Terms & Conditions of Sale

Pharmaco (N.Z.) Limited

Terms and Conditions of Sale (Terms)

1. General

1.1 These Terms apply to all orders for Products placed by the Buyer with Pharmaco (N.Z.) Limited (Pharmaco) and all Products supplied by Pharmaco to the Buyer. These Terms apply to the exclusion of the Buyer’s terms of trade (if any).

1.2 Notwithstanding clause 1.1, Pharmaco may by written notice to the Buyer alter or replace these Terms from time to time. All orders placed subsequently by the Buyer and all Products supplied subsequently by Pharmaco shall be upon the altered or replaced Terms.

1.3 Where the Products constitute a “hazardous substance” within the meaning of the HSNOA, the Products are supplied on the understanding that the Buyer is an exempt entity under Section 33(a) of the HSNOA.

2. Prices and Orders

2.1 Pharmaco’s prices are subject to alteration without notice. Prices are based upon current rates and costs of materials, transport, labour, customs duty, insurance and other rates and costs and the prices payable shall be the prices ruling at the time the Products are made available adjusted to take account of changes in such rates and costs.

2.2 Pharmaco shall only be responsible to comply with the regulations, bylaws, codes and standards specified in the Contract and Pharmaco shall be under no liability whatsoever for any failure to meet any other regulations, bylaws, codes and standards. In the event of there being any changes in any regulations, bylaws, codes or standards with which Pharmaco is obliged to comply after the Date of the Contract, then any additional costs in meeting any such changes shall be to the account of the Buyer.

2.3 Unless otherwise stated, prices are exclusive of GST and any other taxes or duties, insurance, freight and handling charges in relation to the sale and delivery of the Products and the Buyer shall pay GST and any other taxes and duties, insurance, freight and handling charges in addition to the price stipulated.

2.4 Orders must be placed by the Buyer in writing or in such other manner as Pharmaco may stipulate.

2.5 No order shall be binding on Pharmaco until accepted in writing by Pharmaco or a person authorised on its behalf.

2.6 Orders once accepted by Pharmaco may not be cancelled without the prior written approval of Pharmaco.

2.7 Each accepted order shall, subject to clause 4.3, constitute a separate contract for the supply of the particular Products on these Terms (Contract).

2.8 Orders received by Pharmaco from the Buyer for quantities of Products less than the quantity in a standard outer pack may, if accepted by Pharmaco, be increased to the quantity comprising one standard outer pack. Orders for more than standard outer pack quantities may, if accepted, be increased to the quantity comprising the next multiple of the standard outer pack. The minimum quantities for Products sold by Pharmaco applicable from time to time will be advised by Pharmaco in price lists or otherwise.

2.9 Pharmaco will not be bound by clerical errors or omissions whether in computation or otherwise in any quotation, acknowledgment or invoice and the same shall be subject to correction.

3. Payment

3.1 Payment shall be made at a time specified in writing by Pharmaco, or if no time is specified, then by the 20th day of the month following the month of supply. Any additional payments due by the Buyer pursuant to any of the provisions of the Contract shall be paid at the time provided in the Contract or, if no time is provided, within 7 days of payment being demanded in writing by Pharmaco. Payment shall be made without withholding, deduction or set-off in the manner specified by Pharmaco.

3.2 Where any payment is not made on the due date, then without prejudice to any other rights or remedies available to Pharmaco under these Terms or at law or in equity or otherwise Pharmaco may:

(a) charge interest, by way of liquidated damages, on all overdue accounts at the rate of 3% above Pharmaco’s bank’s indicator lending rate from time to time calculated on a daily basis from the date on which payment was due until payment is made;

(b) withhold deliveries or cancel undelivered orders or portions of such orders, retain as liquidated damages any moneys paid by the Buyer and sue the Buyer for damages; or

(c) cancel any other Contract between Pharmaco and the Buyer or suspend the performance of such Contract pending payment without being liable to the Buyer for any losses of any kind that it might suffer.

3.3 If Pharmaco shall at any time deem the credit of the Buyer to be unsatisfactory it may require security for payment and may suspend performance of its obligations under the Contract until the provision of sufficient security.

