1.1 In these Conditions unless the context otherwise requires the following words (and derivations thereof) shall have the following meanings:
Acceptance means the Seller’s written acceptance of an Order or Special Order (as the case may be);
Account means a credit account held by the Buyer with the Seller;
Business Day means a day other than a Saturday, Sunday or public holiday in the province of Manitoba, Canada when banks in Winnipeg, Manitoba are open for business;
Buyer means the buyer with whom the Seller is contracting for the supply of the Goods;
Contract means the contract for the purchase and sale of the Goods, consisting of the Order or Special Order (as the case may be), the Acceptance and the Conditions;
Conditions means the terms and conditions of sale set out in this document;
Force Majeure Event means any act, event, omission or accident beyond the Seller’s reasonable control including strikes, lockouts or other industrial disputes (whether involving the workforce of the Seller or any other person), failure of transport network, act of God, war, terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, chemical or biological contamination, sonic boom, explosions, collapse of building structures, earthquakes, loss at sea, epidemics, pandemics or similar events, as well as public health orders in response thereto, natural disasters or extreme adverse weather conditions or default on the part of the Seller’s suppliers or subcontractors;
Goods means the goods the quantity and description of which are specified in the Order or Special Order (as the case may be) and confirmed in the Acceptance (all or any part of them) to be sold by the Seller to the Buyer;
Order means an order for Goods placed by the Buyer with the Seller, excluding a Special Order;
Party means either the Buyer or the Seller, and Parties means both the Buyer and the Seller;
Price has the meaning given to it under condition 5.1;
Quotation means the Seller’s verbal or written quotation for the Goods;
Recipient means any person specified by the Buyer to whom the Goods may be delivered;
Seller means Armorgard Canada Inc, registered in Canada under corporation number 1424650-1, whose registered office and business premises is at Unit 207, 251 Saulteaux Crescent, Winnipeg, MB R3J 3C7.
Special Order means an order for Goods that are not normally stocked and/or are required to be specially made or obtained by the Seller for the Buyer; and
Warranty Period has the meaning given to it under condition 10.1.
1.2 In these Conditions, unless the context otherwise requires:
1.2.1 headings shall not affect the interpretation of these Conditions;
1.2.2 any reference to a statutory provision shall include references to that provision as from time to time modified or re-enacted (save and to the extent that modifications or re-enactments made after the date of the Contract impose any new or extended liability or restriction on the Seller or the Buyer);
1.2.3 any reference to a person includes any individual, firm or company or other legal entity;
1.2.4 the singular includes the plural and vice versa and any gender includes any other gender;
1.2.5 any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.6 a reference to writing or written includes e-mails and faxes.
2 BASIS OF SALE
2.1 These Conditions, along with the Order or Special Order (as the case may be) and Acceptance, shall govern the Contract and all other terms and conditions are excluded. The Contract constitutes the entire agreement between the Parties, and supersedes all prior formal and informal agreements, arrangements, understandings, discussions, correspondence, quotations, proposals, negotiations and inducements, whether oral or written.
2.2 The Order or Special Order (as the case may be) constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Order or Special Order (as the case may be) shall only be deemed to be accepted when the Seller issues an Acceptance of the Order or Special Order (as the case may be), at which point the Contract shall come into existence.
2.3 The Seller’s employees or agents are not authorized to make any representations or recommendations or give any advice concerning the Goods unless expressly confirmed by an authorized representative of the Seller in writing.
2.4 All drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract.
2.5 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, Acceptance, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.6 Any Quotation is valid for 30 days from its date or until earlier acceptance by the Buyer, after which time it may be altered or withdrawn by the Seller without giving prior notice to the Buyer.
3 ORDERS AND SPECIFICATIONS
3.1 Subject to condition 4, the quality and description of the Goods and any specification for them shall be as described in the Order or Special Order (as the case may be) and confirmed in the Acceptance.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) it submits, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The Seller reserves the right to make any changes to the specification of the Goods which are required to comply with any applicable statutory or regulatory requirements or which do not materially affect their quality or performance.
4 BESPOKE GOODS
4.1 A Buyer may place a Special Order for bespoke Goods. Any such Special Order must be made in writing and must be accompanied by a computer-aided design drawing of the Goods required, including such details and specification as the Seller requires. The content and accuracy of such drawing, details and specification shall be the Buyer’s sole responsibility and the Buyer agrees that the Seller disclaims all liability to the Buyer in relation to the content or accuracy of such drawing, details and specification.
