Date Last updated: October 31, 2023
These Reseller Standard Terms and Conditions (the “Standard Terms”), together with the Reseller Agreement (as defined below, and together with these Standard Terms, the "Agreement"), govern the terms by which the Reseller (as defined in the Reseller Agreement, will purchase Products from MEDIUM RARE CHEF APPAREL INC. (the “Supplier”) and sell those products to the Reseller’s End Customers.
Capitalized terms have the meanings set out in this Section 1, in the Section in which they first appear in the Standard Terms, or in the Reseller Agreement, as the case may be.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, investigative, regulatory, or other, whether at law, in equity or otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, this Person. For the purpose of this definition, "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
"Business Day" means any day except Saturday, Sunday, or any other day on which commercial banks located in Calgary, Alberta are authorized or required by Law to be closed for business.
"Claim" means any Action made or brought against a Person entitled to indemnification under Section 17.
"Confidential Information" has the meaning set out in Section 15.1.
"Control" (and with correlative meanings, the terms "Controlled by" and "under common Control with") means, regarding any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership of more than fifty percent (50%) of the voting securities, by contract or otherwise.
"Defective" means not conforming to the warranties in Section 16.2.
"Defective Goods" means Products that are Defective, which for the avoidance of doubt, includes any Non-conforming Goods accepted by Reseller under Section 9.4.
"Delivery Point" means the street address specified in the applicable Purchase Order.
"Disclosing Party" has the meaning set out in Section 15.1.
"Dispute" has the meaning set out in Section 19.17.
"Dispute Notice" has the meaning set out in Section 19.17.
"Effective Date" means the Effective Date in the Reseller Agreement.
"End Customer" means the final purchaser that (a) has acquired a Product from Reseller for (i) its own internal use and not for resale, remarketing or distribution or (ii) incorporation into its own products, and (b) is an individual or entity located in the Territory.
"Excess Product" means a Product that, when counted together with all other Products having the same make or SKU and received by Reseller under the same Purchase Order, is in excess of the quantities of the Products ordered under that Purchase Order.
"Force Majeure Event" has the meaning set out in Section 19.18.
"Governmental Authority" means any federal, provincial, territorial, local or foreign government or political subdivision thereof, or any agency or instrumentality of the government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of this organization or authority have the force of Law), or any arbitrator, court, or tribunal of competent jurisdiction.
"Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, award, or determination entered by or with any Governmental Authority.
“GST/HST” means harmonized sales tax, or goods and services tax, imposed under the HST Act (or any provincial or territorial legislation imposing sales tax, harmonized sales tax or goods and services tax.
"HST Act" means Part IX of the Excise Tax Act (Canada).
"Impacted Party" has the meaning set out in Section 19.18.
"Indemnified Party" has the meaning set out in Section 17.1.
"Indemnifying Party" has the meaning set out in Section17.1.
"Initial Term" has the meaning set out in the Reseller Agreement.
"Inspection Period" has the meaning set out in Section 9.4.
"Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (a) Supplier Software; (b) Patents; (c) Trademarks; (d) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (e) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (f) industrial designs and industrial design registrations; (g) Trade Secrets; and (h) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction in any part of the world.
"Law" means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.
"Limited Warranty" has the meaning set out in Section 16.2.
"Losses" has the meaning set out in Section 17.1.
"NFR Products" has the meaning set out in Section 6.1(e).
"Non-Conforming Goods" means any product received by Reseller from Supplier under a Purchase Order that: (a) is not a Product; (b) does not conform to the make or SKU listed in the applicable Purchase Order; or (c) on visual inspection, Reseller reasonably determines are otherwise Defective.
"Notice" has the meaning set out in Section 19.4.
"Notify" means to give Notice.
"Patents" means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates and patent utility models).
"Payment Failure" has the meaning set out in Section 14.2(a).
"Person" means any individual, partnership, corporation, trust, unlimited liability company, unincorporated organization, association, Governmental Authority, or any other entity.
"Personnel" means agents, employees, or subcontractors engaged or appointed by Supplier or Reseller.
"Post-Term Resale Period" has the meaning set out in Section 14.6.
"Price" has the meaning set out in the Reseller Agreement.
"Products" means those products that are identified in the Reseller Agreement, as Supplier may amend in accordance with Section 7.2. For the purposes of Section 9, Products are deemed to include Non-Conforming Goods.
"Purchase Order" means either (i) Reseller's then-current standard form purchase order, or (ii) submission of an order through the Supplier Software.
"Purchase Order Transaction Terms" means any one or more of the terms specified by Reseller in a Purchase Order under Section 8.2. For the avoidance of doubt, the term Purchase Order Transaction Terms does not include any general terms or conditions of any Purchase Order.
"Receiving Party" has the meaning set out in Section 15.1.
"Renewal Term" has the meaning set out in Section 14.1.
"Representatives" means a Party's Affiliates, employees, officers, directors, partners, shareholders, agents, counsel, third-party advisors, successors, and permitted assigns.
“Reseller Agreement” means the executed reseller agreement between the Supplier and the Reseller.
"Reseller Contract" means any material contract or agreement to which Reseller is a party or to which any of its material assets are bound.
"Supplier's Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to Supplier, including Intellectual Property Rights in the Supplier Software.
"Supplier Software" means any software, including web applications and mobile apps, owned or licensed by Supplier and provided to Reseller for the purpose of facilitating the marketing, sale, or support of the Products under the Agreement.
"Supplier's Trademarks" means all Trademarks owned by or licensed to Supplier.
"Taxes" means any commodity tax, including sales, use, excise, value-added, GST/HST, consumption or other similar tax, including penalties or interest, imposed, levied, or assessed by any Governmental Authority.
"Term" has the meaning set out in Section 14.1.
"Territory" is defined in the Reseller Agreement.
"Trademarks" means all rights in and to Canadian and foreign trademarks, service marks, trade dress, trade names, business names, brand names, logos, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein.
"Warranty Period" has the meaning set out in the written warranty statement provided by Supplier to End Customer as described in Section 16.2.