3.4 The Buyer shall upon demand reimburse Pharmaco for all costs (including legal costs on a solicitor/client basis), expenses or other sums incurred by Pharmaco in the recovery of any moneys due or as a result of such suspension and any recommencement, which sum shall also carry interest at the rate specified in clause 3.2(a) if unpaid within one calendar month of demand having been made.

3.5 Pharmaco may apply any payments received from or on behalf of the Buyer in reduction of the Amount Owing in such order and manner as Pharmaco thinks fit.

4. Delivery

4.1 Pharmaco will use its best endeavours to deliver the Products at the time requested by the Buyer but will not be responsible for any loss or damage (in either case, of any kind and whether direct, indirect or consequential) arising from any delay in the delivery of the Products from any cause whatsoever nor shall any such delay entitle the Buyer to cancel any order or refuse to accept delivery at any time or refuse or delay payment for the Products.

4.2 Delivery shall be made at the place indicated in the Contract. If the Buyer fails or refuses or indicates to Pharmaco that it will fail or refuse to take or accept delivery, then the Products shall be deemed to have been delivered when Pharmaco was willing to deliver them.

4.3 Pharmaco reserves the right to deliver the Products by instalments and each instalment shall be deemed to be a separate Contract under the same provisions as the main Contract. Should Pharmaco fail to deliver or make defective delivery of one or more instalments this shall not entitle the Buyer to cancel the separate Contract for that particular instalment (if applicable), or the Contract for all the Products or any other Contract.

4.4 Due to the nature of the Products, the contents may be subject to damage in transit to the Buyer. In an effort to minimise delay in resolution of a damage or shortage claim, all orders should be counted and inspected prior to acceptance of delivery from the carrier. Any exception should be noted on the carrier's consignment note and the driver should counter-sign that document. All claims for damage and shortage must be received by Pharmaco’s Customer Services within 7 days of delivery of the Products.

4.5 If the Buyer fails to advise Pharmaco in writing of any damage or shortage within 7 days of delivery of the Products, the Buyer is deemed to have accepted the Products and to have accepted that the Products accord with the Contract. Nothing in this clause affects the Buyer's rights for any alleged failure of a guarantee under the CGA.

4.6 Without prejudice to any other rights and remedies which it may have, Pharmaco may charge the Buyer for storage, handling and transportation expenses if the Buyer fails or refuses to take or accept delivery or indicates to Pharmaco that it will fail or refuse to take or accept delivery of the Products.

5. Product Returns

5.1 If the Buyer believes that a Product is defective, the Buyer should isolate the Product and contact Pharmaco’s Customer Services to authorise return. Pharmaco will advise if a sample from the relevant batch (which may include used or contaminated Products) is required to be evaluated.

5.2 The Buyer may not return the Products for credit without the prior written approval of Pharmaco.

5.3 When seeking approval, the Buyer must supply the following details: Packing Slip number, Date products received, Product code, Batch number, Expiry date, Reason for return and Quantity involved, which must be in multiples of the minimum order quantity.

5.4 Once authorisation has been obtained the Buyer will be allocated a "Returned Goods Authorisation" (RGA) reference number. The RGA number must be displayed on the outer packaging and quoted on all documentation.

5.5 Returns should be made in the original intact shelf-package with a copy of the packing slip and other relevant documentation.

5.6 Products must be returned within 14 days of delivery to be eligible for credit.

5.7 Products approved for return for reasons other than Pharmaco’s error are to be returned freight prepaid to Pharmaco’s warehouse of despatch and may be subject to a restocking fee of $25 (plus GST).ates to Pharmaco that it will fail or refuse to take or accept delivery of the Products.

6. Risk

6.1 Risk of any loss, damage or deterioration of or to the Products shall be borne by the Buyer from the time of delivery of the Products to the Buyer.

6.2 Until ownership in the Products passes to the Buyer, the Buyer shall keep the Products insured in the names of Pharmaco and the Buyer for their respective rights and interest and will produce to Pharmaco upon demand evidence of such insurance. If the Buyer defaults in the performance of its obligations under this clause, Pharmaco shall be entitled to insure the Products and the cost of effecting such insurance shall be payable by the Buyer to Pharmaco upon demand.

