MEDTRONIC OF CANADA

STANDARD TERMS AND CONDITIONS OF SALE

PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE.

1.        Entire Agreement.           This Agreement contains the terms and conditions that apply to your purchase from Medtronic of Canada Ltd. (“Medtronic”), a Canadian Corporation, that will be provided to you ("Customer") on orders for products (“Products”) and/or services sold in Canada. Medtronic’s acceptance of Customer’s order is expressly made conditional on these terms and conditions of sale and they constitute the complete agreement between the parties (the “Agreement”). By accepting delivery of any portion of the products and/or services described on the invoice, Customer agrees to be bound by and accepts these terms and conditions. Inconsistent or additional terms or conditions in any offer or other writing by Customer (in whatever form or whether preceding or succeeding the order date) shall not constitute terms and conditions of purchase and sale between Medtronic and Customer, and Medtronic expressly rejects and does not accept them.

2.        Quantities.       All orders must be for boxed quantities only.

3.        Prices and Taxes.           Prices are established by regular price lists from Medtronic. New orders and order changes will be subject to the Product price list in effect at the time of new order or order change. Product price lists are subject to change without notice. Unless otherwise stated prices are in Canadian funds and are subject to delivery terms stated herein. They do not include federal, provincial, local or any other taxes.

4.        Payment.         Any order received by Medtronic is subject to credit approval and may be cancelled if the Customer’s credit standing is not satisfactory to Medtronic. Customer hereby authorizes Medtronic to request and obtain Customer’s credit report from credit reporting agencies and authorizes such credit reporting agencies to disclose it to Medtronic for the purpose of completing Customer’s order. Upon approval of credit, payment of the full invoiced amount is due on delivery. Any payment not made within 30 days of its due date shall bear interest at the rate of one percent (1%) per month (12% per annum), and shall be calculated and due on a monthly basis. Medtronic reserves the right to stop shipments in the event of non-payment of a shipment, until all amounts due have been paid in full.

5.        Title, Delivery, Freight.     Title to products passes from Medtronic to Customer on shipment from Medtronic's facility. If applicable, separate charges for shipping and handling will be shown on the invoice(s). All goods will be shipped CPT (Destination) (INCOTERMS 2000). Products will be delivered to the address indicated on Customer’s Medtronic account.

6.        Damaged Shipments.          Note the extent of the damage on the delivery receipt. Request the carrier to inspect the damaged items as well as the container upon receipt and unpacking. Notify Medtronic within (5) business days of receipt of Products.

7.        Shipping Variances.            Notify Medtronic if you receive a Product that you have not ordered, or if there are missing items from in your shipment (each case a “variance”). Medtronic will not be responsible for variances unless notification is received within 24 hours after the shipment has been delivered.

8.        Glucose Sensors.           Due to the chemical nature of the Glucose sensors, special care and handling is required. Sensors have a short “shelf-life” so please make note of the following:

·          Sensors must be stored in a refrigerated environment so refrigerate immediately upon receipt unless labeled otherwise.

·          The integrity of the sensors remains intact for 48 hours when they have left our shipping docks. Please ensure someone is available to receive the order promptly or you will need to make arrangements for immediate pick-up at Medtronic’s depot.

·          Contact Medtronic if you receive the sensors with a blue/black “Heat/Freeze” indicator. This means that the Product has spoiled during delivery and replacement is necessary.

9.        Software.        All software is provided subject to the license agreement that is part of the package. Customer agrees that it will be bound by the license agreement once the package is opened or its seal is broken. Medtronic does not warrant any software under this Agreement. Warranties, if any, for the software are contained in the license agreement that governs its purchase and use.

10.     Returned Products.

10.1.                Authorization must be obtained from Medtronic’s Customer Service or Order Desk before the return of any Products. A Returned Goods Authorization (“RGA”) number must be clearly identified on the external packaging of any returned Product. Returned Product must be in the original packaging and packed in a second container (external packaging). Information required for an RGA number includes the product catalog number and quantity of Product to be returned, the reason for the return, the customer account number, the Medtronic invoice number, and the date of invoice. Shipping charges on all returned Product must be prepaid, unless Product is returned for service, repair or replacement under warranty.

10.2 Credit schedule for returned Product.

a)     Product shipped in error by Medtronic will be fully credited.

b)     Otherwise, Product returned within 90 days of invoice date in “saleable condition” will be subject to a 15% reprocessing fee that will be deducted from your return credit. “Saleable condition” refers to the condition of the package when received at Medtronic. It must be received at the Medtronic warehouse in its original condition for resale (i.e. no damage and/or markings on box). Boxed Products must be shipped in another box to avoid defacement during shipping.

c)     Product not eligible for return will not be credited. This includes:

·          Product returned without an RGA number.

