TERMS AND CONDITIONS OF SALE

  1. APPLICABILITY.
    1. These terms and conditions of sale (the “Terms”) are the only terms which govern the sale of the goods (the “Goods”) between Snow Cap Enterprises Ltd. and any of its subsidiaries or affiliates as defined in the Business Corporations Act (British Columbia) (collectively, the “Seller”) and the buyer that this invoice is addressed to (the “Buyer”).
    2. The accompanying confirmation of sale and/or invoice (together, the “Invoice“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of the Buyer’s general terms and conditions of purchase regardless of whether or when the Buyer has submitted its purchase order on such terms. Fulfilment of the Buyer’s order does not constitute acceptance of any of the Buyer’s terms and conditions and does not serve to modify or amend these Terms.
  2. DELIVERY AND SHIPMENT OF GOODS.
    1. Shipment of products under this Agreement shall be Free on Board (“F.O.B.“) destination. Notwithstanding the foregoing, the price for the Goods may not include delivery, and a separate delivery fee may be charged by the Seller on the Invoice.
    2. Title and risk of loss will pass F.O.B. destination. On passage of title, the Buyer is then responsible for proper protection of Goods and compliance with all regulations and ordinances and will indemnify the Seller against any and all claims whatsoever in connection with the Goods as delivered including, without limitation, claims for personal injuries or property damage arising from the storage, use or handling of such Goods.
    3. The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within two (2) days of the date when the Goods would in the ordinary course of events have been received.
    4. Signature of the Buyer’s representative or employee collected at the time of the delivery of the Goods is conclusive evidence that the Buyer has accepted the Goods and that the Buyer has agreed to pay the full amount of the purchase price for the Goods as reflected on the Invoice. Notwithstanding the foregoing, Buyer acknowledges and agrees that by accepting delivery of the Goods, Buyer is deemed to have read, understood, and accepted all Terms set forth in the Invoice and any documents referenced therein. Any objections to these Terms must be made in writing prior to delivery of the Goods; otherwise, Buyer’s acceptance of the Goods shall constitute full acceptance of all applicable Terms.
    5. The quantity of any instalment of Goods as recorded by the Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. The Buyer shall inspect the Goods within  two (2) days of receipt (“Inspection Period“). The Buyer will be deemed to have accepted the Goods unless it notifies the Seller in writing of any discrepancies with the Buyer’s purchase order during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by the Seller. Any liability of Seller for non-delivery or partial delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the Invoice respecting such Goods to reflect the actual quantity delivered.
    6. In the event of a Key Drop delivery by the Seller, any claims for damaged, undelivered or non-conforming Goods must be made no later than 3:00 p.m. (local time) on the day after the date of actual delivery of the Goods, such date of actual delivery to be determined based on the advice of the Seller’s delivery personnel. A “Key Drop” is a delivery made by the Seller during the Buyer’s non-business hours. If any Goods are defective, the Buyer’s sole and exclusive remedy shall be limited to replacement of the defective Goods, or a refund of the purchase price, plus applicable taxes, of any such Goods (provided such Goods are returned by the Buyer to the Seller at the cost of the Buyer).
  3. DELAYS.

All orders are subject to the Seller’s ability to make delivery at the time and in the quantities specified, and the Seller shall not be liable for damages for failure to make partial or complete shipment or for any delay in making shipments.  Without limiting the foregoing, the Seller shall not be liable for delays or defaults in delivery caused by forces not reasonably within the Seller’s control (including but not limited to delays or defaults by carriers, freight forwarders, extreme cold weather, partial or total failure of Seller’s intended production, transportation or delivery facilities, etc., floods, fires, storms, or other acts of God, war or act of public enemy (or civil disturbance), strikes, lock-outs, shortages of labor or raw materials and supplies (including fuel), acts or omissions of the Buyer, action of any governmental authority, or other force majeure event). The Buyer shall be liable for any added expenses incurred by the Seller because of the Buyer’s delay in furnishing requested information to the Seller, delays resulting from order changes by the Buyer, or delay in unloading shipments at the delivery point that are the fault of the Buyer.

