These Terms and Conditions of Sale (the “Terms”) apply to the customer (“Customer”) listed on the applicable Order (as such term is defined below) and its purchase of the products listed on the applicable Order from GA International Inc. (“Vendor”). Each of Vendor and Customer is referred to herein as a “Party” and collectively and together as the “Parties”.
1. Interpretation
All Orders shall be subject to these Terms. Any different or additional terms and conditions of any other purchase order (including the terms and conditions of purchase included in or attached to Customer’s purchase order), confirmation, acknowledgment, bill of lading or similar document shall have no force or effect unless agreed to in writing by an executive employee of Vendor. These Terms will not be amended or modified by the terms of any purchase order, confirmation, acknowledgment, bill of lading or similar document, even if a non-executive employee, contractor or agent of Vendor has accepted or signed the same. In the event of any conflict or inconsistency between these Terms (including its schedules) and the terms and conditions of a purchase order, confirmation, acknowledgment, bill of lading or similar document, these Terms shall prevail. Customer shall and shall cause each of its employees, contractors and agents to, comply with these Terms to the full extent as if such persons were a party hereto, and any act or omission relating to these Terms by such persons shall be deemed an act or omission by Customer.
2. Product Orders
By placing, accepting or entering into (as applicable) a purchase order, sales order, agreement, instrument or other document (in electronic or tangible form) pursuant to which Customer orders Products or samples of Products from Vendor and/or Vendor sells Products to Customer (in each case, the “Order”), the Customer acknowledges and agrees to all of the terms and conditions set forth in these Terms. The products and samples of Products (collectively, the “Products”) covered by these Terms are those set forth in the applicable Order. The Order (when accepted by both Parties) and these Terms constitute the entire agreement between the Parties with respect to the purchase and sale of the Products. Vendor reserves the right to exercise discretion in accepting or rejecting any Orders based on its capacity, business policies and other considerations of the Vendor, in its sole discretion. No Order shall be binding upon Vendor unless accepted in writing by Vendor. In the event that Customer is in breach of these Terms or any other contract in place with Vendor, Vendor shall be entitled, in its sole and absolute discretion, at any time, refuse or cancel any Order, in whole or in part, without any penalty, fees or any compensation to Customer.
3. Shipping and Delivery
Unless otherwise agreed in writing by the Parties in the Order, Vendor is responsible for the shipping of the Products to Customer’s designated location set out in the Order and Products will be sold, shipped and delivered in accordance with the Incoterm selected by Vendor. The Incoterm selected by Vendor will depend on the place of destination set out in the Order. If no Incoterm is indicated in the Order, the applicable Incoterm shall be Delivered at Place (DAP) Customer’s designated location set out in the Order. Products shall be deemed delivered to Customer in accordance with the applicable Incoterm. While Vendor will make its best effort to fill the Order and meet specified delivery dates, if Vendor does not fulfill the Order received from the Customer or deliver Products to Customer by a specified delivery date, such act or non-act shall not constitute a breach by Vendor. Title to and all risk of loss or damage to Products remains with Vendor until delivery in accordance with the applicable Incoterm. Ownership (title) of the Products is transferred to the Customer only after full payment is received.
4. Pricing
The prices for ordered Products are those set forth in the applicable Order. Unless otherwise agreed in writing by the Parties in the Order, the prices for the Products exclude any and all taxes (including sales taxes), duties, customs clearance, and other charges, fees and costs related to the Products and their packaging, handling, shipping and delivery and Customer is responsible for the payment of any such taxes, duties, customs clearance, charges, fees and costs related to the Products and shall defend, indemnify and hold Vendor harmless against any and all claims, damages or liabilities in connection with the foregoing. In respect of Orders to be delivered in Canada, United States and the European Union, Vendor will charge Customer for shipping fees in accordance with Vendor’s then applicable rate card. In respect of Orders to be delivered outside of Canada, United States and the European Union, Vendor will charge Customer the shipping fees in charged by the carried selected by Vendor. Shipping fees must be paid by the Customer when the Order is accepted and shipment of the Products is contingent upon payment in full of the shipping fees. Pricing of Vendor’s products and services (including shipping costs) are subject to change at any time and without prior notice. The entering into of an Order does not guarantee future pricing for Vendor’s products and services, including the Products.
