Pfizer Australia Pty Limited - Direct Accounts
TERMS AND CONDITIONS
The following are Pfizer Australia Pty Limited’s (ABN 50 008 422 348) (“Pfizer”) Terms and Conditions of Sale for Direct Accounts (“Terms”). Pfizer has appointed DHL Supply Chain (Australia) Pty Ltd (“DHL”) to provide services on its behalf to purchasers that have a Direct Account with Pfizer, and the Purchaser consents to DHL using its confidential information and to performing the obligations of Pfizer under these Terms that Pfizer may choose to delegate to DHL from time to time. These Terms apply to all deliveries/distribution of Products administered by DHL, on behalf of Pfizer, to the Purchaser. In the event of a conflict between any other terms and conditions of sale and these Terms, these Terms as amended from time to time prevail.
1.1 In these Terms, unless the contrary intention appears:
1.1.1 Consequential Loss includes loss of use, lost sales, lost income or profits, loss of opportunity, lost savings, increased or wasted expenses, delay or lost time, loss of or damage to goodwill, increased operating costs, wasted or increased financing costs, loss of or damage to data or records, loss of or unavailability of or damage to tangible or intangible property, losses or costs or expenses associated with identification, investigation, assessment, handling, replacement and any other special, indirect or consequential loss or damage;
1.1.2 Delivery Service Criteria means the procedures and timeframes that apply to delivery of the Products to the Purchaser, either by Pfizer or by DHL on behalf of Pfizer, as may be varied from time to time in accordance with these Terms, and a copy of which is available in the Portal;
1.1.3 Direct Account means an account for the direct purchase of Products from Pfizer;
1.1.4 Due Date means the date for payment for the Products by the Purchaser set out in clause 6.6;
1.1.5 Insolvency Event means in relation to a person (including, where applicable, a corporation), being in liquidation or provisional liquidation or under administration, having a controller (as defined in the Corporations Act 2001) or analogous person appointed to it or any of its property, being taken under section 459F(1) of the Corporations Act 2001 to have failed to comply with a statutory demand, being unable to pay its debts or otherwise being insolvent, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing its own affairs for any reason, taking any step that could result in the person becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001), entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors, or any analogous event;
1.1.6 Portal means the online portal made available to the Purchaser at www.pfizerdirect.com.au in relation to the Purchaser’s Direct Accounts;
1.1.7 Price List means Pfizer’s standard price list for the Products for Purchasers, as may be varied from time to time in accordance with these Terms, a copy of which is available in the Portal;
1.1.8 Product means the goods supplied by Pfizer under these Terms;
1.1.9 Purchaser means a party who has a Direct Account with Pfizer and places an order for the Products in accordance with these Terms; and
1.1.10 Rates means any rates, charges or fees applicable in connection with the supply of the Products including delivery fees. A copy of the Rates is available in the Portal, and the Rates may be varied from time to time by Pfizer in accordance with these Terms.
2.1 Pfizer reserves the right to accept or decline, in whole or in part, any order placed by the Purchaser.
2.2 Any order received from the Purchaser is deemed to be binding on the Purchaser from the time the order is placed, regardless of confirmation from Pfizer.
2.3 Any order, which is not greater than any applicable minimum order threshold as notified by Pfizer to the Purchaser from time to time, whether as a general minimum order threshold for that Product or for a particular Product deal, will be rejected by Pfizer. The Purchaser will be advised if the value and/or volume of a particular Product ordered does not exceed the applicable minimum order threshold.
2.4 If a Product ordered by the Purchaser is temporarily out of stock, Pfizer will notify the Purchaser. Pfizer will not create a pending order (back order) for the Purchaser. The Purchaser will be required to re-order once the Product is in stock.
2.5 The Purchaser must obtain all necessary licences and comply with all appropriate Commonwealth or State Acts and Regulations regarding the purchase and sale of any of the Products, including providing Pfizer with hard copies of all necessary licences in relation to the purchase of Narcotic (S8) products.
2.6 Purchases made by the Purchaser through a point of sale system may incur a processing fee in accordance with the Rates.
