Terms of Trade for Wholesalers and Veterinarians

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.


DEFINITIONS

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:

  • Goods that do not appear in Virbac’s price list current as at the date of Order;
  • Goods ordered by You for which Virbac must place a special order with its suppliers;
  • Goods requested by You to be supplied by Virbac in a configuration other than as provided for in Virbac’s price list current as at the date of Order; or
  • Any other Goods determined by Virbac to be Non-Standard Inventory from time to time.

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.

You authorise:

  • Virbac to conduct all credit checks, make enquiries, collect all and any information from and disclose such information to third parties, and undertake any searches in relation to your credit, financial and business affairs and history as is reasonably required to assess your credit position and as otherwise deemed necessary by Virbac from time to time; and
  • third parties to disclose to Virbac such information as Virbac may reasonably require from time to time in respect of the above authorisations.


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:

  • Bank transfer at the time of Order; or
  • If You are an account holder, electronic funds transfer on or before the 20th of the month following the date of invoice. Where the due date for payment of the invoice falls on a weekend or public holiday in New Zealand, payment is due the Working Day immediately prior.

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:

  • charge interest on all of your overdue accounts at a rate of 18% per annum calculated on a daily basis until it is received in full. Any payments received by Virbac will be applied firstly against any costs and expenses and then against such interest before payment of the overdue amount(s);
  • recover from You or deduct from or set-off against any amount Virbac may owe to You, any damage, losses, costs and expenses (including all legal costs as between solicitor and client) and debt collection fees incurred by Virbac in consequence or in connection with the recovery of an overdue debt or the enforcement by Virbac or any other power, right or remedy conferred upon Virbac by law or this Agreement;
  • suspend delivery of any Goods, cancel any Order, suspend or cancel your account, or terminate (in whole or in part) the supply of Goods, or this Agreement by written notice to You; and
  • require that any balance outstanding in respect of any account held by You, whether or not due, is paid immediately.


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.


DELIVERY

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:

  • at the time You collect the Goods directly from Virbac’s premises; or
  • at the time they are placed with the carrier; or
  • as otherwise agreed between You and Virbac in writing.

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:

  • Virbac retains ownership of the Goods; and
  • You hold the Goods or any products which incorporate the Goods solely as bailee for Virbac and You will store the Goods in such a way that it is clear that they are the property of Virbac and in accordance with any storage requirements; and
  • Virbac and its agents have the right to enter the premises where the Goods are being stored at any reasonable time to inspect the Goods and should You be in breach of this Agreement, remove the Goods from your possession; and
  • If the Goods are stored at the premises of a third party, You will obtain the consent of that third party to Virbac’s entry onto the premises for this purpose. You shall pay all costs incurred by Virbac in respect of such entry and repossession, including all legal costs.

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:

  • receive a copy of the verification statement, pursuant to s 148 of the New Zealand Personal Property Securities Act 1999; and
  • reinstate this Agreement, pursuant to s 133 of the New Zealand Personal Property Securities Act 1999.


RETURNS

You agree and acknowledge that:

  • Goods required to be refrigerated (stored between 2-8 degrees Celsius) cannot be returned to Virbac for credit.
  • Goods that are Non-Standard Inventory may only be returned with the prior approval of Virbac, and will at all times be subject to Virbac’s ability to return such Goods to the manufacturer/supplier or to resell the Goods. Virbac will (in its sole discretion) provide you with either a credit or replacement inventory of up to the same Price as the returned Goods.

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:

  • replace the Goods supplied or supply equivalent Goods; or
  • pay for the cost of replacing the Goods or of acquiring equivalent Goods; or
  • provide You with a credit in respect of those Goods.

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.


EXCLUDED LEGISLATION

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:

  • replace the Goods where replacement Goods are available;
  • pay reasonable costs incurred in the return of the Goods to Virbac or in the destruction of the Goods by You; and/or
  • pay reasonable third party service fees associated with the removal from and/or replacement of, the recalled Goods in animals up to the maximum amount determined by Virbac at that time.

You agree to co-operate with Virbac as is reasonably required in respect of any Goods subject to a recall.


NO WARRANTIES

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.


YOUR WARRANTIES

In relation to all Goods supplied by Virbac, You warrant that:

  • You hold all applicable permits, licences, registrations, approvals, certifications, consents or other authorisations under New Zealand law that are required to purchase, store, market, sell, distribute and otherwise deal with the Goods in New Zealand, including but not limited to being a RVM Seller where the Goods are RVMs;
  • You (and your employees, agents and contractors) will deal with the Goods in accordance with any safety instructions, directions, guidelines, legislation and/or regulations;
  • You (and your employees, agents and contractors) will not directly or indirectly sell or supply the Goods to third parties unauthorised under New Zealand law to purchase or receive such Goods; and
  • Where You supply Goods to third parties in the course of trading, You shall not represent that You are acting as an agent of Virbac and You shall not (and not allow any of your employees, agents or contractors to) give or make any undertaking, assertion, or representation on behalf of Virbac in relation to the Goods without the prior written approval of Virbac.


INDEMNIFICATION

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.


INTELLECTUAL PROPERTY

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:

  • use, sell, distribute, duplicate, modify or otherwise alter the intellectual property of Virbac or a third party in respect of the Goods;
  • tamper with or remove any markings, trade marks patent numbers, registration numbers or other indication of the source of origin of any Goods or descriptions required by law which are placed by Virbac on the Goods;
  • claim any rights, title or interests in or to the intellectual property in the Goods unless and to the limited extent expressly provided for under this Agreement;
  • damage or otherwise endanger Virbac’s intellectual property rights in the Goods; and
  • use the intellectual property and/or the Goods otherwise than as is intended.

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:

  • veterinarians registered with the Veterinary Council of New Zealand who hold current practicing certificates as at the date of sale of the Goods; or
  • third parties whose primary line of business are the provision of veterinary services and medicine and who hold the relevant permits, licences, registrations, approvals, certifications, consents and/or other authorisations under New Zealand law that are required to purchase, store, market, sell, distribute and otherwise deal with the Goods in New Zealand; or
  • (where You provide veterinary services and medicine) those third parties engaging your veterinary services which include customers purchasing scripted and non-scripted Goods from You for use on their animals.


CONFIDENTIALITY

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.


PERSONAL INFORMATION

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.


DISPUTE RESOLUTION

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.


TERMINATION

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.


FORCE MAJEURE

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.


MISCELLANEOUS

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.