TERMS AND CONDITIONS OF SALE
1. DEFINITIONS AND INTERPRETATION
Adverse Event means any untoward medical occurrence in a patient, consumer or a clinical investigation subject administered a medicine, which does not necessarily have to have a causal relationship with this treatment. An Adverse Event can therefore be any unfavourable and unintended sign (for example, an abnormal laboratory finding), symptom, or disease temporally associated with the use of a medicine, whether or not considered related to the medicine.
Australian Consumer Law means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means any day other than a Saturday, Sunday, public holiday or bank holiday in Sydney, New South Wales.
Conditions means these Terms and Conditions of Sale including the application for commercial credit account (if applicable).
Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, loss of goodwill, increased financing costs, loss arising from delay, loss or corruption of data, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity contract, tort (including negligence), statute or otherwise.
Corporations Act means Corporations Act 2001 (Cth).
Customer means the party making this application for credit (where this forms part of an application for credit) and/or to which Goods are sold by the Supplier.
Force Majeure Event means in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any of the following: governmental act, pandemic, epidemic, war, fire, flood, natural disasters and other acts of god, explosion, civil commotion, strike, lockout or other industrial action).
Goods means any goods supplied by the Supplier from its pharmaceutical and vaccine goods list, including Pharmaceutical Goods and Vaccine Goods.
Insolvency Event means, for the Customer, as applicable, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act or analogous person) appointed to the Customer or any of the Customer’s property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, any step taken for winding up, being unable to pay the Customer’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Customer’s own affairs for any reason, taking any step that could result in the Customer becoming an insolvent under administration (as defined in section 9 of the Corporations Act), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors, or any analogous event.
Loss means any loss, expense, cost, damage or liability of any kind (however caused) and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority.
Minimum Order Value means (a) $6,000 ex GST for Pharmaceutical Goods; and (b) $300 ex GST for Vaccine Goods.
Minimum Shelf Life means (a) in respect of Pharmaceutical Goods, not less than the 6 months from the date of dispatch from the Supplier’s premises; and (b) in respect of Vaccine Goods, not less than 3 months from the date of dispatch from the Supplier’s premises.
Pharmacovigilance Data means any Adverse Event or any special situation in relation to the Goods, with or without an Adverse Event such as report of misuse, medication error, off-label use such as intentional use outside the labelled indication, overdose (intentional or not), drug abuse, dependence, or addiction, lack of efficacy, drug exposure during pregnancy or child exposure during breastfeeding or conception (whether from the male or female), unintentional occupational exposure, accidental exposure, unexpected therapeutic benefits, suspected transmission of infectious agents or suspected drug interactions involving active ingredients or their metabolites or in relation to a Good that is a medical device, means any malfunction or deterioration in the characteristics or performance of a medical device, made available on the market, including use-error due to ergonomic features, as well as any inadequacy in the information supplied by the manufacturer and any undesirable side-effect.
Pharmaceutical Goods means those therapeutic goods supplied by the Supplier but excluding Vaccine Goods.
PPSA means the Personal Property Securities Act 2009 (Cth), as amended and in force from time to time. Terms and expressions used in this document that are defined in the PPSA have the same meanings given to those terms and expressions in that Act.
Recall means any form of recalling Goods from the market, including voluntary recalls by the manufacturer or Sponsor of the Goods and mandatory recalls that may be initiated by the TGA or the Australian Competition and Consumer Commission. Examples include: (a) recall actions which may be taken under the ‘Uniform Recall Procedure for Therapeutic Goods’ administered by the TGA, including recall, product defect correction, hazard alert and product defect alert; or (b) recall notices which may be issued by the Australian Competition and Consumer Commission.
Related Bodies Corporate has the same meaning as in the Corporations Act.
Sanofi Group Company means Sanofi-Aventis Australia Pty Ltd ABN 31 008 558 807 or any of its Related Bodies Corporate.
Sponsor has the meaning given in the Therapeutic Goods Act 1989 (Cth).
Supplier means, in connection with the supply of any Goods, the relevant Sanofi Group Company making the supply to the Customer.
Supplier Ts&Cs means any terms and conditions of quotation and supply, however described, notified by the Supplier to the Customer (whether on an invoice, quote, through the Supplier’s website, docket or otherwise), or supply agreement (however described) provided by the Supplier entered into in writing between the Supplier and Customer.
Temperature Sensitive Goods means those Goods in relation to which there are particular storage temperatures stipulated on any TGA approved product packaging.
TGA means the Therapeutic Goods Administration.
Vaccine Goods means those goods classified as vaccines supplied by the Supplier.
2.STRUCTURE OF THIS DOCUMENT
(a) These Conditions constitute the trading terms, including the extension of credit (if applicable), in connection with the supply of Goods by Sanofi Group Companies to the Customer.
