Terms and Conditions of Product Sale by VWR International, LP. (VWR)
1. Acceptance - ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON CUSTOMER'S ASSENT THERETO. THE TERMS AND CONDITIONS CONTAINED HEREIN WILL BE CONTROLLING, AND ANY ADDITIONAL AND/OR INCONSISTENT TERMS AND CONDITIONS SET FORTH IN ANY ACKNOWLEDGMENT, PURCHASE ORDER, OR ACCEPTANCE DOCUMENTS REQUESTED FROM AND/OR PROVIDED BY CUSTOMER ARE EXPRESSLY REJECTED. NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON VWR UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF VWR.
2. Specifications - Product specifications are subject to change without prior notice.
3. Delivery – If the carrier is ordered by the customer, delivery of orders will be FCA, (INCOTERMS, 2010). If VWR arranges the carrier, title of all Products shall transfer to Customer upon VWR's delivery of such Products to the carrier and the risk in the Products shall pass to the Customer on completion of delivery. Shipping and handling fees, special packaging materials (e.g., blue ice), carrier surcharges (including fuel surcharges) and hazardous material fees imposed by government regulation will be added separately to the invoice.
4. Security - The Customer acknowledges and agrees that: It grants a security interest in all Products supplied by VWR, which secures payment of the purchase price for all Products; and that security interest is a purchase money security interest (as defined in the Personal Property Securities Act 1999 (the “PPSA”)). In addition to the security interest referred to above, the Customer charges in favour of VWR all Products supplied by VWR to secure all indebtedness owed by the Customer to VWR. Without limiting any other provision of these terms and conditions, the Customer agrees that, if it defaults in the payment of any indebtedness owed by it to VWR, VWR may: take possession of any Product; and/or dispose of any Product in such manner and generally on such terms and conditions as VWR thinks desirable. VWR may apply or appropriate all money received from the Customer to reduce the Customer's indebtedness to VWR in the order, and to satisfy any part of that indebtedness, as VWR sees fit (including so as to enable VWR to preserve any purchase money security interest (as defined in the PPSA)). An application or appropriation by VWR will override any appropriation made by the Customer. The Customer: agrees to promptly give VWR all assistance and information (including signing any documents and providing any information) that VWR requests to ensure that VWR has a perfected first ranking security interest in all Products (and the proceeds thereof) supplied by VWR, including anything that VWR requests to enable VWR to register and maintain (including renew before expiry) one or more financing statements in relation to each security interest created by these terms and conditions; agrees that VWR may register a financing statement on the Personal Property Securities Register against the Customer; agrees not to change any of its name or registered number (or other details recorded in any financing statement) without notifying VWR in writing of the Customer’s intention to change the relevant detail at least 10 business days prior to doing so; waives the right to receive any verification statement (as defined in the PPSA) or notice of any verification statement under the PPSA; and contracts out of sections 114(1)(a), 133 and 134 of the PPSA and waives its rights under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA.
5. Damaged Shipments - Please inspect your VWR shipment upon receipt. If any external damage is noticed, accept the shipment only after the driver has noted the damage on both his and your copies of the delivery receipt and you have requested an inspection by the carrier. Keep all containers and packing material for inspection. If, upon opening a shipment, you find a shortage or damage, you must request inspection by the carrier within 24 hours of delivery or you will relinquish your right to make a claim. VWR International reserves the right to repair a damaged product, where applicable, before replacement or credit is determined.
6. Payment Terms - Individual invoices, net thirty (30) days from date of invoice; summary invoices, if any, will be due as agreed. Payments are to be made in freely available New Zealand dollars, including applicable taxes, and other charges such as government imposed surcharges which VWR may be required to pay or collect with respect to the sale or transportation of the Products, or the provision of Services. Payment is considered late when it is received into VWR's lockbox after the due date, which may result in an additional service charge as described further in this section. Delinquent accounts will be subject to a service charge on past due amounts of one and one-half percent (1 1/2%) per month (or, if less, the maximum amount permitted by law). Payment by credit card may only be used as a prepayment method when placing orders or for past due collections. When a credit card is used to pay monies to satisfy a past due account, Customer will be charged bank rates. Customer will provide VWR, concurrent with each payment, with remittance information in sufficient detail (to the invoice level or line level as the case may be) to allow VWR to properly apply payments or credit memos to outstanding receivable(s) on VWR's accounts receivable sub-ledger for Customer. Customer shall also include its account number with any remittance. Failure to supply VWR with such remittance detail will result in additional processing delays and may affect the credit status of pending or future Customer purchase orders. When Customer wishes to apply one or more credit memos towards a payment amount owed VWR, Customer agrees to provide VWR, on a timely basis, the specific credit memo number(s) and amount(s) to be applied, in addition to the remittance information requirements above. If Customer does not provide such information on a timely basis, VWR shall apply any such credit memos to outstanding receivables, beginning with the most-aged receivables first. If required, Customer agrees to complete, sign and submit a standard VWR credit application to VWR's Accounts Department. Customer will provide, or make available to VWR upon request, its latest audited financial statements (or unaudited financial statements, if audits are not performed). VWR agrees to keep such information confidential and to use it exclusively to evaluate and apply a credit score or rating to Customer for extension of credit purposes or pending transactions. Furthermore, Customer agrees to inform VWR of any material adverse change in its business that would reasonably be expected (by an independent 3rd party) to negatively impact its outstanding or future payment obligations and the terms or conditions contained herein.
