ORDER ACKNOWLEDGEMENT
GENERAL TERMS AND CONDITIONS OF SALE FOR HUMIC AND FULVIC FRACTION PRODUCTS
These General Terms and Condi0ons of Sale (“TCS”) shall govern the provision of all Goods and Services
by FulvicXcell, (the “Seller”) to the Customer noted below or, where incorporated by reference into any
Order Document, to the Customer noted in such Order Document (the “Customer”).
1. Definitions
For the purposes of these TCS, the term “Goods” means the products and other tangible personal
property offered for sale by Seller; the term “Services” means the labour provided by Seller to or on
behalf of Customer; the term “Purchase Price” means the price to be paid to Seller by Customer for
the Goods and Services purchased; the term “Order Document” means any purchase order or quote,
invoice, order confirmation, bill of lading or other document issued by or on behalf of Seller that
refers to, accompanies or to which are attached these TCS (but excluding any such document issued
by Customer); “Agreement” means these TCS and any Order Document.
2. Purchase Price and Method of Payment
(1) The Purchase Price shall be paid in accordance with the payment terms set forth in the Order
Documents. Unless otherwise stated in the Order Documents, all prices are in Canadian dollars. For
Customers located in the United States or in any other Country, prices will be quoted and invoiced
in U.S. dollars.
(2) In consideration of Customer agreeing to pay the Purchase Price, Seller agrees to
manufacture, sell and deliver, and Customer agrees to purchase, the Goods in accordance with the
provisions hereof. The Purchase Price does not include GST/HST or any other sales taxes, customs
duties, import/export duties, excise taxes or similar charges levied by any governmental authority
having jurisdiction and Seller shall not in any way whatsoever be responsible for the payment of such
charges. Any such charges which Seller is required by law to collect from customer shall be added to
the Purchase Price and indicated in Seller’s invoice. Purchase Prices relating to the Goods are Free
on Board (“F.O.B.”) at Seller’s designated manufacturing facility. Notwithstanding the publication of
any prices or price lists by the Seller, Seller reserves the right to change the prices for its Goods and
Services at any time with or without prior notice in its sole discretion; provided, however, that no
such price changes will affect any previously confirmed orders or previously issued valid Seller
quotations. All quotations issued by Seller for the supply of Goods and/or Services shall remain valid
and open for the acceptance period specified in the quotation or, if no such acceptance period is
specified, then for fourteen (14) days. No orders will be binding on Seller unless and until Seller has
confirmed such order in writing and provided such order confirmation to the Customer.
(3) The Customer acknowledges and agrees that all Goods are made to order after the
Customer’s order has been accepted and paid in full with a production run specifically arranged for
that order. Accordingly, Customer acknowledges and agrees that all Customer orders must be paid
in full with immediately available funds at the time the Customer’s order is accepted by the Seller
unless otherwise specified in the Order Documents. Furthermore, Customer acknowledges and
agrees that, subject to Section 9 hereof, once Customer’s order has been accepted by the Seller and
paid in full by the Customer, Customer shall not be permitted to cancel its order or receive a refund
for any reason.
(4) Without limiting the prepayment requirement set forth in Section 2(3), in the event that
Customer’s order is not paid in full at the time the Customer’s order is accepted by the Seller for any
reason (including, without limitation, due to any credit charge reversal or dishonoured or reversed
payment), Seller may withhold delivery of Goods, suspend provision of any Services and/or cancel
pending orders or other obligations of Seller to Customer. In addition, Customer agrees that it shall
be liable for all costs and expenses (including, without limitation, reasonable legal fees and costs and
storage expenses) incurred by Seller as a result of Customer’s failure to ensure that its orders are
paid in full at the time of Seller’s acceptance of each such order.
(5) In addition to the Purchase Price, Customer shall pay to Seller any costs incurred by Seller as
a result of (a) changes to the Goods and/or Services or delays in delivery requested by Customer, (b)
delays in delivery arising from Customer’s failure to provide information, or materials, and/or (c)
changes in the laws, codes, rules or regulations applicable to the Goods and/or Services after the
date of quotation or order confirmation by Seller.
3. Delivery and Transfer of Ownership
(1) Unless otherwise indicated in the Order Documents, Seller shall deliver the Goods F.O.B. at
Seller’s designated manufacturing facility. Unless otherwise specified in the Order Documents, the
Customer shall be responsible for payment of the full Purchase Price (plus any taxes, duties or other
charges which Seller is obligated by law to collect from Customer) at the time that the order is
accepted by the Seller. Without limiting the foregoing, Seller reserves the right to retain the Goods,
at the Customer’s expense, until all payments due from Customer have been fully and finally paid.
(2) Unless otherwise indicated in the Order Documents, Customer shall be responsible for all
shipping, delivery, customs duty, tax and other costs associated with the transportation of the Goods
from Seller’s designated manufacturing facility to Customer’s designated destination.
(3) Without limiting the prepayment requirement set forth in Section 2(3), where the Goods are
delivered to Customer before Seller has received the entire Purchase Price (plus any taxes, duties or
other charges which Seller is obligated by law to collect from Customer), Customer hereby grants to
Seller a purchase money security interest (a “PMSI”), as defined in the Personal Property Security Act
(British Columbia) (the “PPSA”) in and to the Goods, including the right to register such PMSI and/or
any equivalent security interest in any jurisdiction, and Customer hereby waives the right to receive
a copy of any financing statement or other notice in respect of the registration of any such PMSI or
other security interest.
