|Terms & Conditions Of Sale 2021 – USA
|1. Definitions "Company” means Millpledge North America, Inc.
"Customer” means any person, body of persons, firm, or company (acting or through any employee or agent) with whom the Company enters a Contract for the sale of Goods by the Company.
"Contract” means the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with these terms and conditions.
"Goods” means any product to be supplied or sold to the Customer by the Company under the Contract.
"Site” means the place where the Goods are to be delivered.
2. These Terms and Conditions to Prevail
2.1 All Contracts between the Company and the Customer, whether made orally or in writing, are subject to these terms and conditions which shall be deemed to be incorporated into the Contract, unless different conditions have expressly been confirmed by the Company in writing.
2.2 These terms and conditions shall supersede all prior understandings, and shall constitute the whole agreement, between the Company and the Customer. They shall not be modified or varied by the Customer unless specifically accepted by the Company in writing.
2.4 In the event of any conflict between these terms and conditions and any other terms and conditions (whether express or implied, incorporated or referred to in any communication from the Customer) then these terms and conditions shall prevail and the Customer’s terms and conditions shall be excluded in whole from the Contract. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in any documents of the Customer that is inconsistent with these terms and conditions.
3. Quotations and Acceptance of Order
3.1 A quotation or price amendment by the Company does not constitute an offer and the Company reserves the right to withdraw or revise a quotation at any time prior to the Company’s acceptance of the Customer’s order. Unless otherwise stated, all prices quoted shall be deemed to be withdrawn on or after the date stated on the quotation.
3.2 Subject to the Company’s sole discretion, no cancellation or variation of an order by the Customer is accepted by the Company unless approved in writing by a Director or Departmental Manager of the Company. In case of cancellation or variation of an order, the Customer agrees to indemnify the Company in full against all loss (including loss of profit), costs, damages, charges, and expenses incurred by the Company as a result of such cancellation or variation.
4.1 The description and illustrations of the Goods given to the Customer, or contained in the Company’s catalogues, brochures, price lists and other advertising materials, are intended to present a general idea of the Goods only and shall not form part of the Contract.
4.2 Any prices set out in the Company’s brochures, catalogues or price lists are not binding on the Company and must be confirmed with the Company prior to placing an order.
4.3 The Company shall not be liable for any variations in any specification or description of the Goods which do not materially affect the use and operation of the Goods, or for the substitution of any materials or component parts of a quality equivalent or superior to that originally specified and the Company reserves the right to make any changes in the specification which are required to conform with any applicable safety or other statutory requirements.
4.4 The Company’s employees or agents are not authorised to make any representations, warranties or undertakings concerning the Goods unless confirmed in writing by the Company and, in entering the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations, warranties or undertakings which are not so confirmed.
5. Prices (See also supplementary Pricing Policy)
5.1 All prices shall be calculated and paid in US Dollars or, on the Customers written request, may be paid in Euros, Canadian Dollars or Sterling or such other currency as the Company may at its sole discretion accept.
5.2 Unless stated otherwise, all prices are quoted exclusive of VAT, Sales Tax or GST/HST or other relevant taxes.
5.3 The Company reserves the right, by giving notice to the Customer at any time before delivery (or during delivery where the Contract is being performed in stages or over a period of time) to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, material or other costs), any change in delivery or performance dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
6. Customers Responsibilities and Warranty
6.1 The Customer shall be solely responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
6.2 The Customer shall fully indemnify the Company against any losses, costs, claims, damages and expenses awarded against or incurred by the Company, or its employees or agents, as a result of a claim by any third party that any product made from the Goods is defective (save to the extent that any such claim results from the supply by the Company of Goods which do not correspond with their specification for reasons for which the Company is liable) or arising as a result of any negligent act or omission or any deliberate act or instruction of the Customer, or its employees or agents while they are working on, or travelling to or from, the Site.
6.3 It is the sole responsibility of the Customer to ensure that all product packaging, labels or leaflets accompanying the Goods are read carefully and that any advice or instructions so given are carefully followed.
