TRUDELL MEDICAL MARKETING LIMITED TERMS AND CONDITIONS OF SALE
Acceptance of your order is subject to the terms and conditions below and the terms and conditions set out in our order acceptance form (hereinafter collectively referred to as the “Terms”). The terms and conditions of the order acceptance form will prevail if they conflict with any of the terms and conditions set out below. As used herein, (a) “us”, “we” and “our” each mean Trudell Medical Marketing Limited and its respective successors and assigns, and (b) “you” and “your” each mean the buyer as identified on the order and its successors and permitted assigns.
1. Acceptance. If the Terms differ in any way from the terms and conditions set out in your order, the Terms will be construed as a counter-offer and will not be effective as an acceptance. The Terms will be deemed accepted by you without modification or qualification, unless we receive written objection to the Terms prior to: (a) the carrier taking possession of the ordered products at our dock; or (b) within three (3) business days after we have notified you of the Terms; whichever occurs first. Additional or conflicting terms and conditions set out in your purchase order are objected to and excluded. Acceptance of a purchase order does not obligate us to accept any future orders or obligate you to submit orders in the future. If we have entered into and signed a separate written agreement with you governing the sale of the products as set out in your order then for so long as the separate written agreement remains in effect any conflicting terms and conditions set out in the written agreement will take precedence over the Terms.
2. Convenience Pack. If your order relates to the purchase of products to be packaged and sold to you as a kit, you hereby acknowledge and agree that such kits are requested by you and that we are acting in the capacity of a packaging service provider when packaging the products in such kits for sale to you. The kits are provided “AS IS” and no warranty or representation, express or implied, is made by us or otherwise applies with regard to the suitability of the kit for your intended purpose.
3. Shipments. For minimum orders of $500.00 or greater, your order will be shipped prepaid. All orders received that do not meet the minimum order value will be subject to a handling charge of $15 and applicable shipping charges will apply. Applicable shipping charges will apply to any requests for same day delivery. Unless you request otherwise in your order, we will at your expense and risk arrange for shipment through our choice of carrier. All shipping charges are added to your invoice. Shipping charges will be those in effect the day the shipment is shipped from our dock. Invoices relating to the lost or damaged shipment will remain owing in full. Requests for air freight shipments will be shipped prepaid with the air freight charges added to the invoice. Risk of loss and damage shall pass to you once the carrier takes possession of the ordered products at our facility. If so specified on the order acceptance form, title to product ordered will not pass to you until we have received payment in full for your order otherwise title will pass once the carrier has taken possession of the products at our dock. We do not ship prepaid to the Yukon, NWT, or Nunavut.
4. No Resale. Products sold to you pursuant to the terms are not for resale and are authorized only for consumption and/or use in Canada.
5. Product Returns. Before returning product for any reason, you must first obtain a return authorization number from the Customer Service Department prior to credit or replacement. No return authorization number will be provided unless and until we first receive the following information: (i) a purchase order number, (ii) invoice number, (iii) product number, (iv) reason for return, and (v) lot or serial number, if applicable. Products returned without a return authorization number will not be
accepted by us, and will be returned to you collect. Any shipment shortages must be reported within three (3) days. Once a return authorization number has been received, products must be received by us prepaid within fourteen (14) days. All products must be returned in saleable condition. Merchandise held over thirty (30) days from date of invoice will not be accepted for return. Expired, discontinued, damaged, custom, convenience pack product, special order, sterile products, open packages, engraved and/or modified products will not be accepted for return. Any products that have proven defective or damaged during or after use must be sterilized or disinfected by you and you must provide us with proof that the products have been sterilized or disinfected accordingly. A re-stocking fee of $75.00 or 25% whichever is greater, will be applied unless the product was returned due to a defect covered under warranty or was shipped in error.
6. Payment. Payment terms are net thirty (30) days. An interest charge of the lesser of 1.5% per month (18% per annum), or the maximum amount allowed under applicable law, will at our option be charged on all past due invoice amounts commencing on the date payment is due. We reserve the right to request payment in full or in part prior to delivery and to delay delivery or cancel your purchase order if you fail to make payment prior to delivery as requested. All amounts set out in accounts rendered by us represent net amounts we are entitled to receive and are not subject to any deduction or set off for any reason whatsoever. Any inter-bank charges applicable to payments made by you are your responsibility and will be charged back to you.
