Terms and Conditions of Sale
1. Definitions:
Adverse Event means any untoward medical occurrence, unintended injury disease or injury, or any untoward clinical signs (including an abnormal laboratory finding) in subjects, users or other persons whether or not related to the Bayer Product or medical device. This includes events related to the procedures involved.
Bayer means Bayer Australia Limited (ABN 22 000 138 714)).
Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales or, for deliveries of Products, at the place of delivery.
Contract means a contract for sale as referred to in clause 2.6.
Customer means a person who orders Products from Bayer, whether by telephone, facsimile, email, in person, through Bayer's online ordering system or otherwise.
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 A New Tax System (Goods & Services Tax) Act 1999 (Cth) (as amended).
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 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 2009 (Cth) (as amended from time to time).
Products mean the goods purchased or to be purchased by Customer from Bayer which are the subject of a Contract.
Product Technical Complaint means any report (written, electronic or verbal communication) about a potential or alleged failure of a Bayer product in its quality (including the identity, durability, reliability, safety, efficacy or performance) or suspected counterfeit. The complaint may or may not represent a potential risk to Customer, a patient, or other member of the public.
Recall means the recall or withdrawal from sale of a Product.
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, in its absolute discretion, decline or accept an order in whole or part. Customer acknowledges that acceptance of an order by Bayer does not imply that Bayer will accept any future order(s) placed by Customer.
2.4 Once accepted by Bayer, it will begin fulfillment of the Order and such Order may not be cancelled by Customer (except with the express consent of Bayer).
2.5 Upon 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 No terms or conditions of Customer, including any terms or conditions printed on or referred to in Customer’s offer to purchase or order, are accepted by or will be binding on Bayer or have any legal effect.
3. Price and Payment
3.1 The price for the Products (including any charges for freight and handling costs) is specified in the Contract. If there are changes in pricing, Bayer will communicate such change to the Customer prior to acceptance of an order.
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 the price. Bayer will provide Customer with a tax invoice as required by law.
3.3 Customer must pay for Products supplied to it within 30 days of 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 owing to Bayer 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 invoice.
3.7 Bayer may charge interest on any overdue monies at the rate which is 2% above the rate then charged by Bayer’s major banker for commercial overdraft balances of over $100,000, 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 interest that has accrued.
3.8 Customer will pay to Bayer all reasonable 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 Timeframes estimated 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 Products (or any part of them) or failure to deliver in the requested quantities.
4.3 Bayer may refuse to deliver Products to Customer if it owns Bayer any outstanding monies.
4.4 Delivery of the Products will be made in the manner and at the place specified in the relevant Contract. 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 the Products pursuant to a Contract, provided such delay is communicated to the Customer in advance, Customer may not 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 providing reasonable details of the claim is given to Bayer within 10 Business Days after delivery and provided that Bayer (acting reasonably) acknowledges such shortages or non-conformance.
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 Bayer delivers the Products in accordance with clause 4.5 above, and Customer does not, or indicates to Bayer that it will not, accept delivery, then the Products will be deemed to have been delivered at the time Bayer was willing to deliver them.
4.9 Bayer reserves the right to deliver 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. Bayer’s suspension or cancellation in these circumstances will not constitute any admission of liability or fault by Bayer.
5. Containers and Pallets
5.1 Any pallets or containers used for the delivery, storage or display of 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 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 for those Products in full.
6.2 Risk of loss of or damage to Products will remain with Bayer only until 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 under clause 13, Bayer or its representative may enter premises occupied by Customer to remove any of those Products and may dispose of or retain such Products as Bayer sees fit without being required to give notice or account to Customer. If Products or any of them are wholly or partially attached to or incorporated in any other product, Bayer may disconnect them in any way necessary to remove Products; and
(c) all reasonable costs and expenses incurred by Bayer as a result of taking action in accordance with clause 6.3(b) must be paid by Customer to Bayer on demand.
6.4 Until title to Products passes to Customer, Customer acknowledges and agrees:
(a) 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) any resale of the Products must only be made on the condition the purchaser is expressly made aware of the existence of Bayer’s rights under this clause 6;
(d) 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.
(e) when the proceeds held in trust for Bayer under clause 6.4(d) 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; and
(f) the authority conferred on Customer by clause 6.4(b) may be revoked by written notice from Bayer at any time if Bayer reasonably considers 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 This clause 6 creates a purchase money security interest in the Products, any goods in which the Products are used as a component, and all proceeds from their respective resale by Customer. The security interest is granted to secure Customer’s proper performance of the Agreement, and comes into effect when the Customer takes possession of the Products.