4.2 In relation to bespoke Goods, the Buyer shall be solely responsible for carrying out its own risk assessments regarding the use of the bespoke Goods and shall give the Seller such information as the Seller requires from time to time, at such times as the Seller may reasonably require, to enable the Seller to comply with any agreed timescales for the manufacture of such bespoke Goods.
4.3 To the extent that Goods are to be manufactured in accordance with a specification supplied by the Buyer, the Buyer:
4.3.1 warrants that it has the right to use such specification and supply it to the Seller;
4.3.2 grants the Seller a license to use such specification for the purposes of manufacturing the Goods; and
4.3.3 shall indemnify the Seller against all liabilities, costs, expenses, damages and losses of any nature or kind whatsoever (including any direct, indirect or consequential damages or losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights of any nature or kind whatsoever arising out of or in connection with the Seller’s use of such specification or from the Seller complying with the Buyer’s direction, as the case may be. This condition 4.3 shall survive expiry or termination of the Contract.
4.4 The Buyer shall not without the Seller’s prior written consent be entitled to use any intellectual property of the Seller (including the Seller’s name and logo) for any purpose.
5 PRICE
5.1 The price of the Goods shall be the price stated in the Seller’s price list in force when the Order or Special Order (as the case may be) is sent by the Buyer to the Seller or, if a Quotation is given, the price stated in the Quotation (in either case, “Price”).
5.2 Notwithstanding any other provision of these Conditions or the Contract, the Seller reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the Price to reflect any:
5.2.1 increase in the cost to the Seller which is due to any factor beyond the control of the Seller (including any foreign exchange fluctuation, currency regulation, alteration of duties, or significant increase in the costs of labour, materials or other costs of manufacture);
5.2.2 change in the type or quantities of the Goods which is requested by the Buyer; or
5.2.3 delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
The Buyer shall be bound to pay any such increased Price.
5.3 The Price excludes the following, which the Buyer shall be additionally liable to pay to the Seller:
5.3.1 goods and services tax, retail tax and any other duties or taxes;
5.3.2 any charge levied by the Seller in respect of a request for delivery of the Goods at a specific time or place or by a specific means, including delivery of the Goods in a vehicle fitted with a tail-lift;
5.3.3 any charge made pursuant to condition 7.9;
5.3.4 any delivery charge levied by the Seller, including in respect of any Order or Special Order (as the case may be) which has a value of less than an amount specified by the Seller from time to time (which shall be payable in addition to any charge under condition 5.3.2); and
5.3.5 all other costs and expenses other than those specifically referred to in the Price which the Buyer shall be additionally liable to pay to the Seller at the same time as the Price to which they relate.
6 PAYMENT
6.1 If the Buyer is purchasing Goods from the Seller for the first time or the Buyer does not have an Account that is in good standing, the Buyer shall pay the Price at the time the Order or the Special Order (as the case may be) is placed.
6.2 If the Buyer has an Account that is in good standing and is within its Account credit limit, the Buyer shall pay the Price no later than 30 days from invoice date unless prior written notice is given by the Seller in the Acceptance.
6.3 If the Buyer has an Account that is in good standing but is over its Account credit limit, the Seller may (in its sole discretion):
6.3.1 increase the credit limit on the Account, in which case the payment terms of the Price under condition 6.2 shall apply;
6.3.2 require a payment to be made to reduce the credit on the Account to below the credit limit for the Account; or
6.3.3 require the Price to be paid in accordance with condition 6.1 (or such other time before the period set out in condition 6.2).
6.4 All payments shall be made in Canadian Dollars by credit or debit card, or direct transfer of immediately available funds to the Seller’s nominated bank account.
6.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
6.6 The Seller shall be entitled to recover the Price, notwithstanding that delivery may not have taken place and the title in the Goods has not passed to the Buyer. Timely payment of the Price shall be of the essence of the Contract.