3. RE-DISTRIBUTION / ONSELLING PROHIBITION
3.1 The Purchaser may not at any time, directly or indirectly on-sell, transfer or distribute any Products to any company or individual that the Purchaser knows or reasonably ought to know purchases the Products with the intention of reselling those Products.
3.2 The Purchaser must not sell, transfer or distribute any of the Products to any person that it knows or reasonably ought to know, will or may export such Products out of Australia.
3.3 Without limiting clause 2.1, if the Purchaser breaches the prohibitions in clauses 3.1 or 3.2, Pfizer may decline to accept or fulfil any orders placed by the Purchaser until such time as Pfizer is satisfied, in its sole discretion, that the Purchaser is no longer in breach of these prohibitions, or will not breach these prohibitions in the future.
4.1 The Purchaser will be charged a delivery fee for each delivery of Products, in accordance with the Rates.
4.2 If, at the Purchaser's special request, non-standard delivery services such as express post, road overnight or air freight are used to deliver Products ordered by the Purchaser, the difference between the ordinary surface transportation delivery rate set out in the Rates and the actual cost to Pfizer for the non-standard delivery services may be charged to the Purchaser, including in circumstances where the Purchaser may not otherwise have been required to pay a delivery fee in respect of the delivery.
4.3 For the purpose of requesting replacement Products or the issue of a credit note under clause 7 in the event of any breakage, leakage or damage to individual Product packages occurring in transit between shipment from Pfizer’s warehouse and delivery to the Purchaser’s nominated receiving area, or in respect of a shortfall in the number of Products delivered in any consignment, the Purchaser must notify Pfizer within two (2) business days of receipt of the consignment of the shortfall and/or of the breakage, leakage, or damage in accordance with clause 7.1.1.
4.4 If the Purchaser does not receive a delivery of Products, the Purchaser must notify Pfizer of this within seven (7) days of the earlier of the date of invoice (unless the invoice is issued prior to the planned delivery of the Products) or advice of despatch, otherwise, where applicable, a credit note for the Products will not be provided to the Purchaser unless required by law.
4.5 Products will be delivered in accordance with the Delivery Service Criteria applicable from time to time. All Delivery times are exclusive of weekends.
4.6 The Purchaser acknowledges that Pfizer cannot control all aspects of the delivery process. Pfizer will endeavour to minimise all delays or failures to deliver Products. However, subject to clauses 4.3, 4.4, 4.5, 7 and 12 and to the full extent allowed by law:
4.6.1 Pfizer is not 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; and
4.6.2 any delay in delivery does not relieve the Purchaser of its obligation to accept that delivery and any remaining delivery.
5.1 All orders will be subject to the prices for the relevant Products set out in the Price List applicable at the date that the Purchaser places the order. No credit will be granted to the Purchaser for stock on hand in the event of a price reduction.
5.2 Pfizer will provide one business day prior notice of any change to the Price List. Any changes to the Price List will not affect any orders already placed by the Purchaser prior to the effective date of the change. Following any change to the Price List, the Purchaser may elect not to place any further orders for Products. Any orders for Products placed on and from the effective date of the change will be subject to the revised pricing.
5.3 The Purchaser is responsible for any tax or governmental charge imposed on sale or supply of the Products and an amount equivalent to the same will be added to the invoice price and is payable at the same time.
6. PAYMENT TERMS
6.1 Pfizer may decide to grant the Purchaser credit terms in relation to a Direct Account, but Pfizer is not obliged to do so merely because Pfizer receives a credit application from the Purchaser. If Pfizer in its absolute discretion allows the Purchaser credit terms for a Direct Account, then the Purchaser remains bound by these Terms and the credit terms are subject to any additional conditions that Pfizer may request when considering a credit application.
6.2 The Purchaser authorises Pfizer, its authorised agents or representatives, to make enquiries as to the credit and financial history and responsibilities of the Purchaser, and/or its directors, partners, other representatives or guarantors (as applicable), as required by Pfizer from time to time. If Pfizer so requires, the Purchaser must provide (and must procure that its directors, partners, other representatives or guarantors, as applicable, provide) any consent or authorisation required by law for Pfizer, its authorised agents or representatives to undertake any such enquiries, including obtaining reports from credit reporting bodies as to the consumer and/or commercial creditworthiness of the Purchaser and/or its directors, partners, other representatives or guarantors (as applicable).
