KPNE STANDARD TERMS AND CONDITIONS
with effect from June 15th, 2022
1 - DEFINITIONS AND CONDITIONS.
Unless otherwise expressly provided in writing by KPNE Products Ltd., or its relevant subsidiary or affiliate (collectively, “Seller”) with respect to a particular sale, the sale of all goods and/or services are made in accordance with, subject to, and expressly conditioned upon, these standard terms and conditions as may be amended from time to time (“Terms and Conditions”).
The entity purchasing from Seller shall herein be referred to as the buyer (the “Buyer”).
Each sale of goods and/or services shall be a separate and independent transaction. Details regarding the goods and/or services are not set out herein but shall be provided in the Seller’s order confirmation (the “Order Confirmation”, and, together with the Terms and Conditions, the “Agreement”).
Any term or condition or standard of performance different from or in addition to the Agreement, whether set forth on the Buyer’s purchase order or otherwise proposed by the Buyer shall be inapplicable unless expressly agreed to in writing by the Seller.
The Buyer acknowledges that they have not relied on any statement, promise or representation made or given by the Seller which is not been set out in the Agreement.
2 - ACCEPTANCE.
All orders for the Seller’s goods and services shall be deemed to be an offer by the Buyer to purchase goods pursuant to the Term and Conditions. The Buyer accepts the terms in the Seller’s Order Confirmation by:
signing them by hand or electronically;
submitting a purchase order to the Seller;
accepting delivery, using, or allowing others to use the goods and/or services provided by the Seller; or
making any payment for any goods and/or services to be delivered by the Seller.
3 - DELIVERY AND RISK OF LOSS.
Delivery shall take place by such method as the Seller may in its absolute discretion decide, to the location specified by the Buyer (the “Delivery Destination”), on or as close to a delivery date as agreed between the Buyer and the Seller or any such date which the Seller in its absolute discretion considers reasonably practicable in the circumstances.
Costs of packaging and delivery shall be included in the price of the goods unless otherwise stated in the order confirmation. Unless expressly provided otherwise, deliveries of any goods shall be FOB “Delivery Destination” and title to any goods and any risk of loss relating to such goods shall pass to buyer at the time that the Buyer takes possession at the relevant delivery destination. After delivery, the risk of loss or damage shall be borne entirely by the Buyer.
Seller has the right to make partial deliveries of any goods when the Seller reasonably deems appropriate. Subject to the other provisions of these Term and Conditions the Seller shall not be liable for any direct, indirect or consequential loss any delay will not entitle the Buyer to terminate or rescind the Agreement unless such delay exceeds ninety (90) days.
4 - PRICES AND OTHER CHARGES.
Prices and charges for the Seller’s Goods and/or Services shall be invoiced at Seller’s advertised current prices list in effect at the time of shipment unless otherwise provided in the order confirmation. The Seller reserves the right to change pricing with thirty (30) days’ notice due the volatile nature of the raw materials used and specific market conditions. All prices are exclusive of provincial or federal taxes but include duty relating to import and delivery of the goods to the Delivery Destination. All prices are quoted in Canadian Dollars unless otherwise specified, and all payments must be made in Canadian Dollars unless otherwise agreed in writing by the Seller.
5 - TAXES.
The Buyer shall be responsible to collect and remit any and all taxes required by government authorities, whether local, provincial or federal, in connection with the purchase, re-sale, transportation, delivery or use of the goods and services purchased from the Seller. This includes all present or future taxes, fees, charges, and any interest, fines and penalties with respect thereto, imposed, levied, collected, withheld or assessed by any governmental authority.
6 - FREIGHT.
Unless otherwise specified and included on the Order Confirmation, freight is included in the price of the goods and shipping arrangements and delivery appointments shall be made by Seller.
7 - CANCELLATION.
In the case of a wrongful cancelation of the Buyer’s purchase order or non-acceptance of a shipment of goods by the Buyer for any reason whatsoever, the Seller shall be entitled to recover:
the price of such goods or services which cannot reasonably be resold by the Seller to a third party;
the price of services which have already been performed, or
in the case of goods for which other buyers exist, damages equal to a 50% of the invoiced product as a re-stocking fee and the cost of the outgoing and return freight.
8 - QUANTITY VARIATIONS.
In connection with any purchase order, the Seller reserves the right to ship to and invoice the Buyer for a quantity of Goods, which may vary 10% from the quantity specified on the order confirmation. The Buyer shall accept delivery and pay for such revised quantity. Shortages or errors in quantity of goods must be reported, in writing, by the Buyer within fifteen (15) days from receipt of shipment to secure an adjustment for the same. In addition, claims for proof of delivery of a shipment must be made within ten (10) days from the scheduled delivery date.
9 - FORCE MAJEURE/SHORTAGES.
