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Terms and conditions of sales and return

These terms and conditions (the “Terms”) govern direct sales and returns of prescription and over-the-counter pharmaceutical products (“Products”) sold in Canada by SERVIER Canada Inc. (“SERVIER CANADA”) effective on October 1st, 2024, to the initial buyer (as defined below) of such Products. Any order for Products made by a buyer will constitute the buyer’s irrevocable and unconditional acceptance of these Terms and its agreement to be bound by them in connection with the purchase of such Products. Subject to specific prior agreements between SERVIER CANADA and a buyer, these Terms apply to any purchase of Products.

1. Orders 

1.1 Any Product order must be sent to Logistics Support Unit Inc. (“LSU”) by electronic transfer when implemented, by email (servier@lsu3pl.caa) or by fax (1-844-552-8085). SERVIER CANADA Products are sold only to authorized buyers from SERVIER CANADA, including, but not limited to, retail pharmacies, wholesalers, distribution chains, hospitals, pharmacies, government, qualified physicians, medical clinics and nurse practitioners, who hold a valid license to possess or handle such Products and who fully comply with applicable laws and regulations (collectively, a “Buyer” or “Buyers”).

1.2 It is the responsibility of the Buyers to maintain an adequate financial situation to the satisfaction of SERVIER CANADA and to substantiate such situation with financial statements or other documents that SERVIER CANADA may request from time to time. SERVIER CANADA reserves the right to deny credit terms to any Buyer who, in the sole opinion of SERVIER CANADA, has not disclosed or refuses to disclose appropriate information including, without limitation, its audited financial statements.

1.3 SERVIER CANADA has the right, prior to processing or shipping an order, to require advance cash payment, security or proof of financial viability satisfactory to SERVIER CANADA. SERVIER CANADA reserves the right to withhold orders from Buyers who are in arrears until all dues are settled to SERVIER CANADA’s satisfaction. The recourses provided herein are in addition to and not in substitution for any other rights or recourses at law.All orders placed with SERVIER CANADA by the Buyer are subject to approval by SERVIER CANADA. SERVIER CANADA has the sole discretion to refuse any order. The obligation of SERVIER CANADA to supply any product is at all times subject to the condition that SERVIER CANADA be able to manufacture or obtain a sufficient quantity of such product. The fact that an order has been partially filled does not require SERVIER CANADA to fill the remainder of the order. SERVIER CANADA assumes no liability for any delay in delivery or for any impediment, inability, refusal or failure to supply any Product regardless of the circumstances.

1.4 For all orders of Products placed by a Buyer, including but not limited to a wholesaler and distributor for pharmacy chains, SERVIER CANADA reserves the right to (i) sell and ship the Products by complete case or by multiples of that unit, and (ii) group orders.

2. Delivery, title or ownership and risk of loss

2.1 Unless an agreement is made by SERVIER CANADA and a Buyer, SERVIER CANADA will determine in its sole discretion the time, route and carrier for all Product deliveries.

2.2 For any order valued at C $5,000.00 or more, SERVIER CANADA will pay transportation costs, except those resulting from a return of Products, a special routing route requested by the Buyer or special transportation conditions. SERVIER CANADA reserves the right to charge an additional delivery charge of $50 for any order valued below C $5,000.00. If special delivery services are requested by the Buyer or required, the difference between ordinary SERVIER CANADA transportation charges and special delivery charges may be added to the Buyer’s invoice.

2.3 The Products’ title of ownership will transfer to the Buyer upon delivery to the carrier at the shipping point.

2.4 SERVIER CANADA will assume the risk of loss, insufficiency, damage or leakage of the Products until they have been delivered by the carrier to the Buyer’s place of receipt unless:

2.4.1 The Buyer has arranged transportation of the Products from the shipping location; or

2.4.2 The Buyer has instructed SERVIER CANADA’s carrier to postpone final delivery to the destination and/or to postpone unloading of the products at the Buyer’s location.

3. Price and taxes

3. 1 The Products will be billed at the price applicable on the order date. Prices may change without notice. No price adjustment will be made for Products delivered to the Buyer or in the course of delivery due to a change in price unless written notice is received from SERVIER CANADA at the time of the price change.

3.2 Prices do not include federal, provincial or other governmental taxes on the sale, purchase, manufacture, delivery, storage, processing or use of any product. The Buyer will be solely responsible for amounts relating to sales taxes that SERVIER CANADA may be required to pay or collect under current or future legislation, which amounts will be charged to the Buyer’s account and added to the invoice.

