INTERVET AUSTRALIA PTY LIMITED TRADING AS MSD ANIMAL HEALTH
This document sets out the terms and conditions of trade (“Terms“) between Intervet Australia Pty Limited trading as MSD Animal Health (“MSD“), and any person or corporation (“Purchaser”) acquiring Goods and/or Services from MSD. The Purchaser, by placing an order with MSD accepts and is deemed to have accepted these Terms.
1. Definitions and Interpretation
The following definitions apply unless the context requires otherwise:
Act means the Competition and Consumer Act 2010 (Cth).
Australian Consumer Law means the laws and regulations set out in Schedule 2 to the Act. Business Day means a day which is not a Saturday, Sunday or a public holiday in New South Wales. 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 MSD.
Goods means all the products, applications, components, items or goods which MSD supplies to the Purchaser or to which any Services undertaken for the Purchaser relate.
GST 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.
Insolvency Event means an event whereby:
- except for the purposes of a solvent reconstruction or amalgamation previously approved by MSD in writing:
- 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
- the Purchaser enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them;
- 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;
- 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 debts 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
- a receiver, 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.
Invoice means a document notifying an obligation to make a payment which is issued by MSD to the Purchaser upon the dispatch of Goods and/or Services.
Main Delivery Point has the meaning given to that term in Clause 4.4.
Purchaser means a person placing an order with MSD for the purchase of Goods and/or Services.
Services means the work or Services which MSD contracts to supply to the Purchaser.
Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the context requires otherwise:
- the singular includes the plural and conversely;
- where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- a reference to a person includes a body corporate, an unincorporated body or other entity; and
- a reference to anything after the words “includes or including” or similar expressions does not limit what else might be included.
- Application of Terms
These Terms apply to all orders for Goods and/or Services placed by the Purchaser, and all Goods and/or Services supplied to the Purchaser or 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 this document, these Terms constitute the entire agreement between MSD and the Purchaser with respect to orders for and sales of the Goods and/or Services, despite any provisions to the contrary in any of the Purchaser’s order forms or other documents. Any supply made by MSD to the Purchaser does not constitute an implied acceptance by MSD of any Terms offered or proposed by the Purchaser. These Terms supersede all prior written or oral arrangements.
MSD reserves the right to make reasonable variations or additions to these Terms at any time by providing 30 days’ notice in writing to the Purchaser.
2.5 No Waiver
No failure to exercise or 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 and/or Services pursuant to these Terms, are to be governed and construed in accordance with the laws of New South Wales. MSD and the Purchaser accept the non-exclusive jurisdiction of the courts exercising jurisdiction there in relation to any dispute between them.
- Right to Accept or Decline
MSD is not obliged to accept any order from the Purchaser and reserves the right to accept or decline in whole or in part any order placed by the Purchaser.
3.2 Handling/Distribution Fee
MSD will charge the Purchaser freight and handling charges which can be found on MSD’s price list for the Goods being purchased, as revised from time to time.
3.3 Standard Shipper Quantities
The Purchaser must order Goods in standard shipper quantities as set out in MSD’s price list as revised 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, MSD will charge the Purchaser in accordance with MSD’s standard pricing which may be revised from time to time.
3.5 Back Orders
If MSD is unable to fill any order in whole or in part at the time that it is placed by the Purchaser, MSD will place the Goods on back order and confirm to the Purchaser that it has done so. MSD will not be liable for any loss or damage, including consequential loss or loss of profits, suffered by the Purchaser arising from, or related to, any delay in filling or inability to fill any order in whole or in part.
Delivery may be made by MSD or its authorised contractors or agents.
4.2 Deemed Delivery
Delivery of Goods to the Purchaser is deemed to be made when the Goods are delivered to the Purchaser’s nominated address (Main Delivery Point) by MSD’s authorised carrier.
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.
4.5 Non-Receipt of Goods
The Purchaser must notify MSD in writing of any non-receipt of Goods or non-receipt of partial Goods within 7 days of receipt of an invoice issued by MSD or date of confirmed dispatch from MSD to the Purchaser in relation to those Goods. The notice must specify the invoice number, quantity and description of the Goods which were not delivered.
