Terms of Trade

Terms of Trade

1 TERMS OF CONTRACT

1.1 Any Goods supplied by us to you are supplied subject to these Terms unless a written agreement to modify them is made. No other terms and conditions (including, but not limited to, those in your order or any other documentation provided by you) shall apply unless they are explicitly stated in our quotation for the Goods (and accepted by you) or agreed upon in writing. If you have entered into a separate Purchase Agreement with us, these Terms shall apply except where they are inconsistent with the provisions of the separate Purchase Agreement, in which case the terms of the Purchase Agreement shall prevail.

1.2 Your placement of an order constitutes acceptance of these Terms, regardless of any contrary statements in your enquiries or order.

2 PRICE

2.1 The price of Goods shall be as agreed between you and us, as specified in our price list (as amended from time to time), or in an Order or accepted Quote, as applicable.

2.2 Quoted prices only apply to the total quantities and delivery dates specified in the quotation.

2.3 We may withdraw a quotation before it is accepted and, in any event, a quotation will lapse, without notice, 30 days after it is given.

2.4 Unless otherwise agreed in writing, all prices are exclusive of:

(a) packaging, freight, cutting fees and any other additional charges imposed by our suppliers in respect of the Goods;

(b) delivery charges; and

These will be charged at the rates applying at the time of delivery. Any reference in these Terms to payment for Goods includes any amounts payable under this clause 2.4 in respect of those Goods.

3 PAYMENT

3.1 Unless we have agreed in writing to extend credit to you, you must pay for Goods in full before delivery.

3.2 Where we have agreed to extend credit to you, you must pay for Goods, without deduction or set off, in accordance with the payment terms agreed in your Credit Account.

3.3 Despite clause 3.2, where we have agreed extended payment terms with you in writing, you must pay for Goods in full, without deduction or set off, by the due date under those extended payment terms. We may cancel any extended payment terms agreement with you at any time by written notice to you, in which case payment for all Goods ordered after the date of such cancelation will be due in accordance with clause 3.2.

3.4 Payment may be made by cheque, electronic funds transfer or any other method agreed between you and us. Your payment is made only when funds have fully cleared through the bank system into our bank account.

3.5 If full payment for the Goods is not made by the due date, then without prejudice to any other rights or remedies available to us:

(a) all amounts owing by you to us (whether or not due for payment) become immediately due and payable;

(b) we may cancel or suspend any orders for Goods made by you, wholly or partly, and without liability to you;

(d) we may charge interest on overdue monies on a daily basis at 5% per annum above the current base lending rate charged by our bankers at that time, and interest shall continue to accrue both before and after judgment; and

(e) you will be responsible for and must pay on demand all costs (including, without limitation, debt collection agency costs and legal costs on a solicitor/client basis) incurred by us in recovering overdue monies.

3.6 We may accept and apply payments from you in any manner that we determine, and we will not be bound by any conditions or qualifications attaching to the payments.

3.7 Where we have agreed to extend credit to you, we may, from time to time, vary your credit limit with us. If a purchase of Goods would exceed your current credit limit, we may require payment in cash of the excess before delivery of them.

3.8 Despite anything in these Terms or any agreement to the contrary, if we reasonably believe that any information you have given us which relates to your creditworthiness is not correct or no longer correct, if we reasonably believe that you are likely to be unable to meet your payment or other obligations to us or if you default under any agreement with us, become insolvent or commit any act of bankruptcy, a receiver, liquidator or statutory manager is appointed over any of your assets or undertaking or you make or attempt to make an arrangement or composition with your creditors:

(a) all amounts owing by you to us (whether or not due for payment) become immediately due and payable; and

(b) we may cancel or suspend any orders for Goods made by you, wholly or partly, and without liability to you.

4 OWNERSHIP

4.1 Ownership in the Goods shall not pass to you at the time of delivery, but will remain with us until we have received full payment, in cash or cleared funds, of all monies owing by you to us.

4.2 Until all such monies have been paid:

(a) you will keep the Goods in good order and condition and separate from any other goods in your possession, and properly stored, protected and insured, and identified as our property;

(b) all sums received from any insurance claim made in respect of loss of or damage to the Goods shall be treated as if they were proceeds of sale and held by you on the same terms as those set out in clause 4.2(d), and you will also hold on trust for us and, if required by us, forthwith assign to us the benefit of any insurance claim made in respect of the Goods;

(c) if the Goods are mixed with, or incorporated or processed by you into other goods, those other goods shall be separately stored and marked so as to be identified as being made from or with the Goods;

(d) where the Goods are sold to you as inventory for resale, you may resell them in the normal course of your business at full market value, provided that (i) the resale shall be as principal in relation to your sub-buyer but, as between you and us, you will sell as our fiduciary agent and bailee and (ii) you hold the proceeds of the resale on trust for us, and pay them into a separate bank account without mixing them with other monies; and

(e) we may, at any time, require you to return the Goods (which have not been resold) to us and, if you fail to do so forthwith, our employees and agents may enter any premises where the Goods might be stored and recover them, and you agree to indemnify us, on demand, against any liability incurred by us in our exercise of this right.

