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Terms and Conditions
Mentor, a part of Johnson & Johnson Medical Products a division of Johnson & Johnson Inc. (the “Company”)
General: The products sold by Company to Purchaser (“Products”) are described in the related Purchase Order (PO) and are for use by Purchaser in Canada and not for export. Company shall, at its cost, have the right, without prior notice to Purchaser, to inspect and audit all of Purchaser’s business, accounting and supporting records, which in Company’s reasonable opinion are necessary for purposes of determining the Purchaser’s compliance with these Purchase Terms and Conditions (“Terms”). Purchaser shall fully co-operate with Company and any independent chartered accountants, certified public accountants or other parties hired by Company to conduct any such inspection or audit. These Terms shall be in effect as of the effective date stated on the face of the related PO, or if no effective date is stated, then as of the order date of the PO and shall terminate when (a) all goods covered by the PO have been delivered and accepted or (b) all services have been fully performed, unless earlier terminated in a manner provided herein. The Products provided by Company are subject to these Terms which Purchaser, in accepting the Products, agrees to be bound by and to comply with.
Instructions for Use: Company sells healthcare Products that have received market authorization through agencies such as Health Canada and electrical certification authorities. These Products are designed and authorized for use under the terms of explicit protocols. An insert with Instructions For Use (“IFU”) is included with each Product. For purposes of patient safety and efficacy, and in compliance with market authorization, it is important that all Products be used as instructed. The Products, where required, are provided in sterile packaging and depending on the Product, may be for single or multiple use. The use of any Product for other than the intended and approved purpose, or in a manner inconsistent with its IFU, may result in its structural integrity being compromised and/or lead to device failure, which in turn may result in patient injury, illness or death. Sterilization in a manner not intended or approved, or inconsistent with the IFU, may create risk of contamination and/or cause patient infection or cross infection, including transmission of infectious disease(s) from one patient to another, and may also lead to patient injury, illness or death. Any Product sold by Company must be used as intended and approved, and in a manner consistent with its related IFU. The Purchaser will indemnify Company for all liabilities and costs incurred as a result of any use inconsistent with the IFU, including legal expenses of defending any action.
Warranty and Limitation Of Liability: Company’s guarantee of the Products is strictly limited and is restricted to the identity of the Products, that their manufacture is in conformance with good manufacturing practices and applicable laws and that the Products are free from defects in material. No other warranty or condition, statutory or otherwise, shall be implied, including, without limitation, a warranty or condition as to quality or fitness for a particular purpose. Unless otherwise specified in writing, this warranty is limited to twelve (12) months from the date of delivery of Products. Company’s warranties do not apply to Products that have been subjected to alteration, misuse, damage or unauthorized, improper or inadequate servicing or maintenance or otherwise used in a manner that is inconsistent with the Product’s Instructions For Use.
Order Terms: Ordering Channels: Company currently accepts Purchase Orders through the following channels:
- Global Healthcare Exchange (GHX)
- Electronic Data Interchange (EDI)
- Fax: 1-905 946-9430 or 1-800-591-4935 (toll free)
- Telephone* English/French: 1-844-243-4321
- Online portal: https://ca.jjcustomerconnect.com
*Telephone orders may be subject to written confirmation by Company
Payment: For Purchasers with pre-approved Company Credit, terms of payment are Net 30 days from the date of invoice, unless otherwise agreed upon by the Company in writing. Invoices are payable in full and no deductions or set-offs are permitted without first obtaining prior written authorization from Company. For all other Purchasers, payment is due upon receipt of invoice. Company reserves the right to charge a late payment fee, in the event that payments fail to comply with these Terms. Company reserves the right, without notice, to deny credit cards as a valid form of payment and hold orders for Purchasers with past due balances.
Price: All Purchaser Orders will be filled and invoiced at the prices in effect at the time the order is processed. All prices are subject to change without notice. In the event of a price reduction, Company shall not grant credit for stock on hand or accept any other claims for rebates based on prior purchasers by Purchaser. Prices do not include federal or provincial sales tax.
Minimum Order and Supply Interruption: All Purchase Orders are subject to Company’s prior approval and to these Terms. Company shall use commercially reasonable efforts to fill all Purchase Orders. Company may, within its sole discretion, decide not to accept any Purchase Orders and/or may place controls on orders and/or allocate supply of Product among Purchasers. Company reserves the right to limit quantities or discontinue any Product without notice to Purchaser. In the event of a discontinuation of Product, Company may, without obligation, identify alternative products available to Purchaser. Company is not liable for any loss resulting from its failure to supply Product to Purchaser, whether or not the inability to supply is under the control of Company or not. An administration charge will be applied at time of ordering to all original Purchase Orders that do not meet the minimum amount.
