Unless otherwise agreed in writing by Capsugel Australia Pty Limited (“Capsugel”), the following are Capsugel’s Terms and Conditions of Sale for Capsugel products. These, together with any other Terms and Conditions agreed upon in writing between Capsugel and the Customer (“The Purchaser”) shall apply to all sales of goods by Capsugel to that Purchaser.
(a) Capsugel reserves the right to accept or decline, in whole or in part, any order placed by the Purchaser.
(b) Any order the value of which is not greater than $500.00 ("the minimum order value") may at Capsugel's discretion either be rejected or accepted subject to the payment of the handling fee described in 1(c).
(c) The Purchaser will be advised if the value of an order does not exceed the minimum order value. If, after such advice, the Purchaser requests that the order(s) be processed and Capsugel accepts the order, a handling fee of $200.00 will be charged to the Purchaser. This fee is in addition to any service or other charge that may be raised under clause 3.
(d) If an individual product order is less than the minimum order quantity specified on the Price List, the order will not be accepted.
(e) Capsugel will place on a pending order (back order) item(s) temporarily out of stock, provided the total value of the items ordered is in excess of $200.00.
(f) The Purchaser is requested to order multiples of standard shipper quantities shown on Capsugel's official price list. Orders which are within 50% of standard shipper quantity will be adjusted to the nearest standard shipper quantity.
(g) The Purchaser must obtain all necessary licenses and comply with all appropriate Commonwealth or State Acts and Regulations.
2. EXPORT PROHIBITION
(a) The products listed herein are packaged for sale in Australia, Fiji and Papua New Guinea.
(b) The Purchaser may not at any time, directly or indirectly, export any of the products. In addition, the Purchaser shall not sell, transfer or distribute any of the products:
(i) to any person without first requiring such person to be bound by this export restriction; or
(ii) to any person that it knows, or has reasonable grounds for believing, will or may export such products out of Australia and Papua New Guinea.
(c) Purchaser does not, and will not, in connection with any Capsugel product, do business with or sell directly or indirectly to the Government of Iran, the Iranian Military or Iranian military or law enforcement purchasers or importers, Iran’s petroleum sector or Iran’s development of weapons of mass destruction, Iranian Specially Designated Nationals, or entities considered by the U.S. to be supporters of terrorism or proliferators of weapons of mass destruction (which entities can be identified by accessing the U.S. Office of Foreign Asset Control “Blocked Persons and Specifically Designated Nationals List” http://sdnsearch.ofac.treas.gov/); and it is aware of and, hereby confirms its compliance with, all applicable economic sanctions, including, without limitation, any applicable U.S. economic sanctions. Any breach of this term and condition will preclude the Purchaser from purchasing any further products from Capsugel, until such time as Capsugel is satisfied, in its sole discretion, that the Purchaser will not further breach this provision.
(d) No license relating to the products, express or implied, is granted under the intellectual property rights existing under the laws of the United States or any other jurisdiction outside Australia and Papua New Guinea. Exporting or permitting the export of the products outside Australia and Papua New Guinea may violate laws in the United States and/or other jurisdictions to which the products are exported.
(a) When, at the Purchaser's request, special delivery services such as express post, road overnight or air freight is used, the full charge for the requested delivery service will be charged to the Purchaser.
(b) For the purpose of requesting replacement products under condition 6, in the event of any breakage, leakage or damage to individual packages occurring in transit between Capsugel warehouses and the Purchaser's receiving area, or short deliveries in consignment, the Purchaser must notify Capsugel within seven (7) days of receipt of the consignment.
(c) Non-receipt of products must be notified within seven (7) days of the date of invoice or advice of despatch otherwise, where applicable, credit for the products cannot be allowed.
(d) Subject to conditions 3(b), 3(c) and 6, and to the full extent allowed by law, Capsugel shall not be liable to the Purchaser for any loss or damage whatsoever (including any consequential loss) caused directly or indirectly by any delay or failure in delivery. Any delay in delivery shall not relieve the Purchaser of its obligation to accept that delivery and any remaining delivery.
