Terms and Conditions for Sale of Goods by MSD Animal Health UK Limited
1.1 In these Terms and Conditions of Sale (these “Conditions”): “MSDAH” means MSD Animal Health UK Limited, registered office Walton Manor, Walton, Milton Keynes MK7 7AJ, UK and registered in England & Wales with company number: 946942; the “Purchaser” means the person, firm or company purchasing goods or materials (the “Goods”) from MSDAH; each of MSDAH and the Purchaser shall be a “Party”, and together they shall be the “Parties” to these Conditions; and “Contract” means an agreement between the Purchaser and MSDAH for the purchase of the Goods, of which these Conditions form part.
- BASIS OF CONTRACT
2.1 A quotation for the Goods given by MSDAH shall not constitute an offer. Each order or acceptance of a quotation for the Goods constitutes an offer by the Purchaser to MSDAH to buy the Goods in accordance with these Conditions. The Purchaser is responsible for ensuring that the terms of the order are complete and accurate.
2.2 Orders submitted to MSDAH with the Purchaser’s standard terms may be accepted on the understanding that the form is used for convenience only and that the Purchaser’s standard terms shall not apply.
2.3 These Conditions apply to and supersede any terms and conditions oral or written referred to, offered or relied on by the Purchaser, whether in negotiation or at any other time in the dealing between MSDAH and the Purchaser. The Contract and these Conditions encompass the whole agreement reached between MSDAH and the Purchaser.
2.4 The Contract constitutes the entire agreement between the Parties. The Purchaser acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of MSDAH which is not set out in the Contract.
- TITLE AND RISK
3.1 The risk and title in the Goods shall pass to the Purchaser on completion of delivery to the Purchaser’s designated premises, the carrier nominated by the Purchaser or the Purchaser’s purchaser (whichever shall occur first).
- PRICE AND PAYMENT
4.1 All discount rates, prices and pack sizes are subject to alteration and are quoted for delivery in the United Kingdom, Channel Islands and the Isle of Man. All prices quoted by MSDAH are exclusive of VAT.
4.2 The price payable for the Goods shall be the price applicable at the date on which MSDAH accepts the Purchaser’s order.
4.3 Payment is due and must be received by MSDAH within the period specified on the invoice. MSDAH shall have the right to withhold supplies of the Goods in the event of payment for outstanding invoices not having been received by the due date.
4.4 The Purchaser shall make all payments due under these Conditions in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by MSDAH to the Purchaser.
4.5 Notwithstanding any other terms stated in these Conditions, MSDAH reserves the right to impose such credit limit or other payment terms as it deems fit and/or require that the Goods be paid for in cleared funds before delivery.
4.6 MSDAH may charge interest on unpaid amounts from the due date of payment of a valid invoice (provided that such invoice complies with the requirements of this clause) at the rate of 4% per annum above the Barclays Bank’s base lending rate from time to time. MSD shall be entitled to sue for the price of Goods in case of unpaid invoices.
- SPECIFICATION ALTERATIONS
5.1 MSDAH reserves the right to alter the specification of any Goods without prior reference to the Purchaser provided that the Goods comply in all other known respects with the Purchaser’s requirements.
6.1 When it is necessary for the Purchaser to do any act to enable MSDAH to despatch the Goods, such act must be performed in good time to enable MSDAH to effect despatch on the agreed delivery date (or if no such date is agreed, within seven (7) days of acceptance of the order). In the event of the Purchaser’s failure to comply with this Condition 6.1, MSDAH may at its option terminate the Contract in whole or in part by giving written notice thereof to the Purchaser.
6.2 All delivery dates are estimates only and MSDAH shall not be liable in damages for any delay in delivery. If MSDAH does not deliver within 30 days of the agreed delivery date, the Purchaser may then cancel the order in whole or in part by serving written notice on MSDAH to that effect and MSDAH shall have no further liability in relation to the cancelled order.
6.3 Goods are despatched by a route at MSDAH’s discretion. Where the Purchaser requests despatch of the Goods by a special method or route, the Purchaser shall bear the additional cost. In the case of carriage by MSDAH’s vehicles or by its nominated carriers, delivery shall take place when the Goods reach the Purchaser’s place of business or such other place as may be notified in writing to MSDAH by the Purchaser. In all other circumstances delivery shall take place when the Goods come within the possession or control (actual or constructive) of the Purchaser. The Purchaser must sign for all deliveries.
6.4 MSDAH may deliver the Goods by separate instalments and invoice each instalment separately. Each instalment shall be a separate Contract and no breach, cancellation or termination of any one Contract relating to an instalment shall entitle the Purchaser to repudiate, terminate or cancel any other Contract or instalment, provided however that MSDAH may suspend delivery of any instalment whilst payment is overdue in respect of any previous instalment.
