All orders for product (“Product”) are subject to written confirmation of acceptance by Blendtek Fine Ingredients Inc. (“Seller”) following credit approval. These Terms, and any sale confirmation agreement appended hereto (collectively, this “Contract”) constitute the entire agreement between the buyer (“Buyer”) and Seller with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the Buyer and Seller. There are no representations, warranties, terms, conditions, undertakings or col lateral agreements, express, implied or statutory, between the parties other than as expressly set forth in this Contract.
BUYER’S SUBMISSION OF ANY PURCHASE ORDER OR LIKE DOCUMENT (“ORDER”) NOT SPECIFICALLY AGREED TO BY SELLER IN WRITING IS HEREBY REJECTED AND AUTOMATICALLY CONSTITUTES BUYER’S IRREVOCABLE ACCEPTANCE OF THESE TERMS. ANY PERFORMANCE OR OTHER ACTION UNDERTAKEN BY SELLER FOLLOWING ITS RECEIPT OF SUCH ORDER, INCLUDING SELLER’S RECEIPT OF ANY PAYMENT, AS WELL AS THE RIGHTS AND OBLIGATIONS OF SELLER AND BUYER, SHALL BE EXCLUSIVELY GOVERNED BY THESE TERMS (AND, IF APPLICABLE, THE REMAINDER OF THE CONTRACT).
ACCEPTANCE AND PRICE:
Except as stated in the Contract, quotations are held open for thirty (30) days from the date on the quotation. Prices quoted will be firm for orders scheduled by Seller to be delivered within sixty (60) days after the Contract date; otherwise, Seller reserves the right to apply prices in effect at the time of delivery, including any surcharges applicable to the cost of production, distribution or storage of Product. Prices do not include sales, use, excise, or other similar taxes or governmental charges, and all such present and future taxes and charges will be paid by Buyer.
Payment terms are as set forth in the Contract. If any government act ion, order or request prevents Seller from adjusting or continuing in effect the price stated in this Contract, Seller shall have the right to cancel this Contract with respect to all or a portion of Product deliverable thereunder, without any liability whatsoever. Each delivery of Product is a separate and independent transaction, and payment for each delivery shall be made accordingly. All payments are to be made in Canadian currency and in full, and are not subject to set -off, recoupment, abatement, counter-claim or any other adjustment.
Delivery to Buyer of Product, and corresponding transfer of title and of all risk of loss, shall occur upon Seller’s loading of Product onto Buyer’s carrier at Seller’s facility, or as may otherwise be agreed in the Contract (the “Delivery Point”). Delivery dates, where stated, are approximate. Buyer grants Seller a purchase money security interest in all Product delivered hereunder until full payment therefor has been received by Seller, and shall execute such related documents as reasonably requested. Seller reserves the right to pack the Product otherwise than as specified by Buyer but otherwise in a commercially reasonable manner. Seller’s written assessments of all weights shall govern, absent manifest error.
Except as provided below, returnable containers, if any,shall remain the property of Seller. Buyer shall pay a deposit fee, per container, to be determined from time to time by Seller. Upon Buyer returning such container, freight prepaid, within ninety (90) days from the date of invoice, in good and fully reusable condition, properly cleaned and without any residue of Product or any other materials, such deposit will be returned. If any returnable container is not so returned, title and all responsibility with respect to such container shall be deemed to have been transferred to Buyer at the Delivery Point, and the deposit fee shall be permanently retained by Seller.
- Seller shall not be liable for breach of any obligation directly or indirectly attributable to circumstances beyond Seller’s reasonable control. Such circumstances include, but are not limited to, acts of God, acts of Buyer, war, riots, accident, fires, explosions, floods, sabotage, terrorism, governmental laws, regulations, orders or act ion, national defense or security requirements, acts or failure to act of its suppliers or other third parties, natural disaster, weather conditions, or shortages of or inability to obtain (as and when required and upon Seller’s usual terms and from its usual sources of supply) suitable or sufficient energy, labor, machinery, facilities, raw materials, transportation, supplies or other resources or services. Labor difficulties, strike, lockout or injunction shall be conclusively presumed to be beyond Seller’s reasonable control, and accordingly within the meaning and intent of this Paragraph 4. All or some of the quantities of Product deliverable under this Contract, or other performance by Seller, that is affected by the events listed this Paragraph 4 may,in the sole and absolute discretion of Seller, be eliminated and/or suspended from the operation of this Contract (with the elimination and/or suspension of Buyer’s corresponding obligations), but such Contract shall remain otherwise unaffected.