The Seller is not responsible for delays or failure to fulfill its non-monetary obligations due to:
acts or circumstances beyond the reasonable control of Seller;
acts of nature, unusually severe weather (including, floods, hurricanes, tornadoes or earthquakes), fires, accidents, or explosions;
epidemics, pandemics, quarantine restrictions, wars or hostilities; threats or acts of terrorism;
infrastructure, communication failures or data or security breaches;
strikes or other labor difficulties (whether or not related to the Seller’s workforce);
embargoes or governmental actions (including any changes in law or the Seller’s failure to obtain any necessary permits, licenses or authorizations);
unexpected increases in demand for the Seller’s goods;
machine or equipment breakdown;
inability or delay in obtaining raw materials, power or other needed supplies or services on terms the Seller deems commercially acceptable or otherwise; or
delay or non-performance by transporting carriers.
10 - LIMITED WARRANTY AND DISCLAIMER.
In the case of goods sold by the Seller with a separate written warranty, that warranty shall apply. Otherwise, the Seller warrants, subject to the provisions of condition 11 below, that the goods will correspond with their specification at the time of delivery. The Seller further warrants that goods shall be manufactured in accordance with the Seller’s specifications and services shall be performed as specified on the Order Confirmation.
11 - BUYER’S REMEDIES.
The Buyer’s sole and exclusive remedy and the limit of the Seller’s liability for goods or services proven to be other than warranted, whether based upon breach of warranty, negligence, strict liability, tort, breach of contract or any other legal theory, shall be, at Seller’s sole option:
replacement of the goods or services, without charge, freight paid to the Buyer’s facility; or
refund of the purchase price paid in respect of such goods or services minus commercially reasonable charges in connection with the return or disposition of goods.
12 - RETURN OF GOODS.
Goods may only be returned for credit with the written permission of Seller within thirty (30) days from the date of delivery of the goods, subject to the terms of this condition 12. Only the Seller’s branded goods qualify for return credit as custom printed product are a final sale. All goods must have been properly stored and maintained in resalable condition. The goods must be returned to Seller in their original packaging, and in the minimum shipping quantity of one full pallet. Credit for returned goods will be allowed at Seller’s sole discretion based on the condition of the returned goods. All returns must be accompanied by a returned goods authorization number provided by the Seller, to be clearly marked on the pallet(s). Please obtain this number in advance of shipping your return. In no case will the return credit be for more than the Buyer’s original purchase price less the freight included in the cost of the original shipment of goods. All accepted returns will be provided in the form of a credit towards future purchases.
13 - LIMITATION OF LIABILITY.
THE SELLER’S SOLE LIABILITY WITH RESPECT TO THE GOODS AND SERVICES, FOR ANY AND ALL LOSS OR DAMAGE TO THE BUYER, OR ANY OTHER LOSS, DAMAGE, EXPENSE OR CLAIM, RESULTING FROM ANY CAUSE WHATSOEVER SHALL IN NO EVENT EXCEED THE AGGREGATE PURCHASE PRICE OF THE PARTICULAR GOODS OR THE PRICE OF THE SERVICES WITH RESPECT TO WHICH LOSSES, DAMAGES, EXPENSES OR COSTS ARE PROVEN TO THE REASONABLE SATISFACTION OF THE SELLER. THE SELLER SHALL HAVE NO LIABILITY FOR THE COST (OF LABOR, DISPOSAL OR OTHERWISE) TO REMOVE A GOOD OR INSTALL ANY NEW PRODUCT(S). THE SELLER SHALL HAVE NO LIABILITY TO ANY PERSON OTHER THAN BUYER BY VIRTUE OF THE SALE OF THE GOODS, PROVISION OF SERVICES, OR ANY OTHER MATTERS CONTEMPLATED BY THE AGREEMENT. THE LIMITATION OF LIABILITY SET FORTH IN THIS PARAGRAPH SHALL SURVIVE TERMINATION, EXPIRATION OR CANCELLATION OF THE AGREEMENT.
14 - TIME PERIOD FOR BRINGING CLAIMS.
The Buyer agrees that any claim whatsoever arising out of or related to the goods or services purchased by the Buyer must be asserted within sixty (60) calendar days from identification of the non-conformance. The Buyer further agrees that any claim regarding overpayment or credits issued by Seller must be asserted within ninety (90) days from the date such goods or services were invoiced to the Buyer. All such claims not asserted within the above stated time frames shall be deemed irrevocably waived and absolutely barred, unless otherwise prohibited by applicable law.
15 - SAFETY AND HEALTH INFORMATION.
The Seller has supplied or made available to the Buyer information (including but not limited to safety data sheets) and warnings concerning the safety and health aspects of the goods. The Buyer agrees to communicate such information and warnings to the Buyer’s employees, agents, contractors and customers, and to require such persons to further communicate such information and warnings to all persons that they may reasonably foresee will be exposed to or handle such goods.
16 - INTELLECTUAL PROPERTY.
The purchase of goods or services from the Seller shall not entitle the Buyer to any property interest in the Seller’s intellectual property, including its trademarks, trade names, trade secrets, patents, know-how or other proprietary rights of any nature whatsoever, whether or not incorporated in the goods purchased under the Agreement. The Buyer agrees that it will not attempt to reverse-engineer any such goods or disclose or use any such intellectual property without the Seller’s prior written consent.