(b) The terms set out in these Conditions are incorporated by reference as part of the Supplier Ts&Cs. Those terms are legally binding between the Supplier and the Customer and these Conditions should be read together with the Supplier Ts&Cs. To the extent of any inconsistency, these Conditions prevail over the other terms and conditions in the Supplier Ts&Cs unless the parties expressly agree to the contrary.
3.CUSTOMER OBLIGATIONS, DEFAULT AND TERMINATION
(a) These Conditions apply to any order for Goods placed by the Customer, whether for cash, transfer of funds or on credit. The Customer has no entitlement to credit unless in the Supplier’s sole discretion the Supplier extends credit to the Customer. If in a particular case, the Supplier gives the Customer credit, the Supplier still reserves the right at any time and for any reason in the Supplier’s sole reasonable discretion to no longer provide the Customer credit (including after the Customer has placed an order which the Supplier has not yet accepted). If the Supplier does decline to give the Customer further credit then that decision does not affect the credit terms which apply to any amounts the Customer then owes to the Supplier.
(b) If:
(i) there is any default by the Customer in making due payment to the Supplier of any monies owing by the Customer;
(ii) the Customer suffers an Insolvency Event; or
(iii) there is a breach by the Customer of any of these Conditions,
then, without limiting any other rights or remedies the Supplier may have, the Supplier may do any, or all, or any combination of the following:
(iv) cancel any accepted order for Goods that remains unfulfilled (or where breach by the Customer, suspend until such breach is remedied);
(v) not accept any further order for Goods; and/or
(vi) place a stop on, or terminate the Customer’s credit account (if any) immediately.
(c) If the Customer suffers an Insolvency Event, all monies payable by the Customer to the Supplier will become immediately due and payable notwithstanding that the due date for payment of any of the monies has not occurred.
(d) The Customer agrees that it must advise the Supplier in writing of the occurrence of any Insolvency Event, any change in its name, ownership or control, or any step being taken to sell an asset or assets (separately or together having a value being greater than 20% in value of its gross assets) or any other change to information supplied by the Customer to the Supplier, as soon as practicable and not later than within 2 Business Days of such event, change or step occurring. The Customer acknowledges that, despite any such event, change, or step the Customer remains liable to pay the price for all Goods supplied.
4.OVERDUE ACCOUNTS AND SECURITY
(a) Any amount not paid by the due date may, at Sanofi’s reasonable discretion, incur interest at a rate of 2% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly.
(b) The Customer agrees to pay all costs and expenses (including legal costs, commissions paid by the Supplier or its Related Bodies Corporate to any commercial or mercantile agent and dishonour fees) incurred by the Supplier in connection with the recovery of overdue amounts.
5.ORDERS
(a) The Customer is to place orders with the Supplier via the method notified by the Supplier which may be via telephone, email, facsimile, the Supplier’s website(s) or a direct order with their territory manager, or as otherwise agreed by the Supplier.
(b) The Supplier reserves the right to accept or decline, in whole or in part, any order placed by the Customer and to deliver the Goods with respect to an accepted order to the Customer by instalments as deemed necessary or desirable by the Supplier acting reasonably depending on availability of stock or other applicable factors. An order is not binding until accepted by the Supplier. The Supplier may accept an order (i) in writing, (ii) by issuing an invoice for such Goods or (iii) by the commencement of supply of the relevant Goods (whichever occurs first in time). Without limiting the foregoing, an order may be rejected if it is less than the Minimum Order Value or may be accepted subject to the payment of the freight or other conditions notified by the Supplier.
(c) The Customer must place an order by quoting their account number, purchase order number (if applicable), product code, followed by quantity, and such other details notified by the Supplier.
(d) These Conditions apply to all quotations issued by the Supplier to the Customer for the sale of its Goods, all sales of Goods made by the Supplier to the Customer and all purchase orders submitted by the Customer to the Supplier, even if the Customer provides its own terms, including with any acceptance of a quotation or any purchase order submitted by the Customer or otherwise, (which terms will be of no force or effect).
(e) Any quotation made by the Supplier is not an offer to sell Goods and the Customer’s order made as a result of any quotation will not bind the Supplier until accepted by the Supplier in accordance with these Conditions.
(f) Without limiting clause 5(b), any order which is less than the Minimum Order Value may be rejected, or may be accepted subject to the payment of the freight fee described in clause 7 and any other reasonable costs.
(g) Pharmaceutical Goods will only be supplied in shelf pack multiples (as notified by the Supplier). Orders for quantities less than shelf-pack multiples will be rounded up to the nearest shelf-pack multiple so supplied.
