TMI MEDICAL DISTRIBUTION INC.
TERMS AND CONDITIONS OF SALE – ANIMAL HEALTH
Acceptance of your order, as detailed in the attached Sales Acknowledgement, is subject to the terms and conditions below. Each of the terms “us”, “we” and “our” as used herein means TMI Medical Distribution Inc. and its respective successors and assigns.
1. Acceptance.
If these terms and conditions, including those set out in our Sales Acknowledgement, differ in any way from the terms and conditions set out in your purchase order, these terms and conditions will be construed as a counter-offer and will not be effective as an acceptance. These terms and conditions will be deemed accepted by you without modification or qualification, unless we receive written objection to the terms and conditions prior to: (a) the carrier taking possession of the ordered products at our dock; or (b) within three (3) business days after we have emailed or otherwise communicated to you these terms and conditions; whichever occurs first. Additional or conflicting terms and conditions set out in your purchase order are objected to and excluded. Conflicting terms and conditions, set out in a separate signed written agreement between us, take precedence over these terms and conditions for so long as such agreement remains in effect.
2. Shipments & Product Returns.
Unless you request otherwise in your purchase order, we will at your expense arrange for shipment through our choice of carrier. All shipping and insurance charges are added to your invoice. Shipping charges will be calculated at time of order. Invoices relating to the lost or damaged shipment will remain owing in full. No product may be returned unless the return is authorized by us and is accompanied by our return authorization number (RGA #).
3. Payment & Taxes.
An interest charge of the lesser of 1.5% per month (18% per annum) or the maximum amount allowed under applicable law, may, at our option, be charged on all past due invoice amounts commencing on the date payment is due. In the event that any action or suit is instituted to collect amounts due on our accounts, you agree to pay all legal and collection fees in addition to the amount owed plus interest charges. 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. You shall bear all applicable federal, state, provincial, municipal and other government taxes arising from the use or sale of the products (including, without limitation, value-added, sales, or other similar taxes) and all custom duties and similar charges.
4.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 referenced on our Sales Acknowledgement, if any. This warranty expires three (3) months after the date the carrier takes possession of the products at our dock. 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 first. We make no representation or warranty that the products may be marketed and/or sold in the country of destination or that they do not infringe upon any third party proprietary rights in the country of destination. It is your responsibility to make the appropriate inquiries with regard to those matters.
(2) The warranty set out in this Section 4 is the only warranty made by us with respect to the products. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, CONDITIONS, REPRESENTATIONS, OR OTHER TERMS ARE DISLCAIMED AND EXCLUDED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED AND STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, DURABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR USE. OUR LIABILITY OF ANY NATURE OR KIND, WHETHER IN CONTRACT (INCLUDING, WITHOUT LIMITATION, FUNDAMENTAL BREACH), TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY IS LIMITED TO THE REMEDY FOR NON-COMPLIANCE WITH THE WARRANTY AS SET OUT IN THIS SECTION 4 OR, IF THIS REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE UNENFORCEABLE, TO LOSSES AND DAMAGES NOT TO EXCEED THE GREATER OF (A) $100 CAD OR (B) THE AMOUNT INVOICED AND PAID BY YOU FOR THE PURCHASE ORDER(S) GIVING RISE TO OUR LIABILITY.
(3) TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, OUR LIABILITY OF ANY KIND OR NATURE, WHETHER IN CONTRACT (INCLUDING, WITHOUT LIMITATION, FUNDAMENTAL BREACH), TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY, DOES NOT EXTEND TO CONSEQUENTIAL (INCLUDING LOSS OF PROFITS), SPECIAL, INDIRECT, OR INCIDENTAL LOSSES OR DAMAGES WHETHER OR NOT FORESEEABLE, WHICH ARE ALL HEREBY EXCLUDED.
5.Intellectual Property.
No interest, license, or other rights under any of our or our affiliates’ patents, trademarks, copyright, know-how, confidential information or any other intellectual property rights relating to any of the products is granted, licensed or transferred to you (“Product IP”). We and/or, if applicable, our affiliates, will remain the exclusive owner of all Product IP. 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 the Product IP. If the laws of the country of destination invest you with any property rights to any of the Product IP, you shall promptly, freely, and cooperatively relinquish to us such rights without recourse. Any goodwill accruing to you by operation of law or otherwise in any of the products sold to you hereunder or any Product IP will enure to our benefit and you hereby assign and shall assign all such goodwill to us or our nominee.
