Pfizer Australia Pty Limited
Bio Pharmaceutical -Wholesaler/Trade & Professional
Terms and Conditions of Sale
Unless otherwise agreed in writing by Pfizer Australia Pty Limited ABN 50 008 422 348 (“Pfizer Australia”) and the customer (the “Purchaser”), the following are Pfizer Australia's Terms and Conditions of Sale (“Terms”). These, together with any other terms and conditions agreed upon in writing between Pfizer Australia and the Purchaser shall apply to all sales of Products by Pfizer Australia to that Purchaser.
1. Orders
A) Pfizer Australia reserves the right to accept or decline, in whole or in part, any order placed by the Purchaser.
(b) Any order the value of which is not greater than $5,000 (the “minimum order value”), may at Pfizer Australia's discretion either be rejected or accepted subject to the payment of the handling fee described in clause 1(c).
(c) The Purchaser will be advised if the value of an order does not exceed the minimum order value. If, after such advice, the Purchaser requests that the order(s) be processed and Pfizer Australia accepts the order, a handling fee of $200 may be charged to the Purchaser. This fee is in addition to any service or other charge that may be raised under clause 3.
(d) The Purchaser is requested to order multiples of standard shipper quantities shown on Pfizer Australia's official Price List. Orders which are within 50% of standard shipper quantity will be adjusted to the nearest standard shipper quantity, and Pfizer Australia will promptly notify the Purchaser in writing of any such adjustment.
(e) The Purchaser must obtain all necessary licenses and comply with all appropriate Commonwealth or State Acts and Regulations regarding the purchase and sale of any of the Products, including providing Pfizer Australia with hard copies of all necessary licences in relation to the purchase of Narcotic (S8) products.
2. Export Prohibition
(a) The Products listed herein are packaged for sale only in Australia and Papua New Guinea.
(b) The Purchaser may not at any time, directly or indirectly, export any of the Products. In addition, the Purchaser must not sell, transfer or distribute any of the Products:
(i) to any person without first requiring such person to be bound by this export restriction; or
(ii) to any person that the Purchaser knows, or has reasonable grounds for believing, will or may export such Products out of Australia and Papua New Guinea.
Without limiting clause 1(a), any breach of this clause 2(b) will preclude the Purchaser from purchasing any further Products from Pfizer Australia, until such time as Pfizer Australia is satisfied, in its sole discretion, that the Purchaser is no longer in breach of this clause, or will not further breach this clause in the future.
(c) No license relating to the Products, express or implied, is granted under the intellectual property rights existing under the laws of the United States or any other jurisdiction outside Australia and Papua New Guinea. Exporting or permitting the export of the Products outside Australia and Papua New Guinea may violate laws in the United States and/or other jurisdictions to which the Products are exported.
3. Delivery.
(a) Delivery of Products will be made to one depot nominated by the Purchaser. However, if the Purchaser has additional depots, direct shipping will be made to those depots as follows:
- for Biopharma Wholesalers a minimum trading value of $10,000,000 per annum and each additional depot a minimum trading value of $1,000,000 per annum; or
- for Trade and Professional Products a minimum trading value of $100,000 per annum and each additional depot a minimum trading value of $20,000 per annum.
(b) Four orders per month will be delivered road/rail freight free to the Purchaser's nominated delivery point referred to in clause 3(a). Orders in excess of four per month (with the exception of back orders and special product introduction orders) may attract a freight/handling charge of $200 plus the standard service charge if the order is below the minimum value.
(c) For the purpose of requesting a credit for Products under clause 6, in the event of any breakage, leakage or damage to individual packages occurring in transit between Pfizer Australia warehouses and the Purchaser's receiving area, or short deliveries in consignment, the Purchaser must notify Pfizer Australia within fourteen (14) days of receipt of the consignment.
(d) Non-receipt of Products must be notified within fourteen (14) 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, credit for the Products will not be provided unless required by law.
(e) The Purchaser acknowledges that Pfizer Australia cannot control all aspects of the delivery process. Pfizer Australia will endeavour to minimise delays or failures to deliver products. However, subject to clauses 3(d), 3(e), 6 and 10, and to the full extent allowed by law:
(i) where the delivery has been delayed otherwise than through the fault of Pfizer Australia, Pfizer Australia 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;
(ii) where delivery has been delayed through the fault of either Pfizer Australia or the Purchaser, the goods are at the risk of the party in fault as regards any loss which would not have occurred but for such fault; and
(iii) any delay in delivery does not relieve the Purchaser of its obligation to accept that delivery and any remaining delivery.
4. Price.
(a) 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.
