TERMS AND CONDITIONSAny applicable Sale of Goods Agreement and any and all schedules attached thereto and entered into between Medical Techniques Inc. (the “Seller”) and a buyer (the “Buyer”) are subject to, and shall be governed by, these terms and conditions (“Terms and Conditions”), all of which are incorporated and made a part of, the Sale of Goods Agreement, entered into between the Seller and the Buyer by reference. The Buyer shall be deemed to have accepted, and agreed to be bound by, these Terms and Conditions upon the executed of the Sale of Goods Agreement. The Seller may, from time to time and at its sole discretion, revise these Terms and Conditions without notice to the Buyer by posting the revised Terms and Conditions on www.medicaltechniques.ca. The Terms and Conditions posted at www.medicaltechniques.ca on the date the Sale of Goods Agreement is executed shall govern.
Sale of Goods.
The Seller shall sell to the Buyer, and the Buyer shall purchase from the Seller, the goods set forth in the Sale of Goods Agreement (the “Goods”) in the quantities and the prices set out therein.
The Seller is not required to supply any of the Goods to the Buyer if the Seller reasonably determines that the sale of such Goods would violate any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement of rule of law of any governmental authority (“Law”), whether federal, provincial, territorial, local or foreign, or any arbitrator, court or tribunal of competent jurisdiction.
The Buyer represents and warrants to the Seller that the purchase of such Goods from the Seller will not violate any Law applicable to the Buyer and the Buyer shall at all times comply with all Laws and not engage in any activity or transaction involving the Goods that violates any Law.
The Goods will be delivered within a reasonable time after the date of the Sale of Goods Agreement. The Seller shall not be liable for any delays or loss in transit.
The Buyer shall take delivery of the Goods within five (5) days of Seller’s written notice that the Goods have been delivered to the Delivery Point (as such term in defined in the Sale of Goods Agreement).
The Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to the Buyer. Each shipment will constitute a separate sale, and the Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of the quantity purchased under the Sale of Goods Agreement.
If for any reason the Buyer fails to accept delivery of any of the Goods on the date fixed under the Seller’s notice that the Goods have been delivered at the Delivery Point, or if the Seller is unable to deliver the Goods at the Delivery Point on such date because the Buyer has not provided appropriate instructions, documents, licenses or authorizations:
risk of loss to the Goods shall pass to Buyer;
the Goods shall be deemed to have been delivered; and
the Seller, at its option, may store the Goods until the Buyer picks them up, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Non–Delivery. The quantity of any instalment of Goods as recorded by the Seller on dispatch from the Seller’s place of business is conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary. The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller’s negligence) unless the Buyer gives written notice to the Seller of the non-delivery within two (2) days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to delivering the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Quantity. If the Seller delivers to the Buyer a quantity of Goods of up to five percent (5%) more or less than the quantity set forth in the Sale of Goods Agreement, the Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sale of Goods Agreement adjusted pro rata.
Title and Risk of Loss. Title and risk of loss passes to the Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, the Buyer hereby grants to the Seller a security interest in and to all of the right, title and interest of the Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase-money security interest under the Ontario Personal Property Security Act.
Inspection and Rejection of Non-Conforming Goods.
The Buyer shall inspect the Goods within two (2) days of receipt of the Goods (the “Inspection Period”). The Buyer will be deemed to have accepted the Goods unless it notifies the Seller in writing of any Non-Conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by the Seller. “Non-Conforming Goods” means only the following:
the Goods are damaged during transit to the Buyer;
product shipped is different than identified in the Sale of Goods Agreement; or
product’s label or packaging incorrectly identifies its contents.
If the Buyer timely notifies the Seller of any Non-Conforming Goods, the Seller shall, in its sole discretion,
replace such Non-Conforming Goods with conforming Goods, or
credit or refund the Price for such Non-Conforming Goods.
The Buyer shall ship, at its expense and risk of loss, the Non-Conforming Goods to the Seller’s facility located in Richmond Hill, Ontario. If the Seller exercises its option to replace Non-Conforming Goods, the Seller shall, after receiving the Buyer’s shipment of Non-Conforming Goods, ship to the Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
The Buyer acknowledges and agrees that the remedies set forth in Section 6(b) are the Buyer’s exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 6(b), all sales of Goods to the Buyer are made on a one-way basis and the Buyer has no right to return Goods purchased to Seller.