4. Payment

4. 1 All payments for Products are due thirty (30) days after the billing date.

4.2 Full payment must be sent electronically as indicated on the SERVIER CANADA invoice within the prescribed time. Payment is acknowledged when deposited into SERVIER CANADA’s bank account.

4.3 No deduction, including but not limited to administration fees or early payment discounts, may be applied by the Buyer in respect to its payments and no right of compensation or cross demand is permitted.

4.4 SERVIER CANADA reserves the right to charge an amount equal to 1.5% per month (18% per year) of the unpaid amount calculated from the day payment is due to the day full payment is received by SERVIER CANADA. This interest rate may be changed without notice at prevailing rates.

5. Buyer’s claims

5.1 It is the responsibility of the Buyer to report by email incorrectly delivered Products or Products damaged during delivery to SERVIER CANADA within ten (10) business days following the date of delivery to servier@lsu3pl.ca. The Buyer must also indicate the damage immediately visible on the carrier’s bill of lading before signing it. SERVIER CANADA will not be liable for any claim by the Buyer for the delivery of incorrect Products or Products damaged during delivery if the Buyer fails to strictly comply with the foregoing. Under no circumstances may the Products be given to the carrier or a third party for reuse or resale.

6. Limitation of liability

6.1 SERVIER CANADA’s liability with respect to any order shall be limited to the amount invoiced for such order, whether paid or payable, for Products sold and delivered. SERVIER CANADA shall not be liable for any indirect, consequential, incidental or special damages, exemplary or punitive damages, or similar damages or losses of any kind, including, without limitation, any loss of customers, sales or profits, whether arising from a breach of contract, a warranty, civil liability, tort, quasi tort, strict liability, objective liability or otherwise, even if SERVIER CANADA has been advised of the possibility of such damages or losses or if the damages or losses could have been reasonably foreseen.

7. Warranty

7.1 SERVIER CANADA represents that the Products delivered (i) meet the product specifications and (ii) have been manufactured in facilities authorized by Health Canada and in accordance with current good manufacturing practices and applicable laws. SERVIER CANADA hereby excludes all other warranties, express or implied, arising out of any law, business practice, commercial usage or otherwise, including, without limitation, warranties of merchantability or fitness for a particular purpose.

8. Return policy

8.1 Crediable Returns Policy

8.1.1 General conditions – Returns Eligible for Credit

SERVIER CANADA’s creditable returns policy applies only to eligible Products (as defined in paragraph 8.1.2 and under the following conditions:

  1. All returns must be made in accordance with this return policy eligible for credit and comply with applicable laws and regulations;
  2. All returns must be accompanied by a document indicating the name and address of the Buyer, the name and quantity of the returned Products, price, lot number, expiry date and the reason for return;
  3. SERVIER CANADA representatives are not authorized to collect returned Products from the Buyer. All Products must be returned, in the same condition as when received, prepaid to SERVIER CANADA at the following address: LSU, 1375 Newton, Boucherville (Quebec), J4B 5H2;
  4. The Buyer continues to assume ownership and responsibility for returned Products until they are received and accepted by SERVIER CANADA or its service provider;
  5. Credits for returned Products are issued in the form of credit notes only, in accordance with paragraph 8.1.4;
  6. SERVIER CANADA will destroy all returned Products without exception, whether or not a credit is issued;
  7. The Buyer is required to ensure that defective, damaged or expired Products not returned to SERVIER CANADA under these terms and conditions will be properly and safely destroyed. SERVIER CANADA may, in its sole discretion, require proof of destruction of the Products.

8.1.2 Eligible Products

Subject to the conditions of paragraph 8.1.1 above, SERVIER CANADA will accept the following returned Products for credit provided they (i) are in their original container and original SERVIER CANADA packaging and (ii) were purchased directly from SERVIER CANADA or its authorized service provider:

  1. Products that have expired within the last six (6) months;
  2. Products that are subject to recall; and
  3. Products with a manufacturing defect, if returned within three (3) months of knowledge of the defect.

