1. Exclusive Governing Provisions

The sale of all goods and services FoodPak Ltd. (as applicable, FoodPak) to the purchaser shall be subject to and governed exclusively by these terms and conditions of sale (these “Conditions”). FoodPak’s acceptance of any order or other offer by the purchaser (whether in writing, by telephone or otherwise) for any goods or services shall be conditioned upon the purchaser’s assent to these Conditions. Such assent shall be deemed given upon the earlier of: (i) the purchaser’s acceptance of these Conditions pursuant to a credit application containing or referencing these Conditions; (ii) the purchaser ordering goods or services from FoodPak based on a FoodPak quotation or proposal containing or referencing these Conditions; or (iii) five (5) days after the purchaser’s receipt of these Conditions as contained or referenced in FoodPak’s acknowledgement, bill of lading, invoice or any other writing (including, without limitation, electronic correspondence), unless, prior to the expiration of such five (5) day time period, the purchaser rejects these Conditions in their entirety (specifically referencing these Conditions) by delivering written notice thereof to FoodPak. No additional or different conditions, whether contained in a purchase order or any other communication from the purchaser (whether written or oral and whether previously given or later asserted), shall be binding upon FoodPak unless specifically agreed to in writing by an executive officer of FoodPak. The failure of FoodPak to object to any such additional or different conditions shall not be a waiver of these Conditions or an acceptance of such additional or different conditions. No modification or amendment of, or addition to, these Conditions or any order accepted by FoodPak by the purchaser shall be binding unless in writing and signed by an executive officer of FoodPak.

 

2. Payment Terms; Late Fee

The purchaser shall not retain or withhold from FoodPak any sum stated on any invoice for any reason whatsoever. The purchaser’s payment obligation is in no way contingent upon the purchaser’s receipt of payment from any party. Each invoice rendered by FoodPak to the purchaser shall be deemed correct and binding upon the purchaser unless FoodPak shall receive a written statement of objection within ten (10) days after such invoice is rendered. Interest shall accrue on all amounts remaining unpaid after the due date at the lesser of: (i) one and one-half percent (1 1/2%) per month, or (ii) the maximum lawful rate. If FoodPak refers an invoice to legal counsel or any other party for collection, the purchaser shall pay on demand all of FoodPak’s expenses of collection including, without limitation, reasonable legal fees and costs including fees and expenses of any expert retained by FoodPak. To the fullest extent permitted by law, FoodPak reserves the right at any time to suspend credit or to change the payment or credit terms provided herein or elsewhere when, in FoodPak’s sole determination, the financial condition or business prospects of the purchaser so warrant. In such a case, in addition to any other rights herein or by law provided, adequate assurances of the purchaser’s ability to perform its obligations to FoodPak, such as a cash payment by the purchaser or satisfactory security from the purchaser, may be required by FoodPak before shipment. Without precluding the use of other forms of assurances, FoodPak may accelerate the due date of payment under any invoice or order. Failure to pay any invoice in full by its stated due date shall automatically cause all other invoices to the purchaser to be immediately due and payable irrespective of their terms, and FoodPak may withhold all subsequent deliveries until all amounts due to FoodPak by the purchaser have been paid in full. Acceptance by FoodPak of less than full payment shall not act as a waiver of any of its rights.

 

3. Taxes

FoodPak’s prices do not include sales, use, manufacturer’s, retailer’s, occupation, excise, VAT or any similar or other tax, fee, duty, tariff or other charge imposed by any governmental authority on any transaction between FoodPak and the purchaser. The purchaser shall furnish evidence of any sales tax exemption and shall warrant the validity and accuracy thereof. In all events, any such tax, fee, duty, tariff or other charge, even if initially advanced by FoodPak or by any export-import broker, shall be the sole obligation of, and shall be promptly paid by, the purchaser.

 

4. Shipment & Delivery

FoodPak will not pay or be liable for any penalty or damage, whether liquidated or otherwise, for late delivery. Shipping dates are approximate and are not guaranteed. All orders are subject to, and FoodPak shall not be responsible or liable for, any delay or other failure to perform by FoodPak directly or indirectly resulting from any foreign or domestic embargoes, seizures, Acts of God, insurrections, wars, continuances of war, delays in or the lack of availability of goods, materials, ingredients or components from FoodPak’s suppliers, delay sin transportation, strikes, fires, floods, explosions or other accidents, the adoption or enactment of any law, ordinance, regulation, ruling or order directly or indirectly interfering with or rendering more burdensome the procurement, production, manufacture or delivery of goods and services hereunder, or any act or event beyond FoodPak’s control either of the foregoing nature of any other kind, nature or description. The customer shall pay all shipping costs (unless otherwise stated), duties, clearing charges, insurance costs and other costs incident to delivery of the equipment to the customer. Risk of loss shall pass to customer at the time of delivery by FoodPak to the carrier.