  1. CANCELLATION.

Orders may be canceled by the Buyer only upon (1) written or oral notice to the Seller and acceptance in writing by the Seller and (2) payment to the Seller of reasonable cancellation charges to be solely determined by the Seller. Except as otherwise agreed in writing, until the Goods identified in the Buyer’s purchase order as accepted by Seller are shipped, the Seller has no obligation under any order submitted by the Buyer (and may cancel the order at any time prior to shipment without incurring any liability for such cancellation). If any new tariffs, duties, or government-imposed fees or taxes are introduced, or if existing tariffs are modified in a manner that increases the Seller’s cost of the Goods under any order, then the Seller shall have the right to adjust the pricing of the Goods accordingly. If Buyer does not agree to the adjusted pricing within 48 hours of receiving written notice of such price adjustment from Seller, Seller may cancel the affected portion of the order, in its sole discretion and without liability or penalty, and deliver the balance of the order to the Buyer and the Buyer’s order shall be deemed to modified accordingly. In the event of cancellation by the Seller of all or any part of an order as contemplated by this section, Seller shall refund any payments received for undelivered Goods (if applicable), and neither party shall have any further obligations regarding the canceled portion of the order.

  1. RETURNS.

The Seller is not obligated to accept returns of delivered Goods and any agreement on the part of Seller to accept any such returns of delivered Goods is at the Seller’s sole and absolute discretion. If the whole or any part of a return order is to be accepted by the Seller, the Goods and all packaging must be in new condition and the Buyer shall abide by the Seller’s return policy (available upon written request) and the Buyer will be assessed a restocking fee of 15%, unless otherwise agreed to in writing. Any claims for damaged, undelivered or non-conforming Goods are waived by the Buyer.

  1. PRICES AND TAXES.

EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE. ORDERS WILL BE INVOICED, UNLESS OTHERWISE SPECIFIED IN THIS AGREEMENT, AT THE SELLER’S PRICE IN EFFECT ON THE ACTUAL DATE AND TIME OF DELIVERY. Prices on Invoice are net of all applicable discounts and promotional allowances. Any tax or other governmental charges now or hereafter levied upon production, severance, manufacture, delivery, storage, consumption, sale, use or shipment of Goods ordered or sold are not included in the Seller’s price and will be charged to and paid by the Buyer.

  1. NO SET-OFF.

The Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from the Buyer to the Seller shall be made without the Seller’s prior express written approval.

  1. PAYMENT AND PAST DUE ACCOUNTS.

The Buyer will make payment to the Seller at the time and in the currency specified on the Invoice. Past due invoices are subject to a service charge of the lesser of 1.5% per month (18% – APR) or the highest rate permitted by law. Interest charged on a past due invoice will be assessed from the date of the invoice. Amounts owed by Buyer with where there is no dispute will be paid without set-off for any amounts that Buyer may claim are owed by Seller. Buyer agrees to reimburse Seller for all lawyer fees, disbursements and court costs in connection with default of these payment terms by the Buyer. If any payment made to the Seller is dishonored for any reason, the Seller may assess a non-sufficient funds fee for each such dishonored payment (“NSF”) and: (a) re-present the related payment and issue a draft against the account upon which such payment was drawn for the NSF, or (b) deem such payment dishonored without re-presentment and charge the NSF to the Buyer’s account.

