Last Updated: Novemeber 30, 2022
1. Overview and Acceptance of Buyer Terms
- The accompanying Invoice (defined below) and the Buyer Terms together with all documents and other terms incorporated herein (collectively, the “Agreement”) comprise the entire agreement between you and us and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties and communications, both written and oral. The Buyer Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfilment of your Order (defined below) does not constitute acceptance of any of your terms and conditions and does not serve to modify or amend these Buyer Terms.
2. Deﬁnitions and Interpretation:
- In these Buyer Terms, capitalized terms will, unless otherwise defined herein, have the following
“Claim” means claims, causes of action, liabilities, damages, judgments, awards, losses, costs, expenses and fees of any kind or any nature, including reasonable legal and accounting fees.
“Content” means text, graphics, images, music, software (excluding the Website), audio, video, media, data, information, or other materials.
“Custom Product” mean any Product developed and produced by the Maker uniquely for purchase by Buyer and generally not available to other buyers.
“Maker” means a vendor who oﬀers to produce Product that will be offered for sale through the Website.
“Product” means any goods available for purchase through the Website.
“Product Content” means Content related to a specific Product purchased through the Website.
“PBP Guidelines” means the guidelines PBP imposes on Makers in respect of producing Product, including general product guidelines, photography guidelines, merchandising guidelines and imagery guidelines.
“Third Party Data Provider” means Plaid Financial Ltd. and/or Plaid, B.V.
“Third Party Data Provider Terms” means the terms and conditions available at https://plaid.com/legal/#consumers.
“Unplanned Interruption” means any circumstance which arises from, relates to, or may be necessitated by a public health crisis or natural disaster, including the COVID-19 pandemic, and includes any supply chain disruptions associated therewith.
- Throughout these Buyer Terms, the word “include” or “including” means “including, but not limited to”.
3. Account Registration
- Buyer Account. To purchase Product through the Website, you must register and create an account with, and be approved by, us (a “Buyer Account”), through the process set out in the TOU (the “Application Process”). As part of the Application Process, you must: (i) provide payment details for at least two payment methods offered by PBB (each an “Approved Payment Method”), the availability of which may vary by region and may include credit cards or bank accounts, but excludes pre-paid cards; and (ii) create an account with our Third Party Data Provider (the “Third Party Data Provider Account”). By creating a Buyer Account and a Third Party Data Provider Account, you hereby authorize our Third Party Data Provider to access your banking information in connection with the Services and you acknowledge, consent and agree to PBP obtaining your banking data from our Third Party Data Provider in connection with the Services. As part of registering for a Buyer Account, you may be required to enter into our then- current form of pre-authorized debit agreement, automated clearing house (ACH) or credit card authorization with us, our aﬃliates or our third party payment processors to electronically debit your bank account or charge your credit card in connection with your purchase of Product, and, if necessary, electronically settle and disburse funds to your bank account or credit on your credit card on your behalf. We may deactivate your Buyer Account if we determine that you are in breach of this Agreement and as otherwise set out in the TOU.
- Third Party Terms. Your access to and use of certain functionalities provided in or through the Services may be subject to the Third Party Data Provider Terms. You agree to comply with the Third Party Data Provider Terms at all times. If you do not accept and agree to the Third Party Data Provider Terms you may not participate in the Services. You acknowledge and agree that PBP is not liable for any breach of the Third Party Data Provider Terms by the Third Party Data Provider and that any dispute or Claim that you may have with respect to the Third Party Data Provider Terms will be exclusively between you and the Third Party Data Provider. We hereby disclaim all liability for any Claims arising from, in connection with or relating to the Third Party Data Provider Terms. You hereby remise, release and forever discharge us and the PBP Parties of and from any and all Claims whatsoever which you ever had, now have or may hereafter have, whether at common law, in equity, by statute or otherwise, whether now known or unknown, arising from, in connection with or in respect of the Third Party Data Provider Terms. PBP does not endorse any third party content, websites, services or systems, including those of the Third Party Data Provider, and PBP does not guarantee or warrant the quality, durability, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose of such third party content, websites, services or systems. Third party content, websites, services, or systems are not under PBP’s control, and if you choose to access any such content, websites, or services, you do so entirely at your own risk.
