Terms and Conditions of Supply

1. These Terms and Conditions (“Terms”) apply to Suppliers engaging with Douglas Pharmaceuticals Ltd, Douglas Manufacturing Limited, and/or their Associated Companies (“Buyer”). Acceptance of an Order by the Supplier constitutes acceptance of these Terms. A variation to these Terms will not be valid unless expressly agreed to in writing by Buyer.

1. The Supplier is an independent contractor of the Buyer. Nothing in these Terms constitutes any other type of relationship between the parties.

1. Unless the parties have agreed otherwise in writing:
   1. Where the Supplier is a New Zealand company registered under the Companies Act 1993, the price will be paid by Buyer on or before sixty (60) days from the end of the month in which the Tax Invoice of the Goods, is dated. The Tax Invoice shall not be issued by the Supplier until the Goods are considered delivered in accordance with clause 5 below.
   2. Where the Supplier is an Overseas Company, the price will be paid by the Buyer on or before ninety (90) days from the date in which the Tax Invoice of the Goods is dated. The Tax Invoice shall not be issued by the Supplier until the Goods are considered delivered in accordance with clause 5 below. “Overseas Company” means a company that is not a New Zealand company registered under the Companies Act 1993.

For the purposes of this clause 4, “Tax Invoice” has the meaning given in the Goods and Services Tax Act 1985.

1. Unless otherwise stated or agreed in writing, the Supplier is responsible for freight and delivery to the destination specified in the Order.
2. Supplier shall pay all packing, crating and cartage charges unless otherwise specified in the Order. Supplier is responsible for ensuring each container is marked to show quantity, Order number, content and shipper’s name, and includes a packing sheet showing this information.  Supplier must ensure that packaging, marking, labelling and shipping of all Goods which are or contain Hazardous Substances must comply with applicable legislation.
3. The Goods must be received on the dates and at the destination specified in the Order. Time is of the essence.  If the Supplier fails to meet any such delivery date, Buyer may (without limiting its other rights and remedies) cancel all or part of the Order.

1. Title in the Goods passes to Buyer on delivery.
2. The Supplier bears all risk of loss and damage to the Goods until final acceptance by Buyer in accordance with clause 7 below.

1. Notwithstanding any prior inspections or payments, all Goods shall be subject to:
   • A final inspection by Buyer which may include measurement, testing and/or examination; and
   • Acceptance at Buyer’s facility within a reasonable time (but not more than 90 days) after receipt of the Goods.
2. If the Buyer accepts any Goods, such acceptance does not waive or extinguish any of Buyer’s rights if the Goods do not comply with these Terms.
3. Buyer may reject any Goods or Services that do not comply with these Terms. Once the Goods or Services are rejected, Buyer may require:
   • In the case of either Goods or Services, the Supplier to refund any payment within 30 days; or
   • In the case of Goods, replacement of the Goods to the Buyer’s satisfaction; or
   • In the case of Services, the re-supply of the Services.
4. Title and risk in the rejected Goods immediately re-vests in the Supplier. Supplier is liable for all direct loss suffered by Buyer due to the rejection of the Goods.  In the event of a rejection of Goods or Services, Buyer’s payment obligations shall be suspended.

1. At all material times and while Supplier carries the risk in the Goods, Supplier must at its expense:
   • Maintain product liability insurance with a reputable insurer for at least 5 (five) times the value of the Goods as stated on the invoice or greater amount as specified in the Order; and
   • Insure the Goods with a reputable insurer for their full replacement value.
2. On Buyer’s request, Supplier will provide certificates evidencing that the above insurance policies are in place.

1. Failure of Supplier to make, or of Buyer to take, delivery of Goods or performance of Services the subject of an Order, if occasioned by acts of God, fire, explosion, flood, epidemic, war, acts of governmental authority, civil disturbances, or any other circumstances beyond the reasonable control of the parties (“Force Majeure Event”), shall not subject the party so failing to any liability to the other party but, at Buyer’s option, the total quantity of Goods or Services covered by the Order may be reduced by the extent of delivery or performance omitted as a result of such a Force Majeure Event.

1. All drawings, dies, moulds, tooling and other proprietary information (including without limitation know-how, specifications, inventions, processes or initiatives) (“Information”) either furnished by Buyer to the Supplier or created or provided by the Supplier for the purpose of supplying the Goods or Services must remain the property of Buyer and the Supplier must treat such Information as strictly confidential, must keep it safe and must not use nor disclose it except as strictly required in the course of performance of the Contract. Buyer may reproduce and use such Information freely for any purposes whatsoever.

1. The Supplier warrants that the Goods:
   • Are safe and include appropriate and correct warnings and instructions;
   • Are free from encumbrances, defect or fault;
   • Are of merchantable quality and are fit for Buyer’s intended purposes to the extent that such purposes are known or reasonably should be known to Supplier;
   • Comply with any representations, descriptions, samples, approved product registrations or other specifications including quality, function, performance or design; and
   • Include any applicable Supplier’s warranty that passes to the consumer from the Buyer without liability to the Buyer.
2. The Supplier warrants that the Services will be performed:
   • In a good and workmanlike manner and with all due speed, care, skill and diligence;
   • In accordance with current industry codes of practice;
   • By suitably qualified and licensed personnel and sub-contractors; and
   • In compliance with Buyer’s policies and procedures as advised by Buyer to Supplier.