5 RISK AND DELIVERY

5.1 Delivery of the Goods will take place at the earlier of when:

(a) you collect the Goods from us at our warehouse;

(b) the Goods arrive in our company delivery vehicle at your nominated delivery address (and prior to unloading); or

Where the Goods are delivered to you by our company delivery vehicle or a third party carrier, we may charge the cost of delivery to you. When you ask us to deliver Goods directly to another person, that person takes possession of the Goods for you as your agent.

5.2 Despite clause 5.1, if you are unable or refuse to take delivery of Goods as arranged by us, then the Goods are deemed delivered when we were ready to deliver them.

5.3 Any delivery times advised by us to you (in a quotation or by any other means) are provided in good faith but as estimates and not commitments. We will make all commercially reasonable efforts to ensure delivery of Goods is made by any estimated delivery time. However, we shall not be liable to you for any failure to deliver on a specific date or within a specific period, however that failure was caused and a failure by us to deliver on a specific date or within a specific period does not entitle you to cancel the order.

5.4 We may choose to deliver an order in instalments. Each instalment will be treated as a separate contract subject to these Terms.

5.5 Despite clause 4, risk in respect of the Goods shall pass to you on delivery in accordance with clause 5.1 and 5.2. You are responsible for insurance of the Goods from that time.

5.6 Without limiting the previous provisions of this clause 5, all claims regarding delivery of incorrect Goods, shortages or delivery damage must be made to us or (if applicable) the third party carrier (copied to us) within fifteen days after delivery and you must provide a reasonable opportunity for us to take all necessary steps to investigate the claim. Otherwise, the Goods are deemed to have been delivered in full in accordance with the order and free from damage. If we are liable to you for delivery of incorrect goods, shortages or delivery damage, our liability is limited (at our option) to either (a) supplying the correct goods, making up the shortage or replacing the damaged Goods or (b) refunding or crediting to you the purchase price of the non delivered or damaged Goods.

6 RETURNS AND CANCELLATION

6.1 Goods may be returned for credit only if we have agreed in writing to such return and only if the Goods are returned to our warehouse at your expense in their original condition and packaging together with a copy of the original packing slip or invoice, within 30 days after the return is agreed.

6.2 You may not vary or cancel an order for Goods, wholly or partly, without our written consent. As a condition of giving our consent, we may require reimbursement of any costs incurred by us in connection with the variation or cancelation.

6.3 We may cancel or suspend an order for Goods that has been accepted by us, wholly or partly, and without liability to you if fulfilling the order becomes impractical or uneconomic due to any cause beyond our reasonable control.

7 CONSUMER GUARANTEES ACT 1993

7.1 If the CGA applies, these Terms shall be read subject to your rights under the CGA.

7.2 Where you are acquiring or hold yourself out as acquiring the Goods for the purposes of a business (as provided in sections 2 and 43 of the CGA), the CGA shall not apply.

7.3 Where you are acquiring the Goods for the purposes of resale, your terms of trade applying to the resale (and, if your customers acquire the Goods for the purposes of resale, their terms of trade and the terms of trade of each other person in your distribution chain) must include a provision having the same effect as clause 7.2. You agree to indemnify us, on demand, against any liability under the CGA as a result of any failure by you, your customers or any other person in your distribution chain to include such a provision.

8 WARRANTIES AND LIABILITY

8.1 You acknowledge that you have used your own skill and judgment in selecting and purchasing the Goods and that you are responsible for ensuring that the Goods purchased are fit and suitable for the purpose for which they are required. We have no liability if they are not, except as expressly provided in these Terms.

8.2 We warrant that we will), at our option, replace, refund or credit to you the purchase price of Goods supplied to you that are accepted to be defective due to faulty design, materials or workmanship. But this warranty will not apply:

(a) unless you notify us in writing of the defect in sufficient detail for the Goods and the defect to be clearly identified as soon as practicable after the defect is discovered;

(b) unless your claim under this clause 8.2 is made within 12 months of delivery of the relevant Goods;

(d) unless, if requested to do so by us, you return the Goods to us at your expense;

(e) where the defect arises from fair wear and tear, willful damage, negligence, failure to follow applicable instructions, misuse, improper shipping and/or storage conditions.