·          Product returned more than 90 days after invoice date.

·          Product opened or used.

·          Product past expiration date.

11.     Warranty.            Medtronic warrants its Products in accordance with the written product warranty enclosed with each product, which sets forth the only warranty or condition applicable to such Product. To the extent permitted by applicable law, the remedies provided under such warranty shall be the Customers sole and exclusive remedies and such warranty shall be void if: (i) the Products have not been paid in accordance with the terms of their purchase and sale, (ii) the Products have been improperly stored, installed or maintained or otherwise have not been used in conformance with Medtronic’s applicable instructions or have been altered or repaired without Medtronic’s written consent; (iii) Customer fails to notify Medtronic promptly in writing of any claim under this warranty; or (iv) Customer fails to make any Products subject of a claim promptly available for inspection and correction.

To the fullest extent permitted by law: (a) Medtronic hereby disclaims and excludes any other warranties, conditions, guarantees or representations, express or implied, including, without limitation, ANY WARRANTY OR CONDITION OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE; (b)  MEDTRONIC SHALL IN NO EVENT HAVE ANY OBLIGATION OR LIABILITY TO CUSTOMER OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF USE OR INCIDENTAL DAMAGES, NOR PUNITIVE OR EXEMPLARY DAMAGES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY of law OR FORM OF ACTION ARISING OUT OF THE PROVISION AND USE OF THE PRODUCTS CONTEMPLATED OR PROVIDED HEREUNDER, OR ANY FAILURE OR DELAY IN CONNECTION WITH ANY OF THE FOREGOING; (C) MEDTRONIC SHALL NOT BE RESPONSIBLE FOR DAMAGES CAUSED BY ACCIDENTS RESULTING FROM USE OF THE PRODUCTS and (D) TO THE FULLEST EXTENT PERMITTED BY LAW, any liability of Medtronic shall be limited to the amount paid by the Customer to Medtronic for the Products AT ISSUE IN such claim in the preceding 12 months from the date of the action giving rise to the claim. SOME PROVINCES DO NOT PERMIT THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS IN CONSUMER TRANSACTIONS. THEREFORE THE FOREGOING DISCLAIMERS MAY NOT APPLY TO Customer.

12.     Service and Support.              Medtronic will provide general service and technical support to Customers in Canada, in accordance with the then-current service and technical support policies and conditions in effect. Medtronic support personnel will attempt to handle over the telephone any problem involving Medtronic-branded products. However, Medtronic support personnel may not be able to understand or resolve any given problem. Service offerings may vary from product to product. Medtronic may provide optional services and support on selected products from time to time. If Customer purchases optional services and support, Medtronic will provide such optional service and support to Customer in Canada in accordance with the then-current terms and conditions in the optional service contract between Medtronic and Customer. Medtronic may, at its discretion, revise its general and optional service and support programs and the terms and conditions that govern them. The optional services and support programs and their terms and conditions in place at the time of purchase will apply to Customer's purchase. Medtronic has no obligation to provide service or support until Medtronic has received full payment for the product or service/support contract for which service or support is requested.

13.     Indemnification.           Customer does hereby indemnify and hold harmless and defend Medtronic against any and all claims, costs, expenses, damages and liabilities (including reasonable attorneys' fees) arising from Customer’s possession, or use of Medtronic Products (except to the extent such liability arises solely and directly from Medtronic’s negligence or willful malfeasance), the negligence or willful malfeasance of Customer in using or possessing the Medtronic Products, or any breach by Customer of its obligation arising under this Agreement.

14.     Force Majeure.            Delivery dates are approximate. Medtronic will not be liable for any loss or damage of any kind due to failure to perform or delays in its performance resulting from any cause beyond its reasonable control, including, but not limited to, acts of God, labour disputes, labour shortages, the requirements of any governmental authority, war, civil unrest, delays in manufacture, labour or transportation strikes, flood, fire earthquake, volcanic eruption, obtaining any required license or permit or Medtronic’s inability to obtain goods from its usual sources. Any such delay shall not be considered a breach of Medtronic’s obligations and the performance dates shall be extended for the length of such delays.

15.     Security Interest, Insolvency.         Customer hereby grants to Medtronic a security interest or movable hypothec in the Products and in any proceeds received by Customer on its resale of the Products to secure payment of all monies due to Medtronic by Customer from time to time under or pursuant to this Agreement or otherwise, which Customer acknowledges include without restriction purchase monies for the Products. The Customer agrees that the security interest or movable hypothec attaches immediately upon receipt of the Products by the Customer. Customer acknowledges that Medtronic may make such filings and registrations with and give such notices to such government and non-government authorities and such third parties as it deems necessary to perfect and protect its security interest or movable hypothec in the Products. In the event that Customer fails to pay any amount owing or perform any of its obligations hereunder, becomes insolvent, initiates or becomes subject to any proceedings or seeks any relief under any bankruptcy or insolvency legislation, or any receiver, receiver-manager, trustee, liquidator or custodian is appointed for Customer or any of its property, or if a distress or analogous process is levied upon the property of Customer or any part thereof, then Medtronic shall be entitled to exercise any remedies against all or part of the Products to the extent contemplated and as permitted by applicable personal property security legislation, the Civil Code of Quebec, consumer protection and other similar legislation.