- In the event of inability for any reason to supply the quantity of Product stated in this Contract, Seller may in its sole discretion, without any liability, allocate its available supply among any or all purchasers, as well as itself and its affiliates, in a manner that is fair and reasonable.
- Seller shall have the right, without any liability, to discontinue all or any of its performance obligations under this Contract if, in its sole and exclusive good faith opinion, the manufacture, export, import, sale and/or use of the Product, or of any related component or process, by it or any of its affiliates may infringe any patent or intellectual property right.
BUYER COVENANTS AND AGREES TO TRANSPORT, STORE,HANDLE, USE, DISPOSE OF AND OTHERWISE DEAL WITH PRODUCT SAFELY AND IN STRICT COMPLIANCE WITH ALL LAWS AND REGULATIONS AND ALL APPLICABLE STANDARDS OF CARE, INCLUDING IN A MANNER NO LESS STRINGENT THAN ASSET FORTH IN SELLER’S LABELS, MATERIAL SAFETY DATA SHEETS AND OTHER SAFETY AND HEALTH INFORMATION. Seller does not warrant the safety of the Product or its use, whether alone or in combination with any other substance or in any process.
Buyer assumes all responsibility for warning its employees, customers and independent contractors of any hazards associated with the Product, including incorporation of the Product into Buyer’s substances or processes. Seller assumes no liability for Buyer’s failure to comply with Buyer’s obligations under any applicable regulations.
SELLER MAKES NO WARRANTY OF, AND SHALL HAVE NO LIABILITY FOR, MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF SELLER IS AWARE OF SUCH PURPOSE) OR OTHERWISE, WHETHER EXPRESS OR IMPLIED,OTHER THAN THAT THE PRODUCT, UPON DELIVERY TO BUYER AT THE DELIVERY POINT AND NOT ALTERED OR MODIFIED BY BUYER OR ANY THIRD PARTY, SHALL MEET THE SPECIFICATIONS UNDER THIS CONTRACT. EACH OF THE PARTIES EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS OF ANY KIND ABOUT THE PRODUCT WHETHER ARISING BY OPERATION OF LAW, STATUTE, OR CUSTOM. Buyer agrees to inspect the Product immediately upon such delivery and to give notice in writing to Seller of any claim within five (5) days of any LTL delivery and fourteen (14) days of any full load delivery. Failure to give notice in writing as aforesaid within the specified time constitutes an unqualified acceptance of the Product and a waiver of all claims with respect thereto. There are no third-party beneficiaries to these Terms or the Contract. Damages identified by the Buyer upon receipt of the Product and deemed to be rejected and returned to Seller must have photos of the damaged Product in the location of receipt (on/in truck or trailer) accompanied by a completed copy of the damages form supplied by Blendtek. Photos and form to be emailed to firstname.lastname@example.org within twenty four (24) hours of incident.
Seller’s total liability shall be limited to the purchase price of the Product supplied (or to have been supplied) here under in respect of which damages are claimed.All technical or other advice, recommendation or assistance by Seller, whether or not at Buyer’s request, with respect to the Product, its processing, further manufacture, other use or resale or otherwise, is given gratis by Seller and Seller shall not be liable for, and Buyer assumes all risk of, same and the consequences thereof. OTHER THAN AS SET FORTH IN THIS PARAGRAPH 7, SELLER SHALL IN NO EVENT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES,REGARDLESS OF (i) WHETHER THE CLAIM IS BASED ON WARRANTY, CONTRACT,TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, AND (ii) WHETHER SELLER WAS OR SHOULD HAVE BEEN AWARE OF SAME. Upon satisfactory proof of claim by Buyer, and as Buyer’s exclusive remedy, Seller will, within a reasonable time, supply Buyer with replacement product of the same or equivalent type, free of charge, freight prepaid or, at Seller’s option, refund the purchase price for the Product upon return of the Product or other delivered material, or the unused port ion thereof. Buyer claims for replacements and returns for credit will not be allowed unless authorized by Seller in writing.
