2. PAYMENT TERMS; LATE FEE. The purchaser shall not retain or withhold from the Company any sum stated on any invoice for any reason whatsoever. The purchaser’s payment obligation is in no way contingent upon the purchaser’s receipt of payment from any party. Each invoice rendered by the Company to the purchaser shall be deemed correct and binding upon the purchaser unless the Company shall receive a written statement of objection within ten (10) days after such invoice is rendered. Interest shall accrue on all amounts remaining unpaid after the due date at the lesser of: (i) one and one-half percent (11 /2%) per month, or (ii) the maximum lawful rate. If the Company refers an invoice to legal counsel or any other party for collection, the purchaser shall pay on demand all of the Company’s expenses of collection including, without limitation, reasonable legal fees and costs including fees and expenses of any expert retained by the Company. To the fullest extent permitted by law, the Company reserves the right at any time to suspend credit or to change the payment or credit terms provided herein or elsewhere when, in the Company’s sole determination, the financial condition or business prospects of the purchaser so warrant. In such a case, in addition to any other rights herein or by law provided, adequate assurances of the purchaser’s ability to perform its obligations to the Company, such as a cash payment by the purchaser or satisfactory security from the purchaser, may be required by the Company before shipment. Without precluding the use of other forms of assurances, the Company may accelerate the due date of payment under any invoice or order. Failure to pay any invoice in full by its stated due date shall automatically cause all other invoices to the purchaser to be immediately due and payable irrespective of their terms, and the Company may withhold all subsequent deliveries until all amounts due the Company by the purchaser have been paid in full. Acceptance by the Company of less than full payment shall not act as a waiver of any of its rights.
3. TAXES. The Company’s prices do not include sales, use, manufacturer’s, retailer’s, occupation, excise, VAT or any similar or other tax, fee, duty, tariff or other charge imposed by any governmental authority on any transaction between the Company and the purchaser. The purchaser shall furnish evidence of any sales tax exemption and shall warrant the validity and accuracy thereof. In all events, any such tax, fee, duty, tariff or other charge, even if initially advanced by the Company or by any export-import broker, shall be the sole obligation of, and shall be promptly paid by, the purchaser.
4. DELIVERY; PERFORMANCE. THE COMPANY WILL NOT PAY OR BE LIABLE FOR ANY PENALTY OR DAMAGE, WHETHER LIQUIDATED OR OTHERWISE, FOR LATE DELIVERY. SHIPPING DATES ARE APPROXIMATE AND ARE NOT GUARANTEED. ALL ORDERS ARE SUBJECT TO, AND THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR, ANY DELAY OR OTHER FAILURE TO PERFORM BY THE COMPANY DIRECTLY OR INDIRECTLY CAUSED BY OR RESULTING FROM THE FOLLOWING FORCE MAJEURE EVENTS: ANY FOREIGN OR DOMESTIC EMBARGOES, SEIZURES, ACTS OF GOD, INSURRECTIONS, WARS, CONTINUANCES OF WAR, DELAYS IN OR THE LACK OF AVAILABILITY OF GOODS, MATERIALS, INGREDIENTS OR COMPONENTS FROM THE COMPANY’S SUPPLIERS, DELAYS IN TRANSPORTATION, STRIKES, FIRES, FLOODS, EXPLOSIONS OR OTHER ACCIDENTS, ACTION BY ANY GOVERNMENTAL AUTHORITY, INCLUDING WITHOUT LIMITATION THE ADOPTION OR ENACTMENT OF ANY LAW, ORDINANCE, REGULATION, PROCLAMATION, RULING OR ORDER, DIRECTLY OR INDIRECTLY INTERFERING WITH OR RENDERING MORE BURDENSOME THE PROCUREMENT, PRODUCTION, MANUFACTURE OR DELIVERY OF GOODS AND SERVICES HEREUNDER, OR ANY ACT OR EVENT BEYOND THE COMPANY’S CONTROL EITHER OF THE FOREGOING NATURE OR OF ANY OTHER KIND, NATURE OR DESCRIPTION. IN ALLOCATING THE RISK OF DELAY OR FAILURE OF PERFORMANCE UNDER THESE CONDITIONS, THE COMPANY AND THE PURCHASER HAVE NOT TAKEN INTO ACCOUNT THE POSSIBLE OCCURRENCE OF ANY OF THE EVENTS LISTED IN THE FOREGOING SENTENCE OR ANY SIMILAR OR DISSIMILAR EVENTS BEYOND THE COMPANY’S CONTROL, IRRESPECTIVE OF WHETHER SUCH LISTED, SIMILAR OR DISSIMILAR EVENTS WERE FORESEEABLE AS OF THE DATE OF THE PURCHASER’S ASSENT TO THESE CONDITIONS.