(e) Capsugel has the right to deliver a quantity of capsules 10% higher or lower than the quantity ordered. Capsugel shall use reasonable efforts to meet the requested delivery dates, having regard for its technical and planning abilities. Time for delivery, however, is not of the essence and Capsugel shall not be liable for any failure to meet any such delivery date.
(f) Air freight shipment will be at the Purchaser's risk. It is the Purchaser’s responsibility to take out an insurance policy covering any damage which might affect the capsules or third parties after delivery to the carrier. If, at the Purchaser's request, Capsugel arranges insurance for the Purchaser, the Purchaser agrees to pay Capsugel for the cost of that insurance prepaid by Capsugel.
(a) Prices are subject to change by Capsugel without notice to the Purchaser.
(b) All orders will be subject to Capsugel's Price ruling at the date of despatch of the order by Capsugel.
(c) No credit will be granted to the Purchaser for stock on hand in the event of a price reduction.
(d) The Purchaser is responsible for any tax or Governmental charge imposed on sale of the products by Capsugel and the same will be added to the total invoice price.
5. CREDIT ACCOUNT
(a) Except where products are sent on C.O.D. terms, or other terms are notified by Capsugel (including where such terms are set out in a supply agreement), payments shall be due 30 days from the date of the invoice. If payment in full is not received on or before the due date, then in addition to its rights under 5(c), Capsugel retains the right to charge interest on a daily basis at the Reserve Bank Official cash rate plus 5%.
(b) By accepting products on credit on the terms set out in 5(a), the Purchaser authorises Capsugel to make enquiries as to the credit and financial history and responsibilities of the Purchaser, and/or the directors of the Purchaser, as required by Capsugel from time to time, including obtaining reports from credit reporting agencies.
(c) Capsugel reserves the right to terminate the Purchaser's credit account in the case of non-compliance with this condition 5. Such termination shall be without prejudice to any other rights Capsugel may have.
(d) In addition to the right specified in clause 5(c) Capsugel may in its absolute discretion and without assigning a reason, terminate the Purchaser's credit account without notice. Upon such event all amounts payable for all products sold become due for immediate payment. The Purchaser shall not be entitled to any compensation for termination of the credit facility.
(e) The Purchaser agrees to pay to Capsugel or at Capsugel's direction all reasonable collection costs, including commissions and legal charges on a solicitor and client basis, on all monies outstanding on its credit account should the Purchaser breach any term or condition herein and should action be taken by or on behalf of Capsugel to recover the debt.
(f) To obtain and maintain a credit account, the Purchaser must make a minimum order of $10,000 per year.
(a) Products will not be accepted for return unless accompanied by a duly authorised Capsugel Return Products Form. Capsugel sales representatives are not authorised to approve product for return. Capsugel reserves the right to dispose of, without recourse, any product returned without this authorised form.
(b) Products accepted by Capsugel will be replaced by Capsugel with equivalent products.
(c) Discontinued products will not be accepted for return and no credit will be granted, or monies paid to the Purchaser in respect of these products.
(d) Subject to conditions outlined herein, products will be accepted for return and replacement if they come into any of the following categories:
(i) Products that Capsugel is satisfied were damaged in transit between the Capsugel warehouse and the delivery dock of the Purchaser. In such instances, the Purchaser must notify the Capsugel Customer Service Department no later than seven (7) days after receipt of the consignment. Purchasers should also indicate on the carrier's consignment docket that products are "damaged" or "subject to check" or no claim will be granted;
(ii) Incorrect supply; that is, wrong product, not sent in accordance with the Purchaser's order;
(iii) Products that Capsugel is satisfied are faulty in materials or workmanship. In such instances, the Purchaser must notify Capsugel of the complaint no later than three (3) months after receipt of the consignment.
(e) Without limiting the other provisions of this condition 6, the following products will not be accepted for return:
(i) Products sold on a non-return basis;
(ii) Products having a broken seal, label removed or other label / price tag attached;
(iii) Products which have not expired, except as specified in (d) above;
(iv) Products that have exceeded their expiry date;
(v) Damaged products, except as specified in (d)(i) above.
