TENDER TERMS AND CONDITIONS OF TRADE – BRISTOL-MYERS SQUIBB AUSTRALIA PTY LTD

1. Definitions
1.1 In these Tender Terms and Conditions of Trade (“Terms”), unless the context otherwise requires:
(a) “Customer” shall mean the entity that places an order to purchase Goods or obtain services from the Supplier.
(b) “Supplier” shall mean the party Bristol-Myers Squibb (“BMSA”) supplying the Goods or Services to the Customer.
(c) “Goods” shall include both tangible and intangible goods, including documents or branded materials that may accompany the Goods.
(d) “Services” shall include, but are not limited to, general services as well as consultancy services and any deliverables being part of the performance of Services.
(e) “Order” shall mean the Purchase Order quoting a Purchase Order number and specifications of the Goods or Services the Customer agrees to purchase from the Supplier.

2. General
2.1 Unless otherwise agreed in writing between the parties, these Terms shall exclusively govern all Orders placed by the Customer for the supply of Goods and/or Services by Supplier.
2.2 The Supplier may vary or replace these Terms by notifying the Customer in writing, including by e-mail. Any variation takes effect immediately.
2.3 Both Supplier and Customer shall ensure that it and its activities under these “Terms” shall at all times comply with applicable laws, regulations, industry codes, moral standards and any agreements between the “Parties” are not proceeds of any illegal or immoral activity punishable by law.

3. Obligations of Contract
3.1 Orders shall be made in writing. Orders made in oral or any other form must be confirmed in writing by Customer in order to become valid. Confirmation of Order may be issued by mail, facsimile or e-mail to:
        Bristol-Myers Squibb Australia Pty Ltd
        Customer Service Department
        Level 2, 4 Nexus Court
        MULGRAVE, VIC 3170
        Telephone: 1800 629 273
        Facsimile: 03 8523 4456
3.2 All communication between parties must quote a Purchase Order number as per the Order for Goods and/or Services placed by Customer to Supplier.
3.3 The acceptance of Orders by the Supplier includes acceptance of these Terms.

4. Specifications and Standards
4.1 The Supplier warrants that the Goods and/or Services (i) will be of satisfactory quality suitable for the intended purpose, (ii) are free from defects in design, materials, construction and workmanship and (iii) will conform with any agreed specifications, industry standards, samples or descriptions provided by the Customer and all other requirements of the agreement.
4.2 Supplier shall supply the Goods and Services with due care and skill and in compliance with applicable laws, regulations and industry codes and, if notified, policies of the Customer.

5. Delivery
5.1 The Goods shall be delivered to, and the Services shall be provided at, the delivery address specified in the Order. Deliveries shall be made during standard business hours in the State or Territory of the Customer.
5.2 Each delivery shall include a packing list identifying the Order with the Purchase Order number, description and quantity of the Goods and date of shipment.
5.3 The Goods shall be appropriately packaged and labelled in such a manner as to prevent damage during transport and carry all instructions necessary for the safe use of the Goods.
5.4 The Supplier reserves the right to charge Customer for freight charges where the Customer does not fulfil standard shipping quantities pertaining to Supplier‟s current wholesaler price list.

6. Delays and Force Majeure
6.1 Supplier reserves the right to select the mode of transportation and no claim may be made in the event of any delay.
6.2 Supplier or Customer will not be responsible for any unsuccessful or delayed performance of any obligations unforeseen by the agreement of both parties “Supplier” and “Customer” due to circumstances beyond reasonable control by either of the parties for example: natural disasters such as “acts-of-God”, strikes, fires, explosions, blockades and any acts pertaining to the result of terrorism.

7. Deficiencies and Claims
7.1 In the event of any discrepancy between the Order and the delivered Goods, including but not limited to, short dated stock (Goods supplied to Customer with less than nine months before the Goods reach expiration date), under/over-supply, or damaged in transit, Customer must notify Supplier within 7 days of the accepted delivery and a “Stock Discrepancy” authorization number must be obtained from the Supplier.
7.2 All goods must be returned to the Supplier under the provisions of clause 7.1 with a “Returned Goods Authorization” “RGA” number and appropriate paperwork submitted to Supplier with the below information:
        Date of purchase
        Delivery docket number
        Invoice number
        Lot number
        Reason for return
7.3 Sales Representatives of the Supplier are not authorised to approve nor allow any claim in respect of Goods returned to the Supplier.
7.4 Supplier will not be obliged to provide any credit for Goods failing to be of merchantable quality pertaining to clause 7.1 until the Goods are returned to Supplier and provisions of clause 7.2 are met.