LIMITATIONS OF ACTIONS:
Subject to Paragraph 6, the right to commence a legal act ion arising out of or in connection with this Contract or the Product expires one (1)year after the cause of action has accrued. Buyer hereby waives any otherwise applicable statute of limitations. Failure by Buyer to commence a legal act ion within one(1) year forever bars Buyer from commencing any legal act ion with respect thereto.
MANUFACTURING DEVICES AND CONFIDENTIAL INFORMATION:
All manufacturing devices, designs, formulas, data, or other technical information of Seller relating to this Contract will remain Seller’s confidential property, and Buyer shall not have any rights thereto, nor any rights to disclose such items or information to any third party. Nothing in this Contract shall be construed (by implication, estoppel or otherwise) as granting, or as an undertaking by Seller to subsequently grant, to Buyer any license, right, title or interest in or to any present or future patent, patent application, know-how, copyright, trademark, trade secret or other proprietary right.
Seller reserves the right, among other remedies,either to terminate this Contract, or to suspend further deliveries under it in the event Buyer fails to pay in full for any one delivery when payment is due. Should Buyer’s credit standing become unsatisfactory to Seller, in its sole and exclusive judgment, advanced cash payments or satisfactory security may be required by Seller for future deliveries and for Product (s) theretofore delivered. Buyer shall be responsible for the payment of reasonable legal fees and related costs and expenses incurred by Seller in (a) any claim or action by Seller to enforce this Contract, and (b) successfully defending any claim or act ion by Buyer.
Buyer shall comply with all applicable legal requirements in its import, use, transport, storage, distribution, and export of the product (especially if not an end use),including compliance with the U.S. Foreign Corrupt Practices Act. Seller’s export of this product and any related technical information may be subject to Federal,Provincial and international laws and regulations control ling the export and re-export of products and data. Seller shall not be obligated under these sales terms to export,transfer or deliver any products and related data to Buyer if prohibited by applicable law or until all necessary government registrations or authorizations have been obtained.
Seller shall not be liable for any expenses or damages resulting from failure to obtain or delays in obtaining any such required government authorizations and may, at its option,rescind a sale if the necessary registrations or authorizations cannot be obtained or are delayed. The Buyer shall indemnify Seller and its affiliates against, and hold Seller harmless from, any claims, damages, costs, expenses, liabilities, losses, or proceedings whatsoever arising out of, or in connection with, any breach by Buyer of its obligations set forth in these Terms or otherwise in the Contract, and from its use, storage or other handling of or resale of Product.
This Contract shall be binding on the success or sand assigns of Buyer and Seller; provided, however, that Buyer shall not assign this Contract in whole or in part without the prior written consent of Seller.
(a) The failure of Seller to insist upon strict performance of any of the provisions of this Contract will not constitute a waiver of those or any other provisions. No waiver by Seller shall be deemed to arise from any course of dealing or trade custom, and will only be effective if set forth in a separate writing, signed by Seller.(b) Should any provision of this Contract be deemed wholly or partly invalid, this shall have no effect on the validity of the remaining provisions.
GOVERNING LAW/WAIVER OF JURY TRIAL:
This Contract shall be interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to the United Nat ions Convention on the International Sale of Goods or other international treaty, rule or accord, and without regard to conflicts of law principles. Seller and Buyer hereby irrevocably submit to the exclusive jurisdiction of the provincial courts located in the Province of Ontario for the resolution of any claim under this Contract, and Buyer agrees not to assert any defense to any suit, action or proceeding initiated by Seller based upon improper venue or inconvenient forum. BUYER AGREES THAT ANY SUIT, ACTION OR PROCEEDING,WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY IT RELATED TO THIS CONTRACT SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. BUYER HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING.
Seller and Buyer expressly agree that this Contract as well as all documents and notices issued here under or relating hereto will be in English. Les partiesont expressément exigé que ce contrat, ainsique tous documents et avis émis en vertu de celuicious’y rattachant, soient en anglais.