1.     Definitions and Interpretation

In these Terms and Conditions the following definitions apply:

“ww5” means either Bristol-Myers Squibb Company, or one of its affiliates, as specified in the Invoice and its successors or assignees.

“Contract” means the contract between ww5 and Purchaser for the sale of Products consisting of (a) these Terms and Conditions, (b) the Invoice, and (c) any order placed by Purchaser and accepted by ww5. .

“Delivery Schedule” means ww5's delivery schedule that sets out standard carriage terms, costs and timings as amended from time to time.

“Discount” means any deduction from the Price List price of a Product that ww5 may, at its sole discretion, grant from time to time, whether in the form of a reduction in invoiced amount, a rebate scheme or any other method that ww5 decides.

“Invoice” means each invoice issued by ww5 for the Products which these Terms and Conditions are attached to or referenced in.

“Losses” means all losses, claims, liabilities, costs, expenses and damages of any nature whatsoever.

“Marketing Authorisation” means the authorisation to market a medicinal product, granted by, Health Canada, the competent national regulatory authority in the Territory.

“Price” is defined in Clause 7.1 below.

“Price List” means ww5's price list in force at the Invoice date, whether in hard copy or electronically.

“Products” means any item, goods, deliverable or materials which are offered for sale by ww5 from time to time, including, without limitation pharmaceutical products.

“Purchaser” means the party named as the purchaser on the Invoice.

“Quality Agreement” means the quality agreement entered between Purchaser and ww5.

“Terms and Conditions” means the terms and conditions set out below, as amended from time to time by ww5.

“Territory” means Canada.

“Wholesaler” means an entity that holds all permits required by law to carry out pharmaceutical wholesaling activities in the Territory, including but not limited to a Wholesaler Drug Establishment License.

2.     Scope

a.     Unless otherwise agreed in writing by ww5, these Terms & Conditions will be binding or prevail over any other terms and conditions, business terms or purchase conditions put forward by Purchaser.

b.     No forecast received from Purchaser is binding on ww5.  No purported orders or other requests for supply of Products are binding on ww5 unless and until accepted by ww5 in writing or by ww5 dispatching the Products to Purchaser.

c.      By placing an order for Product, Purchaser represents and warrants that it has, and will maintain for so long as it has any Product in its possession, a valid Drug Establishment License applicable to an distribution centre or other location where Purchaser will store Product.

d.     Purchaser must ensure it has executed the Quality Agreement and that such Quality Agreement remains valid and in place, prior to placing any order for Product.

e.           In the event of any conflict between the terms of these Terms and Conditions, the Invoice and any order placed by Purchaser, these Terms and Conditions will take priority.  In the event of a conflict between the terms of the Contract and the terms of the Quality Agreement, the Quality Agreement will take priority for all quality-related matters and the Contract will take priority for any other matter.

3.     Conditions of Sale

a.     It is a condition of sale that Products supplied under these Terms and Conditions are for resale only through channels permitted by applicable law in the Territory.

b.     Purchaser will store Products, in accordance with storage requirements listed on the labelling or as notified by ww5 from time to time, including but not limited to any Quality Agreement with ww5, including storage conditions and security requirements.

c.      Without prejudice to Clause 8(a) below, Purchaser must use best efforts to ensure that the Products are documented, recorded and stored by Purchaser in accordance with ww5's reasonable instructions from time to time and in a manner which enables easy and rapid recall by strength, batch code or product description.

d.     Purchaser grants, and will procure the grant, to ww5 full rights of access to the premises where Products are stored, or records are held (including third party premises), for such purposes as ww5 may reasonably require including inspection of Products or recovery of Products.

e.     Purchaser is prohibited from (i) selling any Products to any entity domiciled outside the Territory; (ii) exporting any Product from the Territory; and (iii) selling any Product to any entity that Purchaser knows, or ought reasonably to know, intends to export any Product from the Territory.  

