Terms of Sale
MWI Credit Department
P.O. Box 5717
Boise, ID 83705
These Terms of Sale constitute a binding contract between you and MWI Veterinary Supply Co., d/b/a MWI Animal Health (“MWI”). Please carefully review these Terms of Sale because the Terms of Sale set forth the rights, obligations, limitations and exclusions that apply to you.
Unless otherwise mutually agreed in writing, any purchase by you of products from MWI (the “Products”) will be exclusively governed by these Terms of Sale and by placing an order for, purchasing or guarantying the purchase of any Products, you agree to these Terms of Sale. MWI does not accept any terms or conditions other than the terms and conditions set forth below or on MWI’s invoice. Any additional or different terms, conditions or contractual provisions introduced by you (including any terms and conditions attached to your purchase orders or other standard or printed terms issued by you) are hereby rejected and MWI will not be bound by any such terms unless MWI has explicitly agreed in writing to those additional conditions. These Terms of Sale may not be altered, supplemented or amended by use or reference to any other documents or agreements, unless agreed by MWI in writing. Any Products sold under an agency model will be subject to the respective manufacturer’s terms of sale.
2. Licenses; Compliance; Credit app
You certify and covenant that (i) you have and will maintain in full force and effect all necessary licenses, certificates, consents and other authorizations, including veterinarian licenses, Drug Enforcement Agency certificates and state controlled substances licenses, as applicable, (“Applicable Licenses”) that are required for you to purchase, handle, possess or use the Products; (ii) you have submitted copies of all your Applicable Licenses to MWI; (iii) you will immediately inform MWI if any of your Applicable Licenses is revoked or becomes invalid; and (iv) your purchasing, handling, possession and use of the Products will comply will all applicable laws, regulations, rules and ordinances. You further certify that you have a completed credit application filed with MWI and that the information on the credit application is current and correct.
3. Cash sale
All purchases shall be paid by cash, check (including electronic funds transfer or ACH) or credit card in the net amount of the invoice on or before the time of delivery unless MWI agrees to extend you open account or other credit.
4. Open account sale
All purchases on open account are due and payable by the 10th day of the month following the invoice date unless MWI agrees otherwise in writing. In addition to any other remedy available to MWI, MWI may charge you interest at an amount equal to the lesser of (i) 1.5% per month (18% per year), compounded monthly, or (ii) the highest amount permitted by law on any payments that are not made when due. In addition, you will be liable and pay for any costs, including reasonable attorney and collection agency fees, incurred by MWI to collect any past due amounts. If you experience a change of control, become insolvent, are named in any legal, arbitration or other proceeding to collect money, or file bankruptcy, then all amounts you owe to MWI will become immediately due and payable. MWI may impose a surcharge on all statement balances paid by credit card.
MWI may correct at any time all extension, price, description and other errors on any invoices, statements or other documents. The document, as corrected, shall be the effective document.
All payments shall apply first to accrued interest, second to collection costs and attorney fees and lastly to the invoiced amounts. You shall pay MWI a $25.00 service fee on all returned or dishonored checks.
7. Security interest
To secure all obligations owed by you to MWI, you grant MWI a first priority security interest and purchase money security interest in all Products, including without limitation all Goods, Equipment, Inventory and Farm Products, and all proceeds, renewals, substitutions, replacements, additions and assessions thereto, until all obligations to MWI are paid in full. The security interest expressly includes without limitation all livestock and other animals to which the Products are applied or administered, or that consume the Products, and all proceeds, accounts receivable, and contract rights arising therefrom or related to such livestock and other animals.
If your account is not paid when due, or if you have not complied with any other term or condition of your application for credit, these Terms of Sale, or any other agreement with MWI, then you are immediately in default without further notice to you.
9. MWI'S Remedies on default
If you are in default, then MWI may, at MWI’s sole discretion and without further notice to you, exercise any one or more of the following actions and remedies: (a) temporarily or permanently suspend any further shipments to you, (b) temporarily or permanently suspend your credit, (c) temporarily or permanently ship to you only if you pay via automatic bank draft, automatic credit card or if you pay in advance, (d) temporarily or permanently close your account with MWI and terminate any further transactions with you, (e) exercise MWI’s rights as a secured creditor under applicable law, (f) collect the amounts owed to MWI, including without limitation initiating a lawsuit, (g) cancel any of your outstanding orders and (h) take any other action or pursue any other remedies available to MWI at law or in equity. Once MWI takes any action or remedy because of your default, including without limitation the remedies listed in this paragraph, MWI is not obligated to (a) restore your account and credit or (b) provide you with any other account or credit terms even if you pay the past due amounts in full and satisfy any other requirements of MWI. Nothing in these Terms of Sale will prejudice or limit any right or remedy which MWI may be entitled to by law or at equity.
10. Orders; Title & risk of loss
MWI will use reasonable endeavors to deliver the Products as ordered by you and accepted by MWI. Title and risk of loss to the Products will pass to you upon delivery if the Products are delivered directly by MWI or shipped via a carrier selected and engaged by MWI. Otherwise, title and risk of loss to the Products will pass to you upon the departure of the Product from MWI’s facility.
MWI is not responsible for the inability to provide Products purchased or delay in providing Products purchased caused or effected by any cause beyond MWI’s control. MWI shall perform as soon as practicable after such cause is removed.
12. Taxes & shipping charges
Unless otherwise agreed, you are solely responsible for all shipping charges, duties and taxes (other than taxes on MWI’s income) attributable or related to the sale, delivery or use of the Products by or to you. MWI may include the charges, duties and taxes on its invoice to you, otherwise you will directly pay the applicable shipper and tax authority.