(4) Unless otherwise specified in the Order Documents, delivery notification to the carrier or
written or verbal notification to Customer that the Goods are ready for shipment at Seller’s
designated manufacturing facility shall constitute delivery to Customer for all purposes. Seller will
not be liable for any late penalty charges or any liability for any special, indirect and/or consequential
damages (including, without limitation, claims for economic loss) due to any delay whatsoever even
if Seller has been advised as to the possibility of such damages. Customer shall be liable for any
storage or other costs incurred by Seller due to the failure of Customer to take delivery of the Goods
within three (3) business days of Seller’s notification to Customer that the Goods are ready for pick-
up or shipment at Seller’s designated manufacturing facility, including (without limitation) costs of
registering any security interest in the Goods to preserve the Seller’s interest therein during any
storage period. The minimum storage charge for Goods which Customer has failed to take delivery
of within the aforementioned three (3) business day period is $100.00 per day.
(5) In the event that Customer fails to (i) pay any storage and other costs and charges as
contemplated under Section 3(4) and (ii) take delivery of the Goods within ninety (90) days after
Seller’s notification to Customer that the Goods are ready for pick-up, Customer will be deemed to
have abandoned the Goods and the Goods shall thereupon become the property of the Seller free
and clear from all claims and encumbrances originating from or through the Customer. Customer
shall thereafter have no claim against the Seller, the Goods or the Purchase Price. Customer
acknowledges and agrees that Seller may dispose of the Goods as it sees fit without accounting to
the Customer for any proceeds thereof and that Seller shall be entitled to retain the Purchase Price
and any such proceeds as liquidated damages (and not as a penalty).
4. Shipment
(1) Unless otherwise specified in the Order Documents, the Purchase Price excludes the cost of
packing and crating, freight and insurance required for export and normal domestic transportation
of the Goods. Any packing and crating, freight and insurance costs included in the Purchase Price for
any Goods shall be subject to adjustment in the event that the actual costs incurred by Seller are
greater. The Goods will not be crated unless specifically requested by Customer. In the case of any
Goods to be shipped outside of Canada, Customer shall be solely responsible for all fees and expenses
relating to export documentation, export packing, marking, or importation into the destination
country.
(2) The Goods shall be and shall remain at the risk of Customer from and after the time of
delivery to Customer or its agent or carrier for transportation to Customer, in all cases at Seller’s
designated manufacturing facility, whichever shall occur first. In the event that the method of
shipment is not specified in the Order Documents, Seller may withhold delivery until Customer
specifies method of shipment and Customer shall be liable for all storage and other costs incurred by
Seller due to the failure of Customer to arrange for an agent or carrier to take delivery of the Goods
within three (3) business days of Seller’s notification to Customer that the Goods are ready for pick-
up or shipment at Seller’s designated manufacturing facility.
5. Acceptance and Inspection
(1) All Goods shall be deemed to have been accepted by Customer upon delivery of the Goods
to Customer or its agent or carrier at Seller’s designated manufacturing facility. All Services shall be
inspected and accepted within ten (10) days after they are performed by Seller. Customer expressly
waives the right to reject Goods or Services that substantially conform to the Seller’s specifications.
(2) Customer agrees to inspect Goods upon receipt thereof at Customer’s shipping destination
or facility as specified in the Order Documents and Customer shall report any defects or damage
disclosed by such inspection to Seller within ten (10) days of receipt of the Goods. Seller assumes no
obligation to remedy any defects or damages to the Goods which occur during shipping except to
the extent covered by Seller’s applicable warranty policy. Notwithstanding the foregoing, Seller may,
in its sole and absolute discretion, elect to repair or replace any defective or damaged Goods or parts
where such defect or damage has occurred during shipping.
6. Delays
Seller shall have no liability whatsoever for any failure or delay in delivery of the Goods or
performance of the Services due to causes beyond the reasonable control of Seller, including but not
limited to, acts of God, war, mobilization, civil commotion, riots, embargoes, domestic or foreign
governmental regulations or order, fires, floods, weather, strikes, lock-outs, labour difficulties,
machinery breakdowns, shortages or inability to obtain goods or supplies, labour, capital, shippers,
or other related items with regard thereto. Seller shall have such additional time to deliver the Goods
or perform the Services as may be reasonable or appropriate under all circumstances. In addition,
where the Seller has authorized, in writing and in its sole discretion, any exportation of the Goods,
and the delivery of such Goods requires an export license or other authorization prior to delivery as
a result, Seller shall nevertheless not be responsible for any delay or inability to deliver such Goods
due to delay in granting or refusal to grant such license or authorization by the relevant granting
authority.
7. Changes
(1) Delivery terms are subject to change without prior notice by Seller. If any such change with
respect to any Goods and/or Services is unacceptable to Customer, Customer shall notify Seller in
writing to that effect within three (3) business days after receipt by Customer of Seller’s notice and,
upon receipt of Customer notice, the Agreement shall terminate in respect of such Goods and/or
Services but shall otherwise continue in full force and effect. The failure of Customer to so notify
Seller within the said three (3) business day period shall be deemed to be an acceptance by Customer
of Sellers changes for all purposes. If the Customer so notifies the Seller within the said three (3)
business day period, then the Seller may, in its sole discretion, either (i) complete the order in
accordance with the original delivery terms or (ii) refund the Purchase Price in respect of the affected
Goods and/or Services.
(2) Notwithstanding any other provision of the Agreement or these TCS, Seller may change prices
at any time upon fifteen (15) days written notice to Customer in the event that Seller faces economic
hardship resulting from causes beyond its reasonable control, including, without limitation, increases
in costs of raw materials, components, supplies, labour, utilities, manufacturing, packaging,
transportation or other costs, or from increases in costs due to changes in laws or regulations or due
to currency fluctuations. Seller reserves the right to change the details, such as specifications or
components, of any Goods without notice to Customer provided that such change shall not impair
the performance characteristics or critical dimensions of such Goods.
