ANIMAS CANADA CUSTOMER
TERMS & CONDITIONS OF SALE
Animas Canada, part of LifeScan Canada, a division of Johnson & Johnson Inc. (“Animas Canada”, “Company” “we”, “us” and “our”) and “You” or “Your” means the Customer that purchased Company Product. In these Animas Canada Customer Terms and Conditions of Sale (T&C), Company and You are individually referred to as a Party and/or collectively referred to as the “Parties”.
By ordering and accepting delivery of any portion of the products and/or services ordered by you from Animas Canada you agree to be bound by these T&C. Company acceptance of your order is conditional on these T&C which shall also represent the complete agreement between the parties (“Agreement”). 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 Customer (and/or any of its affiliates) that fails to comply with these T&C.
Instructions for Use:
Company sells Products that have received market authorization through appropriate agencies such as Health Canada and these Products are designed and authorized for use in accordance with the Instructions For Use (“IFU”) 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 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 Customer 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. Any violation of the above will result in the immediate termination of this Agreement.
Orders will be subject to the Product price list in effect at the time of the order and are subject to change without notice. All prices are in Canadian funds, do not include any applicable sales tax, and are subject to delivery terms stated herein.
Payment and Rights Remedies:
Payment is due at the time of the order unless Customer is pre-approved for credit. Any order received by Company may be cancelled if the Customer’s credit standing is not satisfactory to Company. Company reserves the right to stop shipments in the event of non-payment of a shipment, until all amounts due have been paid in full and to the extent permitted by law, may refuse to honour any claims made under warranty or that otherwise relates to the product(s) until full payments of all amounts past due or otherwise owing have been made. In addition, in the event that Company has replaced the Customer’s pump under warranty and the original pump has not been returned to Company, the warranty shall be void and the Customer will not be entitled to future pump replacements or repairs.
The Customer agrees and represents that it is buying for his, her or its own personal use only, and that Products purchased hereunder will not be resold, exported or reshipped to any persons without prior written agreement from Company.
Title, Delivery, Freight:
Title to Products passes from Company to Customer on delivery of the products to the destination. Where applicable, separate charges for shipping and handling will be shown on the invoice(s). All goods will be shipped Delivery at Destination (DAP) (Incoterms 2010). Products will be delivered to the address indicated on Customer’s account unless otherwise indicated by Customer verbally at time of order or in writing. Company will not ship products to an address outside of Canada.
Shipment damage or errors:
If your shipment is damaged, note the extent of the damage on the delivery receipt and, if possible, request the carrier to inspect the damaged items (as well as the shipping container) upon receipt and unpacking. If possible, take a photo of the damage. Ensure that the Company is notified within five (5) business days of receipt of Products. Notify Company immediately if You receive a Product that You have not ordered, or if items are missing from Your shipment (each case a “variance”). Company will not be responsible for variances unless notification is received within five (5) business days after the shipment has been delivered.
Care and Handling of Products:
Due to the nature of the Products, special care and handling may be required. Products may have temperature and storage requirements. Refer to the IFU included with Products for specific information regarding storage requirements.
Customer Technical Support:
Product issues should be reported directly to Animas Canada Customer Care at 1-866-406-4844. Should You experience any concerns with any products, keep the affected product in order to be able to provide specific product details (for example Lot # or Serial #) and potentially return for product analysis if required. It is important to have affected product available at time of call.
Company will only accept and credit returned Product that was purchased directly from Company and was (i) damaged in transit or (ii) was received by Customer due to a shipment error on the part of Company. All returns must be reported to Company within five (5) days and must be received within 30 days of invoice date. All returns require a returned goods authorization number which must be obtained in advance of the return by contacting us at 1-866-406-4844. Credits for authorized returns will be processed promptly. Company does not accept Products for exchange.
