Terms & Conditions of Sale
1 Supply
1.1 Fisher & Paykel Healthcare Limited (FPH) agrees to supply the
products (the Products) as set out in the attached FPH pro forma
invoice or FPH order confirmation (as applicable) to the purchasing
entity (Purchaser) stated on that invoice or order confirmation (as
applicable) on the terms of this agreement.
1.2 All terms contained in a purchase order or any other document
issued by the Purchaser are excluded, other than to the extent
expressly agreed in writing by FPH.
1.3 These terms and conditions shall prevail in the event of any
inconsistency with any other terms forming part of this agreement.
2 Changes to order
2.1 The Purchaser cannot cancel or modify this order once placed, but in
the event FPH receives the Purchaser’s request for modification at
least five business days before the forecasted shipping date, FPH
may, at its absolute discretion, elect to allow all or any of the
requested modifications and in such instance, shall provide the
Purchaser with written confirmation of the same.
3 Price and payment
3.1 The price for the Products (Price) shall be as set out in the attached
FPH pro forma invoice or FPH order confirmation (as applicable) or,
in the event the price is not set out therein, as set out in FPH’s most
recently published price list. Unless otherwise stated, the Price is
quoted Ex-Works (Incoterms 2010) FPH’s premises at 15 Maurice
Paykel Place, East Tamaki, Auckland, New Zealand.
3.2 At the request and cost of the Purchaser, FPH may, at its absolute
discretion, elect to act as the Purchaser’s agent to arrange shipping,
insurance and transport of the Products. In such event, all freight
charges, where applicable, will be assessed by reference to FPH’s
current shipping rates. If FPH does not elect to arrange freight
insurance for the Products as the Purchaser’s agent, the Purchaser
must ensure that it arranges such insurance and must provide details
of such insurance to FPH on request.
3.3 The Purchaser will pay FPH the Price plus any applicable taxes
(such as Goods and Services Tax or any other sales or similar taxes)
and if applicable, the charges referred to in clause 3.2.
3.4 All payments due to FPH in connection with this agreement must be
made in full in advance of the supply of the Products. Any delay in
payment by the Purchaser may result in delay in the supply of the
Products.
4 Risk, property and delivery
4.1 Any time for delivery stated by FPH is an estimate only and whilst
FPH will use reasonable endeavours to deliver by any requested
delivery date, it does not warrant that such date will be met. In no
case shall FPH be liable for loss or damage resulting (directly or
indirectly) from a failure to deliver by any specific date. For the
avoidance of doubt, delays in delivery shall not entitle the Purchaser
to cancel its order, withhold payment, refuse to accept delivery of
Products or charge FPH costs or interest.
4.2 The Purchaser is, on delivery, responsible for checking all Products
for compliance.
4.3 The Purchaser shall be deemed to accept delivered Products unless:
(a) the allegedly non-compliant Products are returned to FPH in
accordance with the ‘authorized returns process’ set out in
clause 4.6; and
(b) after performing its internal quality controls and checks FPH
(through a FPH Customer Care representative or FPH’s
International Sales Manager) confirms in writing that the
Purchaser is not responsible for the detected damage,
discrepancy or other non-compliance of the returned Products.
4.4 To the extent FPH confirms that the Purchaser is not responsible for
the detected damage, discrepancy or other non-compliance of the
returned Products, FPH shall provide the Purchaser with a credit for
the same and FPH shall not have any continuing liability to the
Purchaser in connection with the same.
4.5 FPH may charge the Purchaser a restocking fee for returned
Products.
4.6 The parties agree that the ‘authorized returns process’ is as follows:
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(a) the Purchaser must report any discrepancies within 72 hours
of receipt of the allegedly non-compliant Products;
(b) the Purchaser must contact FPH’s customer service
department and request a ‘Returned Material Authorization’
(RMA) number;
(c) the Purchaser must clearly label the external packaging of the
returned goods with the RMA number;
(d) the allegedly non-compliant Products must be returned to FPH
in their original packaging, without any modification; and
(e) the allegedly non-compliant Products must be returned to FPH
under ‘freight prepaid’ terms and must be returned to FPH
within 30 days from issuance of the RMA.