4.     Obligations of the Purchaser

Purchaser shall:

a.     comply with all applicable laws and regulations, including all applicable customs requirements, good manufacturing practices, good warehousing practices, good distribution practices, good clinical practices, anti-bribery and corruption laws (including the U.S. Foreign Corrupt Practices Act), advertising and promotion laws, regulations and self-regulatory codes, environmental and waste laws affecting the Products;

b.     comply with any ww5 policy provided to Purchaser in writing by ww5;

c.    certify to ww5 in writing, at the frequency requested by ww5, compliance with its obligations under this Contract (including compliance with ww5’s notified policies and the U.S. Foreign Corrupt Practices Act);

d.    obtain and maintain all government authorisations or licenses or approvals necessary to permit Purchaser to perform its obligations; and

e.     meet ww5’s selling Terms and Conditions as outlined in this document.

5.     Ordering Terms

a.     The minimum purchase amount for any order is $15,000 excluding taxes, with the exception of orders for cold chain, for which the minimum order amount is $2,000, excluding taxes. 

b.     Purchaser may place a maximum of two orders per week per Wholesaler’s DC (Distribution Center).  ww5, in its discretion, may aggregate individual orders into one order to meet the minimum order quantity requirements.

c.      Orders must be placed with:

ww5 CustomerFF Service via: EDI
Fax:1(800)463-6334 Email: ca.orders@ww5.com

d.     Emergency Orders: ww5 reserves the right to waive the stated order minimums when, in its sole opinion, such orders represent emergency situations.  A commercially reasonable service charge may be applied for expediting an emergency order.

6.     Delivery

a.     Unless otherwise stated in the Delivery Schedule, packing, freight and transportation charges will be paid by ww5 in respect of any order where the Invoice amount for such order exceeds the “Minimum Order Value” (being an order value notified by ww5 from time to time), and by Purchaser in respect of all other orders. ww5 reserves the right to charge carriage costs at the standard rates set out in the Delivery Schedule in respect of urgent deliveries or to satisfy particular delivery requirements listed in the Delivery Schedule. 

b.     ww5 will use reasonable endeavors to deliver Products in accordance with the Delivery Schedule.  Time for delivery will not be of the essence. 

c.      Delivery of the Products will take place FOB (Freight on Board) Destination.

d.     ww5 will not be liable for any late delivery, non-delivery or variation in quantities delivered.  In the event of non-delivery, ww5 and the carrier must be notified within seven days of the Invoice date. 

7.     Price and Payment

7.1 Unless otherwise agreed in writing with Purchaser, the Price of a Product:

i.     is the price published in the Price List whether or not any change in price has been notified to Purchaser;

ii.    is, subject to Clause 6 (a), exclusive of all packing, freight and transportation charges;

iii.   is, subject to Clause 7.1 iv and inclusive of all taxes applicable to the Products; and

iv.   is exclusive of VAT (Value Added Tax) which, if required to be paid by any applicable law, will be paid by Purchaser at the prevailing rate prescribed by law.

7.2 Unless otherwise agreed in writing by ww5, payment of any Invoice is due in the currency specified in the Invoice in cleared funds within 30 days of the Invoice date, and time for payment is of the essence.

a.     No deductions, set-offs or withholdings from the Price will be permitted without the prior written consent of ww5.  ww5 may set off sums owed by it or its group companies to Purchaser against sums owed by Purchaser to ww5 from time to time.

b.     If Purchaser defaults in making payments when due, ww5 will be entitled to suspend deliveries, terminate the Contract and treat any and all Contracts between the parties as repudiated and/or resell any Products not yet delivered to Purchaser.

c.      ww5 may withdraw credit terms at any time by notice, upon which withdrawal all unpaid amounts become due immediately and any future payments will be due on the Invoice date.

8.     Intellectual Property Rights

a.     Purchaser acknowledges and agrees that ww5 owns the marketing authorisations, all underlying data and all intellectual property rights in the Products (including the logos and trademarks for the Products).

b.     Nothing in the Contract is intended to grant or create any right or license to either party with respect to any patent rights, copyrights, trademarks or other intellectual property rights owned or controlled by the other party.

c.      Purchaser will not use any of ww5’s trademarks, names or logos or any Product trademark without the prior written consent of ww5.