5. Use of Products
Products shall be used for their intended use only. Customer agrees not to resell Products to any non-affiliated third party. Guidelines for the proper use and handling of Products are available upon request (if not already provided at time of order) and shall be strictly adhered to by the Customer and the user under its control or direction to ensure safety and optimal performance.
6. Payment Terms and Invoicing
Unless otherwise indicated in the Order, Vendor shall provide to Customer an invoice for each Order placed and shipped/delivered/provided to the Customer. All invoices shall become due and payable within thirty (30) days of the invoice date. Late amounts may be subject to a late fee of 1.5% per month prorated (18% per annum), or the maximum interest rate allowable by law whichever is the highest. Additionally, Customer may be subject to a fee of fifty dollars ($50.00) for any cheques returned unpaid to Vendor for any reason. In the event any expense is incurred to compel payment of the invoice or to declare any action or proceeding is commenced, Customer agrees to pay all costs and expenses associated with collection of unpaid sums, including but not limited to attorneys’ fees and costs. Vendor, in its sole discretion, reserves the right to change terms of payment and/or discontinue further shipments, without prejudice to any other lawful remedy, until past due payments are made and satisfactory assurances of Customer’s credit standing are received by Vendor. Should Customer elect to cancel the Order, in whole or in part, Customer shall be liable to Vendor for reasonable cancellation charges that shall include but not be limited to all costs and expenses incurred by Vendor in connection with procuring and filling Customer’s Order.
7. Disputed Amount
If any amount of an invoice is disputed by the Customer in good faith, Customer shall pay the undisputed invoice amount when due along with a written explanation specifying the amount in dispute. Upon resolution of the amount in dispute, any disputed amount that is determined to be due and owing to Vendor by the Customer shall be paid by the Customer to Vendor immediately upon such resolution. Customer must notify Vendor in writing of any dispute of an invoice; any such dispute is waived by Customer if such notice is not received by Vendor within thirty (30) days of the invoice date.
8. Intellectual Property
All intellectual property rights related to Vendor Products and any enhancements, modifications or new versions thereof, including patents, trademarks, and copyrights, (collectively, the “Products IP”) remain the exclusive property of Vendor and its licensors. The Customer is granted no rights or licenses, either expressly or by implication. Customer acknowledges that it has no right, title or interest in the Products IP. Customer covenants that it shall not in any manner whatsoever represent that it has any ownership in or right, title or interest to any of such Products IP.
Customer has not and will not, without Vendor’s prior written consent, adopt, use, register or seek to register, in its name, domain name, domain name, email addresses or in any of its solutions, products or services, any trademarks which include or are confusingly similar to the trademarks, trade names or other identifying marks or distinguishing guise owned or used by Vendor.
Customer further covenants that it shall not at any time challenge Vendor for any ownership of any such Products IP, challenge the validity of any such Products IP, do, or cause to be done, or omit to do, or cause to be omitted to be done, any act or thing, the doing or omission of which would contest or in any way impair or tend to impair any right, title, or interest of Vendor in any such Products IP.
In the event that any third party violates any right, title or interest of Vendor in and to any Products IP, Customer shall fully cooperate with Vendor to terminate such violations. Customer shall promptly notify in writing Vendor of any violation of the Products IP of which Customer has notice. Vendor has the exclusive right to prosecute and defend, at its option and expense, all suits or proceedings, whether before any court or other tribunal of competent jurisdiction or before any authorities, involving in any way the validity of, title to or infringement of such trademarks or patents.
Unless agreed to otherwise in writing between the Parties, Customer shall not repackage or re-label any Product or remove any trademarks, trade names, copyright notices, or other indicia of Vendor’s intellectual property rights from any Product, any packaging, or any documentation relating to any Product, except as expressly approved by Vendor in writing.