- Eligibility. To be eligible for a Buyer Account, you must have a business that is open and operating at the time of completing the Application Process (the “Buyer Store”) and you must be seeking Product for the Buyer Store. The Buyer Store must have, and you must provide proof of, a valid business registration and a reseller’s permit (or equivalent documentation) as part of the Application Process.
- Account Owner. If you are signing up for a Buyer Account on behalf of your employer, you must use your employer-issued email address and your employer will be designated as the “Account Owner”.
4. Product and Content Compliance
- You acknowledge and agree that we have not and will not assess, evaluate or determine whether the Maker, Product or any Product Content, as the case may be: (i) abides by, or is not prohibited by, PBP’s Guidelines; (ii) complies with all laws, rules and regulations, including, safety, labeling, testing, warning, import/export and other consumer protection law requirements material to the purchase and supply of Product (collectively, “Applicable Laws”); (iii) does not infringe upon the intellectual property, publicity or other rights of third parties; (iv) does not contain false, inaccurate or misleading information; (v) is permitted under Applicable Laws to be sold from the Maker’s jurisdiction and/or into your jurisdiction; or (vi) is permitted under Applicable Laws to be sold by you from your jurisdiction into your customer’s jurisdiction.
- We cannot and do not guarantee, represent or warrant that the Maker, Product or Product Content follows, abides by, or complies with, the restrictions or requirements set out in Section 4(a) (i)-(v) above. We will not be liable to you, and expressly disclaim any and all liability, for any Claims arising from, in connection with or in respect of any Maker, Product or Product Content not following, abiding by, or complying with, the requirements or restrictions set out in Section 4(a) (i)-(v) above. You hereby remise, release and forever discharge us and the PBP Parties (defined below) from any and all Claims whatsoever which you ever had, now have or may hereafter have, whether at common law, in equity, by statute or otherwise, whether known or unknown, arising from, in connection with or in respect of any Maker, Product or Product Content that does not follow, abide by, or comply with, the requirements or restrictions set out in Section 4(a) (i)-(v) above.
5. Orders & Delivery
- Price. If you submit an order to purchase Product through the Website (an “Order”), and such Order is accepted you will receive an invoice from us confirming the purchase (the “Invoice”). By submitting an Order you agree to pay for the Order in accordance with the payment terms set out in Section 6 . We may, in our sole discretion or on behalf of the Maker, refuse to accept an Order from you for any reason. The price for Product you Order is the price stated on the Invoice (the “Price”). Unless otherwise specified on the Invoice, the Price includes shipping but does not include applicable use or excise taxes, harmonized sales tax, goods and services tax or state/provincial sales tax (collectively, “Taxes”). You are solely responsible for the collection and remittance of Taxes. You hereby remise, release and forever discharge us and the PBP Parties from any and all Claims whatsoever which you ever had, now have or may hereafter have, whether at common law, in equity, by statute or otherwise, whether known or unknown, arising from, in connection with or in respect of Taxes and agree to indemnify, defend and hold us and the PBP Parties harmless against any and all such Taxes.
- Minimum Quantities & Refusal Rights. The Maker may specify a minimum dollar amount you must spend on an Order in order for the Maker to fulfil the Order (a “Minimum Order Value”). The Minimum Order Value is set by each Maker and may vary between Makers and Product.
- Samples. You may purchase samples of Product. Notwithstanding anything to the contrary set out in this Agreement, all samples of Product are final sale and may not be returned, exchanged, or refunded under any circumstances.
- Inventory & Lead Times. Lead times for Product may vary depending on how long it takes for the Maker to produce and ship Product. The average lead times for Product are displayed on the Product detail page on the Website (“Lead Time”). Once we accept your Order, the estimated delivery date will be updated in your Buyer Account (the “Estimated Delivery Date”) and you will receive a notice once Product has shipped setting out a tracking number. We encourage Makers to: (i) produce Product on a made-to-order basis in accordance with the Lead Time; or (ii) have suﬃcient inventory of Product to meet the Estimated Delivery Date. We do not guarantee that you will receive Product within the Lead Time or by the Estimated Delivery Date and we are not liable to you in the event Product is received outside the Lead Time or after the Estimated Delivery Date.
- Custom Products. You may submit an Order for Custom Product through the Services. We may, in our sole discretion or on behalf of the Maker, accept, reject or modify an Order for Custom Product. If we modify an Order for Custom Product, we will notify you of the new terms of the Order (i.e., the revised Price, sample description, Average Lead Time, etc.), and you will have the opportunity to approve or decline such modified Order. If you accept the modified Order, you will receive an Invoice and the applicable terms and conditions set out in Section 5(a) will apply to such Order. If you decline the modified Order, you will have no further obligations in respect of such Order.