7.1 The Company will confirm in writing that account facilities have been opened for the Customer.
7.2 Payment of any invoice must be made by the Customer in full within 30 days of the date of invoice or as otherwise stated by the Company.
7.3 Any amount due by the Customer to the Company under the Contract shall be payable in full without any compensation, set-off or counterclaim.
7.4 Time of payment shall be of the essence of all Contracts.
7.5 Payment must be made when due, notwithstanding that property in the Goods has not passed to the Customer.
7.6 Where any account, or any part thereof, is overdue for payment the Customer shall cease to be entitled to the benefit of any discount specified in that account and the Company shall be entitled to charge interest, at the rate of 3 per centum per calendar month above the Bank of America (USA) base rate in force from time to time, on the amount due from the due date for payment until the actual date when payment in full, including interest, is received by the Company, and such interest shall be charged as well after as before any judgement.
7.7 If the Customer fails to make timeous payment in accordance herewith then, in addition to any other remedies available to the Company, the Company may either suspend all further deliveries of the Goods under the Contract until payment is made in full or, at its option, treat the Contract as repudiated.
7.8 If the Customer repudiates the Contract for any reason, or is deemed to have repudiated the Contract in accordance with Clause
7.7, then the Company shall, in addition to any other remedy available to it, be entitled to seek damages for any loss suffered by it because of the Customer’s repudiation.
7.9 The Company, in its sole discretion, may require full or partial payment of the price prior to delivery or may require the provision of security for payment by the Customer, in a form acceptable to the Company.
8. Retention of Title
This provision shall apply to all and any Goods supplied to the Customer by or on behalf of the Company:
a) Legal and beneficial ownership and title in and to the Goods shall not pass from the Company to the Customer until all monies due by the Customer (or any of its associated subsidiary or holding companies) to the Company (or any of its associated subsidiary or holding companies) under the Contract, including any interest and charges, have been paid in full or, if the Customer is a reseller/distributor of the Goods, until the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in Clause 8(c). (b) Until such time as property and title in the Goods passes to the Customer(i) The Customer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and free from any lien, charge or encumbrance and properly stored,
protected and insured and identified as the Company’s property and shall at any time during the business hours allow (without requirement for any further written consent) the Company access to the place where the Goods are stored for the purposes of verifying that this has been done.
(ii) The Company shall be entitled at any time to require the Customer at its own cost to immediately deliver up the Goods to the Company, or its employees or agents, or, at the Company’s sole discretion, forthwith to enter upon any premises or property of the Customer or any third party where the Goods are stored and to repossess the Goods.
(iii) The Customer shall not be entitled to pledge, or in any way charge by way of security, any of the Goods which at all times remain the property of the Company but, if the Customer does so, all moneys owing by the Customer to the Company shall, without prejudice to any other remedy available to the Company, forthwith become due and payable.
(I) The Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction): or
An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
(III) The Customer ceases, or threatens to cease, to carry on business; or
(IV) The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly, then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid
for in full, the legal and beneficial title to the Goods remains with the Company and, provided the Goods are identifiable as the Company’s, no receiver or liquidator of the Customer shall sell the Goods. In these circumstances, the Company shall be entitled to enter any premises or property where the Goods are located and repossess the Goods.
(iv) The Customer shall not be entitled to in any way annex the Goods to the property or premises or sell the Goods to a third party without the Company’s prior written consent.
(c) Subject to Clauses 8(b)(ii) and 8(b)(iv), the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Customer resells the Goods before that time:
(i) it does so as principal and not as the Company’s agent; and
(ii) title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.
Notwithstanding that property and title in the Goods has not passed under Clause 8 hereof, the risk of loss, damage or destruction to the Goods shall pass to the Customer on delivery.
10.1 Unless otherwise specified, delivery and performance dates or periods given by the Company are estimates only and shall not be essential terms of the Contract.
10.2 Subject to certain minimum order quantity or value restrictions (as advertised by the Company from time to time), all orders are delivered free of charge, with the exception of Pharmaceuticals.