(h) The Supplier warrants that Goods shall have a shelf life of not less than the Minimum Shelf Life.
(i) No order can be cancelled by the Customer after it has been accepted by the Supplier, except with consent in writing from the Supplier’s Customer Service representative (at its sole discretion). Where such consent is given, the Customer agrees to pay, on request by the Supplier, an amount equal to the Losses suffered by the Supplier or a Supplier company in relation to such cancellation.
(j) The Customer must obtain and at all times maintain all necessary licenses and comply with all applicable local, national and supranational requirements (including all Commonwealth or State Acts and Regulations) in connection with these Conditions and in respect of its marketing, promotion and supply of the Goods.
(k) Except where otherwise notified in writing to the Supplier prior to entering into these Conditions, the Customer represents and warrants at all relevant times that all Goods supplied by the Supplier are purchased for resale unless otherwise agreed by the Supplier.
6.DELIVERY
(a) Goods will be delivered using methods and carriers selected by the Supplier, except where the Supplier in its discretion otherwise agrees in writing in advance to a carrier nominated by the Customer.
(b) Delivery of Goods will be made to one delivery point nominated by the Customer at the time of order or otherwise agreed in writing in advance with the Supplier. The Customer must ensure a secure delivery point. Goods are deemed delivered properly when delivered to the delivery point, whether or not any person is present to accept the Goods at the nominated delivery point.
(c) Unless otherwise agreed to by the Supplier, Goods will be delivered during the Supplier’s normal business hours. Deliveries made outside these hours may be subject to additional delivery charges as notified by the Supplier.
(d) Any dates or times quoted for delivery are estimates only. To the extent permitted by law, the Supplier will not be liable for Losses arising from delay in delivery or failure to deliver Goods and the Customer must accept and pay for Goods notwithstanding late delivery.
(e) Goods ordered which have been agreed to be collected from Supplier’s premises (rather than delivered to Customer’s delivery point) will be held for a maximum of 10 Business Days after the specified collection date. If the Goods are not collected within such time, they may be delivered to a specified storage facility selected by the Supplier and all costs incurred in relation to such delivery and storage will be charged to and payable by the Customer.
(f) Where the Supplier agrees to deliver the Goods to the premises of the Customer and the Supplier contracts with a carrier nominated by the Customer to do so, delivery of the Goods to the carrier in all circumstances constitutes delivery to the Customer.
7.FREIGHT
(a) The Customer will be advised if the value of an order does not exceed the Minimum Order Value. If, after such advice, the Customer requests that the order(s) still be processed and the Supplier accepts the order, the Supplier may charge freight fees to the Customer for that order at the applicable rate as advised by the Supplier.
(b) Where the Customer requests the Supplier to freight the Goods to the Customer urgently, or in a manner which is not usually used by the Supplier, the Supplier reserves the right to charge the Customer for any additional freight expenses incurred provided the Customer gives prior approval of such additional expenses notified by the Supplier. The Goods shall not be dispatched until the Customer has approved any such additional expenses.
(c) Any freight charges incurred under or referred to in these Conditions will be subject to GST and must be paid by the Customer unless otherwise agreed in writing by the Supplier.
8.TERMS OF PAYMENT
(a) Unless otherwise agreed in writing, for all orders relating to Goods that are supplied on credit terms, the Supplier will issue an invoice to the Customer and will issue a statement to the Customer at the end of each calendar month of all amounts invoiced that month. The Customer must pay the total amount of each invoice, including any tax or other charges, strictly by the last Business Day of the month following the month specified on the relevant invoice. For all sales of Goods that are not supplied on credit terms, the Customer will be invoiced and must pay the total amount of each invoice, including any tax or other charges, at or before the date of delivery, unless otherwise agreed in writing.
(b) The Customer hereby authorises the Supplier at its reasonable discretion to appropriate any moneys received by the Supplier in connection with the supply of Goods, against amounts due by the Customer to the Supplier in respect of the Goods, as it reasonably considers necessary. The Supplier may set off against amounts owing by the Customer any amount owing by the Supplier to the Customer, including credit for any refunds owing to the Customer.
(c) Non-payment by the due date may result in any or all of subsequent orders being held until such outstanding payment is made or cancelled.
(d) Without limiting any other rights and obligations under these Conditions, the Supplier reserves the right to terminate the Customer’s credit account in the case of non-compliance with this clause 8. Such termination will be without prejudice to any other rights the Supplier may have, including the right to preclude the Customer from participating in any special deals, discounts, bonus payments, rebates, and any other incentive programs until the Customer’s account is no longer in default.
(e) The Customer agrees that all reasonable costs incurred by the Supplier in the recovery of unpaid accounts including commissions and fees paid to the Supplier’s agents will be promptly reimbursed to the Supplier by the Customer.
