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Kiwi Pharmaceuticals Standard Terms and Conditions of Sale
- These terms and conditions (“Terms”):
- form part of any and all agreements for the supply of Goods or Services by Kiwi Pharmaceutical Ltd (NZ BN 9429046425485) or any associated company (“Kiwi Pharmaceuticals”) to any purchaser of Goods or Services (“Customer”); and
- shall only be waived in writing signed by Kiwi Pharmaceuticals.
- In the event these Terms conflict with any offer made by Kiwi Pharmaceuticals for the sale of Goods or Services (“Offer”), or the terms and conditions issued by the Customer (“Customer Terms”), the terms and conditions of the Offer will prevail followed by these Terms, following by the Customer Terms.
- By making payment, or taking delivery of any Goods, the Customer is deemed to agree to these Terms.
- In these terms
- “Goods” means any goods to be supplied by Kiwi Pharmaceuticals to the Customer;
- “Services” means any services to be supplied by Kiwi Pharmaceuticals to the Customer; and
- the term “including” means “including without limitation”.
- The Customer may place orders for Goods or Services with Kiwi Pharmaceuticals by fax, letter or email using Kiwi Pharmaceuticals’ Customer order form or in a form agreed to by Kiwi Pharmaceuticals.
- No orders are binding on Kiwi Pharmaceuticals until they have been accepted in writing or performed by Kiwi Pharmaceuticals.
- Unless otherwise agreed in writing, the price payable by the Customer for the Goods or Services is Kiwi Pharmaceuticals’ current price at the time of ordering. Any prices notified on any price list or Offer are valid for 30 days.
- All prices for Goods are calculated “Ex GST” Kiwi Pharmaceuticals or manufacturer’s warehouse and all prices are exclusive of GST.
- If a party makes a taxable supply in connection with these Terms for a consideration which represents value then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply. A party’s right to payment under this clause is subject to a tax invoice being delivered to the party liable to pay for the taxable supply.
- The Customer is required to make payment of the amount due to Kiwi Pharmaceuticals (without set off, counterclaim or any deduction) as stated in the Offer or invoice prior to delivery unless otherwise agreed by Kiwi Pharmaceuticals, and in any event, within net 14 days from Offer or invoice.
- Payment must be made by such method as is agreed with Kiwi Pharmaceuticals. A surcharge of 3% applies to all payments by credit card. Kiwi Pharmaceuticals accepts MasterCard and Visa only.
- If the Customer fails to make payment in accordance with this clause, after demand for payment by Kiwi Pharmaceuticals, all amounts owing by the Customer to Kiwi Pharmaceuticals on any account shall immediately become due and payable.
- Kiwi Pharmaceuticals may suspend or cancel the provision of Services, or suspend or cancel deliveries of Goods to any Customer without notice (or where the Goods have been delivered, to enter the Customer’s premises to retrieve the Goods), where the Customer’s account has exceeded the due date for payment and/or the Customer’s credit account limit.
Delivery and Risk
- Unless otherwise agreed in writing, all Goods are supplied “Ex GST” Kiwi Pharmaceuticals or manufacturer’s warehouse and all risk in the Goods passes to the Customer upon dispatch of the Goods. The Customer accepts all risk and cost of transport from Kiwi Pharmaceuticals or manufacturer’s warehouse to the Customer’s premises and the Customer agrees that it will be responsible for procuring and maintaining appropriate insurance to cover all Goods in transport.
- If a delivery date is specified, Kiwi Pharmaceuticals will endeavour to deliver within the time so specified but in no circumstances will Kiwi Pharmaceuticals be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any loss in transit, delay in or failure of delivery in whole or in part.
- Kiwi Pharmaceuticals reserves the right to make part deliveries of any order and each part delivery shall constitute a separate sale of Goods upon these Terms.
- The Customer must inspect all Goods upon delivery and must give notice to Kiwi Pharmaceuticals of any defect, matter or thing by which the Customer alleges that the Goods are not in accordance with the Customer’s order within 5 business days of delivery. Failing such notice and, to the extent permitted by law, the Goods are deemed to have been delivered and accepted by the Customer and the quantity, description, date, time and place of delivery as indicated on Kiwi Pharmaceuticals’ invoice or delivery docket or copies thereof shall be deemed to be conclusive evidence of quantity, description, date, time and place of delivery of Goods.
- Legal and equitable title to any of the Goods shall only pass to the Customer upon the later of:
- receipt of payment in full (without set off, counterclaim or any deduction) by Kiwi Pharmaceuticals of all amounts which are owing by the Customer in relation to the Goods; or
- delivery of the Goods.
- Receipt by Kiwi Pharmaceuticals of any cheque, other bill of exchange or electronic funds transfer shall not be deemed to be payment until the same has been honoured or cleared.
- Until title to Goods passes to the Customer in accordance with these Terms, the Customer must insure the Goods and keep the Goods as fiduciary for Kiwi Pharmaceuticals in a manner that clearly shows the ownership of Kiwi Pharmaceuticals.
- In addition to the rights granted to Kiwi Pharmaceuticals above, if:
- any amount due by the Customer to Kiwi Pharmaceuticals in respect of the Goods remains unpaid 30 days after the due date on which it first became due and payable;
- the Customer breaches these Terms;
- the Customer becomes insolvent or makes an assignment for the benefit of its creditors; or
- the Customer is placed under official administration in respect of any of its assets, then Kiwi Pharmaceuticals may retake possession of any Goods for which Kiwi Pharmaceuticals has not received payment in full wherever they are located and the Customer hereby authorises Kiwi Pharmaceuticals to enter upon the premises of the Customer for that purpose and then to recover the cost of that repossession from the Customer as a debt due.