9.     Title

The title of Products remains with ww5 until delivery of the Products to Purchaser.  Products must be sold by Purchaser on a first-in, first-out basis. 

10.  Quality

a.     ww5 represents that all Products ww5 comply with any applicable regulatory and legal requirements in the Territory. 

b.     Purchaser shall inspect the Products within a reasonable time after delivery, and will notify ww5 and the carrier in writing to ww5’ Service Department within two  business days of delivery if it is apparent that there is a shortage of the Products (as against the Invoice), the Products are defective or damaged or if the packs or shipping cartons in which the Products are packed are damaged.  All visible damages, overages, shortages must be indicated by Purchaser on the proof of delivery/carrier’s delivery receipt.  Purchaser must retain damaged or defective Products in the state, condition and location in which they were delivered, for inspection and/or collection by ww5, its nominee and/or the carrier, or at the discretion and cost of ww5, return the Products to ww5 or destroy the Products in accordance with ww5's instructions.

c.      Subject to Clause 10 (b), the sole extent of ww5's liability in respect of defects in the Products will be limited to (at ww5's sole discretion): crediting an amount equal to the Price paid or payable by Purchaser, less any delivery charges paid by Purchaser.

11.  Adverse Events Report

a.     Purchaser is required to report any notice of an Adverse Event, as defined below, to ww5 within one business day of receiving information. For the purposes of this Contract an Adverse Event will mean any untoward medical occurrence in product user or patient/consumer administered a ww5 Product, whether or not a causal relationship is demonstrated.  An Adverse Event can therefore be any unfavorable or unintended sign (for example, an abnormal laboratory finding), symptom, death, injury, or disease temporarily associated with a use of a Product, whether or not considered related to the Product.  For avoidance of doubt, pregnancy, overdoses, lack of efficacy, medication errors, including potential medical errors and transmissions of infectious agents, will be reported as an Adverse Event. All Adverse Events should be reported directly to medical.canada@ww5.com.

12.  Returns

12.1  Returns – Expired Goods

a.     Products returned as of the expiration date and up to 12 months past the expiration date will be credited to the most complete quarter for liquids and bottles.

b.     The following products are not eligible for credit: Opdivo, Yervoy, Opdualag, Reblozyl and Kenalog.

c.      ww5 reserves the right to reduce the valuation of, or refuse, a credit request which results from product outdating due to inadequate stock rotation on the part of Purchaser. 

d.     Product received prior to expiry date or beyond 12 months of the expiry date will not be credited.

e.     Overstock returns will not be credited.

f.      Products returned without their original packaging will not be credited.

g.     Expired product returned to any other facility other than ww5’ designated reverse logistics provider (GFL Environmental Services Inc.) will not be credited.

h.     ww5 will issue a credit note at 90% of list price at time of return.  Products must not be returned to Purchaser’s wholesaler.

i.      Products must be returned pre-paid indicating either your wholesaler’s name and account number or your ww5 Purchaser number to:

GFL Environmental Services Inc.
76 Wentworth Court 
Brampton, Ontario
L6T 5M7
1-877-474-3778

12.2    Claims & Returns, Shortages, Overages & Damages (SOD) and Goods Damaged in Transit

a.     ww5’ responsibility ceases upon delivery of the goods to Purchaser (FOB Destination).

b.     Any shortages, overages, damages, defaced or lost in transit apparent upon receipt must be noted on the Carrier’s delivery receipt, and must be brought to the attention of ww5 within 48 hours (or 2 working days) of receipt.

c.     Customer will have to fill out ww5’s OVERAGE SHORTAGE & DAMAGED REPORTING FORM per claim.

d.     ww5 will issue credit at 100% of the current Price for goods damaged in transit, after investigation.  Pictures of damaged goods must be provided, according to ww5’s OVERAGE SHORTAGE & DAMAGED REPORTING FORM. 

e.     ww5 will not issue credit for the following damages:

1.   Any damage occurring at Purchaser’s warehouse.

2.  Products damaged due to improper storage and transportation by Purchaser or Purchaser’s Purchasers, subjected to undue exposure or extremes in temperature.

