SALES TERMS AND CONDITIONS
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS DISCLAIMERS, LIMITATIONS AND EXCLUSIONS.
- OFFER, CONFIRMATION, AGREEMENT
- The following sales terms and conditions (“Terms”) apply to the sale or supply of all products (“Products”) by CanGard Medical and Safety Supplies. (“CanGard”) to you (“Customer”) and will form a necessary part of any Offer or Agreement (as defined below) therefore. Customer’s ordering of Products from CanGard constitutes acceptance of these Terms, as such Terms may have been updated through the date of such order. As used herein, “Agreement” means any written contract for supply, distribution, sale, or license of any Products entered into between CanGard and Customer, or any purchase order that is issued by Customer and accepted by CanGard; and “Offer” means any quotation, proposal or offer provided to Customer by CanGard.
- The terms “agreed”, “consent”, “confirmed”, “accepted”, “informed”, “notified” or “notice” and documents or acts of similar meaning will be deemed to be required to be done in writing, where “in writing” means hand-written, type-written, printed or electronically made, and resulting in a permanent record. The terms “includes” or “including” will be construed without limitation to the generality of preceding words.
- Any different or additional terms in any purchase order, blanket instructions, terms of purchase or other writing from Customer will be deemed a material alteration of these Terms and are expressly objected to and rejected and will be of no force or effect. Commencement of performance or shipment will not be construed as acceptance of any of Customer’s terms or conditions. Course of performance or usage of trade will not be applied to modify these Terms.
- These Terms may be amended by CanGard from time-to-time, in its sole discretion, provided that in respect of an Agreement or an Offer the version of the Terms applicable as of the effective date of the Agreement or the date of the Offer will apply.
- Customer is solely responsible for the accuracy of any order, including with respect to the specification, configuration or other requirements of Products, and functionality, compatibility and interoperability with other products (not authorized by CanGard), as well as fitness for particular use. Customer warrants that the information provided to CanGard is complete, accurate and true, and Customer acknowledges that a failure to provide complete, accurate and true information or instructions to CanGard may detrimentally affect CanGard’s ability to discharge its obligations or exercise its rights under these Terms or the Agreement.
- Any descriptions or claims of any third-party products published on CanGard’s website have been obtained from a third party. The Customer acknowledges and agrees that CanGard have not taken any steps whatsoever to verify or otherwise validate the accuracy, completeness or suitability of any information contained in such descriptions. Accordingly, CanGard will not comment on any matters concerning such third-party products or accept any liability related to their product claims or performance. However, CanGard will endeavour to provide the Customer the applicable third party’s contact information for any such product upon request.
- Assumptions, exclusions and qualifications stated by CanGard in Offers, Agreements or otherwise will direct the Agreement and will be construed as part thereof and guide its execution and interpretation.
- In the event that Customer resells Products or incorporates Products in offerings to its customer, Customer shall ensure that all its customers and/or end users of Products comply with all relevant Customer’s obligations under the Agreement and these Terms, and that the terms of its agreement with each of its customer(s) or end user(s) are consistent with the Agreement and these Terms, failing which Customer shall indemnify, defend and hold harmless CanGard, and assigns from and against, all losses, liabilities, costs (including legal costs) and expenses arising out of or in connection with any non-compliance.
- Customer shall pay all prices and fees in accordance with the then-current list or Offer price for the Products and this section (“Prices”). Prices are in Canadian dollars. Prices do not include and Customer is responsible for any tariff, duties, brokerage fees, sales, use, excise, gross receipts, value-added, or other similar tax, surcharge or assessment to the Product (each, a “Tax”).
- CanGard reserves the right to adjust Prices for Products not yet delivered if CanGard’s cost to manufacture or supply Product(s) increases due to an increase in the cost of raw materials, governmental action, a force majeure event, or any other event beyond CanGard’s reasonable control that causes the cost of the Product, distribution services, or combination thereof to increase (an “Extraordinary Event”), then CanGard will have the right to (i) increase the price of such Products or adjust the invoice in any other appropriate manner by an amount equal to the cost increase resulting from such Extraordinary Event on the invoice for the Product; or (ii) remove such Product from the Agreement.