7. Goods and Services Tax - All prices quoted for any supplies made under these terms and conditions do not include any amount on account of Goods and Services Tax (GST). If GST is payable on any supply made by VWR under or in connection with these terms and conditions, the Customer must pay to VWR, an additional amount equal to the GST payable on the supply. If GST is payable on a supply, VWR will give the Customer a tax invoice for the supply.
8. Product Return Policy
(a) The return of goods must be agreed with VWR on a case-by-case basis. All Returns are subject to a minimum 20% restocking charge, which VWR may issue on a case-by-case basis. For returns not due to VWR error, customer is responsible for all transportation fees related to the returned product. To ensure proper credit, each Product return must include the following information:
Customer Name and Address
Purchase Order Number
VWR Shipping Order Number
Date of Invoice
Catalogue Number of Returned Item(s)
VWR Return Authorization Number
Reason for Return
(b) Products not authorised for return include:
Products not in completely resalable condition (including Products with damaged, missing or defaced labeling or packaging)
Chemicals, reagents, diagnostics, sterile or any controlled products (unless products do not meet specification)
Laboratory apparatus or instruments that have been used or are without the original packaging, labeling and operating manuals.
Refrigerated products or other perishables
Products which are not inventoried by VWR and are not able to be returned to the manufacturer
Products purchased on a Special Order Basis
Products not purchased from VWR
Products with an expired shelf life or an expiration date too short for resale
(c) Each return shipment of hazardous materials must be packed and labelled in accordance with applicable regulations applying to transportation of hazardous materials. Shipping documents must also meet applicable transportation regulations. When necessary, Customer shall include with each return shipment of equipment, a certification from an authorized representative of the company that the equipment was properly decontaminated in accordance with current regulations and other recommended guidelines. The product should be shipped to the indicated service centre and the transportation charges prepaid. To ensure prompt handling, the return authorization number should be placed on the outside of the package.
9. Product and Service Warranties
(a)To the maximum extent permitted by law, VWR hereby disclaims all warranties or guarantees other than those set out below, with respect to the subject matter of these terms and conditions, whether statutory, written, oral, express or implied including, without limitation, any warranty of merchantability, suitability or fitness for a particular purpose, other than those set out in these Terms and Conditions.
(b) VWR warrants to the original Customer only that: i. VWR VistaVision™ microscopes are guaranteed to be free of defects in material or workmanship for three (3) years from delivery, with the exception of the electrical system, which is guaranteed to be free of defects in material or workmanship for one (1) year from delivery; VWR sympHony™ meters are guaranteed to be free of defects in material or workmanship for three (3) years from delivery; and all VWR Private Label equipment is guaranteed to be free of defects in material or workmanship for two (2) years from delivery; ii. all VWR Private Label laboratory casework will, under normal use, be free from defects in material or workmanship for one (1) year and corrosion for three (3) years from installation date and, if VWR installs the laboratory casework, the installation labor will be guaranteed for one (1) year; iii. All software programs are warranted in accordance with the software vendor's license agreement; iv. all other Products, branded and private label, will meet the manufacturer's specifications for a term equal to the warranty period stated in the Product manufacturer's literature or sixty (60) days, whichever is longer; and v. Services provided, if any, will be of the kind and quality designated and will be performed by qualified personnel. vi. VWR makes no claims or warranties concerning sustainable/green products. Any claims concerning sustainable/green products, including but not limited to, any of the following: green, recycled, recyclable, reusable, refillable, renewable, biodegradable, degradable, photodegradable, compostable, carbon footprint, renewable sources, source reduced, ozone safe, ozone friendly, environmentally friendly, no CFC.s, CRC-Free, are the sole claims of the manufacturer and not those of VWR.