6.7 In the event of late payment, and without limiting any other right or remedy available to the Seller, the Seller may at its discretion:
6.7.1 charge interest on the overdue amount at the rate of the lesser rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly from the due date up to the date of actual payment, whether before or after judgment; and/or
6.7.2 cancel the Contract and/or suspend any further deliveries to the Buyer under the Contract or any other contract made between the Seller and the Buyer, whether made before or after the Contract.
6.8 No payment shall be deemed received until the Seller has received cleared funds.
7 DELIVERY
7.1 Unless agreed otherwise in writing or the Buyer collects the Goods from the Seller’s premises, the Goods shall be supplied Delivered at Place (Incoterms 2020) to such address as the Buyer specifies (the “Delivery Point”) using Seller's standard methods for packaging and shipping such Goods.
7.2 Delivery of the Goods shall be completed either at the time the Buyer collects the Goods at the Seller’s premises or on the Goods’ arrival at the Delivery Point. Unless otherwise agreed in writing, the Buyer shall be responsible for loading the Goods at the Seller’s premises or unloading the Goods at the Delivery Point and shall provide equipment and labor reasonably suited to unload the Goods at the Delivery Point.
7.3 If the Buyer does not have an Account:
7.3.1 Goods shall only be made available for collection or dispatched by the Seller once payment has been received in full;
7.3.2 unless otherwise agreed in writing, the Seller shall use its commercially reasonable efforts to ensure that Goods are made available for collection or delivered to the Buyer within ten (10) Business Days of receipt of payment for such Goods.
7.4 If the Buyer has an Account:
7.4.1 Goods shall be made available for collection or dispatched as soon as reasonably practicable after receipt of Buyer’s Order; and
7.4.2 unless otherwise agreed in writing, the Seller shall use commercially reasonable efforts to ensure that Goods are made available for collection or delivered to the Buyer within ten (10) Business Days after the date of the Order.
7.5 Subject to Section 5.3.2, the Buyer may request delivery of the Goods at a certain time or place or by a specific means.
7.6 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be of the essence. The Seller shall not be liable for any loss or damage occurring through any failure or inability to meet such dates. The Goods may be made available for collection or delivered by the Seller in advance of the specified delivery date by giving reasonable notice to the Buyer.
7.7 Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Goods shipped whether such shipment is in whole or partial fulfilment of Buyer's Order
7.8 If, for any reason, on the date for delivery the Buyer fails to collect or accept delivery of any of the Goods due to the Buyer’s fault:
7.8.1 risk of loss to the Goods will immediately pass to the Buyer;
7.8.2 the Goods will be deemed to have been delivered; and
7.8.3 the Seller may, at its option, store the Goods until actual delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
7.9 If the Buyer does not have the equipment or facilities to unload the Goods on delivery, the Seller reserves the right to charge a reasonable sum in respect of unloading the Goods on the Buyer’s behalf.
7.10 The Buyer shall not be entitled to object to or reject the Goods if the Seller delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order or Special Order invoice (as the case may be) on receipt of written notice from the Buyer that the wrong quantity of Goods was delivered.
7.11 The Seller shall not be liable for any non-delivery of the Goods (even if caused by the Seller’s negligence) unless the Buyer gives written notice to the Seller of the non-delivery within seven (7) days of the date when the Goods would in the ordinary course of events have been received. The Seller’s liability for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit at the pro rata rate against any invoice respecting such Goods.
7.12 The Buyer shall inspect the Goods with seven (7) days of receipt (the “Inspection Period”). The Buyer will be deemed to have accepted the Goods unless it notifies the Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by the Seller. “Nonconforming Goods” means only the following: (i) the Goods shipped are different than identified in the Buyer’s Order; (ii) product’s label or packaging incorrectly identifies its contents; or (iii) the Goods are damaged, lost or there is a shortfall.
7.13 If the Buyer timely notifies the Seller of any Nonconforming Goods, the Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods; or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by the Buyer in connection therewith. The Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to a facility designated by the Seller. If the Seller exercises its option to replace Nonconforming Goods, the Seller shall, after receiving the Buyer’s shipment of Nonconforming Goods, ship to the Buyer, at the Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
7.14 The Buyer acknowledges and agrees that the remedies set forth in Section 7.13 are the Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
8 RETURNS AND CANCELLATION
8.1 Subject to the provisions of this condition 8, no Order or Special Order in respect of which an Acceptance has been issued may be cancelled by the Buyer except with the written agreement of the Seller and on terms that the Buyer shall indemnify the Seller in full against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller in the performance of the Contract up to (and including) the date of cancellation or as a result of cancellation.