(b) Pfizer Australia will provide reasonable 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.
(c) The Purchaser is responsible for any tax or Governmental charge imposed on sale or supply of the Products by Pfizer Australia and an amount equivalent to the same will be added to the invoice price and is payable at the same time.
5. Payment Terms.
(a) Except where products are sent on C.O.D. terms, or other terms are notified by Pfizer Australia, payments shall be due 30 days from the end of month. If payment in full is not received on or before the due date, then in addition to its rights under 5(d), the Purchaser must pay Pfizer Australia 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.
(b) By accepting products on credit on the terms set out in clause 5(a), the Purchaser authorises Pfizer Australia to make enquiries as to the credit and financial history and responsibilities of the Purchaser, and/or the directors of the Purchaser, as required by Pfizer Australia from time to time, including obtaining reports from credit reporting agencies.
(c) Any credit terms that Pfizer Australia extends to the Purchaser are granted subject to the essential condition that the Purchaser has made complete and accurate disclosure to Pfizer Australia in its credit application of all material information relevant to Pfizer Australia’s decision to extend credit. The Purchaser must further keep Pfizer Australia promptly informed of any material adverse change in the Purchaser’s financial or business circumstances.
(d) Pfizer Australia reserves the right to terminate the Purchaser's credit account in the case of non-compliance with this clause 5. Pfizer Australia may in the case of non-compliance with this clause 5, in addition or in advance of exercising any right of termination, choose at its sole discretion to (i) suspend the Purchaser's credit facility, (ii) change the Purchaser's payment terms to shorten the payment period (other than where an order has already been despatched by Pfizer Australia) or to require cash payment on or before delivery for future orders, (iii) terminate any outstanding order (including part orders), or (iv) do any combination of (i) to (iii). The exercise of any such rights, including exercising a termination right, shall be without prejudice to any other rights Pfizer Australia may have.
(e) If Pfizer Australia makes a decision affecting the Purchaser’s credit account under clause 5(d), Pfizer Australia will notify the Purchaser of this decision immediately. If Pfizer Australia suspends or terminates the Purchaser’s credit account, the Purchaser may elect to cancel any existing orders that have not yet been despatched by Pfizer Australia. Upon such suspension or termination all amounts payable for all Products sold (other than for any cancelled existing orders that have not yet been despatched by Pfizer Australia) become due for immediate payment. The Purchaser shall not be entitled to any compensation for termination of the credit account.
(f) The Purchaser agrees to pay to Pfizer Australia or at Pfizer Australia's direction all reasonable collection costs, including commissions and legal charges on a solicitor and client basis, on all monies outstanding on its credit account should the Purchaser breach any term or condition herein and should action be taken by or on behalf of Pfizer Australia to recover the debt.
6. Returns.
(a) Products will not be accepted for credit or return unless Pfizer Australia is notified in writing (email or claim form) within the timeframes set out in sub-clauses 3(c) and 3(d). Pfizer Australia reserves the right to dispose of, without recourse or liability, any Product returned without authorisation. Pfizer Australia will send a formal rejection letter to the Purchaser if Pfizer Australia does not accept a request for credit or return.
(b) On acceptance by Pfizer Australia of returned products, Pfizer Australia will issue a credit note to the Purchaser for an amount equivalent to the GST exclusive purchase price (less any allowed rebate or credit) of the accepted returned Products.
(c) Products will be accepted for return and credit if they come into any of the following categories:
(i) Products that Pfizer Australia is satisfied (acting reasonably) were damaged in transit between the Pfizer Australia warehouse and the Purchaser’s nominated receiving area. In such instances, the Purchaser must notify Pfizer Australia no later than fourteen (14) days after receipt of the consignment. Purchasers should also indicate on the carrier's consignment docket that Products are 'damaged' or 'subject to check' where possible;
(ii) incorrect supply; that is, wrong Product, not sent in accordance with the Purchaser's order;
(iii) Products that Pfizer Australia is satisfied (acting reasonably) are faulty in materials or workmanship;
(iv) Products that were supplied with less than six months shelf-life remaining can be returned within three months prior to their expiry date or for six months following their expiry date unless otherwise agreed by the Purchaser;
(v) Products that are returned by the Purchaser under clause 10.
(d) Without limiting the other provisions of this clause 6, and to the extent permitted by law, the following Products will not be accepted for return:
(i) Products sold on a non-return basis;
(ii) Products having a broken seal, label removed or other label / price tag attached;
(iii) Products which have not expired, except as specified in (d) above;
(iv) Products that have exceeded their expiry date, other than as set out in clause 6(d)(iv) above;
(v) damaged Products, except as specified in clause 6(d)(i) above;
(vi) Products that were not ordered by the Purchaser from Pfizer Australia.
