BAYER NEW ZEALAND TERMS AND CONDITIONS OF SALE
1. Definitions and Interpretation
1.1 In these Terms and any related Contract, unless the contrary intention appears:
Affiliate means an entity or company which directly or indirectly, through one or more intermediaries, controls is controlled by or is under common control with a party.
Bayer means Bayer New Zealand Limited.
Business Day means a day that is not a Saturday, Sunday or public holiday in Auckland, New Zealand or, for deliveries of Products, at the place of delivery.
Contract means a contract for sale as referred to in clause 2.5.
Customer means the person who purchases Products from Bayer, including pursuant to a Contract.
Force Majeure means any circumstance beyond the reasonable control of a party which results in a party being unable to observe or perform on time an obligation under these Terms.
GST has the same meaning as in the Goods & Services Tax Act 1985 or any Act in amendment or substitution of that Act from time to time.
Insolvency Event means circumstances in which Customer is unable to pay its debts as they fall due or otherwise takes any corporate action or any steps are taken or legal proceedings are started for: (a) its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by Bayer; (b) the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or (c) seeks protection or is granted protection from its creditors, under any applicable legislation.
Order means a purchase order for Products (whether made by telephone, facsimile, email, in person, through a Bayer online ordering system or otherwise) and which has been accepted by Bayer but excluding any terms or conditions printed on or referred to in Customer’s purchase orders or other documentation unless expressly agreed to in writing by Bayer.
PPSA means the Personal Property Securities Act 1999 (as amended from time to time).
Products means all crop protection, environmental science and bioscience products (including vegetable seeds) and all human pharmaceutical and consumer health products and devices and all animal health products and devices supplied or to be supplied by Bayer to the Customer which are the subject of a Contract.
Terms means these terms and conditions of sale.
2. Orders
2.1 All orders for Products must be placed in the manner and form required by Bayer from time to time.
2.2 Bayer may in its absolute discretion determine from time to time a “Specified Order Quantity”, being the minimum order value or quantity for each order of Products to be supplied to Customer.
2.3 All orders will be subject to acceptance by Bayer, which may decline an order or accept an order in whole or part in its absolute discretion. Customer acknowledges that acceptance of an order by Bayer will not imply that Bayer will accept any future order(s) placed by Customer.
2.4 Once accepted by Bayer, an Order may not be cancelled by Customer except with the express consent of Bayer.
2.5 Upon the acceptance of each Order by Bayer, a separate contract of sale will arise. Each Contract will comprise the accepted Order and these Terms. If there is any inconsistency between these Terms and another provision in a Contract then the provision in the Contract will prevail only to the extent of the inconsistency.
2.6 For the avoidance of doubt no terms or conditions of Customer, including any terms or conditions printed on or referred to in Customer’s offer to purchase or order will be binding on Bayer or have any legal effect unless expressly agreed to in writing by Bayer.
3. Price and Payment
3.1 The price for the Products is specified in the Contract. Unless the Contract states otherwise, Bayer may alter the Price at any time prior to acceptance of an order without prior notice.
3.2 Customer must pay GST or any other tax duty, levy, tariff or charge applicable to the supply of the Products in addition to, and at the same time as, payment of the price. Bayer will provide Customer with a tax invoice as required by law.
3.3 Unless the Contract states otherwise, Customer must pay the Price for Products supplied to it on the 20th of the month following the date of the invoice for such Products.
3.4 Customer must not withhold payment or make any deduction from the invoiced price or any other amount owing to Bayer without Bayer’s prior written consent.
3.5 Receipt of any amount will not constitute payment until such time as the amount is paid or honoured in full.
3.6 Bayer may in its discretion allocate a payment that does not specifically identify the invoice for which such payment is made in satisfaction for monies owing under any outstanding invoices without regard to the date of those invoices.
3.7 Bayer may charge interest on any overdue monies at the rate which is 2% above the rate charged by Bayer’s major banker for commercial overdraft balances of over $100,000 from time to time, calculated from the due date for payment of the outstanding amount until the date of payment by Customer. Any payment made by Customer will be credited first against any interest that has accrued.
3.8 Bayer will be entitled to recover from Customer all legal and other costs incurred by Bayer arising from Customer’s default in payment and the collection of any overdue monies.