8.2 The Seller, without incurring any liability of any nature or kind whatsoever to the Buyer, may reject or cancel an Order or Special Order at any time up to the agreed estimated date for delivery and for any reason (including due to unavailability of stock), even if the Seller has previously accepted that Order or Special Order, by giving the Buyer prior written notice.
8.3 Subject to condition 8.4, the Buyer shall be entitled to return Goods for any reason for up to thirty days following the date of collection or delivery of such Goods, in which case the Buyer shall be liable to pay the Seller 20% of the value of the Price, in addition to the actual costs incurred by the Seller in delivering the Goods to the Buyer and returning the Goods to the Seller.
8.4 The Buyer shall not be entitled to return bespoke Goods ordered under a Special Order unless the bespoke Goods do not comply with condition 10.1.
9 RISK AND TITLE
9.1 The Goods are at the risk of the Buyer from the time of delivery or deemed delivery under condition 7.8.
9.2 Notwithstanding condition 9.1, title to the Goods shall not pass to the Buyer until the earlier of:
9.2.1 the Seller receiving in full all sums due to it in respect of the Goods and other sums which are or become due to the Seller from the Buyer on any Account; or
9.2.2 the Buyer reselling the Goods, in which case title to the Goods shall pass to the Buyer immediately before the time at which resale by the Buyer occurs.
9.3 Until title to the Goods has passed to the Buyer (and provided that the Goods are in existence and have not been resold), the Buyer must:
9.3.1 keep the Goods separate from those of the Buyer and third parties;
9.3.2 keep the Goods properly stored, protected, insured and identified as those of the Seller;
9.3.3 give the Seller such information relating to the Goods as the Seller may require from time to time;
9.3.4 notify the Seller immediately if the Buyer becomes subject to any of the events listed in condition 12.1; and
9.3.5 hold any proceeds of the insurance referred to in condition 9.3.2 in trust for the Seller and not mix the proceeds with any other money, nor pay the proceeds into an overdrawn bank account, but the Buyer may resell or use the Goods in the ordinary course of its business.
9.4 Until title to the Goods has passed to the Buyer (and provided that the Goods are in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so immediately, to enter on any premises of or under the control of the Buyer where the Goods are stored and repossess the Goods, and the Buyer shall be deemed to have irrevocably granted the Seller permission to do so.
9.5 In the event that the Buyer has not paid the Seller in full for the Goods as contemplated in condition 9.2.1 when the Goods are sold, the Buyer shall also hold any proceeds from the sale of the Goods in trust for the Seller, not mix the proceeds with any other money nor pay the proceeds into an overdrawn bank account, and pay the Seller in full for the Goods as contemplated in condition 9.2.1 upon the earlier of receipt of such proceeds or the applicable due date for payment pursuant to condition 6.
10 LIMITED WARRANTY
10.1 The Seller warrants to Buyer that for a period of seven (7) years from the delivery of the Goods (“Warranty Period”), such Goods will materially conform to the Seller’s published specifications at the time of delivery and will be free from material defects in workmanship.
10.2 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10.1, THE SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
10.3 Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the limited warranty in Section 10.1. For the avoidance of doubt, THE SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
10.4 The Seller shall not be liable for a breach of the limited warranty in Section 10.1 if the:
10.4.1 defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
10.4.2 the Buyer alters or repairs the Goods without the written consent of the Seller;
10.4.3 defect arises from fair wear and tear (as determined by the Seller in its sole and absolute discretion), cosmetic rust, scratches, dents, or willful damage, negligence, abnormal working conditions or misuse, environmental or other external factors;
10.4.4 the Buyer makes any further use of the Goods after giving notice of a defect in writing to the Buyer;
10.4.5 defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;
10.4.6 the defect or imperfection is of a minor or insignificant nature in respect of the Goods; or
10.4.7 the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
10.5 Subject to Section 10.3 and 10.4 and the Seller’s right to examine such Goods, if any of the Goods do not comply with the warranty in Section 10.1, the Seller’s liability shall be limited (at the Seller’s option) to the repair or replacement of such Goods (or the defective part(s) in question) or the refund of the Price (or a proportionate part of the Price), and the Seller shall have no further liability to the Buyer.