5. ERRORS; CANCELLATIONS. All stenographic or clerical errors are subject to correction by the Company. Company attempts to ensure that the content on the TricorBraun Canada site is complete and current. However, Company cannot guarantee that the information contained on the TricorBraun Canada site will not contain errors, inaccuracies, or omissions. Such errors, inaccuracies, or omissions may relate to price, product description, availability, or otherwise. Company reserves the right to correct any error, inaccuracy, or omission, or to change or update the content without prior notice to purchaser.
Further, Company reserves the right to refuse or cancel any orders (including without limitation any orders containing any error, inaccuracy, or omission) at any time and for any reason whatsoever whether or not the order has been submitted, confirmed, and/or purchaser’ s credit card has been charged. If purchaser’s credit card has been charged for the purchase and purchaser’s order is canceled by Company, Company shall promptly issue a credit to purchaser’s credit card. Except for issuing such credit (if applicable), Company shall have no liability or obligation to purchaser with respect to any cancelled order.
6. ASSIGNMENT. No purchase order or rights of the purchaser thereunder or elsewhere, or any obligation of the purchaser to the Company, may be assigned by the purchaser without obtaining the Company’s prior written consent in each instance, which consent may be withheld in the Company’s sole discretion. The Company may assign its rights and obligations hereunder in whole or in part on one or more occasions without obtaining the consent of or giving notice to the purchaser.
7. DELIVERY; RISK OF LOSS; SHIPPING INFORMATION. It is agreed that the term “F.O.B.” is a price term only. All risk of loss or damage in transit shall pass to the purchaser upon the goods being placed into the possession of a carrier for shipment to purchaser. Purchaser will be deemed to have accepted the goods upon receipt of the shipment.
Order Shipment Time
Company shall use reasonable efforts to ship all items that are in stock at the time of order entry within one (1) business day from the time that purchaser’s order is entered and purchaser receives its order confirmation number. Purchaser will receive, via email, a notification that its order has been shipped. Such notification will include a tracking number and the name of the freight carrier. Delivery of purchaser’s shipment (if within Canada) will generally occur within three (3) to ten (10) days. International shipments may take longer. Items that are temporarily out of stock will be shipped once the applicable goods are received into Company’s warehouse, generally two (2) to four (4) weeks.
Dependent upon the size of purchaser’s order, Company will generally ship via UPS or FedEx Ground or Common Carrier. The most common method of shipping is FedEx Ground but often for larger items and larger orders Company may find it necessary to ship purchaser’s order via a Common Carrier of Company’s choice.
Company may offer expedited delivery on certain orders if such option is available. If purchaser requests expedited delivery while entering an order through the TricorBraun Canada site, purchaser’s order will not be completed through the TricorBraun Canada site. Rather, upon Company’s receipt of such request for expedited delivery, a customer service representative will contact purchaser (generally within one (1) business day) to advise purchaser of the applicable shipping charges and other potential shipping requirements. If the parties agree to such applicable charges and shipping requirements, then the order will be completed and processed during such telephone call. The parties agree that these Conditions shall apply whether the sale of the goods occurs through the TricorBraun Canada site or through the aforementioned telephone processing.
