The terms and conditions set forth in these terms of purchase (this "Agreement") constitute the entire agreement between Covalon Technologies Ltd., (serviced by Covalon Technologies Inc.) herein referred to as "Covalon" and you, herein referred to as the "Buyer" concerning products purchased through Covalon’s website (the “Website”). Capitalized terms used herein shall have the meaning as defined herein.
1. OFFER AND ACCEPTANCE
By ordering a product on the Website, Buyer shall be deemed to have made an offer to buy the specified product from Covalon pursuant to this Agreement. The acceptance and fulfillment by Covalon of any order placed on the Website is subject to Buyer's acceptance of all of the terms of this Agreement. All other contrary terms and conditions are expressly rejected, and no addition or modification to this Agreement shall be binding unless agreed to in writing by Covalon. Buyer accepts these terms and conditions by placing an order through the Website, or by receiving delivery of any products ordered by Buyer from the Website. Covalon shall not be deemed to have accepted Buyer's offer unless and until Covalon sends to Buyer, through electronic means, facsimile or other written communication, an acknowledgment that Buyer's order has been confirmed and will be fulfilled by Covalon. Covalon's acceptance of any offer by Buyer is only made with the express understanding that this Agreement shall govern any sale of products through the Website to Buyer.
2. PRICES, AVAILABILITY AND TAXES
Prices of products on the Website are subject to change at any time without notice. All products may not be available in all areas. Product availability is subject to change at any time and Covalon makes no representations or warranties regarding product availability. Buyer shall be responsible for any tax or other governmental charge due to the sale, use or delivery of the product, including, but not limited to, sales taxes. All applicable taxes and other charges will be added to the purchase price.
Covalon will not accept checks, COD, or credit cards registered outside of Canada or the United States. If Buyer fails to pay for any products received, Covalon shall have the right, in addition to other remedies, to suspend or cancel further deliveries, and to proceed in any court of proper jurisdiction against Buyer for all amounts due to Covalon, including, but not limited to, attorney fees, costs and interest.
4. SHIPPING, TITLE AND RISK OF LOSS
Covalon will ship products using the shipping method selected by Buyer on the Website. All sales are made F.O.B., the shipping point. Covalon shall use reasonable efforts to cause products to be delivered to Buyer by requested delivery dates, but shall in no event be liable for any losses or damages caused by delay or non-delivery of products. Buyer shall be responsible for all shipping charges. Title and risk of loss in the products shall pass to Buyer upon Covalon's (or its agent's) delivery to the carrier at the shipping point.
6. COVALON WARRANTIES
Covalon warrants that the products shall be free from manufacturing, material or design defects for approved uses and for the shelf life of the products marked on the product packaging. Covalon’s sole obligation and liability, and Buyer’s only remedy either under the warranty given, or as a result of any product recall ordered by federal, state, provincial or local governmental authorities of competent jurisdiction, shall be to replace any products which Covalon determines, or such governmental order determines, to be defective. The warranty given by Covalon shall not apply to defects resulting from: (i) improper use, including off-label or unapproved use, or abuse of the products; or (ii) causes external to the products, such as, but not limited to transportation, fluctuations of humidity or temperature in excess of specified tolerance levels, or damage caused by natural disasters.
COVALON’S WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS, OBLIGATIONS, WARRANTIES, CONDITIONS OR GUARANTEES, EXPRESS OR IMPLIED, AND COVALON EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER COVALON NOR ANY OF ITS SUPPLIERS OR SUBCONTRACTORS ASSUMES, OR AUTHORIZES ANY PERSON TO ASSUME ON ITS BEHALF, ANY OTHER WARRANTY, CONDITION, GUARANTEE OR OBLIGATION.
IN NO EVENT SHALL COVALON BE LIABLE TO BUYER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE AND WHETHER OR NOT COVALON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7. BUYER'S REPRESENTATIONS
Buyer represents that it has the requisite power and authority to enter into this Agreement and to perform the obligations under this Agreement. Buyer represents that it has provided accurate information to Covalon in purchasing products through the Website and that its offer to purchase products complies with all applicable laws. Buyer acknowledges and agrees that it is solely responsible compliance with all applicable laws and regulations concerning Buyer's purchase, possession, or use of the products. Buyer further represents that it is familiar with the characteristics of the products, and will comply with all laws, regulations, and standards applicable to the possession, handling, processing or use of the products by Buyer, including, but not limited to, the Instructions For Use (“IFU”) document provided with the product. Buyer also represents that, where required, the product being purchased is under the order of a physician, or other healthcare practitioner, licensed under the applicable regulatory body in Buyer’s jurisdiction.