16.     No Resale.       The Customer agrees and represents that that it is buying for his, her or its own personal use only, and that Products purchased hereunder will not be resold, exported or reshipped to any persons.

17.     Assignment.        Customer's rights and obligations under this Agreement shall not be assignable by Customer in whole or in part, by operation of law or otherwise, without the prior written consent of Medtronic which may be arbitrarily withheld. Any attempt by Customer to assign any rights, duties or obligations, which arise under this Agreement without such consent will be void. Medtronic reserves the right to assign its obligations and rights under this contract, in whole or in part, to the manufacturer of the Products, their parent company, an affiliate or subsidiary of the manufacturer or an affiliate or subsidiary of Medtronic.

18.     Amendments.          Medtronic may amend, revise or update these Standard Terms and Conditions of Sale from time to time. Upon receiving such notice of change, the Customer may elect to terminate this Agreement. Unless the Customer elects to terminate this Agreement by notifying Medtronic of this election in writing as provided below within 30 days of receipt of the notice of change, the Customer shall be deemed to have accepted the proposed amendment, revision or update on the later of the effective date indicated in the notice of change or 30 days after its receipt by the Customer. No other amendment, revision or update to these Standard Terms and Conditions of Sale shall be binding on the parties unless made in a written agreement signed by each party.

19.     Notices.           Any notices hereunder shall be sent (i) if by Medtronic to the Customer: at the address indicated by the Customer in relation to his, her or its account for Product orders; (ii) if to Medtronic: by mail or fax to Medtronic of Canada Ltd., 6733 Kitimat Road, Mississauga, Ontario, L5N 1W3, Canada, Attention: Order Desk (Fax Number: 1-888-208-8373).

20.     Applicable Law.          Except as prohibited by the mandatory provisions of applicable laws, THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE DEEMED TO HAVE BEEN MADE IN THE PROVINCE OF ONTARIO AND SHALL BE CONSTRUED AND INTERPRETED ACCORDING TO THE LAWS OF THE PROVINCE OF ONTARIO, WITHOUT REFERENCE TO ITS CONFLICT OF LAW RULES, AND THE APPLICABLE LAWS OF CANADA . THE PARTIES HEREBY AGREE TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE PROVINCE OF ONTARIO.

21.     Dispute Resolution, Arbitration.       Customer acknowledges that Medtronic possesses valuable confidential and proprietary information, including trade-marks and business practices, that would be damaging to Medtronic if revealed in open court. The parties further acknowledge and agree that it is preferable to resolve all disputes between them confidentially, individually, and in an expeditious and inexpensive manner. The parties accordingly acknowledge and agree that private dispute resolution is preferable to court actions. Before commencing any arbitration, the parties shall first attempt to resolve any dispute or differences between them by way of good faith negotiation. Neither party shall commence any arbitral proceedings unless and until the good faith negotiation fails. ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND INCLUDING STATUTORY, COMMON OR CIVIL LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO ARBITRATION) AGAINST MEDTRONIC , its agents, employees, officers, directors, successors, assigns or affiliates (collectively for purposes of this paragraph, "Medtronic") arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships between the parties (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Medtronic's advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION by a single arbitrator and in accordance with the rules of arbitration set out in the Arbitration Act, 1991, S.O. 1991, c. 17 (Ontario). Arbitration proceedings shall be conducted in the City of Toronto, in the English language and shall be confidential to each party to the arbitration. The arbitration will be limited solely to the dispute or controversy between Customer and Medtronic. Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.

22.     Injunctive Relief and Provisional Relief in Aid of Arbitration.            Notwithstanding any other provisions in this Agreement, Medtronic will have the right to seek and obtain any provisional or interim relief from any court of competent jurisdiction to protect its trade-marks and property rights, or to preserve the status quoi pending good faith negotiation and/or arbitration.

23.     Waiver.            The waiver by Medtronic of any breach, or the failure by Medtronic to enforce any of these Terms and Conditions of Sale, shall not in any way affect, limit or prevent Medtronic’s right thereafter to rely on, enforce and compel strict compliance with each term or condition contained herein.

24.     Validity of Agreement.    If any provision or provisions of this Agreement are determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby.