APPLICATION AND AGREEMENT
By placing an order with, or otherwise purchasing goods from Virbac New Zealand Limited, You agree to be bound by the terms and conditions of this Agreement between You and Virbac for the supply of Goods from time to time.
Agreement means these terms of trade.
Goods means goods supplied or to be supplied by Virbac to You from time to time.
Minimum Order Value means the minimum order value of Goods specified in Virbac’s price list at the time of Order. The Minimum Order Value is exclusive of GST, freight and handling charges.
Order means an order by You to Virbac for Goods.
Outer Quantities means the units of the Goods specified in the price list at the time of Order.
Non-Standard Inventory means:
Virbac will disclose to you at the time of Order if a Good is a Non-Standard Inventory good.
Price means the price for the Goods as specified in Virbac’s price list from time to time.
RVM means restricted veterinary medicine.
RVM Seller means an entity or person authorised under the Agricultural Compounds and Veterinary Medicines Act 1997 to sell RVMs.
Virbac means Virbac New Zealand Limited.
Website means Virbac’s website located at nz.virbac.com.
Wholesale Customer means a customer designated as a wholesale customer of the Goods by Virbac. Virbac shall notify You if You are designated as a Wholesale Customer.
Working Day means any day (other than a Saturday or Sunday) on which registered trading banks are open for business in Hamilton, New Zealand.
You and your means you as the customer.
ACCOUNT WITH VIRBAC
You may apply for an account with Virbac, the acceptance of which is in Virbac’s sole discretion. You acknowledge that Virbac reserves the right to, at any time and in its sole discretion, suspend or cancel the account in accordance with this Agreement, and the outstanding account balance, if any, will become immediately payable.
PRICE AND PAYMENT
Goods will be charged at the Price(s) current as at date of Order. You agree to pay the Price in NZ dollars plus GST, any other applicable taxes, duties, levies (if any), freight, handling charges and other costs to Virbac by:
You have seven Working Days from the date of the invoice to raise any dispute You have with Virbac in respect of that invoice. Failure to raise a dispute within that timeframe deems your acceptance of the invoiced amount.
Payment of the Price and any other monies owing to Virbac shall be made in clear funds, free of any counterclaim, set-off, deduction or other claim whatsoever. Virbac may allocate any payment received to your account and/or payment of any Goods as it sees fit and You waive any right to receive notification of that allocation.
FAILURE TO COMPLY
If You fail to pay any monies by the due date, or are otherwise in breach of this Agreement, Virbac may, in its sole discretion, without prejudice to and in addition to any other rights and remedies:
ORDERS AND SUPPLY
You may place an Order via telephone, facsimile or email. You acknowledge that the acceptance of an Order (in whole or in part) and the supply by Virbac is subject at all times to Virbac’s sole discretion. Virbac will use its reasonable endeavours to source all Goods ordered but does not guarantee supply. Virbac will notify You via telephone, facsimile or email in the event it does not accept all or part of an Order received from You.
Orders shall be for amounts no less than the Minimum Order Value and only in respect of Outer Quantities, subject to any agreement otherwise between the parties, or in respect of specific offer by Virbac to You of short dated Goods at reduced prices from time to time.
You may cancel an Order in writing to Virbac within 24 hours of the Order being placed. Where cancellation is made after 24 hours, Virbac may in its sole discretion accept cancellation of an Order and may charge You an administration fee of up to $100. Where You place an Order in respect of Goods to be filled at a future date, You may cancel the Order in writing to Virbac within 24 hours of the due date for delivery of such Goods.
Subject to an agreement otherwise between the parties, Virbac will deliver or arrange for the delivery of the Goods to the address You provide to Virbac in writing, using a carrier of Virbac’s choice. The Goods will be deemed to have been delivered to You:
While Virbac shall use all reasonable efforts to deliver within a reasonable time, any delivery time shall be an estimate only.
You shall ensure safe and practical site access for deliveries and shall inspect the Goods on delivery. You have three Working Days from the date of delivery to raise any issue with Virbac in respect of the Goods delivered. Failure to do so within this timeframe will deem the Goods as accepted by You and You may not reject the Goods after this time.
You acknowledge that Goods that are biological in nature or are otherwise required to be refrigerated may be dispatched by Virbac as a separate delivery to maintain the correct temperature of those Goods.
RISK AND OWNERSHIP
On delivery of any Goods under this Agreement, You will take responsibility for the Goods and will carry the full risk of liability with no recourse to Virbac. You are responsible for adequately insuring the Goods as from the time of delivery and You agree and acknowledge that until you have fully paid for the Goods and any other amounts due by You to Virbac under this Agreement:
You grant to Virbac a security interest over all Goods supplied to You by Virbac and all the proceeds of sale in respect of those Goods. You waive any right to:
You agree and acknowledge that:
Subject to the above, You may return Goods in their original packaging within 14 days of delivery for credit. Virbac may in its sole discretion charge a handling fee of 10% of the invoiced Price in respect of those Goods. All additional costs and expenses incurred by Virbac associated with returning the Goods will be met by You.
Virbac in its sole discretion may replace short dated stock on receipt by You of no less than three months’ notice prior to expiration of the Goods.
If the Goods are faulty, Virbac will meet its obligations to the extent required by law and under this Agreement, but Virbac may at its option:
Where the Consumer Guarantees Act 1993 (CGA) applies, if the Goods do not meet a consumer guarantee, Virbac will meet its obligations under the CGA to provide a remedy provided You can show proof of purchase. The above remedies are in addition to any warranty offered by a manufacturer of the Goods (where Virbac is not the manufacturer), and You may have rights against the manufacturer directly.
Where You acquire the Goods, or hold yourself out to Virbac as acquiring the Goods, for the purposes of a “business” (as defined in the CGA) then to the extent permissible under law, the parties agree that the CGA does not apply to this Agreement. You indemnify Virbac from any liability or costs arising from You on-selling the Goods for a business purpose where You fail to exclude the application of the CGA (if applicable) to such transaction. If the provisions of the CGA apply to the supply of Goods to You by Virbac, the clause limiting Virbac’s liability under this Agreement shall not apply.
To the extent permissible under law, the parties agree that the Fair Trading Act 1986 sections 9, 12A, 13 and 14(1) do not apply to this Agreement and that the provisions of the Sale of Goods Act 1908 do not apply to this Agreement.
RECALL OF GOODS
In the event Virbac recalls or is required by the Government or any other authority to recall any or all of the Goods, Virbac shall notify You in writing as soon as reasonably practicable. Virbac may in such circumstances:
You agree to co-operate with Virbac as is reasonably required in respect of any Goods subject to a recall.
Subject to specific warranties provided by Virbac in respect of its Goods from time to time, to the extent permitted by law, no other guarantees, warranties or representations (either express or implied by law) are made by Virbac with respect to the Goods.
In relation to all Goods supplied by Virbac, You warrant that:
You agree to indemnify Virbac against all liabilities, costs (including full costs between solicitor and client), losses, claims, expenses and demands incurred by Virbac or any third party arising out of or incidental to the supply of Goods, or your non-compliance with this Agreement, and from any third party claims arising out of or incidental to the supply of and/or use of the Goods, and/or your incorrect storage, handling and use of the Goods, except where such liabilities, costs, claims and demands are the direct result of the gross negligence of Virbac.
LIMITATION OF LIABILITY
Except as otherwise provided in this Agreement, Virbac will be under no liability whatsoever to You for any indirect loss, consequential loss, fines, loss of profit, loss of bargain, loss of business opportunity or exemplary damages suffered by You or any other person, arising out of or flowing from this Agreement, whether contemplated by this Agreement or not, and whether actionable in contract, tort (including negligence), equity or otherwise. To avoid doubt and in addition to the above, Virbac shall not be liable to You or any third party to the extent that any loss or damage was caused or contributed to by your negligence, or that of your employees, representatives, agents or third parties.
In the event that, despite the above paragraph, Virbac is found liable for any loss or damages, including the loss or damages set out above, such liability will be limited to the Price paid or to be paid by You for the Goods under this Agreement to which the liability relates, and is inclusive of all claims made against Virbac under this Agreement by the You.
You agree and acknowledge that Virbac is the owner or licensee of all intellectual property rights in the Goods. You shall not, except as expressly provided for under this Agreement or on the receipt of Virbac’s prior written permission:
If You are a Wholesale Customer, Virbac grants You a non-exclusive, non-transferrable licence to use the intellectual property in the Goods for the sole purpose of marketing, selling and distributing the Goods for sale in New Zealand.