Customer may from time to time provide Vendor with feedback including, but not limited to, suitability, compatibility, problem reports, suggestions and other information with respect to the Product (“Feedback”). Customer hereby grants to Vendor a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Products and any other Vendor products or services, or for any other purposes, any Feedback provided by Customer.
9. Product Warranty
Vendor is committed to providing Products that are defect-free and conform to Vendor’s published specifications. Vendor will provide, at no cost to Customer, no later than the beginning of the Warranty Period, its documentation regarding instructions and after-sales service included with purchased Products. Vendor warrants to Customer that the Products conform to Vendor’s published specifications and are free from defects in workmanship and material at the time of delivery. Vendor undertakes to cure any defect resulting from faulty design, materials or workmanship of the Products, subject to the provisions stipulated hereinafter. This undertaking only applies to defects that appear during the period (the “Warranty Period”) which begins upon the delivery of the Products and which runs until the expiration of the twelve (12) months warranty period that follows. Vendor does not assume any responsibility or warranty obligation other than expressly set forth herein or in the Order.
In order to invoke the benefit of Vendor’s Products warranty, Customer must notify Vendor of any apparent defects within sixty (60) days of the delivery of the applicable Product. All warranty claims must be reasonably detailed and must include all relevant supporting documentation, including any information or documents requested by Vendor, acting reasonably. Once notified, Vendor has the choice, at its sole and absolute discretion, to either: (a) replace the defective Products; or (b) reject the warranty claim. Vendor may require Customer to send to Vendor (at Vendor’s cost and expense) the allegedly defective Products in order for Vendor to determine if the Products are defective or not. Customer accepts, unless otherwise stipulated, the risk associated with the transport of allegedly defective Products. Replacement Products will be sent by Vendor (at Vendor’s cost and expense) to Customer at the location set out in the applicable Order. During the Warranty Period, Vendor’s obligation only covers defects that occur within normal conditions of use stipulated in the contract or published by Vendor.
This warranty does not extend to or cover: (a) any product, components, or parts not manufactured or sold by Vendor; (b) damage caused by use of any Product for purposes other than those for which it was designed as indicated in Vendor’s published materials; (c) damage caused by unauthorized attachments or modification; (d) any other abuse or misuse by Customer, its employees, representatives, contractors and agents; or (e) any Vendor Product where the Customer receives the Product from a person or entity that is not affiliated with or authorized by Vendor. This warranty may be cancelled: (a) In the event of unforeseen circumstances beyond Vendor’s control (acts of God or force majeure events) which do not engage Vendor’s responsibility (fire, floods, natural disasters…); or (b) if Customer has outstanding invoices with Vendor, in Vendor’s sole discretion. It is expressly agreed that Vendor will not indemnify Customer for accidents to persons, damages to property distinct from the object of the contract or lost profits, unless it results from circumstances in which Vendor commits a gross negligence or willful misconduct.
All return claims due to Vendor’s shipping or billing error must be made in writing within thirty (30) days of the invoice date and will be corrected at no cost to the Customer. Any such incorrect Orders and corrected Orders will be sent at Vendor’s cost and expense and Vendor will bear the risk associated with the transport of the Products.
All return claims due to Customer’s error will result in a restocking fee equal to 10% of the amount of the applicable Order. Any such incorrect Orders and corrected Orders will be sent at Customer’s cost and expense and Customer will bear the risk associated with the transport of the Products.
All return claims must be reasonably detailed and must include all relevant supporting documentation.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE ORDER, THESE TERMS, THE PRODUCTS. ALL SUCH OTHER WARRANTIES AND REPRESENTATIONS ARE HEREBY DISCLAIMED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED OTHERWISE IN THE ORDER OR IN THESE TERMS, THE PRODUCTS AND ALL OTHER INFORMATION AND MATERIALS ARE PROVIDED BY VENDOR TO CUSTOMER “AS IS” AND AT ITS OWN RISK AND WITHOUT WARRANTY OF ANY KIND. VENDOR MAKES OR HAS MADE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, INCLUDING CONVENTIONAL WARRANTY, (I) WITH RESPECT TO THE QUALITY, USE, RESISTANCE OR EFFECTIVENESS OF ANY OF THE PRODUCTS; (II) WITH RESPECT TO RELIABILITY, VALUE, UTILITY OR SAFETY OF THE PRODUCTS, OR ANY USEFULNESS THEREOF, (III) WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE PRODUCTS; (V) WITH RESPECT TO THE AVAILABILITY OF ANY OF THE PRODUCTS; OR (V) THAT THE PRODUCTS OR ANY USE THEREOF IS OR WILL BE FREE FROM INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHT OR ANY OTHER RIGHT OF ANY THIRD PARTY.
