Sonova Canada Inc. Terms and Conditions of Sale

THESE SONOVA CANADA INC. (“SONOVA CANADA”) TERMS AND CONDITIONS OF SALE (“TERMS & CONDITIONS”) GOVERN THE SALE OF PRODUCTS PROVIDED BY SONOVA CANADA (“PRODUCTS”) TO HEARING CARE PROFESSIONALS, AND ARE NOT INTENDED FOR INDIVIDUAL CONSUMERS WHO PERSONALLY USE SONOVA PRODUCTS. CONSUMERS SHOULD PURCHASE SONOVA PRODUCTS ONLY FROM HEARING CARE PROFESSIONALS.

Sonova Canada is part of the Sonova group of companies operating around the world (collectively, “Sonova Group”). Sonova Group is a leading manufacturer of innovative hearing care solutions. Through Sonova Canada’s core business brands, Phonak and Unitron, we offer our customers one of the most comprehensive hearing product portfolios in the industry.

Sonova Canada believes the best treatment plan for individuals with hearing loss is delivered through licensed hearing care professionals. Sonova Canada reserves the right to deny the supply of hearing instruments to any party that omits the involvement of licensed professionals.

As an essential component to the highest patient satisfaction with hearing technology, the licensed professional provides patients counseling, technology selection, professional fitting and verification of operation and benefit of our technology. Hearing instruments sold via the internet, catalog or mail order without the involvement of a licensed professional may provide suboptimal benefit.

While Sonova Canada provides technical product training and marketing support, the care and treatment of Your Customers remains exclusively your responsibility. Whether a hearing instrument is appropriate, and which hearing instrument is appropriate for a client, is based upon your professional clinical judgment. You are responsible for ensuring that you and your employees and agents maintain all necessary and required professional licenses and certifications required for fitting, dispensing and marketing hearing instruments in your state and community. Sonova Canada reserves the right to deny the supply of hearing instruments to any party that we believe has violated these mandates, or has engaged in activities that may compromise the best interest of the hearing-impaired consumer.

Fitting of Products without face-to-face consultation (or a telehealth consultation provided in accordance with applicable Provincial and federal law) with a licensed medical professional, audiologist or fitter shall void the Original Manufacturer’s Warranties unless authorized in writing by Sonova Canada. Resale without Sonova Canada approval to an entity that Sonova Canada reasonably believes does not require a face-to-face consultation and fitting shall constitute a material breach of these Terms & Conditions and also shall void the Original Manufacturer’s Warranties.

You must strictly comply with all use restrictions with respect to a Product that may be set forth in these Terms & Conditions or in any Sonova Canada catalogue or website, on the Product, in any documentation or label accompanying the Product or otherwise provided in writing to any user of the Product (each a “Use Restriction”). Without limiting the foregoing, Use Restrictions include your agreement to comply with all policies and terms of use on this website, and all applicable Provincial and federal laws and regulations including, without limitation, those applicable to the sale, resale and distribution of hearing devices.

Standard payment terms are net 30 days from invoice date. Sonova Canada will assess a 1.5% interest charge per month or the highest rate permissible under applicable law, on all past due balances. In addition, you shall reimburse Sonova Canada for all costs incurred in collecting any late payments, including, without limitation, legal fees and costs. In addition to all other remedies available under these Terms & Conditions or at law (which Sonova Canada does not waive by the exercise of any rights hereunder), we also may withhold shipment of new and pending orders until payment of all outstanding sums is made in full. Payment by Visa or Master Card is possible under the following conditions:

• Your signature is on file with us and we have written permission to charge the month’s transactions to your credit card.
• You have an adequate credit line to pay the complete Sonova Canada monthly billing.
• You will have 7 days from statement date to notify our credit department if there are discrepancies in the billing and to alter the amount charged to your credit card. Credit card charges may only be used on current transactions (within terms). Credit cards may not be used on past due balances.
• A completed credit application is required to establish a line of credit with Sonova Canada. Instruments can be purchased via “Cash With Order” or “Cash On Delivery” until an application is received and approved. If an account exceeds their established credit line amount or the past due balance exceeds 60 days, Products may be shipped C.O.D., unless additional credit is established or special arrangements are made with our credit department. Returned C.O.D.s and returned checks are subject to a $50 administration fee.

A shipping charge per order will be assessed for standard shipping to cover shipping, handling and administrative costs. These charges are non-refundable and will not be credited on hearing instruments returned for credit. Expedited shipping may be requested and will be billed on your invoice. An additional charge may also be assessed on expedited shipments to cover further handling and administrative costs. Charges associated with expedited shipping are non-refundable and will not be credited on items that are returned.

As a service to you, Sonova Canada’s standard mode of shipment is ICS Courier (FOB-Shipping Point).

Please note that shipping of devices containing lithium batteries may require special labeling, as required by Provincial or federal law.

All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by you. You shall be solely responsible for all such charges, costs and taxes; provided, however, that Sonova Canada may (at its election) prepay on your behalf and add to the invoice any and all such taxes, duties and charges, which you agree to pay.