- Quantity. If we deliver an Order to you containing up to 25% more or less Product than the quantity set forth in the Invoice, you will not be entitled to object to or reject the Order or any portion thereof by reason of the surplus or shortfall and will pay for such Product the Price adjusted pro rata.
- Allocation of Goods. If shortages occur in our supply of Product directly or indirectly as a result of an Unplanned Interruption, we may, without obligation to obtain similar products from other sources, allocate our available supply of Product among our customers in a manner and amount that is fair and reasonable in our sole discretion.
- Exclusivity. You must use the Services to procure goods from any Maker that you discover through the Website. You will not inﬂuence Makers, or otherwise avoid our processes or the Services, by placing orders for goods directly with Makers outside of the Services. Failure to comply with this provision may result in temporary suspension or permanent termination of your Buyer Account and your ability to use the Services in the future.
- Liquidated Damages. If you breach your obligations under Section 5(g) , you will pay to PBP an amount equal 7.5% of Purchase Order value (the “Liquidated Damages”). You acknowledge and agree that: (i) the Liquidated Damages constitute compensation and not a penalty; and (ii) PBP's harm or actual damages caused by your breach of Section 5(g) would be impossible or very difficult to accurately estimate at the time of entering this Agreement and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm or actual damages that might arise from your breach of Section 5(g) .
- Delivery & Shipping. You must provide us with a valid, physical address where the Order will be received (the “Delivery Location”). We will arrange for delivery of the Order to the Delivery Location CIF Incoterms® 2020 and the method and cost of shipping and any customs and/or duties on international orders will be included in the Price. You must take delivery of the Order within 7 days of our written notice that the Order has been delivered to the Delivery Location. You are responsible for all loading costs and for providing equipment and labour reasonably necessary for the receipt of the Order at the Delivery Location. We may, in our sole discretion, without liability or penalty, make partial shipments of an Order to you. Each shipment will constitute a separate sale, and you will pay for the units shipped whether such shipment is in whole or partial fulfilment of the Order. If for any reason you fail to accept delivery of the Order (or any part hereof) on the date fixed pursuant to our notice that the Order has been delivered at the Delivery Location, or if we are unable to deliver the Order to the Delivery Location on such date because you have not provided appropriate instructions, documents, licenses or authorizations, the Order will be deemed to have been delivered and you will be responsible for all costs associated with further storage and delivery of the Order. No Orders may be refused upon arrival. We do not oﬀer drop shipping to your customers. You are not permitted to forward Orders to destinations outside of North America, whether through mail forwarding services or otherwise.
- Title and Risk of Loss. Title and risk of loss of Product passes to you at the time the Order arrives at the destination port for the Delivery Location.
6. Payment Terms
- Payment Methods. For each Order, you will select your preferred Approved Payment Method upon receipt of the Invoice. By submitting an Approved Payment Method in conjunction with registering for a Buyer Account, you authorize PBP, our affiliates, or, if applicable, a third-party payment processor to charge either of the Approved Payment Methods for the Price of the Order (plus all applicable Taxes) in accordance with Section 6(c)(i) or 6(c)(ii) below. If your selected preferred Approved Payment Method is declined, payment for the Order will be processed using the alternative Approved Payment Method. If you fail to select your preferred Approved Payment Method, payment for the Order will be processed using the default Approved Payment Method as set out in your Buyer Account. PBP reserves the right to correct any charging errors.
- Payment Processors. PBP uses third-party service providers for payment processing, fraud alerts, escrow and disbursement of funds. By placing an Order, you acknowledge, consent and agree to PBP sharing your Buyer Account information, which may include personal and financial information, with such third-party service providers in connection with processing payments associated with an Order.
- Payment Plan Options. Buyers will pay for Orders either within 60 days (the “Pay Later Option”) or at the time the Order is placed (the “Pay Now Option”).