8. Intellectual Property
All tools, methods, designs, drawings, formulae, specifications, trade-marks and the like, and any
intellectual property rights associated with them or embodied or employed in the Goods and/or the
Services, shall be and remain the exclusive property of the Seller and/or its licensors. Without limiting
the foregoing, Seller and/or its licensors also retain all rights in respect of any patented or patentable
subject matter pertaining to the Goods and/or Services. Customer may from time to time provide
suggestions, comments or other feedback to Seller concerning the Goods and/or Services
(collectively, the “Feedback”). Seller shall be free to use, disclose, reproduce, license, practice and
otherwise distribute and exploit the Feedback, and to authorize others to do the same, as Seller sees
fit, entirely without obligation or restriction of any kind to Customer.
9. Warranties and Customer Acknowledgements
(1) Seller represents and warrants to Customer that it owns the Goods and has good and
marketable title thereto and Seller shall indemnify and save harmless Customer against any legal
action undertaken by a third party claiming a right over the Goods.
(2) Seller may, from time to time, issue a written warranty policy statement (including but not
limited to an End User Limited Warranty) with respect to the particular Goods and Services purchased
under the Agreement (the “Warranty Policy Statement”). If Seller issues such a Warranty Policy
Statement and expressly states in writing that the Warranty Policy Statement applies to the particular
Goods and Services purchased under the Agreement, then, subject to the terms of the Agreement,
the Warranty Policy Statement shall apply to such Goods and Services (the “Applicable Warranty
Policy Statement”).
(3) Absent any such Applicable Warranty Policy Statement, for a period of twelve (12) months
after delivery of any Goods to Customer, Seller in its sole discretion will, to the extent commercially
reasonable, and subject to these TCS, replace, modify, repair or furnish credit for Goods paid for by
Customer which, in Seller’s judgment, have a defect in material or workmanship, provided that: (i)
the defect is the direct and sole result of faulty work performed by Seller, and (ii) Customer has given
Seller written notice of the defect within thirty (30) days of its appearance.
(4) Except to the extent expressly set forth herein, Goods and/or services are provided on an
“as-is” basis and the Seller expressly disclaims any and all representations, warranties, covenants,
guarantees and/or assurances, express or implied, relating to or arising out of the Goods.
(5) Customer expressly acknowledges and agrees that:
(a) Customer is solely responsible for determining which Goods, together with the
specifications thereof, are suitable for Customer’s need and intended purposes;
(b) Customer is solely responsible for the proper use of the Goods;
(c) Customer is solely responsible to confirm and verify all specifications necessary for its
purposes and to ensure that it has selected the correct kind and quantity of Goods for
such specifications prior to finalizing and submitting its order;
(d) Customer is solely responsible to ensure that the use of the Goods by the Customer
and/or its agents is in fully compliance with all applicable laws including, without
limitation, all federal, provincial, state, municipal and other local building codes, statutes,
regulations and by-laws,
(e) Customer shall be deemed to have agreed to and accepted the terms and conditions of
this Acknowledgement by its uncontested receipt of this Acknowledgement; and
(f) Goods are derived from natural sources and in the event custom orders specify altered pH
levels of the Goods that the pH levels of the finished Goods may naturally decrease over
time.
10. Indemnity (Including for Negligence)
Customer hereby assumes and agrees to indemnify, defend, protect, save, keep, and hold harmless
Seller, each of its affiliates and/or all of their respective agents, directors, officers, employees,
subcontractors, licensees and invitees from and against any and all losses, damages, injuries, claims,
causes of action, liabilities, demands and expenses (including legal fees and other legal expenses on
a full indemnity basis) of whatsoever kind and nature, for injury to, or illness or death of any person
and for all damage to, loss or destruction of property (collectively the “losses”), relating to,
connected with in any way, arising out of, or on account of the Goods and/or Services purchased
hereunder, including without any limitation, any such losses caused or occasioned by any negligent
actor omission of Seller, any of its affiliates, and/or any of their respective directors, officers, agents,
employees, subcontractors, franchisees, invitees or licensees. The foregoing indemnity is a material
part of this Agreement, supported by and in consideration of a reduction in the Purchase Price from
that which would otherwise have been charged by Seller and is intended to apply notwithstanding
the joint or concurrent negligence or other liability of Seller.
11. Cancellation and Termination
(1) As stated in Section 2(3), after Seller has provided Customer with a confirmation of
Customer’s order for Goods and/or Services, Customer shall not be permitted to cancel the order for
any reason.
(2) The Seller may, upon giving fourteen (14) days written notice to the Customer, terminate the
Agreement if the Customer fails to remedy a breach of any material obligation under the Agreement
within such fourteen (14) day period. For any breach by Customer, Seller shall be entitled to stop
work on the Goods and/or Services during such cure period. In the event that (a) any winding-up,
bankruptcy, receivership, liquidation, dissolution or similar proceedings are instituted by or against
Customer under any applicable bankruptcy or other law or (b) a receiver, receiver-manager trustee
or other similar person is appointed in respect of any of Customer’s assets, Seller shall be entitled to
stop work on the Goods and/or Services, cancel or terminate the Agreement, sue to recover the
Purchase Price (as applicable) and/or any expenses incurred to the date of cancellation or
termination, resell the Goods to a third party, and/or exercise any other remedy available at law or
in equity for any breach of contract by Customer, at Seller’s sole discretion.
12. Survival
Upon termination of the Agreement for any reason, Customer shall continue to be liable for any
obligations arising, liabilities accrued or amounts payable under the Agreement up to the date of
termination. Sections 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16 and 17 shall survive any termination of
the Agreement.