Channel Minimum Amount Administration Charge
Direct hospital purchase $300 $30
Distributor purchase $1000 $50
Precedence and Changes to Terms: These Terms supersede all previous Terms and are subject to change from time to time, without notice, at Company’s sole discretion. Company may provide its Customers with notice of any such changes by posting the updated Terms, including the date upon which the updated Terms take effect, in the “Purchase Terms and Conditions” link found on the Company’s website at http://www.jjmc.ca. The individual changes made to the Terms may not be specifically described. Purchasers are strongly encouraged to regularly visit Company’s website and review the Terms. Any order for Products placed after the posting of the updated Terms on the website are subject to the Terms then in effect; provided that all returns of Products purchased from Company will be subject to the Terms in effect at the time of return. With appropriate notification, Company may assign any of its rights or obligations under these Terms without the prior written consent of the Purchaser including without limitation in connection with the sale or transfer of all or substantially all of its business or in connection with a merger or other consolidation with another entity.
Non-Compliance with Terms: In addition to any other rights or remedies available to Company, Company may refuse to accept orders from, or make any further sales of Product to, any Purchaser (and/or any of its affiliates) including without limitation to those that fail to comply with these Terms.
Delivery Shipping Terms: Destination will be as specified by the Purchaser and accepted by Company. All shipments will be DAP (Delivered at Place). Title and risk shall pass from Company to the Purchaser at the time when the Product is delivered to the Purchaser’s delivery location. The foregoing does not govern products delivered on consignment or deliveries of product to replace consigned inventory.
Shipment Irregularities: Company will investigate claims submitted for shipment irregularities such as damages and incorrect quantities. These claims must be provided to Company with a signed notation of irregularity on the delivery receipt. The claim and signed notation must be received by Company within 30 days from the date of delivery. Claims received after 30 days will not be investigated, honored or paid. When Purchaser makes a claim, all shipping cartons and packing material must be retained for examination by the Company. If Company determines the claim to be invalid, it will be denied and must be promptly repaid by the Customer.
Rush Order Policy: On all Purchaser-generated rush orders, the Purchaser will pay or reimburse Company for transportation costs. The Purchaser will specify the preferred mode of transportation (i.e. ground or air, if applicable). Company will select the carrier and arrange for shipment.
Returned Goods: While it is the policy of the Company to fully cooperate with any Purchaser who needs to return Product, some general rules must be set. No credit exists until a Company Credit Note is issued. No deduction, offset, or adjustment to any invoice may be made by the Purchaser except on the basis of a Company Credit Note.
Return Conditions: Returns may be made on the following conditions:
- Products must meet all Eligibility Requirements to be considered for return
- Purchaser will receive a Company Credit Note for Products considered Eligible for Return by Company.
- Company Credit Note may be applied towards future orders. Purchase price will not be refunded.
- Purchaser must obtain a “returned goods authorization (RGA) number” from Company prior to returning Product for return consideration*.
- Products returned without a RGA number will not be considered Eligible for Return.
- Unless return was requested by Company, Purchaser must pay return freight.
- Any Products received by Company that do not meet the Return Conditions will not be eligible for return and will not be returned to the Purchaser.
- Company is not responsible for Products lost or damaged in transit.
PURCHASE TERMS AND CONDITIONS Eligibility Requirements: In the sole discretion of the Company, a Product is “Eligible for Return”, if it:
- has been issued a RGA number;
- was purchased directly from Company by Purchaser in accordance with these Terms;
- is in saleable condition; (To be considered “in Saleable Condition” the Product must not (A) be damaged by water, fire, smoke or power failure, (B) have been subjected to extremes in temperature or exposure, (C) have been improperly stored or handled, and/or (D) improperly packaged or returned using improper shipping materials during return);;
- is in its original packaging, and has not been repacked, over-labeled, price-stickered or reconstituted or tampered with in any way;
- in its minimum selling unit of measure;
- not a sample or clinical evaluation package;
- has a minimum of six (6) months remaining prior to its expiry;
- is currently offered for sale by Company and not a Product that has been discontinued or considered obsolete by Company; and,
- is not a custom or specially made Product.
- Title to returned Product will transfer to the Company upon receipt at the Company’s distribution centre.