- Pay Later. Buyers approved by PBP (“Eligible Buyers”) will automatically be enrolled into the Pay Later Option. The payments terms for the Pay Later Option are net 60-days meaning payment for the Order will not be processed until 60 days following the date the Order is shipped to you. PBP designates Eligible Buyers in our sole discretion based on banking information obtained by our Third Party Data Provider following submission of your first Order. Eligible Buyers may pay an Invoice in full at any time through your Buyer Account. PBP reserves the right to impose a maximum amount that may be outstanding at any one time (the “Pay Later Limit”). You may request for PBP to increase your Pay Later Limit at any time and such request may be approved or denied at PBP’s sole discretion. In the event payment of an Order through the Pay Later Option would exceed the Pay Later Limit, such Order must be paid in accordance with the Pay Now Option. You acknowledge and agree that you will not create multiple Buyer Accounts as a means of circumventing your Pay Later Limit and any such action, as determined in PBP’s sole discretion, will result in permanent termination of your Buyer Account.
- Pay Now. If you are not a Eligible Buyer or if you are a Eligible Buyer and have reached your Pay Later Limit, you will be subject to the Pay Now Option and must pay for each Order in full at the time of submitting the Order. You will automatically be charged the Price within 72 hours, provided the Order is accepted by PBP.
- Socially Responsible Pay. You may elect to pay 5% of the Price of an Order (an “Advance Payment Fee”) which will enable the Maker to receive a 50% advanced payment when the Order is placed and the remaining 50% when the Order is shipped (in accordance with fair trade principles). The Advance Payment Fee will be applied to your Invoice and must be paid at the time of submitting the Order. For the avoidance of doubt, Buyers paying for Order in accordance with either the Pay Later Option or the Pay Now Option may elect to pay the Advance Payment Fee.
- Failure to Make Payment & Payment Plan Program. You acknowledge and agree that if you fail to make timely payment for any Orders, we may, at our option and without notice to you, demand immediate payment of all outstanding Invoices, cancel or suspend your Order(s), suspend or revoke your status as an Eligible Buyer, oﬀset monies that may be owed to you, assert late payment penalties and/or temporarily suspend or permanently terminate your Buyer Account. We reserve the right to turn your account over to a collection agency or seek any other legal or equitable remedies available to collect any outstanding payment, fees, debts or amounts owing to PBP. At our sole discretion, we may offer for you to enroll in a payment plan program on the terms and conditions provided to you at the time of enrollment. You acknowledge and agree that if any payment becomes more than 60 days past due, and you have not otherwise opted into a payment plan program oﬀered by PBP, we may automatically enroll you into a payment plan program, the terms and conditions of which will be provided to you at the time of enrollment. We reserve the right to apply a fee for implementing any such payment plan program.
7. Returns, Refunds, Cancellations
- Returns and Refunds. Except as provided under Sections 7(b) and 7(c) all Orders are made on a one-way basis and you have no right to return Orders to PBP.
- Inspection of Product. You acknowledge and agree that handcrafted items, unlike factory-made items, may have some degree of variability, including variability in proportion, size and colour, and Product may not appear exactly as described or shown on the Website. You must inspect Product within ten days of the Order being delivered to the Delivery Location (the “Inspection Period”). You will be deemed to have accepted Product unless you notify us in writing of any Non-Conforming Product during the Inspection Period and provide us with such written evidence or other documentation as we may require (including picture or video evidence) to substantiate the claim of non-conformance and indicating whether you wish to resolve the issue with the Maker directly or through PBP (a “Non-Conformance Report”). The term “Non-Conforming Product” means only the following: (i) Product shipped is significantly different, in quality or quantity, than described or identified in the Invoice; or (ii) Product is significantly different than a sample of Product previously received by you. If you notify us of a Non-Conforming Product within the Inspection Period, you must provide us with clear image/video evidence from different angles of the defect on such Product and, in the case of a discrepancy between a sample and Product received, you must provide us with an image of the sample and Product received side-by- side with a clear articulation of the specific differences. If you submit a Non-Conformance Report within the Inspection Period, we may, in our sole discretion, accept or reject the Non- Conformance Report. If we accept the Non-Conformance Report, we may: (A) authorize you to contact the Maker directly to resolve the issue and arrange for a discount, refund or replacement of Product (a “Maker Non-Conformance Claim”); or (B) resolve the issue with you directly and arrange for us to provide a discount, refund or replacement Product (“PBP Non-Conformance Claim”). In the case of a Maker Non-Conformance Claim, you will be in contact with the Maker directly without any support from or involvement by PBP. In the case of a PBP Non- Conformance Claim, we may (I) replace such Non-Conforming Product with conforming Product, or (II) credit or refund you the Price for such Non-Conforming Product, together with any reasonable shipping and handling expenses incurred by you in connection with returning Non-Conforming Product to us. At our request, you will destroy the Non-Conforming Product or ship them, at our expense and risk of loss, to a location designated by us in the United States. Notwithstanding the foregoing, we reserve the right, in our sole discretion, to reject any Non- Conformance Reports, including in the event we suspect any fraudulent activity, and in such cases, you will have no remedy in respect of any allegedly Non-Conforming Product. Our decision whether to accept or reject a Non-Conformance Report will be final. You acknowledge and agrees that the remedies set forth in this Section 7(b) are your exclusive remedies for the delivery of Non-Conforming Product.