10. Limitation of Liability
TO THE EXTENT ALLOWED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, IN NO EVENT SHALL THE LIABILITY OF VENDOR TO CUSTOMER FOR A GIVEN PRODUCT, ON ALL CLAIMS OF ANY KIND, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF THE PERFORMANCE, NON-PERFORMANCE OR BREACH OF THESE TERMS, EXCEED THE TOTAL PRICE PAID BY CUSTOMER FOR SAID PRODUCT. This limitation does not apply in cases of gross negligence, willful misconduct, or where strict liability for death, personal injury, or property damage is applicable. To the extent allowed by applicable law, in no case shall Vendor be liable for any INDIRECT, special, incidental, exemplary, punitive, consequential or similar damages.
11. Mutual Indemnification
Each Party (the “Indemnifying Party”) shall indemnify and hold harmless the other Party (the “Indemnified Party”) and its affiliates and their respective shareholders, directors, officers, employees, agents, and affiliates from and against any and all liabilities, injury, damages, losses, penalties, fines, costs and expenses, including reasonable attorneys’ fees, paid or incurred by them in connection with any third party action, suit, claim or proceeding (a “Claim”) brought against the Indemnified Party based upon or arising from (i) any negligent or more culpable act or omission of the Indemnifying Party or its affiliates or subcontractors or any of their respective employees or agents, (ii) any breach of these Terms or of applicable laws and regulations by the Indemnifying Party or its affiliates or subcontractors or any of their respective employees or agents and (iii) any failure by the Indemnifying Party to comply with its obligations under these Terms. To the extent that Vendor and Customer have indemnification obligations to one another in connection with a single Claim, Vendor and Customer shall contribute to the aggregate damages arising from such Claim in such proportion as is appropriate to reflect their relative responsibilities for such damages, as well as any other relevant equitable considerations. The amount paid or payable by Vendor or Customer for purposes of apportioning the aggregate damages shall include all reasonable attorneys’ fees and expenses incurred by such Party in connection with investigating, preparing for or defending against such Claim. Vendor will not be responsible and Customer agrees to indemnify, defend and hold Vendor, its officers, directors, parents, subsidiaries, affiliates, employees and agents harmless for any loss, injury or damage to any person or property as a result of: (a) any act or omission of Customer in the storage or use of a Product that does not comply with the terms outlined in these Terms or the instructions of Vendor, (b) any breach of these Terms by Customer, or (c) any modification, abuse, misuse, loss, or damage of the Product while in Customer’s possession or control.
12. Compliance with Applicable Laws
The Parties agree that each of them shall abide by all applicable state/provincial and federal laws relating to the activities and Products subject to or sold pursuant to the Order, including but not limited to, all use, record keeping and reporting obligations set out in applicable laws and regulations, and other provincial/territorial personal health information protection statutes, as applicable, as each may be modified or amended from time to time.
13. Regulatory Matters
Customer shall immediately forward to Vendor information concerning all actual or threatened charges, complaints or claims of any nature, which relate in any way to the Products and which come to Customer’s attention. Customer shall cooperate with Vendor, its representatives (including regulatory), government agencies, its legal counsel, its insurance carriers and their legal counsel in investigating and defending any such charges, complaints or claims. Customer and its employees shall, at Vendor’s request, provide Vendor with reasonable assistance in gathering information concerning such charges, complaints or claims and in giving oral or written testimony as to all facts in their possession concerning such charges, complaints or claims.