6.5 Subject to this Condition 6.5, all returnable containers and pallets used in connection with deliveries shall remain the property of MSDAH. Unless otherwise agreed, the Purchaser shall pay, MSDAH’s any deposit charges as applicable at the time of delivery, as security for the return of such containers without discount when the invoice for the contents is paid and such deposit will only be repaid if the containers are returned at the Purchaser’s expense in good condition within six (6) months of the date of delivery, otherwise the deposit shall be forfeited to MSDAH and MSDAH shall have the right to invoice the Purchaser the replacement cost of such containers. Where no deposit is charged at the time of delivery and if the containers are not returned to MSDAH within a period of six (6) months, in good order and condition, then the Purchaser will reimburse MSDAH the replacement cost of such containers.
7.1 MSDAH shall not be liable for any non-delivery of the Goods (even if caused by MSDAH’s negligence) unless the Purchaser gives written notice to MSDAH of the non-delivery within 10 days of the date when the Goods would in the ordinary course of events have been received. The Purchaser shall indemnify MSDAH against any loss arising or damage suffered through the Purchaser’s failure to inform the carriers or the insurers of the non-delivery within the required time limits.
8.1 The Purchaser shall inspect the Goods immediately upon delivery. The Purchaser must notify MSDAH in writing of:
a) delivery of incorrect quantities of any Goods;
b) any alleged defect in or damage to the Goods which ought to be apparent on such an inspection;
in each case within three (3) days of the delivery. If no claim is made by that date the delivery shall be deemed to be in accordance with the Contract, although this will not prevent the Purchaser subsequently making a claim in relation to a latent defect in the Goods that was not discovered on any such inspection. Any such notice must specify the particular defect and the Purchaser must afford MSDAH reasonable opportunity to inspect the Goods in question.
8.2 If the Goods are agreed by MSDAH to be defective or faulty MSDAH may, at its sole option, either rectify the defect or fault or replace any such Goods or credit the invoice value of the Goods and such rectification or replacement or credit will be in full satisfaction of any claim by the Purchaser.
9.1 MSDAH retains complete discretion as to acceptance of the return of any Goods for exchange and/or credit. No Goods will be accepted for return unless prior written approval is obtained. Any application for credit or returns of Goods may only be made to MSDAH after the expiry date of such Goods and no later than 6 weeks after the date of expiry of such Goods.
- SUB-STANDARD/SURPLUS STOCK
10.1 Any Goods sold as sub-standard or surplus stock shall be accepted by the Purchaser in their actual state and condition and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded with respect to such stock.
- RESALE AND EXPORTS
11.1 Purchaser must ensure that the Goods should not be resold or supplied:
a) after their expiry date; and
b) where a Good is available only on prescription, except by or to a veterinary practice or to a person possessing a prescription for that Good
11.2 The Purchaser shall not export, market or sell any Good in or for resale in countries which are not in the European Economic Area (the “EEA”), or to any third party in the EEA which the Purchaser knows is reasonably likely to export, market or sell the Goods outside the EEA. For resales to purchasers located outside the United Kingdom but within the EEA, the Purchaser should satisfy itself that any and all relevant local requirements regarding registration, licensing, packaging, labelling and sale, and any other matters, if any, required by the relevant country of sale and by the United Kingdom are complied with in respect of such Goods. The Purchaser shall indemnify MSDAH from and against any loss, damage or expense suffered or incurred by MSDAH as a result of any failure by the Purchaser to comply with the laws and regulations that apply to the Purchaser’s distribution and sale of the Goods.
- INTELLECTUAL PROPERTY
12.1 The supply of the Goods by MSDAH shall not confer any right upon the Purchaser to use any of MSDAH’s trade marks without prior written consent of MSDAH and at all times such trade marks shall remain the property of MSDAH, nor does it imply any right to use any of MSDAH’s patents or any indemnity against infringement of third party patents.
- REPRESENTATION AND WARRANTY
13.1 The Purchaser shall not give any warranty or make any representation purportedly on behalf of MSDAH except when expressly authorized by MSDAH to do so.
- LIABILITY AND INDEMNITY
14.1 To the fullest extent permissible by law, MSDAH shall not, under any circumstances, be liable for any loss of revenue, business contract, anticipated savings, profits, data or information, damage to property, or any indirect or consequential loss howsoever arising whether from negligence, breach of contract or otherwise. Nothing in the Contract or these Conditions shall limit or exclude the liability of MSDAH for:
a) death or personal injury resulting from negligence; or
b) fraud or fraudulent misrepresentation; or
c) any matter which it would be illegal for MSDAH to exclude or attempt to exclude.
14.2 The Purchaser shall indemnify MSDAH against all liabilities, costs, expenses, damages and losses (including legal fees and expenses) incurred by MSDAH arising out of or in connection with any claim made against MSDAH by a third party arising out of, or in connection with, the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance by the Purchaser, its agents or subcontractors.