(Collectively, “Eligible Products”)

8.1.3 Ineligible Products

Notwithstanding any other provision hereof, the following Products ARE NOT eligible for the Creditable Returns Policy:

  1. all ONCOLOGY SERVIER CANADA Products;
  2. Product samples;
  3. Products that SERVIER CANADA, in its sole discretion, has determined have been repackaged, relabelled, reconditioned, damaged or otherwise altered;
  4. Returned Products that are in deteriorated condition (for example, poor storage, exposure to inadequate temperature, water, fire, smoke, etc.);
  5. Products purchased from an intermediary other than the manufacturer or wholesaler;
  6. Products that were purchased on non-returnable terms;
  7. Products that were ordered by mistake;
  8. Products illegally imported into Canada, counterfeited Products and/or diverted Products;
  9. Products with missing, illegible or masked lot numbers and/or expiration dates on the original container; or
  10. Products that are not expired, except those specified in subparagraph 8.1.2(ii).

8.1.4 Value of Credit Note

  1. Eligible Products returned under the Creditable Returns Policy will be credited equal to 100% of the purchase price.

8.2 Policy on Returns for Disposal and Destruction

Products that are not eligible for a creditable return under subsection 8.1 may be returned to SERVIER CANADA for disposal and destruction only, provided that the Products are returned prepaid to the following address with a label clearly indicating “FOR DESTRUCTION ONLY”: SERVIER CANADA FOR DESTRUCTION ONLY, c/o LSU, 1375 Newton, Boucherville (Quebec), J4B 5H2.

9. Usage, storage and transport

9.1 All Products must be used, stored and transported in accordance with the precise conditions set out in their respective monographs. Temperature-sensitive Products must be handled and stored by the Buyer in such a way as to ensure that they are kept at the temperatures stipulated in their respective monographs.

9.2 The Buyer is fully responsible for ensuring that it has the facilities necessary to properly store, handle and distribute all Products ordered. The Buyer must comply fully with applicable laws and regulations and take all necessary steps to prevent Products from falling into the hands of third parties who cannot lawfully possess or handle such Products. The Buyer declares and warrants that it will not store counterfeit, diverted, illegally imported into Canada, expired or used, opened, repackaged or otherwise altered Products.

9.3 The Buyer agrees not to destroy, remove or alter, in any manner whatsoever, SERVIER CANADA’s trademarks and other ownership rights, intellectual property rights notices, markings and legends on Products.

9.4 Unless SERVIER CANADA otherwise agrees in writing, the Products may not be resold or given, for reuse or otherwise, by the Buyer to a third party.

10. Quality and compliance

10.1 Buyers agree to comply with all applicable federal, provincial, territorial and local laws and regulations relating to the storage, shipping and distribution of pharmaceutical products, including, but not limited to, the Food and Drugs Act, the Food and Drug Regulations and Health Canada’s Good Manufacturing Practices (GMP), as well as other policies and guidelines, and applicable laws and regulations relating to fraud, abuse, privacy, prohibition of bribes or other restrictions on commercial practices.

10.2 Without limiting the generality of the foregoing, the Buyer confirms that it holds (and shall be solely responsible, at its own expense, for acquiring and maintaining) all permits and licenses required by federal, provincial/territorial and/or local authorities with respect to the storage, shipping and distribution of the Products.

10.3 The Buyer shall immediately inform SERVIER CANADA of any problem or action which it believes may affect its ability to store or distribute the product.

11. No export or transshipment for export

11.1 Products purchased from SERVIER CANADA are approved by Health Canada, may be sold and resold in Canada only and CANNOT BE EXPORTED. No license, express or implied, is granted to these Products pursuant to intellectual property rights under the laws of the United States or any other country outside of Canada. A Buyer of a SERVIER CANADA Product shall not, directly or indirectly, by any means or arrangement:

  1. export a Product from Canada to another jurisdiction;
  2. offer for sale, resell, consign or otherwise distribute any Product intended for export from Canada to any other jurisdiction; or
  3. offer for sale, resell or consign or otherwise distribute a Product to another person or entity (“Other Reseller”) that the Buyer knows or suspects, or reasonably should know or suspect, that he will:
  1. export the Product from Canada to another territory;
  2. offer for sale, resale, consignment or otherwise distribute to any person or entity that the Other Reseller knows or suspects or reasonably should know or suspect that he will export the Products from Canada to another jurisdiction.

12. Interprovincial transfer of products

12.1 A Buyer who is an authorized wholesaler, distributor or Other Reseller of Products and who operates directly or indirectly in more than one province or territory in Canada shall, within thirty (30) days after the end of each month, file a report with SERVIER CANADA detailing (i) the quantity and gross selling price of each Product sold by such Buyer during such month on a province/territory by province/territory basis, (ii) the quantity and price of each Product sold by such the Buyer during such month in a province or territory which differs from the province or territory in which the Product was purchased by such Buyer (the “Interprovincial Product”), and (iii) any other information as SERVIER CANADA may reasonably request to confirm the point of purchase and point of sale of each Product purchased and sold by such Buyer (a “Monthly Report”).