 

5. Errors

All stenographic or clerical errors are subject to correction by FoodPak.

 

5. Installation

If installation by FoodPak is part of this agreement, FoodPak shall make available to Customer for an appropriate period of time as determined by FoodPak a qualified service person to install the Equipment. A qualified person shall be available to instruct Customer’s employees in operation, preventative maintenance and safety of the equipment for a reasonable period as determined by FoodPak not to exceed 5 consecutive business days. The customer is expected to provide a qualified maintenance person during the entire installation. It is the Customer’s responsibility to uncrate and locate the equipment. Customer is responsible for providing all drops to local code and that all utilities are ready prior to installation as well as installation site.

 

6. Assignment

No purchase order or rights of the purchaser thereunder or elsewhere, or any obligation of the purchaser to FoodPak, may be assigned by the purchaser without obtaining FoodPak’s prior written consent in each instance, which consent may be withheld in FoodPak’s sole discretion. FoodPak may assign its rights and obligations hereunder in whole or in part on one or more occasions without obtaining the consent of or giving notice to the purchaser.

 

7. Risk of Loss; Right to Inspect; Notice of Rejection

It is agreed that the term “F.O.B.” is a price term only. All risk of loss or damage in transit shall pass to the purchaser upon the goods being placed into the possession of a carrier for shipment; provided, however, that the purchaser shall have the right to inspect the goods upon tender by FoodPak or the carrier. The failure of the purchaser to inspect any particular shipment within ten (10) days after tender to the purchaser shall constitute a waiver of the purchaser’s rights to inspect that shipment and shall constitute an acceptance of such goods. All claims for shortages, defects or other non-conformities in goods delivered shall be made in writing by the purchaser to FoodPak within ten (10) days after their tender to the purchaser. Failure to notify FoodPak in writing of any claim within ten (10) days after tender to the purchaser shall constitute an irrevocable acceptance of the goods and an admission by the purchaser that the goods comply fully with all terms, conditions and specifications of the corresponding order. If the purchaser rejects any goods tendered, the purchaser shall fully specify all claimed defects and other non-conformities in the notice of rejection sent to FoodPak within such ten (10) day period. The failure to specify any particular defect or other nonconformity shall constitute a waiver by the purchaser of that defect or other nonconformity. If the purchaser rejects any tender of goods, the purchaser shall reship the goods to the place designated by FoodPak, by express courier, within twenty-four (24) hours after receipt of an order to reship from FoodPak. The purchaser expressly waives its right to a security interest in the goods under Section 2-711 of the Uniform Commercial Code or under any other law.

 

8. Disclaimer of Warranties

Any description of the goods or services contained on any quotation, purchase order, order acknowledgement, bill of lading or sales invoice is for the sole purpose of identifying them and does not constitute a warranty that the goods or services shall conform to that description. The use of any sample or model in connection with a sale of goods or services is for illustrative purpose only and does not constitute a warranty that the goods or services will conform to the sample or model. FoodPak and, subject to section 10 (Third Party Equipment), it’s suppliers make no express or implied warranty of merchantability or fitness for a particular purpose with respect to any goods or services sold by FoodPak to the purchaser. FoodPak and, subject to section 10 (Third Party Equipment), its suppliers make no warranties whatsoever, express, or implied. Except as other stated herein, FoodPak warrants the equipment to be free from defects in material and workmanship for a period of 12 months after delivery date of the equipment. The above warranty does not apply to:

1. 1. 1. Repair or modification of the Equipment without FoodPak’s prior written consent or contrary to FoodPak’s instructions
      2. Equipment subjected to improper handling, storage, installation, sanitation, operation or maintenance, including, without limitation, installation, use or application of the Equipment or any part thereof contrary to FoodPak’s instructions, use of improper consumables, unsuitable facilities for operation, or chemical, electro technical or electrical; conditions, or severe temperatures
      3. Any component parts of the Equipment furnished by the Customer
      4. Any normal wear and tear of the Equipment Parts

 

9. Third Party Equipment

Any equipment sold by FoodPak that is not manufactured or produced by FoodPak is warranted solely by the applicable manufacturer and any claims, to the extent permitted, shall be under the manufacturer’s warranties and the purchaser shall look solely to such manufacturer for warranty claims.

 

10. Technical Documents

Unless otherwise agreed to in writing by FoodPak, the customer shall in no event be provided with manufacturing drawings of the Equipment or the dies for the Equipment, notwithstanding the Customer’s request in a purchase order or otherwise to be provided with such drawings.