13. Laws
The Agreement, including these TCS, shall be governed by and construed in accordance with the laws
in force in the Province of British Columbia, together with the federal laws of Canada applicable
therein, without regard to its conflict of laws principles. The parties hereby expressly exclude the
application of the United Nations Convention on Contracts for the International Sale of Goods and
the British Columbia Sale of Goods Act, as amended, replaced or re-enacted from time to time, and
each of the Parties submits to the exclusive jurisdiction of the courts of the Province of British
Columbia, to the exclusion of all other jurisdictions, for the interpretation and enforcement of this
Agreement; provided, however, that Seller may sue in any court having competent jurisdiction over
Customer in respect of any amount due and owing to Seller from Customer. Seller is subject to laws
in various jurisdictions relating to restrictions on trade with certain embargo countries. Shipment of
the Goods to embargo countries without approval of Seller and the relevant governmental agency is
made at Customer’s sole risk. Customer and Seller hereby acknowledge and agree that they are each
waiving the right to a trial by jury and the right to participate as a plaintiff or a class member in any
purported class action or similar representative proceeding concerning any matter falling within the
scope of these TCS.
14. Limitation of Liability
In no event shall Seller be liable to any Party for any special, indirect, incidental, consequential,
punitive, exemplary or the like damages (including, without limitation, any lost profits, revenue,
sales, data or costs of procurement of substitute goods or services, interruption of business or loss
of business information, however caused and whether arising under contract, tort, negligence,
vicarious liability or any other theory of liability arising in any way out of the use or of the inability to
use the Goods and/or Services, performance or non-performance of the Goods and/or Services,
errors, defects, omissions, delays in operation and/or any other failure of performance, even if the
Seller is advised of the possibility of such damages. In any case, to the maximum extent permitted by
applicable law, Seller’s maximum liability under any provision of the Agreement shall be limited to
direct damages equal to the amount actually paid to Seller by Customer for the particular Goods
and/or Services concerned. No action, regardless of form, arising out of the Agreement may be
brought by Customer more than twelve (12) months after the facts giving rise to the cause of action
have occurred, regardless of whether those facts by that time are known, or reasonably ought to
have been discovered by Customer.
15. Waiver
The waiver by either Seller or Customer of any breach under the Agreement shall not be deemed to
be a waiver of any subsequent breach. The failure to enforce any provision of these TCS shall not be
deemed to be a waiver of such provision.
16. Notices
Any notice or other documents required or permitted to be given under the Agreement shall be in
writing delivered to the other party by: (a) personal delivery or by pre-paid registered mail, to be
deemed received on the day of actual receipt at the place of receipt, (b) by facsimile transmission,
deemed received at the place and as of the time shown on the fax transmission confirmation, except
if outside the recipient’s normal business hours in which case notice shall be deemed received as of
the next business day, or (c) by electronic mail or electronic transmission accompanied by a receipt-
request confirmation, deemed received upon transmission of the receipt-request from the recipient
to the sender. Notice shall be sufficiently given if sent by the sender using the most recent contact
information supplied by the recipient. Unless otherwise notified in writing by the Seller, all notices
to the Seller shall be delivered to the contact information appearing on the most recent invoice
provided by Seller to Customer.
17. General
(1) The Agreement, including these TCS, constitutes the entire agreement of the parties and
supersedes all discussions, arrangements, negotiations, representations and warranties, if any,
relating to the Goods and/or Services covered hereby including, without limitation, any discussions,
arrangements, negotiations, representations and warranties with any licensor or affiliate of Seller or
any directors, officers, agents, employees, subcontractors, invitees or licensees of any such affiliate
of Seller. No alterations or additions whatsoever to the Agreement, including the Order Documents
and the TCS, may be made by Customer, unless made in writing and signed by a duly authorized
representative of Seller, and notwithstanding any terms and conditions expressed by customer to
the contrary. For greater certainty, unless specifically stipulated in writing addressed to the
Customer, no licensor or affiliate of Seller nor any directors, officers, agents, employees,
subcontractors, invitees or licensees of any such affiliate or licensor of Seller is a duly authorized
representative of Seller for the purposes of these TCS.
(2) The language in all parts of the Agreement, including the Order Documents and these TCS,
shall be in all cases construed simply according to its fair meaning and not strictly for or against any
of the parties hereto. Any rule of construction that any ambiguities are to be resolved against the
drafting party shall not be applied in the interpretation of the Agreement. Each of the terms
“including”, “include” and “includes”, when used in the Agreement, is not to be interpreted as
limiting, whether or not non-limiting language (such as “without limitation” or “but not limited to”
or words of similar effect) is used with reference thereto.
(3) The division of the Agreement into paragraphs, sections or the like and the insertion of
headings are for convenience of reference only and will not affect the construction or interpretation
of the Agreement. Unless the context requires otherwise, words importing the singular include the
plural and vice versa and words importing gender include all genders.
(4) If any of the provisions of the Agreement, including these TCS, shall be deemed to be invalid
or unenforceable under any applicable laws, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire Agreement but rather the entire Agreement shall be construed
as if not containing the particular invalid or unenforceable provision or provisions and the rights and
obligations of the parties shall be construed and enforced accordingly, with the invalid or
unenforceable provision modified so as to be limited and enforced to the fullest extent possible
under the laws of that jurisdiction.
(5) The parties hereto are and shall remain independent contractors. Nothing herein shall be
deemed to establish a partnership, joint venture, agency or similar relationship between parties.
Neither party shall have the right to obligate or bind the other party in any manner.
(6) The Agreement shall enure to the benefit of and be binding upon the parties and their
respective successors and permitted assigns. Neither party may assign or otherwise transfer its rights
or obligations under the Agreement without the prior express written consent of the other party,
which consent shall not be unreasonably withheld.
18. English Language
It is the express wish of the parties to this Agreement that this Agreement and any related documents
be drawn up and executed in the English language.