- Shipping Damage. If Product is damaged during shipping, you are solely responsible for: (i) notifying us of any shipping damage (a “Shipping Report”); (ii) taking a video of the shipment box while unboxing the Order and including such video in the Shipping Report; and (iii) providing us with such other images and documentation we may reasonably request from you in order to resolve the issue with our shipping provider. If you submit a Shipping Report, we may, in our sole discretion, accept or reject the Shipping Report. Our decision whether to accept or reject a Shipping Report will be final. If we accept the Shipping Report, you will, at our request, either destroy the damaged Product or ship them, at our expense and risk of loss, to a location designated by us in the United States and we will, at your election, (A) issue a refund for the damaged Product or (B) arrange for a replacement Product to be provided to you.
- Cancellation. Except as set out in this Section 7(d) , all Orders are final and may not be cancelled at any time or for any reason following receipt of the Invoice. Notwithstanding the foregoing, in the event an Order has not shipped to you within four weeks following the Estimated Delivery Date, you may (i) cancel the Order through your Buyer Account and we will refund you in full; or (ii) request a discount on the Price of the Product (a “Delay Discount”). In the case of (ii), we will negotiate in good faith with you to determine a commercially reasonable Delay Discount and we will reimburse you for such Delay Discount.
8. Product Content
- We may display various Product Content related to Product and Makers on the Website, including photographs, product descriptions and Maker stories. You are granted a revocable, non- exclusive, non-transferable, non-sublicensable, royalty-free, limited license to use Product Content solely in connection with your promotion, advertisement and sale of Product for which the Product Content relates. In all cases, you must: (i) identify us or the Maker, as the case may be, as owner of the Product Content and specify such ownership on your website and any promotional materials using the Product Content; (ii) use the Product Content in accordance with Applicable Law (including laws related to advertising and marketing) and any applicable brand guidelines we or the Maker may provide to you; and (iii) cease using the Product Content upon our or the Maker’s request.
- You acknowledge and agree that you are merely a licensee of the Product Content and that you do not own, and will not claim any ownership rights in, the Product Content. You further acknowledge and agree that we are not responsible, nor will we be held liable, for any Product Content, and we make no representation or warranty that the Product Content does not (i) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, rights of publicity or rights of privacy; (ii) contain libelous, or otherwise unlawful, abusive, harassing, obscene material; or (iii) result in the violation of any Applicable Law. We will not be liable to you for any Claims arising from, in connection with or in respect of your use of the Product Content. You hereby remise, release and forever discharge us and the PBP Parties from any and all Claims whatsoever which you ever had, now have or may hereafter have, whether at common law, in equity, by statute or otherwise, whether known or unknown, arising from, in connection with or in respect of your use of the Product Content and agree to indemnify, defend and hold us and the PBP Parties harmless against any and all Claims arising from, in connection with or in respect of your use of the Product Content.
9. No Warranty
WE MAKE NO CLAIMS, STATEMENTS, WARRANTIES, ASSURANCES, GUARANTEES OR REPRESENTATIONS WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, COLLATERAL OR OTHERWISE CONCERNING PRODUCT, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR OR GENERAL PURPOSE, CONDITION OR WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. YOU WILL MAKE NO WARRANTIES OR GUARANTEES WITH RESPECT TO PRODUCT EXCEPT AS MAY BE AUTHORIZED BY US OR THE MAKER IN WRITING.
10. Limitation of Liability
- IN NO EVENT WILL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT YOU HAVE DISCLOSED THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WE COULD HAVE REASONABLY FORESEE SUCH DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID OR PAYABLE TO US IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT CAUSED THE DAMAGE OR THAT IS THE SUBJECT MATTER OF THE CLAIM.