(e) For Products that are accepted for return, Pfizer Australia will initiate the return process with its third party logistics service provider (the “LSP”). Once the Purchaser receives return labels from the LSP, the Purchaser is required to arrange collection of the relevant Products within 14 days of receipt to ship such Products to the warehouse from which such Products were originally received.
7. General.
(a) To the extent permitted by law, neither party be liable for delay, loss or damage (including Consequential Loss) caused due to scarcity of materials, strikes, acts of God or any other cause beyond its reasonable control (‘Force Majeure Event’). A party will notify the other party 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.
(b) Storage of the Products must be in accordance with the requirements stated on each pack, i.e. refrigerated and cool storage facilities for specified Products must be provided by the Purchaser.
(c) The printing of Australian Product Numbering codes on its Product packs by Pfizer Australia is not the subject of any contract between Pfizer Australia and the Purchaser. Pfizer Australia 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.
(d) These Terms shall be 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 from 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.
(e) To the extent permitted by law, no action at law or in equity shall be brought by either party unless brought within one year from the date of delivery of the shipment of Products to the Purchaser or from the date of the alleged breach of contract whichever is earlier.
(f) The Purchaser agrees that Pfizer Australia may deal with the Purchaser electronically including but not limited to having the Purchaser electronically sign 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 account application or that the Purchaser may advise Pfizer Australia from time to time for that purpose. The delivery of any Notice from Pfizer Australia is effective when sent by Pfizer Australia, regardless of whether the Purchaser has read the Notice when the Purchaser receives it. Pfizer Australia also reserves the right to deal non-electronically and to require the Purchaser to do so.
(g) Pfizer Australia reserves the right to vary or add to these Terms by providing at least thirty (30) 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.
(h) Pfizer Australia's rights are not limited by, or because of, any guarantee, indemnity or other security or security interest that Pfizer Australia holds in connection with the Purchaser's obligations.
(i) Pfizer Australia may collect personal information as a result of its dealings with the Purchaser. If so, Pfizer will abide by all applicable laws and its Privacy Policy. A copy of that policy is available on Pfizer Australia’s website at www.pfizer.com.au.
(j) 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.
8. Title and Risk.
(a) Title in each unit of the Products purchased shall remain with Pfizer Australia and will not pass to the Purchaser until receipt of payment in full by Pfizer Australia of all monies owing for those Products (the “Debts”).
(b) Risk in Products purchased shall, unless otherwise agreed in writing by the Purchaser and Pfizer Australia, pass to the Purchaser upon delivery to the Purchaser or its agent or to a carrier commissioned by the Purchaser, despite the fact that ownership may not have passed to the Purchaser at that time.
(c) Until the Debts have been paid, the Purchaser:
(i) will take custody of the Products;
(ii) must not charge, mortgage or encumber the Products;
(iii) will 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.
(d) Until the Debts have been paid, the Purchaser has the right to move, resell by way of bona fide sale and otherwise use the Products in the ordinary course of business.
(e) In the event of default of these Terms or any other agreement between Pfizer Australia and the Purchaser that incorporates or is incorporated into these Terms, in relation to the settlement of Debts and the Purchaser does not correct that breach within 14 days after receipt of written notice from Pfizer Australia setting forth particulars describing the alleged breach, then:
(i) promptly on Pfizer Australia's request, the Purchaser must return to Pfizer Australia any Products acquired from Pfizer Australia on which there are outstanding Debts;
(ii) the Purchaser irrevocably authorises Pfizer Australia, its employees and agents to enter any premises or vehicle owned by the Purchaser for the purposes of taking possession of the Products if Pfizer Australia has reasonable grounds to expect that Pfizer Australia may find any part of the Products there, subject to the Purchaser bring provided with reasonable prior written notice. This clause 8(e)(ii) applies in addition to any rights Pfizer Australia may have under any negotiable instrument or security for the Debt; and
(iii) Pfizer Australia may resell those Products.
(f) In this clause 8 “paid” means receipt of cash or cleared funds by Pfizer Australia in settlement of the Debts.
In circumstances where the Purchaser has multiple outstanding invoices for any Products delivered under these Terms, Pfizer Australia reserves the right to allocate received payments to any earlier outstanding invoices as deemed necessary for account reconciliation and efficient payment processing.
9. Waiver and Variation.
A provision of or a right created under these Terms in favour of a party may not be waived or varied except in writing signed by that party. A party 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 that party.