12.2 A Buyer may (i) be entitled to a refund for the difference between the purchase price of the Product in a province and the current selling price of the Product in the province where such Product is actually sold or (ii) be required to reimburse SERVIER CANADA in the form of a credit payable for the difference between the current price of a Product in the province of sale of such Product and the price paid for such Product in the province of purchase if:

12.2.1 the purchase price paid by such Buyer to SERVIER CANADA for an interprovincial Product exceeds the current price of such interprovincial Product in the province of sale, then SERVIER CANADA shall refund such excess to the Buyer within thirty (30) days of receiving such report;

12.2.2 the current price of an interprovincial Product for that month exceeds the purchase price paid by such Buyer to SERVIER CANADA for such interprovincial Product, then the Buyer shall pay to SERVIER CANADA the excess in the form of price credit for such interprovincial Product within thirty (30) days of the end of the month in question.

12.3 For the foregoing principles, the point of purchase of each Product shall be the shipping destination specified to SERVIER CANADA for the delivery by SERVIER CANADA of such Product, and the point of sale of such Product shall be the location at which the Buyer’s third party customer purchases such Product.

12.4 In the event that such Buyer fails to make timely payment of a Monthly Report or mandatory credit payment under the preceding provisions of Section 12, then in addition to any other right or recourse available to SERVIER CANADA, SERVIER CANADA may, in its sole discretion, refuse to deliver Products to certain locations.

12.5 SERVIER CANADA may, upon reasonable notice to Buyer, conduct an audit with its own personnel or hire an independent auditing firm to conduct an audit of such Buyer’s books and records for the purpose of confirming the point of purchase of each Product and the point of sale and price of each Product purchased and sold by such Buyer, and such Buyer shall use its best efforts to assist in conducting such audit.

13. Non-Compliance with terms

13.1 If the Buyer fails to comply with these Terms, or if SERVIER CANADA has reasonable grounds to believe that a Buyer is not complying or intends to not comply with these Terms, SERVIER CANADA may, in its sole discretion, (i) limit, suspend or refuse, in whole or in part, any future sales to such Buyer and its affiliates, (ii) suspend any credit agreement extended to such Buyer and its affiliates, (iii) if the Buyer purchases the Products from SERVIER CANADA’s authorized distributors, suspend or refuse its approval of the sale of its Products by such authorized distributors of SERVIER CANADA, or (iv) pursue any other legal remedy available, including, without limitation, damages.

14. Anti-corruption

14.1 For the purposes of this provision, the following terms have the following meanings:

14.1.1 “Anti-corruption laws” means all laws, rules, regulations and other legally binding measures relating to the prevention and prohibition of bribes, corruption, influence peddling, money laundering, fraud or similar practices, including, in particular, the French penal code and the French Sapin II law on transparency, the prevention of corruption and the modernization of economic life, as well as, where applicable, the US Foreign Corrupt Practices Act (FCPA) and the UK Anti-Bribery Act, and any other laws applicable to the contract, as amended from time to time.

14.1.2 “Benefits” means any financial or other benefit, payment, gift, promise or transfer of anything of value.

14.1.3 “Government Representative” means (a) any official, employee, director, principal, consultant, agent or representative, appointed or elected, of a government (central, federal, of State or provincial) department, body, agency, instrument or part thereof, a public international organization or a state-owned or state-controlled entity, agency, hospital or company or a joint venture/partnership (including a partner or shareholder of such an enterprise); and (b) any person acting for or on behalf of: (i) any government, ministry, body, department, local authority, jurisdiction, agency, instrument or part thereof; or (ii) any public international organization; or (iii) any political party or political party leader or candidate for office and, (c) persons qualified to prescribe, recommend, administer or supply pharmaceutical products, when employed in public hospitals or institutions.

14.2 The Buyer declares, warrants and undertakes to comply with applicable Anti-Corruption Laws and in particular: (a) will not offer or provide any benefit of any kind, directly or indirectly, to any natural or legal person, public or private (including, but not limited to, any Government Representative) for the purpose of doing or refraining from doing any act in violation of applicable Anti-Corruption Laws; (b) will not solicit or request any benefit of any kind, directly or indirectly, for the purpose of doing or refraining from doing any act in violation of applicable Anti-Corruption Laws.