10.3 Delivery of the Goods shall take place: -
(a) In the event that the Company undertakes delivery of the Goods, when the Goods are unloaded from the Company’s means of transport at the station or address specified by the Customer.
(b) In the event that the Customer undertakes to collect the Goods, when the Goods are loaded on to the Customer’s carriage, truck or other transport at the Company’s premises.
10.4 Any receipt obtained by the Company from the Customer, or its employee or agent, accepting or taking delivery of the Goods (or such part thereof as is indicated by the receipt) shall be conclusive evidence of delivery in perfect condition or satisfactory performance by the Company.
10.5 The Company may elect to deliver the Goods in instalments and no failure by the Company in respect of any one or more instalments shall entitle the Customer to treat the Contract as repudiated.
10.6 If the Customer fails to take delivery of the Goods (or any part(s) thereof) or to give adequate instructions to enable the Goods to be delivered on the due date, the Company may issue a written notice to the Customer stating that risk in the Goods shall be deemed to have passed to the Customer on the date delivery was due. Thereafter the Company shall store the Goods at the Customer’s expense but, regardless of whether a written notice has been given to the Customer by the Company, the Customer shall indemnify the Company in respect of all losses, costs, claims, damages, and expenses incurred by the Company arising as a result of the Customer’s failure.
11. Goods not conforming to Contract
11.1 The Customer shall be deemed to have examined the packages upon arrival and the Goods within 7 days of delivery thereof (time being of the essence) and to have satisfied itself that they conform to Contract. A claim that the packaging or Goods are not in accordance with the Contract will not be accepted by the Company unless notice in writing, specifying the alleged default and stating what is required of the Company to remedy the alleged default, is given to the Company within 14 days of delivery of the Goods. For pharmaceuticals, please see Clause 11.6. For Anifusion® products see Clauses 11.7 and 11.8.
11.2 Any Goods considered to be damaged or defective (together with their packaging materials) shall be retained and shall be left unaltered, by the Customer intact as delivered for a maximum period of 28 days from notification of the claim to the Company, within which time the Company or its agents shall have the right to investigate the complaint and examine the Goods. Any breach of this condition will release the Company from any liability for Goods which are alleged not to conform to Contract
11.3 If the Company agrees with the Customer that the Goods are damaged or defective, then the Company shall, at its sole discretion, replace the Goods or credit the Customer accordingly.
11.4 If the Company disagrees with the Customer that the Goods are damaged or defective, or disagrees in relation to how such a defect should be remedied then the dispute shall be referred to an independent third party appointed jointly by the Company and the Customer or, failing agreement within 7 days, by a party appointed, on the application of either the Company or the Customer, by the President for the time being of the California State Chamber of Commerce. Such independent third party shall act as an expert and not as an arbiter and his decision shall be final and binding on, and his costs and expenses shall be borne equally by, the Company and the Customer.
11.5 The Company shall have no liability to the Customer in respect of damaged or defective Goods (and the Customer shall be required to pay the full Contract price) where: -
(a) Any claim made by the Customer is not in accordance with these terms and conditions
(b) Damage has been sustained after delivery of the Goods to the Customer, or its agents
(c) Defects are caused by inappropriate or abnormal storage, misuse or improper operation other than in accordance with any instructions supplied by the Company or in writing with the Goods or (if there are none) good trade practice regarding the same.(d) If any adjustment, alteration or other work has been performed on the Goods by any person other than the Company or its employees or agents.
(e) The defect arises because of fair wear and tear, wilful damage, or negligence.
(f) A receipt has been obtained by the Company, duly signed by the Customer or one of its employees or agents, confirming that the Goods have been delivered in a satisfactory condition.
must be stored and kept in accordance with the storage requirements stated on the label. Unopened and eligible for resale. Daily temperature records must be kept and provided should a return authorisation (RMA) to Millpledge take place for credit. Credit cannot be offered if a storage temperature log does not accompany the return of the Goods to Millpledge along with a Return Authorisation (RMA) number (provided by Millpledge). Millpledge will organise at its cost a return collection for its order processing errors. Pharmaceutical items returned to Millpledge will incur a re-stocking fee to cover the cost of temperature-controlled transportation and a return to stock administration and/or disposal fee of $25. Millpledge can arrange on the Customers’ behalf temperature-controlled transport. A Pharmaceutical return for Credit or transaction can only be issued or take place under these terms and in accordance with FDA & CVM guidelines.