6.6 For the avoidance of doubt the Customer acknowledges and agrees that it grants to Bayer a security interest in all goods supplied by Bayer to the Customer whether now or in the future and in any proceeds from the sale of those goods.
6.7 The parties agree that pursuant to sections 115(1) and 115(7) of the PPSA the following sections of the PPSA will not apply to these Terms and any related Contract (to the extent permitted by law): Sections 95, 96, 117, 118, 121(4) 125, 127 129, 130, 132, 134(2) 135, 136(3), 136(4), 136(5), 137, 142 and 143.
6.8 For the purposes of section 14(6) of the PPSA the parties agree that any payments received by Bayer from the Customer pursuant to or in any way connected with this agreement will be applied in such order as Bayer deems fit in its absolute discretion.
6.9 Customer consents and agrees that:
(a) it must sign all documents and take all steps as Bayer may reasonably require in connection with the registration, perfection and enforcement of this purchase money security interest; and
(b) the security interest created by this agreement or any other document relating to the subject of this agreement may be registered with the relevant authority or public register; and
(c) Bayer is not obliged to give any notice or documents under the PPSA unless the relevant obligation cannot be excluded. Customer waives its right to be provided with verification statements pursuant to section 157 of the PPSA.
7. Warranties
7.1 Bayer warrants that all Products manufactured by Bayer or a Bayer group company 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):
(a) until the end of the registered shelf life of such Product; or
(b) if there is no registered shelf life, for a period of 12 months from the date of either delivery of the Products by Bayer to Customer or where applicable, the date of installation of the Products by Bayer (where the Products require installation),
(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 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 (including those under sections 51, 52 and 53 of the Australian Consumer Law), 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. No Products for which the shelf life is within 6 months of expiring 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 express 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, a written report of any Adverse Event or Product Technical Complaint regarding Products and services relevant to Products, that come to the Customer’s attention, within one Business Day of receipt of such events/complaints by email to drugsafety.anz@bayer.com.
10.2 Customer agrees that, unless otherwise required by law or applicable regulatory authority, Bayer shall be solely responsible for determining whether a Recall 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 in advance and which 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 them, 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 or in connection with 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 or any other event occurs which gives Bayer reasonable grounds for concern regarding the creditworthiness 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 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 (other than section 275(1) of the PPSA).
15.2 The parties agree that the provisions of this clause are a “confidentiality agreement” referred to in section 275(6) of the PPSA.
15.3 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.com.au/en/privacy-policy-au.
16.2 Bayer’s collection and use of your personal information may be 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 assist you with further relevant information including Product related information ; and
(c) to administer the transactions contemplated by the Terms.
16.3 Bayer will:
(a) use personal Information provided to it for the purposes relating to the terms of this agreement;
(b) use personal information collected by it in accordance with its Privacy Policy and the Privacy Act 1988 (Cth) (the Privacy Act); and
(c) not sell, trade, give or pass on to any third party any personal information unless such disclosure is contemplated by and directly related to the purpose outlined by the terms of this agreement, or the Customer has consented to such a disclosure or such disclosure is required by law.
16.4 Customer authorises Bayer to disclose Customer’s personal information to third party contractors and service providers who require that information to assist Bayer to operate its business and fulfil the terms of this agreement (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 this agreement Customer:
(a) acknowledges that it has read Bayer’s Privacy Policy and consents to its terms;
(b) acknowledges that Bayer is a global organisation and some of the activities necessary to fulfil the terms of this agreement may be conducted by Bayer entities located outside of Australia, and and Customer consents to the overseas transfer of its Personal Information for the purpose of those activities, and that of its employees, consultants and agents provided by Customer to Bayer.
16.6 Customer 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 Australia and any other relevant jurisdiction in relation to all matters contemplated (whether expressly or implicitly) by these Terms.
17.2 Any notice in connection with these Terms or any Contract will be deemed to have been given when made in writing and 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 in the Contract (or to such other address as may from time to time be 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.
17.3 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.
17.4 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.
17.5 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.
17.6 These Terms and Contracts are governed by the laws of New South Wales. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
17.7 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. For the avoidance of doubt, this includes any prior or subsequent terms and conditions attached and/or related to any purchase order, quotation, invoice or the like.
17.8 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.
17.9 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.