If purchaser requests delivery to a location outside of Canada while entering an order through the TricorBraun Canada site, purchaser’s order will not be completed through the TricorBraun Canada site. Rather, upon Company’s receipt of such request for international delivery, a customer service representative will contact purchaser (generally within one (1) business day) to advise purchaser of the applicable shipping charges and other potential shipping requirements. If the parties agree to such applicable charges and shipping requirements, then the order will be completed and processed during such telephone call. The parties agree that these Conditions shall apply whether the sale of the goods occurs through the TricorBraun Canada site or through the aforementioned telephone processing.
Shipments to a Residence
If purchaser requests delivery to a residence while entering an order through the TricorBraun Canada site and Company determines that the shipment is too large to ship via FedEx or UPS, a customer service representative will contact purchaser (generally within one (1) business day) to advise purchaser that its shipment will require delivery on a common carrier and that additional shipping requirements may apply. If the parties agree to such shipping requirements, then the order will be shipped to purchaser. If the parties do not agree upon such shipping requirements, the order will be cancelled.
Upon shipment of purchaser’s order, purchaser will be sent via email the tracking number and freight carrier of its shipment. Purchaser will also receive the phone number or tracking method dependent on how its order was shipped with the carrier. Such information should assist purchaser in tracking the status of its shipment.
8. DISCLAIMER OF WARRANTIES. ANY DESCRIPTION OF THE GOODS OR SERVICES CONTAINED ON ANY QUOTATION, PURCHASE ORDER, ORDER ACKNOWLEDGEMENT, BILL OF LADING OR SALES INVOICE IS FOR THE SOLE PURPOSE OF IDENTIFYING THEM, AND DOES NOT CONSTITUTE A WARRANTY THAT THE GOODS OR SERVICES SHALL CONFORM TO THAT DESCRIPTION. THE USE OF ANY SAMPLE OR MODEL IN CONNECTION WITH A SALE OF GOODS OR SERVICES IS FOR ILLUSTRATIVE PURPOSES ONLY AND DOES NOT CONSTITUTE A WARRANTY THAT THE GOODS OR SERVICES WILL CONFORM TO THE SAMPLE OR MODEL. THE COMPANY AND, SUBJECT TO SECTION 9 (THIRD PARTY EQUIPMENT), ITS SUPPLIERS MAKE NO EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY GOODS OR SERVICES SOLD BY THE COMPANY TO THE PURCHASER. THE COMPANY AND, SUBJECT TO SECTION 9 (THIRD PARTY EQUIPMENT), ITS SUPPLIERS MAKE NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED.
9. THIRD PARTY EQUIPMENT. Any equipment sold by the Company that is not manufactured or produced by the Company is warranted solely by the applicable manufacturer and any claims, to the extent permitted, shall be under the manufacturer’s warranties and the purchaser shall look solely to such manufacturer for warranty claims.
10. LIMITATIONS OF LIABILITY. THE COMPANY’S LIABILITY FOR ANY CLAIM OF ANY KIND, INCLUDING ANY SUCH CLAIM RELATING TO THE COMPANY’S OR ITS SUPPLIERS’ NEGLIGENCE, OR FOR ANY LOSS OR DAMAGE RESULTING FROM ANY CONTRACT FOR SALE OF GOODS OR SERVICES OR FOR THE PERFORMANCE OR BREACH THEREOF OR RELATING TO THE DESIGN, MANUFACTURE, SALE, DELIVERY, RESALE, INSTALLATION, TECHNICAL DIRECTION OF INSTALLATION, INSPECTION, REPAIR, OPERATION OR USE OF ANY GOODS, SHALL IN NO EVENT EXCEED THE PRICE ALLOCABLE TO THE GOODS OR SERVICES OR UNIT THEREOF WHICH GIVES RISE TO ANY SUCH CLAIM, LOSS OR DAMAGE. IN NO EVENT SHALL ANY PENALTY OR LIQUIDATED DAMAGES CLAUSE OF ANY DESCRIPTION BE EFFECTIVE AND BINDING UPON THE COMPANY UNLESS SPECIFICALLY APPROVED IN WRITING BY AN EXECUTIVE OFFICER OF THE COMPANY. IN NO EVENT SHALL THE COMPANY OR ITS SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING IN CONNECTION WITH OR ARISING OUT OF THESE TERMS AND CONDITIONS OR THE USE OF THE GOODS OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR REVENUES, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING THEORIES OF NEGLIGENCE, RECKLESSNESS, STRICT LIABILITY, OR DEFECTIVE PRODUCT LIABILITY), OR ANY OTHER LEGAL THEORY.
SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSIONS OF CERTAIN TYPES OF DAMAGES AND/OR OF IMPLIED CONDITIONS OR WARRANTIES. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THESE CONDITIONS WILL NOT APPLY ONLY IF AND TO THE EXTENT THAT THE LAWS OF A COMPETENT JURISDICTION REQUIRES LIABILITIES BEYOND AND DESPITE THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS. THE PURCHASER ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THESE CONDITIONS CONSTITUTE AN ESSENTIAL ELEMENT OF THE GOODS AND SERVICES AND THAT IN THE ABSENSE OF SUCH LIMITATIONS, EXCLUSIONS AND DISCLAIMERS, THE CONTRACT PRICE WOULD BE SUBSTANTIALLY HIGHER AND COULD IMPACT THE COMPANY’S ABILITY TO OFFER AND THE PURCHASER’S ABILITY TO RECEIVE AND USE THE GOODS AND SERVICES IN THE PURCHASER’S JURISDICTION.
12. TRADE PRACTICES. For each order of goods, purchaser agrees that there may be a variance of actual quantity delivered of plus or minus ten percent (10%). Prices for all goods and services are subject to customary adjustments, including, without limitation, adjustments based on changes in energy and raw material costs and are dependent on price in effect at time of shipment. Ship dates and lead times are subject to receipt of approved specifications from the purchaser.
13. CONFIDENTIALITY. In connection with the offer for sale and the sale of goods and services to the purchaser, the Company may disclose to the purchaser confidential business information of the Company, including, but not limited to, prices of goods or services and the names of the Company’s suppliers of goods or services. The purchaser agrees to maintain the confidentiality of this information and not to disclose any of the information to third parties and not to use this information for any purpose unrelated to the sale of goods and services pursuant to these Conditions. The purchaser acknowledges and agrees that the Company would not have an adequate remedy at law and may be irreparably harmed in the event that any of the provisions of this Section were breached or not performed by the purchaser. Accordingly, the purchaser acknowledges and agrees that the Company shall be entitled to seek injunctive relief to prevent breach of this Section and to specific performance of these Conditions, in addition to any other remedy which the Company may be entitled to at law or in equity.
14. ARBITRATION; JURISDICTION AND VENUE. Any dispute, controversy, or claim arising out of or relating to these Conditions or the breach thereof or from the sale of goods or services by the Company to the purchaser shall be resolved by final and binding arbitration administered by ICDR Canada in accordance with its Canadian Arbitration Rules, provided that, where less than the equivalent of US $250,000.00 is at issue in any such dispute, controversy, or claim, the arbitration shall be conducted by one (1) arbitrator. The language of the arbitration shall be English. All such arbitration proceedings: (a) involving TricorBraun Canada, Inc. or Taipak Enterprises Ltd. shall take place in Vancouver, British Columbia, Canada, and (b) involving Pet Power Containers Inc. shall take place in Toronto, Ontario, Canada. In the event there is any litigation relating to this paragraph requiring arbitration or any other matter that is found not to be subject to arbitration, then the parties irrevocably agree that jurisdiction and venue in any such lawsuit shall properly (but not exclusively) lie in a court of competent jurisdiction (i) in the City of Vancouver, Province of British Columbia in cases involving TricorBraun Canada, Inc. or Taipak Enterprises Ltd., or (ii) in the City of Toronto, Province of Ontario in cases involving Pet Power Containers Inc., and the parties irrevocably agree that venue would be proper in such court and hereby waive any objection that such court is an improper or inconvenient forum for the resolution of such action.
