1. DEFINITIONS AND APPLICATION

1.1 In these Terms and Conditions of Sale (these “Conditions”): “MAH” means Intervet Inc. d/b/a Merck Animal Health, with a principal place of business at 2 Giralda Farms, Madison, NJ 07940; the “Purchaser” means the person, firm or company purchasing Products or materials (the “Products”) from MAH; each of MAH and the Purchaser shall be a “Party”, and together they shall be the “Parties” to these Conditions; and “Contract” means an agreement between the Purchaser and MAH for the purchase of the Products, of which these Conditions form part.

1.2 These Conditions apply to all purchases of Products, including orders placed through MAH’s sales representatives, e-commerce platforms or customer services department.

2. BASIS OF CONTRACT

2.1 A quotation for the Products given by MAH shall not constitute an offer. Each order or acceptance of a quotation for the Products constitutes an offer by the Purchaser to MAH to buy the Products in accordance with these Conditions. The Purchaser is responsible for ensuring that the terms of the order are complete and accurate.

2.2 For those Purchasers with whom MAH has not negotiated a bespoke agreement for the purchase of Products, unless MAH and Purchaser have agreed otherwise, the Contract shall comprise the following: (i) the Purchaser’s purchase order (subject to the provisions of clause 2.3); (ii) MAH’s written acceptance of the purchase order; (iii) MAH’s invoice; and (iv) these Conditions.

2.3 Orders submitted to MAH with the Purchaser’s standard terms may be accepted on the understanding that the form is used for convenience only and that the Purchaser’s standard terms shall not apply.

2.4 These Conditions apply to and supersede any terms and conditions oral or written referred to, offered or relied on by the Purchaser, whether in negotiation or at any other time in the dealing between MAH and the Purchaser. The Contract and these Conditions encompass the whole agreement reached between MAH and the Purchaser.

2.5 The Contract constitutes the entire agreement between the Parties. The Purchaser acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of MAH which is not set out in the Contract.

2.6 These Conditions are applicable to the sale of all MAH animal health products, including poultry, aqua, ruminant, companion animal, equine, trout and pig products.

3. TITLE AND RISK

3.1 Tile and risk in the Products shall pass to the Purchaser on delivery in accordance with Condition 6.4.

4. PRICE AND PAYMENT (DIRECT CUSTOMERS ONLY)

4.1 All discount rates, prices and pack sizes are subject to alteration and are quoted for delivery in the United States of America. All prices quoted by MAH are exclusive of any taxes, which will be applied.

4.2 The price payable for the Products shall be the price applicable at the date on which you submit your order. If delivery for Products is delayed and there is a difference between the price prevailing on the scheduled delivery date and the price prevailing on the actual delivery date, then the price charged will be the price prevailing on the scheduled delivery date.

4.3 Payment is due and must be received by MAH within the period specified on the invoice. MAH shall have the right to withhold supplies of the Products in the event of payment for outstanding invoices not having been received by the due date.

4.4 The Purchaser shall make all payments due under these Conditions in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by MAH to the Purchaser.

4.5 Notwithstanding any other terms stated in these Conditions, MAH reserves the right to impose such credit limit or other payment terms as it deems fit and/or require that the Products be paid for in cleared funds before delivery.

4.6 MAH may charge interest on unpaid amounts from the due date of payment of a valid invoice (provided that such invoice complies with the requirements of this clause) at the rate of 1.5% per month or the highest rate allowed by applicable law, whichever is lower. MAH shall be entitled to sue for the price of Products in case of unpaid invoices.

5. SPECIFICATION ALTERATIONS

5.1 MAH reserves the right to alter the specification of any Product without prior reference to the Purchaser provided that the Product complies in all other known respects with the Purchaser’s requirements.

6. DISPATCH / DELIVERY

6.1 When it is necessary for the Purchaser to do any act to enable MAH to dispatch the Products, such act must be performed in good time to enable MAH to effect dispatch on the agreed delivery date (or, if no such date is agreed, within seven (7) days of acceptance of the order). In the event of the Purchaser’s failure to comply with this Condition 6.1, MAH may at its option terminate the Contract in whole or in part by giving written notice thereof to the Purchaser.

6.2 All delivery dates are estimates only and MAH shall not be liable in damages for any delay in delivery. If MAH does not deliver within 30 days of the agreed delivery date, the Purchaser may then cancel the order in whole or in part by serving written notice on MAH to that effect and MAH shall have no further liability in relation to the cancelled order.

6.3 Products are despatched by a route at MAH’s discretion. Where the Purchaser requests deipatch of the Products by a special method or route, the Purchaser shall bear the additional cost.