11.7 Where the Goods supplied are Anifusion® products, the provisions of this Clause 11.7 shall apply notwithstanding any other provision of these terms and conditions. The Company does not warrant that:
(a) the Anifusion® product(s) and/or the online portal is suitable for the Customer’s requirements; or
(b) the Anifusion® product(s) and/or the online portal will be free from vulnerabilities, viruses and other similar things or devices or problems inherent in the use of such equipment and facilities which may impair or otherwise adversely affect the operation of the Customer’s computer software, hardware or network.
11.8 Where the Goods supplied are Anifusion® products, the provisions of this Clause 11.8 shall apply notwithstanding any other provision of these terms and conditions. The Customer is solely responsible for any problems, conditions, impairment, delays, delivery failures, or any other loss or damage to its computer software, hardware or network resulting from the use of the Anifusion® product(s) and/or the online portal and, subject to Clause 14.5, the Company excludes all liability for:
(a) any problems, conditions, impairment, delays or delivery failures to the Customer’s computer software, hardware or network.
(b) loss or corruption of data or information; and
(c) all other loss or damage arising from or relating to the Customer’s use of the Anifusion® product(s) and/or the online portal.
12. Re-Stocking Fee
(a) Are surplus to requirements because the Goods were ordered in error
(b) Are no longer required and the Customer has received a Millpledge issued RMA (within 7 days),
the following re-stocking fees apply
Product Type Shipping Cost Re-stocking Charge
(total charge if Customer is returning the Goods) Total Cost for Millpledge to collect the Goods
|Product Type||Shipping Cost||Re-stocking Charge (total charge if customer is returning the goods)||Total cost for Millpledge to collect the goods|
|Pharmaceutical (if approval is rceived)||N/A||N/A||N/A|
The cost of the re-stocking and/or carriage charge to be paid by the Customer is subtracted from the value of the credit that is issued to the Customer.
13. Returns Policy
(a) The Customer must notify the Company within 7 days of receipt (time being of the essence). A request to return Goods will not be accepted by the Company unless notice is given by the Customer in writing within this timescale, specifying the reason for the return.
(b) Returns are generally accepted for the following reasons.
(i) The wrong Goods have been supplied.
(ii) Goods are surplus to requirements as we over supplied.
(iii) Goods are surplus to requirements because the Customer ordered incorrectly.
(iv) Goods or packaging are damaged by Company appointed carrier, upon arrival with the
Customer, supported by signed receipts, ‘damage’ clearly notated.
(c) If the Company deems the Goods eligible for return, an RMA number and accompanying returns document will be issued to the Customer via email. The corresponding RMA number and returns document must accompany the returned Goods.
(d) In the event that 13.(b)(iii) applies or the Goods are no longer required by the Customer, the Customer agrees and acknowledges that the re-stocking fee as set out in Clause 12 (Re-Stocking Fee) will be deducted from the credit against the original invoice.
(e) Returned Goods must carry the original barcode label showing rewards points value. A returned Good not carrying the original rewards barcode will be ineligible for full credit. Any claimed rewards from the returned Goods will be removed from the Customer’s MP Rewards account.
(f) The shipping company returning the Goods will be decided and agreed upon between the Company and the Customer. The carriage costs detailed in Clause 12 (Re-Stocking Fee) will apply when the Company’s shipper is used to return the Goods.
14. Limitation of Liability
14.1 Subject to Clause 14.5, the Company shall be under no liability: -
(a) In respect of any defect in the Goods arising from any design or specification supplied by the Customer
(b) Where any of the circumstances referred to in Clause 11.5(a) to (f) apply.