6.3 If any of the Products are damaged or destroyed prior to ownership passing to the Buyer, Pharmaco shall be entitled, without prejudice to any of its other rights or remedies under the Contract, to receive all insurance proceeds which are payable in respect of the Products (whether or not the price of such Products has become payable under the Contract) and the production of these Terms by Pharmaco shall be sufficient evidence of Pharmaco’s right to receive payment of such insurance proceeds without the need for further enquiry by any person dealing with Pharmaco.

7. Ownership

7.1 Ownership of the Products shall be retained by Pharmaco until, and shall only pass to the Buyer when, the Buyer:

(a) pays the Amount Owing in full; or

(b) re-sells the Products pursuant to the authority granted by these Terms.

7.2 Notwithstanding that ownership of the Products is retained by Pharmaco, the Buyer is authorised to sell the Products in the ordinary course of business, provided that such authority shall be automatically revoked if an Event of Default occurs.

7.3 For so long as ownership of any of the Products is retained by Pharmaco, the Buyer will, if so required by Pharmaco, store those Products separately and will clearly identify such Products as the property of Pharmaco.

7.4 Where Products in respect of which ownership has not passed to the Buyer are sold by the Buyer pursuant to the authority granted by clause 7.2 any book debt created upon the sale of such Products and the proceeds of sale of such Products, when received by the Buyer, shall be held upon trust by the Buyer for Pharmaco and any proceeds of sale so received by the Buyer shall be placed in a separate bank account and shall first be applied towards the satisfaction of all indebtedness of the Buyer to Pharmaco with any balance being retained by the Buyer. Notwithstanding anything to the contrary in these Terms, Pharmaco authorises the Buyer to deal with any such proceeds of sale received by the Buyer as if such proceeds of sale were the absolute property of the Buyer provided that such authority shall be automatically revoked if an Event of Default occurs.

7.5 The Buyer must advise Pharmaco immediately of any Event of Default or any action by third parties (including any of its creditors) affecting Pharmaco’s interest in the Products.

8. PPSA

8.1 Unless the context otherwise requires, words and phrases have the meanings given to them in, or by virtue of, the

8.2 Without limiting anything else in these Terms, the Buyer acknowledges that these Terms create, in favour of Pharmaco, a security interest in all Products supplied by Pharmaco to (or for the account of) the Buyer whether now or in the future and the proceeds of their sale to secure the payment by the Buyer to Pharmaco of the Amount Owing.

8.3 The Buyer shall:

(a) promptly do all things, sign any further documents and/or provide any information which Pharmaco may reasonably require to enable Pharmaco to perfect and maintain the perfection of its Security Interest (including by registration of a financing statement or financing change statement);

(b) give Pharmaco not less than 14 days’ prior written notice of any proposed change in the Buyer’s name trading name, address or other contact details.

(c) The Buyer waives its right to receive a verification statement in respect of any financing statement or financing change statement relating to the Security Interest under the PPSA and agrees that as between Pharmaco and the Buyer, the Buyer shall have no rights under (or by reference to) sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 129, 131, 132, 133 and 134 of the PPSA and where Pharmaco has rights in addition to those in part 9 of the PPSA, those rights shall continue to apply.

9. Representations, Warranties and Liability

9.1 Pharmaco makes no representations and, to the maximum extent permitted by law, gives no warranties or guarantees in relation to the Products including any warranties and guarantees implied by law or custom and accepts no liability for any representations, and, to the maximum extent permitted by law, accepts no liability for any warranties or guarantees, not expressly set out in these Terms or otherwise in writing by an authorised agent or representative of Pharmaco.

9.2 The CGA may provide the Buyer with certain guarantees which are not excluded by clause 9.1. Where liability for breach of any such guarantee can be limited, Pharmaco's liability (if any) arising from any breach of those guarantees is limited to the replacement or repair of the Products or the costs of resupply or replacement of the Products.