6.3 Any credit terms that Pfizer extends to the Purchaser are granted subject to the essential condition that the Purchaser has made complete disclosure to Pfizer in the credit application of all material information relevant to Pfizer's decision to extend credit. The Purchaser must keep Pfizer promptly informed of any material adverse change in the Purchaser's financial or business circumstances.
6.4 Direct Debit: A copy of Pfizer’s Direct Debit policy is available at pfizerdirect.com.au. If the Purchaser is paying by direct debit, the Purchaser consents to the use of its confidential information by DHL for this purpose, and acknowledges that DHL will process the direct debit payments.
6.5 Credit Card Payments: If the Purchaser is paying by credit card, in addition to the specified prices in the Price List, the Purchaser must also pay Pfizer a credit card surcharge of 0.9% (inclusive of GST).
6.6 Due Date for Payment: If Pfizer has extended credit terms to the Purchaser, the Purchaser must pay Pfizer for the Products as follows:
6.6.1 where the payment is made by credit card/EFT/cheque: within 28 days from the end of the calendar month in which the Products were invoiced; and
6.6.2 where the payment is made by direct debit: within 45 days from the end of the calendar month in which the Products were invoiced.
6.7 If Pfizer has not extended credit terms to the Purchaser or if the Purchaser does not request or withdraws its request for credit terms, the Purchaser must pay the full amount for the Products before Pfizer will despatch the Products to the Purchaser.
6.8 If any amount owed to Pfizer under these Terms is not paid by the Due Date, without prejudice to any other rights Pfizer may have:
6.8.1 Pfizer may, in relation to any of the Purchaser’s Direct Accounts:
188.8.131.52 suspend or terminate the Purchaser’s credit facility with respect to any orders held by Pfizer or subsequently placed by the Purchaser;
184.108.40.206 change the Purchaser's payment terms to require payment upfront before delivery or to (other than where an order has already been despatched by Pfizer) shorten the payment period with respect to any orders held by Pfizer or subsequently placed by the Purchaser;
220.127.116.11 terminate or suspend any outstanding orders (including part orders); and/or
18.104.22.168 charge interest in accordance with clause 6.10; and
6.8.2 Pfizer will notify the Purchaser if it takes any of the actions in clauses 22.214.171.124 to 126.96.36.199; and
6.8.3 if Pfizer takes any of the actions in clauses 188.8.131.52 or 184.108.40.206, the Purchaser may cancel any existing orders for Products that have not yet been despatched by Pfizer.
6.9 If the amount referred to in clause 6.8 remains unpaid for 30 days following the Due Date, then at Pfizer's election all money that the Purchaser owes Pfizer on any Direct Account with Pfizer becomes immediately payable despite any previously agreed credit conditions.
6.10 The Purchaser must pay Pfizer interest at 5% per annum above the rate set by the Reserve Bank Official Cash Rate on any overdue amounts. Interest is calculated from the Due Date, on outstanding balances up to and including the day of payment or (if that falls on a weekend) up to the next working day. Accruing interest is calculated and compounded daily.
6.11 In addition to the right(s) specified in clause 6.8, Pfizer may in its absolute discretion and without assigning a reason, suspend or terminate the Purchaser's credit facility and will notify the Purchaser of this decision immediately. However if Pfizer so suspends or terminates the Purchaser’s credit facility, the Purchaser may elect to cancel any existing orders that have not yet been despatched by Pfizer. The Purchaser shall not be entitled to any compensation for termination of the credit facility.
6.12 The Purchaser agrees to pay Pfizer all reasonable costs including collection costs, commissions, bank charges and legal charges on a solicitor and client basis, on all monies outstanding on its account should the Purchaser breach any term or condition herein and/or should action be taken by or on behalf of Pfizer to recover the debt.
6.13 For the avoidance of doubt, the Purchaser acknowledges and agrees that if the Purchaser has an order that is also subject to other terms and conditions with Pfizer, then any late payment or failure to pay using the agreed payment methods under those terms and conditions or any other material default or breach of those terms and conditions by the Purchaser, will constitute a default under these Terms and it entitles Pfizer to exercise its rights and remedies under these Terms.