4. Delivery Terms
4.1 Any timeframes quoted by Bayer for delivery of the Products are estimates only. Bayer will use its reasonable endeavours to supply the Products in the quantities specified in the relevant Contract.
4.2 Bayer will not be liable for any loss suffered by Customer arising out of any delay or failure to deliver the Products (or any part of them) or failure to deliver in the requested quantities.
4.3 Bayer is entitled to refuse to deliver the Products to Customer if there are any outstanding monies owing to Bayer.
4.4 Delivery of the Products will be made in the manner and at the place specified in the relevant Contract or if not specified, delivery will be made as determined by Bayer.
4.5 Customer agrees to accept delivery of the Products at any time between 9.00am to 5.00pm on a Business Day.
4.6 If Bayer fails to deliver some or all of the Products pursuant to a Contract, Customer will not be entitled to cancel that Contract or any other order, Contract or delivery. Bayer will not be obliged to accept any claims for shortages of deliveries or non-conforming Products unless written notice of the claim is given to Bayer within 10 Business Days after receipt by Customer of the Products at the delivery destination.
4.7 If Bayer supplies the Products pre-packed and labelled, Customer must not sell, supply or otherwise deal with the Products unless the packaging and labelling remains intact, and Customer must not alter, remove, conceal or tamper with any batch numbers or other means of identification used in relation to the Products.
4.8 If Customer does not, or indicates to Bayer that it will not, take or accept delivery, then the Products will be deemed to have been delivered when Bayer was willing to deliver them.
4.9 Bayer reserves the right to deliver the Products by instalments. Each instalment may be invoiced separately and will be deemed to be a separate contract under the same provisions as the main Contract.
4.10 Bayer may suspend or cancel delivery of the Products if Bayer reasonably believes that the Products may cause injury or damage (including for technical, scientific, medical or efficacy reasons) or may infringe the intellectual property rights of any person, or if payments owing from Customer to Bayer remain outstanding. No such suspension or cancellation will in any way constitute admission of liability or fault on Bayer’s part.
5. Containers and Pallets
5.1 Any pallets or containers used for the delivery, storage or display of the Products are not included in the Price unless otherwise specified and will remain the property of their owner.
5.2 Customer must promptly return or exchange the pallets and containers in its custody on the day of delivery (unless otherwise agreed with Bayer) or reimburse Bayer the cost of replacement or repair of lost or damaged pallets or containers.
5.3 Bayer may charge a deposit to Customer for a pallet or container which will be credited in full if the pallet or container is returned to Bayer within 3 months of dispatch and is in good order and condition.
6. Risk and Title
6.1 Legal and beneficial ownership in the Products will not pass to Customer until Customer has paid in full the Price for those Products.
6.2 Risk of loss of or damage to the Products will remain with Bayer only until the first of the passing of title to the Products to Customer, or delivery of the Products by Bayer to Customer in accordance with clause 4. Thereafter risk of damage to, or loss or deterioration of, the Products from any cause whatsoever passes to Customer.
6.3 Until all outstanding monies have been paid to Bayer for Products delivered to Customer:
(a) Customer must separately store those Products in such a way that makes it clear that they are the property of Bayer;
(b) in the event of a default (specified in clause 13), Bayer or its representative will be entitled, without the necessity of giving any notice, to enter premises occupied by Customer to search for and remove any of those Products without in any way being liable to Customer and may dispose of or retain such Products as Bayer sees fit without being required to give notice or account to Customer. If the Products or any of them are wholly or partially attached to or incorporated in any other product, Bayer may (when practical) disconnect them in any way necessary to remove the Products; and
(c) all costs and expenses incurred by Bayer as a result of taking action in accordance with clause 6.3(b), together with transportation and storage charges, must be paid by Customer to Bayer on demand.