*A RGA number will only be issued for Products currently supplied under an existing (non-expired) agreement with Purchaser. Unless otherwise agreed in writing, a RGA number will not be issued within three (3) months prior to the natural expiry of an agreement with Purchaser; and, under no circumstances will a RGA number be offered post expiry or termination of an agreement with Purchaser.
Credit Note Value: The “value” of the Company Credit Note issued for “Eligible Returns” will be based on the actual purchase price paid by Purchaser for the Products, less any discounts, rebates or credits applied (“Actual Purchase Price”) as indicated on the original invoice for the Products. The Actual Purchase Price will be pro-rated based on the period of time between date of shipment to Purchaser and date of receipt of return by Company as follows:
- 0 to 183 days from date of Shipment to Purchaser to Date of Receipt of Return by Company, 100% Credit of Actual Purchase Price.
- 184 days – 365 days from date of Shipment to Purchaser to Date of Receipt of Return by Company, 50% Credit of Actual Purchase Price.
- 366 days or more from date of Shipment to Purchaser to Date of Receipt of Return by Company, 0% Credit of Actual Purchase Price.
Inventory Management From time to time Company may enter into an Inventory Agreement with the Purchaser with respect to Products. The management of Products loaned to or sold on consignment by (“Inventory”) Purchaser is a joint responsibility of the Purchaser and Company. Inventory levels will be established by mutual agreement. Company and Purchaser will periodically review the use and performance of Inventory and will adjust to optimum quantities accordingly. Company, together with Purchaser, will perform analysis to identify optimum quantities to support procedural volume while managing expiry and obsolescence risk. Initial Inventory is provided to Purchaser by way of a ‘no charge Purchase Order’ issued by the Purchaser. A process for invoicing and replenishing Inventory will be followed. This process ensures accurate tracking of Product usage while automatically triggering Inventory replenishment. Purchaser shall place Inventory invoice and replenishment orders through e-Commerce methods. The Purchaser will provide Product Codes, Lot Numbers and Quantities for the Products used. Invoicing and replenishment orders will be generated by Company and reflect the invoice and replace purchase order provided by the Purchaser.
Audit and Damage/Missing Products: Company shall conduct periodic audits of Inventory at Purchaser’s site and Purchaser agrees to provide appropriate access to its site for this purpose. Any loss or damage through any means, including theft, of Inventory at Purchaser’s site will be the sole responsibility of the Purchaser. Additionally, any Inventory not found in Saleable Condition will be deemed “used” by the Purchaser and invoiced at the contracted price. The management of slow moving or expired Inventory identified through the audit shall be agreed upon between the parties on a case by case basis. The introduction of new Products to the Purchaser will be managed on a case by case basis.
Inventory Product Returns: Company must approve requests for Inventory Returns in advance and approved returns must be recorded on an ‘Inventory Return Form’ and delivered to Company. Products not Eligible for Return will be invoiced to the Purchaser at the contracted price.
Inventory Return Conditions: Returns may be made on the following conditions:
- Inventory must meet all Eligibility Requirements below to be considered for return.
- Purchaser must obtain approval from Company prior to returning Inventory.
- Purchaser must complete an “Inventory Return Form”.
- Inventory returned without prior approval will not be considered Eligible for Return.
- Unless return was requested by Company, Purchaser must pay return freight.
- Inventory not meeting the conditions to be “Eligible for Return” will not be returned to the Purchaser, but instead it will be deemed used, and invoiced at the contracted price.
- Company is not responsible for Inventory lost or damaged in transit.
Eligibility Requirements In the sole discretion of the Company, Inventory is “Eligible for Return”, if it:
1. has been issued a “return goods authorization number” issued by Company;
2. was delivered directly from Company by Purchaser in accordance with these Terms;
- is in saleable condition; (To be considered “in Saleable Condition” the Product must not A) be damaged by water, fire, smoke or power failure, (B) have been subjected to extremes in temperature or exposure, (C) have been improperly stored or handled, and/or (D) improperly packaged or returned using improper shipping materials during return);
3. is in its original packaging, and has not been repacked, over-labeled, price-stickered or reconstituted or tampered with in any way;
4. in its minimum selling unit of measure;
5. is not a sample or clinical evaluation package; and,
6. is currently offered for sale by Company and not a Product that has been discontinued or considered obsolete by Company.
Duration and Termination: The term of the Inventory Agreement will be agreed upon by the Parties in a separate written agreement. Upon termination or natural expiry of the Inventory Agreement all unused /unsold Inventory which is Eligible for Return will be returned to Company. Any Inventory that is missing or not Eligible for Return will be deemed “used” by the Purchaser and invoiced at the contracted price.