(f) The Customer will have no right of deduction or set off in relation to any monies owed by a Sanofi Group Company to the Customer.
(g) The Customer may dispute an invoice if the Customer reasonably believes that the Customer is not liable to pay specific charges or any part of the invoiced amount because of an inaccuracy, omission or error in the invoice. The Customer must provide specific evidence which demonstrates that a particular charge or invoiced amount is incorrect. All disputes relating to invoices must be made within 6 months from the date of the relevant invoice. For the avoidance of doubt, this does not affect the Customer’s obligation to make payment of the invoiced amount in full by the due date. If the parties agree that the dispute is valid, the Customer’s account will be credited the relevant amount overpaid.
9.PRICE
(a) The price for the Goods the subject of any accepted order will be the price specified in the Supplier’s price list as most recently provided to the Customer by the Supplier before the date the Customer places the order, provided any price variations will be notified by the Supplier to the Customer and the Supplier will use reasonable endeavours to provide at least 1 months’ notice.
(b) Prices quoted are exclusive of goods and services tax (GST) except where expressed otherwise. The Customer is responsible for any tax or governmental charges, including goods and services taxes imposed on the sale of the Goods and such charges will be added to the total invoice price if applicable.
(c) Prices quoted include the prevailing rates and costs of material, labour, freight, insurance, carrier’s fees, Government tariffs, duties and taxes (other than GST), and will be subject to increase in respect of any variation in such rates or costs or new or different impositions of government taxes or the method of assessment of the same occurring in accordance with clause 9. Such variations of prices for accepted orders may be made by the Supplier by providing written notice to the Customer, provided that the variation is proportionate to such increased rates or costs, or taxes, and the Supplier gives the Customer the opportunity to cancel the relevant order and the Supplier makes reasonable efforts to minimise the impact of the variation.
10.RISK AND TITLE
(a) Unless otherwise agreed by the parties in writing, all risk in the Goods passes to the Customer upon delivery of the Goods to the Customer’s nominated delivery point or carrier, as applicable, except where as agreed by the Supplier, the Customer (or its nominee) collects the Goods from the Supplier’s premises, in which case risk in the Goods passes to the Customer upon collection of the Goods by the Customer, the Customer’s agent or the Customer’s nominated carrier (when Goods are made available to the relevant party).
(b) Title to any Goods supplied by the Supplier will only pass to the Customer upon receipt by the Supplier in full and cleared funds the Customer’s payment to the Supplier of all amounts that are due under the invoice(s) which relate to the Goods.
(c) The Customer may resell any Goods before title in the Goods passes to the Customer, so long as the Customer:
(i) resells any such Goods to a third party in the ordinary course of business;
(ii) acts in any such transaction as the Supplier’s fiduciary agent;
(iii) holds the proceeds of sale of any such Goods in a separate account with separate records;
(iv) allows the Supplier to inspect any records of any payments; and
(v) accounts to the Supplier in respect of those proceeds or any other payment made by a third party for any sale of the Goods and allows the Supplier to inspect any records of such payments.
(d) If any amount due by the Customer in respect of the Goods remains unpaid 15 days after the due date, then the Supplier may retake possession of any Goods for which the Supplier has not received payment in full wherever they are located.
(e) The Customer irrevocably grants to the Supplier or the Supplier’s agents or any other nominated representative permission to enter any premises occupied by the Customer to identify and repossess any of the Goods without in any way being liable to the Customer or any other third party.
(f) The Customer must insure the Goods, and keep the Goods insured, at the Customer’s own cost and expense at all times to the full extent of the price paid or payable for those Goods, including between the time that risk in the Goods passes to the Customer and the date that title in the Goods passes to the Customer.
11. STORAGE AND WAREHOUSING
The Customer must ensure that:
(a) all Goods (including Temperature Sensitive Goods) are stored and all warehousing arrangements are in accordance with:
(i) the specific requirements of the products as described on the label; and
(ii) industry practices including the Australian Code of Good Wholesaling Practice for Medicines as published by the TGA; and
(b) for Temperature Sensitive Goods:
(i) each consignment is processed and stored in accordance with the specification for those Goods within one hour of receipt of such Goods. Failure to comply with this clause renders the Customer solely liable for any defect in the Goods; and
(ii) for cold chain deliveries that contain temperature monitors, the monitors are inspected by the Customer on receipt and any alarms reported to Sanofi Customer Service on 1800 829 468. Information is available with each delivery on how to read the monitors provided.