- CanGard will not be held accountable for maintaining Price on Products should the manufacturer alter the price of Products or discontinue the supply of said Products. CanGard reserves the right to modify or discontinue Products at any time without prior notice to Customer. CanGard will endeavour to source and identify to Customer substitute Products, which will be offered at the then current market price. A change in a Product may occur after the Customer places an order but before CanGard ships the Products. As a result, the Products Customer receives might display minor differences from Products requested in the Customer’s order. However, modified or substituted Products will meet all material specifications of the original Products requested in such order.
- Pricing errors may occur from time to time, on items sold by CanGard, or items sold by third-party sellers. CanGard attempts to correct all pricing errors promptly after discovery or after CanGard receives notice of an error. CanGard reserves the right to cancel any orders containing pricing errors, with no further obligations to Customer, even after Customer’s receipt of an order confirmation or shipping notice from CanGard. Any payments Customer make to CanGard for orders that are cancelled due to pricing errors will be refunded.
- PRODUCT DELIVERY
- Any short shipments identified at the time of delivery must be contacted to a CanGard Customer Service, all detailed information must be provided within five (2) business days of shipment receipt.
- Customer shall note any damage to Products caused in transit, or shortages thereto, on transport documentation immediately upon receipt of Products, with due regard to applicable instructions by CanGard or the carrier. All Products delivered under the Agreement will be deemed accepted by Customer as conforming to the Agreement, and Customer will have no right to revoke any acceptance, unless Customer provides CanGard notice of a claimed nonconformity within seven (7) days of the date of delivery. Notwithstanding the foregoing, any use of a Product by Customer or its customers after delivery will constitute acceptance of that Product by Customer. CanGard shall at its option and within a reasonable time, correct nonconformities by either repair, make available parts, replace or deliver missing Products, or credit the Price paid by Customer for undelivered Products.
- Minor Nonconformities will not prevent or suspend acceptance by Customer of the Products, and CanGard shall correct these within a reasonable time. “Minor Nonconformities” are nonconformities or anomalies that do not hinder the overall operation and intended use of Products in accordance with the specifications.
- In the event of delay or interruption in delivery of Products for reasons not attributable to CanGard or due to a Variation, the timelines for performance by CanGard will be amended accordingly.
- Except for financial reasons, if the performance of this Agreement or any obligation hereunder is prevented by circumstances beyond the reasonable control of the party affected, including and without limitation, fire, explosion, power failure, Acts of God, shortages of materials and supplies, breakdowns in or the loss of production, acts of war or terrorism, strikes, lockouts, labour controversies, pandemics, epidemics, quarantine restrictions, and amendments to applicable laws, regulations or governmental controls (“Force Majeure”), then the party affected shall be excused from such performance for the circumstance duration. In the event that Force Majeure event extends (or is reasonably expected by CanGard to extend) for a period of three (3) consecutive months, CanGard will be entitled to cancel all or any part of an Agreement without any liability towards Customer.
- Any requests for proof of delivery can be obtained from CanGard customer service.