8. Risk and Title
8.1 Risk will pass on to the Customer upon Customers acceptance of delivery.
8.2 Title to Goods will be retained by Supplier until full payment of Goods has been made by the Customer.
8.3 While the Title of Goods remains with Supplier, Customer shall store goods in a manner clearly identifying Goods as the “Property of BMSA”.
8.4 Supplier and its agents reserve the right, so long as the Goods title remains with Supplier, without the necessity of giving any prior notice to enter on or into premises where the Goods are stored (whether or not premises of Customer), to search and or remove any of the Goods which Supplier has title and Supplier shall not be liable to the Customer or any person claiming through the Customer in respect of any act done in reliance on the authority.
8.5 Supplier reserves the right to register Customers in the Personal Properties Securities Register (PPSR) at the cost of the Supplier in accordance with Personal Properties Securities Act 2009 (Cth).

9. Pricing and Payment
9.1 The price of Goods and Services shall be stated in the Order unless otherwise agreed between Supplier and Customer. All prices will be set out in the current Supplier price list.
9.2 In addition to the prices set on the Supplier price list, Customer must pay the appropriate “Goods and Services Tax” “GST” as defined by Goods and Services Tax Act 1999 (Cth) and the related Levy Imposition Act 1998 (Cth).
9.3 Payment terms remain 28 days from invoice date unless otherwise agreed by Supplier in writing.
9.4 Supplier shall have the right to charge a fee of 10% of any outstanding balance for amounts over AUD$50,000.00 where the Customer fails to pay Supplier in full for Goods and/or Services provided within the provisions in clause 9.3.
9.5 Supplier reserves the right to alter its price list and terms of payment at any time.

10. Warranty and Indemnification
10.1 The Supplier warrants that it has the appropriate Poisons Licence issued under the Poisons and Therapeutic Goods Act 1966 and is appropriately licensed in accordance with Section 14, 18 and 31(1) of the Controlled Substance Act 1984 to sell by wholesale of Schedule 2,3,4,7 and 8 Poisons.
10.2 Customer warrants that it has the appropriate licensing pursuant to clause 10.1 and warrants that it has provided a copy of this authority license to Supplier.
10.3 All pharmaceutical Goods provided by Supplier are intended for human use only. Any sale of pharmaceutical Goods to any bona fide wholesaler or institution whereby use of these Goods purchased from Supplier is for veterinary purposes i.e. animals or livestock, must have a valid licence with jurisdiction in ALL States and Territories of the Commonwealth of Australia pursuant to Section 114 of the Agricultural and Veterinary Chemicals Code Act 1994 ('Agvet' Code). Licences pursuant to the Agvet Code must be made available to Supplier upon request, if required.
10.4 Supplier reserves the right to refuse sale of Goods and Services if Customer fails to adhere to clause 10.1, 10.2 and 10.3 respectively.
10.5 Supplier agrees to maintain adequate insurance to cover costs of any liabilities hereunder.
10.6 Supplier shall indemnify Customer against any and all liability costs and/or expenses including legal costs which, result from any actions or claims the Customer suffers in damages or loss of Supplier's and it's agents including employees, contractors and/or sub-contractors in acts of wilful misconduct or defaulting in Supplier obligations to Customer except where the Customer is a priori to any damages or loss from negligence.

11. Intellectual Property and Privacy
11.1 Supplier shall respect and comply with terms stated Privacy Act 1988 therein regarding protection of personal data including protection against destruction, alteration, unauthorized disclosure or unauthorized access.
11.2 All documents, methods of analysis and standards Supplier provides to Customer shall remain the property of Supplier and must not be made available to a third party without the written consent of Supplier.

12. Resale outside of Australia
12.1 Customer should be aware that Goods and/or Services provided by Supplier are for the use or resale within the states and/or territories of Australia only. Without the written consent of Supplier, Customer may not resell Goods and/or Services outside Australia.
12.2 Customer is not an agent of Supplier and is not authorized to hold itself out as the agent of or in any way having authority to incur any obligation or make or give any promise, undertaking, or representation on behalf of Supplier in relation to the Goods and/or Services or in any other capacity.

TENDER TERMS AND CONDITIONS OF TRADE V.1.2014 of BRISTOL-MYERS SQUIBB AUSTRALIA PTY LTD
(ABN 33 004 333 322)
Last Updated January 2014