10.6 If the Seller so requests, the Buyer shall, at the Seller’s expense, return the Goods or the defective part(s) in question to the Seller. Any Goods replaced will belong to the Seller and any repaired or replacement Goods will be guaranteed on these terms.
10.7 THE REMEDIES SET FORTH IN THIS SECTION 10 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND THE SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10.1.
11 LIMITATION OF LIABILITY
11.1 SUBJECT TO CONDITIONS 7.11, 10.4 AND 11.2:
11.1.1 THE SELLER’S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, PRODUCTS LIABILITY, FUNDAMENTAL BREACH, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE, CONTEMPLATED OR NON-PERFORMANCE OF THE CONTRACT SHALL BE LIMITED TO THE TOTAL SUM PAID BY BUYER FOR GOODS SUPPLIED OR TO BE SUPPLIED UNDER THE CONTRACT; AND
11.1.2 REGARDLESS OF CIRCUMSTANCES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACTS, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, PRODUCTS LIABILITY, FUNDAMENTAL BREACH, RESTITUTION OR OTHERWISE, THE SELLER SHALL NOT BE LIABLE TO THE BUYER FOR ANY:
(A) LOSS OR SHORTFALL IN THE GOODS, OR DAMAGE CAUSED TO THE GOODS IN TRANSIT, UNLESS IT HAS BEEN NOTED IN ACCORDANCE WITH CONDITION 7.12 AND NOTIFIED TO THE SELLER WITHIN FOUR BUSINESS DAYS OF THE DATE OF DELIVERY (TO THE EXTENT THAT SUCH LOSS, SHORTFALL OR DAMAGE IS NOT COVERED BY THE WARRANTY IN CONDITION 10.1);
(B) LOSSES OR DAMAGES INCURRED BY THE BUYER WHICH ARISE AS A DIRECT OR INDIRECT RESULT OF ANY OF THE GOODS BEING BROKEN INTO OR ENTRY INTO ANY GOODS BEING FORCED (INCLUDING ANY ATTEMPTS TO DO SO);
(C) LOSSES OR DAMAGES INCURRED BY THE BUYER IN ANY OF THE CIRCUMSTANCES DESCRIBED IN CONDITION 10.3 OR 10.4;
(D) LOSSES OR DAMAGES INCURRED BY THE BUYER IN RELATION TO BESPOKE GOODS MANUFACTURED BY THE SELLER PURSUANT TO A SPECIAL ORDER WHICH DOES NOT COMPLY WITH CONDITION 4.1, OR WHICH ARISE DUE TO THE BUYER’S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER CONDITION 4.2; OR
(E) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES OF ANY NATURE OR KIND WHATSOEVER WHICH ARISE OUT OF OR IN CONNECTION WITH THE CONTRACT. INCLUDING, WITHOUT LIMITATION, PURE ECONOMIC LOSS, LOSS OF PROFIT, LOSS OF BUSINESS, FAILURE TO REALIZE SAVINGS, DEPLETION OF GOODWILL OR OTHERWISE, OR FOR ANY CLAIMS OR DEMANDS AGAINST THE BUYER BY ANY THIRD PARTY (HOWSOEVER CAUSED), EVEN IF THE SELLER MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR IF SUCH LOSSES OR DAMAGES WERE REASONABLY FORESEEABLE.
11.2 Nothing in these Conditions excludes or limits the liability of the Seller:
11.2.1 for death or personal injury caused by the Seller’s negligence;
11.2.2 for fraud or fraudulent misrepresentation; or
11.2.3 which the Seller cannot exclude or limit its liability under applicable laws.
12 TERMINATION
12.1 The Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if:
12.1.1 the Buyer is in breach of the Contract and has not remedied such breach within 14 days of receiving written notice of the breach from the Seller; or
12.1.2 the Buyer makes any assignment for the benefit of its creditors or makes any other voluntary arrangement with its creditors, the Buyer or any third party files a petition of any type as to the Buyer’s bankruptcy, the Buyer makes a declaration of bankruptcy, the Buyer becomes insolvent, or the Buyer goes into liquidation;
12.1.3 an encumbrancer takes possession, or a receiver is appointed, of any of the Buyer’s property or assets; or
12.1.4 the Buyer ceases, or threatens to cease, to carry on business; or
12.1.5 the Seller reasonably believes that any of the events mentioned above is about to occur in relation to the Buyer; or
12.1.6 the Buyer reasonably believes that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Seller accordingly.