- FORCE MAJEURE
15.1 MSDAH shall not be liable for any failure to observe, or breach of, any of the terms hereof by reason of acts of God, war, riots, acts of terrorism, civil commotions, strikes, lock-outs, trade disputes, fires, breakdowns, interruptions of transport, Government action, disease, pandemic or epidemic, delay in delivery by MSDAH’s suppliers, or any other cause whatsoever beyond its reasonable control. In such circumstances, except where the Goods are in transit, either MSDAH or the Purchaser may terminate the unperformed part of any Contract by notice in writing delivered to the other Party within 14 days of MSDAH giving written notice to the Purchaser of the occurrence of such action or circumstance as makes MSDAH fail to observe or breach the terms hereof.
16.1 Without prejudice to any other rights or remedies MSDAH may have under these Conditions or otherwise, MSDAH may, at its discretion, terminate the Contract
a) the Purchaser fails to make any payment by the due date or becomes bankrupt;
b) the Purchaser passes a resolution for winding up or a court of competent jurisdiction makes an order that the Purchaser be wound up (in either case) otherwise than for the purpose of bona fide reconstruction or amalgamation;
c) a receiver, trustee in bankruptcy, administrator, administrative receiver or similar officer is appointed over or in respect of the Purchaser’s undertaking, property or assets or any part thereof;
d) the Purchaser makes or attempts to make any arrangement with or for the benefit of its creditors or is unable to pay its debts as they fall due; or
e) the Purchaser ceases to carry on business, in which case MSDAH shall have the option to withhold or cancel further deliveries of Goods, provided that failure on MSDAH’s part to exercise this option in respect of one or more deliveries shall not affect MSDAH’s right to exercise it in respect of other deliveries.
16.3 Termination of the Contract does not affect the accrued rights and liabilities of the Parties or the enforceability of any provisions of the Contract or these Conditions that are intended to remain in force after its termination.
16.4 On termination of the Contract for any reason, the Purchaser shall immediately pay to MSDAH all of MSDAH’s outstanding unpaid invoices and interest.
16.5 Termination of the Contract, howsoever arising, shall not affect any of the Parties’ rights, remedies, obligations and liabilities that have accrued as at termination
16.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
- GENERAL PROVISIONS
17.1 Assignment and other dealings: The Purchaser shall not, without MSDAH’s prior written consent, assign or transfer or purport to assign or transfer the Contract or the benefit thereof to any other person whomsoever. These Conditions shall be binding upon, and shall insure to the benefit of, the Parties and their respective successors and permitted assigns.
17.2 Conflicts of Interest: In its performance of the Contract the Purchaser shall adhere to the business practices that are in accordance with the letter and spirit of applicable laws (including, but not limited to, the US Foreign Corrupt Practices Act 1977 and the UK Bribery Act 2010, and ethical principles as follows:
a) All transactions in connection with the Contract shall be accurately reflected in the Purchaser’s records, and no funds or other assets shall be paid directly or indirectly to government officials or persons acting on their behalf or to representatives of the other businesses for the purpose of influencing government decisions or actions with respect to MSDAH’s business;
a) The Purchaser shall conduct its activities hereunder so as to avoid loss or embarrassment to MSDAH due to any real or apparent conflict of interest, and to require that all sub-contractors comply with such policy in connection with the Contract; and
b) MSDAH shall have the right to terminate the Contract, without any penalty or obligation to pay damages, upon violation of the business practices mentioned in this Condition by the Purchaser, its employees, agents, representatives, sub-contractors or consultants.
17.3 Data Privacy and Security: “Personal Information” shall mean any information or set of information that identifies, or is used by, or on behalf of, MSDAH to identify an individual. Each Party shall comply with Data Protection Law in connection with its obligations under this Agreement. For the purposes of this Clause, “Data Protection Law” means any applicable data protection or privacy laws to which either Party, as applicable, is subject in connection with this Agreement.
17.4 Notices: Any notice required to be served by either Party on the other shall be served at the addresses set on the Purchaser’s purchase order or as otherwise notified by one Party to the other. Notice shall be effective: (i) in the case of service by post, at the expiration of two business days after the day of un-returned posting; (ii) in the case of facsimile transmission at the normal close of business of the recipient on the day on which it is sent or (if received on a non-business day) on the close of business of the next following business day; or (iii) in the case of personal service, when it is delivered. No other form of notice (including e-mail) shall be effective as between the Parties.
17.5 Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
17.6 Waiver: A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.7 Third party rights: A person who is not a party to the Contract shall not have any rights to enforce its terms.
17.8 Variation: Unless otherwise agreed in writing by MSDAH, the Goods are supplied by MSDAH only on these Conditions and no variation or addition to these Conditions shall have effect unless MSDAH has signed a written agreement specifically referring to those terms and agreeing that they will so apply.
17.9 Governing law: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
17.10 Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).