6.14 Pfizer may, if it considers it reasonably necessary, request that the Purchaser provide a personal or other guarantee in the form requested by Pfizer.
7.1 Subject to the conditions outlined herein, Products will be accepted for return and replacement (or, at Pfizer's discretion, credit) if they fall into any of the following categories:
7.1.1 Products that Pfizer is satisfied (acting reasonably) were subject to breakage, leakage or damage in transit between Pfizer’s warehouse and Purchaser’s nominated receiving area. In such instances, the Purchaser must notify Pfizer no later than two (2) business days after receipt of delivery. The Purchaser should also indicate on the carrier's consignment docket that Products are “damaged” or “subject to check”;
7.1.2 incorrect supply, that is, wrong Product, not sent in accordance with the Purchaser’s order;
7.1.3 Products that Pfizer is satisfied (acting reasonably) are faulty in materials or workmanship; and
7.1.4 Products that are returned under clause 12.
7.2 Without limiting the other provisions of clause 7 and to the extent permitted by law, the following products will not be accepted for return and no credit will be granted, or monies paid to the Purchaser in respect of these products:
7.2.1 Products sold on a non-return basis;
7.2.2 Products having a broken seal, label removed or other label / price tag attached;
7.2.3 Products that have exceeded their expiry date;
7.2.4 generic Products;
7.2.5 discontinued Products;
7.2.6 damaged Products, except as specified in clause 7.1.1 above; and
7.2.7 products that were not ordered by the Purchaser from Pfizer. For the avoidance of doubt, batch tracking of orders is in place. Pfizer products ordered by the Purchaser from another source cannot not be returned to Pfizer. If such products are incorrectly returned to Pfizer, they will not be returned to the Purchaser unless by special arrangement and at the Purchaser’s cost and risk.
7.3 If Pfizer accepts the return of any Products in accordance with clause 7.1 (Returned Products), Pfizer, at its discretion, will either:
7.3.1 deliver to the Purchaser, at its cost, replacement Products for the Returned Products, being the same or equivalent Products to the Returned Products; or
7.3.2 issue a credit note to the Purchaser for an amount equivalent to the purchase price paid by the Purchaser (not including any allowed rebate or credit) for the Returned Products,
provided that the Purchaser complies with Pfizer’s directions regarding the assessment and/or acceptance of the Returned Products and the Purchaser either returns the correct quantity and batch of Returned Products to Pfizer or destroys the Returned Products in accordance with clause 7.4.
7.4 The Purchaser must arrange to return the Returned Products to Pfizer within the timeframe requested by Pfizer. If the Purchaser fails to return the correct quantity and/or batch of Returned Products to Pfizer and wishes to collect the incorrectly returned Products from Pfizer, the Purchaser will be responsible for the costs of collecting the incorrectly returned Products from Pfizer. If requested by Pfizer, the Purchaser must destroy any Returned Products and provide confirmation of such destruction to Pfizer instead of such Returned Products being returned to Pfizer.
8.1 To the extent permitted by law, Pfizer 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 (“Force Majeure Event”). Pfizer will notify the Purchaser as soon as practicable if it seeks to rely on this clause, and will, where reasonably possible, provide details of the cause and extent of the Force Majeure Event and any expected delay.
8.2 The Purchaser must store the Products in accordance with the requirements stated on each pack, i.e. refrigeration and cool storage facilities must be provided for specified Products.
8.3 The risk in Products shall, unless otherwise agreed in writing by the Purchaser and Pfizer, pass to the Purchaser upon delivery to the Purchaser or its agent or to a carrier commissioned by the Purchaser, and despite the fact that ownership may not have passed to the Purchaser at that time.
8.4 The printing of Australian Product Numbering codes on its Product packs by Pfizer is not the subject of any contract between Pfizer and the Purchaser. Pfizer 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.
8.5 These Terms are governed by the laws from time to time of the State of New South Wales. In any or all legal actions that may howsoever arise in relation to these Terms, the Purchaser agrees to have such matters determined within the jurisdiction of the Courts of New South Wales and the Commonwealth of Australia.