Price. The Buyer shall purchase the Goods from the Seller at the prices (the “Prices”) Set forth in the Sale of Goods Agreement. If the Price should be increased by the Seller or any third party supplier, before delivery of the Goods to a carrier for shipment to the Buyer, then the Sale of Goods Agreement shall be construed as if the increased Prices were originally inserted herein, and the Buyer shall be billed by the Seller on the basis of such increased Prices. All Prices are exclusive of all harmonized sales tax, goods and services tax, sales tax, valued added tax, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by the Buyer. The Buyer shall be responsible for all such charges, costs, including those relating to shipping, delivery and freight, and taxes; provided that, the Buyer shall not be responsible for any taxes imposed on, or with respect to, the Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
Payment Terms. The Buyer shall pay all invoiced amounts due to the Seller within thirty (30) days from the date of the Seller’s invoice. Any equipment or special order products require a non-refundable deposit equal to thirty percent (30%) of the invoice total prior to delivery. The Buyer shall make all payments hereunder by wire transfer or certified check and in Canadian dollars. A fifty-dollar ($50.00) charge applies to all NSF cheques received by the Seller from the Buyer. The Buyer shall pay interest on all late payments at the lesser of the rate of two percent (2.0%) per month, calculated daily and compounded monthly. The Buyer shall reimburse the Seller for all costs incurred in collecting any late payments, including, without limitation, legal fees on a substantial indemnity basis.
No Set-Off. The Buyer shall not, and acknowledges that it will have no right, under the Sale of Goods Agreement, these Terms and Conditions, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to the Seller or any of its affiliates, whether under the Sale of Goods Agreement or otherwise, against any other amount owed (or to become due and owing) to it by the Seller or its affiliates, whether relating to the Seller’s or its affiliates’ breach or non-performance of the Sale of Goods Agreement, these Terms and Conditions or any other agreement between the Buyer and the Seller or any of its affiliates, or otherwise.
The Seller does not manufacture or control any of the Goods. The availability of products does not indicate an affiliation with or endorsement of any product, service or manufacturer. Accordingly, the Seller does not provide any warranties with respect to the Goods. The Goods may be covered by a manufacturer’s warranty as included with the Goods. To obtain warranty service for defective products, please follow the instructions included in the manufacturer’s warranty.
The manufacturer may request that the Seller repair the Goods, including replacement of any defective parts, in accordance with such manufacturer’s warranty. Such act of repairing the Goods by the Seller, at the request of the manufacturer, shall not be construed by the Buyer as the Seller providing any warranty with respect to the Goods whatsoever.
THE SELLER MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) CONDITION OR WARRANTY OF MERCHANTABILITY; (ii) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) CONDITION OR WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
The Buyer affirms that the Seller shall not be liable, under any circumstances, for any breach of warranty or condition claims or for any damages arising out of the manufacturer’s failure to honour its warranty obligations to you.
Limitation of Liability.
IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR AGGRAVATED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY THE SELLER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL THE SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO THE SELLER FOR THE GOODS SOLD HEREUNDER.
Compliance with Law. The Buyer is in compliance with and shall comply with all applicable Laws, regulations and ordinances. The Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms and Conditions and the Sale of Goods Agreement.
Indemnification. The Buyer shall indemnify, defend and hold harmless the Seller and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, the “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions or the Sale of Goods Agreement and the cost of pursuing any insurance providers, arising out of or resulting from any claim of a third party or the Seller arising out of or occurring in connection with the products purchased from the Seller or the Buyer’s negligence, wilful misconduct or breach of these Terms and Conditions or the Sale of Goods Agreement. The Buyer shall not enter into any settlement without the Seller’s or Indemnified Party’s prior written consent.