6.4 Until title to the Products passes to Customer, Customer acknowledges and agrees:
(a) that the Products supplied and not resold are held by it as a bailee for Bayer;
(b) Customer may resell the Products without the right of Customer to bind Bayer to any liability to any third party (whether contractual or otherwise);
(c) if the Products have been resold by Customer, Customer will hold so much of the proceeds of sale as does not exceed the outstanding monies on trust for Bayer immediately when they are receivable or received;
(d) when the proceeds held in trust for Bayer under clause 6.4(c) are received they must either be paid immediately to Bayer or held in a separate bank account as trustee for Bayer and they must not be used by Customer in any other way whatsoever; and
(e) the authority conferred on Customer by clause 6.4(b) may be revoked by written notice from Bayer at any time if Bayer deems the credit of Customer to be unsatisfactory or if Customer is in default in the performance of its obligations under any Contract, these Terms or any other agreement between Bayer and Customer.
6.5 Customer acknowledges that Bayer's retention of title in clause 6.1 gives rise to a security interest in all present and after acquired Products supplied by Bayer to the Customer to secure the Customer's performance of its obligations to Bayer.
6.6 Customer undertakes to:
(a) promptly do all things, execute all documents and/or provide any information which Bayer may reasonably require to enable Bayer to perfect and maintain the perfection of its security interest (including by registration of a financing statement);
(b) give Bayer not less than 14 days' prior written notice of any proposed change in its name and/or any other change to its details; and
(c) immediately on request by Bayer (and at Customer's expense) obtain from any third party such agreements and waivers of any security interest that third party has in the Goods, to ensure that at all times Bayer has a first priority security interest in the Products.
6.7 Customer waives its rights to receive a copy of any verification statements under the PPSA and agrees that as between Bayer and Customer:
(a) Customer will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 129, 131, 133 and 134 of the PPSA; and
(b) where Bayer has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
7. Warranties
7.1 Bayer warrants that all Products manufactured by Bayer or a Bayer Affiliate and supplied to Customer will, subject to this clause 7, comply with Bayer’s specifications for those Products (or if no such specifications exist, will be free of defects in materials and manufacture), until the end of the registered shelf life of such Product or, if there is no registered shelf life, until the date falling 12 months from the date of delivery of the Products by Bayer to Customer (the Warranty Period).
7.2 If a Product does not comply with the warranty set out in clause 7.1 and Customer notifies Bayer in writing of the defect during the Warranty Period within 10 Business Days of the defect coming to its notice, Bayer will, at its option, either exchange the Product for a new Product, or refund the Price paid for the Product.
7.3 When a refund is given pursuant to clause 7.2, the Product for which the refund is provided must, at Bayer’s option, be destroyed or returned to Bayer by Customer, at Customer’s expense, and if returned becomes the property of Bayer.
7.4 The warranty in clause 7.1 does not apply:
(a) as a result of any acts or omissions by any person other than Bayer or any external cause;
(b) if the defect is due to the Product being used for purposes other than for purposes for which it was intended or which do not fall within the scope of any regulatory approval;
(c) to a Product that has been modified without the written permission of Bayer; or
(d) if the Product has not been stored or transported in accordance with Bayer’s recommendations.
7.5 The benefit of the warranty in clause 7.1 is personal to Customer and is not assignable without the prior written consent of Bayer.
7.6 Except as expressly set out in these Terms, and subject to any terms, warranties or conditions that by law may not be excluded, all conditions, warranties, terms, and obligations expressed or implied by law or otherwise relating to the performance of Bayer’s obligations under these Terms, or any goods or services supplied, or to be supplied, by Bayer under these Terms, are excluded and the rights set out in this clause 7 are the sole and exclusive remedies of Customer with respect to defective Products.
8. Credits
8.1 Credits sought for returned Products are at Bayer’s discretion. Where accepted, Bayer may charge a reasonable administration fee in respect of all returned Products. For the avoidance of doubt, no Products for which the shelf life has expired will be accepted for return.
8.2 Products, in respect of which a credit is sought and approved by Bayer, must be returned to Bayer’s premises freight free in good and saleable condition in the original containers and packaging in which they were supplied, and accompanied by the number and date of Bayer’s supplying invoice.
9. Assistance and Materials Supplied by Bayer
9.1 Subject to obligations imposed on Bayer by the law which cannot be excluded or modified by these Terms, and subject to any contrary provisions in a Contract, any advice, recommendation, information, assistance or service provided by Bayer in relation to Products and their use or application is given in good faith but is provided without liability or responsibility on the part of Bayer and without intention that Customer should rely thereon.