4.6 Credit for Non-Receipt of Goods
If the Purchaser does not notify MSD of the non-receipt of any Goods within 7 days as provided for in Clause 4.5 above, MSD 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 MSD, the Purchaser will be entitled to credit.
4.7 Dates for Delivery
The date for delivery specified by MSD (if any) is the estimated date for delivery only. MSD will not be liable for any loss or damage, including consequential loss or loss of profits, suffered by the Purchaser arising from, or related to, any late delivery or failure to make delivery of any order whether in whole or in part. If MSD 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
The Purchaser must store the Goods in accordance with the requirements stated on each pack including refrigerated and cool, and dry storage facilities where required.
- Time for payment
Payment for the Goods and/or Services shall be made by the Purchaser and received by MSD by no later than the last Business Day of the month following the date of an invoice issued by MSD in respect of those Goods and/or Services. If payment in full is not received on or before the due date then, in addition to its other rights, MSD has the right to charge interest on a daily basis at the Reserve Bank’s official cash rate plus 5%. Payments may be made via electronic funds transfer (EFT), cheque (domestic) or credit card.
6.2 Payments by Credit Card
Payments made by credit card will incur the surcharge listed as below and will be charged at the time of payment. MSD only accepts VISA, Master Card, AMEX or DINERS credit cards:
- VISA / Master Card/ AMEX / DINERS – 1.5% of the value of payment
- If multiple credit cards are used to settle an outstanding payment, then an additional fee of AUD $25- will apply per card from the second card onwards.
6.3 Claims or Disputes on Invoices
If there are any claims or disputes about an invoice raised by MSD, apart from those under Clause 4.5 and 9.2, the claim must be made within 120 days from the date of invoice. To the extent permitted by law, any claim made outside of this time frame will not be accepted by MSD.
6.4 Remedies for Non-Payment
If payment for the Goods and/or Services is not made in full within the period set out in Clause 6.1 or an Insolvency Event occurs, all amounts owing by the Purchaser to MSD become immediately due and payable without demand and MSD is entitled to (without limiting any other rights it may have against the Purchaser) do any or all of the following:
- terminate any contract with respect to the Goods and/or Services by written notice to the Purchaser;
- suspend any further delivery of the Goods and/or Services;
- require full payment in advance for any further delivery of the Goods and/or Services; or
- withhold all rebates.
- Price List
All Goods and/or Services ordered by the Purchaser shall be sold at MSD’s list price, or otherwise agreed price as evidenced in writing, 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, MSD must notify the Purchaser of any price increase 30 days prior to its implementation. Any changes to price will not apply retrospectively and the Purchaser has the right to cancel an order for Goods and/or Services if they do not accept the price change, by providing written notice to MSD. Under this Clause 7.3, the Purchaser will not incur a cancellation fee.
7.4 Price net of GST
The price payable for the Goods and/or Services is increased by the amount of any GST levied or imposed on or in respect of such supply, provided that it is a precondition of any payment for any taxable supply that the recipient has issued a GST tax invoice or such other document as may be required under the GST Law to enable the payer to obtain an input tax credit.
8. Risk and Title to Goods
- Risk in and Title to the Goods
The risk in, and title to, the Goods passes to the Purchaser on delivery in accordance with Clause 4.2 above. Where the Purchaser returns Goods to MSD, the Goods are at the risk of the Purchaser until the Goods have been received and signed for by a representative of MSD at its premises.
Notwithstanding that credit may be allowed or extended to the Purchaser for payment of the Goods or that risk may pass to the Purchaser, the Purchaser holds the Goods as bailee and the Purchaser accepts this appointment as bailee.
8.2 Purchaser On-Selling
The Purchaser shall have the right to sell the Goods in its own name and not as agent for MSD by way of bona fide sale on the Purchaser’s usual commercial terms and in the ordinary course of its business.
9. Return of Goods
- Goods return authority
In all circumstances other than those covered by the Act, MSD will only accept Goods for return if they come into any of the following categories:
- products that MSD is satisfied were damaged in transit between the MSD warehouse and the Main Delivery Point nominated by the Purchaser;
- incorrect supply; such as wrong product, not sent in accordance with the Purchaser’s order or Goods which exceed the quantity ordered;
- products that MSD is satisfied are faulty in materials or workmanship.