14. Compliance with Law / Bribery
In addition to the specific provisions elsewhere in these Terms, Customer shall comply with all laws applicable to the purchase and use of the Products in any jurisdiction in which Customer own, control or use the Products, including without limitation any restrictions on the activities of medical professionals not licensed in such jurisdictions. Customer further acknowledges that Customer is aware of and shall comply with the provisions of the United States Foreign Corrupt Practices Act, the Canadian Corruption of Foreign Public Officials Act, the Anti-Corruption Act (Quebec) (as may be amended from time to time) and any laws of any jurisdiction relating to commercial bribery. By way of example and not limitation, except as permitted by law, Customer shall not offer, pay, or promise to pay, any money or thing of value, directly or indirectly, to any person who is a government official for the purpose of obtaining or retaining any business. For these purposes “government official” shall include any employee of any governmental entity, political party, or public international organization, any political party official, or any candidate for public office in any jurisdiction. Customer further represents and warrants that neither Customer nor any of Customer’s staff or employees will promote Vendor or its affiliates’’ products for any purposes for which the products are not indicated or approved by appropriate governmental or regulatory authorities.
15. Disclosure of the Order
The provisions of the Order (including these Terms) shall be considered proprietary, Confidential Information owned by the Parties hereto and shall not be disclosed to anyone, except (i) as may be otherwise specified herein; (ii) to such employees of the Parties hereto, affiliates, and employees of such affiliates, having a need to know in order to carry out the terms and conditions of the Order (including these Terms); (iii) to executive management of each of the Parties; (iv) to attorneys, accountants and auditors of each of the Parties; (v) if necessary in the reasonable opinion of each respective Party, to its board of directors; and (vi) in connection with any litigation between the Parties hereto or as a result of any legal process or requirement of law, rule or regulation. Customer shall be allowed to share the Order (including these Terms) and any attachments with any consultant or independent contractor engaged by Customer in connection with its business operations that are bound by an agreement or legal obligation of confidentiality.
Notwithstanding the foregoing, if either Party is legally obligated to disclose any Confidential Information received pursuant to the Order (including these Terms) in order to comply with any applicable federal, state/provincial or local law, or pursuant to an order of a court of competent jurisdiction, such Party shall, unless legally prohibited, promptly notify the disclosing Party prior to any such disclosure, to enable the disclosing Party to protect the Confidential Information. In such event, the receiving Party shall only disclose such portion of the Confidential Information that it is legally required to disclose.
16. Use of Names; Publicity
Neither Party shall use the names of the other Party or any adaptation, abbreviation or likeness thereof, or any trademark, trade name, trade style or registered design that is the property of or currently in use by the other Party, on any web site or in any printed materials, publicity, advertising, or for trade or other commercial purposes (including without limitation in Vendor’s client/customer lists) without the prior written consent of the other Party as to form, content and context, which consent may be refused for any reason and revoked at any time upon five (5) business days’ notice.
17. Vendor Product Recall Policy
Should Vendor discover any situation in which the continued use of or exposure to a distributed Product could result in a risk to the health for a person, or if either Customer or Vendor obtains information that a Product or any portion thereof is alleged or proven not to conform with the labelling or any other applicable product specification, registration or certification requirements for such Product, it shall notify the other Party immediately and both Parties shall cooperate fully regarding the investigation and disposition of any such matter. Each Party shall maintain such traceability records as are reasonably practicable and as may be necessary to permit a recall or field correction of any Products. In the event (i) an authority issues a request, directive or order that any of the Products be recalled, or (ii) a court of competent jurisdiction orders such a recall, or (iii) Vendor determines that any of the Products present a risk to health for a person or is otherwise defective, misbranded and/or altered or for any other reasonable motive and that recall of such Products is appropriate (any such event described in (i), (ii) or (iii) herein, a “Recall”), each Party shall promptly notify in writing the other Party after becoming aware of an event described in this Section. Vendor shall have sole responsibility for determining all corrective actions to be taken and to implement the Recall, but shall confirm with Customer and keep Customer informed on a regular basis of Vendor’s progress in planning and implementing the Recall. Customer will use commercially reasonable efforts to cooperate with and assist Vendor in connection therewith as may be requested by Vendor, including but not limited to Customer contacting its customers and informing them of any Recall. To the extent such Recall is attributable to any negligence on the part of Customer or any material breach by Customer of its obligations under these Terms, Customer shall reimburse Vendor for its reasonable costs and expenses incurred that are attributable to such negligence or material breach by Customer.