8.6 The Purchaser agrees that Pfizer may deal with the Purchaser by electronic means including but not limited to having the Purchaser electronically sign or accept documents and receive electronic notices, including without limitation, invoices, statements, receipts, records or other documents (collectively “Notices”) at an electronic address or addresses (whether email address, SMS number or otherwise) nominated by the Purchaser in the Purchaser's Direct Account application or that the Purchaser may advise Pfizer from time to time for that purpose. The delivery of any Notice from Pfizer is effective when sent by Pfizer, regardless of whether the Purchaser has read the Notice when the Purchaser receives it or whether the Purchaser actually receives the Notice (other than if Pfizer receives a message that a Notice has not been sent or received). Pfizer also reserves the right to deal with the Purchaser by non-electronic means and to require the Purchaser to do so.
8.7 Pfizer reserves the right to vary or add to these Terms at any time by providing at least 7 days’ written notice to the Purchaser. Any such variation will not affect any orders already placed by the Purchaser prior to the effective date of the variation. Following variation of these Terms, the Purchaser may elect not to place any further orders for Products, however if the Purchaser does place any further orders this will be deemed to be a consent to the variation and all such orders placed on or after the effective date of the variation will be subject to the revised Terms.
8.8 Pfizer reserves the right to vary the Rates or Delivery Service Criteria by reasonable notice in writing to the Purchaser. Any such variation will not affect any orders already placed by the Purchaser prior to the effective date of the variation. Following variation of the Rates or Delivery Service Criteria, the Purchaser may elect not to place any further orders for Products, however if the Purchaser does place any further orders this will be deemed to be a consent to the variation and all such orders placed on or after the effective date of the variation will be subject to the revised Rates and/or Delivery Service Criteria.
8.9 Pfizer's rights are not limited by, or because of, any guarantee, indemnity or other security or security interest that Pfizer holds in connection with the Purchaser's obligations.
8.11 Any part of these Terms that is unenforceable, ambiguous or illegal will be severed from these Terms and such severance will not affect the enforceability of the remaining terms and conditions of these Terms.
9. OWNERSHIP PASSING ON PAYMENT
9.1 The following provisions apply to secure the payment, on the Due Date or other dates for payment, of amounts that the Purchaser owes to Pfizer and to secure its further obligations under these Terms. These provisions are essential conditions.
9.2 Property in each unit of the Products shall remain with Pfizer until all monies owing to Pfizer on account of the purchase price of that unit have been paid (the “Unpaid Monies”).
9.3 Until the Unpaid Monies have been paid, the Purchaser:
9.3.1 shall, subject to clause 9.4, take custody of the Products and retain them as Pfizer's trustee, fiduciary agent and bailee;
9.3.2 must not charge, mortgage or encumber the Products; and
9.3.3 shall ensure that the Products 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.
9.4 Until the Unpaid Monies have been paid, the Purchaser has the right to move, sell and otherwise use the relevant Products in the ordinary course of business, subject to the following:
9.4.1 the Purchaser may resell the Products, but only as fiduciary agent and trustee for Pfizer and by way of bona fide sale in the ordinary course of its business;
9.4.2 the Purchaser shall hold such part of the proceeds it receives from any sale of the Products under clause 9.4.1 that is less than or equal to the Unpaid Monies owed to Pfizer at the time of receipt (the "Proceeds") as fiduciary agent and trustee for Pfizer; and
9.4.3 the Purchaser shall place the whole of the Proceeds in an account separate from its own monies and maintain proper records of that account.
9.5 In the event of default by the Purchaser of these Terms or any agreement between Pfizer and the Purchaser in relation to the settlement of Unpaid Monies, or if the Purchaser is subject to an Insolvency Event, then:
9.5.1 immediately on Pfizer's request the Purchaser must return to Pfizer any Products acquired from Pfizer (under any Direct Account) on which there are Unpaid Monies;
9.5.2 the Purchaser irrevocably authorises Pfizer, its employees and agents to enter any premises or vehicle owned by the Purchaser for the purposes of taking possession of those Products if Pfizer has reasonable grounds to expect that Pfizer may find any part of those Products there and the Purchaser authorises Pfizer by its employees and agents to use all reasonable force to obtain such possession. That applies even if Pfizer holds some negotiable instrument or security for the Unpaid Monies; and
9.5.3 Pfizer may resell those Products.
9.6 In this clause 9, “paid” means receipt of cash or cleared funds by Pfizer in settlement of the Unpaid Monies and “Proceeds” (as defined above) includes all benefits (including book debts and choses in action) received by the Purchaser from the disposal, whether by sale or otherwise, of the Products or material incorporating the Products.