12.PRODUCT PRESENTATION
(a) It is the Customer’s responsibility to ensure that the Goods are displayed and the display is maintained so as to present the Goods in accordance with the Supplier directions from time to time. All promotional material provided by the Supplier will remain the property of the Supplier and the Customer must not amend, alter or modify such promotional materials without the prior written consent of the Supplier. The Customer must use such promotional materials solely for the purposes of the promotion and sale of the Goods. The Customer must use its best endeavours to meet the requests made by the Supplier in respect of promotional material and display instructions that the Supplier may provide from time to time.
(b) The Customer must co-operate with the Supplier to ensure the Goods are rotated in any relevant display so as to minimise loss through expiration of ‘use-by’ dates.
13. RETURNS AND DEFECTIVE GOODS
(a) If the Customer is a ‘consumer’ (as that term is defined in section 3 of the Australian Consumer Law) and:
(i) the Goods are goods of a kind ordinarily acquired for personal, domestic or household use or consumption, this clause 13 does not in any way limit Customer’s rights in respect of consumer guarantees applicable to the supply of those Goods under the Australian Consumer Law, and the rights under this clause 13 are in addition to such rights; or
(ii) the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the rights under this clause 13 are in addition to the Customer’s rights in respect of consumer guarantees applicable to the supply of those Goods under the Australian Consumer Law, and the Customer’s rights in respect of a failure of those Goods to comply with the consumer guarantees are otherwise limited as set out in clause 16).
(b) The Supplier will replace or provide a refund for damaged or defective Goods, or short dated Goods (being where the relevant expiry date is earlier than the date necessary to comply with Minimum Shelf Life), (“Faulty Goods”) provided notification is given to the Supplier within 3 Business Days of the delivery of the Goods, or where a damage or defect is not evident on reasonable inspection within such 3 Business Day period, promptly upon discovery of such damage or defect (“Return Period”) and the Customer complies with this clause 13.
(c) The Customer must inspect the Goods supplied by the Supplier promptly upon delivery or collection and must within the Return Period give written notice to Supplier of any claim that the Goods are Faulty Goods. The notice must include the Goods it wishes to return, the original invoice number, the original order number, the Goods batch number, and the reason for the return and must be forwarded to the Supplier’s Customer Service representative either via email creditreturns.au@sanofi.com or fax 1800 647 467 within the Return Period and be approved by the Supplier prior to the return of any Goods. The Customer must take reasonable steps to mitigate any Loss arising as a result of any defect in the Goods.
(d) The Supplier will deliver or make available for collection the Goods with an invoice or delivery docket attached noting the batch number of the Goods. If there is a discrepancy between the batch number on the invoice and the batch number on the Goods, or the Customer otherwise considers that it is a short or incorrect delivery, the Customer must notify the Supplier within 3 Business Days of delivery.
(e) All returns must be approved by the Supplier’s Customer Service representative before the Customer takes steps to return the relevant Goods. Such approval will not be unreasonably withheld if the requirements set out in this clause 13 are met.
(f) Authorised returns must be sent via the Supplier's nominated freight carrier and otherwise in accordance with the Supplier’s reasonable instructions. The Supplier will not accept responsibility for freight costs associated with Goods returned via any other method.
(g) All returned Goods must be unused and in the same condition as they were delivered (including packed in their original packaging) and sales order or invoice numbers unaltered.
(h) Where the Customer is a wholesaler, any Faulty Goods should be placed in quarantine until a resolution under this clause is reached with the Supplier, in accordance with the Australian Code of Good Wholesaling Practice for Medicines as published by the TGA (where applicable).
14. PRODUCT RECALL
(a) Except to the extent otherwise required by law:
(i) any decision relating to a Recall of the Goods (including any decision relating to the initiation or implementation of or strategy relating to a Recall of the Goods) will be made at the reasonable discretion of the Supplier or, where the Supplier is not the Sponsor, the Sponsor unless otherwise directed by a relevant regulatory authority; and
(ii) the Customer must not initiate, implement or take any action in relation to a Recall of the Goods without the prior written consent of the Supplier.
(b) The Customer must maintain procedures relating to a withdrawal of the Goods, recall and tampering and records necessary to support a Recall of the Goods, and allow the Supplier to inspect such procedures and records at any time on reasonable notice.
(c) The procedures referred to in clause 14(b) must in all cases be in accordance with industry practices including the Uniform Recall Procedure for Therapeutic Goods as published by the TGA. If the Customer is a wholesaler, the procedures referred to in clause 14(b) must also be in accordance with the Australian Code of Good Wholesaling Practice for Medicines as published by the TGA.
(d) The Customer must provide any information, services, resources or facilities to the Supplier as may be required in respect of a Recall of the Goods, and must co-operate with the Supplier in relation to any Recall directed by the Supplier.
(e) The Supplier agrees to provide a refund to the Customer for any units of the Goods that are recalled under this clause unless the conduct of the Customer or its employees, agents or contractors (including wholesalers) has given rise to the Recall of the Goods.