Sonova Canada reserves the right at any time to introduce new Products, discontinue the  manufacture of any Products and make changes in the design or construction of any Products without incurring any obligation or liability whatsoever to you.

Sonova Canada’s list prices are subject to change at any time without notice.

All orders are subject to Sonova Canada’s approval and are not accepted until acknowledged in writing or the Products described in the order are shipped. Orders shall be shipped to your business location(s) as you direct Sonova Canada, in writing. In the event that Sonova Canada does not have sufficient quantity of the ordered Products on hand to meet its orders, Sonova Canada may accept or decline such orders in such quantities as it determines in its sole discretion.

Sonova Canada extends the warranties set forth in the Phonak Price and Reference Guide and/or in the Unitron Price and Reference Guide (“Product Catalogues”) as applicable to the Products purchased hereunder, which warranties may include but are not necessarily limited to original product warranty, service warranty and/or extended warranty (collectively, the “Original Manufacturer’s Warranties”).

Warranty Coverage. The Original Manufacturer’s Warranties are given by Sonova Canada only to the original end user, patient, or client, as the case may be (“Your Customer(s)”). Other than the Original Manufacturer’s Warranties, Sonova Canada provides to you no other warranties of any kind, whether express or implied. Any additional representation, promise or warranty you make is your sole obligation and will not be binding upon Sonova Canada or any of its affiliates. You agree to indemnify, defend and hold Sonova Canada and its affiliates harmless from and against any representation, promise, claim or warranty that you make that is asserted against us by any third party (other than in respect of the Original Manufacturer’s Warranties).

Limitations and Exclusions of Original Manufacturer’s Warranties.  In addition to any exclusions set out in the Product Catalogues, the Original Manufacturer’s Warranties shall be deemed null and void if:

• the product is imported into Canada by an entity other than Sonova Canada;
• the product has been refurbished; or
• the product has been removed from its original packaging before being sold to your Customer.

Notification and Remedy. Your Customers should report all requests for Original Manufacturer’s Warranty coverage directly to you. In turn, we ask that you promptly notify us. Please note that the Original Manufacturer’s Warranties do not cover misuse, abuse, or improper handling or storage either by you or Your Customer. When a client requests warranty coverage, we ask that you inspect the device and ask Your Customer to describe the problem experienced in detail. This will assist us if there are any questions concerning the warranty claim and also provide us with useful information about Products.

Your Representations to Sonova Canada. You represent and warrant that: (1) you are appropriately licensed to sell and distribute Products; (2) you are authorized to enter into these Terms & Conditions with us; and (3) you will conduct and perform your obligations under these Terms & Conditions consistent with all applicable federal, Provincial, and local laws and regulations, and industry standards, rules and regulations, and good commercial practices.

Disclaimer. THE ORIGINAL MANUFACTURER’S WARRANTIES ARE SONOVA CANADA’S SOLE AND EXCLUSIVE WARRANTIES, CONDITIONS AND GUARANTIES AND ARE SUBJECT TO THE LIMITS OF LIABILITY BELOW. SONOVA CANADA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO SONOVA CANADA PRODUCTS SOLD TO YOU, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, APPLICATION OR USE.

Remedies. PURCHASER’S SOLE AND EXCLUSIVE REMEDY ARE LIMITED, AT SONOVA CANADA'S DISCRETION, TO REPAIR OR REPLACEMENT OF THE PRODUCT, OR ITS NON-CONFORMING PARTS, WITHIN A REASONABLE TIME PERIOD, OR REFUND OF ALL OR PART OF THE PURCHASE PRICE.

Limitation of Liability. THE MAXIMUM AGGREGATE LIABILITY OF SONOVA CANADA IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH ANY PRODUCT, WHETHER IN CONTRACT, TORT, INDEMNITY, BREACH OF WARRANTY OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE PURCHASE PRICE PAID TO SONOVA CANADAFOR THE DEFECTIVE PRODUCT.IN NO EVENT, WHETHER IN CONTRACT, INDEMNITY, BREACH OF WARRANTY, NEGLIGENCE OR OTHERWISE, WILL SONOVA CANADA BE LIABLE TO YOU OR TO A USER OF THE PRODUCTS FOR LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF USE, CONSEQUENTIAL, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, PECUNIARY OR FOR ANY OTHER LOSS OR COST OF ANY SIMILAR KIND.

NOTICE OF ANY CLAIMS CONCERNING THE PRODUCTS MUST BE MADE IN WRITING AND FURNISHED BY YOU TO SONOVA CANADA PROMPTLY UPON DISCOVERY AND IN NO EVENT LATER THAN THE END DATE OF THE APPLICABLE WARRANTY. IN NO EVENT MAY ANY ACTION OR PROCEEDING CONCERNING THE PRODUCTS, OTHER THAN A WARRANTY CLAIM DURING THE APPLICABLE TERM OF THE ORIGINAL MANUFACTURER’S WARRANTY, BE FILED MORE THAN ONE YEAR AFTER DELIVERY OF THE PRODUCTS CLAIMED TO BE DEFECTIVE OR UNSUITABLE OR, IN THE CASE OF OTHER CLAIMS CONCERNING THESE TERMS AND CONDITIONS, MORE THAN ONE YEAR AFTER SUCH CLAIM AROSE. If you fail to give Sonova Canada notice as required by this provision within the specified period, you will thereafter be barred from asserting the claim for which notice was required.