Buyer shall indemnify, defend and hold harmless Covalon, its affiliates, and the respective officers, directors, employees, agents, successors and assigns (collectively, the “Indemnitees”) from any claims, losses, liabilities, damages, suits, penalties, fines, costs, expenses and third party claims arising out of or in connection with (i) the breach of any representation, warranty, covenant or provision in this Agreement, (ii) any gross negligence or intentional wrongdoing, and (iii) any violation of applicable law, rule or regulation. Covalon’s aggregate liability for all claims, losses, liabilities or damages in connection with this Agreement, whether as a result of breach of contract, tort (including negligence) or otherwise, regardless of the theory of liability asserted, is limited to no more than the total amount paid to Covalon for the particular products giving rise to the liability under this Agreement. Covalon may participate in the defense of any such claim for the further protection of its own interests.
9. LIMITATION OF CLAIMS
Without limiting the scope of any other terms and conditions herein, any and all claims related to products sold to Buyer through the Website shall be made within thirty (30) days after receipt of the product to which the claim relates, or if for non-delivery, after the scheduled delivery date thereof. Buyer's failure to give Covalon written notice of any claim within the applicable time period shall constitute an absolute and unconditional waiver of such claim. In no event shall Buyer commence any action against Covalon related to products sold to Buyer through the Website later than one year after receipt of the product giving rise to such action.
10. LIMITATION OF LIABILITY
Without limiting the scope of any other terms and conditions herein, including Covalon's disclaimer of warranties, no claim of any kind, whether as to products delivered or for non-delivery of products, or otherwise, and whether based on contract, breach of warranty, negligence, strict liability, indemnity, contribution, or otherwise, shall be greater in amount than the purchase price of the products in respect of which damages are claimed. IN NO EVENT SHALL COVALON BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BUYER'S CLAIM IS BASED ON CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, CONTRIBUTION, OR OTHERWISE, AND NOTWITHSTANDING ANY CLAIM THAT SUCH DAMAGES WERE REASONABLY FORESEEABLE TO COVALON OR ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
11. FORCE MAJEURE
Without limiting the scope of any other terms and conditions herein, Covalon shall not be responsible or liable for any delay or failure to deliver any or all of the products for causes beyond its reasonable control, including, but not limited to, any cause or circumstance which makes impracticable the production, transportation or delivery of the products. Covalon may cancel an order to the extent the quantity not delivered is due to any such cause or circumstance. In no event shall Covalon be obligated to purchase products to replace any quantity not delivered due to any such cause or circumstance. In the event of any cause or circumstance excusing Covalon, Covalon shall have the right to allocate any remaining product supply among its customers, including those not under contract, in a fair and reasonable manner, and Buyer hereby releases Covalon from responsibility or liability for any resulting incomplete fulfillment of Buyer's order.
a) No waiver by either party of any breach of any terms or conditions contained herein shall be considered as a waiver of any succeeding breach of the same or any other terms or condition herein. Nothing contained herein shall limit the remedies of Covalon in the event of Buyer's breach of this Agreement.
b) All notices related to this Agreement shall be in writing. The parties expressly agree that electronic communications shall be considered "writings" for all purposes under applicable law. If notice is not sent by electronic communications, notices shall be deemed given two (2) days after being delivered to or deposited in the United States mail, first class, postage prepaid, and, if to Buyer, sent to the address identified by Buyer when registering to purchase products through the Website and, if to Covalon, to Covalon Technologies Inc. 1660 Tech Avenue, Mississauga, Ontario, L4W 5S7.
c) If any terms and conditions herein are held to be invalid or unenforceable, such holding shall not affect the validity or enforceability of any other term or condition herein.
d) These Terms and Conditions shall be governed by and considered under the laws of the province of Ontario, Canada, without regard to conflict of laws principles. Any legal action with respect to any transaction subject to this Agreement must be commenced within one year after the cause of action has arisen. Any actions arising out of products purchased through the Website shall be commenced in the provincial courts of Ontario. Buyer agrees to submit to the jurisdiction of these courts and waives any claim that venue is improper for any reason in these courts.