Terms of Sale of COVID-19 Tests
Sale of Goods
- The Seller will sell, transfer and deliver to the Buyer the following goods (the ‘Goods’) as per the order placed online (the “Order”).
- The Buyer will accept the Goods and pay for the Goods as per the agreed upon Order (the “Purchase Price”).
- The Seller and the Buyer both acknowledge the sufficiency of this consideration. In addition to the Purchase Price specified in the sales order, the amount of any present or future sales, use, excise, duty, tariff or similar tax applicable to the sale of the Goods will be paid by the Buyer, or alternatively, the Buyer will provide the Seller with a tax exemption certificate acceptable to the applicable taxing authorities.
- Final payment of the Purchase Price of the Goods shall be made in full.
Delivery of Goods
- These are the delivery terms:
- The Goods will be delivered to the customer as noted in the sales order, which will be the place of delivery of the Goods;
- The Buyer understands that no Goods shall be delivered to the Carrier for shipment until final payment is made on the Goods;
- The Buyer acknowledges that the Seller releases all responsibility for the shipment once the delivery to a Carrier for shipment is made; and
- The Buyer acknowledges that any customs clearance is the sole responsibility of the Buyer.
Shipment of Goods
The following shipping terms apply:
- Shipping terms shall be assigned to the shipment from the place of shipping as per Schedule A of this Agreement.
- Delivery timeline
- Air freight; approximately two (2) days from when the Goods are delivered to a Carrier for shipment; or
- Ground freight; approximately four (4) days from when the Goods are delivered to a Carrier for shipment.
- Estimated Shipping Timelines (excluding customs clearance and port delays)
Risk of Loss
- Risk of loss will be on the Buyer from the time of delivery to the Carrier.
- If the Buyer chooses not to insure the Goods, any loss incurred by the Buyer as a result of a lost, damaged, stolen shipment or any other shipping mishap will be at the sole detriment to the Buyer;
- The Seller may agree to pay for the insurance costs on the Buyer’s behalf, and the Buyer agrees to reimburse the Seller for all insurance costs, should the Buyer choose to insure the Goods;
- The Seller will provide the Buyer proof of the cost of insurance, upon the Buyer’s request; and
- All insurance costs will be paid for by the Buyer prior to the Goods being delivered to a Carrier for shipment along with a Partial Payment or final payment.
- The Buyer must notify the Seller in writing should they choose to insure the Goods, prior to the Goods being delivered to a Carrier for shipment. Also;
- The Buyer acknowledges that the possibility exists that the Goods may be diverted or seized by their respective government for their own use. The Buyer agrees to indemnify and hold the Seller harmless if this occurs; and
- The Buyer will accept all responsibility for ensuring that the Goods are properly licensed in their respective country and will indemnify and hold the Seller harmless in any matter related to government licensing or restrictions on importation or sale of the Goods.
- The Buyer will accept all responsibility for ensuring that the use of the Goods are acceptable to whichever licensing authority regulates the use of the Goods in their jurisdiction and will indemnify and hold the Seller harmless in any matter related to government licensing or restrictions on the use of the Goods.
Use of Goods
- The Buyer acknowledges the following:
- All uses of the Goods, by the Buyer, shall be consistent with the intended use of the Goods.
- The Buyer will ensure that the specimen collection, use of the Goods, and interpretation of the results from the Goods shall only be performed by trained health professionals.
- The Goods shall not be made available, sold, distributed or marketed, directly or indirectly, to the general public for at-home-testing purposes or self-use.
- The Buyer shall not alter, modify, remove or deface the labelling on the Goods.
- The Goods shall not be used as the sole basis to diagnose or exclude SARS-CoV-2 infection or to inform infection status.
- The Goods have been authorized only for the detection of SARS-CoV-2, not for any other viruses or pathogens.
- This test is only authorized for the duration of the declaration that circumstances exist justifying the authorization of emergency use of in vitro diagnostics for detection and/or diagnosis of SARS-CoV-2 under either the Health Canada Interim Order or Section 564(b)(1) of the U.S. Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 360bbb-3(b)(1). For further clarity either Health Canada or the U.S. Food and Drug Administration may revoke or cancel emergency authorizations for the use of the Goods at any time and without notice.
- The Buyer understands that the Goods have not been evaluated in regard to their ability to detect variants of SARS-CoV-2 and should not be relied upon to detect any variant other than those stated by the manufacturer. Check the manufacturer’s website or the included instructions for use for more information.
- The Buyer acknowledges that the Seller bears no responsibility to directly train or certify the users of the Goods.
- The Buyer shall ensure that all users of the Goods shall be trained in accordance with the requirements of their jurisdiction, licensing or certification body.
- The Buyer understands that the manufacturer of the Goods provides training and instruction in regard to the use of the Goods and the Buyer agrees to ensure that all users of the Goods shall take the recommended training and follow the manufacturer’s instructions.
- The Buyer understands that there may be a requirement to report the results (of the tests performed using the Goods) to their health authority. The Buyer agrees to enquire with their health authority to ensure they are compliant with jurisdictional reporting requirements.