- Any cancellation, delay or other change by Customer of a purchase order previously accepted by CanGard will require the prior approval of CanGard and the approval will be without prejudice to any rights or remedies CanGard may have under the Agreement or at law. CanGard will make commercially reasonable efforts to accommodate requests for order cancellation, provided that all online orders are non-cancellable unless approved by CanGard. Any request to cancel purchase orders or online orders must be received by CanGard within twenty-four (24) hours of submission of Customer’s original order. In the event a cancellation notice has not been received within twenty-four (24) hours, all orders will be deemed to be non- cancellable. If, on request of Customer, CanGard agrees to any such change in purchase order or a change in an Agreement, including an (partial) cancellation, delay or suspension, the addition, omission, alteration, substitution or modification of Products (each, a “Variation”), or a Variation is required due to (i) changes in applicable laws, regulations or industry standards, (ii) emergency situations, (iii) incorrect or incomplete information provided by Customer, or (iv) non-compliance by Customer of any of its obligations under an Agreement, Customer shall reimburse CanGard for all costs and expenses incurred in respect of such Variation promptly on first request. Notwithstanding anything to the contrary contained herein, if Customer has elected to purchase Special Order Products, Customer understands and agrees that any Orders for Special Order Products may not be cancelled, withdrawn, rescheduled or otherwise modified by Customer, and Customer further understands and agrees that such Special Order Products, may not be returned, refused or rejected for any reason whatsoever. Further, Customer shall not be entitled to a credit or refund for such Special Order Products for any reason whatsoever. Customer shall indemnify and hold CanGard harmless for any and all delays, claims, losses, liabilities, costs or expenses related to Special Order Products. For the purpose of this Order, a “Special Order Product” shall mean any Product that is custom ordered or configured to Customer’s specifications (including custom packs), any capital equipment Products such as furniture, or otherwise designated as a Special Order Product by CanGard.
- PAYMENT TERMS/INVOICES
Online Orders: Customer shall make net payment, without any set-off, counterclaim, deduction or (tax) withholding, at the time of online order by a valid Visa® or MasterCard® card number. By providing CanGard with your credit card number, Customer authorizes CanGard to charge the card for all charges generated under the online order. Use of a credit card to pay for the online order is governed by the credit card issuer agreement with the Customer. Customer must refer to that agreement for your responsibilities and liabilities as a cardholder. CanGard shall not be responsible in the event your credit card limit is insufficient to cover payment.
- USE OF PRODUCTS
- Customer shall use Products only for their intended purposes and in accordance with all instructions contained in the manuals, guidelines, warranty terms and any other terms and conditions applicable to such Products or provided by any personnel of CanGard, deployed or subcontracted by CanGard in the performance of an Agreement (“Personnel”).
- CanGard shall not be responsible for the failure of any of its Products to provide the expected performance, benefits, effects or outcome arising from: (i) Customer’s failure to comply with the terms under the Agreement; (ii) Force Majeure and other unusual external influences; or (iii) Variations.
- IMPORTANT: THE REUSE OF SINGLE USE DEVICES CAN RESULT IN SERIOUS RISK AND INJURY TO PATIENTS. CanGard shall not assume any liability whatsoever related to the reuse of any single use devices. Warranty or repairs related to the reuse of the single use products on equipment shall be null and void.
- LIMITATION OF LIABILITY
Notwithstanding any provision to the contrary, CANGARD SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST REVENUE, LOST PROFITS, OR LOST BUSINESS, OR FOR THE USE OF PRODUCTS OR CANGARD’S FAILURE TO DELIVER PRODUCTS) ARISING OUT OF These terms or an AGREEMENT.
- LIMITED WARRANTY AND DISCLAIMER
- To the maximum extent permitted by applicable law, all Products are sold or otherwise provided to Customer on an “as is”, “where is” and “with all faults and errors” basis. CanGard and our agents, suppliers and licensors expressly disclaim any warranties and conditions of any kind, whether express, implied or statutory, including, without limitation, merchantability, fitness for a particular purpose, accuracy, non-infringement of third-party rights, and any warranties arising out of course of dealing or usage of trade, with respect to all Products.
- Notwithstanding the foregoing, some Products may be covered by warranties provided by the original third-party manufacturer. Such third-party warranties may vary from Product to Product. It is the Customer’s responsibility to consult the applicable Product documentation for specific warranty information. Customer acknowledges that such third-party warranties may be limited or voided if unauthorized persons perform support service on the Product covered. It is the Customer’s responsibility to ensure that any third-party warranties are acceptable to the Customer prior to purchasing any Product. CanGard does not take responsibility for third party warranties.