Appointment as Reseller
- Supplier May Sell. Nothing in the Agreement, including any Reseller right to an exclusive Territory, shall prevent Supplier from selling the Products directly to End Customers in the Territory.
- Right to Resell Competitive Products. The Agreement does not preclude either Party from entering into an agreement (a "Competitive Transaction") with any other Person related to the sale, resale, or distribution of other goods or products, including those that are similar to or competitive with the Products; provided, however, that if the Reseller enters into a Competitive Transaction, Reseller must Notify Supplier in writing within five (5) Business Days of Reseller's decision to sell, resell or distribute any product that is similar to or competitive with the Products.
Nature of Relationship
- Independent Contractors. The Parties acknowledge and agree that they are independent contractors and nothing in the Agreement shall create a joint venture, partnership, agency relationship, franchise, or business opportunity between Supplier and Reseller. Neither Party has the authority to act on behalf of the other Party or create any obligations, express or implied. Each Party is responsible for its own Personnel and shall have sole control over the supervision, direction, and control of its Personnel, including matters such as wage rates, taxes, and benefits. Reseller has full discretion over its operations, accounting practices, insurance coverage, Personnel, advertising, customers, and service methods. The relationship between the Parties is solely that of a supplier and reseller.
Which Terms Govern
- Terms of Agreement Prevail over Reseller's Purchase Order. The Agreement is expressly limited to these Standard Terms, the Reseller Agreement, and the Purchase Order Transaction Terms contained in the applicable Purchase Order. The terms of the Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of the Agreement and expressly exclude any of Reseller's general terms and conditions contained in any Purchase Order or other document issued by Reseller.
- Conflict of Terms. In the event of a conflict between the terms contained in these Standard Terms and the Reseller Agreement, the terms contained in the Reseller Agreement shall prevail to the extent necessary to resolve such conflict. Otherwise, these Standard Terms shall govern the Agreement.
General Reseller Performance Obligations
Marketing and Reselling Products. Reseller shall, in good faith and at its own expense:
- market, advertise, promote, and resell the Products to End Customers located in the Territory in accordance with good business practice, in each case using its commercially reasonable efforts to maximize the sales volume of the Products;
- only resell or offer to resell the Products that Reseller currently has in inventory or that have been ordered from Supplier and which order has been accepted by Supplier as available for delivery to Reseller, unless Reseller has received prior written authorization from Supplier;
- have and maintain sufficient knowledge of the Products so as to be able to explain in detail to the End Customers information about features of each Product;
- observe all of Supplier's reasonable directions and instructions in relation to the marketing, advertising and promotion of the Products to the extent that these marketing materials, advertisements or promotions refer to the Products or otherwise use Supplier's Trademarks;
- safeguard user access to any Supplier Software, as outlined in Section 2;
- in any and all contact between Reseller and any End Customer, Reseller must identify to the End Customer Reseller's full legal name, trade name, or both;
- market, advertise, promote, and resell Products and conduct business in a manner that at all times reflects favourably on Products and the good name, goodwill, and reputation of Supplier;
- promptly Notify Supplier of any complaint or adverse claim about any Product or its use of which Reseller becomes aware; provided that nothing in the Agreement requires Reseller to reveal proprietary pricing information; and
- prominently display a representative line of the Products, printed marketing materials and sales aids at each of its retail locations or outlets and ensure that any such demonstration Products are in good working condition for the purposes of conducting sales demonstrations to potential End Customers.
- Safeguarding Access to Supplier Software. Reseller shall take all necessary measures to safeguard and maintain the confidentiality of any access credentials, passwords, or other means of accessing the Supplier Software provided to Reseller. Reseller shall ensure that only authorized Personnel have access to the Supplier Software and that such Personnel comply with any security protocols or guidelines provided by the Supplier. Reseller shall immediately notify the Supplier in the event of any unauthorized access or use of the Supplier Software or any suspected breach of the confidentiality of the Supplier Software. Reseller shall be solely responsible for any unauthorized access, use, or disclosure of the Supplier Software resulting from Reseller's failure to comply with its obligations under this clause.
- Authority to Perform Under the Agreement.Reseller shall, at its own expense, obtain and maintain required certifications, credentials, licences, and permits necessary to conduct business in accordance with the Agreement.
Limited End Customer Support.On and after the Effective Date, for a period of six (6) months following the sale of a Product to any End Customer, Reseller shall, at its own expense respond to End Customer inquiries regarding the Product, including:
- acting as a liaison between the End Customer and Supplier in matters requiring Supplier's participation;
- providing general Product information; and
- collecting relevant problem identification information for Supplier action.
Except as explicitly authorized in the Agreement or in a separate written agreement with Supplier, Reseller may not repair, modify, alter, replace, or otherwise change the Products it sells to End Customers.
Prohibited Acts.Notwithstanding anything to the contrary in the Agreement, neither Reseller nor Reseller Personnel shall:
- make any representations, conditions, warranties, guarantees, indemnities, similar claims, or other commitments (i) actually, apparently, or ostensibly on behalf of Supplier, or (ii) to any End Customer regarding the Products, which representations, conditions, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then-existing representations, conditions, warranties, guarantees, indemnities, similar claims, or other commitments in the Agreement or any written documentation provided by Supplier to Reseller;
- engage in any unfair, competitive, misleading or deceptive practices respecting Supplier, Supplier's Trademarks or the Products, including any product disparagement or "bait-and-switch" practices;
- sell, license, or distribute the Supplier Software on a standalone basis, or remove, translate, or modify the contents or documentation of or related to the software or accessories, including, without limitation, any End Customer licence agreements or warranty statements;
- sell or offer to sell any of the Products or other Supplier-branded products, other than the Products purchased by Reseller from Supplier or from a distributor authorized by Supplier to sell the same to Reseller;
- sell, either directly or indirectly, or assign or transfer, any Products to any Person when Reseller knows or has reason to suspect that the Person may resell any or all of the Products to a third party, including any third-party reseller or distributor;
- sell the Products for a price greater than the MSRP outlined in the Reseller Agreement without the prior written consent of the Supplier; or
- sell or show any NFR Product to any third party, except to demonstrate the NFR Product to one or more prospective End Customers.
