TERMS OF TRADE AND CONDITIONS FOR COMMERCIAL SALES CUSTOMERS

1. INTERPRETATION

“Company” means Schering-Plough Animal Health Limited.
“Customer” means the entity buying the Goods from the Company.
“Goods” means any goods and services the Customer purchases from the Company.
“Terms” means these terms of trade and conditions of sale.

2. All Goods are sold and delivered subject to these Terms.

3. PRICES

(a) Prices on the current price list supersede all those previously published.

(b) The Company may change any price without notice.
(c) If the price of the Goods is increased by the Company after the Customer orders the Goods but before the Customer receives those Goods the price charged will be the price at the time of ordering. If there is a delay in delivery of the goods, due to circumstances beyond the Company’s control, and the price is increased by the Company before that delay was encountered, the new amended prices will apply.
(d) All prices are exclusive of GST.
(e) All amounts are payable in New Zealand dollars, unless otherwise stated. 

4. PAYMENT TERMS

(a) Subject to clause 4(b), the Customer must pay for Goods by the 20th of the month following date of delivery, unless the Company grants the Customer special terms. Such special terms shall not affect the other provisions contained in these Terms.
(b) Payments will become due and owing immediately on the appointment of a liquidator, receiver, statutory manager or similar officer or the commencement of any act or proceeding in which the Customer’s solvency is questioned.
(c) Where accounts remain unpaid after the due date, the further supply of Goods will be at the sole discretion of the Company until all monies owed to the Company are paid in full.
(d) The Customer must, if requested, pay all costs incurred in the recovery of any overdue amounts (including collection and solicitor’s fees).

5. INTEREST

The Company may charge the Customer, and the Customer must pay, interest on any monies outstanding on a daily basis at a rate equal to the Company’s overdraft rate plus 2%. Interest is payable from the date payment was due until the date the Company receives payment. The Company’s right to charge interest is without prejudice to the Company’s other rights or remedies.

6. FREIGHT

(a) The Company will pay the freight on orders for Goods where the value of the Goods exceeds $600.
(b) Orders for Goods of a value of less than $600 will incur a freight and handling fee of $35.
(c) Orders requested with urgent or special delivery instructions may, at the sole discretion of the Company, incur additional freight and handling costs.

7. CLAIMS

The Company is not liable for shortage of delivery, damage, delay, loss or non-delivery of Goods unless:

(a) in the event of a claim for shortages or damage in transit of Goods:
- the carrier’s consignment note is suitably endorsed and returned to the Company’s despatching warehouse with notification of the claim within seven days of the Customer’s receipt of the Goods; and
- any damaged goods are retained by the Customer for inspection by the Company or its appointed agents; or

(b) in the event of delay, loss or non-delivery of Goods, the Customer gives written notice to the Company of the delay, loss or non-delivery within seven days of receipt of the invoice for the Goods.

8. DELAYS OR NON-DELIVERY

The Company is not responsible for non-delivery or delay in delivery of any Goods caused directly or indirectly by force majeure, including but not limited to war, threat of war or warlike conditions, terrorism, hostilities, civil commotion, riots, fire, flood, strikes, lockouts, accidental breakdown or mechanical failure of plant, machinery or equipment, delays in transportation, the Customer’s instructions or lack thereof, default on the part of the Company’s manufacturer or supplier, acts of government or any other cause whatsoever beyond the Company’s reasonable control, notwithstanding that any such cause may be operative at the time of entering the contract for the Goods.

The Company may, in its absolute discretion, deliver, at any time, any Goods not delivered due to the operation of force majeure and the Customer must accept, and pay for, those Goods.

9. WARRANTY AND LIABILITY

The Company warrants that all Goods supplied to the Customer will be of merchantable quality and fit for any lawful purpose for which goods of their type are commonly put. Subject to any law to the contrary the liability of the Company for any loss (including but not limited to loss of profits and consequential loss) or damage to property or injury to persons caused by any act or omission (including negligent acts or omissions) of the Company or its agents shall be limited at the option of the Company to replacing or repairing the Goods or supplying equivalent Goods or paying the cost of repairing the Goods, whichever is the lower.

10. PROPERTY AND RISK

Risk in any Goods supplied shall pass to the Customer when such Goods are delivered to the Customer. Ownership in the Goods does not pass to the Customer until the Customer pays in full all monies owed to the Company for the purchase of all Goods supplied by it.

If any of the Goods are sold or otherwise disposed of by the Customer before ownership passes to the Customer, then any proceeds of such sale or disposition received by the Customer, shall be held in a separate bank account, on trust for the Company until all monies owed by the Customer to the Company have been paid in full.

Before the Customer acquires property in any Goods, the Company may recover the Goods and may enter the Customer’s premises for this purpose.

11. RETURNS

The Company will not:

(a) accept any Goods for return, credit or exchange unless they have been incorrectly sent, are the subject of recall, are deemed by the Company to be faulty or are damaged in transit; or
(b) give credits or replacements for expired Goods.

The Company reserves the right to reject any claims not notified by the Customer to the Company within seven (7) days of the date of receipt of the Goods, and any claims against invoices not notified within thirty (30) days of receipt of the invoice.

12. CUSTOMER’S APPOINTMENT AS A MERCHANT/RESELLER

The Company may, at any time, cancel the appointment of the Customer as merchant/reseller of the Goods if:

(a) the Customer is not suitably qualified to handle the goods;
(b) the Customer does not maintain adequate storage facilities for the Goods and comply with the Hazardous Substances and New Organisms Act 1996, Dangerous Goods Act 1974, Toxic Substances Act 1979, Animals Remedies Act 1967 or any other relevant law, Act or Regulation;
(c) the Customer does not have the technical expertise to recommend and competently advise on use of the Goods;
(d) the Customer allows any conduct, action or omission which is detrimental to the Company or its Goods or is contrary to the public interest; or
(e) the Customer does not operate a “first in, first out” system of stock rotation for the Goods.

13. GENERAL

(a) These terms constitute a complete and exclusive statement of the agreements and understandings between the Company and its customers with respect to the Goods, notwithstanding any statements which may be expressed in any of the customer’s order forms or other documents. All prior arrangements, written or oral are superseded by these Terms. Where a customer seeks to rely upon any statement, representation or warranty made on behalf of the Company, that statement, representation or warranty must be set out prominently on the face of the customer’s order.
(b) If any provision of these Terms is held to be void or unlawful, these Terms are to be read and enforced as if the void or unlawful provisions have been deleted.
(c) These Terms supersede all those previously published by the Company and may be varied by the Company from time to time.

14. GOVERNING LAW

These terms shall be construed in accordance with the laws of New Zealand. The New Zealand Courts will have jurisdiction in respect of these Terms.