TERMS AND CONDITIONS OF PURCHASE
THESE TERMS AND CONDITIONS ARE THE ONLY TERMS WHICH GOVERN THE PURCHASE OF PRODUCTS FROM THE COMPANY AND, ALONG WITH THE ORDER IN WHICH THESE TERMS AND CONDITIONS ARE REFERENCED, SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES.
“Agreement” means the Order together with these Terms and Conditions of Purchase.
“Business Day” means any day other than a Saturday, Sunday, or statutory holiday.
"Company” means 6191436 Canada Inc. d/b/a as InkOwl;
"Customer" means the person, proprietor, partnership, limited liability company, firm, corporation or other entity, other than Company, that is a signatory to the Order (as defined below);
“Order” means the Customer’s purchase order or Company’s invoice between Company and the Customer, pursuant to which the Customer has ordered Products and pursuant to which Company and the Customer have agreed that these terms and conditions shall form an integral part thereof.
"Product(s)" means the Company’s Products as identified in the Order. Products may include any products, components or parts therein, a specific service related to a product that is provided by Company, or items that are available for purchase on Company’s website.
2. SUPPLY AND USE OF PRODUCTS
(a) Company agrees to provide to Customer the Products as identified in the Order upon payment of the applicable fees.
(b) By placing an order, Customer warrants that they are the legal age of majority under applicable law to form a binding contract with the Company.
(c) Company’s Products are not intended for the use of children. As applicable, Customer agrees to handle and use the Products in accordance to their specified instructions and any other documentation as provided by Company or the Product manufacturer. Customer also agrees to adhere to any safety notifications or data sheets related to the Products, and/or inquire with Company about obtaining safety data sheets in relation to the safe and proper handling of the Products.
(d) Customer is solely responsible for ensuring that any purchased Company Products are compatible with Customer’s devices and/or hardware.
(e) Order Cancellation: Any cancellation of Orders must be completed before Customer receives notification from Company that the applicable Products have shipped. If Customer wishes to cancel an Order once Products have shipped, Customer must wait for complete delivery of the Products and then return the Products in accordance with Section 7(b) hereunder for full credit.
3. FORMATION OF CONTRACT
(a) The parties shall be bound by the provisions of this Agreement upon full satisfaction of the following: (i) receipt of an Order, (ii) Company’s acceptance of Customer’s form of payment, and (iii) issuance of a tracking number by Company to Customer for shipment of the Products.
(b) This Agreement may not be added to, modified, superseded or otherwise altered, except by writing signed by authorized representatives of both parties. Any terms or conditions contained in any purchase order or other communication of Customer, which are inconsistent with the terms and conditions herein, are hereby rejected. The terms and conditions of this Agreement shall be applicable whether or not they are attached to or enclosed with the Products sold or to be sold.
(c) Where the terms and conditions of this Agreement are incorporated by reference into a separate written agreement by and between the Customer and Company, any inconsistency between this Agreement and such separate agreement shall be resolved in favour of the terms and conditions of this Agreement, unless expressly stated otherwise in such separate agreement.
4. FEES AND TAXES
(a) Fees payable for the purchase and delivery of Products are those set out in the Order or, if no pricing is set out therein, Company’s current price lists and shipping rates as stipulated on Company’s website. Company reserves the right at any time to modify and/or adjust pricing for the Products. Unless stated otherwise, all fees are in American dollars ($USD).
(b) Payment for the Products is due in advance of shipment. Company accepts various methods of payment, including all major credit cards, and Customer will pay for the Products using one of the payment methods available at the time of purchase.
(c) Unless otherwise stated on Company’s website and/or if Customer does not meet a specified purchase fee minimum, Customer shall pay all shipping and handling charges, including but not limited to insurance, customs duties, brokerage fees, and special packaging and transportation fees. Company reserves the right to cancel an Order if Company is unable to ship to a location specified by Customer.
(d) Customer shall pay sales, value-added, and any other taxes associated with the purchase and shipment of Products to Customer’s specified place of delivery. For greater clarity, Company collects provincial and federal sales tax in Quebec (GST and QST), federal sales tax in Canada (GST [and HST, as applicable]), and sales tax in the states of New York and California.