(f) The reasonable costs incurred by the Customer, including the Customer’s management costs, in connection with the Recall of any Goods will be borne by the Supplier, except where the conduct of the Customer or its employees, contractors or other persons it has engaged (including any Customer nominated wholesaler) has given rise to the Recall of the Goods (in which case the reasonable costs incurred by the Supplier in connection with the Recall of the Goods will be borne by the Customer).
(g) To the extent that a party pays costs in connection with the Recall of any Goods for which the other is responsible under clause 14(f), the other party must, after receiving a written request together with sufficient evidence to substantiate the request for reimbursement from the first party, reimburse the first party within 7 days.
15. INTELLECTUAL PROPERTY
(a) As between the Supplier and the Customer, the Supplier or the relevant Sanofi Group Company (or its licensor), owns all right, title and interest in and to the intellectual and industrial property rights embodied in or associated with the Goods and the Sanofi Group Companies (including but not limited to any patents, trade marks, copyright and logos in respect of the Goods, intellectual property rights existing in the labels and packaging applied to the Goods and intellectual property rights in the promotional materials provided to the Customer) (together, the “Goods IP”). The Customer agrees to promptly notify the Supplier of any unauthorised use of the Goods IP of which it becomes aware. Any use by the Customer of the Goods IP must be with the Supplier’s prior written consent (not to be unreasonably withheld or delayed), however nothing in this clause prevents the Customer from being able to sell the Goods in the ordinary course of its business.
16. AUSTRALIAN CONSUMER LAW
(a) All conditions, terms and warranties that are or might otherwise be implied by law, practice, trade usage or international convention, are excluded to the fullest extent permitted by law.
(b) The Customer acknowledges that the Supplier is not in the practice of making any representations regarding its goods and services unless they are in writing and signed by an authorised officer.
(c) To the extent the Customer has the benefit of consumer guarantees under the Australian Consumer Law in respect of the supply of the Goods under this Agreement, and the Goods are not of a kind ordinarily acquired for personal domestic or household use or consumption, the Supplier’s liability for breach of the consumer guarantees (other than under sections 51, 52 and 53 of the Australian Consumer Law) is limited as follows:
(i) the Supplier’s liability in relation to Goods is limited at the Supplier’s option to replacement of the Goods or the supply of equivalent goods; or repair of the Goods; or payment of the cost of replacing the Goods or of acquiring equivalent goods; or payment of the cost of having the Goods repaired; and
(ii) the Supplier’s liability in relation to services is limited at the Supplier’s option to the supplying of the services again; or the payment of the cost of having the services supplied again.
(d) Notwithstanding any other provision of these Conditions, the Supplier is not liable to the extent that Loss was caused or contributed to by the Customer’s negligence, breach, wilful misconduct or fraudulent conduct, or by the negligence, wilful misconduct or fraudulent conduct of the Customer’s consultants, contractors or agents or of any third party.
(e) Except as expressly provided under these Conditions and except to the extent liability under applicable law (including the Australian Consumer Law) cannot be excluded or limited by agreement, the Supplier is not liable for any Loss suffered or incurred by the Customer in connection with these Conditions or the Supplier’s supply of Goods.
17.REPORTING
(a) The Customer must notify the Supplier by telephone on 1800 640 791 (immediately confirmed in writing) immediately after it becomes aware of any information (whether credible or otherwise) which may give rise to a Recall of the Goods.
(b) Without limiting clause 17(a), the Customer must notify the Supplier as soon as is practicable after it becomes aware of any adverse publicity or threatened or pending legal proceedings with respect to the Goods or of any other information that might adversely impact upon the goodwill associated with the Supplier or the Goods.
(c) The Customer must report any Pharmacovigilance Data in relation to the Goods, to Sanofi Australia Pharmacovigilance Department at ae@sanofi.com as soon as possible but no later than 24 hours after initial awareness.
(d) The Customer must report technical or quality complaints relating to Goods to the Supplier on 1800 550 515 as soon as possible but no later than 24 hours after initial awareness. Complaints samples if available must be securely retained and provided to the Supplier upon request.
18.APPLICATION OF THE PPSA
(a) The Customer acknowledges and agrees that:
(i) these Conditions constitute a security agreement for the purposes of the PPSA (“Security Agreement”) and creates a security interest in the Goods supplied by the Supplier from time to time and any proceeds of the sale of the Goods to secure payment for the Goods (“Security Interest”);
(ii) each sale or supply of Goods by the Supplier under these Conditions is subject to the Security Agreement for the purposes of the PPSA; and
(iii) the Supplier may lodge a financing statement or financing statements on the PPSR in respect of the Security Interest in the Goods and the proceeds of the sale of the Goods, including as a purchase money security interest (“PMSI”), pursuant to these Conditions.