Supplier Performance Obligations
Supplier Performance Obligations. During the Term and the Post-term Resale Period, Supplier shall:
- provide any information and support that may be reasonably requested by Reseller regarding the marketing, advertising, promotion, and sale of Products sold to Reseller under the Agreement;
- allow Reseller to participate in any marketing, advertising, promotion, and sales programs or events that Supplier may make generally available to its most favoured authorized resellers of Products, provided that Supplier may alter or eliminate any program at any time;
- approve or reject, in its sole discretion, any promotional information or material submitted by Reseller for Supplier's approval within ten (10) Business Days of receipt; provided that any such approval shall not relieve Reseller of its obligations to comply with Laws or other obligations under the Agreement;
- at its sole option, provide promotional information and material at Reseller's sole cost and expense for use by Reseller in accordance with the Agreement; and
- provide to Reseller, at Reseller’s reasonable request but at the sole discretion of Supplier, products at no charge that are not intended for resale (the "NFR Products"). Reseller shall promptly return all NFR Products to Supplier on the expiration or earlier termination of the Agreement as provided for in Section 5(c)(i). Supplier retains all rights, title, and interest in and to all NFR Products before, during and after the Term.
Agreement to Purchase and Sell the Products
- Terms of the Sale.Supplier shall sell Products to Reseller at the Prices and on the terms and conditions set out in the Agreement.
Availability; Changes in Products. Supplier may, in its sole discretion:
- remove Products without Notice to Reseller, but only if Supplier discontinues all sales of these Products; and
- add to the Products available without Notice to Reseller; and
- without Notice to Reseller, effect changes to any Products or parts/accessories thereto,
in each case, without obligation to modify or change any Products previously delivered or to supply new Products meeting earlier specifications.
- Purchase Order.Reseller shall issue all Purchase Orders either (i) in written form via email, or (ii) through the Supplier Software, and shall cause all written Purchase Orders to contain the Purchase Order Transaction Terms. By placing a Purchase Order, Reseller makes an offer to purchase Products under the terms and conditions of the Agreement, including the Purchase Order Transaction Terms, and on no other terms. Except regarding the Purchase Order Transaction Terms, any variations made to the terms and conditions of the Agreement by Reseller in any Purchase Order are void and have no effect unless agreed to in writing by both parties.
Purchase Order Transaction Terms.Reseller shall specify the following information (collectively, the "Purchase Order Transaction Terms") in each written Purchase Order:
- a list of Products to be purchased, including SKU;
- quantities ordered;
- requested delivery date; and
- Delivery Point.
There are no minimum Purchase Order quantities required under the Agreement.
- Supplier's Right to Accept or Reject Purchase Orders.Supplier may, in its sole discretion, accept or reject any Purchase Order. Supplier may accept any Purchase Order by confirming the order (whether by written confirmation, invoice, through the Supplier Software, or otherwise) or by delivering the Products, whichever occurs first. No Purchase Order is binding on Supplier unless accepted by Supplier as provided in the Agreement.
Cancellation of Purchase Orders.
Supplier may, in its sole discretion, without liability or penalty, cancel any Purchase Order placed by Reseller and accepted by Supplier, in whole or in part:
- if Supplier discontinues its sale of Products or if Products ordered are not available; or
- if Supplier determines that Reseller is in violation of its payment obligations under or is in breach of the Agreement.
- Reseller has no right to cancel or amend any Purchase Order submitted by it, unless agreed in writing by Supplier.
Shipment and Delivery
- Unless expressly agreed to by the Parties in writing, Supplier shall select the method of shipment of and the carrier for the Products. Supplier may, in its sole discretion, without liability or penalty, make partial shipments of Products to Reseller. Each shipment constitutes a separate sale, and Reseller shall pay for the units shipped, whether the shipment is in whole or partial fulfilment of a Purchase Order.
- Unless expressly agreed to by the Parties, Supplier shall deliver the Products at the Delivery Point, using Supplier's or manufacturer's standard methods for packaging and shipping the Products. Unless otherwise agreed, Supplier’s standard shipping method is by standard ground delivery. Reseller may request faster shipping methods. Supplier will accommodate such requests where feasible, but additional costs, if any, will be borne by the Reseller.
- Late Delivery.Any time quoted for delivery is an estimate only. Supplier will make every reasonable effort, consistent with industry standards, to deliver all Products on or before the requested delivery date. Subject to Section 18, Supplier is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver, or delay in delivery. Subject to Reseller's rights under this Section 9.3, no delay in the shipment or delivery of any Product relieves Reseller of its obligations under the Agreement, including accepting delivery of any remaining instalment or other orders of Products.
Reseller shall inspect Products received under the Agreement within twenty-four (24) hours of receipt (the "Inspection Period") of the Products and either accept or, if any Products are Non-Conforming Goods or Excess Products, reject these Products. Reseller will be deemed to have accepted the Products unless it Notifies Supplier in writing of any Non-Conforming Goods or Excess Products during the Inspection Period and furnishes written evidence or other documentation as reasonably required by Supplier. If Reseller timely Notifies Supplier of any Non-Conforming Goods or Excess Products, Supplier shall determine, in its sole discretion, whether the Products are Non-Conforming Goods or Excess Products. If Supplier determines that the Products are Non-Conforming Goods or Excess Products, it shall either, in its sole discretion:
- if the Products are Non-Conforming Goods, (i) replace the Non-Conforming Goods with conforming Products, or (ii) refund the Price for the Non-Conforming Goods; or
- if the Products are Excess Products, refund the Price for the Excess Products.
Reseller shall ship, at its expense and risk of loss, all Non-Conforming Goods and Excess Products to Supplier's facility within a reasonable time frame, to be determined by the Supplier. If Supplier exercises its option to replace Non-Conforming Goods, Supplier shall, after receiving Reseller's shipment of Non-Conforming Goods, ship to Reseller, at Supplier's expense and risk of loss, the replaced Products to the Delivery Point.