12.2 If this condition 12 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to terminate the Contract and/or any other contract between the Seller and the Buyer, or suspend any further deliveries of Goods under the Contract and/or any other contract between the Seller and the Buyer without any liability to the Buyer, and if Goods have been delivered but have not yet been fully paid for, the full Price (or any such portion thereof) for such Goods shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary (including any other provision of the Contract).
12.3 On termination of the Contract and/or any other contract pursuant to condition 12.1 or 13, the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest.
12.4 Termination of the Contract and/or any other contact pursuant to condition 12.1 or 13, however arising, shall not affect any of the Parties' respective rights, remedies, obligations and liabilities that have accrued as at termination.
12.5 All conditions which expressly or by implication survive expiry or termination of the Contract (specifically including conditions 4.3.3, 7.11, 10.2, 10.4, 11, 13, 14 and 15) shall continue in full force and effect following the date of expiration or termination.
13 FORCE MAJEURE
13.1 The Seller shall not be liable for any failure to perform or delay in performance of its obligations under the Contract due to any Force Majeure Event. If any Force Majeure Event delays or prevents the Seller’s performance of its obligations for a continuous period of 3 months then either Party may, at its discretion, terminate the Contract by written notice to the other Party at the end of such period.
14 ASSIGNMENT
14.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
14.2 The Seller may assign the Contract or any part of it to any person.
15 GENERAL
15.1 No variation of these Conditions or the Contract shall be valid unless made in writing and signed by or on behalf of the Seller.
15.2 If any provision or part-provision of the Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any such invalidity or unenforceability shall not affect the validity or enforceability of any of the other provisions of the Contract which shall remain in full force and effect.
15.3 The Parties do not intend any person other than a Party to the Contract to be able to enforce any term of the Contract (save and except only where a contrary intention is expressly stated otherwise in the Contract).
15.4 All notices under the Contract shall be:
15.4.1 in writing and addressed, in the case of the Buyer, to the intended delivery address or by email to the email address provided as part of the Order or Special Order, and, in the case of the Seller, to its registered office or such other address as it notifies the Buyer from time to time, or by email to [email protected].
15.4.2 deemed to have been duly given when delivered to the address referred to in condition 15.4.1, if delivered by messenger (including by courier) during normal business hours of the recipient; or 72 hours after being deposited in Canada Post mail, Priority mail postage prepaid or 24 hours after tracking shows delivered, whichever is longer, or at the time of transmission if sent by email (if the sender has no reason to understand that the email message was not received and if the message is received during the normal business hours of the recipient, failing which 9:00 am local time during the next normal business hours of the recipient).
15.5 The provisions of condition 15.4 shall not apply to the service of any proceedings or other documents in any legal action.
15.6 Failure on the part of the Seller to enforce any provision of the Contract or to require performance by the Buyer of any provision shall not be construed to be a waiver of the Contract or any provision thereof or the right of the Seller thereafter to enforce each and every provision in accordance with the terms of the Contract.
15.7 No action:
15.7.1 alleging the commission of a tort may be brought by either Party more than one year after the date on which the claimant first new, or ought to have known, of all material facts of a decisive character upon which the action is based; or
15.7.2 alleging breach of contract or any other breach of duty other than a duty owed in tort may be brought by either Party more than one year after the cause of action arose; except that in any case an action alleging non-payment of monies owing under the Contract may be brought within one year after the date of last payment.
15.8 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes) shall be governed by and construed in accordance with the laws of the province of Manitoba, Canada and the federal laws of Canada applicable therein, excluding (i) its choice of law rules; and (ii) the United Nations Convention of Contracts for the International Sale of Goods. The Parties irrevocably submit to the exclusive jurisdiction of the courts in the province of Manitoba, Canada in respect of any such dispute or claim; provided that the Seller may seek equitable relief in any court of competent jurisdiction.
15.9 All non-public, confidential or proprietary information of the Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by the Seller to the Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the Seller in writing. Upon the Seller's request, the Buyer shall promptly return all documents and other materials received from the Seller. The Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