17 - EXPORT SALES.
The Buyer represents and warrants that it has complied and/or will comply with all applicable laws, rules and regulations pertaining to the import and movement of goods sold hereunder. All drawbacks of duties paid on items used in the manufacture of the goods delivered hereunder shall accrue to the Seller, and the Buyer agrees to furnish the Seller with all documents and cooperation necessary to obtain payment of such drawbacks.
18 - TERMS OF PAYMENT.
The Buyer shall make any and all payments under the Agreement within thirty (30) calendar days from the date of Seller’s invoice, unless otherwise specified on the Order Confirmation. If the Seller, in its sole discretion, deems the Buyer’s credit unsatisfactory, the Seller reserves the right to terminate a purchase order, suspend further deliveries, or require payment by either cash payment in advance of order shipment or cash on delivery (C.O.D.).
Cash discounts as set forth on an Order Conformation are allowed only on the sales value of the goods or services, and freight costs and other “add-on” charges are excluded. The Seller will compute and show on the Buyer’s invoice the exact amount of any cash discount allowed. The Buyer will not be allowed a cash discount, rebate, and/or promotional allowance pertaining to a specific purchaser order unless it has been accepted in writing by Seller or noted on an Order Confirmation. No rebates or cash discounts will be paid or credited while any past due invoice remains unpaid.
Invoices are payable in Canadian dollars only unless otherwise agreed to in writing by the Seller. If the Buyer makes a payment by cheque or draft which is returned due to non-sufficient funds, the Buyer will be assessed a fee of $50.00 for each returned cheque.
Each shipment of goods by the Seller shall be deemed a separate and independent transaction.
The Buyer agrees to pay for the goods and services according to the terms designated on the Order Confirmation. For late payments the Buyer agrees to pay interest calculated daily and compounded monthly, at the rate of 3% per month. If the Buyer fails to make any payment to the Seller when due, the Buyer agrees to reimburse the Seller all costs of collections, including reasonable attorneys’ fees, whether or not litigation is commenced.
19 - TECHNICAL ASSISTANCE OR ADVICE.
If technical assistance or advice are offered by the Seller or given to the Buyer, such assistance or advice is given free of charge and only as an accommodation to Buyer. The Seller shall not be held liable for the content or the Buyer’s use of such technical assistance or advice nor shall any statement made by any of the Seller’s representatives in connection with the goods or services constitute a representation or warranty, express or implied.
20 - GOVERNING LAW AND JURISDICTION.
Subject to the this condition 20, these Terms and Conditions shall be governed by in accordance with the laws of the Province of British Columbia, Canada and the Buyer and Seller hereby submit to the exclusive jurisdiction of the courts of British Columbia, Canada.
Any dispute, controversy or claim arising out of or in connection with the Agreement shall first be settled by consultation between the Seller and the Buyer. In the event of failure of such consultations, the Buyer and Seller must then seek to arbitrate the dispute prior to commencing any legal action. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate.
The arbitration notice to the Seller should be sent to:
KPNE Products Ltd.
31166 Kingfisher Drive
Canada, V2T 5K5
The notice must describe the nature and basis of the claim or dispute and set forth the specific relief sought. If the Buyer and Seller do not reach an agreement to resolve the claim within sixty (60) days after the notice is received, the Seller or Buyer may commence an arbitration proceeding. Then the matter shall be finally and exclusively resolved by arbitration under the arbitration rules of the United Nations Commission on International Trade Law (UNCITRAL) in force as at the date of the Agreement.
21 - ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the Seller and the Buyer with respect to the matters contained therein, and supersedes all prior oral or written representations, proposals, correspondence, discussions, negotiations and agreements. No course of prior dealings and no usage of the trade shall be relevant to supplement, explain or modify any terms of this Agreement.
22 - RELATIONSHIP OF PARTIES.
The Seller and the Buyer are independent contracting parties and nothing in the Agreement shall be construed as constituting or making the Buyer or the Seller as franchiser, franchisee, partner, broker or agent of the other. Each party is an independent contractor and neither shall have any power, right or authorization to bind the other or to assume or create any obligations or responsibilities, express or implied, on behalf of the other or in the other’s name.
23 - SEVERABILITY.
If any provision of the Agreement is deemed invalid or unenforceable by an arbitrator or any court of competent jurisdiction or under any statute, regulation, ordinance or other rule of law, such provision shall be deleted or modified, at the election of the Buyer and Seller, but only to the extent necessary to comply with such ruling, statute, regulation, ordinance, agreement or rule, and the remaining provisions of the Agreement shall remain in full force and effect.
24 - NON-WAIVER.
No change, modification or waiver of any provision of the Agreement shall be valid or binding unless it is accepted by the Seller in writing. A waiver by the Seller or Buyer of any breach or failure to enforce any term or condition of the Agreement shall not in any way affect, limit or waive their right at any other time to enforce strict compliance with that or any other term or condition of the Agreement.