  1. WARRANTY TIME FOR MAKING CLAIMS.

The Seller warrants only that it will convey good title to the Goods and that, at the time of shipment, the Goods will conform to the published specifications of the Seller. Seller’s specifications are subject to change at any time without notice to the Buyer. NO OTHER WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, IS MADE BY THE SELLER AND THE SELLER HEREBY DISCLAIMS ALL SUCH OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. The Buyer must notify the Seller of any claim with respect to the Goods, warranty, or any other claim under this Agreement within thirty (30) days of the Seller’s delivery of the Goods or such claim is waived. In the event of an alleged breach hereof by the Seller, the sole remedy available to the Buyer on account of any defect in the Goods shall be limited to the replacement of such defective Goods by the Seller. In the event the remedy provided herein shall be deemed to have failed its essential purpose, then the Buyer shall be entitled only to a refund of the amounts paid to the Seller for such defective Goods. Subject to the notification of claim provision above, no action for breach of the contract for sale or otherwise with respect to the Goods will be commenced more than one (1) year after the accrual of the cause of action thereto.

  1. BLENDED GOODS.

Goods manufactured by a third party or Goods blended together with other Goods (“Blended Goods“) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Blended Goods are not covered by the warranty in Section 9. For the avoidance of doubt, THE SELLER MAKES NO REPRESENTATIONS, CONDITIONS, OR WARRANTIES WITH RESPECT TO ANY BLENDED GOOD, INCLUDING ANY (A) CONDITION OR WARRANTY OF MERCHANTABILITY; (B) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) CONDITION OR WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

  1. LIMITATION OF LIABILITY.

THE SELLER’S LIABILITY FOR ANY CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE NET PURCHASE PRICE ACTUALLY PAID TO THE SELLER FOR THE GOODS INVOLVED. IN NO EVENT SHALL SELLER BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES FOR ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. The Buyer assumes all risks and liability for any damage to persons or property resulting from the use of the Goods delivered hereunder in manufacturing processes of the Buyer or in combination with other substances or otherwise. For clarity, and without limited the generality of the foregoing, the Blended Goods are subject to this limitation of liability.

  1. INDEMNIFICATION.

THE BUYER SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND THE SELLER AND ITS AFFILIATES AND THEIR RESPECTIVE PRESENT OR FUTURE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, INSURERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY, THE “INDEMNIFIED PARTIES“), FROM ALL CLAIMS, LIABILITIES, DAMAGES, SUITS, PROCEEDINGS, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) (COLLECTIVELY, “LOSSES”), FOR ANY DAMAGE, INJURY, DEATH, LOSS OR DESTRUCTION OF ANY KIND RELATING TO OR ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR DAMAGE TO ANY PROPERTY OR INJURY TO OR DEATH OF ANY PERSON (INCLUDING, WITHOUT LIMITATION, THE BUYER OR ITS EMPLOYEES), WHETHER ARISING AS A WORKERS’ COMPENSATION CLAIM OR UNDER THEORIES OF NEGLIGENCE, TORT, STRICT LIABILITY, INTENTIONAL MISCONDUCT, OR FAULT OF ANY KIND, AND EVEN IF THE RESULT OR ALLEGED RESULT OF THE CONDUCT, NEGLIGENCE, ERROR, OMISSION, OR BREACH OF THIS AGREEMENT OR NON­COMPLIANCE WITH APPLICABLE LAWS BY ANY INDEMNIFIED PARTIES. THIS PROVISION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT. FOR CLARITY, AND WITHOUT LIMITED THE GENERALITY OF THE FOREGOING, THE BLENDED GOODS ARE SUBJECT TO THIS INDEMNIFICATION.

  1. SECURITY INTEREST.

As collateral security for the payment of the purchase price of the Goods, the Buyer hereby grants to the Seller a lien on and security interest in and to all of the right, title, and interest of the Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the British Columbia Personal Property Security Act.

  1. MISCELLANEOUS.
    1. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
    2. Assignment.  The Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. The Seller has the right to assign this Agreement without the Buyer’s prior written consent.
    3. No Third-Party Beneficiaries.  This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
    4. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada.
    5. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement and all contemplated transactions, shall be instituted in the courts of the British Columbia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding.
    6. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    7. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.