15. ATTORNEYS’ FEES. In connection with any arbitration or litigation arising from the sale of goods or services by the Company to the purchaser, the prevailing party shall be entitled to recover its reasonable legal fees and expenses from the non-prevailing party as part of the same arbitration or litigation; provided, however, if a party prevails on some, but not all, of its claims, such party shall be entitled to recover an equitable amount of such fees, costs and expenses, as determined by the applicable arbitrator or court commensurate with its degree of success against the non-prevailing party.
If purchaser discovers a material defect in the goods with respect to materials or workmanship, purchaser may request an exchange, refund or return. If Company confirms the existence of a material defect in the goods with respect to materials or workmanship and purchaser requests an exchange, refund or return within 7 days of purchase, Company will allow the requested exchange, refund, or return. All exchanges, refunds and/or returns shall be limited to the amount paid by purchaser to Company for the defective goods. Purchaser’s sole remedy and Company’s sole liability for defective goods shall be exchange, refund or return of such goods.
All requests for exchange, refund or return not involving defective goods shall be handled by Company on a case-by-case basis and may be accepted or rejected by Company in its sole discretion. Company reserves the right to charge a restocking fee of 30% of the total product price on all returns authorized by Company not involving defective goods. If applicable, such amount will be deducted by Company from the credit issued to purchaser. Purchaser will be informed of whether this fee will apply when a return authorization number is provided.
All requests for exchange, refund or return (whether involving defective goods or otherwise) must be received by Company within 7 days of purchase. No credit will be issued for any customization performed to the goods after shipment by Company to purchaser. Company will only accept returned product and issue credit if a return authorization number is noted on the return.
Unless otherwise indicated by Company, all goods shall be returned F.O.B. point of delivery and all risk of loss or damage in transit shall not pass to Company until Company receives delivery. All freight charges for returns are purchaser’s responsibility and credit will not be issued for original freight charges and custom fees or any fees or expenses required for shipping the goods back to Company.
Company will make commercially reasonable attempts to assure that when a package is shipped to purchaser, it is wrapped to avoid damage during transit; however, there are circumstances that could cause damage to the shipment. If purchaser’s goods arrive damaged, purchaser agrees not to refuse the shipment. Instead, purchaser shall notify Company immediately so that Company may correct the issue by providing replacement goods. If the shipment is refused by purchaser, Company will not assume responsibility for any credits, refunds, exchanges, or returns that may be due to purchaser or otherwise required hereunder.
Contact Information for Returns or Damaged Shipments:
For all exchanges, refunds, returns or damages, purchaser must notify Company using one of the following methods.
17. INDEMNIFICATION AGAINST PATENT INFRINGEMENT. If any goods sold by the Company are not part of the Company’s standard line offered by it in the usual course of the Company’s business, but are produced in accordance with the purchaser’s specifications, requirements, designs or other request, the purchaser shall indemnify and hold the Company and its successors and assigns harmless from and against all losses, damages and expenses, including, without limitation, legal fees and costs including the fees and expenses of any expert, arising out of any claim or demand in the nature of patent infringement, trade dress infringement, unfair competition or the like asserted against the Company and/or its successors and assigns, and shall defend any such claim or demand at its sole expense, provided that the purchaser shall not consent to the entry of any judgment or enter into any settlement or compromise with respect to any such claim or demand without the Company’s prior written consent. This indemnification applies to the initial adjudication, in whatever forum, and all subsequent appeals or other proceedings with respect thereto.