This does not affect the Purchaser’s rights to return Goods under Australian Consumer Law or Clause
Without limiting the other provisions of this Clause 9, the following products will not be accepted for return:
- products sold on a non-return basis;
- products having a broken seal or label removed;
- products that have exceeded their expiry date;
- Goods, including Bravecto 1 month but excluding the remainder of the Bravecto range, originally dispatched by MSD with a shelf-life of 6 months or greater; or
- Bravecto, excluding Bravecto 1 Month, originally dispatched by MSD AH with a shelf-life of 12 months or greater.
9.2 Claim for damaged or defective Goods
- MSD will only accept Goods for return where a “goods return authority” has been issued by MSD.
- If the Purchaser wishes to make a claim for Goods that fall within the categories set out in Clause 9.1 above, it must notify MSD in writing within thirty (30) Business Days of delivery of those Goods as per Clause 4.2, specifying the relevant Goods and the basis on which the Purchaser claims a credit together with any relevant documentary evidence of damaged or defective Goods.
- If the Purchaser wishes to make a claim for Goods which are damaged or defective by reason of a temperature excursion upon arrival at the Main Delivery Point, in order to be eligible for a credit the Purchaser must notify MSD in writing within two hours of the delivery of those Goods and must provide such evidence of the temperature excursion as MSD may reasonably require. If the Purchaser’s claim for credit is approved by MSD, the Purchaser may at its election return the Goods to MSD or on approval from MSD destroy the Goods and provide MSD with such evidence of the destruction as MSD may reasonably require.
- If the Purchaser’s claim for credit is approved and a “goods return authority” is issued, the Purchaser will be entitled to a credit against the liability of the Purchaser to pay for the Goods subsequently supplied by MSD or a set-off against the liability of the Purchaser to MSD for Goods previously supplied.
9.3 Product Recall
Claims for credit as a result of product recall or quality control examination must be referred to MSD’s customer service (email@example.com)
9.4 Transportation of Goods for Return
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 MSD.
10. Warranties and Product Liability
- Warranties against defects
In respect of Goods supplied by MSD to a Purchaser, except for any warranties issued in writing by MSD, the Purchaser agrees that it has not relied on any inducement, representation or statement made by or on behalf of MSD 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 MSD).
10.2 Limitation of Liability
- To the extent permitted by Australian Consumer Law, MSD’s liability under or in connection with these Terms, whether arising in contract, tort (including negligence) or otherwise is limited to:
- in the case of liability in connection with a supply of Goods, MSD doing any one or more of the following (at its election):
- replacing the Goods or supplying equivalent goods or repairing the Goods; or
- paying the cost of replacing the Goods or of acquiring equivalent goods or of having the Goods repaired; or
- in the case of liability in connection with a supply of Services, MSD doing any one or more of the following (at its election):
- supplying the Services again; or
- paying the cost of having the Services supplied again.
- MSD has no liability under or in connection with these Terms, whether arising in contract, tort (including negligence) or otherwise, for loss of profit, loss of revenue, loss of business, loss of opportunity, loss of anticipated savings, damage to goodwill or reputation or indirect or consequential loss of any kind whatsoever, except that if the Australian Consumer Law provides that the Purchaser is a consumer in relation to any Goods or services supplied under these Terms, then this clause does not apply to any liability of MSD for a failure to comply with a consumer guarantee for such Goods or services.
- The Purchaser will indemnify MSD in relation to any claims and any losses, damages, costs and expenses, made against or suffered or incurred by the Purchaser arising out of an act or omission of the Purchaser under or in connection with these Terms or any false, misleading or deceptive representation made by the Purchaser in respect of the Goods or services to any person or the misuse of the Goods by the Purchaser or any person, and whether alone or in combination with any other products or substances, but excluding to the extent caused or contributed by MSD’s breach or negligent, reckless or wilful act or omission.
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, MSD 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 and/or Services
- Resupply to Third Parties
If the Purchaser supplies the Goods to a third person:
- the Purchaser represents and warrants to MSD 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;
- except to the extent that Clause 10.3 applies, the Purchaser shall indemnify and keep indemnified MSD 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 MSD; and
- the Purchaser shall distribute to such persons all warnings, instructions and like information relating to the Goods which MSD has provided to the Purchaser.
