1. Definitions and Interpretation

    In these Terms and Conditions the following definitions apply:

    “Contract” means the contract between the Supplier and the Purchaser for the sale of Products consisting of (a) these Terms and Conditions, (b) the Invoice, and (c) any order placed by the Purchaser and accepted by the Supplier.  For the avoidance of doubt, in the event of any conflict between the terms of these documents the first listed above will take priority.

    “Delivery Schedule” means the Supplier'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 the Supplier may, at its discretion, grant from time to time, whether in the form of a reduction in invoiced amount, a rebate scheme or any other method that the Supplier decides.

    “Invoice” means each invoice issued by the Supplier 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, a medical device or any other related product, granted by any competent national regulatory authority in the Territory.

    “Price” is defined in Clause 7.1 below.

    “Price List” means the Supplier'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 the Supplier from time to time, including, without limitation, pharmaceutical products, medical devices and other related products.

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

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

    “Supplier” or “BMS” means the Bristol-Myers Squibb Company specified in the Invoice and its successors or assignees, which the Purchaser expressly agrees may include Bristol-Myers Squibb Company, acting on its own behalf as distributor or on behalf of the Marketing Authorisation holder.

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

    “Territory” means Canada.

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

  2. Scope

    1. Unless otherwise agreed in writing by the Supplier, these Terms & Conditions will be binding or prevail over any other terms and conditions, business terms or purchase conditions put forward by the Purchaser.
    2. No forecast received from the Purchaser is binding on the Supplier.  No purported orders or other requests for supply of Products are binding on the Supplier unless and until accepted by the Supplier in writing or by the Supplier despatching the Products to the Purchaser.
  3. Conditions of Sale

    1. 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.
    2. The Purchaser will store Products, in accordance with storage requirements listed on the labelling or as notified by the Supplier from time to time, including but not limited to any Quality Agreement with Supplier, including storage conditions and security requirements.
    3. Without prejudice to Clause 8(a) below, the Purchaser must use best endeavours to ensure that the Products are documented, recorded and stored by the Purchaser in accordance with the Supplier's reasonable instructions from time to time and in a manner which enables easy and rapid recall by strength, batch code or product description.
    4. The Purchaser grants, and will procure the grant, to the Supplier full rights of access to the premises where Products are stored, or records are held (including third party premises), for such purposes as the Supplier may reasonably require including inspection of Products or recovery of Products.
    5. No Products supplied under these Terms and Conditions will be resold by the Purchaser to any country outside the Territory.
  4. Obligations of the Purchaser

    1. The Purchaser:
      1. will 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.
      2. will comply with any notified Supplier’s policies.
      3. will certify to Supplier in writing, at the frequency requested by Supplier, compliance with its obligations under this Contract (including compliance with Supplier’s notified policies and the U.S. Foreign Corrupt Practices Act).
      4. obtain and maintain government authorizations or licenses or approvals to perform its obligations including but not limited to points (b) and (c).
    2. All Wholesalers are required to hold a Drug Establishment License and have a signed Quality Agreement with BMS Canada. For all matters pertaining to quality, the Quality Agreement shall take precedence over this Terms and Conditions of sales Contract.
    3. All Purchasers purchasing narcotics are required to hold a Narcotic License.
    4. All Purchasers must meet BMS Canada selling Terms and Conditions as outlined in this document.
  5. Ordering Terms

    1. All orders are to attain a minimum order level of $25,000, excluding taxes, with the exception of orders for narcotic/controlled substances and/or cold chain, for which the minimum order level is $2,000, excluding taxes. 
    2. A maximum of two (2) orders per week per DC may be placed.  BMS reserves the right to determine whether individual orders will be aggregated into one order to meet the minimum order quantity requirements.
    3. Orders (with the exception of narcotics/controlled substances are to be placed with:
      BMS Canada Purchaser Service via:
      Phone: 1 (800) 267-0005 or (514) 333-4607
      Fax: 1 (800) 463-6334 or (514) 333-6741
      Email: [email protected]
    4. Orders for Narcotics/Controlled Substances are to be placed with:
      6090 White Hart Lane
      Mississauga, ON L5R 3Y4
    5. Emergency Orders: For all products, BMS 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

    1. Unless otherwise stated in the Delivery Schedule, packing, freight and transportation charges will be paid by the Supplier in respect of any order where the Invoice amount for such order exceeds the "Minimum Order Value" (being an order value notified by the Supplier from time to time), and by the Purchaser in respect of all other orders. The Supplier 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. 
    2. The Supplier will use reasonable endeavours to deliver Products in accordance with the Delivery Schedule.  Time for delivery will not be of the essence. 
    3. Delivery of the Products will take place FOB Destination.
    4. The Supplier will not be liable for any late delivery, non-delivery or variation in quantities delivered.  In the event of non-delivery, the Supplier 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 the Purchaser, the Price of a Product:

    1. is the price published in the Price List whether or not any change in price has been notified to the Purchaser;
    2. is, subject to Clause 6 (a), exclusive of all packing, freight and transportation charges;
    3. is, subject to Clause 7.1 iv and inclusive of all taxes applicable to the Products; and
    4. is exclusive of VAT which, if required to be paid by any applicable law, will be paid by the Purchaser at the prevailing rate prescribed by law.