Unless and to the extent expressly provided for in this Agreement or in a separate agreement between the parties, You shall not directly or indirectly re-sell the Goods to any third party by any means, including but not limited to selling the Goods via the Internet or other computer network. To avoid doubt, You may re-sell the Goods to:
All intellectual property and other information belonging to a party which by designation or by its nature is intended to be treated as confidential will be confidential information for the purposes of this Agreement. Except as otherwise specified in this Agreement or as otherwise required under law, neither party will without the prior written consent of the other disclose any confidential information to any third party. To avoid doubt, confidential information includes but is not limited to Virbac’s Prices, profit margins, the identity of Virbac’s suppliers and the identity of the Goods supplied. The confidentiality obligations under this provision survive the termination of this Agreement.
You agree that Virbac may collect, use and disclose your personal information for purposes related to your dealings with Virbac including but not limited to the supply of the Goods, direct marketing, provision of information about the Goods, the recall of Goods, debt collection and credit reporting or assessment. If you are an individual, You have rights under the Privacy Act 1993 (or its successor legislation) to access any personal information that Virbac holds and to request the correction of such personal information.
The parties shall endeavour to resolve any disputes in relation to this Agreement and/or the supply of Goods between them cooperatively in the first instance, prior to seeking a resolution through the Courts. However, nothing in this clause prevents either party from seeking interlocutory or injunctive relief.
The parties may at any time mutually agree to terminate this Agreement.
If You fail to pay any monies owing, become insolvent, bankrupt, call a meeting of creditors, go into liquidation, voluntary administration or otherwise are in breach of this Agreement, Virbac may (without prejudice to any other remedies available to it) within 10 days of notifying You to remedy the breach, and You failing to remedy the breach, suspend deliveries, refuse to fill any Orders, suspend or cancel your account, or terminate this Agreement immediately and all outstanding monies owing under this Agreement to Virbac (if any), will immediately fall due and payable.
You may terminate this Agreement at any time by providing notice to Virbac in writing. Any Orders placed by You prior to Virbac’s receipt of notice of termination shall be filled unless the parties agree otherwise.
Termination of this Agreement will deem any accounts You hold with Virbac terminated.
Any Goods held by You in respect of which Virbac holds title as at the date of termination shall be immediately returned to Virbac, subject to any prior agreement with Virbac as to the sale of those Goods by You post-termination for a period to be agreed between the parties.
No failure or omission by a party to carry out or observe any of the terms of this Agreement will give rise to any claim against that party or be deemed a breach of this Agreement, if such failure or omission arises from any cause reasonably beyond the control of that party. The party unable to fulfil its obligations will as soon as reasonably practicable notify the other in writing of the reasons for its failure to fulfil its obligations and the effect of such failure. Should the delay or failure in the performance exceed 3 months, either party may terminate the Agreement by providing a written notice to the other party.
Entire Agreement: This Agreement constitutes the entire Agreement and supersedes and extinguishes all prior agreements and understandings (written or oral), between You and Virbac. In the event of any conflict or inconsistency between this Agreement and the provisions of any document used by You or any other arrangement between the parties, this Agreement prevails unless otherwise agreed in writing and signed by both parties.
Notices: Notices under this Agreement will be sufficiently given if posted or successfully transmitted by email to the intended recipient at their last known address. Virbac’s addresses for notice are as provided for on its Website. You will notify Virbac in writing of any change to your address details.
Variation: Virbac may amend this Agreement at any time. The amended terms and conditions will be posted on the Website. Your continued ordering of Goods will deem your acceptance of the amended terms. If You do not accept the amended terms, You may terminate this Agreement and the version of the terms and conditions immediately prior to the amended terms shall continue to apply to the Goods ordered prior to termination by You.
Assignability: Virbac may at any time assign or otherwise transfer, encumber or subcontract any of its rights and obligations under this Agreement to a third party.
Waiver: A party will not have waived or be deemed to have waived any provision of this Agreement unless the waiver is in writing and signed by that party.
Survivorship: Termination of this Agreement for any reason will not affect the rights and obligations of the parties that are intended to survive the termination, including but not limited to provisions in this Agreement relating to payment, failure to comply, risk and ownership, intellectual property, use, confidentiality, indemnification and limitation of liability.
Severability: If any part or provision of this Agreement is found to be illegal, invalid or unenforceable, that part or provision shall be modified to the extent necessary and reasonable in all circumstances to remedy the illegality, invalidity or unenforceability. If it cannot be modified, that part or provision will be void and severable and the remainder of this Agreement will not in any way be affected or impaired.
Non-Circumvent: The parties will not circumvent or attempt to circumvent the provisions and/or intent of this Agreement.
No relationship: This Agreement does not create any relationship of partnership, employment, agency or joint venture between You and Virbac.
Governing Law: This Agreement is to be interpreted in accordance with and governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand Courts.