GENERAL TERMS AND CONDITIONS OF SALE FOR HUMIC AND FULVIC FRACTION PRODUCTS
These General Terms and Condi0ons of Sale (“TCS”) shall govern the provision of all Goods and Services
by FulvicXcell, (the “Seller”) to the Customer noted below or, where incorporated by reference into any
Order Document, to the Customer noted in such Order Document (the “Customer”).
1. Definitions
For the purposes of these TCS, the term “Goods” means the products and other tangible personal
property offered for sale by Seller; the term “Services” means the labour provided by Seller to or on
behalf of Customer; the term “Purchase Price” means the price to be paid to Seller by Customer for
the Goods and Services purchased; the term “Order Document” means any purchase order or quote,
invoice, order confirmation, bill of lading or other document issued by or on behalf of Seller that
refers to, accompanies or to which are attached these TCS (but excluding any such document issued
by Customer); “Agreement” means these TCS and any Order Document.
2. Purchase Price and Method of Payment
(1) The Purchase Price shall be paid in accordance with the payment terms set forth in the Order
Documents. Unless otherwise stated in the Order Documents, all prices are in Canadian dollars. For
Customers located in the United States or in any other Country, prices will be quoted and invoiced
in U.S. dollars.
(2) In consideration of Customer agreeing to pay the Purchase Price, Seller agrees to
manufacture, sell and deliver, and Customer agrees to purchase, the Goods in accordance with the
provisions hereof. The Purchase Price does not include GST/HST or any other sales taxes, customs
duties, import/export duties, excise taxes or similar charges levied by any governmental authority
having jurisdiction and Seller shall not in any way whatsoever be responsible for the payment of such
charges. Any such charges which Seller is required by law to collect from customer shall be added to
the Purchase Price and indicated in Seller’s invoice. Purchase Prices relating to the Goods are Free
on Board (“F.O.B.”) at Seller’s designated manufacturing facility. Notwithstanding the publication of
any prices or price lists by the Seller, Seller reserves the right to change the prices for its Goods and
Services at any time with or without prior notice in its sole discretion; provided, however, that no
such price changes will affect any previously confirmed orders or previously issued valid Seller
quotations. All quotations issued by Seller for the supply of Goods and/or Services shall remain valid
and open for the acceptance period specified in the quotation or, if no such acceptance period is
specified, then for fourteen (14) days. No orders will be binding on Seller unless and until Seller has
confirmed such order in writing and provided such order confirmation to the Customer.
(3) The Customer acknowledges and agrees that all Goods are made to order after the
Customer’s order has been accepted and paid in full with a production run specifically arranged for
that order. Accordingly, Customer acknowledges and agrees that all Customer orders must be paid
in full with immediately available funds at the time the Customer’s order is accepted by the Seller
unless otherwise specified in the Order Documents. Furthermore, Customer acknowledges and
agrees that, subject to Section 9 hereof, once Customer’s order has been accepted by the Seller and
paid in full by the Customer, Customer shall not be permitted to cancel its order or receive a refund
for any reason.
(4) Without limiting the prepayment requirement set forth in Section 2(3), in the event that
Customer’s order is not paid in full at the time the Customer’s order is accepted by the Seller for any
reason (including, without limitation, due to any credit charge reversal or dishonoured or reversed
payment), Seller may withhold delivery of Goods, suspend provision of any Services and/or cancel
pending orders or other obligations of Seller to Customer. In addition, Customer agrees that it shall
be liable for all costs and expenses (including, without limitation, reasonable legal fees and costs and
storage expenses) incurred by Seller as a result of Customer’s failure to ensure that its orders are
paid in full at the time of Seller’s acceptance of each such order.
(5) In addition to the Purchase Price, Customer shall pay to Seller any costs incurred by Seller as
a result of (a) changes to the Goods and/or Services or delays in delivery requested by Customer, (b)
delays in delivery arising from Customer’s failure to provide information, or materials, and/or (c)
changes in the laws, codes, rules or regulations applicable to the Goods and/or Services after the
date of quotation or order confirmation by Seller.
3. Delivery and Transfer of Ownership
(1) Unless otherwise indicated in the Order Documents, Seller shall deliver the Goods F.O.B. at
Seller’s designated manufacturing facility. Unless otherwise specified in the Order Documents, the
Customer shall be responsible for payment of the full Purchase Price (plus any taxes, duties or other
charges which Seller is obligated by law to collect from Customer) at the time that the order is
accepted by the Seller. Without limiting the foregoing, Seller reserves the right to retain the Goods,
at the Customer’s expense, until all payments due from Customer have been fully and finally paid.
(2) Unless otherwise indicated in the Order Documents, Customer shall be responsible for all
shipping, delivery, customs duty, tax and other costs associated with the transportation of the Goods
from Seller’s designated manufacturing facility to Customer’s designated destination.
(3) Without limiting the prepayment requirement set forth in Section 2(3), where the Goods are
delivered to Customer before Seller has received the entire Purchase Price (plus any taxes, duties or
other charges which Seller is obligated by law to collect from Customer), Customer hereby grants to
Seller a purchase money security interest (a “PMSI”), as defined in the Personal Property Security Act
(British Columbia) (the “PPSA”) in and to the Goods, including the right to register such PMSI and/or
any equivalent security interest in any jurisdiction, and Customer hereby waives the right to receive
a copy of any financing statement or other notice in respect of the registration of any such PMSI or
other security interest.