- The Seller does not assume, or authorize any other person to assume on the behalf of the Seller, any liability in connection with the sale of the Goods. The Seller’s below disclaimer of warranties does not, in any way, affect the terms of any applicable warranties from the manufacturer of the Goods. THE GOODS ARE SOLD ‘AS IS’ AND THE SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- No return of the Goods under any circumstances will be granted by the Seller. All sales are final.
- Title to the Goods will remain with the Seller until delivery to the Carrier or, in the alternative, the Seller delivers a document of title or registrable bill of sale of the Goods, bearing any necessary endorsement, to the Buyer.
- The Seller retains a security interest in the Goods until paid in full.
- The Buyer has the option to request, in writing, Proof of Life (the “POL”) of the Goods, or, to have the Goods inspected, at the sole cost and arrangement of the Buyer, by a third-party inspection service prior to making final payment and before the Goods are delivered to a Carrier for shipment. The Buyer assumes any and all costs and delays related to additional POL or inspection requests.
- The Buyer’s failure to give notice of any claim within 3 days from the date of delivery will constitute an unqualified acceptance of the Goods and a waiver by the Buyer of all claims with respect to the Goods.
Excuse for Delay or Failure to Perform
- The Seller will not be liable in any way for any delay, non-delivery or default in shipment due to government regulations, labour disputes, labour shortage, transportation shortage, raw material shortage, delays in receipt of material, priorities, fires, accidents and other causes beyond the control of the Seller or its suppliers. If the Seller, in its sole judgment, will be prevented directly or indirectly, on account of any cause beyond its control, from delivering the Goods at the time specified in this Agreement, then the Seller will have the right to terminate this Agreement by notice in writing to the Buyer. This notice will be accompanied by a refund of all sums paid, less the value of any Goods already manufactured, delivered to a carrier for shipment or delivered to the final destination, to the Buyer pursuant to this Agreement.
- The Buyer’s exclusive remedy and the Seller’s limit of liability for any and all losses or damages resulting from defective goods or from any other cause will be for the Purchase Price of the particular delivery with respect to which losses or damages are claimed, plus any transportation charges actually paid by the Buyer.
- The Seller reserves the right to cancel this Agreement and the Buyer agrees to forfeit all deposits they have made.
- if the Buyer fails to pay, whether in full or partially for the Goods, when due;
- in the event of the Buyer’s insolvency or bankruptcy; or
- if the Seller deems that its prospect of payment is impaired.
- The Buyer may cancel the order, prior to the Goods being delivered to the Carrier. Any cancellation of an order will be subject to a cancellation fee. This fee shall be 25% of the order value.
- Any notice to be given or document to be delivered to either the Seller or Buyer pursuant to this Agreement will be sufficient if delivered personally or sent by prepaid registered mail to the address specified below. Any written notice or delivery of documents will have been given, made and received on the day of delivery if delivered personally, or on the third (3rd) consecutive business day next following the date of mailing if sent by prepaid registered mail:
SELLER: Verify Diagnostics Inc. of D-122 Commerce Park Dr., Barrie, ON, L4N 8W8, Canada
- If any dispute relating to this Agreement between the Seller and the Buyer is not resolved through informal discussion within 14 days from the date a dispute arises, the Parties agree to submit the issue before an arbitrator. The decision of the arbitrator will be binding on the Parties. Any arbitrator must be a neutral party acceptable to both the Seller and the Buyer. The cost of any arbitration will be paid by the Buyer.
- Headings are inserted for the convenience only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine mean and include the feminine and vice versa.
- All representations and warranties of the Seller contained in this Agreement will survive the closing of this Agreement.
- This Agreement will survive this transaction and will apply to any future sale of these specific Goods by the Seller to the Buyer unless both Parties agree to another agreement, in writing. This Agreement shall not apply to any other agreement in place between the Buyer and Seller.
- Either party to this Agreement may assign its rights under this Agreement, but the assignment will not change the duty of either party, increase the burden or risk involved, or impair the chances of obtaining the performance of the Agreement. However, no obligation for performance imposed on either party by this Agreement may be delegated to any other person without the prior written consent of the other party. Each party has a substantial interest in having the other party perform or control the acts required by this Agreement.
- This Agreement cannot be modified in any way except in writing signed by all the Parties to this Agreement.
- This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the Seller and the Buyer hereby attorn to the jurisdiction of the Courts of the Province of Ontario
- If any clause of this Agreement is held unconscionable by any court of competent jurisdiction, arbitration panel or other official finder of fact, the clause will be deleted from this Agreement and the balance of this Agreement will remain in full force and effect.
- This Agreement will enure to the benefit of and be binding upon the Seller and the Buyer and their respective successors and assigns.
- This Agreement may be executed in counterparts. Facsimile and electronic signatures are binding and are considered to be original signatures.
- Time is of the essence in this Agreement.
- This Agreement constitutes the entire agreement between the Parties and there are no further items or provisions, either oral or otherwise. The Buyer acknowledges that it has not relied upon any representations of the Seller as to prospective performance of the Goods, but has relied upon its own inspection and investigation of the subject matter.