18. Assignment
Neither Party may assign its rights and obligations under these Terms to any third party without the express prior written consent of the other Party; provided, however, that Vendor may assign all or any part of its rights and obligations hereunder without the need for Customer’s consent to any affiliate of Vendor or, in the event of a merger, acquisition, change of control, reorganization or sale of substantially all of Vendor’s assets, to Vendor’s successor.
19. Notices
All notices and other communications in connection with these Terms shall be in writing and shall be sent to the respective Parties at the addresses set forth on the Order, or to such other addresses as may be designated by the Parties in writing from time to time in accordance with this Section, by hand, by registered or certified mail, postage prepaid, or by express courier service, service fee prepaid, in accordance with this Section. All notices shall be deemed given and received (i) if delivered by hand, immediately, (ii) if sent by mail, three (3) business days after posting, or (iii) if delivered by express courier service, the next business day in the jurisdiction of the recipient.
20. Choice of Law
These Terms and the transactions contemplated hereby and by the Order shall be governed by and interpreted in accordance with the laws of the Province of Quebec (Canada), without regard to the choice of laws principles thereof, and the federal laws of Canada applicable therein. The Parties agree that any legal action relating to these Terms shall be commenced and maintained on an exclusive basis before the court of the Province of Quebec, judicial district of Montreal, and the Parties hereby submit to the jurisdiction of such courts and waive any right to challenge or otherwise raise questions of personal jurisdiction or venue in any action commenced or maintained in such courts. The Parties hereby disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
21. Entire Agreement
The Order and these Terms constitute the entire agreement between the Parties with respect to the purchase and sale of the Products, and supersede all previous negotiations, agreements, and commitments with respect thereto. If there is any inconsistency between the Order and these Terms and the terms of any order or other documentation from Customer, the terms of the Order and these Terms shall prevail. If there is any inconsistency between the terms of the Order and these Terms, the terms of the Order shall prevail. Customer acknowledges and agrees that it (a) has read these Terms, (b) understands the provisions and effects of these Terms, and (c) has had the opportunity to consult with advisors (including legal advisors) in connection with its execution of the Order. Notwithstanding anything in these Terms to the contrary, the Parties respective rights and obligations under the following provisions shall remain in full force and effect following expiration or termination of these Terms and shall be enforceable following such expiration or termination: any applicable termination of payment/damages obligations set forth in these Terms; payment terms and obligations; Confidentiality; Limitation of Liability; Indemnification; Compliance with Applicable Laws; and Regulatory Matters. The Parties acknowledge and agree that the legal principle of “contra proferentem” shall not apply or be applied.
22. Independent Contractors
The Parties to these Terms are independent contractors and nothing contained in these Terms shall be construed to place the Parties in the relationship of employer and employee, partners, principal and agent, or joint ventures. Neither Party shall have the power to bind or obligate the other Party nor shall either Party hold itself out as having such authority.
23. Waiver, Illegality, and Written Amendment
The Order and these Terms and any rights hereunder shall not be waived, released, abandoned, discharged, changed or modified in any manner except by an instrument in writing signed by each of the Parties. The failure of a Party to enforce any of the provisions of the Order and these Terms at any time shall in no way be construed to be a waiver of such provision, nor affect the validity of such provision, nor limit the right of the Party thereafter to enforce the Order, these Terms or such provision. No waiver of any breach of the Order and these Terms shall be held to be a waiver of any other or subsequent breach. The illegality or partial illegality of any provision of the Order and these Terms shall not affect the validity of the Order and these Terms or any other provision of these Terms.
24. Counterparts
The Order may be executed in the original or electronically in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one agreement.
