Any reference in the calculation of any indemnity, reimbursement or similar amount under these Terms to a cost, expense or other liability incurred by a party, must exclude the amount of any Input Tax Credit entitlement of that party in relation to the relevant cost, expense or other liability. A party will be assumed to have an entitlement to a full Input Tax Credit unless it demonstrates otherwise prior to the date on which the payment must be made.
10.5 Time Limit
To the extent permitted by law and subject to any non-excludable rights that the Purchaser may have under the Act, Intervet Australia Pty Limited, known as MSD Animal Health excludes all liability for loss or damage suffered by the Purchaser unless the Purchaser commences an action within one year of the date of delivery of the Goods.
11. Resupply
11.1 Resupply to Third Parties
If the Purchaser supplies the Goods to a third person:
(a) the Purchaser represents and warrants to Intervet Australia Pty Limited, known as MSD Animal Health that it will not make any representations or claims with respect to the Goods which are false or misleading including in relation to a Consumer's rights under the Act;
(b) except to the extent that clause 10.3 applies, the Purchaser shall indemnify and keep indemnified Intervet Australia Pty Limited, known as MSD Animal Health against any claim, action, proceeding, damage, loss, cost, expense or liability incurred or suffered by it arising out of the supply of the Goods to third persons (whether those Goods have become mixed with other goods, or otherwise comprised in other goods), except to the extent that such liability arises as a direct result of the negligence of Intervet Australia Pty Limited, known as MSD Animal Health; and
(c) the Purchaser shall distribute to such persons all warnings, instructions and like information relating to the Goods which Intervet Australia Pty Limited, known as MSD Animal Health has provided to the Purchaser.
11.2 No resupply outside Australia
The Goods supplied under these terms and conditions are packaged for sale in Australia. The Purchaser must not directly or indirectly export any of the Goods from Australia or sell or distribute any of the Goods to any person that it knows, or has reasonable grounds to believe, will or may export the Goods from Australia.
12. Licences and Approvals
The Purchaser must obtain all necessary licences and approvals and comply with all relevant Commonwealth and State legislation.
13. Barcodes
Intervet Australia Pty Limited, known as MSD Animal Health may in its discretion print GS1 numbers and/or barcodes on the Goods. Intervet Australia Pty Limited, known as MSD Animal Health will endeavour to observe the rules and principles of GS1 Australia or any successor to it but will not be liable to the Purchaser for any loss, damage or expense attributable either directly or indirectly to an absence of, or error in, numbering or barcodes.