8.3 To the fullest extent permitted by law:

(a) our obligations and liability under these Terms are in substitution for, and to the exclusion of, all other warranties, representations, conditions or obligations imposed or implied by law, statute, trade, custom or otherwise in relation to the Goods;

(b) all warranties (other than the warranty contained in clause 8.2) representations, conditions or obligations whether imposed or implied by law, statute, trade, custom or otherwise are expressly excluded;

(c) all liability for any loss of profit loss of revenue, loss of production, loss of business or loss of data (whether direct or indirect) or for any indirect, special or consequential loss or damage of any kind is expressly excluded;

(d) where you have a claim against us in connection with any defect in or non-compliance of Goods or any other breach of our obligations to you (including, without limitation, any breach of the warranty in clause 8.2) our total liability shall not exceed the price of the Goods to which the claim relates;

(e) while we will make every effort to ensure the accuracy of any advice, recommendation, information or assistance provided by us in relation to the Goods, we do not accept any liability or responsibility in relation to such advice, recommendation, information or assistance; and

(f) the exclusions and limitations of liability contained in these Terms apply whether the liability arises by way of indemnity, warranty, breach of contract, tort (including, but not limited to negligence) equity or any other legal principle or doctrine.

9 PERSONAL PROPERTY SECURITIES ACT 1999

9.1 You acknowledge and agree that, by accepting these Terms, you grant us a security interest over the Goods and their proceeds (by virtue of the retention of title in clause 4).

9.2 You undertake to:

(a) do all acts and provide us on request all information we reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; and

(b) advise us immediately in writing of any proposed change in your name or other details on the Personal Property Securities Register.

9.3 You:

(a) waive your right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest;

(b) waive your rights and, with our agreement, contract out of your rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA; and

(c) agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and, with our agreement, contract out of such sections.

9.4 Unless the context otherwise requires, the terms and expressions used in this clause 9 have the meanings given to them in, or by virtue of, the PPSA.

10 PRIVACY

10.1 You authorise us to collect and hold personal information about you from any source we consider appropriate, to be used for credit, administration, service and marketing purposes. You further authorise us to disclose personal information about you held by us to any other person for these purposes.

10.2 You authorise any person to give us information about you that we may require in response to our credit and other enquiries. You authorise us to provide credit related information about you to any credit reference agency or other person.

10.3 Where used in this clause 10, the word “you” includes your directors and shareholders (if you are a company), your partners (if you are a partnership) and your trustees (if you are a trust).

10.4 You understand that if you are a natural person you have a right of access to, and may request correction of, personal information held by us about you under the Privacy Act 1993.

11 INTELLECTUAL PROPERTY

11.1 Neither we nor our suppliers transfer to you any right, title or interest in any copyright, trademarks, patents, or other intellectual property rights in or relating to the Goods.

11.2 Ownership of Goods formulations developed by us shall remain vested in us, unless and until an ownership transfer agreement is executed by both parties.

12 GENERAL TERMS

12.1 Errors or Omissions: Clerical errors or omissions, whether in computation or otherwise, in any quotation, acknowledgment or invoice may be corrected by us.

12.2 Orders and Credit: We may at any time decline to accept any order placed by you (in whole or in part), change your credit limit, place your credit account on hold or stop (or otherwise refuse to provide you with further credit) or close your credit account.

12.3 No set off: You may not withhold payment or make any deductions from or set off any amount against any amounts owing to us without our prior written consent.

12.4 Force Majeure: We will not be liable for any failure to comply with these Terms where such failure has been caused directly or indirectly by an event or circumstance that is beyond our reasonable control.

12.5 Amendments: We may amend these Terms from time to time by notice to you in writing. The amended Terms will apply in respect of all orders made by you after the date of this notice. Publication of the amended Terms on our website (www.unipharmnz.co.nz) will be considered to be notice to you in writing of the amended Terms.

12.6 Waiver: No delay or failure by us to exercise our rights under these Terms operates as a waiver of those rights. A partial exercise of those rights does not prevent their further exercise in the future.

12.7 Severability: If any part of these Terms is held to be invalid or unenforceable, the part concerned shall be deleted from the rest of these Terms, which will then continue in force.

12.8 Law: These Terms will be interpreted in accordance with and governed by the laws of New Zealand, and the New Zealand Courts will have non-exclusive jurisdiction in respect of all matters between you and us.

13 DEFINED TERMS AND INTERPRETATION

13.1 In these Terms, the following words have the following special meanings: “CGA” means the Consumer Guarantees Act 1993;

“Goods” means any goods supplied by us to you as set out in an Order or Purchase Agreement;

“PPSA” means the Personal Property Securities Act 1999;

Order means an agreement between you and us to supply Goods for a specified price, subject to the terms and conditions of such offer and these Terms.

Purchase Agreement means Purchase Order, Contract, or other similar agreement that sets out all commercial terms regarding the supply of specified Goods between you and us.

“Terms” means these terms of trade (as amended from time to time by us);

“we”, “our”, “us” means Unipharm Healthy Manufacturing Co., Ltd. and/or any of its related companies (as defined in the Companies Act 1993) from time to time ; and

“you” and “your” means the person purchasing the Goods from us.

13.2 For convenience, these Terms have been grouped under different headings, but the headings do not affect the meaning of these Terms.

13.3 In these Terms:

(a) references to any law include any changes to that law which are in force from time to time; and

(b) unless the context requires otherwise, a reference to a person includes a natural person, a company, an authority or any other entity.