Article 1 – Preamble:
This services, products, packaging or raw materials order (hereafter the “Products”) made by VIRBAC New Zealand Ltd. (Company number 201453) (hereafter “VIRBAC”) or any of its affiliates to a supplier (hereafter the “Supplier”) constitutes a purchase contract and implies strict compliance with these general purchasing conditions (“Terms”) which take precedence over all express or implied general sales conditions. In the event that a specific contract (“Signed Contract”) has been signed with a supplier and where there is a conflict between the terms and conditions in the Signed Contract and the Terms herein, the terms in the Signed Contract shall prevail.
Article 2 – Orders:
Orders made by VIRBAC will specify the type, quantity, quality, price and time limits for delivery and payment of the Products.
An order is deemed accepted where it is not the subject of reservations by the Supplier within two working days following its receipt.
Article 3 – Manufacture:
Products shall comply with legislation and regulations in force and comply with possible specifications mentioned in the order, the estimate, specifications or supplier catalogue.
The Supplier undertakes to notify VIRBAC of any changes in its specifications, Product manufacturing procedures and/or sources of supply, giving minimum notice of six (6) months.
VIRBAC reserves the right to audit the Supplier and/or the Product manufacturer giving minimum notice of eight (8) days.
Article 4 - Packaging:
Product packaging shall comply with the type of Product, legislation in force and possible specifications contained in the order, specifications, estimates or Supplier catalogue. The quality of packaging shall be appropriate to the content.
Labelling shall be on the main body of the packaging. It shall be legible.
Article 5 – Delivery and transport:
► Transport liability and cost
Product transport liability and costs and related insurance are to be in compliance with the Incoterm contained in the order.
► Transport Procedures
The Products shall be transported and stored in compliance with VIRBAC instructions, with New Zealand legislation and under appropriate conditions according to the type of Product and in compliance with safety standards in force and all applicable regulations. Labelling, documents and material safety data sheets shall be up-to-date.
The Supplier is to draw up a delivery note containing all of the necessary information for identifying the Products (order number, type, quantity, the name of the transporters etc).
All deliveries shall be accompanied by a delivery note containing, where applicable, the order number, the tare weight of the packages, Product names, Supplier codes, batch numbers, gross weight, net quantity delivered by batch, the possible quantity outstanding for delivery. In the event of delivery on behalf of VIRBAC, to a different address from that of VIRBAC, the Supplier is to send to VIRBAC a delivery note duly initialled by the recipient.
► Transport Packaging
Packaging used for delivery of the Products shall be in compliance with legislation in force in New Zealand, be appropriate to the methods and conditions of transport and to safety standards in force.
As appropriate, Products are to be delivered on pallets as requested and described in the order.
Product stocking and safeguarding conditions requiring special conditions shall be clearly shown on the packaging. A pallet label shall give details of the pallet content.
Where transport is payable by the Supplier, the Supplier shall ensure that the transporter has the necessary equipment in the event of a Product slippage accident.
► Acceptance of Products
Products are receivable on working days, during site opening hours for delivery or, as appropriate, by appointment.
Non-compliance by the Supplier with its obligations as specified in the order and these Terms may result in a refusal to accept the Products in accordance with Article 10.
Where Products which are damaged in transport or on discharge where the latter is the responsibility of the Supplier, VIRBAC will notify refusal of the Products to the Supplier within the time limits provided for by legislation in force or Article 10, if applicable.
Article 6 – Providing equipment and tools:
This relates to specific equipment and tools (prototypes, moulds, templates, gauges etc) (hereafter known collectively as the “Tools”) made available to the Supplier by VIRBAC or developed by Supplier in the context of executing the order.
The Tools are to remain the exclusive property of VIRBAC.
The custody, safeguarding and maintenance of the Tools are carried out by the Supplier as custodian and bailee of the Tools at its own cost and liability.
The Tools shall be easily identifiable and may not be used other than in the context of executing the order.
The Supplier will not change or alter the Tools without VIRBAC’s prior written consent.
The Tools will be handed back to VIRBAC within eight (8) days upon request by VIRBAC.