Reseller acknowledges and agrees that the remedies set out in Sections 9.4(a) and 9.4(b) are Reseller's exclusive remedy for the delivery of Non-Conforming Goods or Excess Products, subject to Reseller's rights under Sections 16.2 and 16.4 regarding any Non-Conforming Goods for which Reseller has accepted delivery under this Section 9.4.
- Limited Right of Return.Except as provided under Sections 4, 16.2, and 16.4, all sales of Products to Reseller under the Agreement are made on a one-way basis, and Reseller has no right to return Products purchased under the Agreement.
- Title and Risk of Loss. Unless otherwise provided, title and risk of loss to Products shipped under any Purchase Order passes to Reseller on receipt by Reseller at the Delivery Point.
Price and Payment
- Currency. Unless otherwise indicated, all pricing is in Canadian Dollars.
- Shipping Charges and Insurance.Reseller shall pay for shipping charges and insurance costs in accordance with the commercial terms selected by the Parties under Section 9.
- The Prices are exclusive of all applicable Taxes (including GST/HST and provincial sales tax). Each Party will be responsible for the payment of and will pay any applicable taxes, duties, and levies levied on that Party from time to time in relation to the Agreement.
- Supplier will timely remit all applicable sales, use, value-added, services, consumption, and GST/HST charged to the appropriate Governmental Authorities which it is required to collect from Reseller in respect of any Tax referred to in Section 3(a).
- Supplier represents, warrants and covenants to the Reseller that: (i) Supplier will charge, collect, and timely remit all Taxes that it is required to collect and remit under applicable Law; (ii) Supplier is registered for GST/HST purposes and for provincial sales tax purposes and will be continued to be registered for GST/HST and provincial sales tax purposes; (iii) if any other provincial sales tax is applicable to the Goods, Supplier is and will continue to be registered as a vendor for the purposes of such provincial sales tax; and (iv) Supplier's GST/HST registration number is as shown on its Invoices.
- Invoice Disputes.Reseller shall Notify Supplier in writing of any dispute with any invoice (along with a reasonably detailed dispute description) within fifteen (15) Business Days from the Reseller's receipt of the invoice. Reseller shall pay any undisputed portions of the invoice during the resolution of the dispute. Reseller will be deemed to have accepted all invoices for which Supplier does not receive timely Notice of disputes and shall pay all undisputed amounts due under these invoices within the period set out in the Reseller Agreement. The Parties shall seek to resolve all disputes expeditiously and in good faith in accordance with the dispute resolution provisions set out in Section 17. Notwithstanding anything to the contrary, Reseller shall continue performing its obligations under the Agreement during any dispute, including Reseller's obligation to pay all due and undisputed invoice amounts in accordance with the terms and conditions of the Agreement.
- Late Payment.Late interest may be assessed by Supplier on all past due amounts equal to one and one-half percent (1.5%) per month (eighteen percent (18%) per annum) or the maximum allowable interest rate under Law, whichever is less.
- No Set-Off.Reseller shall perform its obligations under the Agreement without set-off, deduction, recoupment or withholding of any kind for amounts owed or payable by Supplier, whether under the Agreement, applicable Law or otherwise, whether relating to Supplier's breach, bankruptcy or otherwise and whether under the Agreement, any Purchase Order or any other agreement between (a) Reseller or any of its Affiliates, and (b) Supplier or any of its Affiliates, or otherwise.
Resale of the Products
- Credit Risk on Resale to End Customers.Reseller is responsible for all credit risks regarding, and for collecting payment for, all products (including Products) sold to third parties (including End Customers), whether or not Reseller has made full payment to Supplier for the Products. The inability of Reseller to collect the purchase price for any Product does not affect Reseller's obligation to pay Supplier for any Product.
- Resale Prices.Reseller unilaterally establishes its own resale prices and terms regarding products it sells, including Products provided, however, that Supplier reserves the right to establish the maximum prices at which the Products may be resold.
Compliance with Laws
- General Compliance with Laws Representation and Warranty.Reseller represents and warrants to Supplier that it is in material compliance with all Laws and Reseller Contracts applicable to the Agreement, the Products, and the operation of its business.
- General Compliance with Laws Covenant.Reseller shall at all times comply with all Laws except to the extent that the failure would not, in the aggregate, reasonably be expected to have a material adverse effect on Reseller's ability to comply with its obligations under the Agreement.
Intellectual Property Rights
Subject to the express rights and licences granted by Supplier in the Agreement, Reseller acknowledges and agrees that:
- any and all Supplier's Intellectual Property Rights are the sole and exclusive property of Supplier or its licensors;
- Reseller shall not acquire any ownership interest in any of Supplier's Intellectual Property Rights under the Agreement;
- any goodwill derived from the use by Reseller of Supplier's Intellectual Property Rights enures to the benefit of Supplier or its licensors, as the case may be;
- if Reseller acquires any Intellectual Property Rights in or relating to any product (including any Product) purchased under the Agreement (including any rights in any Trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Supplier or its licensors, as the case may be, without further action by either Party; and
- Reseller shall use Supplier's Intellectual Property Rights solely for the purposes of performing its obligations under the Agreement and only in accordance with the Agreement and the instructions of Supplier.
- Supplier's Trademark Licence Grant.The Agreement does not grant either Party the right to use the other Party's or their Affiliates' Trademarks except as set out under this Section 2. Subject to the terms and conditions of the Agreement, Supplier hereby grants to Reseller a non-exclusive, non-transferable and non-sublicensable licence to use Supplier's Trademarks in the Territory during the Term and the Post-term Resale Period solely on or in connection with the promotion, advertising and resale of the Products in accordance with the terms and conditions of the Agreement. Reseller will promptly discontinue the display or use of any Trademark, or change the manner in which a Trademark is displayed or used with regard to the Products, when requested by Supplier. Other than the express licences granted by the Agreement, Supplier grants no right or licence to Reseller, by implication, estoppel or otherwise, to the Products or any Intellectual Property Rights of Supplier.