(f) It is the responsibility of the Purchaser within 14 days of receipt to ship such products to the Capsugel warehouse from which the products were originally received.
(g) In the case of damaged capsules, a credit note will be issued after Capsugel investigation and approval for stock destruction and credit. The Purchaser may be required to provide documents and proof of destruction to Capsugel.
(h) Customized items cannot be returned in any circumstances.
(i) The Purchaser's sole and exclusive remedy for non-conforming capsules shall be replacement or refund of the purchase price of capsules in relation to which the breach has occurred. In no event shall Capsugel or its affiliates be liable to the Purchaser or its affiliates for any incidental, indirect, or consequential losses. Capsugel’s aggregate liability arising out of or in connection with any purchase order related to the subject matter hereunder shall be limited to the aggregate fees received by Capsugel under the purchase order creating such liability.
(j) Purchaser agrees to unconditionally indemnify, defend and hold harmless Capsugel and its officers, directors, employees, agents, consultants, successors and assigns from and against any losses, damages (including statutory damages), liabilities, obligations, (including without limitation incidental, consequential, special or indirect damages (including loss of revenue, diminution in value or any damages based on any type of multiple)), deficiencies, actions, judgments, suits, interest, awards, penalties, forfeitures, fines, levies, disbursements, costs or expenses of whatever kind, including reasonable attorneys' fees and expenses (“Claim”) that may be imposed on, incurred by, appropriated from or asserted against Capsugel in any way relating to or arising out of (a) the violation of any third party’s trade secrets, trademarks, copyright, patent or other proprietary rights related to the subject matter hereunder; (b) any misrepresentations, omissions or breach of any warranty of buyer herein; (c) the gross negligence or willful misconduct of buyer or (d) the manufacture, packaging, sale, marketing, labeling, promotion, use, distribution or disposal of the finished product.
(k) Capsugel or Capsugel’s technical experts may, at the cost of the Purchaser, offer reasonable assistance to the Purchaser with problems related to the filling of Capsugel’s capsules.
(a) Capsugel will not be liable for delay, loss or damage (including consequential loss) due to scarcity of materials, strikes, acts of God or any other cause beyond its reasonable control.
(b) Storage of Capsugel products must be in accordance with the requirements stated on each pack, i.e. refrigerated and cool storage facilities for specified products must be provided.
(c) The risk in products purchased shall, unless otherwise agreed in writing, pass to the Purchaser upon delivery to the Purchaser or his agent or to a carrier commissioned by the Purchaser.
(d) The printing of Australian Product Numbering codes on its product packs by Capsugel is not the subject of any contract between Capsugel and the Purchaser. Capsugel will endeavour to observe the rules and principles of the Australian Product Numbering Association or any successor to the function thereof, but will not be liable to the Purchaser in any manner whatsoever for any loss, damage or expense attributable either directly or indirectly to the absence of or error in such code printing.
(e) These terms and conditions shall be governed by the laws from time to time of the State of New South Wales and in any or all legal actions that may howsoever arise from this contract the Purchaser agrees to have such matters determined within the jurisdiction of the Courts of New South Wales and their appellate Courts.
(f) No action at law or in equity shall be brought by the Purchaser against Capsugel unless brought within one year from the date of delivery of the shipment of products to the Purchaser or from the date of the alleged breach of contract whichever is earlier.
(g) Capsugel reserves the right to vary or add to these terms and conditions of sale at any time without notice.
(h) Whether capsules with the colour combinations, text or logo specified by the Purchaser are free to be used for marketing as such or with any products is beyond Capsugel's control and responsibility and no warranty is given in this regard.
(i) No warranty is given as to the absence of any trademark, patent or other intellectual property right or as to compliance with regulatory requirements. No statement made by Capsugel shall be construed to be a recommendation to infringe any patent or trademark, or as an opinion regarding non-infringement of any patent or trademark.