- Any indemnification and warranty obligation of CanGard under an Agreement will not establish, by themselves, any liability to third parties or the public. Nothing in an Agreement will be construed to create any obligation, standard of care or liability to persons or third parties.
- If a recall, update, withdrawal or any other remedial action related to any Product is required, Customer shall fully cooperate and shall provide such assistance as CanGard may require. Customer shall keep accurate books and records to assure traceability of the Products in the event of a Product recall or any other remedial actions.
- SUBJECT TO THE EXCLUSIONS AND LIMITATIONS SET OUT IN THE AGREEMENT, AND SUBJECT TO APPLICABLE LAW, SECTIONS 6 AND 7 STATE THE ENTIRE LIABILITY OF CANGARD AND ITS AFFILIATES IN CONNECTION WITH DEFECTIVE PRODUCTS, REGARDLESS OF WHEN THE DEFECT ARISES, AND WHETHER A CLAIM, HOWEVER DESCRIBED, IS BASED ON CONTRACT, WARRANTY, INDEMNITY, TORT OR EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WILL EXTEND DIRECTLY TO CUSTOMER ONLY AND NOT TO ANY THIRD PARTY, INCLUDING CUSTOMER’S CUSTOMERS, AGENTS OR REPRESENTATIVES. CANGARD EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY AGAINST INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AN ESSENTIAL PURPOSE OF THE LIMITED EXCLUSIVE LIABILITIES AND REMEDIES UNDER THE WARRANTY IS ALLOCATION OF RISKS BETWEEN CANGARD AND CUSTOMER, WHICH ALLOCATION OF RISKS IS REFLECTED IN THE PRICES.
- RETURNED GOODS POLICY
- All returns must be authorized by the Customer Service Representative.
- Each request must include the following:
- Order Information including Order Number,
- Reason for return.
- The return shipment must be coordinated with the Customer Service Representative, who will advise of the proper mode of transport and Product return location. Products must be returned within 3 days of obtaining the return information, in original packaging, otherwise acceptance cannot be assured. Upon satisfactory inspection of returned Products, a credit will be issued.
- Quality and Regulatory Complaint returns – Customer will promptly notify CanGard of any potentially defective or hazardous product (or any health or safety issues generally, including but not limited to any instances or suggestions of injury or death) with respect to any Products delivered to you by CanGard. Products ordered in error are to be returned prepaid. A minimum restocking fee is applicable. This value is dependent on the item being returned and/or the vendor’s return policy.
- Products shipped in error are to be returned collect via CanGard’s carrier of choice, or private fleet.
- Returns may not be authorized for a variety of reasons including but not limited to the following:
- Any item not purchased from the company;
- Any item purchased on a “Special Order” basis (unless the original vendor will accept the return). A minimum restocking fee is applicable. This value is dependent on the item being returned and/or the vendor’s return policy;
- Expired or short dated Products (less than six-month expiration);
- Any Product for which special storage requirements are required (e.g., refrigeration);
- Partial units of sale;
- Merchandise past 3 days of receiving;
- Products not in original, unopened packaging;
- Drug Products: Manufacturers from time to time may authorize returns under strict conditions. These conditions and any requirements presented must be met (documentation / proof of temperature etc.). Note that irrespective of Manufacturer direction, home patient and non-healthcare facilities drug returns are not permitted under any condition; and
- Natural Health Products (NHP), which are home patient returns, and/or the customer does not complete the applicable Storage form.
8.Procedures for handling damaged Products and freight claims:
- Inspect all shipments the day that they are received;
- Any shipment damaged in transit requires an inspection from the delivering carrier. Noticeable damage must be informed to CanGard customer service within 2 days of delivery, or the claim will be disallowed;
- Shipping discrepancies must be reported within five (2) business days of delivery;
- Concealed damage must be reported and a request for inspection made within 2 days of delivery;
- Contact the delivering carrier and request an inspection within 2 days for receipt of shipment; and
- Notify CanGard’s Customer Service Representative and provide all detailed supporting information.