- Supplier Software License Grant. Supplier hereby grants Reseller a limited, non-exclusive, non-transferable, and non-sublicensable license to use the Supplier Software solely for the purpose of marketing and reselling the Products in accordance with the terms of the Agreement. Reseller shall not modify, reproduce, distribute, create derivative works of, or reverse engineer the Supplier Software without the prior written consent of Supplier. This license does not grant Reseller any ownership rights or Intellectual Property Rights in the Supplier Software.
Prohibited Acts.Reseller shall not:
- take any action that may interfere with any of Supplier's rights in or to Supplier's Intellectual Property Rights, including Supplier's ownership or exercise thereof;
- challenge any right, title or interest of Supplier in or to Supplier's Intellectual Property Rights;
- make any claim or take any action adverse to Supplier's ownership of Supplier's Intellectual Property Rights;
- register or apply for registrations, anywhere in the world, for Supplier's Trademarks or any other Trademark that is similar to Supplier's Trademark or that incorporates Supplier's Trademarks in whole or in confusingly similar part;
- use any mark, anywhere, that is confusingly similar to Supplier's Trademarks, unless approved in writing by Supplier;
- engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under the Agreement (including Products) or any Supplier Trademark;
- misappropriate any of Supplier's Trademarks for use as a domain name without prior written consent from Supplier; and
- alter, obscure, or remove any of Supplier's Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under the Agreement (including Products), marketing materials or other materials that Supplier may provide.
- Supplier's Trademark Notices.Reseller shall ensure that all Products sold by Reseller and all related quotations, specifications, and descriptive literature, and all other materials carrying Supplier's Trademark, are marked with the appropriate trademark notices in accordance with Supplier's instructions, as provided by Supplier from time to time.
No Continuing Rights.On expiration or earlier termination of the Agreement:
- Reseller's rights under this Section 13 cease immediately; and
- Reseller shall immediately cease all display, advertising, promotion, and use of all of Supplier's Trademarks and shall not thereafter use, advertise, promote, or display any trademark, trade or business name, or product designation or any part thereof that is similar to or confusing with Supplier's Trademarks or with any trademark, trade name, or product designation associated with Supplier or any Product.
- The Reseller Intellectual Property Right obligations under this Section 13 shall continue indefinitely following the expiration or termination of the Agreement.
Term and Termination
- Renewal Term.On expiration of the Initial Term, the Agreement automatically renews for additional successive one (1) year terms unless and until either Party provides Notice of non-renewal at least thirty (30) days before the end of the then-current term, or unless and until earlier terminated as provided under the Agreement or applicable Law (each, a "Renewal Term" and together with the Initial Term, as defined in the Reseller Agreement, the "Term"). If the Term is renewed for any Renewal Term(s) under this Section 1, the terms and conditions of the Agreement during each such Renewal Term are the same as the terms in effect immediately before such renewal, subject to any change in Prices payable for the Products and payment terms during the applicable Renewal Term as set out in Section 10 or changes to or in availability of the Products as set out in Section 7.2. If either Party provides timely Notice of its intent not to renew the Agreement then, unless earlier terminated in accordance with its terms, the Agreement terminates on the expiration of the then-current Term.
Supplier's Right to Terminate.Supplier may terminate the Agreement by providing Notice to Reseller:
- if Reseller fails to pay any amount when due under the Agreement (each, a "Payment Failure") and the Payment Failure continues for fifteen (15) Business Days after Reseller's receipt of Notice of non-payment;
- if within any twelve (12) month period, two (2) or more Payment Failures occur;
- if Reseller breaches any provision of the Agreement (other than a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Reseller within thirty (30) days after Reseller's receipt of Notice of such breach;
- in the event that Reseller becomes insolvent or bankrupt or makes an assignment for the benefit of creditors or ceases doing business; or
- amalgamates or merges with or into any other Person; or
- undergoes a change of Control, in any case without Supplier's prior written consent.
Any termination under this Section 14.2 is effective on Reseller's receipt of Supplier's Notice of termination or any later date set out in the Notice.
Reseller's Right to Terminate.Reseller may terminate the Agreement by providing Notice to Supplier:
- if Supplier breaches any provision of the Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by Supplier within thirty (30) days after Supplier's receipt of Notice of breach;
- under the provisions of Section 19; or
- Supplier becomes insolvent or bankrupt or makes an assignment for the benefit of creditors or ceases doing business; or
- Supplier ceases to carry on business in the ordinary course.
Any termination under this Section 14.3 is effective on Supplier's receipt of Reseller's Notice of termination or any later date set out in the Notice.
- Mutual Agreement to Terminate. The Parties may, by mutual agreement in writing, terminate the Agreement at any time notwithstanding the Term of the Agreement.
Effect of Expiration or Termination.
The Term's expiration or earlier termination does not affect any rights or obligations that:
- are to survive the expiration or earlier termination of the Agreement under Section 3; and
- were incurred by the Parties before the expiration or earlier termination; provided that if Supplier terminates the Agreement all indebtedness of Reseller to Supplier of any kind is immediately due and payable on the effective date of the Term's expiration or earlier termination without further notice to Reseller.
- Any Notice of termination under the Agreement automatically operates as a cancellation of any deliveries of Products to Reseller that are scheduled to be made after the effective date of termination, whether or not any orders for the Products had been accepted by Supplier. Supplier may require, in its sole and absolute discretion, that all sales and deliveries of the Products that are still in transit on termination of the Agreement be made on either a cash-only or certified cheque or bank draft basis.
Subject to Section 6, on the expiration or earlier termination of the Agreement, Reseller shall promptly:
- return to Supplier the NFR Products at its own expense;
- cease to represent itself as Supplier's authorized reseller regarding the Products, and shall otherwise desist from all conduct or representations that might lead the public to believe that Reseller is authorized by Supplier to sell the Products;
- return to Supplier or destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Supplier's Confidential Information;
- permanently erase all of Supplier's Confidential Information from its computer systems; and
- certify in writing to Supplier that it has complied with the requirements of this Section 5.
- Subject to Section 5(a), the Party terminating the Agreement, or in the case of the expiration of the Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of the Agreement.