Insurance. During the term of the Sale of Goods Agreement, the Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon the Seller’s request, the Buyer shall provide Seller with a certificate of insurance from the Buyer’s insurer evidencing the insurance coverage specified in these Terms and Conditions. The Buyer shall provide the Seller with ten (10) days’ advance written notice in the event of a cancellation or material change in the Buyer’s insurance policy. Except where prohibited by law, the Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
Termination. In addition to any remedies that may be provided for in these Terms and Conditions, the Seller may terminate the Sale of Goods Agreement with immediate effect upon written notice to the Buyer, if the Buyer:
fails to pay any amount when due under the Sale of Goods Agreement and such failure continues for seven (7) days after the Buyer’s receipt of written notice of nonpayment;
has not otherwise performed or complied with any of these Terms and Conditions or the Sale of Goods Agreement, in whole or in part; or
becomes insolvent, makes an assignment into bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by the Seller to the Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with these Terms and Conditions and the Sale of Goods Agreement is confidential, solely for the use of performing these Terms and Condition and the Sale of Goods Agreement and may not be disclosed or copied unless authorized by the Seller in writing. Upon the Seller’s request, the Buyer shall promptly return all documents and other materials received from the Seller. The Seller shall be entitled to injunctive relief for any violation of this Section 16. This Section 16 shall not apply to information that is:
in the public domain;
known to the Buyer at the time of disclosure; or
rightfully obtained by the Buyer on a non-confidential basis from a third party.
Entire Agreement. These Terms and Conditions and the Sale of Goods Agreement, including and together with any related exhibits, schedules, attachments and appendices, along constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, conditions and warranties, both written and oral, regarding such subject matter. If there is any conflict or inconsistency between these Terms and Conditions and the terms of the Sale of Goods Agreement, the terms of the Sale of Goods Agreement shall govern to the extent necessary to resolve the conflict or inconsistency.
Survival. Subject to the limitations and other provisions of these Terms and Conditions:
the representations and warranties of the parties contained herein shall survive the expiration or earlier termination of these Terms and Conditions and the Sale of Goods Agreement; and
Sections 10, 11, 12 and 16 of these Terms and Conditions, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of the Sale of Goods Agreement.
Severability. If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdictio
Amendments. No amendment to or modification of or rescission, termination or discharge of these Terms and Conditions is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of these Terms and Conditions and signed by an authorized representative of each party.
Waiver. No waiver by any party of any of the provisions of these Terms and Conditions shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms and Conditions, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms and Conditions shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Cumulative Remedies. All rights and remedies provided in these Terms and Conditions are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. Notwithstanding the previous sentence, the parties intend that Buyer’s rights under Section 6 and Section 10 are Buyer’s exclusive remedies for the events specified therein.
Assignment. The Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under these Terms and Conditions without the prior written consent of the Seller. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer or subcontract any or all of its rights or obligations under these Terms and Conditions and the Sale of Goods Agreement without Buyer’s prior written consent.
Successors and Assigns. These Terms and Conditions are binding on and enures to the benefit of the parties to the Sale of Goods Agreement and their respective permitted successors and permitted assigns.
Choice of Law. These Terms and Conditions, the Sale of Goods Agreement including all exhibits, schedules, attachments and appendices attached thereto, and all matters arising out of or relating to these Terms and Conditions and the Sale of Goods Agreement, are governed by, and construed in accordance with, the laws of the Province of Ontario, and the federal laws of Canada applicable therein without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Province of Ontario. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and Conditions.
Forum Selection. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Terms and Conditions or the Sale of Goods Agreement, including all exhibits, schedules, attachments and appendices attached thereto, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than in the courts of the City of Toronto, in the Province of Ontario, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such court and agrees to bring any such action, litigation or proceeding only in the courts of the City of Toronto, in the Province of Ontario. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by action on the judgment or in any other manner provided by law.
Force Majeure. Any delay or failure of Seller to perform its obligations under these Terms and Conditions or the Sale of Goods Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond the Seller’s control, without the Seller’s fault or negligence and that by its nature could not have been foreseen by the Seller or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labour stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from these Terms and Conditions or the Sale of Goods Agreement.
We know well what our customers want. They need a company aware of their professional needs. In Medical Techniques Inc., we support you by professional advisers who are completely involved in the field and have a high level of knowledge about your requirements.