4.7 FPH may refuse unauthorized returns and return them to the
Purchaser at the latter’s expense and risk. By way of example, but
without limitation, unauthorized returns shall include:
(a) Products which appear to have been used, to have sustained
damage or alongside which there is a possibility that bio-
hazardous material is present; and
(b) RMA requests initiated 30 days or more after the invoice date.
4.8 Risk in, ownership of and property in the Products shall pass to the
Purchaser on delivery.
5 Medical devices requirements
5.1 The Purchaser represents and warrants to FPH as follows:
(a) that the Purchaser complies with and will continue to comply
with all applicable laws and regulations relating to the
importation, storage, distribution, promotion, sale and, if
applicable, installation, servicing and maintenance, of the
Products; and
(b) that the Purchaser does not and will not engage in, or direct a
third party to engage in, any form or bribery or other corruptive
behaviour, in connection with the importation, storage,
distribution, promotion, sale and, if applicable, installation,
servicing and maintenance, of the Products.
5.2 The Purchaser agrees that it shall:
(a) follow all instructions specified on the packaging, in the user
instructions and product manuals, for the Products relating to
their storage;
(b) establish and maintain a system that ensures it is possible to
trace each of the Products to their End User;
(c) ensure all original labelling and Product labels are maintained
and that no such labelling or Product labels are substituted or
removed without FPH’s express permission;
(d) ensure that any installation, servicing or repair of the Products
is only carried out by appropriately qualified and trained staff;
(e) dispose of any non-conforming Products in accordance with
mutually agreed upon procedures for destruction or other
means as notified by FPH; and
(f) in a readily retrievable and backed up system retain all
documents, records and reports associated with the
importation, storage, distribution, promotion, sale and, if
applicable, installation, servicing and maintenance ,of the
Products as follows:
i. seven years from the creation of such document, record
or report relating to or in connection with the Disposable
Products and following this period these documents,
records or reports may only be disposed of with the
prior written consent of FPH; and
ii. 17 years from the creation of such document, record or
report relating to or in connection with the Other
Products, and following this period these documents,
records or reports may only be disposed of with the
prior written consent of FPH.
5.3 In the event the Purchaser or any of its employees, contractors or
directors becomes aware of a Complaint, the Purchaser shall as
soon as practicable, and in any event within five business days,
notify FPH (in reasonably sufficient detail) of the same.
5.4 Unless FPH notifies the Purchaser otherwise or any applicable law or
regulation requires otherwise, FPH shall conduct any investigation,
vigilance reporting and/or communication (including, without
limitation, to the relevant authorities and the End Users) required to
be carried out in relation to a Complaint. The Purchaser shall co-
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 Terms & Conditions of Sale
operate with, and provide FPH with all assistance as reasonably
requested by, FPH to conduct these activities.
5.5 Unless applicable law or regulation requires otherwise, FPH shall
have sole responsibility to determine whether and when to conduct a
Field Action with regard to any of the Products. The Purchaser shall
co-operate with, and provide FPH with all assistance as reasonably
requested by, FPH in connection with any determination by FPH as
to whether a Field Action is to be conducted.
5.6 In the event of a Field Action in relation to any of the Products, the
Purchaser shall, at its cost:
(a) comply with FPH’s instructions, protocols and notices which
set out the actions the Purchaser is required to take;
(b) perform such required actions expeditiously and efficiently
within any timeframes established by and communicated to
the Purchaser by FPH, and to provide FPH with reports on its
progress as required by FPH; and
(c) immediately notify FPH upon completion of all required
actions pursuant to the relevant instructions, protocols or
notices.
5.7 For the avoidance of doubt, neither party is liable to the other for any
indirect, incidental, consequential, special or exemplary costs,
losses, expenses or damages relating to or in connection with any
Complaint or Field Action.
5.8 On reasonable notice by FPH, the Purchaser agrees to make
available for inspection by FPH all relevant books, records and
documents to enable FPH to verify the Purchaser’s compliance with
its obligations in clause 5.
6 Liability
6.1 To the fullest extent permissible by law:
(a) the total liability of FPH arising from or in connection with the
Products supplied, whether such liability is based on contract,
warranty, negligence or otherwise, will not exceed the
purchase price of the Products in respect of which the claim is
made. FPH shall at its sole discretion elect whether to repair,
replace or provide the Purchaser with a refund, for any
defective or damaged Products; and
(b) FPH will not be liable to the Purchaser for any loss or damage
of any kind, including (without limitation) any consequential or
indirect damage or loss, or any bodily injury or death, arising
from or in connection with the Products. Without limiting the
generality of the foregoing, FPH shall not be liable in any way
for any loss or damage of any kind arising out of any warranty
given, or representation made, by the Purchaser in relation to
the Products.