Article 7 – Late delivery:
In the event of late delivery compared to the delivery date specified in the order as accepted by the Supplier, VIRBAC may apply late execution penalties of ten percent (10%) of the total order per week of lateness without exceeding a ceiling of fifty percent (50%) of the total order.
In the event of late delivery of more than two (2) weeks, then in addition to any other rights in these Terms, VIRBAC reserves the right to immediately cancel the order outstanding for delivery, by working of the law and without legal formality, or refuse to accept the Products.
Article 8 - Transfer of property and risk:
The transfer of risk will be in compliance with the Incoterm mentioned in the order.
The transfer of title in the Products and their custody occurs on VIRBAC taking possession of the Products at the place specified by VIRBAC in the Incoterms.
Any clause regarding reservation of title by Supplier shall only be applicable after express written consent by VIRBAC. Where the Supplier has registered an interest or security under the Personal Property Security Act 1999, the Supplier shall take all steps necessary to release its registered security interest immediately upon title to the applicable good passing to VIRBAC.
Article 9 – Documentation:
On the basis of the type of Product, all or some of the following documents may be required by VIRBAC on each delivery.
The Supplier undertakes to send to VIRBAC the technical documents, user manuals, maintenance manuals, certificates of origin, warranties and appropriate documents and/or enabling it to adapt Products and/or required by legislation in force in New Zealand as well as all of the documents required in possible specifications, without additional cost.
Article 10 – Warranties:
VIRBAC has the benefit of all such conditions and warranties, whether they are capable of being excluded by the Supplier or are mandatory as are available to purchasers of Commercial Goods under New Zealand Consumer Laws.
In the event that certain Products are defective or non-compliant with the order, VIRBAC will notify the Supplier of the defect or non-compliance in writing as quickly as possible after delivery of the Products for patent defects or after discovering the defect for latent defects, subject to consequences and effects then as yet unknown or unquantifiable.
The Supplier undertakes to immediately take back defective or non-compliant Products and to replace them with compliant Products at its own cost within a reasonable period of time as agreed between the Supplier and VIRBAC. Where the Supplier fails to do so, VIRBAC shall be entitled to source products of an identical or similar nature from any one or more third parties without restriction.
Article 11 – Prices, invoicing and payment:
The prices shown in the order are firm and not for review. These prices include all of the costs borne by the Supplier with a view to complying with its obligations mentioned in the order and the price of transfer of intellectual property rights as defined in Article 14.
One (1) copy of the invoice is to be sent to the invoicing address shown in the order.
Invoices shall contain the following information:
► Payment procedures
Payment is to be made on or before the 20th of the month following the date of the invoice except where the payment term is subject to a separate agreement between the Supplier and VIRBAC. In instances of late payment, VIRBAC shall pay interest which will not exceed the then prevailing indicator lending rate of New Zealand BKBM plus a margin of two (2) percentage points. In the event of non-compliance or defects in the Products, VIRBAC reserves the right to delay payment of corresponding invoices until settlement of the dispute in compliance with clause 10. The Supplier undertakes to supply a credit note and to issue a new invoice for Products replaced.
Article 12 – Termination:
In the event of Supplier liquidation of assets or the legal appointment of an Administrator or the occurrence of an event of force majeure as defined by law and established precedent which negatively impact on the Supplier’s ability to perform and deliver Products as required under the terms of the Purchase Order , VIRBAC reserves the right to immediately cancel, without legal formality, the Product order which has not yet been delivered in any way that it chooses without giving rights to compensation to the Supplier.
Article 13 – Assignment and sub-contract:
The Supplier may not at any event assign or subcontract execution of the order, without prior written consent by VIRBAC.
At all times, the Supplier alone remains liable for proper execution of the order.
Article 14 – Intellectual Property:
Each party remains the owner of the elements of intellectual property, in particular know-how, manufacturing processes, patents and software, brands, logos, designs and prototypes, plans, diagrams and specifications on whatever medium, that each party held prior to the first order by VIRBAC for the Product and/or independently developed by one of the parties.