 

11. Operation of Equipment

FoodPak will provide the Customer with a manual of operation and maintenance of the Equipment, as well as safety instructions. The customer shall not permit anyone to operate or otherwise come into contact with the Equipment, unless the Customer has ensured that the person has read and understands the manual and safety instructions and further understands how to operate and/or perform maintenance on the Equipment.

 

12. Limitations of Liability

FoodPak’s liability for any claim of any kind, including any such claim relating to FoodPak’s or its suppliers’ negligence, or for any loss or damage resulting form any contract for sale of goods or services or for the performance or breach thereof or relating to the design, manufacture, sale, delivery, resale, installation, technical direction of installation, inspection, repair, operation or use of any goods, shall in no event exceed the price allocable to the goods or services or unit thereof which gives rise to any such claim, loss or damage. In no event shall any penalty or liquidated damages clause of any description be effective and binding upon FoodPak unless specifically approved in writing by an executive officer of FoodPak. In no event shall FoodPak or its suppliers be liable for special, incidental or consequential damages, including in connection with or arising out of these terms and conditions or the use of the goods or services provided hereunder, including without limitation loss of profits or revenues, or any other commercial or economic losses of any kind, whether based on contract, tort (including theories of negligence, recklessness, strict liability, or defective product liability), or any other legal theory. Some jurisdictions do not allow limitation or exclusions of certain types of damages and/or of implied conditions or warranties. The limitations, exclusions and disclaimers set forth in these conditions will not apply only if and to the extent that the laws of competent jurisdiction requires liabilities beyond and despite these limitations, exclusions and disclaimers. The purchaser acknowledges and agrees that the limitations, exclusions and disclaimers in these conditions constitute an essential element of the goods and services and that in the absence of such limitations, exclusions and disclaimers, the contract price would be substantially higher and could impact FoodPak’s ability to offer and the purchaser’s ability to receive and use the goods and services in the purchaser’s jurisdiction.

 

13. Delay in Performance

FoodPak shall not be liable for any damages and penalties as a result of any delay in FoodPak’s performance hereunder when such delay is due to the elements, acts of God, delay in transit, delay in delivery by any vendor of FoodPak or any other cause beyond reasonable control of FoodPak.

 

14. Testing

The purchaser assumes all responsibility for testing the compatibility and capacity of their products with goods sold by FoodPak.

 

15. Trade Practices

For each order of goods, purchaser agrees that there may be a variance of actual quantity delivered of plus or minus fifteen percent (15%). Prices for all goods and services are subject to customary adjustments, including, without limitation, adjustments based on changes in energy and raw material costs and are dependent on price in effect at time of shipment. Ship dates and lead times are subject to receipt of approved specifications from the purchaser.

 

16. Confidentiality

In connection with the offer for sale and the sale of goods and services to the purchaser, FoodPak may disclose to the purchaser confidential business information of FoodPak, including, but not limited to, prices of goods or services and the names of FoodPak’s suppliers of goods or services. The purchaser agrees to maintain the confidentiality of this information and not to disclose any of the information to third parties and not to use this information for any purpose unrelated to the sale of goods and services pursuant to these Conditions. The purchaser acknowledges and agrees that FoodPak that any of the provisions of this Section were breached or not performed by the purchaser. Accordingly, the purchaser acknowledges and agrees that FoodPak shall be entitled to seek injunctive relief to prevent breach of this Section and to specific performance of these Conditions, in addition to any other remedy which FoodPak may be entitled to at law or in equity.

 

17. Arbitration; Jurisdiction and Venue

Any dispute, controversy, or claim arising out of or relating to these Conditions or the breach thereof or from the sale of goods or services by FoodPak to the purchaser shall be resolved by final and binding arbitration administered by ICDR Canada in accordance with its Canadian Arbitration Rules. The language of the arbitration shall be English. All such arbitration proceedings: (a) involving FoodPak Ltd. shall take place in Vancouver, British Columbia, Canada. In the event there is any litigation relating to this paragraph requiring arbitration or any other matter that is found not to be subject to arbitration, then the parties irrevocably agree that jurisdiction and venue in any such lawsuit shall properly (but not exclusively) lie in a court of competent jurisdiction (i) in the City of Vancouver, Province of British Columbia in cases FoodPak Ltd., and the parties irrevocably agree that venue would be proper in such court and hereby waive any objection that such court is an improper or inconvenient forum for the resolution of such action.