14.3 The Buyer declares that it is aware of the SERVIER CANADA code of conduct and undertakes to comply with it.

14.4 The Buyer undertakes to immediately notify SERVIER CANADA of (i) any violation of this provision and (ii) any claim, investigation or proceeding against it regarding any violation of Anti-Corruption Laws.

14.5 Without prejudice to any other express recourse mentioned elsewhere in these Terms or to any available right or recourse, SERVIER CANADA has the right to suspend or terminate any other business relationship between the parties in the event of a violation of this provision by the Buyer, with immediate effect.

15. Confidentiality

15.1 All information disclosed by SERVIER CANADA to the Buyer concerning the Products, business, operations or activities of SERVIER CANADA, including, without limitation, all commercial and technical information concerning the Products (the “Confidential Information”), is confidential. The content and conditions of these Terms and all information and documents relating to the Confidential Information of the Products shall remain confidential and shall not be disclosed without the written consent of the parties, unless such information is otherwise publicly available, provided that disclosure may be made (i) to an appropriate direct successor in interest of one of the parties; (ii) to a government authority in accordance with any applicable legal requirement; (iii) to a company, entity or affiliate that controls, is controlled by, or is under the common control of either party; (iv) to accountants, tax advisors, representatives and agents, but only if such persons agree to treat such information as confidential or are otherwise required to do so, or (vi) if required by court order or law.

16. Purchase data reports

16.1 Authorized Buyers of SERVIER CANADA Products must report all sales of SERVIER CANADA Products (including past sales data) to SERVIER CANADA or to a third party designated by SERVIER CANADA, such as IQVIA. Reports shall be submitted in the format and at the intervals specified from time to time by SERVIER CANADA. Information received by SERVIER CANADA will be kept confidential and used only by SERVIER CANADA to administer its terms of commercial and sales policies, in accordance with applicable laws (including privacy laws). Default by an authorized distributor or wholesaler to provide this information could force SERVIER CANADA to suspend or refuse sales until the authorized distributor or wholesaler agrees to provide this information.

17. General Provisions

17.1 Force Majeure. SERVIER CANADA shall in no event be liable, directly or indirectly, for non-delivery, delay in performance or any other violation of its obligations under these terms and conditions caused by events beyond its control, including, without limitation, labor disputes, riots, acts of terrorism, pandemics, fires, floods, storms, disorders, hostilities, expropriation or seizing of property, failure or delay of carriers, interference by civil or military authorities, whether legal or de facto, or other cases of force majeure.

17.2 Precedence and Modifications. Each order placed by a Buyer will automatically be considered as being in compliance with and governed by these Terms, and including all the conditions of these Terms. These conditions must prevail over any additional or different conditions specified in any current or future contract, price offer, purchase order, acknowledgement of receipt, invoice, order, proposal or other document sent by the Buyer. Neither execution by SERVIER CANADA nor receipt of payment shall be deemed or construed as an acceptance by SERVIER CANADA of any additional or different terms of the Buyer unless an agreement in writing is executed by an authorized representative of SERVIER CANADA.

Notwithstanding anything to the contrary in this paragraph, SERVIER CANADA reserves the unilateral right to modify these Terms at any time in its sole discretion. Notice of amendments will only be given if SERVIER CANADA considers the amendments to be material. Notice may be sent to the Buyer by fax, email or other electronic means. Any order for SERVIER CANADA Products made after receipt of the notice shall be subject to the Amended SERVIER CANADA Terms then in force.

17.3 Assignment. The Buyer may not assign these conditions without the prior written consent of SERVIER CANADA.

17.4 No Waiver. Failure to enforce these Terms or to enforce them late shall not constitute a waiver of any such rights except in writing and the waiver of any violation shall not constitute a waiver of any future violation.

17.5 Severability. If any of the provisions of these Terms are declared invalid, or if their application is declared unenforceable, such provision shall be declared void and the remaining provisions of these Terms shall not be affected and shall remain valid and in force to the extent permitted by law.

17.6 Applicable Law and Jurisdiction. These Terms and all Products orders are subject to the laws of the Province of Quebec and shall be governed and construed in accordance with such laws, and the Buyer agrees to submit to the jurisdiction of the courts of the Province of Quebec.

17.7 Language. The parties confirm that a French version of these Terms have been provided to the Buyer and that parties wish to contract in English. In the event of any inconsistency, the English Terms will prevail if permitted by Applicable Law.

Last updated on October 15, 2024.