9.3 To the maximum extent permitted by law, Pharmaco shall not be liable for any consequential, indirect or special loss, damage or injury of any kind, including any loss of profits or revenue, suffered by the Buyer arising from any breach of any of Pharmaco’s obligations arising under or in connection with the Contract or from any cancellation of the Contract or from any other act or omission on the part of Pharmaco, its servants, agents or contractors nor shall Pharmaco be liable for any loss, damage or injury caused to the Buyer’s servants, agents, contractors, customers, visitors, tenants, trespassers or other persons whomsoever (whether similar to the foregoing or not) arising as aforesaid. The Buyer shall indemnify Pharmaco against any claim by any of the foregoing persons in respect of any such loss, damage or injury.

9.4 To the maximum extent permitted by law, and notwithstanding anything to the contrary in these Terms, the liability of Pharmaco, whether in contract or in tort or otherwise shall not in aggregate exceed the price of the Products.

9.5 For the purposes of section 5D of the FTA, Pharmaco and the Buyer agree to contract out of sections 9, 12A, 13 and 14(1) of the FTA.

10. CGA

10.1 Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any legislation applicable to the sale of goods or supply of services which cannot be so excluded, restricted or modified, including the CGA. Specifically and without limiting the foregoing, where the Buyer is considered a consumer under the CGA, nothing in these Terms restricts, limits or modifies the Buyer's rights or remedies against Pharmaco for failure of a statutory guarantee under the CGA.

10.2 The Buyer acknowledges that:

(a) prior to entering into these Terms the Buyer has been given a reasonable opportunity to satisfy itself regarding the Products and that prior to entering into the Contract it has availed itself of that opportunity; and

(b) at no time prior to entering into the Contract has the Buyer relied on Pharmaco's skill or judgment and that it would be unreasonable for the Buyer to do so.

10.3 The Buyer shall not, in relation to the supply by the Buyer of the Products to any third party, give or make any undertaking, assertion or representation to the Products without the prior approval in writing of Pharmaco, and the Buyer indemnifies Pharmaco against any liability or cost incurred by Pharmaco as a result of any breach by the Buyer of this provision.

10.4 The Buyer shall, in relation to any supply of the Products by the Buyer to a third party, contract out of the provisions of the CGA to the extent that the Buyer is entitled to do so under the CGA and indemnifies Pharmaco against any liability or cost incurred by Pharmaco under the CGA as a result of any breach by the Buyer of this provision.

11. Force Majeure

11.1 Neither party (Affected Party) shall be responsible to the other party for failure to perform any of its obligations due to causes beyond its control (Force Majeure Event) including work stoppages, fires, civil disobedience, riots, rebellions, acts of God and similar occurrences (but excluding a lack of funds on the part of the Affected Party) provided that the Affected Party shall use all reasonable endeavours to overcome the Force Majeure Event and to mitigate its effects.

12. Default

12.1 If an Event of Default occurs:

(a) Pharmaco may suspend or terminate any Contract;

(b) the Amount Owing shall immediately become due and payable notwithstanding that the due date has not arisen;

(d) Pharmaco may (without the consent of the Buyer) appoint a receiver in respect of any Products and any receiver is authorised to do anything referred to in these Terms and otherwise to exercise all rights and powers conferred on a receiver by law.

12.2 The Buyer agrees that, at any time after an Event of Default has occurred and is continuing or at any time if any Products are at risk, Pharmaco may:

(a) take possession of any Products; and/or

(b) sell or otherwise dispose of any Products,

in each case in such manner and generally on such terms and conditions as it thinks fit, and, in each case, otherwise do anything the Buyer could do in relation to those Products. As the Buyer’s agent, Pharmaco (and its employees and agents) may, without prior notice, enter any land or premises where the Products are kept in order to take possession of and/or remove them, without being responsible for any damage caused in doing so. The Buyer agrees to procure all other rights (including consents) necessary to enable, and to indemnify Pharmaco (and its employees and agents) against any liability incurred in connection with, such entry, taking of possession and removal. Pharmaco may resell any of the Products and apply the proceeds of sale in reduction of the Amount Owing.

