ORDER ACKNOWLEDGEMENT
GENERAL TERMS AND CONDITIONS OF SALE OF ORGANIC FERTILIZERS
These General Terms and Conditions of Sale (“TCS”) shall govern the provision of all Goods and Services by Green Life Energy BBKI, (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. For all 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. With regard to the order of trial samples for internal research of Customer, is equates to the retail price and is paid on the terms of the manufacturer. 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 (U.S.) (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 U.S. and/or the State of Pennsylvania, Customer shall be solely responsible for all fees and expenses relating to export documentation, export packing, marking, or importation into the destination country and/or another state of the U.S.
(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 State of Pennsylvania, together with the federal laws of U.S. 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 U.S. 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 State of Pennsylvania, 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.
(7) 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.