6.4 Delivery shall take place when the Products reach the delivery address designated by (or on behalf of) the Purchaser or are handed over to the carrier nominated by (or on behalf of) the Purchaser (whichever shall occur first). All deliveries must be signed for by the Purchaser (or its appointed representative).

6.5 MAH may deliver the Products by separate instalments and invoice each instalment separately. Each instalment shall be a separate Contract and no breach, cancellation or termination of any one Contract relating to an instalment shall entitle the Purchaser to repudiate, terminate or cancel any other Contract or instalment, provided however that MAH may suspend delivery of any instalment whilst payment is overdue in respect of any previous instalment.

6.6 Subject to this Condition 6.6, all returnable containers and pallets used in connection with deliveries shall remain the property of MAH. Unless otherwise agreed, the Purchaser shall pay any deposit charges as applicable at the time of delivery, as security for the return of such containers without discount when the invoice for the contents is paid and such deposit will only be repaid if the containers are returned at the Purchaser’s expense in good condition within six (6) months of the date of delivery, otherwise the deposit shall be forfeited to MAH and MAH shall have the right to invoice the Purchaser the replacement cost of such containers. Where no deposit is charged at the time of delivery and if the containers are not returned to MAH within a period of six (6) months, in good order and condition, then the Purchaser will reimburse MAH the replacement cost of such containers.

7. NON-DELIVERY

7.1 If, following acceptance of the Purchaser’s order, MAH fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Purchaser in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. MAH shall have no liability for any failure to deliver the Products to the extent that such failure is caused by an event of force majeure or the Purchaser’s failure to provide MAH with adequate delivery instructions.

8. LOSS / DAMAGE / DEFECT

8.1 The Purchaser shall inspect the Products immediately upon delivery. The Purchaser must notify MAH in writing of:

a) delivery of incorrect quantities of any Products;

b) any alleged defect in or damage to the Products which ought to be apparent on such an inspection;

in each case within one (1) working day of the delivery. If no claim is made by that date the delivery shall be deemed to be in accordance with the Contract, although this will not prevent the Purchaser subsequently making a claim in relation to a latent defect in the Products that was not discovered on any such inspection. Any such notice must specify the particular defect and the Purchaser must afford MAH reasonable opportunity to inspect the Products in question.

8.2 If the Products are agreed by MAH to be defective or faulty MAH shall credit the invoice value of the Products and such credit will be in full satisfaction of any claim by the Purchaser.

9. RETURNS

Unless otherwise provided in these Conditions, Product returns are subject to your wholesalers’ returns policy, a copy of which can be requested from your wholesaler.

10. SUB-STANDARD / SURPLUS STOCK

10.1 Any Products sold as sub-standard or surplus stock shall be accepted by the Purchaser in their actual state and condition and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded with respect to such stock.

11. RESALE AND EXPORTS

11.1 Purchaser must ensure that the Products are not resold or supplied:

a) after their expiry date; and

b) where a Product is available only on prescription, except by or to a veterinary practice or to a person possessing a prescription for that Product.

11.2 Purchaser shall not export, market or sell any Product in or for resale.

12. INTELLECTUAL PROPERTY

12.1 The supply of the Products by MAH shall not confer any right upon the Purchaser to use any of MAH’s trade marks without prior written consent of MAH and at all times such trade marks shall remain the property of MAH, nor does it imply any right to use any of MAH’s patents or any indemnity against infringement of third party patents.

13. REPRESENTATION AND WARRANTY

13.1 The Purchaser shall not give any warranty or make any representation purportedly on behalf of MAH except when expressly authorized by MAH to do so.

14 LIABILITY AND INDEMNITY

14.1 To the fullest extent permissible by law, MAH shall not, under any circumstances, be liable for any loss of revenue, business contract, anticipated savings, profits, data or information, damage to property, or any indirect or consequential loss howsoever arising whether from negligence, breach of contract or otherwise. Nothing in the Contract or these Conditions shall limit or exclude the liability of MAH for:

a) death or personal injury resulting from negligence; or

b) fraud or fraudulent misrepresentation; or

c) any matter which it would be illegal for MAH to exclude or attempt to exclude.

14.2 Subject to Condition 14.1, the total aggregate liability of MAH to the Purchaser arising out of or in connection with the Contract or these Conditions for any and all claims, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the charges paid by Purchaser under the Contract.