9.2 Any material supplied by Bayer for advertising and display is issued to Customer for use in its own business and is not intended for circulation or distribution to the public. Such material will remain the property of Bayer, must be returned by Customer to Bayer upon request and must not be modified without Bayer’s prior consent.
10. Pharmacovigilance and Recalls
10.1 Customer agrees to provide to Bayer written reports of all Adverse Events and Product Technical Complaints regarding Products and services relevant to Products that come to the Customer’s attention within one (1) Business Day of becoming aware of such events/complaints:.
i. for Bayer Pharmaceutical and Consumer Health Products, by fax (+612 9391 6250) or e-mail (drugsafety.anz@bayer.com);
ii. for Bayer Animal Health Products, by phone (0800 446 121) or e-mail (nzanimal.drugsafety@bayer.com).
10.2 For the purposes of these Terms:
(a) an “Adverse Event” shall mean:
(i) for Bayer Pharmaceutical and Consumer Health Products, any untoward medical occurrence in a person that occurs with use of a Product;
(ii) For Bayer Animal Health Products, any observation, whether or not considered to be product-related, that is unfavourable and unintended, that occurs after any use of a Bayer Product (including off-label and on-label uses) including:
a. safety related events in animals or humans
b. suspected lack of expected efficacy in animals;
c. suspected violation of approved maximum residue limits or withdrawal period;
d. suspected environmental problem / endangerment;
e. suspected transmission of infectious agents.
The observation may be reported from any source.
(b) a “Product Technical Complaint” is any report (written, electronic or verbal communication) about a potential or alleged failure of a Product in its quality (including the identity, durability, efficacy or safety) or suspect counterfeit. The complaint may or may not represent a potential risk to the person or animal.
10.3 Customer agrees that, unless otherwise required by law or applicable regulatory authority, Bayer shall be solely responsible for determining if any Product recall or removal from sale should occur. Customer agrees to co-operate to the fullest extent possible to diminish any risk to the public from an Adverse Event or Product Technical Complaint, including taking the following actions (as directed by Bayer):
(a) removing Products that may be affected from offer for sale to the public;
(b) recalling Products that may be affected where they have been sold;
(c) complying with all laws, regulations and notice requirements in relation to product recalls;
(d) disseminating information that has been approved by Bayer and which in Bayer’s opinion is necessary or desirable to limit any harm, loss or damage that maybe caused in any way in relation to the matter; and
(e) complying with any other directions and corrective action required by Bayer in relation to the matter.
11. Limitation of Liability
11.1 Any provision of these Terms that excludes any terms, conditions or warranties, or limits the liability of a party will apply only to the extent permitted by law and these Terms will be construed subject to such terms, conditions, warranties and limitations.
11.2 Subject to clause 11.1, where any terms, conditions or warranties are implied by law into these Terms which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of Bayer to Customer under such implied terms, conditions or warranties is limited, at the option of Bayer, to the repair or replacement of goods, or payment of the cost of repairing or replacing the goods.
11.3 Except as expressly provided in these Terms, to the extent permitted by law, Bayer will have no liability to Customer, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity.
12. Indemnities
12.1 If Customer gives instructions to Bayer with respect to the manufacture, packaging, sale or supply of the Products, Customer warrants to Bayer that adherence by Bayer to any such instructions will not infringe the intellectual property rights of any other person.
12.2 Customer releases and indemnifies Bayer, its related bodies corporate, and their respective officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of a breach of Customer’s warranties or obligations contained in these Terms, and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand.
13. Default
13.1 If an Insolvency Event occurs in relation to Customer any other event occurs which gives Bayer reasonable grounds for doubting the credit of Customer, Bayer may by notice to Customer, at its option and without prejudice to any other right it may have, suspend or terminate a Contract or require payment before or on delivery of the Products (notwithstanding the terms of payment applicable to the Products), or cancel any undelivered or uncompleted Products under a Contract, and may retain any monies paid by Customer in relation to the Contract and apply such monies against any loss or damage incurred by it in relation to the default by Customer.