- Post-Term Resale Period.Subject to Section 7, on the expiration or earlier termination of the Agreement, except for termination by Supplier under Section 14.2, Reseller may, in accordance with the applicable terms and conditions of the Agreement, sell off its existing inventories of Products for a period of six (6) months following the last day of the Term (the "Post-Term Resale Period").
Supplier's Buy-Back Right.Within ten (10) Business Days following the Term's expiration or earlier termination, Reseller shall Notify Supplier in writing of the SKU and quantity of all Products in Reseller's remaining inventory. On or before the fifth (5th) Business Day after Supplier receives the Notice, Supplier may, in its sole discretion, offer to purchase all or a portion of any remaining inventory at a price equal to the lesser of Reseller's cost therefor and Supplier's then prevailing reseller price. Reseller must accept Supplier's offer and promptly deliver, at Reseller's expense, the ordered Products to Supplier's designated carrier for delivery to Supplier. Repurchased Products must be returned in their original packaging, unopened and undamaged. Supplier shall pay the repurchase price to Reseller either by:
- the issuance of a credit against any indebtedness of Reseller to Supplier; or
- if the repurchase price exceeds the indebtedness, by payment of the excess to Reseller within ten (10) Business Days after delivery to Supplier.
- End of Term Purchase Restrictions.During the Term's last three (3) months, Reseller shall purchase Products in quantities that are no greater than an amount that Reseller reasonably determines is necessary to meet End Customer demand in that period.
Protection of Confidential Information.From time to time during the Term, either Party (as "Disclosing Party") may disclose or make available to the other Party (as "Receiving Party") information about its business affairs, goods and services, confidential information, and materials comprising or relating to Intellectual Property Rights, Trade Secrets, third-party confidential information, personal information of End Customers and other sensitive or proprietary information; such information, as well as the terms of the Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" constitutes "Confidential Information". Confidential Information excludes information that, at the time of disclosure:
- is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 15 by Receiving Party or any of its Representatives;
- is or becomes available to Receiving Party on a non-confidential basis from a third-party source; provided that such third party is not and was not prohibited from disclosing such Confidential Information;
- was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party;
- was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party's Confidential Information; or
- must be disclosed under applicable Law.
Receiving Party shall, notwithstanding the termination or expiration of the Agreement, for so long as such information remains Confidential Information:
- protect and safeguard the confidentiality of Disclosing Party's Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
- not use Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; and
- not disclose any such Confidential Information to any Person, except to Receiving Party's Representatives who must know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
Receiving Party shall be responsible for any breach of this Section 15 caused by any of its Representatives. The provisions of this Section 15 shall survive termination or expiration of the Agreement for any reason. On the expiration or earlier termination of the Agreement or at any time during or after the Term, at Disclosing Party's written request, Receiving Party and its Representatives shall, under Section 14.5, promptly destroy all Confidential Information including copies that it has received under the Agreement.
In the event of any conflict between the terms and provisions of this Section 15 and those of any other provision in the Agreement, the terms and provisions of this Section 15 will prevail.
Representations and Warranties
Reseller's Representations and Warranties.Reseller represents and warrants to Supplier that:
- it is a corporation duly incorporated and validly existing in the jurisdiction of its incorporation;
- it is duly licensed or registered to carry on business in every jurisdiction in which such qualification is required for purposes of the Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under the Agreement;
- it has all necessary corporate power and capacity to enter into the Agreement, to grant the rights and licences granted under the Agreement and to perform its obligations under the Agreement;
- the execution of the Agreement by its Representative whose signature is set out at the end hereof has been duly authorized by all necessary corporate action of Reseller; and
- when executed and delivered by each of Supplier and Reseller, the Agreement will constitute the legal, valid, and binding obligation of Reseller, enforceable against Reseller in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or similar laws and equitable principles related to or affecting creditors' rights generally or the effect of general principles of equity.
Limited Product Warranty.Subject to the provisions of Sections 3 and 16.4, and 16.5, Supplier makes certain limited warranties regarding the Products, except NFR Products, (the "Limited Warranties") solely to and for the End Customer's benefit, which will either be:
- included a written warranty statement with the Product; or
- Supplier's standard limited warranty in force when the Product is delivered by Reseller to End Customer, the current version of which is detailed in Exhibit I to these Standard Terms.
No warranty is extended to Reseller under the Agreement. Reseller shall not provide any warranty regarding any Product other than the Supplier warranty described in this Section 16.2.
Warranty Limitations.Limited Warranties do not apply where the Product:
- has been subjected to abuse, misuse, neglect, negligence, accident, improper handling, abnormal physical stress, or use contrary to any instructions issued by Supplier; or
- has been reconstructed, repaired, or altered by Persons other than Supplier or its authorized Representative.
Extent of Liability.During the Warranty Period, regarding any Defective Goods:
notwithstanding anything in the Agreement to the contrary, Supplier's liability under any Limited Warranty is discharged, in Supplier's sole discretion and at its expense, by:
- repairing or replacing the Defective Goods; or
- crediting or refunding the Price of the Defective Goods, less any applicable discounts, rebates, or credits.
- Reseller is responsible for all costs and risk of loss associated with the delivery of Defective Goods to Supplier for warranty repair or replacement;
- Supplier is responsible for all costs and risk of loss associated with the delivery of repaired or replaced products to the Delivery Point; and
- Reseller is responsible for all costs and risk of loss associated with the delivery and return of the repaired or replaced Products to End Customer.
All claims for breach of a Limited Warranty must be received by Supplier no later than fifteen (15) Business Days after the expiration of the limited Warranty Period of the Product.
Reseller has no right to return for repair, replacement, credit or refund any Product except as set out in this Section 16.4 (or if otherwise applicable, Sections 9.4, 16.2 and Section 17). Reseller shall not reconstruct, repair, alter or replace any Product, in whole or in part, either itself or by or through any third party.
THIS SECTION 16.4 SETS FORTH RESELLER'S EXCLUSIVE REMEDY AND SUPPLIER'S ENTIRE LIABILITY FOR ANY BREACH OF ANY CONDITION OR WARRANTY RELATING TO THE PRODUCTS.