(e) If Customer is exempt from sales tax as referenced above, Customer must (i) call Company to place an order for the Products, and (ii) provide evidence of a valid tax exemption certificate authorized by the appropriate taxing authority. Tax exempt orders cannot be placed via Company’s website. Company is solely responsible for taxes assessable against it based on its income, property and employees.
(f) If Company offers Customer payment terms that differ from Section 4(b), Company reserves the right to charge interest at 1.5% per month on any amounts past due. All computations of interest shall be made on the basis of a 360 day year and the actual days elapsed. Company reserves the right to suspend deliveries for any Products if Customer is past due in making such payment to Company under this or any other agreement between Company and Customer, provided that Company has delivered to Customer written notice that payment is past due and Customer has failed to cure such default within ten (10) Business Days of receipt of such notice.
5. DELIVERY OF PRODUCTS
(a) Except as otherwise set out in the Order, shipment schedules are approximate and are based on conditions prevailing at the time of acceptance. Company shall in good faith attempt to effect shipment of Products within two (2) days from the date of an Order but shall not be responsible or liable for any delays in delivery by Company’s carrier. If no delivery schedule is specified, the order shall be filled as soon as reasonably possible.
(b) Title and risk to the Products shall pass to Customer upon delivery to a carrier. Despite the foregoing, if shipment of any Order is lost or misplaced as a result of Company’s carrier, Company shall use reasonable efforts to replace the Products or offer a credit for any misplaced Products.
6. AFTER-SALES SERVICES
Company may offer, at its sole discretion, customer and/or technical support associated with the Products during normal work hours as indicated on Company’s website. If Customer contacts company by email, Company endeavors to respond to Customer’s email within twenty-four hours, or the within the next Business Day.
(a) Company represents and warrants that Products supplied to Customer under this Agreement will be free from any material defects and shall be covered by the warranty terms and provisions as per Section 7(b), subject to the warranty exclusions in Section 7(d) hereunder.
(b) If Customer is unsatisfied with the Products, Company warrants that it will replace or refund any Company Product for a period of thirty (30) days from the date of shipment of Products to the Customer. If requested, Products must be returned to Company in the condition they were sent to Customer and, once approved, Company will refund the full cost of the Products to Customer, excluding any return shipping charges and insurance charges that Customer incurs as a result of such return. Upon Customer’s request, Company will issue a Return Materials Authorization (“RMA”) to Customer. Any Products sent to Company without a RMA will not be accepted for a replacement or refund, as applicable.
(c) Any return made by Customer with a RMA may take up to four (4) weeks for Company to process and refund.
(d) The warranties and remedies herein shall not apply to any Products because of misuse or causes other than ordinary use of Product by Customer. Company is not liable for Customer’s use of the Product and has no obligation to replace or to correct any damage or other problem with respect to a Company Product that: (A) has been altered; (B) has not been installed, configured, or operated in accordance with Company’s specifications or Product manufacturer’s instructions; (C) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, (D) has been operated outside of the environmental specifications for the Products, or (E) when such malfunction, damage or other problem is caused by use with hardware that is not recommended by Company or that does not conform to the requirements or specifications made available by Company or Product manufacturer.
(e) TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, PRODUCTS ARE PROVIDED “AS IS” AND COMPANY MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OF MERCHANTABILITY, MERCHANTABLE QUALITY OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A CAUSE OF DEALING OR USAGE OF TRADE.
(f) Notwithstanding this Section 7, Company shall endeavor to obtain and pass through to Customer any warranties that Company receives from the manufacturer of Products. In the event that Company is not able to pass through any such warranties to Customer, Company shall hold such warranties on behalf of Customer and, in the event of a breach of such warranty, and if requested by Customer, shall seek the repair or replacement of such Products, or component thereof, in accordance with the terms of such warranty, so that Customer may benefit from their enforcement.
8. LIMITATION OF LIABILITY
(a) EXCEPT FOR (I) CLAIMS RELATING OR BASED ON FRAUD OR GROSS NEGLIGENCE OF A PARTY, (II) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, OR (III) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES (INCLUDING FOR LOSS OF USE, DATA, BUSINESS, LOSS OF GOODWILL, REPUTATION, CREDIT OR PUBLICITY, LOSS OF REVENUE AND INTEREST, PROFITS, OR ANTICIPATED PROFITS AND CLAIMS FOR SUCH DAMAGES BY A THIRD PARTY) RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH DAMAGE WAS REASONABLY FORESEEABLE.