6. Course of Dealing & Right of Termination without Cause.
If these terms and conditions and/or the course of dealing between you and us over time is or may be construed under applicable law as an agreement obligating us to continue selling products to you until reasonable notice of termination is provided, you hereby acknowledge, accept and agree that: (a) we may terminate such agreement without cause and for any reason upon giving you one (1) months’ advance notice of termination, or such other greater advance notice of termination period as we may in our sole discretion otherwise specify in our notice of termination; and (b) that such advance notice as given by us will be deemed reasonable notice of termination and you hereby waive any right to contest or object to the inadequacy of such notice of termination.
7. Cancellation & Termination.
We may cancel or terminate all or part of the agreement arising from your acceptance of these terms and conditions immediately upon the happening of any of the following: (a) your breach of any of your obligations hereunder or with respect to any other order or transaction with us; (b) institution of any proceedings by or against you, any of your property under any law dealing with bankruptcy, insolvency, receivership or other relief of debtors; (c) your suspension or termination of your business or assignment for the benefit of creditors; or (d) any event, whether or not similar to the foregoing, which in our good faith belief materially impairs the prospect of payment or performance by you hereunder. We may exercise our rights to cancel or terminate without liability.
8. Anti-Bribery.
You hereby acknowledge that you are aware of Canada’s Corruption of Foreign Public Officials Act (“CFPOA”). The CFPOA makes it illegal to give, offer or agree to offer anything of value to any person who holds a legislative, administrative or judicial position or a person who performs public duties or functions or an official or agent of a public international organization that is formed by two or more states or governments or by two or more of such public international organizations (collectively “Foreign Public Official”) in order to obtain or retain an advantage in the course of business. You: (a) confirm that you, your employees and agents have not been accused of engaging in any conduct that would constitute the giving, offering or agreeing to offer anything of value to a Foreign Public Official in order to obtain or retain an advantage in the course of business; and (b) shall not commit and shall cause your employees and agents not to commit any direct or indirect act as described in the foregoing paragraph (a). You shall comply with our anti-bribery policies that we may from time to time bring to your attention regarding the CFPOA and, if applicable, other similar legislation, such as the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act. You shall submit to us upon request a signed certificate confirming your compliance with such legislation and policies. We do not condone or tolerate violations of the CFPOA, any other applicable anti-bribery legislation, or any of our anti-bribery policies.
9. Force Majeure.
We are not liable for failure to perform any of our obligations under these terms and conditions 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, including, without limitation, acts of God, terrorism, epidemics (including, without limitation, pandemics and COVID-19) and any other causes beyond our control.
10. Governing Law / Jurisdiction.
The agreement arising out of your acceptance of these terms and conditions 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 to the exclusion of the UN Convention on the Contracts for the International Sale of Goods. 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 these terms and conditions and/or our respective rights and liabilities.
11. General.
These terms and conditions, together with the terms and conditions set forth in our Sales Acknowledgement, represent the entire agreement between us with respect to your purchase to the exclusion of any prior oral or written agreement, promises or representations. These terms and conditions do not create any agency, partnership, joint venture, or franchise relationship. We are each an independent contractor. You shall not assign the agreement, any part thereof, including, without limitation, any rights, without our prior written consent. The agreement enures to the benefit of our successors and assigns and is binding upon your successors and permitted assigns. Each of our rights and remedies reserved herein is cumulative and additional to any other rights and/or remedies provided to us in law or equity. No amendments or waiver of these terms and conditions 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 these terms and conditions is declared invalid or unenforceable by a court of competent jurisdiction, the invalid or unenforceable part will be deemed severed and the remaining terms and conditions will continue in force and all rights and remedies accrued under the valid and enforceable terms and conditions, or part thereof, will survive the declaration. YOU REQUEST AND CONSENT TO THESE TERMS AND CONDITIONS BEING DRAFTED IN ENGLISH.
12. Province of Québec.
If applicable, if you are from the Province of Québec, the following shall apply: It is the express wish of the parties that these 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.