8. TITLE TO GOODS
(a) Property in each unit of the goods shall remain with Capsugel until all monies owing to Capsugel on any account whatsoever have been paid ("the Debts").
(b) Until the Debts have been paid, the Purchaser:
(i) Shall, subject to clause (c), take custody of the goods and retain them as Capsugel's trustee, fiduciary agent and bailee;
(ii) must not charge, mortgage or encumber the goods;
(iii) shall ensure that the goods are insured and stored or identified such that they are readily distinguishable from other goods (including other batches of the same type of goods) held by the Purchaser or other persons.
(c) Until the Debts have been paid, the Purchaser has the right to move, sell and otherwise use the goods in the ordinary course of business, subject to the following:
(i) the Purchaser may resell the goods, but only as fiduciary agent and trustee for Capsugel and by way of bona fide sale in the ordinary course of its business; and
(ii) the Purchaser shall hold such part of the proceeds it receives from any sub-sale of the goods under clause 8(c)(i) that is less than or equal to the Debt owed to Capsugel at the time of receipt (the "Proceeds") as fiduciary agent and trustee for Capsugel;
(iii) the Purchaser shall place the whole of the Proceeds in an account separate from its own monies and maintain proper records of that account.
(d) If the purchaser fails to comply with any term of this agreement in relation to the settlement of debts, commits an act of bankruptcy, does anything which would make it liable to be put into liquidation, or any goods are at risk, then:
(i) immediately on Capsugel's request the Purchaser must return to Capsugel any goods acquired from Capsugel on which there are outstanding Debts; and
(ii) Capsugel may, with permission (which shall not be unreasonably withheld) enter the premises at which those goods are stored, and retake possession of them;
(iii) Capsugel may resell those goods.
(e) In this clause 'paid' means receipt of cash or cleared funds by Capsugel in settlement of the Debts and 'Proceeds' includes all benefits (including book debts and choses in action) received by the Purchaser from the disposal, whether by sale or otherwise, of the goods or material incorporating the goods.
(f) Any part of this clause that is unenforceable, ambiguous or illegal will be severed from these terms and conditions and such severance will not affect the enforceability of the remaining terms and conditions.
9. WAIVER AND VARIATION
A provision of or a right created under these terms in favour of Capsugel may not be waived or varied except in writing signed by Capsugel. Capsugel may elect not to exercise its rights arising from a breach of any provision of these terms and such election, even if the breaches are continuous and multiple shall not create any estoppel or presumption against Capsugel.
10. WARRANTIES AND LIABILITIES
To the full extent allowed by law, Capsugel hereby excludes all warranties, express or implied, in connection with the sale or supply of products to the Purchaser and limits its liability with respect to any sale or supply of products to the Purchaser to that (if any) under condition 6, and Capsugel shall not be liable to the Purchaser or any other party for compensation loss or damages including any incidental or consequential damages in connection with the products.
11. IMPROPER PAYMENTS
(a) If Capsugel pays the Purchaser a rebate in respect of purchases under this Agreement, the Purchaser warrants and represents that:
(i) the Purchaser has not and will not promise, pay or give anything of value either directly or indirectly to any government official for the purpose of obtaining or retaining business or any improper advantage for Capsugel. In this clause, 'government official' means any official, officer, representative, or employee of, including any animal health care professional, employed by any government department, agency or instrumentality (including any government-owned or controlled commercial enterprise), or any official of a public international organisation or political party or candidate for political office;
(ii) the Purchaser will at all times comply with the Capsugel Anti-Bribery and Anti-Corruption Principles which are available on www.Capsugel.com.au;
(iii) the Purchaser agrees to permit Capsugel to take reasonable steps to ensure that rebates paid are properly used by permitting Capsugel's auditors to access any relevant books, documents, papers and records of the Purchaser involving the payment of rebates by Capsugel;
(iv) Capsugel may terminate the Purchaser's credit account if Capsugel learns that the Purchaser is making, or has made, improper payments to government officials.