Return of Goods
- The Customer must notify Kiwi Pharmaceuticals within 5 business days of receipt of any Goods received in error or defective condition, otherwise the Customer will remain liable for payment for those Goods in full without deduction. Provided the Customer has provided prior notice to Kiwi Pharmaceuticals in accordance with this clause, the Customer may, after prior written notice to Kiwi Pharmaceuticals, return the Goods received in error or defective condition within 10 business days of delivery of the Goods.
- Subject to clause 7.1, Kiwi Pharmaceuticals agrees (at Kiwi Pharmaceuticals’ option) to either repair, replace, or pay the cost of repair or replacement of Goods supplied in defective condition subject to such Goods having been properly handled and used by the Customer in accordance with the manufacturer’s instructions.
- Goods will not be accepted for return after 10 business days of delivery or without prior notice in accordance with clause 7.1.
- Subject to any applicable manufacturer’s guarantee supplied with the Goods, this clause 7 is the Customer’s sole and exclusive remedy for defective Goods.
Manufacturer’s Guarantee and Warranties
- Unless otherwise notified, Goods are supplied with a 1 year manufacturer’s guarantee on the terms provided by the manufacturer, and are subject to adhering to the manufacturers instructions for use.
- All warranties and conditions, other than those expressly set out herein, whether statutory or otherwise as to the Goods or Services supplied by Kiwi Pharmaceuticals are hereby excluded to the maximum extent permitted by law.
- To the extent that any warranties and conditions cannot be excluded by law, to the extent to which Kiwi Pharmaceuticals is entitled by law to do so, its liability is limited at its option to:
- the replacement of the Goods or Services;
- the re-supply of equivalent Goods or Services; or
- the payment of the cost of replacing the Goods or Services or acquiring equivalent Goods or Services.
- Kiwi Pharmaceuticals retains all rights, title and interest in any trademark, copyright, patent, design and any other intellectual property or proprietary right in or connected to any Goods or Services and to any reports, specifications or materials prepared or made available by Kiwi Pharmaceuticals.
Limitation of Liability
- To the maximum extent permitted by law, Kiwi Pharmaceuticals shall under no circumstances be liable to the Customer for any loss of profits or goodwill, economic, special, indirect or consequential loss or damage, whether in contract, tort (including negligence), for breach of warranty, under indemnity, in equity or otherwise.
- Subject to clause 10.1 and to the maximum extent permitted by law, unless otherwise agreed Kiwi Pharmaceuticals’ liability to the Customer (whether in contract, tort (including negligence), for breach of warranty, under statute, under indemnity, in equity or otherwise) in connection with or arising out of the supply of Goods or Services will not in any circumstances exceed the aggregate price of the Goods or Services purchased by the Customer.
- The Customer shall indemnify and hold Kiwi Pharmaceuticals harmless from and against all liability, costs, losses, damages or judgments arising from any action brought by any person arising in whole or in part from:
- the Customer’s (or its personnel, agents or contractors) mishandling or misuse of, negligence or recklessness associated with, the Goods, including any use of Goods outside of their indicated uses;
- any misrepresentation, misstatement or similar act by the Customer or its personnel, contractors or agents in relation to the Goods; or
- any modification to the Goods made or allowed by the Customer (including any modifications made by Kiwi Pharmaceuticals in accordance with the Customer’s specifications, instructions or directions).
- If Kiwi Pharmaceuticals’ supply or business is interrupted or restricted as a result of any strike, lockout, industrial dispute, war, riot, civil disorder, fire, explosion, flood, accident, plant breakdown, government intervention or any other cause beyond Kiwi Pharmaceuticals’ reasonable control Kiwi Pharmaceuticals is entitled to suspend, reduce and/or cancel delivery of Goods or performance of Services during such period of interruption or restriction without liability.
- Either party shall be entitled by giving written notice to the other to terminate any agreement or contract under these Terms without prejudice to any of their accrued rights should such period of interruption or restriction under clause 12.1 continue for more than 90 days.
- The Customer warrants that it holds all licences, permits and approvals necessary to purchase and use the Goods and that no restriction of any kind prevents the Customer from entering into any agreement or arrangement for the purchase of the Goods.
- Kiwi Pharmaceuticals may terminate any agreement or arrangement for the supply of Goods or Services to the Customer immediately by notice to the Customer if:
- the Customer breaches any of its obligations under any agreement with Kiwi Pharmaceuticals and does not rectify the failure (where the failure is rectifiable) within 14 days of notice; or
- a receiver, receiver and manager, administrator, trustee, mortgagee or similar official is appointed over any of the assets or undertakings of the Customer, any application, order, or steps are made or taken to pass a resolution for the liquidation of the Customer; or
- the Customer enters or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them.
- Unless otherwise specified in an Offer or agreed by Kiwi Pharmaceuticals in writing, the Customer is responsible for receiving, inspecting, testing, storing, installing, starting up and maintaining all Goods.
- These Terms shall be governed by the laws of New Zealand and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that Country for resolution of any dispute and waive any claim or objection based on absence of jurisdiction or inconvenient forum.
- Kiwi Pharmaceuticals reserves the right to vary these Terms at anytime. Customers will be advised of any changes in the Terms through trade account receipts, notices on, or with price lists, account statements or invoices, via Kiwi Pharmaceuticals’ website or other such means.
- Any provision of these Terms which is capable of having effect after the expiry or termination of these Terms (including clauses 9, 10 and 11) will survive and remain in full force and effect.