Advantage Box Company Limited (“Seller”) has agreed to sell, and the person identified as the buyer (“Buyer”) on the sales order (the “Sales Order”) has agreed to purchase, the goods described in the Sales Order and the relevant invoice issued by Seller (the “Invoice”) in the quantities therein stipulated (collectively, the “Goods”) in consideration for the Purchase Price, as herein defined, on the terms and conditions of the Sales Order, the Invoice and as follows (collectively, the “Terms and Conditions”).
Unless otherwise specifically evidenced by a separate written addendum duly signed by Buyer and Seller, the Sales Order, the Invoice and the Terms and Conditions constitute the entire agreement made between Buyer and Seller in relation to the purchase and sale of the Goods (the “Agreement”) and supersedes all other understandings, whether verbal or written, of Seller and Buyer. Buyer acknowledges its acceptance of this Agreement by (a) signing the Sales Order or (b) accepting any part of the Goods. For all purposes Buyer shall be deemed to have accepted the Goods at the time of the delivery of the Goods, or any part thereof, to Buyer unless Buyer refuses to accept physical possession of the Goods at that time and terminates this Agreement.
PURCHASE PRICE AND PAYMENT:
The purchase price for the Goods (the “Purchase Price”) is equal to the purchase price (exclusive of taxes) stipulated in the Invoice issued by Seller to Buyer in relation to the purchase and sale of the Goods as herein contemplated. Unless otherwise stated in the Invoice, the Purchase Price is in Canadian dollars. Within five days of receipt of the Invoice Buyer may reject the Goods and terminate this Agreement if, and only if, the Purchase Price stipulated by the Invoice is greater than the purchase price which Buyer agreed to pay Seller in consideration for the Goods. Buyer shall pay the Purchase Price and all applicable taxes to Seller in accordance with the payment terms stipulated on the Invoice or in any other case, within thirty days of delivery of the Goods.
CLAIMS, WARRANTIES & LIMITATIONS OF LIABILITY:
Seller represents and warrants to Buyer that Seller owns the Goods and has good and marketable title thereto and Seller shall indemnify and save harmless Buyer against any legal action undertaken by any person claiming a right over the Goods. Seller shall not be liable under any circumstances to Buyer or to any other person where the claimed damages result in whole or in part from misuse of the Goods or the use of components other than those supplied by Seller or where the Goods are not stored, handled, used, packed or disturbed in accordance with the customary good commercial practices of the trade.
EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN OR PROHIBITED BY LAW, GOODS ARE PROVIDED ON AN “AS-IS” BASIS AND SELLER EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, COVENANTS, GUARANTEES AND ASSURANCES, EXPRESS OR IMPLIED, RELATING TO OR ARISING OUT OF THE GOODS OR THE AGREEMENT, INCLUDING ANY REPRESENTATIONS, WARRANTIES, COVENANTS AND GUARANTEES AS TO MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OR TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER OR ANY REPRESENTATIVE OF SELLER SHALL CREATE A REPRESENTATION, WARRANTY, COVENANT, GUARANTEE OR ASSURANCE. ANY SUCH INFORMATION OR ADVICE IS GIVEN AND ACCEPTED AT BUYER’S OWN RISK. BUYER’S EXCLUSIVE REMEDY, AND SELLER’S SOLE LIABILITY, IN RESPECT OF ANY CLAIM, WHETHER IN TORT, CONTRACT, WARRANTY OR OTHERWISE, SHALL BE LIMITED TO REIMBURSEMENT TO BUYER OF THE PURCHASE PRICE PAID FOR THE GOODS AND ALL APPLICABLE TAXES PAID BY BUYER.
Seller shall deliver the Goods to Buyer at the location specified in the Sales Order (the “Delivery Location”) at no additional cost to Buyer. The Goods shall be and shall remain at the risk of Buyer from and after the time of delivery to Buyer or its agent or carrier for transportation to Buyer. Seller shall not be liable to Buyer or any other person for any failure or delay in the delivery of the Goods if such failure or delay is caused, directly or indirectly and whether in part or in whole, to an event beyond Seller’s reasonable control.
TITLE TO GOODS:
Title to all Goods shall remain with Seller until payment of the Purchase Price and all applicable taxes has been received by Seller. If Buyer fails to pay the Purchase Price to Seller when due, Seller, without prejudice to its other remedies, may repossess the Goods at any time thereafter and may suspend the delivery of all goods to Buyer.
Buyer shall indemnify and save Seller harmless from and against every legal claim (including a claim for infringement) arising, in whole or in part, in relation to the preparation, assembly, manufacture or use of any of the Goods, including any printing of any design or legend thereon, by Seller in compliance with Buyer’s specifications, requests, or directions and from all actions and proceedings arising in connection therewith, and all judgments or other recovery therein. Buyer shall promptly pay to Seller any such judgment or recovery together with Seller’s reasonable costs and expenses (including legal expenses incurred in investigating, settling or defending any such claim or action.).
TIME, WAIVER AND TERMINATION:
Time is of the essence of this Agreement. The waiver by either Seller or Buyer 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 Terms and Conditions shall not be deemed to be a waiver of such provision. Except as permitted by this Agreement, Buyer shall not be permitted to terminate this Agreement or to return the Goods to Seller. The provisions of clauses 2, 3, 5 and 6 survive termination of the Agreement.
The Agreement 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 Sale of Goods Act (British Columbia), 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 Buyer in respect of any amount due and owing to Seller from Buyer