1. If the Goods supplied consist of a pharmaceutical or nutraceutical product (whether in semi-finished or finished form), including its raw materials (active pharmaceutical ingredients or excipients) and packaging, the Supplier must ensure that it complies with the following additional requirements:
   • Order confirmation, including confirmation of price, quantity to be supplied and expected delivery date must be sent to Buyer within seven (7) working days of receipt of the Order.
   • Goods must have at least 70% shelf life on delivery to Buyer.
   • Where a Certificate of Analysis (COA) or a Certificate of Conformance (COC) is required to accompany the Goods, this is emailed to:
     • qccoas@douglas.co.nz for Douglas Manufacturing Limited (DML);
     • dplcoas@douglas.co.nz for Douglas Pharmaceuticals Limited (DPL);
     • fijicoas@douglas.co.nz for Douglas Pharmaceuticals Fiji Limited (DPFL).
   • COAs/COCs are to be emailed prior to the Goods being dispatched, or no later than the morning of the delivery.  Buyer will not accept any Goods without a COA or COC.  Failure to send a COA or COC may also result in a delay in payment to Supplier and/or Supplier DIFOT miss.
   • COAs must at minimum include the following information:
     • Manufacturer and manufacturer site;
     • Manufacturing date and shelf life;
     • Manufacturing batch number and material description;
     • Specification and the results, and a statement of compliance with Good Manufacturing Practices (GMP).
2. If there are any planned changes in material, manufacturer or manufacture site, details of the change(s) must be provided to the Buyer in advance of any changes.

1. Supplier must defend, indemnify and hold the Buyer, its Associated Companies and their representatives, successors, and assigns harmless from and against any and all claims, suits, actions, liabilities, loss, judgments or damages, whether ordinary, special or consequential arising directly or indirectly from or in connection with:
   • The acts, negligence, omissions or wilful misconduct of the Supplier;
   • The Goods or Services supplied;
   • A breach of any of the Supplier’s warranties or any other of these Terms;
   • The Supplier’s negligent, unauthorised or wrongful acts or omissions with regard to the transport or storage of Hazardous Substances;
   • The Supplier’s negligent, unauthorised or wrongful acts or omissions with regard to the transport or storage of materials subject to temperature controls as specified in stability data agreed between Buyer and Supplier;
   • A claim that any Goods or Services supplied to the Buyer infringe upon or misappropriate any patent, copyright, trademark, trade secret or other intellectual property interest of another; or
   • A claim of any lien, security interest or other encumbrance made by a third party.

1. Buyer may at any time terminate an Order, in whole or in part, for any reason, upon written notice to the Supplier. Following any such termination Supplier shall, to the extent specified by the Buyer, stop all work on the Order and cause its suppliers and sub-contractors to stop work.  Charges for any such termination of the Order will be limited to actual non-recoverable costs incurred by Supplier, which Supplier can demonstrate were properly incurred prior to the date of termination.  In no event shall such reimbursement include anticipated profits for undelivered Goods or unperformed Services.
2. Buyer may terminate an Order, in whole or in part, if the Supplier:
   • Fails to make delivery of the Goods or perform the Services within the time specified in an Order;
   • Fails to replace defective Goods or Services in accordance with these Terms;
   • Fails to perform any other of these Terms; or
   • Becomes insolvent, is placed into liquidation or voluntary administration, or makes an assignment for the benefit of creditors.

1. These Terms, as well as any Order, shall be governed by and construed in accordance with the law of New Zealand, without regard to its provisions regarding conflict of laws. The parties submit to the non-exclusive jurisdiction of the New Zealand courts.

1. Buyer shall notify Supplier of any relevant policies and procedures which may be applicable and which the Supplier must follow in the supply of Goods and Services, including (but not limited to) the temperature ranges Goods must be stored and transported in, and how Hazardous Substances are to be stored and transported.
2. In particular, and without limiting the generality of clause 16.1, where Supplier delivers Goods or performs Services pursuant to these Terms at Buyer’s location, Supplier will comply with all applicable provisions of health, safety and security laws and regulations and Buyer’s safety standards for such location.

1. Supplier shall comply fully at all times with all applicable laws and regulations, including but not limited to applicable anti-bribery and corruption laws, when conducting business with the Buyer.
2. Buyer shall be entitled to cancel any Order placed with Supplier in the event that Supplier fails to comply with its obligations under clause 17.1. Supplier shall have no claim against Buyer for compensation for any loss by virtue of the cancellation of any Order in accordance with this clause.

1. All information disclosed by Buyer to Supplier relating to Buyer’s business (including prices) is confidential and may also be proprietary. Supplier may use such confidential information solely for the purpose of delivering the Goods or performing the services and shall not, at any time during or at any time after completion of the delivery of the Goods or the performance of the Services disclose the same to any third party without Buyer’s prior written consent.
2. The confidentiality undertaking in clause 18.1 above shall not apply to information which Supplier can show (i) was in the public domain at its disclosure or subsequently has come into the public domain through no breach of these terms, or (ii) was already known to the Supplier at the date of receipt of the information, without being subject to any additional obligation of confidentiality, or (iii) has been received from a third party having the unrestricted right to disclose the information.

1. These Terms and any Order shall inure to the benefit of the successors and permitted assigns of Buyer. Supplier may not assign these Terms or any Order without Buyer’s prior written consent.

1. Supplier must not without the prior written permission of Buyer advertise or announce that it supplies Goods or Services to Buyer and shall immediately discontinue any such permitted advertisement or announcement on Buyer’s request.

1. Failure to insist upon strict performance of any of these Terms is not a waiver of any later breach or default. No waiver by Buyer of any right or remedy shall constitute a continuing waiver, and no action by Buyer in respect of any breach by Supplier will be deemed to bind Buyer to take the same action in respect of subsequent breaches.

1. Each provision of these Terms is severable.  Severance does not affect any other provisions.

1. This agreement contains the entire agreement between the parties and supersedes any and all prior and contemporaneous agreements, representations and communications, whether oral, written or otherwise, concerning any and all matters contained herein including but not limited to terms and conditions contained in credit applications or other standard terms and conditions of trade or supply of the Supplier.