18. APPLICABLE LAW. The terms of these Conditions shall be interpreted and the rights and obligations of the parties hereto shall be governed and determined by: (a) the laws of the Province of British Columbia and the laws of Canada applicable therein in the case of the sale of goods or services by TricorBraun Canada, Inc. or Taipak Enterprises Ltd.; or (b) the laws of the Province of Ontario and the laws of Canada applicable therein in the case of the sale of goods or services by Pet Power Containers Inc. Whenever the term “Sale of Goods Act (British Columbia)” is used herein, it shall be construed as meaning the Sale of Goods Act, RSBC 1996, c 410 as effective and in force on the date of a sale of goods or services by the Company to the purchaser to which these Conditions apply. In the case of the sale of goods or services by TricorBraun Canada, Inc. or Taipak Enterprises Ltd., whenever a term defined by the Sale of Goods Act (British Columbia) is used in these Conditions, the definition contained in the Sale of Goods Act (British Columbia) shall determine its meaning as used herein. Whenever the term “Sale of Goods Act (Ontario)” is used herein, it shall be construed as meaning the Sale of Goods Act, RSO 1996, c S.1 as effective and in force on the date of a sale of goods or services by the Company to the purchaser to which these Conditions apply. In the case of the sale of goods or services by Pet Power Containers Inc., whenever a term defined by the Sale of Goods Act (Ontario) is used in these Conditions, the definition contained in the Sale of Goods Act (Ontario) shall determine its meaning as used herein. The purchaser and the Company agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to the interpretation or enforcement of these Conditions.
19. COMPLIANCE WITH LAWS. Each party will comply with applicable federal, state, provincial and local laws, rules, ordinances and regulations, including, but not limited to, anti-corruption laws (“Applicable Laws”) in connection with the activities contemplated under these Conditions. In no event shall either party be obligated under these Conditions to take any action that it believes, in good faith, would cause it to be in violation of any Applicable Laws. The purchaser is responsible for ensuring compliance with Applicable Laws related to the receipt of the goods and services.
20. PURCHASER’S REPRESENTATION OF SOLVENCY. The purchaser represents, by placing any purchase order for goods or services or by accepting tender of goods, that the purchaser is not insolvent as that term is defined in Section 3 of the Sale of Goods Act (British Columbia) or Section 1(3) of the Sale of Goods Act (Ontario). In the event that the purchaser becomes insolvent before tender or delivery of the goods, the purchaser shall so notify the Company in writing. Any failure to notify the Company in writing shall be construed as a reaffirmation of the purchaser’s solvency at the time of delivery.
21. INTERPRETATION; PAROL EVIDENCE; TRADE USAGE. Except as otherwise agreed in writing by the parties, these Conditions are intended by the parties as a final expression of their agreement and are intended as a complete and exclusive statement of the terms and conditions of sale with respect to any sale of goods or services by the Company to the purchaser. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used in these Conditions. Acceptance or acquiescence in a course of performance rendered under these Conditions shall not be relevant to determine the meaning of these Conditions even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity for objection. If any provision of these Conditions shall be unenforceable, then such provision shall be null and void but the remainder of these Conditions shall remain in full force and effect. The paragraph headings herein are for convenience only and shall not be deemed to limit or otherwise modify the terms hereof. This document shall be construed and interpreted without regard to any presumption against the party who drafted the document.
No agent, employee or representative of the Company has any authority to bind the Company to any affirmation, representation or warranty concerning the goods or services sold by the Company, and unless an affirmation, representation or warranty made by an agent, employee or representative is specifically included in these Conditions it shall not be enforceable by the purchaser.
22. LANGUAGE. The parties have required that these Conditions and all agreements, instruments, documents and notices relating to these Conditions be drawn up in the English language. Les parties aux présentes ont exigé que les présentes conditions et tous autres contrats, instruments contractuels, documents ou avis afférents aux présentes conditions soient rédigés en langue anglaise.