[Assurances]
(b) The Customer must do all things, provide all such information and sign all such documents as are necessary and reasonably required to enable the Supplier to acquire a perfected Security Interest in the Goods, including for the purposes of:
(i) ensuring that any Security Interest created under, or provided for, by this document:
1. attaches to the collateral that is intended to be covered by that Security Interest;
2. is enforceable, perfected and otherwise effective; and
3. has the priority required by the Supplier;
(ii) enabling the Supplier to prepare and register a financing statement or financing change statement;
(iii) enabling the Supplier to register a PMSI and a non-PMSI under the PPSA; and
(iv) enabling the Supplier to exercise and maintain any of the Supplier’s rights or powers in connection with any such Security Interest.
(c) If the Customer disposes of the Goods, the Customer must:
(i) immediately pay any proceeds to the Supplier in reduction of all amounts owing by the Customer to the Supplier, which the Supplier may apply towards amounts owing by the Customer to the Supplier in such order as specified by subsection 14(6)(c) of the PPSA, unless otherwise specified by the Supplier in writing; and
(ii) not allow any other charge or security interest to exist over those proceeds if that security interest could rank ahead of the Supplier’s Security Interest.
(d) If a higher-priority security interest does arise in the Goods despite Clause 18(c), the Customer must:
(i) ensure that the Customer receives cash proceeds for the Goods of at least equal to the market value of the Goods; and
(ii) immediately pay those proceeds to the Supplier in reduction of all amounts owing by the Customer to the Supplier, which the Supplier may apply towards amounts owing by the Customer to the Supplier in such order as the Supplier sees fit.
(e) The Customer must not change the Customer’s name, structure, status or partnership, or assign or sell the Customer’s business to another party, or initiate any change to any registered documentation, or act in any other manner which would impact on the Supplier’s registered Security Interest without the Supplier’s prior written consent. The Customer acknowledges and agrees that no such event will affect the Customer’s liability under these Conditions, as the Customer is named in any applications for credit, until a new application for credit made in the Customer’s new entity name as restructured or changed is received and approved by the Supplier in writing.
[Exclusion of Notices and Other Obligations]
(f) To the extent permitted by law:
(i) for the purposes of sections 115(1) and 115(7) of the PPSA:
1. the Supplier need not comply with sections 95, 118, 121(4), 125, 129(2), 129(3), 130, 132(3)(d) or 132(4); and
2. sections 142 and 143 are excluded; and
(ii) for the purposes of section 115(7) of the PPSA, the Supplier need not comply with sections 132 and 137(3).
(g) To the extent permitted by law, the Customer agrees to waive:
(i) the Customer’s rights to receive any notice that is required by any provision of the PPSA (including a notice of a verification statement) or any other law before a secured party or a receiver exercises a right, power or remedy; and
(ii) any time period that must otherwise lapse under any law before a secured party or a receiver exercises a right, power or remedy.
(h) If the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is 1 day or the minimum period the law allows to be agreed (whichever is the longer).
[Provision of Information]
(i) The Customer agrees not to exercise the Customer’s rights to make any request of the Supplier under section 275(6) of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non-disclosure under that section.
(j) The parties must not disclose information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances where:
(i) disclosure is required by sections 275(7)(b) to (e) of the PPSA; and/or
(ii) the Supplier discloses information of a kind mentioned in section 275(1) of the PPSA to the extent that the Supplier is not doing so in response to a request made by an "interested person" (as defined in section 275(9) of the PPSA) pursuant to section 275(1) of the PPSA.\
(k) Notwithstanding Clause 18(j), the Customer must only authorise the disclosure of information for the purposes of section 275(7)(c) of the PPSA, or request information under section 275(7)(d) of the PPSA, if the Supplier approves such disclosure or request for information in writing.
(l) Nothing in this part will prevent any disclosure of information by the Supplier that the Supplier believes is reasonably necessary to comply with any other obligations that the Supplier may have under the PPSA or any other law.
[Other]
(m) If the Customer defaults in the timely performance of any obligation owed to the Supplier, the Supplier may enforce the Security Interest by exercising all or any of the Supplier’s rights under these Conditions, the general law and the PPSA.
(n) Nothing in this part limits or is limited by any other provision of these Conditions or any other agreement between the parties.