13. Returns and credits
Unless you notify MWI within three days of receipt of any Products of any damage, nonconformance or shortage, (i) your receipt of Products shall be an unqualified acceptance of those Products, (ii) the shipment will be deemed to be correct, and (iii) you waive any and all claims with respect to such Products. MWI will grant credit for returned Products only if: (a) you contact MWI prior to the return and obtain our Return Authorization (“RA”), (b) return the Product within one year of purchase, and (c) return only unopened cartons. The amount of the credit shall be (a) 80% of the net purchase price for Saleable Products that consist of controlled substances, diets, and special order Products, (b) 100% of the net purchase price for all other Saleable Products not covered in item (a) above, (c) a variable amount, if any, as determined by the manufacturer’s return policy for Products that are not Saleable Products, and (d) 0% for any Products not covered by items (a), (b) or (c) above. All returned Products (whether or not authorized) and any returned Products found to not be Saleable Product become MWI’s property. MWI will destroy all Products that are not authorized to be returned, not returnable, or not creditable. Products that MWI authorizes to be returned will be picked up by UPS (or another reputable carrier selected by MWI) or MWI’s representative at your expense. Controlled substances may only be returned by UPS. To return Class 2 and 2N controlled substances, MWI must send you a DEA Form 222 to enclose with the return. Your MWI representative must process all returns of hazardous material. Hazardous material cannot be returned via UPS. You guarantee that the Products listed on the RA were properly stored, handled and shipped so as to not affect quality. The credit will not exceed the Product’s actual purchase price.
“Saleable Product” means any Product that (i) is in original, full unopened packages with seals intact, (ii) is in original condition with no defects or adulteration in packaging or labeling and has no stickers or other marking not part of the manufacturer’s original packaging, (iii) has at least 9 months dating remaining before expiration (current month plus 8 months), (iv) was properly stored and transported while in Customer’s control and packaged properly for the return shipment to prevent damage in transit, (v) complies with manufacturer’s requirements to resell Product that has been returned, (vi) was purchased by you directly from MWI in the ordinary course of business (e.g., not a special transaction or other sale with returns restricted), (vii) is stocked at the distribution center at the time of the return and has not been discontinued, (viii) was not designated at time of purchase as “no recourse” or “not returnable,” drop shipment, special order, deals, pre-packs or a similar designation; (ix) is not seasonal or frozen; (x) is returnable and saleable under applicable laws and regulations at the time of return, and (xi) MWI determines in its sole discretion, MWI can sell back into the marketplace after a return in the normal course of business.
14. Disclaimer & limitation of warranties & remedies
A. LIMITED WARRANTY. You acknowledge that MWI is merely a distributor and not the manufacturer of the Products. As such, MWI only warrants that MWI will transfer good title to the Products and the Products will be delivered free of any security interest, lien or encumbrance except for MWI’s security interest. Except as stated in the preceding sentence, all Products are sold “AS IS AND WITH ALL DEFECTS.” The above warranties constitute the sole and exclusive warranties by MWI with respect to the Products and MWI expressly disclaims all other warranties, express or implied, including any warranties of merchantability, fitness for a particular purpose, and quality or implied by any course of dealing, usage of trade or advertising. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so some of the above exclusions and limitations may not apply to you.
B. REMEDIES. Your exclusive remedy for breach of warranty is to return the nonconforming Products for a refund of the purchase price, repair or replacement. MWI has the exclusive right to select the remedy.
C. PAYMENT REQUIRED. MWI’s warranties are effective only if MWI has received payment in full for the Products.
D. MANUFACTURER’S WARRANTY. The manufacturer of the Products may provide its own warranty. All such warranties will be passed on to you to the fullest extent permitted. MWI does not represent or warrant the existence or scope of manufacturers’ warranties.
15. Limitation of Liability
MWI expressly excludes, and will not be liable for, any special, indirect, incidental, consequential, punitive or exemplary damages of any kind, including but not limited to, loss of profits and loss of or damage to animals or property, even if MWI has been advised of the possibility of such damages. MWI’s total liability to you for any claims of any kind related to any Products or MWI’s performance under these Terms of Sale, whether for breach of contract or warranty, strict liability, negligence or otherwise, shall be limited to direct monetary damages only and shall not exceed the purchase price of the Product at issue. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so some of these limitations may not apply to you.
16. Disputes; Idaho venue & jurisdiction
MWI’s principal place of business and executive offices are located in Idaho. These Terms of Sale and all disputes between you and MWI, and any guarantor and MWI, including but not limited to actions to obtain payment, are governed by the laws of the State of Idaho, without regard to conflicts of laws provisions. You irrevocably submit to the jurisdiction and venue of the state and federal courts in Boise, Idaho. You, MWI, and the guarantor, if any, are the only parties to this agreement, and there are no intended or incidental third party beneficiaries. In any dispute the prevailing party shall recover from the other party reasonable attorney fees and costs, collection agency fees, and any other costs incurred.
If any term, provision or agreement contained in these Terms of Sale is held to be invalid, illegal or unenforceable, the remaining provisions of these Terms of Sale shall remain valid, legal, and enforceable and be enforced and construed as if such invalid provision were never a part of these Terms of Sale.
18. Changes in terms
MWI may, in its sole discretion, revise these Terms of Sale at any time by posting the revised Terms of Sale on its website. All changes to these Terms of Sale will apply to any purchases of Products that occur on or after the effective date of the change. You agree with the revised Terms of Sale by making purchases on or after the effective date of the change. If you disagree with the changes in the Terms of Sale, you shall stop any further transactions with MWI before the effective date of the change.