7 Confidentiality and intellectual property
7.1 FPH and the Purchaser will keep confidential the terms of this
agreement and any information they learn about the other or the
other’s business in the course of carrying out this agreement unless
prior written consent is given by the other party or unless disclosure
is required by law or the requirements of any stock exchange.
7.2 The Purchaser acknowledges and agrees that FPH shall at all times
retain all intellectual property rights in the Products and any
documents furnished by FPH in connection with this agreement.
7.3 Nothing in this agreement shall be read to construe or grant to the
Purchaser any rights (proprietary or otherwise) or licences of any
kind in relation to FPH’s intellectual property rights.
8 Termination
8.1 FPH may immediately terminate this agreement on notice to the
Purchaser if:
(a) the Purchaser is or becomes Insolvent; or
(b) the Purchaser commits a breach of clause 5.1 of this
agreement.
8.2 Termination of this agreement will not operate as a waiver of any
breach of this agreement and will be without prejudice to any rights,
liabilities or obligations of either party which have accrued up to the
date of termination. Clauses 5, 6, 7, 8.2 and 9 shall continue in force
notwithstanding termination.
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9 General
9.1 Each term in this agreement is separately binding. If for any reason
either party cannot rely on any term then all the other terms remain
binding.
9.2 Failure or omission by a party at any time to enforce or require strict
or timely compliance with any provision of this agreement will not
affect or impair that provision in any way or the rights of that party to
avail itself of the remedies it may have in respect of any breach of
that provision or any other provision.
9.3 Notwithstanding any other provision in this agreement, non-
performance by either party of any of its obligations under this
agreement (other than the Purchaser’s obligation to make the
payments referred to in clause 3.3) will be excused, without liability
for non-performance during the time and to the extent the
performance is prevented, wholly or substantially, by an event
beyond the reasonable control of the party claiming the benefit of this
clause. Performance of the obligation is to resume as soon as the
event has ended, and if the event has not ended within 60 days, the
other party may terminate this agreement immediately on notice.
9.4 Nothing in this agreement should be interpreted as constituting either
party an agent, partner or employee of the other and neither party
may pledge the credit of the other nor represent to anyone that:
(a) it is the other party or is an agent, partner or employee of the
other party; or
(b) it has any power or authority to incur any obligation of any
nature on behalf of the other party.
9.5 Notices under this agreement must be in writing and may be
delivered by hand, by mail or by facsimile to the contact details
notified by the relevant party.
9.6 Any notice will be deemed to be duly given or made:
(a) if delivered by hand, when delivered;
(b) if sent by facsimile, on receipt of transmission if received on a
business day or otherwise at the beginning of the first
business day following transmission; or
(c) if sent by post, on the third business day following posting.
9.7 This agreement is governed by and construed in accordance with
New Zealand law and the parties submit to the exclusive jurisdiction
of the courts of New Zealand. For the avoidance of doubt, the parties
acknowledge that the Vienna Convention on the International Sale of
Goods shall not apply.
9.8 In this agreement:
(a) “business day” means any day other than a Saturday, Sunday
or statutory holiday in Auckland, New Zealand;
(b) “Complaint” means any written, electronic or oral
communication from a third party that alleges deficiencies
relating to the identity, quality, durability, reliability, safety,
effectiveness or performance of any of the Products;
(c) “Disposable Products” means any of the Products that are
intended to be used on one individual patient only and then
discarded;
(d) “End User” means the last entity or individual to purchase any
of the Products before it is put into servicing;
(e) “Field Action” means a field safety corrective action, product
recall, field correction, removal, notice, containment or hold
action;
(f) “Insolvent” means being insolvent, being an insolvent under
administration, being in liquidation, provisional liquidation or
the subject of an application for winding up, being under
administration or subject to any arrangement, assignment or
composition with creditors, bankrupt or otherwise protected
from creditors under any statute, or if a person is appointed
under legislation to investigate or manage any part of the
Purchaser’s affairs or if the Purchaser suffers execution or
judicial seizure against any of its assets; and
(g) “Other Products” means those of the Products which are not
Disposable Product.
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