13. Use of Information

13.1 Where the Buyer is an individual, Pharmaco’s Privacy Policy (found on its website) applies to any personal information which may be collected regarding the Buyer.

13.2 The following provisions apply to the extent permitted under Privacy Act and shall be read subject to the Privacy Act.

13.3 The Buyer agrees that Pharmaco may obtain information about the Buyer from the Buyer or any other person (including debt collection agencies) in the course of Pharmaco’s business, including credit assessment, debt collecting and direct marketing activities, and the Buyer consents to any person providing Pharmaco with such information.

13.4 The Buyer agrees that Pharmaco may use any information it has about the Buyer relating to the Buyer’s creditworthiness and give that information to any other person (including any credit or debt collection agency) for credit assessment and debt collection purposes. The Buyer agrees that any other information collected by Pharmaco about the Buyer is accessed or collected for use in the course of its business, including direct marketing activities.

13.5 The Buyer must notify Pharmaco of any change in circumstances that may affect the accuracy of the information provided by the Buyer to Pharmaco or any related company.

14. Waiver

14.1 All the original rights, powers, exceptions and remedies of Pharmaco shall remain in full force notwithstanding any neglect, forbearance or delay in enforcement. Pharmaco shall not be deemed to have waived any condition unless such waiver is in writing under signature of an authorised officer of Pharmaco and any such waiver shall apply to and operate only in a particular transaction, dealing or matter.

15. Severability

15.1 If any part of these Terms is held by any Court to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of these Terms.

16. Rights, Powers and Remedies

16.1 The rights, powers and remedies provided for in these Terms are in addition to, and do not limit or exclude (or otherwise adversely affect), any right, power or remedy provided to either party by law.

17. Governing Law

17.1 These Terms are governed by and construed in accordance with New Zealand law and the parties submit to the non‑exclusive jurisdiction of the courts of New Zealand.

17.2 The United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) shall not apply to these Terms.

18. Definitions and Interpretation

18.1 In these Terms:

Amount Owing means, at any time, the unpaid price charged by Pharmaco for the Products, and any other sums which Pharmaco is entitled to charge under these Terms or which are otherwise owing by the Buyer to Pharmaco.

CGA means the Consumer Guarantees Act 1993.

Date of the Contract where the Contract arises from an order placed by the Buyer, means the date of acceptance of the order by Pharmaco; or where the Contract arises from a quotation given by Pharmaco, means the date upon which written notification of acceptance of the quotation is received by Pharmaco or, where there is no written notification of acceptance, means the date of such other form of acceptance as Pharmaco in its discretion determines to treat as a valid acceptance (such as an example, the supply of Products).

Event of Default means an event where:

(a) the Buyer fails to comply with these Terms or any other agreement with Pharmaco;

(b) the Buyer is subject to any event which is in the nature of dissolution, winding up, bankruptcy, liquidation, administration, insolvency or receivership, or which generally precedes such an event;

(c) an event occurs or information becomes known to Pharmaco, which in Pharmaco’s opinion, might materially affect the Buyer’s creditworthiness, the value of the Products the subject of the Security Interest, or the Buyer’s ability or willingness to comply with its obligations under these Terms or any other agreement with Pharmaco; or

(d) any guarantor of the Buyer’s obligations under these Terms is in default under any agreement with Pharmaco.

FTA means the Fair Trading Act 1986.

HSNOA means the Hazardous Substances and New Organisms Act 1996.

PPSA means the Personal Property Securities Act 1999.

Privacy Act means the Privacy Act 2020.

Products means all products supplied from time to time by Pharmaco to the Buyer and, unless the context requires otherwise includes all proceeds of such Products and any product or mass of which the Products subsequently become part.

Person includes a corporation, firm, company, partnership or individual.

Security Interest means the security interest provided for by these Terms.

18.2 In these Terms unless the context otherwise requires:

(a) references to any legislation means that legislation as it is from time to time amended, re‑enacted or substituted and any statutory instruments, regulations and orders issued under that legislation;

(b) a reference to any party under these Terms includes that party’s successors and permitted substitutes and assigns; and