- Transportation charges may apply based on customer location and reason for return. This will be calculated based on a flat charge or a percentage of the invoice value.
CanGard and the Customer each agree that all inventions, know-how and all other business, technical and financial information they obtain from the other party is the confidential property of the disclosing party (“Confidential Information”). Except as expressly allowed under this Agreement, each party will hold in confidence and not use or disclose any Confidential Information of the other. The foregoing nondisclosure obligation shall not apply to information that a party can document was known to that party prior to disclosure, or has entered the public domain and is generally available to the public without a breach of these nondisclosure obligations, or to disclosures which are required by law or in legal proceedings. The parties shall, upon the termination of the Agreement or the request of the other party at any time, return all tangible manifestations (including copies and reproductions) of Confidential Information received by that party pursuant to this Agreement. Each party shall use commercially reasonable efforts to prevent unauthorized use or disclosure of the Confidential Information of the other and shall use protective measures no less stringent than those used by it in its own business to protect its own confidential information.
- BINDING NATURE AND ASSIGNMENT
This Agreement is binding upon both CanGard and the Customer and their respective successors and permitted assignees. Customer may not assign an Agreement, or any of its rights or obligations thereunder, without the prior written consent of CanGard. CanGard may delegate, assign, sell, novate or subcontract in part or in whole its obligations and rights (including receivables) under any Agreement to any of its affiliates or any third party without the prior consent of Customer – and if such consent would be required under applicable law, such consent is herewith provided – in which event Customer shall cooperate with CanGard’s efforts, including providing relevant information, executing documents and making payments to accounts or third parties as notified by CanGard.
- GOVERNING LAW
This Agreement shall be construed and the relations of the parties shall be determined, in accordance with the substantive laws of the Province of Ontario without regard to its principles of conflict of laws. Any dispute between the parties relating to this Agreement shall be resolved exclusively in the courts of Toronto, Ontario, provided that CanGard will always be permitted to bring any action or proceedings against Customer in any other court of competent jurisdiction. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts.
- These Terms or an Offer or an Agreement does not make either party the employee, agent, or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf or in the name of the other party. In fulfilling its obligations pursuant to these Terms or an Offer or an Agreement, each party shall be acting as an independent contractor. No partnership or joint venture arrangement arises between the parties as a result of these Terms or an Offer or an Agreement.
- The invalidity or unenforceability of any provision of these Terms or an Agreement will not affect the validity or enforceability of any other provision thereof, all of which will remain in full force and effect. In the event of such finding of invalidity or unenforceability, the parties shall endeavor to substitute the invalid or unenforceable provision(s) by such effective provision(s) as will most closely correspond with the original intention of the provision(s) so voided. At reasonable notice, Customer shall assist CanGard in verifying Customer’s compliance with the Agreement.
- Any right of CanGard set out in these Terms will be without prejudice to any rights or remedies CanGard may have under the Agreement or at law or in equity. Customer acknowledges that CanGard, Inc. and any of its affiliates are intended to be third-party beneficiaries for purposes of all benefits under, and may enforce the provisions of the Agreement, including these Terms, where applicable. The failure or the delay of either party to enforce any provision of these Terms or an Agreement will not constitute a waiver of such provision or a waiver to enforce it.
- The parties hereto have specifically requested that this Agreement be prepared in English. Les parties aux présentes ont demandé spécifiquement que ce contrat soit préparé en anglais.
- The terms of an Agreement (including these Terms and any other terms and conditions forming part thereof) state the entire understanding and agreement between the parties as to the sale of Products under that Agreement and will supersede any prior promises, agreements, representations, undertakings or implications whether made orally or in writing between CanGard and Customer with respect to the subject thereof. The parties expressly acknowledge that, in entering into an Agreement, no reliance has been placed on any representations which have not been incorporated as part of that Agreement. No variation to an Agreement will be binding upon either party unless made in writing and signed by an authorized representative of each of the parties.
- Prices and terms are subject to correction for typographical or clerical errors.