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

    1. No deductions, set-offs or withholdings from the Price will be permitted without the prior written consent of the Supplier.  The Supplier may set off sums owed by it or its group companies to the Purchaser against sums owed by the Purchaser to the Supplier from time to time.
    2. If the Purchaser defaults in making payments when due, the Supplier 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 the Purchaser.
    3. The Supplier 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

    1. The Purchaser acknowledges and agrees that Supplier owns the marketing authorisations, all underlying data and all intellectual property rights in the Products (including the logos and trademarks for the Products).
    2. 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.
    3. The Purchaser will not use any of Supplier’s trademarks, names or logos or any Product trademark without the prior written consent of Supplier.
  9. Title

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

  10. Quality

    1. Products supplied by the Supplier are in compliance with appropriate regulatory and legal requirements in the Territory. 
    2. The Purchaser will inspect the Products within a reasonable time after delivery, and will notify the Supplier and the carrier in writing to BMS’ Service Department within two (2) 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.  The Purchaser must retain damaged or defective Products in the state, condition and location in which they were delivered, for inspection and/or collection by the Supplier, its nominee and/or the carrier, or at the discretion and cost of the Supplier, return the Products to the Supplier or destroy the Products in accordance with the Supplier's instructions.
    3. Subject to Clause 10 (b), the sole extent of the Supplier's liability in respect of defects in the Products will be limited to (at the Supplier's sole discretion): crediting an amount equal to the Price paid or payable by the Purchaser, less any delivery charges paid by the Purchaser.
  11. Adverse Events Report

    1. Purchaser is required to report any notice of an Adverse Event, as defined below, to BMS within one (1) 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 Product, whether or not a casual 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.
  12. Returns

    12.1  Returns – Expired Goods

    1. 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.
    2. The following products are not eligible for credit :  Opdivo, Yervoy and Kenalog. 
    3. BMS 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 the Purchaser. 
    4. Product received prior to expiry date or beyond 12 months of the expiry date will not be credited.
    5. Overstock returns will not be credited.
    6. Products returned without their original packaging will not be credited.
    7. Expired product returned to any other facility other than BMS’ designated reverse logistics provider (Inmar) will not be credited.
    8. Narcotics returned without a return authorization (available from Inmar) will not be credited.
    9. BMS will issue a credit note at 90% of list price at time of return.  Products must not be returned to the Purchaser’s wholesaler.
    10. Products must be returned pre-paid indicating either your wholesaler’s name and account number or your BMS Purchaser number to:
      50 Dynamic Drive
      Toronto, Ontario
      M1V 2W2
      1-888-784-2323 (for narcotics Return Authorization numbers)

    12.2  Returns – Goods Damaged in Transit

    1. BMS’s responsibility ceases upon delivery of the goods to the Purchaser (FOB Destination).  Goods which are damaged, defaced or lost in transit must be brought to the attention of BMS within 48 hours (or 2 working days) of receipt.
    2. Any damages, overages, or shortages apparent upon receipt must be noted on the Carrier’s delivery receipt. 
    3. BMS will issue credit at 100% of the current Price for goods damaged in transit. 
    4. BMS will not issue credit for the following damages:
      1. Any damage occurring at the 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.
    5. All returns for damaged goods must be authorized by a BMS Purchaser Service representative.
      Phone:  1-800-267-0005
      Monday to Friday - 8:30 am to 5:00 pm E.S.T.
    6. All authorized returns for damaged products must be returned to:
      LSU Inc.
      Returns Department
      1375 Rue Newton
      Boucherville, Quebec
      J4B 5H2
    7. Credit will not be issued for Products returned in anything other than the original packaging. 
    8. Sales Representatives are not authorized to recuperate creditable products for return; these Products must be returned by the Purchaser.  They can, however, assist the Purchaser in preparing the goods for shipment ensuring that the correct address label is affixed.