10. Warranties and Liabilities.
(a) To the fullest extent allowed by law and subject to clause 10(c)-(e), Pfizer Australia hereby excludes all warranties, express or implied, in connection with the sale or supply of Products to the Purchaser under these Terms.
(b) Subject to clause 10(c)-(e), Pfizer Australia excludes any liability to the Purchaser, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this agreement, including any:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of production;
(iv) loss of agreements or contracts;
(v) loss of business opportunity;
(vi) loss of anticipated savings;
(vii) loss of or damage to goodwill; or
(viii) loss of reputation.
Statutory notice and business to business liability cap: consumer transactions.
(c) The balance of this clause only applies if the Purchaser is a deemed 'consumer' under the Australian Consumer Law and may not apply in every case. Pfizer Australia does not vary or extend the remedies otherwise available to the Purchaser by including the following.
(d) Pfizer Australia'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.
(e) 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 Australia's liability under those provisions is limited as follows. Pfizer Australia's liability in relation to Products is limited at Pfizer Australia'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 Products; or payment of the cost of having the Products repaired. Pfizer Australia's liability in relation to services is limited at Pfizer Australia's option to the supplying of the services again; or the payment of the cost of having the services supplied again.
11. Improper Payments.
(a) If Pfizer Australia pays the Purchaser a rebate in respect of purchases under these Terms, the Purchaser warrants and represents that:
(i) 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 any improper advantage for Pfizer Australia. In this clause, “government official” means any official, officer, representative, or employee of, including any animal health care professional, employed by 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; and
(ii) the Purchaser will at all times comply with the Pfizer Anti-Bribery and Anti-Corruption Principles that are available at www.pfizer.com.
(b) The Purchaser agrees to permit Pfizer Australia to take reasonable steps to ensure that rebates paid are properly used by permitting Pfizer Australia's auditors to access any relevant books, documents, papers and records of the Purchaser involving the payment of rebates by Pfizer Australia.
(c) Pfizer Australia may terminate the Purchaser’s credit account immediately if Pfizer Australia learns that the Purchaser is making, or has made, improper payments to government officials.
12. PPSA Security Interests.
(a) In this clause 12, “Proceeds”, “Purchase Money Security Interest", “security agreement” and “Security Interest” have the meanings given to those by the Personal Property Securities Act 2009 (“PPSA”).
(b) The Purchaser acknowledges and agrees that these terms and conditions:
(i) constitute a Security Agreement for the purpose of the PPSA; and
(ii) create a Security Interest in:
(A) all Products supplied by Pfizer Australia to the Purchaser on retention of title terms; and
(B) the Proceeds of sale of Products supplied on retention of title terms by Pfizer Australia to the Purchaser.
(c) Pfizer Australia may register on the Personal Property Securities Register, any and all security
interests granted by the Purchaser in connection with this Agreement.
(d) The Purchaser must, if requested by Pfizer Australia, register as agent of Pfizer Australia a continuing Security Interest in favour of Pfizer Australia in any Products that the Purchaser disposes of on credit terms, to further secure the payments and obligations that the Purchaser owes to Pfizer Australia.
(e) The sections of the PPSA listed in section 115(1) of the PPSA will not apply on the enforcement by Pfizer Australia of any Security Interest created or provided for by this Agreement.
(f) The Purchaser waives its right to receive a copy of any financing statement, financing change statement or verification statement (as those terms are defined in the PPSA) registered or received by Pfizer Australia in respect of the Security Interests created by this Agreement.
(g) The Purchaser will do all things reasonably necessary, including executing documents that Pfizer Australia requires and providing relevant information and co-operating with Pfizer Australia to enable Pfizer Australia to register a financing statement on the Personal Property Securities Register to ensure that Pfizer Australia has a perfected Security Interest in relation to all Security Interests granted by the Purchaser under this Agreement and, if applicable, a Purchase Money Security Interest in respect of the Products supplied by Pfizer Australia.
(h) Pfizer Australia:
(i) 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 Australia sees fit provided Pfizer Australia acts reasonably;
(ii) reserves all rights and powers in relation to any Security Interest that is in addition to any right or power conferred under the PPSA; and
(iii) may choose between its various rights and powers, including for enforcement of its Security Interest, as Pfizer Australia sees fit and without limiting other rights and powers.
13. Definitions.
In these Terms, unless the contrary intention appears:
(a) “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;
(b) “Price List” means Pfizer Australia’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 at www.pfizerpharmacyhub.com.au; and
(c) “Product” means the goods supplied by Pfizer Australia under these Terms.
Effective 6 November 2023