3.  Products that have been involved in a fire, flood, bankruptcy sale or returned by other than the original purchaser.

f.      All returns for damaged goods must be authorized by a ww5 Customer Service representative.

Phone:  1-800-267-0005
Monday to Friday - 8:30 am to 5:00 pm E.S.T.

g.     All authorized returns for damaged products must be returned to:

LSU Inc.
Returns Department
1375 Rue Newton
Boucherville, Quebec
J4B 5H2

h.     Credit will not be issued for Products returned in anything other than the original packaging. 

i.       ww5 filed people or representative re not authorized to recuperate creditable products for return; these Products must be returned by Purchaser.  They can, however, assist Purchaser in preparing the goods for shipment ensuring that the correct address label is affixed.

12.3  Returns – Incorrect Shipment

If the goods received do not match the order, then Purchaser may refuse the goods that were not ordered, upon receipt, in which case ww5 will issue full credit after investigation.  A return authorization number must be obtained from ww5 Purchaser Service prior to returning goods.  ww5 will not accept responsibility for errors resulting from Purchaser ordering the wrong product.

12.4  Returns – Recalls

ww5 is responsible for making all Product recall decisions related to the Products sold to Purchaser. Products subject to recall must be returned as per ww5 instructions. When Wholesaler is required to complete a recall or withdrawal of Products, Wholesaler will be compensated for the costs of such activities as per the then in effect Product Recall/Withdrawal Guidelines (Green Paper) produced by CAPDM.

13.  Audit or Inspection

a.      Purchaser grants to ww5, competent regulatory authorities and/or their agents, the right, with reasonable notice, to:

i.       inspect and audit the performance of this Contract, including the distribution of the Products and the provision of any related Services; or

ii.     enter, with reasonable Purchaser supervision, all premises, vehicles and containers used by Purchaser directly in connection with the performance of this Contract; and

iii.    inspect and audit all documents, software and other records relating to Purchaser’s business in so far as it relates directly to the performance of this Contract.

b.     ww5 may nominate and appoint one or more of its officers, employees, agents, advisors, representatives or Contractors to exercise its rights set out in this clause.

c.      ww5 shall ensure that it and its officers, employees, agents, advisors, representatives or Contractors, will take all reasonable steps to avoid unreasonable interruption to Purchaser’s business when exercising ww5’s rights under this clause.

d.     Purchaser shall cooperate with and provide all reasonable assistance to ww5, its officers, employees, agents, advisors, representatives or Contractors exercising ww5’s rights under this clause.

14.  Warranties of the Purchaser

In performing its obligations under this Contract, Purchaser warrants to ww5 that:

a.     it will perform its obligations under this Contract in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of ww5;

b.     it will comply with all applicable laws (including the U.S. Foreign Corrupt Practices Act) that prohibit bribery and the payment of money or anything of value to government officials, political parties or candidates for the purpose of corruptly obtaining or retaining business;

c.      it is not aware of any inappropriate inducement and that it will not take any action on ww5’s behalf which would conflict with applicable anti-bribery or anti-corruption laws (including the U.S. Foreign Corrupt Practices Act); and

d.     at the commencement date, Purchaser has performed the necessary due diligence to ensure compliance with all applicable laws (including anti-bribery laws and the U.S. Foreign Corrupt Practices Act) and the terms of this Contract. Purchaser will perform regular internal due diligence to ensure ongoing compliance with all applicable laws and the terms of this Contract.