(b) EXCEPT FOR: (I) CLAIMS RELATING OR BASED ON FRAUD OR GROSS NEGLIGENCE OF A PARTY, (II) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, (III) A PARTY’S PAYMENT OBLIGATIONS HEREUNDER, (IV) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, COMPANY SHALL ONLY BE LIABLE FOR DIRECT DAMAGES. COMPANY’S TOTAL LIABILITY FOR ANY CLAIM FOR DIRECT DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COMPANY HEREUNDER IN THE THREE (3) MONTHS PRECEDING THE DATE ON WHICH THE INCIDENT GIVING RISE TO THE CLAIM OR LIABILITY OCCURRED.
(c) The disclaimers and limitations of liability set out in Sections 7 and 8 hereof are fundamental elements of the basis of the agreement between Company and Customer. Company would not be able to provide the Products on an economic basis without such limitations. Such disclaimer and limitation of liability shall inure to the benefit of Company's licensors, successors and assigns.
9. INDEMNIFICATION BY CUSTOMER
Customer agrees to defend, indemnify and hold Company and its affiliates, as well as their respective directors, officers, agents, employees, successors and assigns (each a “Company Indemnified Party”) harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonable lawyer’s fees and court costs) to the extent arising or resulting from Customer’s breach of any term hereof or caused by acts or omissions performed by Customer, except to the extent caused by the negligent or willful acts or omissions of a Company Indemnified Party.
10. GENERAL PROVISIONS
(a) This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec, and the federal laws of Canada applicable therein, without giving effect to the principles of conflicts of law that would require the application of the laws of any other jurisdiction. The parties agree that the courts of the District of Montreal (Quebec) have exclusive jurisdiction to resolve any dispute which may arise out of, under, or in connection with this Agreement.
(b) In the event that any provision or part thereof is determined by a court of competent jurisdiction to be unenforceable, such provision, or part thereof, shall be deemed to be severed from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect and shall be binding upon the parties hereto as though such severed provision had not formed part of this agreement.
(c) This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Customer shall not assign any of its obligations or rights hereunder to any party without the prior written consent of Company.
(d) No waiver by either party of any breach of any term or condition of the terms and conditions set out herein by the other party shall be deemed to constitute a waiver of any other breach, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy hereunder operate as a waiver thereof. No waiver given by a party hereunder shall be binding upon such party unless expressed in writing and signed by such party.
(e) This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all prior and contemporaneous negotiations and agreements, whether real or written, between them relating to the subject matter hereof.
(f) Neither Company nor Customer shall be deemed to be in default of any provision of this Agreement (other than Customer’s obligation to pay amounts due to Company hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of God, acts of civil or military authority, civil disturbance, epidemics or pandemics, strikes, fires or other catastrophes. In the event Company is unable to deliver the Products as a result of a force majeure event, Customer shall not be obligated to pay Company for so long as Company is unable to deliver the Products. Notwithstanding the foregoing, if performance of Company’s obligations under this Agreement is delayed or interrupted for longer than thirty (30) days, Customer may terminate this Agreement.
(g) All notices required hereunder will be made in writing to the addresses set out in the Order. Notices may be given by: (i) personal delivery during normal business hours on a Business Day for the recipient and left with a receptionist or other responsible employee of the relevant party at the applicable address set forth in the Order; (ii) prepaid first class mail; or (iii) any electronic means of sending messages during normal business hours on a normal Business Day of the recipient. Either party may change its address for notice by giving notice to the other party as provided in this section.
(h) The parties are independent contractors, and nothing herein will be construed to any other effect. Each party alone will determine, supervise and manage the method, details, and means of performing its obligations. Except as agreed in writing, neither party will act or attempt to act or represent itself, directly or by implication, as the other party’s agent. Each party will be solely responsible for the compensation, fringe benefits and withholding and payment of all applicable federal, state, provincial and local taxes for its own employees, as applicable.
Last modified: December 21, 2020