9.7 The Purchaser agrees that Pfizer may apply any payment from the Purchaser or on the Purchaser's behalf, at Pfizer's absolute discretion, irrespective of whether the Purchaser, or the person making the payment, directs how the payment is to be applied. Without limiting those general words, Pfizer may apply a particular payment to or towards a payment or obligation that the Purchaser owes to Pfizer that is not secured by any security interest or to or towards payment for a particular Product or Products rather than to another Product or Products.
9.8 The Purchaser must, if requested by Pfizer, register as agent of Pfizer a continuing security interest in favour of Pfizer in any Products that the Purchaser disposes of on credit terms, to further secure the payments and obligations that the Purchaser owes to Pfizer.
10. PERSONAL PROPERTY SECURITIES ACT
10.1 In this clause "commercial property", "proceeds", "security agreement" and "security interest" have the meanings given by the Personal Property Securities Act 2009 (“PPSA”).
10.2 The Purchaser acknowledges and agrees that these Terms:
10.2.1 constitute a security agreement for the purpose of the PPSA; and
10.2.2 create a security interest in:
10.2.2.1 all Products supplied by Pfizer to the Purchaser on retention of title terms; and
10.2.2.2 the proceeds of sale of Products supplied on retention of title terms by Pfizer to the Purchaser.
10.3 The Purchaser must act immediately when requested by Pfizer to do such acts and provide such information as Pfizer reasonably considers necessary or desirable to enable Pfizer to perfect any security interest created or provided by these provisions in the Products or any proceeds, with first priority or such other priority that Pfizer requires.
10.4 The following provisions of the PPSA do not apply – section 95 (notice of removal of accession, to the extent that it otherwise requires Pfizer to give a notice to the Purchaser), section 130 (notice of disposal, to the extent that it otherwise requires Pfizer to give a notice to the Purchaser), section 132(3)(d) (statement of account), section 132(4) (statement of account if no disposal), section 135(1)(a) (notice of retention, to the extent that it otherwise requires Pfizer to give notice to the Purchaser), and section 143 (reinstatement).
10.5 The Purchaser waives its right under section 157 of the PPSA to receive a notice in relation to any registration event in connection with any collateral that is commercial property.
10.6 Pfizer may delay disposing of, or taking action to retain, the whole or part of the collateral beyond the period mentioned in section 125(2) of the PPSA for as long as Pfizer sees fit provided Pfizer acts honestly.
10.7 Pfizer reserves all rights and powers in relation to any security interest that is in addition to any right or power conferred under the PPSA.
10.8 Pfizer may choose between its various rights and powers, including for enforcement of its security interest, as Pfizer sees fit and without limiting its other rights and powers.
11. WAIVER AND VARIATION
A provision of or a right created under these Terms in favour of Pfizer may not be waived or varied except in writing signed by Pfizer. Pfizer 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 Pfizer.
12. AUSTRALIAN CONSUMER LAW
12.1 Exclusion of implied conditions. 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.
12.2 Acknowledgement as to representations. The Purchaser acknowledges that Pfizer 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.
12.3 Australian Consumer Law etc. limits. This clause 12.3 only applies if the Purchaser is a deemed "consumer" under the Australian Consumer Law (as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) and may not apply in every case. Pfizer does not vary or extend the remedies otherwise available to any Purchaser who is not a “consumer” by including the following.
Pfizer's products come with guarantees that cannot be excluded under the Australian Consumer Law. The Purchaser is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Purchaser is also entitled to have the products repaired or replaced if the products fail to be of acceptable quality and the failure does not amount to a major failure.