Company warrants Products in accordance with the written product warranty enclosed with each Product, which sets forth the only warranty or condition applicable to such Product. To the extent permitted by applicable law, the remedies provided under such warranty shall be the Customers sole and exclusive remedies and such warranty shall be void if: (i) the Products have not been paid for in accordance with the terms of their purchase and sale, (ii) the Products have been improperly stored, installed or maintained or otherwise have not been used in conformance with the Products’ IFU, Company’ applicable instructions or have been altered or repaired without Company’ written consent; (iii) Customer fails to notify Company promptly in writing of any claim under this warranty; or (iv) Customer fails to make any Products subject of a claim promptly available for inspection and correction.
To the fullest extent permitted by law: (a) Company hereby disclaims and excludes any other warranties, conditions, guarantees or representations, express or implied, including, without limitation, ANY WARRANTY OR CONDITION OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE; (b) COMPANY SHALL IN NO EVENT HAVE ANY OBLIGATION OR LIABILITY TO CUSTOMER OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE OR INCIDENTAL DAMAGES, NOR PUNITIVE OR EXEMPLARY DAMAGES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY of law OR FORM OF ACTION ARISING OUT OF THE PROVISION AND USE OF THE PRODUCTS CONTEMPLATED OR PROVIDED HEREUNDER, OR ANY FAILURE OR DELAY IN CONNECTION WITH ANY OF THE FOREGOING; (C) COMPANY SHALL NOT BE RESPONSIBLE FOR DAMAGES CAUSED BY ACCIDENTS RESULTING FROM USE OF THE PRODUCTS and (D) TO THE FULLEST EXTENT PERMITTED BY LAW, any liability of Company shall be limited to the amount paid by the Customer to Company for the Products AT ISSUE IN such claim in the preceding twelve months from the date of the action giving rise to the claim. Some provinces do not permit the exclusion of certain implied warranties or conditions or limitations on how long an implied warranty or condition lasts in consumer transactions and so therefore some of the foregoing disclaimers or exclusions may not apply to Customer.
Service and Support:
General service and technical support will be provided to Customers in Canada, over the telephone, in accordance with the then-current and in effect service and technical support policies and conditions. Although support personnel will attempt to handle problems involving Products, they may not be able to understand or resolve any given problem. Company may, without notice and at its discretion, revise its service and support programs and the terms and conditions that govern them.
Customer does hereby indemnify and hold harmless and defend Company against any and all claims, costs, expenses, damages and liabilities (including reasonable attorneys' fees) arising from Customer’s possession, or use of Products (except to the extent such liability arises solely and directly from Company’ negligence or willful malfeasance), the negligence or willful malfeasance of Customer in using or possessing the Products, or any breach by Customer of its obligation arising under this Agreement.
Delivery dates are approximate. Company will not be liable for any loss or damage of any kind due to failure to perform or delays in its performance resulting from any cause beyond its reasonable control, including, but not limited to, acts of God, labour disputes, labour shortages, the requirements of any governmental authority, war, civil unrest, delays in manufacture, labour or transportation strikes, flood, fire earthquake, volcanic eruption, obtaining any required license or permit or Company’ inability to obtain goods from its usual sources. Any such delay shall not be considered a breach of Company’ obligations and the performance dates shall be extended for the length of such delays.
(a) Company may amend, revise or update these Terms and Conditions of Sale from time to time. The version that was in force at the time of the sale shall continue to apply for the Products sold. (b) Any notices hereunder shall be sent (i) if by Company to the Customer: at the address indicated by the Customer in relation to his, her or its account for Product orders; (ii) if to Company: by mail to Animas Canada, 200 Whitehall Drive, Markham, ON L3R 0T5 Canada, Attention: Customer Care. (c) Except as prohibited by the mandatory provisions of applicable laws, this Agreement and shall be deemed to have been made in the province of Ontario and the parties hereby agree to the non-exclusive jurisdiction of the courts of the province of Ontario. (d) The waiver by Company of any breach, or the failure by Company to enforce any of these T&C, shall not in any way affect, limit or prevent Company’ right thereafter to rely on, enforce and compel strict compliance with each term or condition contained herein. (e) If any provision or provisions of this Agreement are determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.