11.2 No resupply outside Australia
Unless otherwise indicated by MSD, the Goods supplied under these Terms 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.
MSD may in its discretion print GS1 numbers and/or barcodes on the Goods. MSD 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.
In the event that Purchaser becomes aware of an adverse reaction, lack of efficacy or product quality complaint following the use of any MSD Goods please contact MSD on 1800 033 461.
Any adverse reaction reports will be handled by MSD and, if any adverse event is reported by a consumer, or a claim concerning an adverse event is made by a consumer, MSD will deal directly with the consumer. The Purchaser should not settle any such claims on its own account but should refer all such matters to MSD.
15. Proprietary Rights, Drawings and Confidentiality
Any drawings, illustrations or manuals which are produced by MSD at its discretion as an aid to providing services to the Purchaser shall be and remain the exclusive property of MSD.
The Purchaser acknowledges that MSD has intellectual property rights (including but without limitation, patents, registered designs and trademarks) in respect of the Goods and undertakes to not infringe those rights.
16. Ethical Business Clause
- In performing its obligations hereunder, the Parties acknowledge that the corporate policy of MSD and its Affiliates requires that MSD’s business be conducted within the letter and spirit of the law. The Parties agree to conduct the business contemplated herein in a manner which is consistent with all applicable laws, including the U.S. Foreign Corrupt Practices Act, and good business ethics as described in this Ethical Business Clause and as communicated to Purchaser by MSD or one of its Affiliates from time to time. Specifically, Purchaser warrants and agrees that in connection with these Terms and the MSD business relating thereto, it, its Affiliates, their respective representatives, and anyone acting on their behalf shall not offer, make or promise any payment, either directly or indirectly, of money or other assets (hereinafter collectively referred to as “Payment”), to any government, political party or international organisation official, candidate or persons acting on behalf of any of the foregoing or directly associated with them including their staff, business partners, close associates and family (hereinafter collectively referred to as “Officials”) where such Payment would constitute a violation of any applicable law. In addition, regardless of legality, the Parties shall make no Payment, either directly or indirectly, to Officials if such Payment is for the purpose of improperly influencing decisions or actions with respect to the subject matter of these Terms or the business activities of MSD or its Affiliates.
- Purchaser represents and warrants that, to the best of its knowledge, Purchaser and its Affiliates have provided complete and accurate information and documentation to MSD, its Affiliates, and their representatives in the course of any due diligence that was conducted, including disclosure of any officers, employees, owners, or persons directly or indirectly retained by Purchaser who are in a capacity that may reasonably provide an opportunity to influence decisions or actions
with respect to the subject matter of these Terms or the business activities of MSD or its Affiliates. Purchaser covenants that any future information and documentation submitted as part of further due diligence or a certification shall be complete and accurate to the best of its knowledge.
- Purchaser represents, warrants and covenants that all books, records, invoices, and other documents relating to payments and expenses under these Terms or any Order are and shall be complete and accurate and reflect in reasonable detail the character and amount of transactions and expenditures.
- Purchaser further represents, warrants and agrees that no “off the books” or other similar funds will be maintained or used in connection with these Terms or any Order.
- Any violation of, or any breach of a representation or warranty set forth in, this Ethical Business Clause shall be a material breach of these Terms, and in such event MSD may terminate these Terms immediately in writing without payment of penalty or damages or further performance of any kind.
17. Business Partner Code of Conduct
MSD endeavours to hold itself and its Purchasers to the highest ethical and compliance standards, including basic human rights, encouraging fair and equal treatment for all persons, the provision of safe and healthy working conditions, respect for the environment, the adoption of appropriate management systems and the conduct of business in an ethical manner. Without limiting any of Purchaser’s other obligations hereunder, and without conflicting with or limiting any of the warranties, obligations or other provisions expressly set forth elsewhere in these Terms, including without limitation its obligations hereof, Purchaser agrees that it will abide by the letter and spirit of MSD’s Business Partner Code of Conduct (the “Code”), as in effect from time to time, a copy of which is available at https://www.msd.com/company-overview/culture-and-values/code-of-conduct/business- partner-code-of-conduct/.