10. Limitation of Liability
(a) EXCEPT IN RELATION TO NON_EXCLUDABLE CONDITIONS, IN NO EVENT SHALL VWR HAVE ANY OBLIGATION OR LIABILITY FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ECONOMIC LOSS, LOSS OF PROFITS, USE OR GOODWILL), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION IN CONNECTION WITH THESE TERMS AND CONDITIONS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE TOTAL LIABILITY OF VWR (INCLUDING ITS SUBCONTRACTORS AND AGENTS), IF ANY, FOR DAMAGES RELATING TO ANY PRODUCTS SOLD UNDER THIS AGREEMENT SHALL BE LIMITED TO THE PRICE PAID FOR SUCH PRODUCT(S) AND THE TOTAL LIABILITY OF VWR (INCLUDING ITS SUBCONTRACTORS AND AGENTS), IF ANY, FOR DAMAGES RELATING TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID FOR THE SERVICE GIVING RISE TO SUCH CLAIM.
(b) If any Product or Service warranted hereunder proves defective or non-conforming, VWR's sole liability and Customer's sole remedy hereunder shall be for VWR, to repair or, at VWR's option, (i) replace (or re-perform the Service), at no cost to Customer, any such defective or non-conforming Product with a non-defective or conforming Product (as applicable) or (ii) credit Customer's account for all amounts paid with respect to the defective or non-conforming Product or Service upon VWR's receipt of the defective or non-conforming Product. In the event of replacement, the replacement Product will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer.
(c) The liability of VWR under the limited product warranties does not extend to any Products which are abused, altered or misused by the Customer or any other persons or entities or which become defective or non-conforming through the actions or inaction of the Customer or any other persons or entities. A defective or non-conforming Product is defined only as a Product which is outside of the manufacturer's defined Product specifications, and shall not include Products that fail to meet any fitness of use by Customer or any unique Customer operating conditions or applications.
(d) If a Product should require service, contact the VWR office nearest your location for instruction (for a complete list of offices, see your VWR catalogue). When the return of the Product is necessary, a return authorization number will be assigned and the Product shipped, transportation charges prepaid, to the indicated service centre. To insure prompt handling, the return authorization number should be placed on the outside of the package and a detailed explanation of the defect enclosed with the Product.
11. Export Controls - Products purchased or received under this Agreement are subject to export control laws, restrictions, regulations and orders of the United States. Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not export, or transfer for the purpose of re-export, any Product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such United States or foreign law or regulation. Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the Products or services hereunder. Customer shall be responsible to obtain any license to export, re-export or import as may be required.
12. Proprietary Information - Each party (a "Recipient") shall maintain in confidence, not disclose to any third party, and not use, except for the specific purpose of performing under this Agreement, all proprietary information furnished to it by the other party (a "Discloser") or any Discloser Affiliate in connection with this Agreement, or derived from the Discloser or any Discloser Affiliate in performance of this Agreement, and shall return to the Discloser or a Discloser Affiliate, upon request, all copies (then in Recipient's possession) of documents and other tangible media furnished by or derived from Discloser or such Discloser Affiliate, respectively, in connection with the performance of this Agreement. The Recipient shall inform its employees, agents, and representatives of these obligations and shall require them to assume equivalent obligations.
(a) Termination - This Agreement may be terminated by either party for convenience at any time upon reasonable written notice delivered to the other party. In the event of any termination or expiration of this Agreement, Customer shall be billed immediately for Products shipped through the effective date of such termination or expiration and all custom Products purchased for Customer in VWR's inventories at such date, and Customer shall pay the invoiced amount immediately upon receipt of such invoice.
(b) Force Majeure - In the event either party is prevented in whole or in material part from performing its obligations under this Agreement solely as a result of force majeure, upon the prompt giving of notice to the other party detailing such force majeure event and its anticipated duration, the obligations of the party so prevented shall be excused during such period of delay, and such party shall take whatever reasonable steps are necessary to relieve the effect of such cause as rapidly as possible.
(c) Merger, Modification, Waiver - No amendment, modification or waiver of these terms shall be binding on either party unless reduced to writing and signed by an authorized officer of the party to be bound, and in the case of a waiver, shall be effective only in the specific instance and for the specific purpose for which given, and shall not be construed as a waiver of any subsequent breach. The failure of either party to enforce at any time or for any period of time any of the provisions of this Agreement shall not be construed as a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision. No course of dealing, usage of trade or course of performance shall supplement, explain or amend any term, condition or instruction of this Agreement, or any shipment of Products hereunder.
(d) Applicable Law - All orders, sales and these terms and conditions shall be governed by the laws of New Zealand, excluding conflict of law rules. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New Zealand.
(e) Authority to Enter Into Agreement - Each party represents and warrants that it is authorized to enter into this Agreement and that in so doing it is not in violation of the terms or conditions of any contract or other agreement to which it may be a party.
(f) Assignment - This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees; provided, however, neither party shall have the right to transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party (except that either party may assign this Agreement to a parent, subsidiary or successor corporation without such consent).
(g) Nature of Relationship - Neither party, its employees or permitted subcontractors or agents shall, under any circumstances, be considered to be an agent, partner, joint venturer or representative of the other party.