    12.3  Returns – Incorrect Shipment

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

    12.4  Returns – Recalls

    1. Supplier is responsible for making all Product recall decisions related to the Products sold to the Purchaser. Products subject to recall must be returned as per Supplier 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

    1. The Purchaser grants to Supplier, competent regulatory authorities  and/or  their agents, the right, with reasonable notice, to:

      1. inspect and audit the performance of this Contract, including the distribution of the Products and the provision of any related Services; or
      2. enter, with reasonable Purchaser supervision, all premises, vehicles and containers used by the Purchaser directly in connection with the performance of this Contract; and
      3. inspect and audit all documents, software and other records relating to the Purchaser’s business in so far as it relates directly to the performance of this Contract.
    2. Supplier 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.
    3. Supplier agrees that it and its officers, employees, agents, advisors, representatives or Contractors, will take all reasonable steps to avoid unreasonable interruption to the Purchaser’s business when exercising Supplier’s rights under this clause.
    4. The Purchaser will cooperate with and provide all reasonable assistance to Supplier, its officers, employees, agents, advisors, representatives or Contractors exercising Supplier’s rights under this clause.
  14. Warranties of the Purchaser

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

    1. it will perform its obligations under this Contract in a manner that reflects favourably at all times on the Products and the good name, goodwill and reputation of Supplier;
    2. applicable laws (including the U.S. Foreign Corrupt Practices Act) 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;
    3. it is not aware of any inappropriate inducement and that it will not take any action on Supplier’s behalf which would conflict with applicable anti-bribery or anti-corruption laws (including the U.S. Foreign Corrupt Practices Act); and
    4. at the commencement date, the 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. The Purchaser will perform regular internal due diligence to ensure ongoing compliance with all applicable laws and the terms of this Contract.
  15. Liability

    1. Nothing in these Terms and Conditions will limit the Supplier's liability in respect of any claim for liability which cannot be limited or excluded under applicable laws and regulations.
    2. The Supplier will not be liable to the 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 the Supplier.
    3. The Supplier will not be liable for the onward supply by the Purchaser of Products whose expiration date has passed or for any Products that have deteriorated as a result of an act or omission of the Purchaser after the Products were delivered by the Supplier or its nominee or carrier, and the Purchaser will indemnify the Supplier against any Losses resulting from such onward supply.
    4. The use of any Products outside the scope of the approved Marketing Authorisation is not recommended by the Supplier, and if the Purchaser supplies Products for such "off-label" usage, the Supplier will have no liability for such supply.
    5. The Supplier will not be liable for the failure of the Products to comply with any legal or regulatory requirements in countries other than the Territory, particularly with regard to labelling.
  16. Termination

    1. Without affecting any other rights or remedies it may have, the Supplier will be entitled to terminate any or all Contracts and orders immediately if:
      1. the Purchaser is in material breach of any term of this Contract, including payment under Clause 7 above; or
      2. the Purchaser is unable to pay its debts, or steps are taken by the Purchaser, or by any of the Purchaser's creditors, in respect of the Purchaser under applicable insolvency laws, including making a voluntary arrangement, or entering liquidation, administration, receivership or bankruptcy.
    2. If the Supplier terminates any Contract or order, without affecting any other rights the Supplier may have, any sums owing from the Purchaser to the Supplier will immediately become due and payable.
  17. Force Majeure

    The Supplier 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, governmental action, strike, lock-out or other industrial disputes (whether or not involving the Supplier's employees) or shortage of materials or fuel.  On the occurrence of such event, the Supplier 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 the Supplier's other rights and remedies, the Purchaser will indemnify and keep indemnified the Supplier, its group companies and their employees and agents on demand in full against any Losses  incurred or suffered as a result of:

    1. cancellation, variation or suspension of a Contract by the Purchaser without the Supplier's express prior written consent;
    2. 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 the Purchaser; or
    3. any termination pursuant to Clause 17.
  19. Miscellaneous

    1. This Contract:
      1. supersedes all previous statements or any previous terms and conditions relating to the supply of Products;
      2. excludes any terms and conditions provided by the Purchaser; and
      3. may only be supplemented or varied with the written consent of the Supplier.
    2. Any of the Supplier's, or any other group company of the Supplier, business, technical, operational, product, Purchaser or personnel information disclosed or obtained in connection with this Contract is confidential and remains the exclusive property of the Supplier or its group company.  The Purchaser will maintain this information in confidence and use it solely for the purpose of this Contract.  The Purchaser will not use or disclose such confidential information for any other purpose without the Supplier'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 the Purchaser, or to information that is required to be disclosed by law or regulation.
    3. The Supplier's waiver of any breach of the Purchaser's obligations under this Contract will not constitute the waiver of any prior or subsequent breach, and the Supplier's rights will not be affected by any delay, failure or omission to enforce its rights under this Contract.
    4. These Terms and Conditions are governed by the laws of Quebec and federal laws applicable therein.
    5. If any part of this Contract is illegal or unenforceable, the offending portion will be severed and the rest may be enforced.
    6. The parties are independent Contractors and nothing in this Contract constitutes a partnership, joint venture, employment or agency relationship between the parties.
    7. The parties do not intend that this Contract be enforceable by or for the benefit of any third party.
    8. 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.