(4) Unless otherwise specified in the Order Documents, delivery notification to the carrier or
written or verbal notification to Customer that the Goods are ready for shipment at Seller’s
designated manufacturing facility shall constitute delivery to Customer for all purposes. Seller will
not be liable for any late penalty charges or any liability for any special, indirect and/or consequential
damages (including, without limitation, claims for economic loss) due to any delay whatsoever even
if Seller has been advised as to the possibility of such damages. Customer shall be liable for any
storage or other costs incurred by Seller due to the failure of Customer to take delivery of the Goods
within three (3) business days of Seller’s notification to Customer that the Goods are ready for pick-
up or shipment at Seller’s designated manufacturing facility, including (without limitation) costs of
registering any security interest in the Goods to preserve the Seller’s interest therein during any
storage period. The minimum storage charge for Goods which Customer has failed to take delivery
of within the aforementioned three (3) business day period is $100.00 per day.
(5) In the event that Customer fails to (i) pay any storage and other costs and charges as
contemplated under Section 3(4) and (ii) take delivery of the Goods within ninety (90) days after
Seller’s notification to Customer that the Goods are ready for pick-up, Customer will be deemed to
have abandoned the Goods and the Goods shall thereupon become the property of the Seller free
and clear from all claims and encumbrances originating from or through the Customer. Customer
shall thereafter have no claim against the Seller, the Goods or the Purchase Price. Customer
acknowledges and agrees that Seller may dispose of the Goods as it sees fit without accounting to
the Customer for any proceeds thereof and that Seller shall be entitled to retain the Purchase Price
and any such proceeds as liquidated damages (and not as a penalty).
4. Shipment
(1) Unless otherwise specified in the Order Documents, the Purchase Price excludes the cost of
packing and crating, freight and insurance required for export and normal domestic transportation
of the Goods. Any packing and crating, freight and insurance costs included in the Purchase Price for
any Goods shall be subject to adjustment in the event that the actual costs incurred by Seller are
greater. The Goods will not be crated unless specifically requested by Customer. In the case of any
Goods to be shipped outside of Canada, Customer shall be solely responsible for all fees and expenses
relating to export documentation, export packing, marking, or importation into the destination
country.
(2) The Goods shall be and shall remain at the risk of Customer from and after the time of
delivery to Customer or its agent or carrier for transportation to Customer, in all cases at Seller’s
designated manufacturing facility, whichever shall occur first. In the event that the method of
shipment is not specified in the Order Documents, Seller may withhold delivery until Customer
specifies method of shipment and Customer shall be liable for all storage and other costs incurred by
Seller due to the failure of Customer to arrange for an agent or carrier to take delivery of the Goods
within three (3) business days of Seller’s notification to Customer that the Goods are ready for pick-
up or shipment at Seller’s designated manufacturing facility.
5. Acceptance and Inspection
(1) All Goods shall be deemed to have been accepted by Customer upon delivery of the Goods
to Customer or its agent or carrier at Seller’s designated manufacturing facility. All Services shall be
inspected and accepted within ten (10) days after they are performed by Seller. Customer expressly
waives the right to reject Goods or Services that substantially conform to the Seller’s specifications.
(2) Customer agrees to inspect Goods upon receipt thereof at Customer’s shipping destination
or facility as specified in the Order Documents and Customer shall report any defects or damage
disclosed by such inspection to Seller within ten (10) days of receipt of the Goods. Seller assumes no
obligation to remedy any defects or damages to the Goods which occur during shipping except to
the extent covered by Seller’s applicable warranty policy. Notwithstanding the foregoing, Seller may,
in its sole and absolute discretion, elect to repair or replace any defective or damaged Goods or parts
where such defect or damage has occurred during shipping.
6. Delays
Seller shall have no liability whatsoever for any failure or delay in delivery of the Goods or
performance of the Services due to causes beyond the reasonable control of Seller, including but not
limited to, acts of God, war, mobilization, civil commotion, riots, embargoes, domestic or foreign
governmental regulations or order, fires, floods, weather, strikes, lock-outs, labour difficulties,
machinery breakdowns, shortages or inability to obtain goods or supplies, labour, capital, shippers,
or other related items with regard thereto. Seller shall have such additional time to deliver the Goods
or perform the Services as may be reasonable or appropriate under all circumstances. In addition,
where the Seller has authorized, in writing and in its sole discretion, any exportation of the Goods,
and the delivery of such Goods requires an export license or other authorization prior to delivery as
a result, Seller shall nevertheless not be responsible for any delay or inability to deliver such Goods
due to delay in granting or refusal to grant such license or authorization by the relevant granting
authority.
7. Changes
(1) Delivery terms are subject to change without prior notice by Seller. If any such change with
respect to any Goods and/or Services is unacceptable to Customer, Customer shall notify Seller in
writing to that effect within three (3) business days after receipt by Customer of Seller’s notice and,
upon receipt of Customer notice, the Agreement shall terminate in respect of such Goods and/or
Services but shall otherwise continue in full force and effect. The failure of Customer to so notify
Seller within the said three (3) business day period shall be deemed to be an acceptance by Customer
of Sellers changes for all purposes. If the Customer so notifies the Seller within the said three (3)
business day period, then the Seller may, in its sole discretion, either (i) complete the order in
accordance with the original delivery terms or (ii) refund the Purchase Price in respect of the affected
Goods and/or Services.
(2) Notwithstanding any other provision of the Agreement or these TCS, Seller may change prices
at any time upon fifteen (15) days written notice to Customer in the event that Seller faces economic
hardship resulting from causes beyond its reasonable control, including, without limitation, increases
in costs of raw materials, components, supplies, labour, utilities, manufacturing, packaging,
transportation or other costs, or from increases in costs due to changes in laws or regulations or due
to currency fluctuations. Seller reserves the right to change the details, such as specifications or
components, of any Goods without notice to Customer provided that such change shall not impair
the performance characteristics or critical dimensions of such Goods.