14. Force Majeure
14.1 Neither party will be liable for any delay or failure to perform its obligations under these Terms (other than payment obligations) if such delay is due to Force Majeure.
14.2 If a delay of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.
15. Confidentiality
15.1 These Terms and the provisions of all Contracts are confidential and must not be disclosed by Customer to any third party without Bayer’s prior written consent unless such disclosure is required by law.
15.2 The restrictions contained within this clause 15 do not apply to any of these Terms or provisions of Contracts that Bayer has itself placed in the public domain.
16. Privacy
16.1 Bayer has a published Privacy Policy which is incorporated into these Terms by reference and can be viewed at www.bayer.co.nz
16.2 Bayer’s collection and use of your personal information may be used for purposes including:
(a) to process and administer your dealings as a customer, including assessing your credit worthiness;
(b) to provide you with the Products and services you have requested and to assist you with further relevant information including Product related information ; and
(c) to administer the transactions contemplated by these Terms and any Contract.
16.3 Bayer will generally:
(a) use personal Information provided to it for the purposes relating to these Terms (and any Contract);
(b) use personal information collected by it in accordance with its Privacy Policy and the Privacy Act 1993 (the “Privacy Act”); and
(c) not sell, trade, give or pass on to any third party any personal information unless such a disclosure is contemplated by and directly related to the purpose outlined by these Terms or Bayer’s Privacy Policy or unless the Customer consents to such a disclosure or such disclosure is required by law.
16.4 Customer hereby authorises Bayer to disclose Customer’s personal information to third party contractors and service providers that assist Bayer to operate its business and fulfil these Terms (and any Contract) such as contractors and service providers involved in services including, but not limited to, the processing of Orders, Order fulfilment and the collection of outstanding debts.
16.5 By entering into these Terms, Customer:
(a) acknowledges that it has read Bayer’s Privacy Policy and consents to same;
(b) acknowledges that Bayer is a global organisation and some of the activities necessary for the matters contemplated by these Terms or any Contract may be conducted by Bayer entities located outside of New Zealand such as in Australia, Singapore, Philippines or Germany and as such Customer consents to the overseas transfer of Personal Information of the Customer and its employees, consultants and agents provided to Bayer.
16.6 warrants that it shall comply with the provisions of the Privacy Act and shall not (as far as practicable) knowingly do anything or permit anything to be done which might lead to a breach of any such legislation.
17. General
17.1 Customer must comply with all applicable laws, regulations, industry standards and codes of conduct in New Zealand and any other relevant jurisdiction in relation to all matters contemplated (whether expressly or implicitly) by these Terms.
17.2 In these Terms and any Contract, unless the contrary intention appears:
(a) a person includes a corporation, unincorporated association, partnership, joint venture or public, statutory or governmental association or agency;
(b) a statute or regulation includes an amendment, replacement or re-enactment of that statute or regulation;
(c) a reference to dollars is to New Zealand Dollars;
(d) the word “including” and similar expressions are not words of limitation;
(e) a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; and
(f) where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
17.3 Any notice given by a party in connection with these Terms or any Contract shall be in writing and will be deemed to have been given when delivered or sent by post or email to the party to whom such notice is intended to be given at the address of that party provided in the Contract or as otherwise notified in writing to the other party. A notice is deemed to be given and received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, 3 Business Days after the date of posting, or 6 Business Days if sent to or from another country; or
(c) if sent by email, when the sender’s email system generates a message confirming successful transmission of the message.
17.4 If any provision of these Terms is invalid, illegal or unenforceable, these Terms take effect (where possible) as if they did not include that provision.
17.5 Any failure by Bayer to insist upon strict performance by Customer of any provision in these Terms will not be taken to be a waiver of any existing or future rights of Bayer in relation to the provision.
17.6 Customer must not assign or otherwise deal with its rights or obligations under these Terms or a Contract without the prior written consent of Bayer.
17.7 These Terms and Contracts are governed by the laws of New Zealand. The parties agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.
17.8 These Terms (together with the Contracts) contain the entire agreement of the parties with respect to its subject matter and may only be amended in writing.
17.9 These Terms do not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
17.10 The parties agree that subject to the provisions of these Terms, the United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 do not apply to the supply of Products under these Terms.