Extended new product warranties can be purchased at any time during the instrument’s coverage under the Sonova Canada Original Manufacturer’s Warranties, which extension shall be deemed to be part of the Sonova Canada Original Manufacturer’s Warranties.

The resale of Sonova Canada hearing instruments to persons or entities other than Your Customers without Sonova Canada’s prior written consent is prohibited. Upon resale without the foregoing consent, the Original Manufacturer’s Warranties for the Product shall be deemed null and void. Such resale without consent shall constitute a material breach of these Terms & Conditions.

The Product Catalogues specify the applicable return policy for each Product. The Product Catalogues specify any restocking fee that applies to Products returned after the specified right-of-return period and periods after which returns will not be accepted. Certain promotional activities may restrict the right-of-return.

The Product Catalogues specify the service and repair policies applicable to various Products.

Products shall be handled and stored only in accordance with Product labeling; failure to do so may void Product warranty. Upon request and reasonable prior notice, Sonova Canada may inspect inventory to ensure compliance with any such requirements.

You agree to indemnify and hold harmless Sonova Canada, and its shareholders, partners, affiliates, directors, officers, subsidiaries, employees, agents, suppliers, third party information providers, licensors, licensees, distributors, and contractors from and against any and all liabilities, expenses, damages and costs, including reasonable legal fees and costs, arising from any violation by you of these Terms & Conditions or your use of any Products.

These Terms & Conditions shall be governed in all respects by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to its conflicts of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.  You hereby consent to the exclusive jurisdiction of the state and federal courts located in or near Mississauga, Ontario with respect to any claims action arising in connection with these Terms & Conditions.

You acknowledge having received a French version of these Terms & Conditions, and declare having requested subsequently that these Terms & Conditions, and all related documents and communications, be in the English language. Les parties aux présentes reconnaissent avoir reçu une version française de ces Modalités et conditions, déclarent qu’elles ont exigé par la suite que les présentes Modalités et conditions, ainsi que tous les documents s’y rattachant, soient rédigés en anglais.

Canadian export control laws regulate the sale, import, export and re-export of technology originating in the Canada. This includes the electronic transmission of information and software to foreign countries and to certain foreign nationals. You agree to abide by these laws and their regulations — including but not limited to the Export and Imports Permits Act — and not to transfer, by electronic transmission or otherwise, any content derived from any Sonova Canada Products or services.

All amendments and updates to these Terms & Conditions are effective immediately upon notice, which we may give by any means, including but not limited to, by posting notice of the revision(s) and/or the revised Terms & Conditions on this (“Website”) homepage. Sonova Canada may at any time revise these Terms & Conditions by updating this posting. Such modified Terms & Conditions will be binding on you with respect to each purchase you make after the posting of such modified Terms & Conditions. Each purchase you make from Sonova Canada shall be your confirmation of, and your agreement to, these Terms & Conditions.

Other than any supply agreement or other similar agreement negotiated and signed by you and Sonova Canada (“Negotiated Agreement”) these Terms & Conditions constitute the entire agreement between you and Sonova Canada pertaining to the purchase of Products by you from Sonova Canada, and supersedes all prior and contemporaneous agreements and representations. To the extent of any conflict between a Negotiated Agreement and these Terms & Conditions, the terms of such Negotiated Agreement shall control. Other than a Negotiated Agreement, no preprinted terms of any purchase order or similar instrument, nor any modification, amendment, or waiver of these Terms & Conditions, will be binding unless executed in writing by Sonova Canada and you. The failure of either party to enforce any provision of these Terms & Conditions will not be construed as a waiver of the right of such party to enforce a provision, nor will any waiver constitute a continuing waiver.

If any provision of these Terms & Conditions is held invalid, illegal or unenforceable, the remaining provisions will not in any way be affected or impaired.  A court may modify the invalid, illegal or unenforceable provision to reflect, as closely as possible, the parties’ original intent.

You may periodically execute documents or agreements with us electronically either by providing an electronic signature, by selecting a box in the absence of a signature, or selecting “Submit Form.” By so doing, you acknowledge and agree that you are electronically signing the document and submitting it to Sonova Canada. Furthermore, you agree that your electronic signature is the legal equivalent of your actual signature on the document, and that Sonova is relying upon the signature as your agreement to the terms of the document. In addition, you represent that the information that you provide is true and accurate and that Sonova will rely upon the information that you provide. Finally by electronically signing a document, you agree to be legally bound by its terms and conditions and further represent and warrant that, to the extent applicable, you have the authority to bind the company assigned the specified account numbers to the terms and conditions of such documents.

Non-performance by Sonova Canada of any obligation hereunder shall be excused to the extent that performance is rendered impossible due to acts of God, acts of terrorism, strikes, fires, floods, pandemics, governmental acts or orders or restrictions or any other reason where failure to perform is beyond the control of, and not caused by the negligence of, Sonova Canada.