15.  Liability

a.     Nothing in these Terms and Conditions will limit ww5' liability in respect of any claim for liability which cannot be limited or excluded under applicable laws and regulations.

b.     ww5 will not be liable to Purchaser or any other party for any indirect losses, loss of profits or anticipated profits, loss of expected future business, damage to reputation or goodwill, nor any claim for consequential compensation whatsoever (however caused), which arises in connection with the supply of the Products or related services by ww5.

c.      ww5 will not be liable for the onward supply by Purchaser of Products whose expiration date has passed or for any Products that have deteriorated as a result of an act or omission of Purchaser after the Products were delivered by ww5 or its nominee or carrier, and Purchaser will indemnify ww5 against any Losses resulting from such onward supply.

d.     The use of any Products outside the scope of the approved Marketing Authorisation is not recommended by ww5.

16.  Termination

a.     Without affecting any other rights or remedies it may have, ww5 will be entitled to terminate any or all Contracts and orders immediately if:

i.       Purchaser is in material breach of any term of this Contract, including payment under Clause 7 above; or

ii.     Purchaser is unable to pay its debts, or steps are taken by Purchaser, or by any of Purchaser's creditors, in respect of Purchaser under applicable insolvency laws, including making a voluntary arrangement, or entering liquidation, administration, receivership or bankruptcy.

b.     If ww5 terminates any Contract or order, without affecting any other rights ww5 may have, any sums owing from Purchaser to ww5 will immediately become due and payable.

17.  Force Majeure

ww5 will not be liable in any way for Losses arising directly or indirectly from the failure or delay in performing any obligation under these Terms and Conditions caused by any circumstances outside its control, including vandalism, accident, break down or damage to machinery or equipment, fire, flood, earthquake, storm, or any other act of God, governmental action, strike, lock-out or other industrial disputes (whether or not involving ww5' employees) or shortage of materials or fuel.  On the occurrence of such event, ww5 may, at its own election, perform, suspend performance of or terminate all or any orders which have not been delivered.

18.    Indemnity

Without prejudice to ww5' other rights and remedies, Purchaser will indemnify and keep indemnified ww5, its group companies and their employees and agents on demand in full against any Losses  incurred or suffered as a result of:

i.    cancellation, variation or suspension of a Contract by Purchaser without ww5' express prior written consent;

ii.    any claim brought by any third party in respect of Losses, injury or damage caused by any Products which arises as a result of any action or omission of Purchaser; or

iii.    any termination pursuant to Clause 17.

19.    Miscellaneous

a.    This Contract:

i.    supersedes all previous statements or any previous terms and conditions relating to the supply of Products;

ii.    excludes any terms and conditions provided by Purchaser; and

iii.    may only be supplemented or varied with the written consent of ww5.

b.    Any of ww5' (or any of its affiliates) business, technical, operational, product, or personnel information disclosed or obtained in connection with this Contract is confidential and remains the exclusive property of ww5 (or its affiliate).  Purchaser will maintain this information in confidence and use it solely for the purpose of this Contract.  Purchaser will not use or disclose such confidential information for any other purpose without ww5's prior written consent.  For the avoidance of doubt, the obligations contained within this Clause do not apply to information that is in the public domain otherwise than through breach of these Terms and Conditions by Purchaser, or to information that is required to be disclosed by law or regulation.

c.    ww5' waiver of any breach of Purchaser's obligations under this Contract will not constitute the waiver of any prior or subsequent breach, and ww5' rights will not be affected by any delay, failure or omission to enforce its rights under this Contract.

d.    These Terms and Conditions are governed by the laws of Quebec and federal laws of Canada applicable therein.

e.    If any part of this Contract is illegal or unenforceable, the offending portion will be severed and the rest may be enforced.

f.    The parties are independent Contractors and nothing in this Contract constitutes a partnership, joint venture, employment or agency relationship between the parties.

g.    The parties do not intend that this Contract be enforceable by or for the benefit of any third party.

h.    The parties acknowledge and agree that this Contract was negotiated in English and the English version prevails to the extent of any inconsistency over any translated version.