Except as explicitly authorized in the Agreement or in a separate written agreement with Supplier, Reseller shall not service, repair, modify, alter, replace, reverse engineer or otherwise change the Products it sells to End Customers.
- Warranties Disclaimer; Non-Reliance. EXCEPT FOR THE LIMITED EXPRESS WARRANTIES DESCRIBED IN Section 2, (A) NEITHER SUPPLIER NOR ANY PERSON ON SUPPLIER'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION, CONDITION OR WARRANTY WHATSOEVER, INCLUDING ANY CONDITIONS OR WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (B) RESELLER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION, CONDITION OR WARRANTY MADE BY SUPPLIER, OR ANY OTHER PERSON ON SUPPLIER'S BEHALF, EXCEPT AS SPECIFICALLY DESCRIBED IN Section 16.2.
General Indemnification.Subject to the terms and conditions of the Agreement, including those set out in Section 2, either Party (as "Indemnifying Party") shall indemnify, hold harmless, and defend the other Party, but only to the extent that the losses, damages, etc. are directly and solely caused by the Indemnifying Party's own breach of this Agreement, gross negligence, or intentional misconduct and its parent, officers, directors, partners, shareholders, employees, agents, Affiliates, successors and permitted assigns (collectively, the "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, Actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, disbursements and charges, fees and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, the "Losses"), arising out of or relating to any Claim of a third party:
- relating to a breach or non-fulfilment of any representation, condition, warranty or covenant under Section 5, Section 6, Section 13, or Section 15 of the Agreement by Indemnifying Party or Indemnifying Party's Personnel;
- alleging or relating to any negligent or more culpable act or omission of Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under the Agreement;
- alleging or relating to any bodily injury, death of any Person, or damage to real or tangible personal property caused by the willful or negligent acts or omissions of Indemnifying Party or its Personnel;
- relating to a purchase of a Product by any Person purchasing directly or indirectly through Reseller and not directly relating to a claim of Limited Warranty breach;
- relating to any failure by Indemnifying Party or its Personnel to materially comply with any applicable Laws; or
- that Indemnifying Party breached its agreement with a third party as a result of or in connection with entering into, performing under or terminating the Agreement.
Exceptions and Limitations on General Indemnification.Notwithstanding anything to the contrary in the Agreement, Indemnifying Party is not obligated to indemnify or defend Indemnified Party against any claim (whether direct or indirect) if the claim or corresponding Losses arise out of or result from, in whole or in part, the Indemnified Party's or its Personnel's:
- negligence or more culpable act or omission (including recklessness or willful misconduct); or
- bad faith failure to comply with any of its obligations set out in the Agreement.
- Exclusive Remedy.Section 17 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR EACH INDEMNIFIED PARTY FOR ANY LOSSES COVERED BY Section 17.
Limitation of Liability
- No Liability for Consequential or Indirect Damages.EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THE AGREEMENT, LIABILITY FOR INDEMNIFICATION, BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT IS EITHER PARTY OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR AGGRAVATED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THE AGREEMENT, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT THE BREACHING PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Maximum Liability for Damages.EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THE AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SUPPLIER UNDER THE AGREEMENT IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF THE NON-BREACHING PARTY'S REMEDIES UNDER THE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Modification of Standard Terms. Supplier reserves the right to modify these Standard Terms at any time, without prior notice to the Reseller. Reseller agrees that, in the event of a non-material change to the Standard Terms, it shall abide by the revised Standard Terms. In the event that Supplier makes a material change to the Standard Terms, Supplier shall promptly Notify the Reseller and Reseller may, at its option, terminate the Agreement on 30 days’ Notice to Supplier. If Supplier Notifies Reseller of a material change to the Standard Terms and Reseller does not terminate the Agreement within 10 days of such Notice, Supplier is deemed to accept the revised Standard Terms. For the purpose of this Section, a “material change” is any change: (i) having a material commercial impact on the Reseller, as demonstrated to Supplier by Reseller; or (ii) to Section 14, Section 16, Section 17, or Section 18 that adversely affects the rights or obligations of Reseller.
- Subject to any written modifications agreed to by Supplier and Reseller, the Agreement, including and together with related exhibits, schedules, attachments and appendices, together with the Purchase Order Transaction Terms, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, conditions and warranties, both written and oral, regarding such subject matter.
- Without limitation of anything contained in Section 2(a), Each Party acknowledges that except for the representations and warranties contained in Section 16, neither Party nor any other Person has relied on any other express or implied representation, condition or warranty, either written or oral, on behalf of the Party, including any representation, condition or warranty arising from statute or otherwise in Law.
Survival; Limitation of Actions.Subject to the limitations and other provisions of the Agreement:
- the representations, conditions and warranties of the Parties contained herein and related exceptions, limitations, or qualifiers survive the expiration or earlier termination of the Agreement for a period of twelve (12) months after the expiration or termination; and
- Section 13 and Section 15 of the Agreement, as well as any other provision that, to give proper effect to its intent, should survive such expiration or termination, survive the expiration or earlier termination of the Agreement for the period specified therein, or if nothing is specified for a period of twelve (12) months after expiration or termination.
Notwithstanding any right under any applicable statute of limitations to bring a claim, no lawsuit or other Action based on or arising in any way out of the Agreement may be brought by either Party after the expiration of the applicable survival period; provided, however, that the foregoing limitation does not apply to the collection of any amounts due to Supplier under the Agreement; and provided further that any claims asserted in good faith with reasonable specificity and in writing by Notice before the applicable survival period's expiration is not thereafter barred by the expiration of the relevant period, and these claims survive until finally resolved.
- Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under the Agreement (other than routine communications having no legal effect) (each, a "Notice") in writing and addressed to the other Party at its address in the Reseller Agreement (or to any other address that the receiving Party may designate from time to time in accordance with this Section). Each Party shall deliver all Notices by personal delivery, nationally recognized same day or overnight courier (with all fees prepaid), email of a PDF document (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is conclusively deemed to have been validly and effectively given: (a) if sent by personal delivery or by courier (all fees prepaid) on the date of receipt; (b) if sent by email of a PDF document, upon the sender's receipt of an acknowledgment from the intended recipient (such as by the "read receipt" function, as available, return email or other form of written acknowledgment); or (c) if sent by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid on the 5th day after the mailing thereof.