You agree to defend, indemnify, and hold PBP, and its parent, subsidiaries, aﬃliates, partners, successors, and assigns, and each of its and their owners, members, oﬃcers, directors, employees, agents, representatives, contractors, subcontractors, licensors, service providers and third party content providers (collectively, the “PBP Parties”) harmless from any Claims arising out of, relating to or occurring in connection with your violation of: (i) this Agreement; (ii) Applicable Laws; or (iii) the rights of a third party, including intellectual property rights.
12. Buyer’s Acts or Omissions
If our performance of our obligations under this Agreement is prevented or delayed by your act or omission or any act or omission of your affiliates or yours and their shareholders, officers, directors, employees, agents, representatives, contractors, subcontractors, or consultants, we will not be deemed in breach of our obligations under this Agreement or otherwise liable for any costs, charges or losses you sustained or incurred, in each case, to the extent arising directly or indirectly from such prevention or delay.
- In addition to any remedies that may be provided under this Agreement, we may terminate this Agreement or temporarily suspend your Buyer Account with immediate effect upon written notice to you, if you: (i) fail to pay any amount when due under this Agreement and such failure continues for 30 days after your receipt of written notice of nonpayment; (ii) have not otherwise performed or complied with any of this Agreement, in whole or in part; or (iii) become insolvent, file a petition for bankruptcy or commence or has commenced against you proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- We reserve the right to revoke your access to and use of the Services at any time, with or without cause. In the event we terminate this Agreement or your Buyer Account due to your breach, you will remain liable for all amounts due hereunder.
- You may terminate your Buyer Account and this Agreement any time by contacting our support team at email@example.com or by the process otherwise set out in your Buyer Account portal. We will close your Buyer Account once there has been a full accounting of, and we have received, all monies due and owing to us under your Buyer Account.
- Compliance with Law. You must comply with all Applicable Laws. You must maintain in effect all the licenses, permissions, authorizations, consents and permits needed to carry out your obligations under this Agreement. You must comply with all export and import laws of all countries involved in your purchase of Product under this Agreement or your resale of Product. You assume all responsibility for shipments of Product requiring any government import clearance. We may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Product.
- Waiver. No waiver by any Party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the Party so waiving.
- Confidential Information. All non-public, confidential or proprietary information of the a Party (“Disclosing Party”), including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Disclosing Party to the other Party (“Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential and may only be used by a Party in connection with exercising its rights or performing its obligations under this Agreement and may not be disclosed or copied unless authorized by Disclosing Party in writing. Upon Disclosing Party’s request, Receiving Party will promptly return all documents and other materials received from Disclosing Party. You will be entitled to injunctive relief for any violation of this Section 14(c) . This Section 14(c) does not apply to information that is: (i) in the public domain; (ii) known to the Receiving Party at the time of disclosure; or (iii) rightfully obtained by the Receiving Party on a non-confidential basis from a third party.
- Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labour disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, power outage or any Unplanned Interruption.
- Assignment. You will not transfer or assign any of your rights or delegate any of your obligations under this Agreement without our prior written consent. Any purported assignment or delegation in violation of this Section 14(e) is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement. We may at any time assign, transfer or subcontract any or all of our rights or obligations under this Agreement without your prior written consent.
- Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
- Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Choice of Forum. Any legal suit, action or proceeding arising out of or relating to this Agreement will be instituted in the courts of the Province of Ontario in each case located in the City of Toronto and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and (i) addressed to the Parties at the addresses set forth on the face of the Invoice or to such other address that may be designated by the receiving Party in writing; or (ii) sent through the Buyer Account. Notices sent in accordance with this Section 14(i) will be deemed effectively given: (i) when received, if delivered by hand, with signed confirmation of receipt; (ii) when received, if sent by a nationally recognized overnight courier, signature required; (iii) when sent, if by email or through the Buyer Account if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; or (iv) on the fifth day after the date mailed by certified or registered mail return receipt requested, postage prepaid.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of these Buyer Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including the following Sections: 8 (Product Content), 9 (Limited Warranty), 10 (Limitation of Liability), 11 (Indemnity), 14 (Compliance with Laws, Confidential Information, Governing Law, Choice of Forum and Survival).
- Amendment and Modification. We may amend or modify these Buyer Terms at any time and in our sole discretion upon written notice to you.