 

18. Legal Fees

In connection with any arbitration or litigation arising from the sale of goods or services by FoodPak to the purchaser, the prevailing party shall be entitled to recover its reasonable legal fees and expenses from the non-prevailing party as part of the same arbitration or litigation; provided, however, if a party prevails on some, but not all, of its claims, such party shall be entitled to recover an equitable amount of such fees, costs and expenses, as determined by the applicable arbitrator or court commensurate with its degree of success against the non-prevailing party.

 

19. Returns for Credit

In no event are goods to be returned without in each instance obtaining FoodPak’s prior written permission. FoodPak reserves the right to refuse any goods returned for credit without such prior written permission. Unless otherwise indicated by FoodPak, all goods shall be returned F.O.B. point of delivery and all risk of loss or damage in transit shall not pass to FoodPak the until delivery thereto. The amount of credit given to the purchaser by FoodPak shall be fixed by FoodPak in its sole discretion.

 

20. Indemnification Against Patent Infringement

If any goods sold by FoodPak business, but are produced in accordance with the purchaser’s specifications, requirements, designs or other request, the purchaser shall indemnify and hold FoodPak and its successors and assigns harmless from and against all losses, damages and expenses, including, without limitation, legal fees and costs including the fees and expenses of any expert, arising out of any claim or demand in the nature of patent infringement, trade dress infringement, unfair competition or the like asserted against FoodPak and/or its successors and assigns, and shall defend any such claim or demand at its sole expense, provided that the purchaser shall not consent to the entry of any judgment or enter into any settlement or compromise with respect to any such claim or demand without FoodPak’s prior written consent. This indemnification applies to the initial adjudication, in whatever forum, and all subsequent appeals or other proceedings with respect thereto.

 

21. Applicable Law

The terms of these Conditions shall be interpreted and the rights and obligations of the parties hereto shall be governed and determined by: (a) the laws of the Province of British Columbia and the laws of Canada applicable therein in the case of the sale of goods or services by FoodPak Ltd. Whenever the term “Sale of Goods Act (British Columbia)” is used herein, it shall be construed as meaning the Sale of Goods Act, RSBC 1996, c 410 as effective and in force on the date of a sale of goods or services by FoodPak to the purchaser to which these Conditions apply. In the case of the sale of goods or services by FoodPak Ltd., whenever a term defined by the Sale of Goods Act (British Columbia) is used in these Conditions, the definition contained in the Sale of Goods Act (British Columbia) shall determine its meaning as used herein. The purchaser and FoodPak agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to the interpretation or enforcement of these Conditions.

 

22. Compliance With Laws

Each party will comply with applicable federal, state, provincial and local laws, rules, ordinances and regulations, including, but not limited to, anti-corruption laws (“Applicable Laws”) in connection with the activities contemplated under these Conditions. In no event shall either party be obligated under these Conditions to take any action that it believes, in good faith, would cause it to be in violation of any Applicable Laws. The purchaser is responsible for ensuring compliance with Applicable Laws related to the receipt of the goods and services.

 

23. Purchaser’s Representation of Solvency

The purchaser represents, by placing any purchase order for goods or services or by accepting tender of goods, that the purchaser is not insolvent as that term is defined in Section 3 of the Sale of Goods Act (British Columbia) or Section 1(3) of the Sale of Goods Act (Ontario). In the event that the purchaser becomes insolvent before tender or delivery of the goods, the purchaser shall so notify FoodPak in writing. Any failure to notify FoodPak in writing shall be construed as a reaffirmation of the purchaser’s solvency at the time of delivery.

 

24. Interpretation; Parol Evidence; Trade Usage

Except as otherwise agreed in writing by the parties, these Conditions are intended by the parties as a final expression of their agreement and are intended as a complete and exclusive statement of the terms and conditions of sale with respect to any sale of goods or services by FoodPak to the purchaser. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used in these Conditions. Acceptance or acquiescence in a course of performance rendered under these Conditions shall not be relevant to determine the meaning of these Conditions even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity for objection. If any provision of these Conditions shall be unenforceable, then such provision shall be null and void, but the remainder of these Conditions shall remain in full force and effect. The paragraph headings herein are for convenience only and shall not be deemed to limit or otherwise modify the terms hereof. This document shall be construed and interpreted without regard to any presumption against the party who drafted the document. No agent, employee or representative of FoodPak has any authority to bind FoodPak to any affirmation, representation or warranty concerning the goods or services sold by FoodPak, and unless an affirmation, representation or warranty made by an agent, employee or representative is specifically included in these Conditions it shall not be enforceable by the purchaser.

 

25. Language

The parties have required that these Conditions and all agreements, instruments, documents and notices relating to these Conditions be drawn up in the English language. Les parties aux présentes ont exigé que les présentes conditions et tous autres contrats, instruments contractuels, documents ou avis afférents aux présentes conditions soient rédigés en langue anglaise.