- For purposes of the Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to the Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in the Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, the Agreement; (y) to an agreement, instrument or other document means the agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means the statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted the Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of the Agreement to the same extent as if they were set out verbatim herein. Except as otherwise expressly provided in the Agreement, all dollar amounts referred to in the Agreement are stated in Canadian currency.
- The headings in the Agreement are for reference only and do not affect the interpretation of the Agreement.
- If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendment and Modification.No amendment to or modification of or termination or discharge of the Agreement is effective unless it is in writing, identified as an amendment to or termination or discharge of the Agreement and signed by an authorized Representative of each Party.
- No waiver under the Agreement is effective unless it is in writing, identified as a waiver to the Agreement and signed by an authorized Representative of the Party waiving its right.
- Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion.
None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from the Agreement:
- any failure or delay in exercising any right, remedy, power or privilege, or in enforcing any condition under the Agreement; or
- any act, omission, or course of dealing between the Parties.
- Cumulative Remedies.All rights and remedies provided in the Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at Law, in equity, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Reseller's rights under Section 4, Section 16.4, and each of the Parties' rights under Section 17 are the Party's exclusive remedies for the events specified therein.
- Equitable Remedies.Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 13 and Section 15 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any of these obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at Law, at equity or otherwise in respect of this breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages do not afford an adequate remedy. Each Party agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 11.
- Reseller may not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Supplier. Any purported assignment or delegation in violation of this Section 19.12 is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under the Agreement. Supplier may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of Supplier's assets without the consent of Reseller, but in the event of such assignment Supplier shall notify Reseller promptly.
- Successors and Assigns.The Agreement is binding on and enures to the benefit of the Parties and their respective permitted successors and permitted assigns.
No Third-Party Beneficiaries.
- Except as set out in Section 14(b), the Agreement benefits solely the Parties and their respective permitted successors and permitted assigns, and nothing in the Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
- The Parties hereby designate the Parties' parents, officers, directors, partners, shareholders, employees, agents, Affiliates, successors and permitted assigns as third-party beneficiaries of Section 17 having the right to enforce Section 17.
- Governing Law.The Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto are governed by and construed in accordance with the Laws of Alberta, Canada, and the federal laws of Canada applicable therein. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
- Any legal action or proceeding arising out of or relating to the Agreement, including all exhibits, schedules, attachments, and appendices attached to the Agreement, shall be brought exclusively in the courts located in Calgary, Alberta, Canada. Each Party hereby consents to the jurisdiction of such courts and waives any objection to the jurisdiction of such courts. Each Party agrees not to bring any action or proceeding arising from or relating to the Agreement in any other forum. Any final judgment or order issued by such courts shall be binding and enforceable in any jurisdiction.
- Dispute Resolution.In the event of dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or invalidity hereof (each, a "Dispute"), the Party seeking to settle the Dispute shall deliver Notice (each, a "Dispute Notice") of the dispute to the other Party, according to the notice provisions of Section 4. If the Parties are unable to resolve any Dispute within fifteen (15) Business Days after delivery of the applicable Dispute Notice, either Party may file suit in a court of competent jurisdiction in accordance with the provisions of Section 19.16.
- Force Majeure.No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations to make payments to the other Party under the Agreement), when and to the extent the failure or delay is caused by or results from acts beyond the impacted Party's (the "Impacted Party") reasonable control, including the following force majeure events (each, a "Force Majeure Event": (a) acts of God; (b) flood, tsunami, fire, earthquake, explosion, sabotage, natural disaster, epidemics, pandemics; (c) war, invasion, rebellion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) requirements of Law; (e) actions, embargoes or blockades in effect on or after the date of the Agreement; (f) action by any Governmental Authority; and (g) strikes, labour stoppages or slowdowns, or other industrial disturbances. The Impacted Party shall give Notice within ten (10) Business Days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of the Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If the Impacted Party's failure or delay remains uncured for a period of thirty (30) days following Notice given by it under this Section 18, the other Party may thereafter terminate the Agreement on thirty (30) days' Notice.
No Public Announcements or Trademark Use.Unless expressly permitted under the Agreement, Reseller shall not:
make any statement (whether oral or in writing) in any press release, external advertising, marketing or promotion materials regarding Supplier or its business unless:
- it has received the express written consent of Supplier, or
- it must do so by Law; or
- use Supplier's Trademarks,
in each case, without the prior written consent of Supplier.
SUPPLIER STANDARD END CUSTOMER WARRANTY
Supplier warrants to the End Customer that the Products will be free of defects in workmanship or material quality for thirty (30) days following purchase from Reseller (the “Warranty Period”) and will replace any defective Products, subject to the following limitations:
- The Products have not been subjected to abuse, misuse, neglect, negligence, accident, improper handling, abnormal physical stress, or use contrary to any instructions issued by Supplier; or
The Products have not been reconstructed, repaired, or altered by Persons other than Supplier or its authorized Representative.
If a Product purchased by an End Customer is Defective, the End Customer must deliver the Product to the Reseller within fifteen (15) days of the Expiry of the Warranty Period and, promptly upon receipt of the Defective product, the Reseller will comply with the following return procedure:
- Contact Supplier and provide the style, color, size, quantity and explanation of the warranty claim.
- If the Products are returnable pursuant to the limited warranty, in the Supplier’s reasonable determination, Supplier will issue a Return Authorization (“RA”) number, which must be included with the return shipment. The return shipment must only include items listed on the RA. Any goods returned to Supplier without a RA, including items not listed on a RA, will be returned to Reseller at Reseller’s expense.
- Reseller will include the RA number on the outside of the carton or envelope being used for return shipment.
- A return shall not be permitted unless it includes a RA issued by Supplier.
- Supplier will replace the returned Product with the same Product or, if the same Product is not available, the most similar Product, in the Supplier’s sole discretion, to the returned Product.
- Supplier will ship the replacement Product to Reseller at [Supplier’s/Reseller’s]