Designs, prototypes, technical specifications, plans, diagrams and logos supplied by VIRBAC to the Supplier in the context of the Product order remain the exclusive property of VIRBAC. Any information derived therefrom or otherwise communicated in connection with this order must be treated as Confidential information.
The Supplier assigns to VIRBAC all intellectual property rights relating in particular to Tools, prototypes, designs, models, plans, diagrams, specifications and other prototypes, carried out by the Supplier on behalf of VIRBAC (hereafter known as the “Creations”) In particular VIRBAC acquires rights to representation, reproduction and adaptation of the Creations wholly or in part on any existing or future medium, for the legal term of protection of intellectual property rights throughout the world. The Supplier will carry out all necessary formalities to carry out this assignment upon request.
VIRBAC is free to file title to intellectual property on the Creations under its own name or under the name of one of its subsidiaries and is free to exploit the Creations directly or indirectly throughout the world.
The Supplier guarantees to VIRBAC that it holds all of the intellectual property rights relating to the Creations. The Supplier guarantees that the Creations do not infringe any intellectual property rights and that this assignment does not breach third-party rights. The Supplier warrants that nothing stands in the way of free exploitation of the Creations by VIRBAC.
The Supplier indemnifies VIRBAC from any action, claim or opposition by third parties claiming intellectual property rights over the Creations or any other fair competition and/or parasitic competition.
Article 15 – Confidentiality:
“Confidential information” means information exchanged by the Supplier and VIRBAC in the context of an order and in particular all documents, data, information and media, whether technical, commercial or financial relating to the execution of an order whatever their nature or method of transfer.
Except strictly for the purposes of executing an order, such Confidential Information must not be published or disclosed to any third party or made use of by the Supplier or VIRBAC. Each party undertakes both for itself and for its staff, whether they are employees or not, to take all appropriate and reasonable precautions to avoid disclosure of the Confidential Information.
The provisions of this clause do not apply to Confidential Information:
► that is in the public domain at the date of its sending or after that date without this being due to the recipients;
► that is sent to one of the parties by a third party who held it legitimately without an obligation to non-disclosure.
Article 16 – Liability:
The Supplier alone is liable for all personal injuries, whether material or non-material, direct or indirect that it causes to third parties or to VIRBAC in the context of the order.
The Supplier will bear the financial consequences of damages of any sort attributable to Supplier or to that of persons for whom Supplier is responsible or for property which is in its custody.
To the full extent permitted by law, the Supplier will indemnify VIRBAC and keep VIRBAC indemnified from and against any liability, loss or damage VIRBAC may sustain as a result of any breach, act or omission by the Supplier arising directly or indirectly from or in connection with these Terms.
Article 17 – Insurance:
The Supplier undertakes to take out with a reputable company, an insurance policy covering financial consequences of its liability under these Terms.
Article 18 – Safety and environment:
When working on or delivering to the VIRBAC site, the Supplier will take away all waste materials, packaging, delivery support and materials appearing in the context of the delivery or the work.
The Supplier undertakes to supply to VIRBAC prior to any delivery all advice and information necessary relating to the Products and to inform VIRBAC of the standards, risks, classification of risks and regulations concerning the Products. The Supplier undertakes to comply with and have its staff, whether employees or not and possible subcontractors, comply with the VIRBAC safety instructions in the event of working at or delivering to the VIRBAC site.
Article 19 – Unauthorised work:
The Supplier declares that it will only employ workers who have a legal right to work in New Zealand for the Supplier and declares that it is in compliance with legislation in this matter and will supply proof on request.
Article 20 – Absence of waiver:
No failure to exercise a right or remedy by VIRBAC may be interpreted as a further waiver of its rights, remedies or any other term or condition under these Terms.
Article 21 –Severability:
In the event that any provision of the Terms is held to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation by a court of competent jurisdiction or by any future legislative or administrative action, it is to be severed so that the validity and enforceability of the remaining provisions are not affected.
Article 22 – Applicable law and attribution of jurisdiction:
These conditions are governed by the laws of New Zealand. The parties expressly submit to the non-exclusive jurisdiction of courts in New Zealand.