Provisions of the Competition and Consumer Act 2010 (Cth), the Australian Consumer Law, and other statutes in some cases either cannot be excluded, restricted or modified; or can only be restricted or modified to a limited extent. If any provisions of those types do apply, then to the extent permitted by law, Pfizer's liability under those provisions is limited as follows: Pfizer's liability in relation to the Products is limited at Pfizer's option to replacement of the Products or the supply of equivalent Products; or repair of the Products; or payment of the cost of replacing the Products or of acquiring equivalent goods; or payment of the cost of having the Products repaired. Pfizer's liability in relation to services is limited at Pfizer's option to the supplying of the services again; or the payment of the cost of having the services supplied again.
12.4 Full liability for injury and death. Pfizer does not seek to exclude its legal liability (if any) for any death or personal injury which is caused by its own negligence. However, even where Pfizer is liable for death or personal injury, Pfizer is not liable for any associated Consequential Loss. Also, Pfizer is not liable to the extent that something was caused or contributed to by the Purchaser's negligence or by the negligence of the Purchaser's employees, consultants or agents or of any third party.
12.5 Other claims excluded. Except as stated in these Terms and to the extent permitted by law, Pfizer is not liable for, and the Purchaser does not rely on being able to claim against Pfizer for, any loss or damage or Consequential Loss under or in relation to these Terms or anything done or omitted to be done in relation to these Terms, or in relation to any representation or conduct before, under or in respect of any order under these Terms, and whether or not the possibility or potential extent of the loss or damage or Consequential Loss was known or foreseeable whether in contract or for negligence or any other tort or for breach of statutory, fiduciary or other duty (if any) and whether or not the act or conduct was authorised or required.
12.6 Neither party will be liable to the other for any Consequential Loss under or in relation to these Terms.
12.7 Notwithstanding any other clause of these Terms, Pfizer acknowledges that the Purchaser’s liability in relation to any loss or damage suffered or incurred by Pfizer under or in relation to these Terms is reduced proportionately to the extent that Pfizer’s own negligence caused or contributed to such loss or damage.
13.1 Rebates may be granted by Pfizer to the Purchaser at its discretion, and will only be able to be applied in relation to a specific pharmaceutical retail premises linked to the Purchaser’s Direct Account (“Pharmacy”). All rebates will be granted on the condition that:
13.1.1 the Purchaser is not in continuing breach of its obligations under these Terms or any agreement between Pfizer and the Purchaser in relation to rebates applicable to the Pharmacy;
13.1.2 the Purchaser is not subject to an Insolvency Event; and
13.1.3 the Purchaser has not sold, transferred or otherwise changed the ownership of the Pharmacy to which the rebates relate.
13.2 Rebates cannot be taken as cash or offset against any amounts owing to Pfizer without a credit note being issued by Pfizer.
13.3 If the Purchaser is subject to an Insolvency Event or is in breach of these Terms or other agreement between Pfizer and the Purchaser in relation to rebates applicable to the Pharmacy, then any entitlement of the Purchaser to any rebates applicable to the Pharmacy will lapse and Pfizer will notify the Purchaser of the loss of the entitlement.
13.4 If the Purchaser sells, transfers or otherwise changes ownership in respect of the Pharmacy, the Purchaser ceases to be entitled to any rebates applicable to the Pharmacy, and any rebates, which are not transferable, will instead remain with the Pharmacy.
14. IMPROPER PAYMENTS
14.1 If Pfizer grants the Purchaser any rebates in respect of purchases under these Terms, the Purchaser warrants and represents that 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 obtaining any improper advantage for Pfizer. In this clause, 'government official' means any official, officer, representative, or employee of (including any health care professional) 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.
14.2 The Purchaser must at all times comply with the Pfizer Anti-Bribery and Anti-Corruption Principles which are available at www.pfizer.com.au.
14.3 The Purchaser agrees to permit Pfizer to take reasonable steps to ensure that rebates paid are properly used by permitting Pfizer's auditors to access any relevant books, documents, papers and records of the Purchaser involving the payment of rebates by Pfizer.
14.4 Pfizer may terminate the Purchaser's credit account if Pfizer learns that the Purchaser is making, or has made, improper payments to government officials.