8. Intellectual Property
All tools, methods, designs, drawings, formulae, specifications, trade-marks and the like, and any
intellectual property rights associated with them or embodied or employed in the Goods and/or the
Services, shall be and remain the exclusive property of the Seller and/or its licensors. Without limiting
the foregoing, Seller and/or its licensors also retain all rights in respect of any patented or patentable
subject matter pertaining to the Goods and/or Services. Customer may from time to time provide
suggestions, comments or other feedback to Seller concerning the Goods and/or Services
(collectively, the “Feedback”). Seller shall be free to use, disclose, reproduce, license, practice and
otherwise distribute and exploit the Feedback, and to authorize others to do the same, as Seller sees
fit, entirely without obligation or restriction of any kind to Customer.
9. Warranties and Customer Acknowledgements
(1) Seller represents and warrants to Customer that it owns the Goods and has good and
marketable title thereto and Seller shall indemnify and save harmless Customer against any legal
action undertaken by a third party claiming a right over the Goods.
(2) Seller may, from time to time, issue a written warranty policy statement (including but not
limited to an End User Limited Warranty) with respect to the particular Goods and Services purchased
under the Agreement (the “Warranty Policy Statement”). If Seller issues such a Warranty Policy
Statement and expressly states in writing that the Warranty Policy Statement applies to the particular
Goods and Services purchased under the Agreement, then, subject to the terms of the Agreement,
the Warranty Policy Statement shall apply to such Goods and Services (the “Applicable Warranty
Policy Statement”).
(3) Absent any such Applicable Warranty Policy Statement, for a period of twelve (12) months
after delivery of any Goods to Customer, Seller in its sole discretion will, to the extent commercially
reasonable, and subject to these TCS, replace, modify, repair or furnish credit for Goods paid for by
Customer which, in Seller’s judgment, have a defect in material or workmanship, provided that: (i)
the defect is the direct and sole result of faulty work performed by Seller, and (ii) Customer has given
Seller written notice of the defect within thirty (30) days of its appearance.
(4) Except to the extent expressly set forth herein, Goods and/or services are provided on an
“as-is” basis and the Seller expressly disclaims any and all representations, warranties, covenants,
guarantees and/or assurances, express or implied, relating to or arising out of the Goods.
(5) Customer expressly acknowledges and agrees that:
(a) Customer is solely responsible for determining which Goods, together with the
specifications thereof, are suitable for Customer’s need and intended purposes;
(b) Customer is solely responsible for the proper use of the Goods;
(c) Customer is solely responsible to confirm and verify all specifications necessary for its
purposes and to ensure that it has selected the correct kind and quantity of Goods for
such specifications prior to finalizing and submitting its order;
(d) Customer is solely responsible to ensure that the use of the Goods by the Customer
and/or its agents is in fully compliance with all applicable laws including, without
limitation, all federal, provincial, state, municipal and other local building codes, statutes,
regulations and by-laws,
(e) Customer shall be deemed to have agreed to and accepted the terms and conditions of
this Acknowledgement by its uncontested receipt of this Acknowledgement; and
(f) Goods are derived from natural sources and in the event custom orders specify altered pH
levels of the Goods that the pH levels of the finished Goods may naturally decrease over
time.
10. Indemnity (Including for Negligence)
Customer hereby assumes and agrees to indemnify, defend, protect, save, keep, and hold harmless
Seller, each of its affiliates and/or all of their respective agents, directors, officers, employees,
subcontractors, licensees and invitees from and against any and all losses, damages, injuries, claims,
causes of action, liabilities, demands and expenses (including legal fees and other legal expenses on
a full indemnity basis) of whatsoever kind and nature, for injury to, or illness or death of any person
and for all damage to, loss or destruction of property (collectively the “losses”), relating to,
connected with in any way, arising out of, or on account of the Goods and/or Services purchased
hereunder, including without any limitation, any such losses caused or occasioned by any negligent
actor omission of Seller, any of its affiliates, and/or any of their respective directors, officers, agents,
employees, subcontractors, franchisees, invitees or licensees. The foregoing indemnity is a material
part of this Agreement, supported by and in consideration of a reduction in the Purchase Price from
that which would otherwise have been charged by Seller and is intended to apply notwithstanding
the joint or concurrent negligence or other liability of Seller.
11. Cancellation and Termination
(1) As stated in Section 2(3), after Seller has provided Customer with a confirmation of
Customer’s order for Goods and/or Services, Customer shall not be permitted to cancel the order for
any reason.
(2) The Seller may, upon giving fourteen (14) days written notice to the Customer, terminate the
Agreement if the Customer fails to remedy a breach of any material obligation under the Agreement
within such fourteen (14) day period. For any breach by Customer, Seller shall be entitled to stop
work on the Goods and/or Services during such cure period. In the event that (a) any winding-up,
bankruptcy, receivership, liquidation, dissolution or similar proceedings are instituted by or against
Customer under any applicable bankruptcy or other law or (b) a receiver, receiver-manager trustee
or other similar person is appointed in respect of any of Customer’s assets, Seller shall be entitled to
stop work on the Goods and/or Services, cancel or terminate the Agreement, sue to recover the
Purchase Price (as applicable) and/or any expenses incurred to the date of cancellation or
termination, resell the Goods to a third party, and/or exercise any other remedy available at law or
in equity for any breach of contract by Customer, at Seller’s sole discretion.
12. Survival
Upon termination of the Agreement for any reason, Customer shall continue to be liable for any
obligations arising, liabilities accrued or amounts payable under the Agreement up to the date of
termination. Sections 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16 and 17 shall survive any termination of
the Agreement.