19.PRIVACY DISCLOSURE AND CONSENT
(a) The Customer authorises the Supplier to do the following, to the extent permitted by law:
(i) exchange information relevant to the Customer’s identity and personal, consumer and commercial credit status, worthiness, history and capacity (“Credit-related Information”) with any bank or trade referee disclosed in this document and with any other credit provider or credit reporting body (“CRB”) or agency for the purpose of assessing any application for credit, verifying identity, or in connection with any guarantee given by or for the Customer;
(ii) use, disclose or exchange with other credit providers and Sanofi Group Companies Credit-related Information about the Customer in order to assess any application for credit, monitor credit worthiness, manage the Customer’s credit facilities and any related guarantee, collect overdue accounts and create assessments and ratings of the Customer’s credit-worthiness;
(iii) disclose Credit-related Information about the Customer to Sanofi Group Companies, and any of their solicitors and mercantile agents; and
(iv) disclose Credit-related Information about the Customer to a guarantor or prospective guarantor for purposes including to consider whether to enter into the guarantee.
(b) The Customer acknowledges that the Supplier may review the Customer’s credit arrangements on a periodic basis or in connection with changes (e.g. amount of credit) as though assessing a new application for credit.
(c) Some laws require or authorise the Supplier to collect personal information. These include the Privacy Act 1988 (Cth) and the PPSA. The Customer must ensure that any individual whose personal information it discloses, makes available or enables the collection of personal information in connection with this document, agrees to the collection and handling of that information in accordance with these Conditions.
(d) If the Customer does not provide the information requested in this document, the Supplier may be unable to process the application. The Supplier complies with the privacy principles imposed by law in relation to the collection and disclosure of information regarding individuals. For further information on the way Sanofi Group Companies manage personal information generally, refer to https://www.sanofi.com.au/en/privacy-policy which includes details regarding the personal information collected, how it is collected, what is done with it, who it is shared with, where it is sent and individuals’ information access, correction and complaint rights. In the context of credit applications, further information about these matters is set out at https://sanofi.applyeasy.com.au/credit, which also sets out the CRBs used by the Supplier, what they are used for and the opt-out and other privacy rights of individuals in relation to the Supplier and CRBs. The Customer agrees to the handling of their information as described in these policies.
(e) For the CRB Equifax, the Customer can visit https://www.equifax.com.au/credit-reporting-policy for Equifax’s credit reporting policy including contact details.
20. IMPROPER PAYMENTS
(a) If the Supplier pays the Customer a rebate in respect of purchases under these Conditions, the Customer warrants and represents that the Customer has not and will not promise, pay or give anything of value either directly or indirectly to any government official or any other third party for the purpose of obtaining or retaining business or any improper advantage for the Supplier. 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.
(b) The Customer must at all times comply with the Supplier’s Code of Ethics which is available at www.codeofethics.sanofi.
(c) The Customer agrees to permit the Supplier to take reasonable steps to ensure that rebates paid are properly used by permitting the Supplier’s auditors to access any relevant books, documents, papers and records of the Customer involving the payment of rebates by the Supplier.
(d) The Supplier may terminate the Customer’s credit account if the Supplier learns that the Customer is making, or has made, improper payments to government officials or any other third party.
21.NO EXPORT
(a) The Customer must not export, sell or supply the Goods outside Australia or supply any of the Goods it knows or could reasonably expect will be exported from Australia without the prior written consent of the Supplier, which may be withheld or provided in the Supplier’s sole discretion.
22.FORCE MAJEURE
(a) If by reason of a Force Majeure Event, either party is unable to perform in whole or in part any obligation under these Conditions (other than an obligation to pay for the Goods) such party will be relieved of that obligation under these Conditions to the extent and for the period that it is unable to perform, and will not be liable to the other party in respect of such inability.
23.GENERAL
(a) These Conditions are governed by the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
(b) These Conditions (together with any credit application) encompass the whole agreement between the parties and supersede or apply to the exclusion of any previous versions (express or implied) of terms, discussions, dealings, etc. between the parties, except to the extent clause 2(b) applies
(c) If any provision of these Conditions is invalid, illegal or unenforceable, these Conditions take effect (where possible) as if they did not include that provision.
(d) The Supplier may vary these Conditions at any time by at least 1 months’ written notice to the Customer, and the variation will take effect on the next order placed by the Customer after the date which is 1 month after such notice. There is no requirement for the Customer to accept the varied terms or to place further orders with the Supplier after such notice. The Customer’s continued purchase of Goods after such notification will evidence the Customer’s consent to the new terms and conditions of supply.
(e) The Supplier’s delay or failure to exercise any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on any party granting that waiver unless made in writing.
(f) The Customer must not assign or otherwise deal with its rights or obligations under these Conditions without the prior written consent of the Supplier. The Supplier may assign its rights under these Conditions by giving written notice to the Customer.
(g) These Conditions do not create a relationship of agency (except to the extent expressly stated in clause 10(c)(ii)), 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.
(h) Specifying anything in these Conditions after the words ‘include’ or ‘for example’ or similar expressions does not limit what else is included.