Additional Terms and Conditions
Any controversy or claim arising out of or related to this Agreement (a “Dispute”), shall be first submitted to mediation according to International Centre for Dispute Resolution – Canada’s (“ICDR Canada”) Canadian Mediation Rules. Such mediation shall be attended on behalf of each party. The parties shall use reasonable commercial efforts to attend the mediation within 30 days after the Dispute arose and was communicated to the other party. If the Dispute is not resolved through mediation it shall be submitted to binding arbitration in accordance with Section 2. All aspects of the mediation shall be kept confidential.
Any Dispute arising out of or related to this Agreement or breach of this Agreement that is not resolved through mediation shall be settled by arbitration by a single arbitrator by ICDR Canada in accordance with the Canadian Arbitration Rules. The parties shall use reasonable commercial efforts to attend the arbitration within 30 days after the mediation was completed. The seat of the arbitration shall be in Toronto, Ontario and the language shall be in English. The arbitrator shall apply the substantive laws of Ontario. The proceedings of the arbitration shall be confidential and there shall be no appeal from the award rendered by the arbitration, judgment on which may be entered in any court having jurisdiction.
- Limitation of Liability
In no event shall MENTOR be liable for any indirect, special, incidental, consequential, punitive or exemplary damages, or for lost profits or revenues, including, without limitation, damages for loss of business or business opportunity or other financial loss arising out of or in connection with this Agreement, regardless of the form of action, whether in contract or tort including negligence, even if MENTOR had been advised of the possibility of such damages. MENTOR’s aggregate liability for any loss or damage arising out of, or resulting from, this Agreement shall not exceed the total amount paid to MENTOR under this Agreement during the twelve-month period immediately preceding the datE upon which the claim arose.
Subject to Section 5, each party shall defend, indemnify and hold harmless the other party, its affiliates and their directors, officers and employees from and against any and all claims, suits, causes of action or liability of any kind for damages, losses, expenses and costs, including reasonable legal fees and disbursements, arising out of or in any way connected with: (a) any and all breaches by such indemnifying party or any representations, warranties, covenants, terms or obligations under this Agreement and (b) the negligence and willful misconduct or fraud of such indemnifying party or its representatives in connection with the Products provide hereunder. The parties agree that this indemnity shall survive termination or expiration of this Agreement.
Except as expressly provided for in this Agreement or the terms incorporated by reference herein, MENTOR disclaims all other representations, warranties or guarantees with respect to the Product, of any nature, express or implied, statutory, by operation of law or otherwise, including the implied warranties of merchantability, fitness for a particular purpose, non-infringement of third party rights, or that the use of the Products will be uninterrupted or error free.
- Force Majeure
Neither party shall be liable for failure or delay in performing any of its obligations hereunder if such failure or delay is occasioned by compliance with any governmental regulation, request or order, or by circumstances beyond the reasonable control of the party so failing or delaying, including without limitation, an act of God, fire, floor, labour strike, work stoppage, epidemic, recall, pandemic or other public health emergency, inability to obtain raw materials or inability to maintain or obtain regulatory marketing approval, provided that the party affected by such failure or delays gives the other party prompt written notice of the cause and uses commercially reasonable efforts to correct such failure or delay.
- Compliance with Laws
In performing its obligations under this Agreement, each party shall comply with all applicable federal, provincial and municipal laws and regulations. Neither party shall perform any actions that are prohibited by local and other anti-corruption laws (collectively, “Anti-Corruption Laws”) that may be applicable to one or both parties to the Agreement. Additionally, neither party shall make any payment, or offer anything of value, to any governmental official or government employee, to any political party official or candidate for political office or to any other third party related to the transaction in a manner that would violate Anti-Corruption Laws.
This Agreement may be amended by mutual consent of the parties. However, any amendment must be adopted in writing and signed by each of the parties.
- Governing Law
This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein.
- Independent Contractors
The relationship of the parties pursuant to this Agreement is that of independent contractors. Neither party shall be considered the agents, representatives, master, servant or representative of the other party. Nothing in this Agreement shall create any relationship of partner, joint venture, fiduciary or any other similar relationship between the parties.
- Entire Agreement
This Agreement together with any additional terms and conditions incorporated by reference herein constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all proposals, oral and written, and previous negotiations and communications between the parties.
This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a Portable Document Format (PDF), or by using a web-based e-signature platform, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page or e-signature was an original thereof.
Effective Date: September 2020