14.3 The Purchaser shall indemnify MAH against all liabilities, costs, expenses, damages and losses (including legal fees and expenses) incurred by MAH arising out of or in connection with any claim made against MAH by a third party arising out of, or in connection with, the supply of the Products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance by the Purchaser, its agents or subcontractors.

15. FORCE MAJEURE

15.1 MAH shall not be liable for any failure to observe, or breach of, any of the terms hereof by reason of acts of God, war, riots, acts of terrorism, civil commotions, strikes, lock-outs, trade disputes, fires, breakdowns, interruptions of transport, Government action, disease, pandemic or epidemic, delay in delivery by MAH’s suppliers, or any other cause whatsoever beyond its reasonable control. In such circumstances, except where the Products are in transit, either MAH or the Purchaser may terminate the unperformed part of any Contract by notice in writing delivered to the other Party within 14 days of MAH giving written notice to the Purchaser of the occurrence of such action or circumstance as makes MAH fail to observe or breach the terms hereof.

16. TERMINATION

16.1 Without prejudice to any other rights or remedies MAH may have under these Conditions or otherwise, MAH may, at its discretion, terminate the Contract if:

a) the Purchaser fails to make any payment by the due date or becomes bankrupt;

b) the Purchaser passes a resolution for winding up or a court of competent jurisdiction makes an order that the Purchaser be wound up (in either case) otherwise than for the purpose of bona fide reconstruction or amalgamation;

c) a receiver, trustee in bankruptcy, administrator, administrative receiver or similar officer is appointed over or in respect of the Purchaser’s undertaking, property or assets or any part thereof;

d) the Purchaser makes or attempts to make any arrangement with or for the benefit of its creditors or is unable to pay its debts as they fall due; or

e) the Purchaser ceases to carry on business, in which case MAH shall have the option to withhold or cancel further deliveries of Products, provided that failure on MAH’s part to exercise this option in respect of one or more deliveries shall not affect MAH’s right to exercise it in respect of other deliveries.

16.2 Termination of the Contract does not affect the accrued rights and liabilities of the Parties or the enforceability of any provisions of the Contract or these Conditions that are intended to remain in force after its termination.

16.3 On termination of the Contract for any reason, the Purchaser shall immediately pay to MAH all amounts outstanding under the Contract.

16.4 Termination of the Contract, howsoever arising, shall not affect any of the Parties’ rights, remedies, obligations and liabilities that have accrued as at termination

16.5 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

17. GENERAL PROVISIONS

17.1 Assignment and other dealings: The Purchaser shall not, without MAH’s prior written consent, assign or transfer or purport to assign or transfer the Contract or the benefit thereof to any other person whomsoever. These Conditions shall be binding upon, and shall insure to the benefit of, the Parties and their respective successors and permitted assigns.

a) Conflicts of Interest: The Purchaser shall conduct its activities hereunder so as to avoid loss or embarrassment to MAH due to any real or apparent conflict of interest, and to require that all sub-contractors comply with such policy in connection with the Contract; and

b) MAH shall have the right to terminate the Contract, without any penalty or obligation to pay damages, upon violation of the business practices mentioned in this Condition by the Purchaser, its employees, agents, representatives, sub-contractors or consultants.

17.2 Data Privacy and Security: “Personal Information” shall mean any information or set of information that identifies, or is used by, or on behalf of, MAH to identify an individual. Each Party shall comply with Data Protection Law in connection with its obligations under this Agreement. For the purposes of this Clause, “Data Protection Law” means any applicable data protection or privacy laws to which either Party, as applicable, is subject in connection with this Agreement.

17.3 Notices: Any notice required to be served by either Party on the other shall be served at the addresses set on the Purchaser’s purchase order or as otherwise notified by one Party to the other. Notice shall be effective: (i) in the case of service by post, at the expiration of two business days after the day of un-returned posting; (ii) in the case of facsimile transmission at the normal close of business of the recipient on the day on which it is sent or (if received on a non-business day) on the close of business of the next following business day; or (iii) in the case of personal service, when it is delivered. No other form of notice (including e-mail) shall be effective as between the Parties.

17.4 Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

17.5 Waiver: A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

17.6 Third party rights: A person who is not a party to the Contract shall not have any rights to enforce its terms.

17.7 Variation: Unless otherwise agreed in writing by MAH, the Products are supplied by MAH only on these Conditions and no variation or addition to these Conditions shall have effect unless MAH has signed a written agreement specifically referring to those terms and agreeing that they will so apply.

17.8 Governing law: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of the United States and the State of New Jersey.

17.9 Jurisdiction: Each party irrevocably agrees that state and federal courts sitting in the State of New Jersey of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).