13. Laws
The Agreement, including these TCS, shall be governed by and construed in accordance with the laws
in force in the Province of British Columbia, together with the federal laws of Canada applicable
therein, without regard to its conflict of laws principles. The parties hereby expressly exclude the
application of the United Nations Convention on Contracts for the International Sale of Goods and
the British Columbia Sale of Goods Act, as amended, replaced or re-enacted from time to time, and
each of the Parties submits to the exclusive jurisdiction of the courts of the Province of British
Columbia, to the exclusion of all other jurisdictions, for the interpretation and enforcement of this
Agreement; provided, however, that Seller may sue in any court having competent jurisdiction over
Customer in respect of any amount due and owing to Seller from Customer. Seller is subject to laws
in various jurisdictions relating to restrictions on trade with certain embargo countries. Shipment of
the Goods to embargo countries without approval of Seller and the relevant governmental agency is
made at Customer’s sole risk. Customer and Seller hereby acknowledge and agree that they are each
waiving the right to a trial by jury and the right to participate as a plaintiff or a class member in any
purported class action or similar representative proceeding concerning any matter falling within the
scope of these TCS.
14. Limitation of Liability
In no event shall Seller be liable to any Party for any special, indirect, incidental, consequential,
punitive, exemplary or the like damages (including, without limitation, any lost profits, revenue,
sales, data or costs of procurement of substitute goods or services, interruption of business or loss
of business information, however caused and whether arising under contract, tort, negligence,
vicarious liability or any other theory of liability arising in any way out of the use or of the inability to
use the Goods and/or Services, performance or non-performance of the Goods and/or Services,
errors, defects, omissions, delays in operation and/or any other failure of performance, even if the
Seller is advised of the possibility of such damages. In any case, to the maximum extent permitted by
applicable law, Seller’s maximum liability under any provision of the Agreement shall be limited to
direct damages equal to the amount actually paid to Seller by Customer for the particular Goods
and/or Services concerned. No action, regardless of form, arising out of the Agreement may be
brought by Customer more than twelve (12) months after the facts giving rise to the cause of action
have occurred, regardless of whether those facts by that time are known, or reasonably ought to
have been discovered by Customer.
15. Waiver
The waiver by either Seller or Customer of any breach under the Agreement shall not be deemed to
be a waiver of any subsequent breach. The failure to enforce any provision of these TCS shall not be
deemed to be a waiver of such provision.
16. Notices
Any notice or other documents required or permitted to be given under the Agreement shall be in
writing delivered to the other party by: (a) personal delivery or by pre-paid registered mail, to be
deemed received on the day of actual receipt at the place of receipt, (b) by facsimile transmission,
deemed received at the place and as of the time shown on the fax transmission confirmation, except
if outside the recipient’s normal business hours in which case notice shall be deemed received as of
the next business day, or (c) by electronic mail or electronic transmission accompanied by a receipt-
request confirmation, deemed received upon transmission of the receipt-request from the recipient
to the sender. Notice shall be sufficiently given if sent by the sender using the most recent contact
information supplied by the recipient. Unless otherwise notified in writing by the Seller, all notices
to the Seller shall be delivered to the contact information appearing on the most recent invoice
provided by Seller to Customer.
17. General
(1) The Agreement, including these TCS, constitutes the entire agreement of the parties and
supersedes all discussions, arrangements, negotiations, representations and warranties, if any,
relating to the Goods and/or Services covered hereby including, without limitation, any discussions,
arrangements, negotiations, representations and warranties with any licensor or affiliate of Seller or
any directors, officers, agents, employees, subcontractors, invitees or licensees of any such affiliate
of Seller. No alterations or additions whatsoever to the Agreement, including the Order Documents
and the TCS, may be made by Customer, unless made in writing and signed by a duly authorized
representative of Seller, and notwithstanding any terms and conditions expressed by customer to
the contrary. For greater certainty, unless specifically stipulated in writing addressed to the
Customer, no licensor or affiliate of Seller nor any directors, officers, agents, employees,
subcontractors, invitees or licensees of any such affiliate or licensor of Seller is a duly authorized
representative of Seller for the purposes of these TCS.
(2) The language in all parts of the Agreement, including the Order Documents and these TCS,
shall be in all cases construed simply according to its fair meaning and not strictly for or against any
of the parties hereto. Any rule of construction that any ambiguities are to be resolved against the
drafting party shall not be applied in the interpretation of the Agreement. Each of the terms
“including”, “include” and “includes”, when used in the Agreement, is not to be interpreted as
limiting, whether or not non-limiting language (such as “without limitation” or “but not limited to”
or words of similar effect) is used with reference thereto.
(3) The division of the Agreement into paragraphs, sections or the like and the insertion of
headings are for convenience of reference only and will not affect the construction or interpretation
of the Agreement. Unless the context requires otherwise, words importing the singular include the
plural and vice versa and words importing gender include all genders.
(4) If any of the provisions of the Agreement, including these TCS, shall be deemed to be invalid
or unenforceable under any applicable laws, such invalidity or unenforceability shall not invalidate
or render unenforceable the entire Agreement but rather the entire Agreement shall be construed
as if not containing the particular invalid or unenforceable provision or provisions and the rights and
obligations of the parties shall be construed and enforced accordingly, with the invalid or
unenforceable provision modified so as to be limited and enforced to the fullest extent possible
under the laws of that jurisdiction.
(5) The parties hereto are and shall remain independent contractors. Nothing herein shall be
deemed to establish a partnership, joint venture, agency or similar relationship between parties.
Neither party shall have the right to obligate or bind the other party in any manner.
(6) The Agreement shall enure to the benefit of and be binding upon the parties and their
respective successors and permitted assigns. Neither party may assign or otherwise transfer its rights
or obligations under the Agreement without the prior express written consent of the other party,
which consent shall not be unreasonably withheld.
18. English Language
It is the express wish of the parties to this Agreement that this Agreement and any related documents
be drawn up and executed in the English language.