7. Limited Warranty/Limitation of Liability. (1) We warrant to you that at the time of delivery the products will be of good commercial quality and comply, in all material respects, with the specifications set out in the product packaging and/or inserts. This warranty will expire twelve (12) months after the date the carrier takes possession of the products at our dock. For disposables, the only applicable warranty, including any applicable expiration dating, will be the warranty, if any, as specified by the manufacturer in its insert or labeling. If you prove to our satisfaction that a product is not in compliance with this warranty we will, at our option, either: (a) repair the product to bring it in compliance or replace it, all at no charge to you; or (b) issue a credit for the purchase price paid by you for the product. To make a warranty claim, please contact our Customer Service Department first. The warranty set out in this Section 5 is the only warranty made by us with respect to the products. No other express or implied warranties, conditions, or representations apply, including without limitation, any implied warranties or conditions of merchantable quality, durability, and fitness for a particular purpose or use or infringement of third party intellectual property rights; except for those implied warranties and conditions that may not be disclaimed by contract under applicable law.
(2) Our total cumulative liability of any kind or nature, whether in contract (including fundamental breach), warranty, tort (including negligence) or otherwise is limited to the remedy for non-compliance with the warranty as set out in this section 7 or, if the remedy fails of its essential purpose or is otherwise unenforceable, to damages not to exceed the amount invoiced for the purchase order(s) giving rise to our liability. This limitation of liability will not apply to damages awarded to a third party by a court of competent jurisdiction to the extent such damages were the direct result of bodily injury or death caused by a manufacturing or a design defect in the products.
(3) To the fullest extent permitted under applicable law, our liability of any kind or nature, whether in contract (including fundamental breach), warranty, tort (including negligence) or
otherwise, does not extend to, and we shall not be liable for, any consequential, special, indirect, or incidental losses or damages whether foreseeable or not.
8. Intellectual Property. No interest, license, or other rights under any of our, our affiliates’, our licensors’ or our suppliers’ respective intellectual property rights relating to any of the products is granted, licensed or otherwise transferred to you. You shall not register (whether as a trademark, domain name or otherwise) nor reproduce any trademarks used in conjunction with the products, without our prior written authorization. You shall not do anything to infringe upon, harm, or contest the validity of any of our, our affiliates’, our licensors’, or our suppliers’ respective intellectual property rights.
9. Force Majeure. We are not liable for failure to perform any of our obligations under the Terms or otherwise if such failure results from an event or condition, not within our control, that prevents in whole or in material part such performance or which renders such performance commercially unreasonable.
10. Governing Law / Jurisdiction. The agreement arising out of your acceptance of the Terms is made in the Province of Ontario, Canada. The validity, performance, interpretation, and enforcement of these terms and conditions, as well as our and your respective rights and liabilities, are governed by and are to be construed in accordance with the local domestic laws of the Province of Ontario and the laws of Canada applicable in the Province of Ontario, without regard to any conflict of laws rule. You irrevocably consent to the exclusive jurisdiction and venue of the Ontario courts in London, Ontario, Canada, with respect to any disputes arising out of or relating to the validity, performance, interpretation, and enforcement of the Terms and/or our or your respective rights and liabilities.
11. General. The Terms represent the entire agreement between you and us with respect to your purchase. No amendments or waiver of the Terms is valid, unless made in writing and signed by the party against whom enforcement of such amendment or waiver is sought. If any part of the Terms is declared invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable part will be deemed severed and the remaining Terms will continue in force and all rights and remedies accrued under the valid and enforceable Terms, or part thereof, will survive the declaration.
12. Province of Québec. If the buyer is from the Province of Québec, the following shall apply: It is the express wish of the parties that the Terms and any notices, documents or proceedings related thereto, be drafted in English. Les parties aux présentes ont exigé que ces termes et conditions ainsi que toute autre avis, document ou procédure s’y rapportant soit rédigé en anglais.