(c) To the extent that the total price for the Goods has not been paid by the due date for payment
(d) Where parts, materials or equipment have not been manufactured by the Company in respect of which the Customer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer of the Goods to the Company.
(e) For any indirect or consequential loss or damage howsoever caused.
(f) Where a registered veterinarian, pet owner or client relationship does not exist directly and in person.
(g) And where any Goods used are not under the strict direction of a registered veterinarian.
(h) Where Goods are manufactured, packed, and sold to the Customer as a multi-pack and then subsequently broken apart to be re-sold as individual items.
14.2 Subject to Clause 14.5, the Company’s liability howsoever arising shall not in any event exceed the total price for the Goods.
14.3 Subject as expressly provided in these terms and conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
14.4 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
14.5 Nothing in these terms and conditions limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
15. Export terms
Not Applicable. Goods are supplied strictly for re-sale within the USA. Sales of product outside of USA must be approved in writing by the Company.
16. Force Majeure
The Company shall not be liable for any delay, or other failure to perform any part of the Contract, as a result of any factor outside the Company’s control.
Any written notice to be given under the Contract shall be given by way of Recorded Delivery post or facsimile or electronic mail transmission or by personal delivery by the party giving it to the other, at his last known business address notified to the other and shall be deemed to be delivered either 72 hours after posting (in the case of a letter) or immediately after receipt (in the case of facsimile or electronic mail transmission or personal delivery).
The Customer shall fully indemnify the Company against all costs, claims, damages and expenses to which the Company may become liable if use of the Goods by the Customer in any way involves an infringement of an intellectual property right enjoyed by a third party.
If the Customer shall make default in, or commit any breach of, any of its obligations to the Company, or if any distress or execution shall be levied upon the Customer, its property or assets or if the Customer shall make or offer to make any arrangement or composition with its creditors or if any petition or receiving order in bankruptcy shall be presented or made against the Customer or, if the Customer is a limited company, any resolution or petition to wind up the Customer’s business is passed or presented (otherwise than for reconstruction or amalgamation) or if a receiver is appointed to the Customer’s undertaking, property or assets
or any part thereof, then the Company shall have the right forthwith to terminate any order under the Contract then subsisting, without prejudice to any other remedies available to the Company, and all sums to be paid to the Company by the Customer shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
20.1 The Customer shall not be entitled to assign or transfer, in whole or in part, the benefit or burden of the Contract without the Company’s prior written consent.
20.2 The rights and remedies of the Company set out in these terms and conditions shall be in addition, and without prejudice, to any other rights and remedies which may be available to the Company at common law or under statute.
If any part of these terms and conditions for any reason should be held to be invalid, such invalidity shall not affect the remaining clauses of these terms and conditions.
22. Governing Law
These terms and conditions shall be governed by and construed in accordance with Federal and CA State Law of the USA and except where otherwise expressly provided for herein the parties hereto hereby choose and submit to the jurisdiction of the Californian courts.
23.1 The Goods are supplied by the Company to the Customer for resale on the Customer’s own account on the understanding that all and any orders received by the Customer (whether the order is forwarded to the Customer by the Company (a "Turnover Order”) or received directly from its customer) for the Company’s Goods, as specifically identified in the order, will be satisfied by the Customer by supplying the Company’s Goods as requested to the relevant customer and the Customer hereby undertakes that it will not substitute any other products in place of the Company’s Goods as identified in the customer’s order.
23.2 Where Goods are supplied by the Company to the Customer as a multipack, the Customer hereby undertakes not to split that multipack and resell/distribute Goods from within the multipack as individual items. The Customer acknowledges that the labelling of multipack Goods might appear only on the outer packaging of the multipack and not on the individual items within it.
23.3 The Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with(a) the sale of products by the Customer in substitution to the Company’s Goods as identified in an order received by the Customer (whether the order is received directly from its customers or the order is a Transfer Order); and
(b) the onward sale of Goods by the Customer as individual items, which were sold to the Customer by the Company as part of a multipack